Mullan v. Bishop of the Diocese of Orlando

• Decision Date: 16 March 1989
• Docket Number: No. 87-2351,87-2351
• Citation: 14 Fla. L. Weekly 691,540 So.2d 174
• Parties: 52 Ed. Law Rep. 1315, 14 Fla. L. Weekly 691 Lawrence A. MULLAN, Appellant, v. BISHOP OF THE DIOCESE OF ORLANDO, etc., Appellee.
• Court: Florida District Court of Appeals

Page 174

540 So.2d 174

52 Ed. Law Rep. 1315, 14 Fla. L. Weekly 691

Lawrence A. MULLAN, Appellant, v. BISHOP OF THE DIOCESE OF ORLANDO, etc., Appellee.

No. 87-2351.

District Court of Appeal of Florida,

Fifth District.

March 16, 1989.

Gerry L. Clark, of Law Offices of Newman and Eaton, Orlando, for appellant.

Ladd H. Fassett of Smathers, Pleus, Adams, Fassett & Divine, P.A., Orlando, for appellee.

ORFINGER, Judge.

Mullan appeals from an adverse summary judgment in his action seeking damages for allegedly being forced to resign, under duress and threats of immediate dismissal, from his position as a teacher at Bishop Moore High School. Because we find that there exist disputed issues of fact which must be tried, we reverse.

The record reveals that Mullan had taught at Bishop Moore for some 25 years and on June 17, 1986, had executed a written teaching contract with appellee for the period August 15, 1986 through June 10, 1987. As part of his employment, Mullan was to receive a salary as well as certain fringe benefits including insurance, pension and sick leave benefits.

According to the verified amended complaint, on October 30, 1986, Mullan was accused of hitting a student while disciplining that student. Mullan alleged that he was ultimately told by school principal Massaro that he was being terminated and that when he protested, Massaro announced that he could resign with compensation or be fired without being paid, but that either way, Mullan was "gone". Within five minutes Massaro presented Mullan with his fully typed resignation and placed it before him for his signature. According to the amended complaint:

10. Massaro's actions placed the Plaintiff under great duress as the threat of firing without further compensation threatened his family's well being. Principal Massaro's actions both stunned and robbed the Plaintiff of his will to resist the unjust firing and further robbed Plaintiff of his free will to make a reasoned decision about which course of action to take.

11. Principal Massaro's actions were unjust and illegal in that the Plaintiff had not hit the student as charged. A full investigation, which any reasonable man would have carried out, would have revealed the true facts. Plaintiff's written teacher's contract with the school would have prevented Plaintiff's firing without cause.

The amended complaint continued that on December 26, 1986, Mullan submitted a request to appeal and that on February 18, 1987, Massaro advised that the Board of Education would not reverse the original decision.

Mullan filed an affidavit with his amended complaint, averring that "he had not disciplined any student in an illegal manner," that "Massaro had plainly threatened not to pay me any further wages if I refused to resign" and that "absent that threat, I never would have agreed to resign."

Appellee filed the affidavit of principal Massaro who averred that Mullan had been accused of striking a student, that he, Massaro, had investigated the incident and that based on statements made to him by other students who had allegedly witnessed the incident, he had concluded that the accusation was well founded. Appellee moved for summary judgment claiming Mullan resigned from his position, that he accepted the benefits under the resignation agreement, that duress was not shown and that Mullan failed to comply with the appeals alternatives set out in the teaching contract. The summary judgment granted in favor of appellee specified no grounds.

Mullan argues that several material issues of disputed fact exist here, with the primary one being whether he voluntarily resigned his position or instead resigned under duress in which case such resignation would be voidable. See Davis v. Hefty Press, 152 Fla. 385, 11 So.2d 884 (1943). Mullan adds that an additional question of fact concerns whether he actually hit a student, and if so, whether it was improper or in violation of law or rule of the school.

In Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928) the court noted that:

Duress is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.

Both parties cite to City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA 1981), rev. denied, 407 So.2d 1104 (Fla.1981), on the issue of duress. In Kory, a probationary city employee resigned after being told that she was going to be fired, because she believed that resigning as opposed to being fired would make it easier for her to obtain another city position. After she was unsuccessful in obtaining another job, she sued to have the resignation set aside on the basis of duress. The appellate court reversed the trial court's finding of duress, and posited that in order to set aside an act based on duress, it must be shown: (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will, and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side. "[U]nderlying all definitions of 'duress' is the dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion." Id. at 497.

Analyzing the case before it, the Kory court held that the facts did not support a claim of duress, and that the case was "completely different from [those cases] cited by appellee, in which the resignation was affirmatively requested, indeed required by the employer as the only alternative to a similarly unlawful discharge" because the decision to resign was initiated by the plaintiff and constituted a conscious choice which plaintiff believed was in her best interest. Moreover, said the court, because she was a probationary...