Wallace v. Casa Grande Union High School Dist. No. 82 Bd. of Governors

• Decision Date: 31 October 1995
• Docket Number: No. 2,CA-CV,2
• Citation: 909 P.2d 486,184 Ariz. 419
• Parties: , 106 Ed. Law Rep. 352 Charie WALLACE, a married woman, Plaintiff/Appellant, v. CASA GRANDE UNION HIGH SCHOOL DISTRICT NO. 82 BOARD OF GOVERNORS; Ted J. Adams and Donna Adams, husband and wife, Defendants/Appellees. 94-0264.
• Court: Arizona Court of Appeals

Page 486

909 P.2d 486

184 Ariz. 419, 106 Ed. Law Rep. 352

Charie WALLACE, a married woman, Plaintiff/Appellant, v. CASA GRANDE UNION HIGH SCHOOL DISTRICT NO. 82 BOARD OF GOVERNORS; Ted J. Adams and Donna Adams, husband and wife, Defendants/Appellees.

No. 2 CA-CV 94-0264.

Court of Appeals of Arizona Division 2, Department A.

Oct. 31, 1995.

Reconsideration Denied Nov. 17, 1995.

[184 Ariz. 423] David F. Gomez, P.C. by David F. Gomez and Michael J. Petitti, Jr., Phoenix, for Plaintiff/Appellant.

Teilborg, Sanders & Parks, P.C. by Alison Lewis and Melinda K. Cekander, Phoenix, for Defendants/Appellees.

OPINION

PELANDER, Judge.

PROCEDURAL HISTORY

Plaintiff/appellant Charie Wallace, a school administrator/teacher, sued her employer, Casa Grande Union High School District No. 82 Board of Governors (the District) and its superintendent, Ted Adams, alleging the following claims: (1) defamation; (2) failure to pay salary in violation of A.R.S. § 15-544; (3) wrongful denial of continuing status (or tenure); (4) intentional interference with contractual relations; (5) intentional infliction of emotional distress and (6) violation of 42 U.S.C. § 1983, based on alleged violations of plaintiff's equal protection and due process rights. Plaintiff sought compensatory and punitive damages, as well as treble damages under A.R.S. § 23-355 for the failure to pay salary claim.

The trial court granted defendants' motions to dismiss the punitive damages, treble damages and § 1983 claims, which were filed under Ariz.R.Civ.P. 12(b)(6), 16 A.R.S. The court later granted defendants' motions for summary judgment on all remaining claims, and this appeal followed. For the reasons stated below, we affirm.

BACKGROUND FACTS

Plaintiff was hired by the District in 1984. After working one year as a classroom teacher, she was promoted to an administrative position. From 1985 to 1991, plaintiff worked under six successive, one-year administrator's contracts. The District hired Adams as superintendent in 1989; he was plaintiff's immediate supervisor from 1989 to 1991. Administrative conflicts and personal animosity between Adams and plaintiff arose in 1989 and subsequently intensified.

On April 27, 1990, at Adams' direction and against plaintiff's wishes, she was removed from her administrative position and assigned to full-time classroom teaching. During the 1990-91 school year, plaintiff worked under the same type of contract given to all District administrators and had no change in pay, but she was reassigned to the classroom.

Although Adams considered terminating plaintiff after the 1990-91 school year, he instead recommended to the District Board in March 1991 that plaintiff's administrative contract not be renewed and that plaintiff instead be offered a teaching contract. The District adopted Adams' recommendation and on May 15, 1991, offered plaintiff a probationary teaching contract for the 1991-92 school year at a substantially lower salary than her 1990-91 administrator's compensation. Plaintiff accepted the teaching contract with a reservation of rights and filed this action in February 1992.

In June 1993, Adams resigned from his position as superintendent. Plaintiff rejected the District's offer to reinstate her to her administrative position on condition that she dismiss her lawsuit. In July 1993, after completing the application and interview process, plaintiff was hired unconditionally by the District for an administrative position.

STANDARD OF REVIEW

On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. United Bank v. Allyn, 167 Ariz. 191, 805 P.2d 1012 (App.1990). We review de novo issues of statutory interpretation because they are issues of law. Hampton v. Glendale Union High Sch. Dist., 172 Ariz. 431, 433, 837 P.2d 1166, 1168 (App.1992). We view the evidence in a light most favorable to the party against whom summary judgment was entered, and all favorable inferences fairly arising from the evidence must be given to that party. Angus Medical Co. v. Digital Equip. Corp., 173 Ariz. 159, 840 P.2d 1024 (App.1992). We will affirm if the trial court's disposition is correct for any reason. Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App.1986).

In reviewing the trial court's dismissal of various claims under Rule 12(b)(6), we accept as true the allegations in plaintiff's complaint. Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 186, 677 P.2d 1292, 1294 (1984). With respect to those claims, we accord plaintiff "the benefit of all inferences which the complaint can reasonably support" and uphold the dismissal only if it is certain that plaintiff "can prove no set of facts which will entitle [her] to relief upon [her] stated claims." Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 508, 744 P.2d 29, 35 (App.1987).

DISCUSSION

A. Defamation Claim

In her July 1992 deposition, plaintiff testified that an assistant principal, James Cooper, came to her shortly after a February 1991 administrative staff meeting, either that same day or a few days later, and told her that Adams had said that plaintiff had had an affair with his predecessor and he had asked Cooper if he knew about it. Plaintiff claims that Adams defamed her by stating that she had been sexually intimate with the previous superintendent. Plaintiff never heard Adams make any such statement. Her defamation claim was based solely on what Cooper had told her Adams had said in the meeting and on a statement Cooper made to a District board member after his deposition was taken. Cooper told the board member Adams had asked him if there was any truth to the rumor that plaintiff and his predecessor had had an affair. In granting summary judgment for defendants on the defamation claim, the trial court found that no admissible credible evidence had been presented to support the claim.

Plaintiff contends that her claim is supported by admissible evidence for several reasons. First, she claims that Cooper's statements to her and the board member are admissible as admissions by a party-opponent under Ariz.R.Evid. 801(d)(2)(D), 17A A.R.S. Adams' comment to Cooper about the rumored affair is not hearsay because it was not offered to prove the truth of the matter asserted (i.e., that plaintiff and the former superintendent had had an affair), but rather to prove that Adams made a defamatory statement. Ariz.R.Evid. 801(c). See Morris K. Udall et al., Arizona Practice: Law of Evidence § 122 at 237-38 (3d ed. 1991). Even if it were so offered, it also is a party-opponent's own statement and, thus, not hearsay. Ariz.R.Evid. 801(d)(2)(A).

In contrast, Cooper's statements to plaintiff (in February 1991) and the board member (after Cooper's 1992 deposition) were offered to prove the truth of the matter asserted: that Cooper heard and accurately reported Adams' defamatory statement. We find no merit to plaintiff's assertion that Cooper's statements to her and the board member are admissions by the agent of a party-opponent under Ariz.R.Evid. 801(d)(2)(D) and therefore not hearsay. There was no evidence that Cooper was authorized or acting as Adams' agent in finding plaintiff to tell her what Adams had said. See Ariz.R.Evid. 801(d)(2)(C); Boren v. Sable, 887 F.2d 1032 (10th Cir.1989).

Similarly, plaintiff offered no evidence to show that Cooper's statement to her concerned a matter within the scope of his employment as required by Rule 801(d)(2)(D). Cooper informed plaintiff what Adams had said simply because Cooper "felt it would be appropriate to let her know." Any conversation at the February 1991 meeting about the rumored affair, and Cooper's later informing others of that, were not in furtherance of District business. Thus, Cooper's statements to plaintiff and the board member were not admissible under Ariz.R.Evid. 801(d)(2)(D). Cf. Shuck v. Texaco Ref. & Mktg., 178 Ariz. 295, 298, 872 P.2d 1247, 1250 (App.1994) ("[T]he focus of Rule 801(d)(2)(D) is the content of the statement and whether it relates to some aspect of the employer's business within the scope of the employee's activities.").

Plaintiff next contends that Cooper's statement to her is admissible as a prior inconsistent statement under Ariz.R.Evid. 801(d)(1)(A). We disagree. In the cases on which plaintiff relies, the witness' testimony was directly contrary to the prior inconsistent statement. ¹ That is not the case here.

In his deposition, Cooper testified that he recalled a brief discussion in the February 1991 meeting about the rumored affair, but could not remember who had said what to whom. Similarly, Cooper recalled telling plaintiff that the rumored affair had been discussed in that meeting, but he could not recall the details of the discussion or what he might have told plaintiff about it. The prior statement Cooper made to plaintiff was not inconsistent with that testimony, nor was there any evidence that Cooper's faded memory was feigned or due to any collusion with defendants. See State v. Hutchinson, 141 Ariz. 583, 587-88, 688 P.2d 209, 213-14 (App.1984); State v. Just, 138 Ariz. 534, 544, 675 P.2d 1353, 1363 (App.1983). Therefore, Cooper's statement to plaintiff was not admissible under Rule 801(d)(1)(A).

We also reject plaintiff's assertions that Cooper's statement to her is admissible under the present sense impression or excited utterance exceptions to the hearsay rule. Ariz.R.Evid. 803(1), (2). Rule 803(1) requires immediacy. State v. Thompson, 146 Ariz. 552, 557, 707 P.2d 956, 961 (App.1985). Cooper's statement was made either later the same day as the meeting or possibly a few days later. Given that timing, the statement does not qualify as a present sense impression. It also is not admissible as an excited utterance because there was no evidence that Cooper was "under the stress of excitement caused by [a startling] event or condition" when he...