State ex rel. Pemberton v. Wilson

• Decision Date: 05 June 1972
• Citation: 481 S.W.2d 760
• Parties: STATE of Tennessee ex rel. Nesby Lee PEMBERTON, Petitioner, v. Dr. Ross H. WILSON et al., Respondents.
• Court: Tennessee Supreme Court

Page 760

481 S.W.2d 760

STATE of Tennessee ex rel. Nesby Lee PEMBERTON, Petitioner, v. Dr. Ross H. WILSON et al., Respondents.

Supreme Court of Tennessee.

June 5, 1972.

J. H. McCartt, Wartburg, for petitioner.

Harry J. Joyce, Wartburg, Jess E. Pearman, Harriman, William C. Wilson, Knoxville, for respondents.

OPINION

PER CURIAM.

This is a suit by a teacher for the writ of mandamus against the Chairman and members of the Morgan County School Board. The Chancellor granted the writ after an evidentiary hearing. Respondents perfected an appeal to the Court of Appeals. That Court reversed the Chancellor.

Petitioner filed a petition for certiorari in this Court. In her petition for certiorari she pointed out the Court of Appeals was without jurisdiction of the matter. T.C.A. Section 16--408.

We granted the writ on the sole ground the Court of Appeals did not have jurisdiction to entertain the appeal and should have transferred the case to this Court. Campbell County v. Wright, 127 Tenn. 1, 151 S.W. 411 (1912).

The matter has been argued at the bar of this Court. After a thorough reading of the record and an examination of the excellent briefs and authorities cited therein, we concur in both conclusions and reasoning of the Court of Appeals. The case is so fully and clearly stated in that opinion that this Court adopts and incorporates it in this opinion for publication.

However, assignment of error four in this Court was not considered by the Court of Appeals because the question proposed therein was not called to the attention of that Court. The assignment is as follows:

'The Court of Appeals erred in holding and finding that both parties appealed, the opinion on page 1 stating: 'The Chancellor granted the relief sought in the bill and the defendants have appealed.' The cause should have been transferred to the Supreme Court of Tennessee under the provisions of T.C.A. 49--1417. The decree of the Chancery Court remains in effect as to the Morgan County School Board.'

We are of the opinion there is no merit to this assignment of error. The record shows all defendants below prayed and were granted a broad appeal. Dr. Wilson perfected an appeal by filing an appeal bond. The School Board did not.

'If a decree adjudges independent rights, it will remain in force as to those parties who acquiesce therein, and be vacated by the appeal of other parties. And e converso, where the proper decree will necessarily affect the parties who have not appealed, this court, although the appeal be taken by one party, will determine the whole cause as it stood in the court below before any decree was entered.' Parsons v. Kinzer, 3 Lea 342, 71 Tenn. 342 (1879).

This cause is not severable by its nature; and, therefore, the broad appeal perfected by Dr. Wilson brings up 'the whole matter of law and fact appearing in the record.' Wood v. Cooper, 2 Heisk. 441, 49 Tenn. 441 (1870).

We quote and adopt, as hereinabove stated, the opinion of the Court of Appeals, Western Section, written by Judge Nearn, and concurred in by Judges Carney and Matherne.

This is a suit brought in the Chancery Court of Morgan County in the name of the State of Tennessee on the relation of Nesby Lee Pemberton, a teacher in the Morgan County School System. A Writ of Mandamus was sought to reinstate relator, hereinafter termed complainant, to the position of Attendance Teacher from that of elementary Classroom Teacher, to which position she had been transferred by the concurrent action of the County Superintendent and the Board of Education of Morgan County.

The defendants herein are the County Superintendent and the members of the Board of Education of said county.

The complainant also sought in her Bill reimbursement for the difference in compensation between that of Attendance Teacher and that of Classroom Teacher for the school year 1969--1970.

The matter was heard according to the forms of chancery, that is, on deposition. The Chancellor granted the relief sought in the Bill and the defendants have appealed.

There is practically no factual dispute. The interpretation and application of the appropriate statutes governing the situation were determinative of the trial below and will be determinative of the appeal.

The position of Attendance Teacher is an administrative or supervisory position of county-wide scope and the Attendance Teacher is a member of the staff of the County Superintendent. Some of the duties of the position include taking the school census, investigation of all illegal pupil absences, and the assistance of students lacking sufficient wearing apparel by the cooperation with civic and welfare agencies to obtain these necessities in order to reduce pupil nonattendance, all under the supervision of the County Superintendent. The position does not require the teaching of pupils in a classroom.

The duties of a Classroom Teacher are exactly those which the name implies. It is not an administrative or supervisory position.

A common office, located at Wartburg, is furnished the Attendance Teacher, shared with other administrative and staff members of the school system. The common office adjoins the office of the County Superintendent.

Complainant has held the position of Attendance Teacher in the Morgan County School System for approximately 17 years prior to the 1969--1970 school year. Prior to holding the position of Attendance Teacher, she had been a Classroom Teacher for several years.

In the General Election of 1968, the complainant ran for the office of Superintendent of Morgan County Schools against the encumbent who is the defendant herein, Dr. Ross H. Wilson. Complainant lost the election.

Prior to the election, a congenial relationship existed among the staff members occupying the same or adjacent offices. After the election, the former congenial relationship between the complainant and the other members of the staff changed to one which can best be described as strained. The whole thing seems to have been set off by the display on the office bulletin board, the day after the election, by person or persons unknown, of a campaign poster or caricature of the complainant upon which had been drawn in a mustache and remarks written upon it which are unspecified in the record. The complainant was offended by the caricature and words took place between complainant and other staff personnel. Thereafter, for the remainder of the year, complainant withdrew from association with her fellow employees and, except when the situation required she speak to others in the office, she remained withdrawn. Dr. Wilson testified that, because of complainant's change in attitude and the resulting strained relationship between the staff personnel and the complainant, he advised her that her contract as Attendance Teacher would not be renewed at its termination. Complainant testified that the real reason for her transfer was the fact that she ran against Dr. Wilson in the election. All staff personnel testified that after the spat over the caricature, even though attempts to ameliorate the situation were made by them, complainant remained withdrawn and uncommunicative, which caused a strained relationship, an unharmonious office, and difficult working conditions. However, all agreed that she was competent in her work.

At the special School Board meeting for the election of teachers, held in April 1969, for the coming school year, the defendant, Dr. Wilson, did not recommend that complainant be reappointed Attendance Teacher, but recommended for the good of the system that she be elected or appointed as Classroom Teacher at the Sunbright Elementary School. The School Board voted approval of the recommendation. Prior to the special election meeting, which was held at its usual annual time, no charges had been placed against the complainant and no notice of any change or hearing was given complainant. No charges were made against the complainant at the meeting of the Board. After consideration of the Superintendent's recommendation, the Board voted the change for the good of the system. It is the position of the complainant that notice of the Board's action, a list of charges, and a hearing thereon were statutory prerequisites before the Board could take the action that it did.

Complainant earned $860.00 less in the 1969--1970 school year as Classroom Teacher than she would have earned for that year as Attendance Teacher. However, as Attendance Teacher she would have been required to work about 20 days longer during the year than as Classroom Teacher. Also, since complainant's home is at Sunbright, she did not have to daily drive the 26 miles round trip from her home to Wartburg.

After the action of the Board was made known to complainant, she was tendered a contract for the coming year as a Classroom Teacher. Complainant accepted and executed the usual State of Tennessee form contract between teachers and the County Board of Education for the position of Classroom Teacher. The contract provided that the salary of Classroom Teacher would be 'State Salary Schedule Co. Supp.' (State Salary Schedule plus County Supplement). The State Salary Schedule is a schedule of salaries to be paid teachers depending upon their scholastic attainment. The schedule is readily available to all. Contracts between teachers and Morgan County have described the salary to be paid in the foregoing manner as far back as any witness could remember. The exact dollar payment is not specified in the contract. It is the position of the complainant that the difference in salary was unknown to her at the time of the execution of the contract, as she thought the salary would not be reduced, but as soon as the difference was learned and complainant became aware that she had been financially demoted, suit was filed. The record tends to substantiate this position of the complainant and the Chancellor so held.

The Assignments of Error are:

'1. The Court erred in ordering the...