McCoy v. Tangipahoa Parish School Bd., 10123

• Decision Date: 10 February 1975
• Docket Number: No. 10123,10123
• Citation: 308 So.2d 382
• Parties: Fred McCOY v. TANGIPAHOA PARISH SCHOOL BOARD.
• Court: Court of Appeal of Louisiana — District of US

Page 382

308 So.2d 382

Fred McCOY v. TANGIPAHOA PARISH SCHOOL BOARD.

No. 10123.

Court of Appeal of Louisiana, First Circuit.

Feb. 10, 1975.

Rehearing Denied March 10, 1975.

Writ Refused April 24, 1975.

Joseph H. Simpson, Amite, for appellant.

Hobart O. Pardue, Jr., Springfield, for appellee.

Before LANDRY, BLANCHE and NEHRBASS, JJ.

LANDRY, Judge.

Defendant (School Board) appeals from judgment awarding Plaintiff (Appellee), a tenured school teacher, the difference between the salary of a principal and that of a classroom teacher following Appellee's demotion from Principal, Midway Elementary School, Tangipahoa Parish, to classroom teacher upon closure of the school. Appellee has answered the appeal seeking damages for a frivolous appeal. We affirm the judgment declaring Appellee entitled to the difference in pay; we reject Appellee's demand for damages for frivolous appeal.

The facts are virtually undisputed. Appellee is a tenured teacher in the Tangipahoa Parish School System, having been employed therein for more than 17 years. On July 2, 1969, Appellee held the position of Principal, Midway Elementary School, to which post Appellee was appointed eight years and six months previously. Midway School was closed July 2, 1969, pursuant to a Federal Court order rendered in an integration action brought against School Board. Following closure of the school, Appellee was demoted to the status of fourth grade classroom teacher without the benefit of a hearing.

Upon his demotion, Appellee instituted proceedings in the Federal Court seeking reinstatement to the position of principal on the ground that his demotion was illegal in that it was motivated by racial discrimination. In his Federal Court action, Appellee did not seek any decree respecting compensation. On September 2, 1970, judgment was rendered in Appellee's Federal Court action denying Appellee's demand for reinstatement as principal. Appellee's appeal from said adverse judgment is presently pending in the Federal Court system.

This present action was instituted by Appellee on March 19, 1973. The only relief sought by Appellee herein is that he be awarded the difference between the salary of principal and classroom teacher from July, 1969, to the present. On October 2, 1973, in an apparent effort to comply with LSA-R.S. 17:422, Edwin Newman, Superintendent of Schools, Tangipahoa Parish, wrote Henry Dunn, President, Tangipahoa Parish School Board, recommending Appellee's termination as principal, retroactive to July 2, 1969. Newman assigned as reasons for said recommendation, Appellee's lack of the required certificate of eligibility as principal, and also the closing of the Midway School by Federal Court order, which action allegedly abolished Appellee's job as principal.

School Board filed herein Exceptions of Res Judicata, Lis Pendens, No Cause of Action and Prescription of Three Years pursuant to LSA-C .C. art. 3538, all of which were overruled below. The trial court rendered judgment in favor of Appellee in the sum of $12,096.22. On appeal School Board reurges all of its exceptions save that of Lis Pendens. Alternatively, School Board suggests a remand to fix the amount due Appellee because the record does not show with clarity the salary paid principals during the period involved herein.

THE EXCEPTION OF RES JUDICATA

We are in accord with School Board's contention that a final judgment of a Federal Court may form the basis of a plea of Res Judicata in the courts of this state, Harrell v. Rockett, La.App., 65 So.2d 670. It is elementary, however, that an exception of Res Judicata (the authority of the thing adjudged) must be predicated upon a final judgment.

In this instance, it is conceded that the judgment of the United States District Court rejecting Appellee's demand for reinstatement as principal has been appealed by Appellee. Inasmuch as said judgment has been appealed, and consequently is not final because it is not presently executory, it does not constitute the basis of a plea of Res Judicata.

THE EXCEPTION OF NO CAUSE OF ACTION

This exception is based on the premise that Appellee's petition alleged Appellee to be a tenured teacher, whereas Appellee is requesting payment of salary due a principal without alleging that Appellee is a tenured principal.

In disposing of an exception of no cause of action, all well pleaded allegations of plaintiff's petition must be accepted as true . Leatherman et al. v. Parish of East Baton Rouge, La.App., 275 So.2d 806, and authorities therein cited.

Allegations of a petition must be construed liberally in favor of plaintiff in disposing of an exception of no cause of action. LSA-C .C.P. art. 931.

The crucial issue on trial of an exception of no cause of action is whether plaintiff has alleged facts entitling him to relief under any theory, rule of law or statute whatsoever. Consequently, a trial court may consider pertinent statutes and jurisprudence in deciding an exception of no cause of action. Leatherman, above.

We find the allegation that Appellee is a tenured teacher suffices in this instance. Appellee was appointed principal in or about November, 1960. At the time of Appellee's said appointment, our jurisprudence was established to the effect that a teacher having served his initial three year probationary period, acquired tenure which attached to any subsequent position to which he was promoted and which followed him throughout his entire teaching career. See State ex rel. Bass v. Vernon Parish School Board, La.App., 194 So. 74 (1940); Charbonnet v. Jefferson Parish School Board, La.App., 188 So.2d 143 (1966), and Hayes v. Orleans Parish School Board, La.App., 225 So.2d 131 (1969). These same authorities held that once tenure is acquired, it is not necessary for a teacher to serve a three year probationary period in each successive position to which he might be promoted.

We are cognizant that Act 494 of 1968 (effective July 31, 1968) amended LSA-R.S. 14:444, to provide a three year probationary period for each position to which a teacher might be promoted before permanent status may be achieved therein. It seems clear beyond doubt that Act 494 of 1968 was enacted to supercede the Bass, Charbonnet and Hayes decisions, above. However, Act 494 of 1968 is not retroactive. Hayes v. Orleans Parish School Board, above.

Under the circumstances of this case, Appellee's allegation of tenure must be construed to encompass an allegation of tenure in the position which forms the basis of his demand for salary allegedly due.

THE EXCEPTION OF PRESCRIPTION OF THREE YEARS

In urging that Appellee's claims are barred insofar as concerns salary allegedly due for services rendered more than three years prior to filing of this action, School Board relies upon LSA-C.C. art. 3538 which, in pertinent part, reads as follows:

'Art. 3538. The following actions are prescribed by three years:

That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences who give lessons by the year or quarter.'

We have been cited no case which has had occasion to interpret the foregoing codal provision with respect to the claim of a modern day school teacher.

We begin our consideration of the problem by noting that prescriptive laws are in derogation of common rights and therefore must be strictly construed. Pelican State Associates, Inc. v. Winder, 253 La. 697, 219 So.2d 500; Georgia-Pacific Plywood Co. v. Miller, La.App., 94 So.2d 531.

We note, however, Alexander Hamilton Institute v. Morrison, 8 La.App. 226, which held that the three year prescriptive period provided by Article 3538, above, does not apply to a claim for the balance due on a written contract for a mail order correspondence course. We also note Hughes v. Grant Parish School Board, La.App., 145 So. 794, which held that LSA-C.C. art. 3534, which stipulates a period of one year's prescription on the claims of 'masters and instructors in the arts and sciences for lessons which they give by the month', does not apply to a teacher who was employed for a term of 8 months.

In this instance, Appellee does not seek compensation as a teacher, but as a principal. Article 3538, relied upon by School Board, makes no mention or reference to principals. It applies to 'teachers . . . who give lessons by the year or quarter.' In this instance, the record shows that, as a principal, Appellee is paid by the year. There is, however, no showing that as a principal, Appellee gives lessons. Moreover, we judicially note that, as a general rule, the primary function of a principal is that of an administrator or executive rather than the giver of lessons.

We hold, therefore, that Article 3538, sought to be invoked by School Board, is inapplicable herein. We further hold that plaintiff's claim for wages of a school principal is subject to the ten year prescriptive period provided for by LSA-C.C. art. 3544, which provides in effect that all personal actions not otherwise provided for, are prescribed by ten years.

APPELLEE'S CLAIM FOR SALARY DIFFERENTIAL

It is conceded that Appellee lacks a master's degree required by law as one of the...