State ex rel. Cleary v. Board of School Com'rs of City of Indianapolis

CourtCourt of Appeals of Indiana
Citation438 N.E.2d 12
Docket NumberNo. 2-182A17,2-182A17
Parties5 Ed. Law Rep. 960 STATE of Indiana ex rel. Michael D. CLEARY, Appellant (Plaintiff-Relator Below), v. The BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS, Appellee (Defendant-Respondent Below).
Decision Date28 July 1982

G. Terry Cutter, Foley, Cutter & Abbott, Indianapolis, for appellant.

Jan P. Abbs, Alan H. Lobley, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.

BUCHANAN, Chief Judge.


Michael D. Cleary (Cleary) appeals from the denial of his petition for mandate, alleging error in the Marion County Superior Court's finding that mandamus was not an appropriate remedy for breach of his school principal's contract.

We affirm.


The record discloses that Cleary, a tenured elementary school teacher, entered into a written contract with The Board of School Commissioners of the City of Indianapolis (the Board) whereby he agreed to act as an elementary school principal for the 1980-81 school year. The contract, a regular teacher's contract as required by Ind.Code 20-6.1-4-17.1, provided that "all laws governing the employment and dismissal of teachers" were to be construed as part of the writing. Record at 103.

During the fall of 1980, it was determined that because of declining school enrollment combined with a proposed busing plan transferring students from the city schools to those of the townships, certain elementary schools would be closed. It therefore became necessary to reassign a number of principals, assistant principals, and school teachers. Cleary was notified that his placement was one of the positions in jeopardy due to the reorganization plan, and on May 5, 1982 he received formal notice that his contract as an elementary school principal would not be renewed. Instead, Cleary was invited to act as an upper elementary assistant principal, entitled to the same salary he had earned as a principal during the 1980-81 school year. The Board's notice to Cleary, however, came too late. Ind.Code 20-6.1-4-17.2 provides in pertinent part:

On or before February 1 of the year during which a principal's or assistant principal's contract is due to expire, the governing body of the school corporation (emphasis supplied) (hereinafter referred to as Section 17.2).

by which the principal or assistant principal is employed, or an employee at the direction of the governing body, shall give the principal or assistant principal written notice of renewal or refusal to renew his contract for the ensuing school year. If no notice is given on or before February 1 of the year during which the principal's or assistant principal's contract is due to expire, the contract then in force shall be reinstated only for the ensuing school year.

Cleary filed his petition for mandate, seeking reinstatement as an elementary school principal. The trial court denied relief and entered the following conclusions of law:

A. The Respondent violated the terms of IC 20-6.1-4-17-12 [sic].

B. Relator's contract as an elementary principal was reinstated for the 1981-1982 school year.

C. Respondent has breached its renewed contract with Relator for the 1981-1982 school year by denying him the right to serve as an elementary principal.

D. Relator's renewed contract with the Respondent for the 1981-1982 school year to serve as an elementary principal was a personal service contract.

E. No statute provides an action for mandate for principals or assistant principals as provided in the statute governing permanent and semi-permanent teachers under IC 20-6.1-4-12.

F. The Court cannot mandate Respondent to honor Relator's renewed 1981-1982 school year contract as an elementary principal, since this would constitute a specific performance of a personal service contract.

G. This judgment shall not bar Relator from pursuing his remedies for breach of his renewed 1981-1982 contract to serve as an elementary principal.

Record at 65-66.


We need address only one issue 1 advanced by Cleary:

Is mandamus an appropriate remedy for the breach of a reinstated principal's contract under IC 20-6.1-4-17.2?


CONCLUSION--Mandamus will not lie for the Board's breach of Cleary's reinstated contract because there is an adequate remedy at law for damages.

It is not disputed that the Board failed to comply with the notice provisions of Section 17.2. And although the Board advances an argument that Cleary's contract assured him only of a position as school teacher, that argument fails because of the provisions of IC 20-6.1-4-17.1: principal contracts are required to be regular teacher's contracts. Thus, we have no difficulty agreeing with the trial court that the provision in Cleary's contract requiring the Board to pay "said teacher for his or her services" as "elementary principal", (record at 103), was a contract of employment to act as a principal. So, pursuant to Section 17.2, Cleary's written contract was reinstated, and as appears to have been admitted at trial, (record at 83), the Board's failure to provide Cleary with a principal's position constituted a breach of that contract. 2 But does an action in mandamus for reinstatement lie?

As the trial court indicated, Cleary's contract was a contract for personal services, and specific performance of such contracts is not favored. Although this equitable maxim is most frequently applied when an employer seeks to force an employee to perform, courts will similarly refuse to enjoin employers from violating their contracts to employ. See, e.g., Schwier v. Zitike, (1894) 136 Ind. 210, 36 N.E. 30; Smith v. General Motors Corporation, (1957) 128 Ind.App. 310, 143 N.E.2d 441, trans. denied; Faultless Caster Corporation v. United Electrical, Radio & Machine Workers of America, (1949) 119 Ind.App. 330, 86 N.E.2d 703; Hall v. Delphi-Deer Creek Township School Corporation, (1934) 98 Ind.App. 409, 189 N.E. 527. What Cleary seeks is an exception to this rule in the form of mandamus.

Somewhat confusingly, mandamus has been termed both an "equitable remedy," Whitney v. Board of School Trustees, (1981) Ind.App., 416 N.E.2d 1289, and an "extraordinary legal remedy." Rader v. Burton, (1954) 234 Ind. 299, 122 N.E.2d 856; Perry County Council v. State ex rel. Baertich, (1973) 157 Ind.App. 586, 301 N.E.2d 219, trans. denied. Regardless of how denominated, equitable principles will be invoked to bar relief in the form of mandamus. State ex rel. Burton v. City of Princeton, (1956) 235 Ind. 467, 134 N.E.2d 692. Our courts have long held that mandamus, like the more common-place injunctive relief in equity, will ordinarily not lie to enforce the performance of contracts because the aggrieved party has an adequate remedy at law. See Brumfield v. State ex rel. Wallace, (1934) 206 Ind. 647, 190 N.E. 863; Bartlett v. State ex rel. Hamilton, (1917) 186 Ind. 16, 114 N.E. 692; Board of Trustees v. State ex rel. Eaton, (1911) 175 Ind. 147, 93 N.E. 851; State ex rel. City of Marion v. Marion Light & Heating Company, (1910) 174 Ind. 622, 92 N.E. 731. Mandamus "is viewed with extreme disfavor. Where an adequate remedy at law is available, the extraordinary remedy of mandate should not be imposed to compel the performance of an act." Whitney, supra, 416 N.E.2d at 1292. See also Indiana Revenue Board v. Board of Commissioners, (1979) Ind., 385 N.E.2d 1131. Also, as a reviewing court we will not set aside a trial court's findings or judgment unless "clearly erroneous." Ind. Rules of Procedure, Trial Rule 52.

By way of analogy, Cleary points to the provisions of IC 20-6.1-4-12 (hereinafter referred to as Section 12). That statute, part of what is commonly referred to as the Tenure Act, provides that permanent or tenured teachers who hold an indefinite contract "may bring an action in the nature of mandate" for reinstatement if they are discharged in violation of specific statutory guidelines set out in IC 20-6.1-4-10 and IC 20-6.1-4-11. 3 As the Board suggests, the protection of Section 12 is unavailable to Cleary in this context because his contract as a permanent teacher has not been cancelled. Having served as a teacher in the school corporation for five years, Cleary has established permanent (i.e. tenured) teacher's status, status which entitles him to an indefinite contract until he reaches seventy-one years of age. 4 Had Cleary been discharged in violation of his statutory rights under his indefinite teacher's contract, Section 12 would have afforded him the remedy he seeks, but he cannot engraft onto that section extended coverage for his role as a principal. Cleary's written contract to act as a principal "supplements" his rights as a permanent teacher "with a specific contractual relationship for the period of the written contract." New Castle--Henry Township School Corp. v. Hurst, (1969) 145 Ind.App. 131, 138, 247 N.E.2d 835, 839. Thus, it is not his indefinite teacher's contract which was breached; rather, it was his written contract to act as principal that the Board has violated.

The cases concerning Section 12 and its predecessors 5 are significant to our decision in that they help us define the parameters of an action in mandamus. As a corollary to the rule barring mandamus as a remedy for breach of contract, jurisdiction in actions of mandate is said to be "limited to enforcing performance of acts specifically enjoined by law or of duties resulting from some 'office, trust or station.' " Indianapolis Street Railway v. State ex rel. Cohen (1932) 203 Ind. 534, 537, 181 N.E. 365, 367. Courts construing Section 12 have acknowledged this principle and have recognized that actions for reinstatement of a wrongfully cancelled indefinite contract are based on "a duty enjoined by statute and not by contract." Konstanzer v. State ex rel. Ramsey, (1933) 205 Ind. 536, 547, 187 N.E. 337, 342. In Brumfield, supra, for example, the Relatrix brought an action to compel the school corporation to recognize her as a...

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