Messiha v. State

• Decision Date: 18 August 1998
• Docket Number: No. 980007,980007
• Parties: 128 Ed. Law Rep. 886, 1998 ND 149 Fathy S. MESSIHA, Plaintiff and Appellant, v. STATE of North Dakota, d/b/a University of North Dakota, and its officers and servants, Clayton Jensen, Thomas Clifford, Kendall Baker, and Sally Page, Defendants and Appellees. Civil
• Court: North Dakota Supreme Court

Page 385

583 N.W.2d 385

128 Ed. Law Rep. 886, 1998 ND 149

Fathy S. MESSIHA, Plaintiff and Appellant, v. STATE of North Dakota, d/b/a University of North Dakota, and its officers and servants, Clayton Jensen, Thomas

Clifford, Kendall Baker, and Sally Page,

Defendants and Appellees.

Civil No. 980007.

Supreme Court of North Dakota.

Aug. 18, 1998.

Rehearing Denied Sept. 15, 1998.

Bruce A. Schoenwald, Fargo, for plaintiff and appellant.

Gary R. Thune (argued), and David E. Reich (no appearance), Special Assistant Attorneys General, Bismarck, and Julie Erjavec (appearance), General Counsel, UND School of Law, Grand Forks, for defendants and appellees.

MESCHKE, Justice.

¶1 Fathy Messiha appealed a summary judgment dismissing his action for wrongful termination and other claims against the State, acting through the University of North Dakota, and its officers and servants, Thomas Clifford, Kendall Baker, Clayton Jensen, and Sally Page. ¹ We hold the trial court did not abuse its discretion in denying Messiha's motion to amend his complaint, and Messiha failed to demonstrate any material factual disputes about his other claims. We therefore affirm the summary judgment.

¶2 The UND School of Medicine hired Messiha as a tenured professor and chair of the Department of Pharmacology in April 1987. After some internal conflicts in the department, Messiha was relieved of his duties as department chair in September 1988, but remained as a tenured professor. Messiha thereafter filed several grievances about his employment with UND, and in 1993 UND President Baker appointed an Administrative Review Team to consider Messiha's "formal disagreements" with UND. After a two-day review in May 1993 the Administrative Review Team concluded "Messiha's presence within the Department of Pharmacology and Toxicology cannot continue," and recommended "decisive action be taken regarding Professor Messiha's position as a faculty member."

¶3 In June 1993, UND President Baker notified Messiha that UND intended to terminate his employment as a tenured professor for cause, because his conduct "substantially impaired the fulfillment of [his] institutional responsibilities and substantially obstructed and disrupted departmental, college, and university activities." Baker notified Messiha the dismissal would be effective July 1, 1993, unless Messiha exercised his appeal rights under the UND Faculty Handbook.

¶4 Messiha appealed to a Special Review Committee that concluded the proceedings for dismissal of Messiha were "appropriate, timely, and in accord with university policies and practices." Messiha then appealed to a Standing Committee on Faculty Rights (SCOFR). After a formal hearing, the SCOFR found clear and convincing evidence that Messiha had intentionally and substantially disrupted teaching activities at UND and had interfered with his colleagues' rights of free inquiry and expression of opinions. In April 1994, the SCOFR recommended that Messiha be terminated as a tenured professor.

¶5 Baker accepted the SCOFR recommendation and reaffirmed his June 1993 decision to terminate Messiha's employment. Messiha then appealed to the North Dakota State Board of Higher Education. After review by an administrative hearing officer who recommended affirming UND's action, the Board of Higher Education upheld Messiha's termination in September 1995.

¶6 Meanwhile, in September 1994, Messiha sued the State, acting through UND, and Baker, Clifford, Jensen, and Page, alleging breach of contract, deprivation of property without due process, and defamation. In April 1997, Messiha moved to amend his complaint to allege claims for breach of tenure against UND, tortious interference with contract against Joseph Miceli and the Morehouse School of Medicine, civil conspiracy against UND and Miceli, and a personnel file violation against UND. The trial court allowed Messiha to amend his complaint to add the breach-of-tenure claim to clarify that his breach-of-contract claim also covered the termination of his employment, but the court denied his request to add other claims to the complaint. The court then granted summary judgment dismissing Messiha's complaint, and he appealed.

I

¶7 Messiha contends the trial court abused its discretion in denying his motion to amend his complaint. After a responsive pleading is served, N.D.R.Civ.P. 15(a) allows amendment of pleadings "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." A trial court has discretion to grant or deny amendments to pleadings under N.D.R.Civ.P. 15(a), and we will not reverse the court's decision absent an abuse of discretion. Isaac v. State Farm Mut. Auto. Ins. Co., 547 N.W.2d 548, 551 (N.D.1996). As we explained in Hansen v. First Am. Bank & Trust, 452 N.W.2d 770, 772 (N.D.1990), a trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably.

¶8 Messiha served his initial complaint in September 1994, and he moved to amend it in April 1997. During part of that time, Messiha exercised his internal administrative rights at UND, culminating with the State Board of Higher Education's decision to uphold his termination in September 1995. However, Messiha waited until April 1997 before seeking to amend his complaint. The trial court concluded Messiha had shown no reason for the long delay, and decided the delay was not justified and may not have been in the interests of justice. The court, however, observed UND had not claimed prejudice and, except for the breach-of-tenure claim, denied Messiah's motion to amend, concluding the evidence did not support his other claims.

A

¶9 Messiha's claim for tortious interference with contract against Miceli and the Morehouse School of Medicine alleged that Miceli, a professor at Morehouse, sent the Administrative Review Team an unsolicited letter of support for Messiha's successor as chair of the Department of Pharmacology, Dr. David Hein. Messiha argues Miceli's letter was obviously intended to facilitate Messiha's termination. The trial court ruled:

Based upon the record, there were numerous grievances filed by and against [Messiha] long before the letter of Dr. Miceli reached the Administrative Review Team. Furthermore, the decision to terminate [Messiha] was based upon those numerous episodes. See Findings of the Administrative Hearing Officer. There is no evidence at all which would tend to show that Dr. Miceli's letter in any way influenced the decision of the Team nor of any of the Defendants.

¶10 To establish a facial case for tortious interference with contract, a claimant must show a breach of contract instigated without justification by the defendant. Hennum v. City of Medina, 402 N.W.2d 327, 336 (N.D.1987). Miceli's letter was received by the Administrative Review Team when it convened in May 1993 to consider procedures for resolving formal disagreements within the Department of Pharmacology, particularly Messiha's grievances. We agree with the trial court, however, that Messiha has not shown Miceli's letter influenced the Administrative Review Team or any of the defendants. Moreover, Messiha concedes he could begin an independent action against Miceli and Morehouse. We have said the availability of a separate action supports a trial court's denial of a motion to amend pleadings. See Olson v. Brodell, 128 N.W.2d 169, 179 (N.D.1964). Under these circumstances, we conclude the trial court's denial of Messiha's belated request to amend his complaint to include a claim for tortious interference with contract against other defendants was not arbitrary, unconscionable, or unreasonable, and therefore was not an abuse of discretion.

B

¶11 Messiha asserts the trial court erred in denying his motion to amend to add a claim for civil conspiracy against the UND defendants and Miceli. The court concluded there was nothing to show an understanding between Miceli and the UND defendants and denied Messiha's motion.

¶12 A civil conspiracy requires an agreement between parties to inflict a wrong or an injury upon another. Burr v. Kulas, 1997 ND 98, p 18 n. 3, 564 N.W.2d 631. We agree with the trial court that Miceli's unsolicited letter, by itself, does not evidence an agreement between the UND defendants and Miceli. Messiha has not cited any other evidence for an agreement between Miceli and the UND defendants. A trial court does not abuse its discretion in denying a requested amendment that would be futile. See First Interstate Bank v. Rebarchek, 511 N.W.2d 235, 243 (N.D.1994). We hold the trial court did not abuse its discretion in denying Messiha's motion to add a civil conspiracy claim to his complaint.

C

¶13 Messiha contends the trial court erred in denying his motion to amend his complaint against the UND defendants to add a claim for violations of the law against a secret personnel file. The court ruled Messiha had failed to produce any documents or other information that was kept secretly from him in violation of N.D.C.C. § 15-38.2-06, and the interests of justice precluded him from amending his complaint as a fishing expedition to find possible statutory violations. The court's decision was not arbitrary, unconscionable, or unreasonable, and therefore was not an abuse of discretion.

II

¶14 Messiha argues the trial court erred in granting summary judgment dismissal of his remaining claims. We review these issues under the summary judgment standards of N.D.R.Civ.P. 56. In Perry Center, Inc. v. Heitkamp, 1998 ND 78, p 12, 576 N.W.2d 505, we explained summary judgment is appropriate for deciding an action promptly without a trial if, after viewing the evidence in the light most favorable to the party opposing the motion and giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence, there is no genuine dispute as to either the material facts or the inferences to be drawn from the undisputed...