Southwest Parke Educ. Ass'n v. Southwest Parke Community School Trustees Corp., Bd. of School Trustees

• Decision Date: 17 November 1981
• Docket Number: No. 1-481A131,1-481A131
• Citation: 427 N.E.2d 1140
• Parties: 1 Ed. Law Rep. 406 SOUTHWEST PARKE EDUCATION ASSOCIATION, Appellant-Defendant, v. SOUTHWEST PARKE COMMUNITY SCHOOL TRUSTEES CORPORATION, BOARD OF SCHOOL TRUSTEES, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1140

427 N.E.2d 1140

1 Ed. Law Rep. 406

SOUTHWEST PARKE EDUCATION ASSOCIATION, Appellant-Defendant, v. SOUTHWEST PARKE COMMUNITY SCHOOL TRUSTEES CORPORATION, BOARD OF SCHOOL TRUSTEES, Appellee-Plaintiff.

No. 1-481A131.

Court of Appeals of Indiana, First District.

Nov. 17, 1981.

Richard J. Darko, Bayh, Tabbert & Capehart, Indianapolis, Kipling N. White, White, White & Bray, Covington, for appellant-defendant.

Clelland Hanner, Hanner & Hanner, Rockville, William M. Evans, Bose, McKinney & Evans, Indianapolis, for appellee-plaintiff.

RATLIFF, Judge.

STATEMENT OF THE CASE

The defendant-appellant Southwest Parke Education Association ("the association") brings this appeal from the judgment of the Fountain Circuit Court confirming its earlier judgment, which had vacated an arbitrator's award in favor of the association, and confirming a supplemental award of the arbitrator in favor of the plaintiff-appellee Southwest Parke Community School Trustees Corporation, Board of School Trustees ("the board"). We reverse.

FACTS

During the 1977-78 school year, Steve Kaufman was employed by the board as a teacher. On April 26, 1978, the board purportedly voted not to renew Kaufman's contract at the end of the school year. Kaufman filed a grievance under the collective bargaining agreement between the board and the association. His grievance rested upon two grounds: (1) the board's vote on April 26, 1978, to dismiss him did not comply with part of the General School Powers Act, Ind.Code 20-5-3-2(6), ("the vote issue") and (2) his dismissal violated §§ 3.100 and 3.1000 of the collective bargaining agreement, which provided, in essence, that the board would not violate any teacher's constitutional, statutory, or contractual rights or discriminate against any teacher because of his participation in activities of the association ("the discrimination issue").

Pursuant to the collective bargaining agreement, the grievance was submitted for arbitration. On April 27, 1979, Arbitrator Harry J. Dworkin issued his award ("the original award") in which he directed that Kaufman be reinstated and reimbursed for lost earnings. The arbitrator found that the board's vote dismissing Kaufman was invalid, and, consequently, he deemed it unnecessary to decide the discrimination issue.

The board filed suit to have the award vacated pursuant to Ind.Code 34-4-2-13(a)(3), which provides that the court shall vacate the award where the arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision. The board moved for summary judgment, and the association filed a cross-motion for summary judgment and to confirm the award. The trial court ruled in favor of the board on its motion and against the association on its cross-motion and set aside, or vacated, the arbitrator's award on March 26, 1980. The court concluded that the board's vote satisfied the requirements of IC 20-5-3-2(6) and that the arbitrator had erroneously construed Indiana law and thereby exceeded his authority. The board consisted of five members, four of whom were present at the April 26, 1978, meeting at which the dismissal vote was taken. The vote was two to one in favor of dismissal. According to the court, the arbitrator had construed the law to mean that a quorum consisted of a majority, or three or more members, that any action would require the vote of a majority of the members, or three, and that the action of the board was null and void because fewer than three voted in favor of dismissal. The court found that the president of the board had abstained, it being the practice of the president to abstain except in the case of a tie vote among the other board members. The court concluded that the president's failure to vote was an acquiescence in, and a consent to, the action of the board. The court further determined that a majority of the board constitutes a quorum and a majority of the quorum can act. In this case, the court The association filed a motion to correct errors in which it alleged that the trial court erred in failing to remand the case to the arbitrator for a determination of the discrimination issue and that the court erred in concluding that the arbitrator had exceeded his authority and in vacating his award. The court sustained the motion insofar as it requested that the case be remanded to the arbitrator for a determination of the discrimination issue, but the remainder of the motion was denied. However, the court expressly vacated its order of March 26, 1980, and stated it would retain jurisdiction of the matter pending the arbitrator's determination.

said, a quorum was present, and a majority of the board voted not to renew Kaufman's contract.

On September 23, 1980, the arbitrator filed his supplemental award in which he found that there was substantial, probative evidence of Kaufman's deficiencies as a teacher to support the board's decision to dismiss him. The trial court entered judgment on October 27, 1980, confirming the supplemental award and also "confirming" the portion of its March 26, 1980, judgment dealing with the vote issue. The association filed another motion to correct errors, alleging error in the court's confirming its March 26, 1980, judgment with respect to the vote issue. This second motion to correct errors was denied.

ISSUES

The association presents the following issues for our review:

"1. Whether the Court exceeded its jurisdiction under the Uniform Arbitration Act, I.C. 34-4-2-13, in reviewing and vacating the final and binding award of the arbitrator for an alleged error of law.

"2. Whether, even if the Court had jurisdiction under the Uniform Arbitration Act to review the award of the arbitrator for an alleged error of law, any error of law was actually made by the arbitrator in his interpretation of the General School Powers Act, I.C. 20-5-3-2(6)."

DISCUSSION AND DECISION

Before we can address the issues raised by the association, we must consider certain contentions raised by the board in its appellee's brief. The board, in essence, asserts that the association waited too long to bring this appeal and that the association invited error on the part of the trial court by persuading the court to remand the matter to the arbitrator. The board concludes that the trial court's judgment should be affirmed.

The board contends, first, that the arbitrator's award of April 27, 1979, was final and that the judgment of March 26, 1980, vacating that award was an appealable order. However, even if the association had intended to appeal the March 26 judgment immediately, it would have had to file a motion to correct errors, which it did in this case. See Ind.Code 34-4-2-19(a)(5) and (b); Ind.Rules of Procedure, Appellate Rules 2(A), 3(B), and 7.2(A)(1)(a). Had the motion been denied, the association would have had to file its praecipe within thirty days of the ruling, A.R. 2(A), and the record of the proceedings within ninety days, A.R. 3(B), in order to present any assignment of errors for our review.

However, the trial court sustained the association's motion to correct errors with regard to the contention that the case should be remanded to the arbitrator because he failed to determine whether Kaufman was dismissed due to his activities in the association. The motion was denied with regard to the association's contentions concerning the "legal question," i. e., the validity of the board's dismissal vote. Nevertheless, the trial court expressly vacated its March 26, 1980, judgment while retaining jurisdiction of the matter pending the arbitrator's determination of the reason for the dismissal. Thus, the "final" judgment of March 26 was vacated and was replaced with a remand order.

It is true that an order by the trial court granting or denying a motion to correct errors is a final, appealable judgment. Indiana Rules of Procedure, Appellate Rule 4(A). Here the ruling on the motion to correct errors vacated the objectionable judgment and remanded the case to the arbitrator, although it stated that the part of the motion to correct errors directed to the court's determination that the arbitrator erred on the vote issue was denied. The association could have appealed the court's partial denial of the motion to correct errors at that point. A.R. 4(A). However, in light of the court's equivocal behavior in denying the motion to correct errors on the vote issue while vacating the prior judgment, we do not believe that justice would be served by holding that the association waived its right to appeal on the vote issue by not appealing immediately after the ruling on the motion to correct errors. Cf. Donahue v. Watson, (1981) Ind.App., 413 N.E.2d 974, trans. denied. (Trial court found defendant liable for attorney fees but did not award them until after appeal on the merits had been taken; held, that trial court impliedly reserved jurisdiction on attorney fees question and later appeal of that award was proper.) The association had obtained a remand and had apparently obtained a vacation of the objectionable judgment, and it reasonably could have concluded that no appeal was necessary at that time.

The board further argues that, rather than seeking a remand on the discrimination issue in its motion to correct errors, the association should have applied for a correction of the award by the arbitrators within twenty days after delivery of the award under Ind.Code 34-4-2-10. The board then asserts that neither of the grounds for correction of the award by the arbitrators, Ind.Code 34-4-2-14(a)(1) ¹ and (a)(3), ² was available here and that the court was, therefore, without power to resubmit the matter to the arbitrator.

We will not fault the association for not seeking a remedy to which it was not entitled. Furthermore, we disagree that the court could only send the case back to the arbitrator under the circumstances described in IC 34-4-2-14(a)(1) and (a)(3). The arbitrator...