Lаcy SMITH v. The BOARD OF EDUCATION OF the COUNTY OF LOGAN, etc., et al.
No. 16761
Supreme Court of Appeals of West Virginia
Dec. 17, 1985
Rehearing Denied April 4, 1986
341 S.E.2d 685
Dissenting Opinion Dec. 19, 1985
II.
While the Wardens make a sufficient case to bind both the appellants in contract, their evidence to sustain a verdict for punitive damages is totally lacking. The appellants’ attorney at trial admitted that he had no direct evidence of fraud and the record showed little, if any, circumstantial evidence of fraud. What the record overwhelmingly showed was an honest mistake by the bank in issuing a policy for more than the authorized amount.
Despite there being no substantial evidence of fraud in the record, the trial court instructed the jury on this issue. It is error to give a jury instruction on an issue when there is no basis in the evidence for such instruction. See Skeen v. C & G Corp., 155 W.Va. 547, 553, 185 S.E.2d 493, 498 (1971). The instruction obviously worked prejudice to the Bank of Mingo, because the jury returned a verdict of $10,000.00 in punitive damages against the bank. Punitive damages are allowed only where there has been maliсe, fraud, oppression, or gross negligence. A wrongful act done under a bona fide claim of right and without malice in any form constitutes no basis for punitive damages. See syl. pt. 3, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912). Therefore, punitive damages are generally unavailable in pure contract actions. See, e.g., Gasque v. Mooers Motor Car Co., Inc., 227 Va. 154, 159, 313 S.E.2d 384, 388 (1984).7 The Wardens did not show any willful or wanton conduct. Therefore, the award of punitive damages against the Bank of Mingo was in error.
Normally we would remand the case for a new trial, but it appears that the undisputed facts of the case show:
- That a legally binding contract was formed between the Wardens and the appellants for disаbility insurance;
- The Bank of Mingo and Appalachian Life are both bound by the contract; and
- Other claims by the Wardens against the appellants are groundless.
The amount of damages was clear and has already been calculated by the trial court to be $24,916.87. We see no issues left for the trial court to decide.
Therefore, the judgment of the Circuit Court of Mingo County is hereby reversed and the case remanded with instructions to enter judgment against the defendants, Bank of Mingo and Appalachian Life Insurance Company, jointly and severally, in the amount of $24,916.87.
Reversed and remanded with directions.
Rober L. Perry, Pros. Atty., Logan, for appellees.
McGRAW, Justice:
This is an appeal from an order of the Circuit Court of Logаn County entered on June 11, 1985. The appellant herein, by petition for a writ of certiorari, sought review of a decision of the Logan County Board of Education dismissing the appellant from his position as head football coach at Logan High School. The petition was submitted for decision on the basis of certain stipulated facts and supplemental testimony taken before the circuit court. The circuit court subsequently upheld the action of the Board and dismissed the petition. For the reasons that follow, we reverse the decision of the circuit court.
Additionally, the appellant has served as head football coach at Logan High School for five years, from 1980 through 1985.1 During the first four of those years, there was no written contract with respect to the appellant‘s coaching duties. Pursuant to recently enacted
On February 28, 1985, the Board voted not to renew the appellant‘s coaching contract for the 1985-86 school year.3 No prior notice was given to the appellant concerning this action. It appears that he first learned of the action after it happened, in the local newspaper. One month later, by letter dated Mаrch 27, 1985, the county superintendent officially advised the appellant that the Board had dismissed him.4 No explanation for the action was given. In summary, the appellant received no advance notice of any proposed dismissal or nonrenewal, and no statement of reasons for the decision either prior to or subsequent to the Board‘s action.
Additionally, the record indicates that the appellant had never been reprimanded or otherwise disciplined for any reason prior to the decision of the Board. Furthermore, the Board did not present, at the circuit court hearing below, аny prior written warnings or evaluations concerning the appellant‘s performance under his coaching contract. To the contrary, the record indicates that no evaluations were done, and that the appellant had never been advised of any deficiencies in his job performance or been given the opportunity to correct any perceived problems prior to the Board‘s action.5
The appellant assigns several points of error to the circuit court‘s decision upholding the action of the Board. The essence of most of these assignments is that the circuit сourt erred in concluding that the procedural protections afforded under certain constitutional, statutory, and school policy provisions were not applicable to the appellant‘s extracurricular contract. Additionally, the appellant maintains that, irrespective of the applicability of these provisions, the circuit court erred in determining that the Board‘s action was supported by the evidence and not an arbitrary and capricious decision.
At the heart of the dispute in the instant case is
The Board‘s position in the instant case, found persuasive by the circuit court below, is that this “separate contract” statute manifests a legislative intent that coaching and other extracurricular positions are not to be subject to the procedural rights afforded under regular teaching and service contracts with regard to dismissal or transfer. We disagree.
No part of
“School personnel regulations and laws are to be strictly construed in favor of the employee.” Syl., Hedrick v. Board of Education, 175 W.Va. 148, 332 S.E.2d 109 (1985); Syl. pt. 2, Wren v. McDowell County Board of Education, 174 W.Va. 484, 327 S.E.2d 464 (1985); Syl. pt. 2, Wilt v. Flanigan, 170 W.Va. 385, 294 S.E.2d 189 (1982); Syl. pt. 2, State ex rel. Wilson v. Truby, 167 W.Va. 179, 281 S.E.2d 231 (1981); Syl. pt. 1, Wayne County Board of Education v. Tooley, 166 W.Va. 685, 276 S.E.2d 826 (1981); Syl. pt. 1, Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979). The procedural requirements mandated under
Next, it must be determined what procedural requirements are applicable to the appellant‘s case. The State Constitution places supervision of the public schools upon the State Board of Education, and designates the State Superintendent as the “chief school officer” with such powers and duties as may be prescribed by law.
In Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979), this Court determined that
It being undisputed that the Board failed to follow
In view of our determination as to the applicability of the statutory protections, we decline to address the constitutional due process issue raised by the appellant. Similarly, we find it unnecessary to address the asserted insufficiencies relating to the substantive evidence prеsented in the record.
For the foregoing reasons, we reverse the decision of the circuit court. The case is remanded for entry of an order consistent with the Court‘s opinion herein.
Reversed and remanded.
I respectfully dissent because the majority opinion lacks common sense and defies the law. Once stripped down, this case is a question of whether a school board must retain the services of a losing football coach.
The majority argues that
The Board voted not to renew Mr. Smith‘s coaching contract.
(1) The assignment of teachers and service personnel to extracurricular assignments shall be made only by mutual agreement of the employee and the superintendent, or designated representative, subject to board approval. Extracurricular duties shall mean, but not be limited to, any activities that occur at times other than regularly scheduled working hours, which include the instructing, coaching, chaperoning, escorting, providing support services or caring for the needs of students, and which occur on a regularly scheduled basis.
(2) The employee and the superintendent, or a designated representative, subject to board approval, shall mutually agree upon the maximum number of hours of extracurricular assignment in each school year for each extracurricular assignment. (3) The terms and conditions of the agreement between the employee and the Board of Education shall be in writing and signed by both parties.
(4) An employee‘s contract of employment shall be separate from the extracurricular assignment agreement provided for in this section and shall not be conditioned upon the employee‘s acceptance or continuance of any extracurricular assignment proposed by the superintendent, as designated representative, or the board. [Emphasis supplied by the Court.]
The legislature obviously wanted to allow for special treatment of extracurricular activities that would remove contracts to coach from other teaching and service contracts, to which the Cоde grants special protection and thus they devised a separate statutory scheme. When the legislature used the words “mutual agreement,” they meant “mutual agreement.” In this case the board did not agree!
The Legislature specifically placed extracurricular activities outside the ambit of the
Through this bifurcated arrangement, the legislature accomplishes two goals.
What is even more depressing than the majority‘s inability to read a simple statutory scheme, is their ongoing, systematic attempt to remove all control over the school system from parents and other local authorities. In counties such as Logan, high school sports provide one of the main sources of social esprit. Games provide a center for the town‘s social life and a chance for its citizens to gather together. Teams such as the football team not only rely on the continuing support of the State, they also rely on a significant amount of community support in the form of booster clubs and attendance at the games. Because programs, such as the football program, are so important to community spirit and rely so heavily on community support, I feel no compunction leaving such pro-
It is apparent from the record that Mr. Smith is being fired because he can‘t win football games.1 I cannot see who benefits by requiring a fact finding hearing to substantiate this point. Procedural rights to notice and hearing are an important means to protect individuals’ rights, property, and liberty. But this does not mean that we should govern all human relations by reference to legal-style procedural due process. We should no more require a formal hearing before a school board may discharge a high school football coach than we should require a formal hearing before a young man breaks off his romantic relationship with a young woman. As Grant Gilmore observed:
The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed.
G. Gilmore, The Ages of American Law, 110-11 (1977). By extending the procedural rights granted to teachers and other school employees to football coaches, the majority does more than misread a statute and trivialize the venerable institution of tenure; they unveil a nasty and brutish world in which all human relations are governed by court approval that does absolute-ly nothing to win football games.
I am authorized to say that Justice BROTHERTON joins with mе in this dissent.
Notes
| Wins | Losses | |
|---|---|---|
| 1980 | 2 | 8 |
| 1981 | 4 | 6 |
| 1982 | 4 | 6 |
| 1983 | 4 | 6 |
| 1984 | 2 | 8 |
| TOTAL | 16 | 34 |
11. The respondents do not assert that the petitioner has been guilty of any misconduct
12. If the action taken with respect to the petitioner‘s coaching position is considered a transfer and reassignment under
13. The respondents have not followed the requirements of Policy No. 5300 of the State Board of Education with respect to the dismissal or transfer of the petitioner in that his performance as a coach has not been evaluated by any competent professional, he has not been advised of any shortcomings, and he has never been given any opportunity to improve any alleged deficiencies in his job performance.
14. The respondents have not followed the procedural requirements of either
The circuit court‘s findings of fact follow these stipulations.
(1) The assignment of teachers and service personnel to extracurricular assignments shall be made only by mutual agreement of the employee and the superintendent, or designated representative, subject to board approval. Extracurricular duties shall mean, but not be limited to, any activities that occur at times other than regularly scheduled working hours, which include the instructing, coaching, chaperoning, escorting, providing support services or caring for the needs of students, and which occur on a regularly scheduled basis.
(2) The employee and the superintendent, or a designated representative, subject to board approval, shall mutually agree upon the maximum number of hours of extracurricular assignment in each school yеar for each extracurricular assignment.
(3) The terms and conditions of the agreement between the employee and the board of education shall be in writing and signed by both parties.
(4) An employee‘s contract of employment shall be separate from the extracurricular assignment agreement provided for in this section and shall not be conditioned upon the employee‘s acceptance or continuance of any extracurricular assignment proposed by the superintendent, a designated representative, or the board.
The superintendent, subject only to approvаl of the board, shall have authority to assign, transfer, promote, demote or suspend school personnel and to recommend their dismissal pursuant to provisions of this chapter. However, an employee shall be notified in writing by the superintendent on or before the first Monday in April if he is being considered for transfer or to be transferred. Any teacher or employee who desires to protest such proposed transfer may request in writing a statement of the reasons for the proposed transfer. Such statement of reasons shall be delivered to the teacher or employee within ten days of the receipt of the request. Within ten days of the receipt of the statement of the reasons, the teacher or employee may make written demand upon the superintendent for a hearing on the proposed transfer before the county board of education. The hearing on the proposed transfer shall be held on or before the first Monday in May. At the hearing, the reasons for the proposed transfer must be shown.
The superintendent at a meeting of the board on or before the first Monday in May, shall furnish in writing to the board a list of teachers and other employees to be considered for transfer and subsequent assignment for the next ensuing school year. All other teachers and employees not so listed shall be considered as reassigned to the positions or jobs held at the time of this meeting. The list of those recommended for transfer shall be included in the minute record of such meeting and all those so listed shall be notified in writing, which notice shall be delivered in writing, by certified mail, return receipt requested, to such persons’ last known addressed within ten days following said board meeting, of their having been so recommended for transfer and subsequent assignment and the reasons therefor. The superintendent‘s authority to suspend school pеrsonnel shall be temporary only pending a hearing upon charges filed by the superintendent with the board of education and such period of suspension shall not exceed thirty days unless extended by order of the board.
The provisions of this section respecting hearings upon notice of transfer shall not be applicable in emergency situations where the school building becomes damaged or destroyed through an unforeseeable act and which act necessitates a transfer of such school personnel because of the aforementioned condition of the building.
Notwithstanding any other provisions of law, a board may suspend or dismiss any person in its employment at any time for: Immorality, incompetency, cruelty, insubordination, intemperance or willful neglect of duty, but the charges shall be stated in writing served upon the employee within two days of presentation of said charges to the board. The employee so affected shall be given an opportunity, within five days of receiving such written notice, to request, in writing, a level four hearing and appeals pursuant to provisions of article twenty-nine [§ 18-29-1 et seq.], chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended.
(a) Every employee is entitled to know how well he is performing his job, and should be offered the opportunity of open and hоnest evaluation of his performance on a regular basis. Any decision concerning promotion, demotion, transfer or termination of employment should be based upon such evaluation, and not upon factors extraneous thereto. Every employee is entitled to the opportunity of improving his job performance, prior to the terminating or transferring of his services, and can only do so with assistance of regular evaluation.
(b) Every employee is entitled to “due process” in matters affecting his employment, transfer, demotion or promotion. (emphasis added.)
The State Superintendent, in the аdministrative decisions cited in the text above, appropriately determined that these evaluation procedures were applicable to coaching positions. The all-inclusive language of Policy 5300(6), promulgated under the authority of
We do acknowledge that at first blush it may seem counterintuitive to apply the critical evaluation procedures of Policy 5300(6)(a) to coaching endeavors. However, one must keep in mind that “athletics is an important vehicle for communication with and instruction of children.” State ex rel. Hawkins v. Tyler County Board of Education, 166 W.Va. at 377, 275 S.E.2d at 917 (Neely, J., dissenting). Such evaluations, of course, would be misdirected if they dwelt upon win-loss records and game tactics. The intended purpose of Policy 5300 evaluations, whether they involve teaching or extracurricular duties, is to encourage improvement of school personnel skills which, in turn, will benefit the students. Accordingly, evaluations which critique a coach‘s communication skills and discipline practices, as well as the emphasis (or lack of) upon sportsman-like conduct, teamwork and other desirable human traits which are valuable to students on or off the playing field, would serve the intended purpose well.
In Syllabus Point 3 of Trimboli v. Board of Education, 163 W.Va. 1, 254 S.E.2d 561 (1979), we held that:
Failure by any board of education to follow the evaluation procedure in West Virginia Board of Education Policy No. 5300(6)(a) prohibits such board from discharging, demoting or transferring an employee for reasons having to do with prior misconduct or incompetency that has not been called to the attention of the employee through evaluations, and which is correctable.
Allegations of misconduct or incompetency are not substantially raised in the record in the instant proceeding. Therefore, we do not pass upon the effect of Policy 5300(6)(a) under the particular facts of this case.