Wright v. Howard Univ.

• Decision Date: 14 February 2013
• Docket Number: No. 12–CV–110.,12–CV–110.
• Citation: 60 A.3d 749
• Parties: Louis E. WRIGHT, Jr., Appellant, v. HOWARD UNIVERSITY, Appellee.
• Court: D.C. Court of Appeals

60 A.3d 749

Louis E. WRIGHT, Jr., Appellant,

v.HOWARD UNIVERSITY, Appellee.

No. 12–CV–110.

District of Columbia Court of Appeals.

Argued Nov. 8, 2012.

Decided Feb. 14, 2013.

Karen A. Khan, Washington, for appellant.

Daniel I. Prywes, Washington, for appellee. Marshall W. Taylor, Columbia, was on the brief for appellee.

Before THOMPSON and McLEESE, Associate Judges, and FARRELL, Senior Judge.

McLEESE, Associate Judge:

Howard University denied Dr. Louis Wright's application for tenure. Dr. Wright filed suit, alleging breach of contract and of the implied covenant of good faith and fair dealing. The trial court granted Howard's motion for summary judgment, finding that Dr. Wright's contract claims were time-barred and that Dr. Wright's implied-covenant claim did not raise a genuine dispute of material fact. Dr. Wright challenges both rulings on appeal. We affirm.

I.

The basic facts are undisputed. Dr. Wright began working as a lecturer in the Political Science Department at Howard in 1988. In 2001, he was appointed to a two-year, tenure-track probationary position as assistant professor. In 2003 and 2005, Dr. Wright sought and received additional two-year appointments. Dr. Wright apparently never received a formal, in-person performance evaluation during this time, although his applications for reappointment were reviewed and approved in 2003 and 2005. In addition, the Political Science Department did not provide Dr. Wright with criteria for obtaining tenure, other than the general criteria listed in the Faculty Handbook.

In 2006, during his third two-year appointment, Dr. Wright applied for tenure. He had not published any books, book chapters, or peer-reviewed articles in the preceding ten years. One month after he applied for tenure, Dr. Wright had a paper accepted for publication by a peer-reviewed journal. Dr. Wright's application was supported by the Political Science Department's Appointment, Promotion, and Tenure Committee; the Chairman of the Political Science Department; and—despite an initial negative evaluation—the Dean of the College of Arts and Sciences. The President of Howard, however, ultimately accepted the recommendation of the University Provost that the application should be denied. Howard notified Dr. Wright of the denial by letter dated November 5, 2007. Dr. Wright indicated that he received the letter on November 16, 2007.

The Faculty Handbook, which the parties agree is a contract, states that each faculty member “shall be evaluated at least every 2 years.” The Faculty Handbook also directs each school or college to produce specific performance criteria for faculty positions and for obtaining tenure, and states that “[g]ood practice requires that ... the precise terms and conditions ... be stated in writing,” and “fairness ... prescribes that [probationary faculty members] be informed ... of the substantive and procedural standards that will be followed in determining whether ... tenure will be granted.” Dr. Wright alleges that Howard breached its contractual obligations to evaluate him and to provide him with specific tenure criteria, and further alleges that those breaches were a substantial factor in the denial of his application for tenure. Dr. Wright also alleges that inconsistent and inaccurate assertions made by the Howard officials who reviewed his tenure application support a conclusion that Howard's denial of Dr. Wright's application for tenure breached the implied covenant of good faith and fair dealing.

II.

A.

The trial court granted summary judgment on Dr. Wright's contract claim on the ground that the claim was time-barred as a matter of law. We review this ruling de novo. Williams v. District of Columbia, 902 A.2d 91, 94 (D.C.2006); see also, e.g., Brin v. S.E.W. Investors, 902 A.2d 784, 800 (D.C.2006) (“[w]hat constitutes the accrual of a cause of action is a question of law”) (internal quotation marks omitted). A contract action must be brought within three years of the date on which the “right to maintain the action accrues.” D.C.Code § 12–301(7) (2001). An action for breach of contract generally accrues at the time of the breach.¹See, e.g.,

Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 319–20 (D.C.2008). Dr. Wright filed his complaint on November 9, 2010, so his claim for breach of contract was untimely unless the cause of action accrued within three years of that date.

With respect to the alleged failure to evaluate, the trial court noted that Dr. Wright had received a series of two-year probationary appointments, the last of which extended from August 16, 2005, to May 15, 2007. The trial court reasoned that Howard's latest failure to evaluate Dr. Wright at least every two years therefore would have occurred on May 15, 2007, which was outside the three-year limitations period. With respect to the alleged failure to provide specific tenure criteria, the Faculty Handbook requires that tenure criteria be provided to probationary faculty at the beginning of the year in which they are evaluated for tenure, which in this case would be the beginning of the 2006–2007 school year. The trial court viewed any breach of that requirement as being “not within the ... limitations period.”

On appeal, Dr. Wright does not argue that the trial court erroneously determined when the alleged breaches occurred.² He raises two other arguments, but we do not find those arguments persuasive.

First, Dr. Wright objects that the trial court impermissibly raised the statute of limitations sua sponte with respect to Howard's alleged failure to provide specific tenure criteria. Dr. Wright, however, presented his breach-of-contract claim as one count, not as two discrete claims. Complaint 5; Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. for Summ. J. 18. Moreover, Howard did assert that the breach-of-contract claim was time-barred, both generally and specifically with respect to the alleged failure to provide specific tenure criteria. Answer 6; Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. for Summ. J. 11.

Second, Dr. Wright argues that his cause of action for breach of contract did not accrue until, at the earliest, the date Howard denied Dr. Wright tenure, because it was only then that Dr. Wright suffered an injury that entitled him to damages. Dr. Wright's argument is flawed in several respects. Although Dr. Wright contends that he suffered no injury until he was denied tenure, his suit rests on the contrary premise that Howard's alleged breaches injured him well before he was denied tenure, because those breaches deprived him of his rights (1) to be advised of any deficiencies in his performance so that he could correct them before the tenure decision was made, and (2) to be advised of the specific criteria governing tenure determinations, so that he could take timely steps to meet those criteria.

Moreover, the absence of specific monetary injury does not prevent the accrual of a cause of action for breach of contract. Even where monetary damages cannot be proved, a plaintiff who can establish a breach of contract is entitled to an award of nominal damages. See, e.g., Bedell v. Inver Housing, Inc., 506 A.2d 202, 205 (D.C.1986) (“[W]here a plaintiff proves a breach of contractual duty he is entitled to damages; however, when he offers no proof of actual damages ... he is entitled to no more than nominal damages.”) (internal quotation marks omitted); Chandler & Taylor Co. v. Norwood, 14 App.D.C. 357, 363 (D.C.Cir.1899) (rejecting claim that complaint for breach of contract failed to state cause of action because complaint did not specify amount of damages; “From every breach of contract the law will imply at least nominal damages; but it is the breach of contract, not the amount of damage sustained, ... even though no actual or positive damage has been sustained, which gives the ground of action.”).³

More specifically, it is settled in this jurisdiction that the absence of “substantial or consequential damages” does not prevent the limitations period from beginning to run on a claim for breach of contract. Reynolds Metals Co. v. McCrea, 99 A.2d 84, 85 (D.C.1953) (“The gist of the action is the breach, and not the consequential damages which may subsequently accrue. * * * Nominal damages at least can be recovered immediately upon the happening of the breach, and the Statute of Limitations then begins to run; its operation is not delayed until substantial or consequential damages accrue.”) (internal quotation marks omitted). Reynolds forecloses Dr. Wright's claim that the statute of limitations did not begin to run in this case until Howard denied Dr. Wright's application for tenure. Cf. Taha v. William Marsh Rice Univ., No. H–11–2060, 2011 WL 6057846, at *5 (S.D.Tex. Dec. 6, 2011) (breach-of-contract claim accrued when university breached contract by failing to provide performance evaluation, not when plaintiff later was informed that university viewed his teaching as substandard).

Although Dr. Wright relies on Tsintolas Realty Co. v. Mendez, 984 A.2d 181 (D.C.2009), that decision does not dictate a contrary conclusion. Dr. Wright accurately points out that the court in Tsintolas quoted the following language from two out-of-jurisdiction decisions: “[M]ere breach without proof of monetary loss is injuria absque damno, i.e., a wrong which results in no loss or damage, and thus cannot sustain an action.” Id. at 187 (internal quotation marks and citation omitted; quoting Cagle v. Southern Bell Tel. & Tel. Co., 143 Ga.App. 603, 239 S.E.2d 182, 183 (1977), and Mira v. Nuclear Measurements Corp., 107 F.3d 466, 473 (7th Cir.1997)). The holding of the court in Tsintolas, however, was that although a group of tenants had breached an agreement with their landlord to keep a settlement agreementconfidential, that was not a material breach precluding the tenants' motion to enforce the settlement agreement, given that the settlement agreement had already been made part of the public record. Id....