ANDERSON
v.
WESTWOOD COMMUNITY SCHOOL DISTRICT
Docket No. 13829.
Michigan Court of Appeals.
Decided September 24, 1973.Kiefer, Allen, Ryan & Uhl, for plaintiff.
Foran, Robbins & Christy, for defendant.
Before: BRONSON, P.J., and V.J. BRENNAN and WALSH,[*] JJ.
Leave to appeal applied for.
V.J. BRENNAN, J.
This case arises out of plaintiff's discharge from employment as the Superintendent of Schools for the Westwood Community School District.
Plaintiff was employed as Superintendent of Schools for the Westwood Community School District under a personal service contract which provided that his term of employment was to be for a three-year period commencing September 30, 1968. On October 8, 1968, plaintiff was informed that charges had been filed against him and that he had been placed on an inactive list pending resolution of the charges.
Pursuant to the employment contract a hearing was scheduled for a determination of the charges. Plaintiff requested that he be given a tenure hearing in accordance with the Michigan tenure of *408 teachers act (MCLA 38.104; MSA 15.2004) but the school board denied the request on the basis that plaintiff was not entitled to such a hearing. Plaintiff thereupon filed a complaint in the Circuit Court for the County of Wayne seeking a declaratory judgment that he be given a tenure hearing under the tenure of teachers act. The circuit court, without deciding whether plaintiff was entitled to the protection of the tenure of teachers act, issued a preliminary order requiring the board, if it wished to proceed with a hearing, to comply with the hearing requirements of the tenure of teachers act but allowing the board to hear charges against plaintiff which would ordinarily be beyond the scope of that act. The circuit court also retained supervision and superintending control to assure that plaintiff was given a fair hearing. The hearing was held and resulted in plaintiff's dismissal as superintendent.
Plaintiff thereupon filed a motion for summary judgment (GCR 1963, 117.2[3]) in the circuit court alleging that he was denied a fair hearing before the board and seeking his reinstatement as superintendent. Plaintiff asserted that he was not discharged for good and just cause and that his discharge was arbitrary and capricious. The undisputed facts show that not all of the members of the school board were present at all of the hearings, that no transcript was available to the board when it made its decision and that the board terminated the hearing despite the fact that plaintiff's counsel indicated that he had other available witnesses to present. The circuit court determined that plaintiff was entitled to a partial summary judgment. The court found plaintiff's discharge to be improper for the following reasons:
1. All members of the board did not consider all of the evidence.
*409 2. The board arbitrarily terminated the hearing without giving the plaintiff an opportunity to complete his case or make argument.
3. There is serious question in light of the circumstances that the board was a tribunal free from bias or prejudice.
4. The defendants have not carried their burden of showing good and just cause for the discharge of the plaintiff.
The circuit court held that such actions on the part of the board denied plaintiff of due process. We feel that it is not necessary to reach this constitutional issue since a proper disposition of the case can be made on other grounds.
Plaintiff's employment contract provided that he was subject to discharge only for,
"* * * good and just causes, provided, however, that the Board does not arbitrarily or capriciously call for his dismissal and that the Superintendent shall have the right to service of written charges, notice of hearing, and a fair hearing before the Board."
The contract is silent as to the meaning to be given to the words "fair hearing" but it must at least be taken to mean that the plaintiff was entitled to present witnesses and evidence in his own behalf to the board for their consideration. Here plaintiff was denied such a fair hearing when the board abruptly terminated the hearing and precluded plaintiff's counsel from presenting other available witnesses. Summary judgment was, therefore, properly granted.
Defendant next alleges that the circuit court erred in including $10,950 for reduced earnings in the damage award. The general rule is that an employee who has been wrongfully discharged is entitled, as damages, to the amount owing under *410 the contract of employment less the amount that he earned during the unexpired portion of the contract term or the amount that he could have earned if he had made a reasonable effort to obtain similar employment. Damages for reduced earnings beyond the expiration of the contract are properly granted only when the employer had reason to foresee that such damage would result at the time the contract was made and if the amount of money damages can be proved to a reasonable degree of certainty. 5 Corbin, Contracts, § 1095, p 514. Such damages are not to be awarded in every case where an employee is wrongfully terminated.
The dissenting opinion of Justice T.G. KAVANAGH in Munro v Elk Rapids Schools, 383 Mich 661, 692; 178 NW2d 450, 464 (1970), adopted as the opinion of the Court on rehearing, 385 Mich 618; 189 NW2d 224 (1971), outlined the problems faced by discharged teachers:
"Discharge (or failure to rehire) is a blemish that can permanently scar his record and effectively limit any chance he has to be rehired as a teacher in this state."
That this result also accompanies the discharge of administrative personnel is amply demonstrated by plaintiff's search for new employment. Under these circumstances we cannot say that the circuit court was in error in granting damages for reduced future earnings.
Defendant finally asserts that since plaintiff's original complaint only sought a declaratory judgment as to whether the tenure of teachers act applied, it was error for the lower court to grant a partial summary judgment in favor of plaintiff on the basis that an improper hearing was given. Plaintiff and defendant both filed an affidavit and memorandum of law in support of their positions *411 on the issue of whether summary judgment should be granted. By so doing, and because no objection was raised below, defendant consented to the trial of the issue. Therefore, under GCR 1963, 118.3, the complaint was amended to conform to the issues tried and any defect therein was cured. See Michner Plating Co v Davis Drilling Co, Inc, 10 Mich App 358; 159 NW2d 366 (1968), leave denied, 381 Mich 760 (1968); Krager v Harold E Hedler Storage, Inc, 7 Mich App 644; 152 NW2d 708 (1967); Star Steel Supply Co v White, 4 Mich App 178; 144 NW2d 673 (1966).
Affirmed.
All concurred.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.