Thorpe v. Durango School Dist. No. 9-R

• Citation: 591 P.2d 1329,41 Colo.App. 473
• Decision Date: 02 November 1978
• Docket Number: No. 78-068,No. 9-R,9-R,78-068
• Parties: John THORPE, Plaintiff-Appellant, v. DURANGO SCHOOL DISTRICT NO. 9-R, the Board of Education of Durango School District, and Donald Buchnell, Marvin Giersch, Sam Callaway, Larry Bruton, Gino Piccoli, Robert Ashburn, and C. J. Brasher, Individually and as Directors of said District, Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 1329

591 P.2d 1329

41 Colo.App. 473

John THORPE, Plaintiff-Appellant, v. DURANGO SCHOOL DISTRICT NO. 9-R, the Board of Education of Durango School District No. 9-R, and Donald Buchnell, Marvin Giersch, Sam Callaway, Larry Bruton, Gino Piccoli, Robert Ashburn, and C. J. Brasher, Individually and as Directors of said District, Defendants-Appellees.

No. 78-068.

Colorado Court of Appeals, Div. I.

Nov. 2, 1978.

As Modified On Denial of Rehearing Dec. 21, 1978.

Certiorari Granted March 19, 1979.

Hobbs & Waldbaum, P.C., Larry F. Hobbs, Douglas B. Koff, Denver, for plaintiff-appellant.

Hamilton, Hamilton & Shand, P.C., E. B. Hamilton, Durango, for defendants-appellees.

SMITH, Judge.

Plaintiff, John Thorpe, appeals from a judgment notwithstanding the verdict entered in favor of defendant Durango School District Board of Education. We reverse the trial court's ruling, and remand with directions to reinstate the jury's verdict.

Thorpe was employed as a non-tenured mathematics teacher at Miller Junior High School by Durango School District No. 9-R for the 1974-1975 and 1975-1976 school terms. During most of this period, including the entire 1975-1976 term, Thorpe was actively involved with and was a member of the Durango Education Association (D.E.A.), an organization of teachers which represented its members in their dealings with the Durango School Board.

In April 1976, the seven member Durango Board of Education unanimously voted not to renew Thorpe's teaching contract. Thorpe then brought suit against the School District, the Board of Education, and the board members individually, claiming that the decision not to renew his contract was made in retaliation for his activities as a D.E.A. member, and was thus violative of 42 U.S.C. § 1983. ¹

Trial was held to a six member jury which returned an $11,000 verdict for Thorpe. Thereupon defendants moved for judgment notwithstanding the verdict, asserting that there was no evidence from which the jury could find impermissible discrimination against Thorpe. The court denied the motion. Defendants then filed a motion for a new trial raising as error, inter alia, the trial court's failure to grant judgment notwithstanding the verdict. Upon hearing of this motion, the court reconsidered its prior decision and entered judgment notwithstanding the verdict for defendants.

On appeal, Thorpe argues that since the board members admitted at trial that Thorpe's D.E.A. activities were discussed and considered by them in the course of their decision not to renew Thorpe's contract, sufficient evidence was presented to support the jury's verdict, and that therefore entry of judgment notwithstanding the verdict was error. We agree.

The school board members who testified at trial all indicated that Thorpe's D.E.A. activities were discussed by them during their evaluation of Thorpe's professional performance. Thorpe testified that the principal of Miller Junior High indicated to him that D.E.A. activities were the cause of his "diminishing skills." Mr. Bruton, a school board member, testified to the effect that Thorpe was not renewed because of his "union involvement," and that Bruton's vote for nonrenewal was done only at the suggestion of Dr. Kutzled, the superintendent of schools, in order to preserve a unanimous, united front. The other members of the board who testified all indicated that Thorpe's D.E.A. activities were known to and discussed by them in arriving at their decision.

It is true that evidence was presented that complaints had been received by board members and the school administration from parents and students regarding Thorpe's conduct as a teacher and that his D.E.A. activities were causing friction among the other teachers; however, there was also testimony to the effect that Thorpe was widely esteemed by his colleagues and had received an award as "teacher of the year" from the Miller student council.

On the evidence in the record, the jury could properly infer that either the school board's action in not renewing Thorpe's contract was because of the complaints, or that it was because of his membership in the D.E.A.

Where there exists two inferences that the trier of fact can draw from the evidence, it is error for the trial court to select one not chosen by the jury. Cockrum v. Whitney, 479 F.2d 84 (9th Cir. 1973). And, a jury's verdict can be set aside and judgment notwithstanding the verdict entered only if the evidence is such that reasonable men could not reach the same conclusion as the jury. McGlasson v. Burger, 163 Colo. 438, 431 P.2d 788 (1964). Thus, the trial court erred in setting aside the jury verdict, that verdict being sustainable on the evidence presented.

Thorpe also contends that the trial court erred in disallowing an award of his attorney's fees as permitted by 42 U.S.C. § 1988. This section provides that:

"In any action or proceeding to enforce . . . this title . . . the court, in its discretion, May allow the prevailing party . . . a reasonable attorney's fee as part of the costs." (emphasis supplied)

By virtue of our direction to reinstate the jury's verdict, Thorpe is now the prevailing party for the purposes of this section. Therefore, the propriety of awarding attorney's fees to Thorpe must be remanded to the trial court for its consideration and determination.

Since the trial court failed to rule on the other assertions of error contained in defendants' motion for new trial as required by C.R.C.P. 50(c), the cause must be remanded for a ruling on such portions of the motion as remain undetermined. Ross v. Arrow Manufacturing Co., 134 Colo. 530, 307 P.2d 196 (1957).

The judgment is reversed and the cause is remanded with directions to the district court to reinstate the verdict of the jury, to rule upon the remaining issues in defendants' motion for a new trial, and, if appropriate following the court's resolution of defendants' motion, to...