Van Buren v. Pima Community College Dist. Bd.

• Decision Date: 20 February 1976
• Docket Number: No. 12379--PR,12379--PR
• Parties: Robert VAN BUREN and Patsy Van Buren, Appellants, v. PIMA COMMUNITY COLLEGE DISTRICT BOARD, Appellee.
• Court: Arizona Supreme Court

Page 821

546 P.2d 821

113 Ariz. 85

Robert VAN BUREN and Patsy Van Buren, Appellants, v. PIMA COMMUNITY COLLEGE DISTRICT BOARD, Appellee.

No. 12379--PR.

Supreme Court of Arizona, In Banc.

Feb. 20, 1976.

Rehearing Denied March 30, 1976.

Stuart Herzog, Tucson, for appellants.

Stolkin, Weise & Tandy, by Marshall D. Tandy, Tucson, for appellee. HAYS, Justice.

The appellants, Robert Van Buren and Patsy Van Buren, his wife, brought this action against appellee, Pima Community College District Board, for compensatory and punitive damages as a result of appellees' alleged misrepresentation. The Superior Court of Pima County granted judgment for appellants in the sum of $3,000. Appellants brought an appeal solely on the issue of damages. On appeal, the Court of Appeals modified the judgment and awarded the sum of $16,650 to appellants. Van Buren v. Pima Community College District Bd., 25 Ariz.App. 32, 540 P.2d 763 (1975). A petition for review was filed in this court by both appellee and appellants. The opinion of the Court of Appeals is vacated.

Appellant Robert Van Buren was advised by letter dated April 17, 1972, that a faculty position in automotive technology was available at Pima College for the 1972--1973 academic year. He was appointed to the position of Instructor-Automotive for the 1972--1973 academic year by Notice of Faculty Appointment dated June 22, 1972. Prior to appellant Robert Van Buren's appointment at Pima College, both appellants were employed as teachers in Fairbanks, Alaska. Van Buren was advised by letter dated February 26, 1973, that he would be recommended for reemployment, subject to funding availability from the Division of Vocational Education. He was notfied by letter dated June 6, 1973, that he would not be offered a contract for the 1973--1974 academic year since funding was terminated for the automotive program.

Appellant Patsy Van Buren was not employed during the 1972--1973 academic year. Both appellants secured employment for the 1973--1974 academic year. In their argument, appellants contend that appellee failed to disclose the fact of special funding at any time prior to the signing of the contract. Appellants argue that they would have retained their tenured positions in Alaska had they known that Mr. Van Buren's position was specially funded.

Appellants request a determination of the proper elements and measure of damages, and a ruling on the trial court's denial of their application for punitive damages. Appellee argued that the damages awarded were arrived at fairly and justly according to the evidence, and should be affirmed. In its motion for rehearing, appellee took the position that the court misapplied the law to the fact, since Arizona has never recognized a negligent misrepresentation giving rise to a claim for relief for damages. Appellee's motion also raised questions relating to the elements and measure of damages.

This court must first consider the vitality of the claim for relief and the proof presented to support that claim prior to a consideration of the question of damages. '(T)he trial court will be sustained, if it can be sustained, upon any theory which is within the issues and supported by the evidence. Phoenix Safety Investment Co. v. James, 28 Ariz. 514, 237 P. 958.' Odom v. First National Bank of Arizona, 85 Ariz. 238, 336 P.2d 141 (1959). Appellants assert that appellee and its agents and employees either fraudulently or negligently failed to disclose material facts. We will first consider the claim for relief for fraudulent failure to disclose. In order to sustain the burden of proof in a claim for relief for fraud, the plaintiff must show 'a concurrence of all the elements thereof.' Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966). Our review of the record reveals that appellants failed to prove at least two of the elements of actionable fraud. There is no proof of the falsity of the representations made by appellee, nor is there any proof of appellee's knowledge that the representations made were false. There is no evidence in the record before this court which suggests that appellee made Any disclosure concerning subsequent employment. Appellants were therefore not entitled to relief for fraudulent failure to disclose.

Appellants' assertion of negligent failure to disclose presents a different problem. This court is faced with the issue of the vitality of their claim for relief in terms of...