dissenting. Two things concern me about the majority opinion. The first is that the majority analyzes this case as if it were merely a resignation case and, thus, not covered by the Teacher Fair Dismissal Act. This case is not a resignation case. It is a disputed resignation case where the teacher reneged on his resignation, and the School Board took action and accepted it anyway. This equates to a termination. Williams, in his response to the motion to dismiss, referred to it as a termination where strict compliance with the Act was required. And the chancery court likewise found that the School Board had terminated Williams’s employment.
This leads to my second concern which is that Williams filed his complaint as a violation of the Teacher Fair Dismissal Act. He now seeks to distance himself from the Act for purposes of the statute of limitations. In his complaint, Williams initially stated that the Act governs resignations and then alleged:
12. The acceptance of Wiliams’s oral resignation is in violation of the Teacher Fair Dismissal Act and, therefore, a breach of the 1997-98 employment contract.
Williams then prayed for a declaration that the School Board’s action in accepting his resignation was unlawful and asked for reinstatement and back pay. The School District moved to dismiss the complaint under Ark. R. Civ. P. 12(b), as untimely. As the majority correctly points out, in our analysis under Rule 12(b), we accept the allegations made in the complaint as true. Williams’s complaint manifestly asserted that the School Board’s action, in accepting a resignation that he had rescinded, wronged him.
So what is his remedy? When a teacher is “aggrieved” by School Board action, the recourse is spelled out in the Teacher Fair Dismissal Act:
(d) The exclusive remedy for any nonprobationary teacher aggrieved by the decision made by the board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board. Additional testimony and evidence may be introduced on appeal to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful.
Ark. Code Ann. § 6-17-1502(d) (Repl. 1999). Clearly, Don Williams alleged in his complaint that he was aggrieved by the School Board’s acceptance of his resignation, which he tried to retract. Clearly, he invoked the Teacher Fair Dismissal Act for relief. Clearly, under the Act, he had to bring his appeal within 75 days of the School Board’s action. And clearly, Williams at least, believed that this was a termination case under the Act because he referred to it as such in his response to motion to dismiss.
This court decided an almost identical case four years ago. See Higginbotham v. Junction City Sch. Dist., 332 Ark. 556, 966 S.W.2d 877 (1998). In that case, as in the present case, a superintendent resigned and then the next day attempted to withdraw the resignation. The School Board, however, accepted the disputed resignation. The superintendent appealed the circuit court’s affirmance of the School Board action to this court, and we affirmed as well. In doing so, we concluded that this fact situation fell within the purview of the Teacher Fair Dismissal Act. We said:
We recognize that strict compliance is now the standard for determining if Appellant’s resignation was proper according to the language found in section 6-17-1506. Under the facts as stated in this case, the District strictly complied with the Teacher Fair Dismissal Act when it voted to accept Appellant’s resignation, which was effective upon delivery to Kelly.
Higginbotham, 332 Ark. at 568, 966 S.W.2d at 883. In effect, we treated a disputed resignation as a termination.
Now, a majority of this court has changed its mind and concludes that this disputed resignation in the Williams case does not fall under the aegis of the Teacher Fair Dismissal Act at all for purposes of the 75-day time limit for appeal, and we overrule Higginbotham in part. I would adhere to precedent, which was well reasoned, and not depart from the Higginbotham rationale that a disputed resignation is governed by the Act.
Williams did not file his complaint until more than a year and a half after the School Board’s action, when the Act calls for filing within 75 days. Now, according to the majority, disputed resignations, which a School Board has accepted, can be left hanging for five years, which is the statute of limitation for breach of contract. That kind of uncertainty is not what the Act contemplates. I would resolve this case by deciding that the disputed resignation is comparable to a termination under the Act and enforce the 75-day limit.
One final point. This decision today could well come back to haunt this court in a later case when it is to a teacher’s advantage in a disputed-resignation case to be covered by the Teacher Fair Dismissal Act. As I read today’s decision, that can no longer be the case.
I respectfully dissent.
Thorton, J., joins.