No. 84-522
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
PRYOR SCHOOL DISTRICT NOS. 2 & 3,
BIG HORN COUNTY, MONTANA,
Appellants,
THE SUPERINTENDENT OF PUBLIC
INSTRUCTION, STATE OF MONTANA,
AND BRUCE YOUNGQUIST,
Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Jock B. West argued, Billings, Montana
For Respondents :
John W. Larson; Richard W. Bartos argued, Office of
Public Instruction, Helena, Montana
Davidson, Veeder, Broeder, Poppler & Michelotti;
Doris M. Poppler argued, Billings, Montana
Submitted: August 221 1985
Decided: September 18, 1985
Filed: $EP lf
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Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The appellant, school district, discharged the
respondent, Youngquist, from his job as principal .
Administrative appeals resulted in reinstatement and
compensation. An appeal to District Court resulted in
affirmance. All parties appeal. We affirm.
The respondent, Bruce R. Youngquist, was a "nontenured"
principa 1 employed by the appellant, Pryor School District.
He was an elementary school principal for the school year
1981 and 1982. He was the elementary and high school
principal for part of the 1982 and 1983 school year.
On December 11, 1982, the respondent had taken a group
of teachers and students to a ball game in Laurel, Montana.
He was the supervisor for the school and had responsibility
for the gate and concession receipts. On his return trip to
Pryor he was injured in an automobile accident and reported
that he would be absent from school the following Monday.
When respondent returned to school on December 14, 1982,
a confrontation took place between respondent and the school
superintendent concerning the gate and concession receipts
from the ball game. The administrative hearing at county
level resulted in a finding that this "confrontation"
occurred in the confines of the superintendent's office, was
not heard by anyone else, and what was said was reasonable
and justified in the face of the accusatory nature of the
superintendent's inquiry.
Immediately following this "confrontation" another
incident occurred where the respondent addressed the senior
class at a meeting. This meeting resulted in a physical
confrontation between the respondent and a student. The
administrative hearing at county level resulted in a finding
that the respondent acted reasonably in protecting himself
from the aggressor student.
For these two incidents, and another incident, which
occurred over a year prior, during which the respondent
allegedly spanked an elementary student, the respondent was
discharged. The administrative hearing resulting in a
finding that the spanking incident did not occur at all.
The appellant, school district, alleges that there are
"facts" not in the record that should have been evidence in
this action. All of these "facts" occurred during the
incidents for which the respondent was discharged. It is
alleged that the respondent was insubordinate, could not
control his temper, used obscenities to express his anger,
used improper language to students, was deceitful, and struck
a student in the face with a closed fist.
This case commenced when the superintendent of the
appe 1lant school district recommended to the board of
trustees of the school district that respondent Youngquist be
discharged. The board of trustees suspended the respondent.
A later hearing resulted in discharge. The suspension and
discharge were based on the following charges:
1. During the morning of December 14, 1982, you
were unable to control your temper, lost your
composure and were insubordinate to the
Superintendent during your discussion with the
Superintendent concerning the handling of the
concession stand and gate proceeds of the Lodge
Grass basketball game which was played in Laurel
during the preceding week. As a result of your
inability to control your temper and maintain your
composure as high school and elementary principal,
you publicly shouted obscenities at the
Superintendent. Said obscenities were done in a
public area within the hearing and observation of
the high school students which you supervise and
set an example for.
2. That, on December 14, 1982, while in another
fit of anger, you used language that is not morally
proper nor acceptable for an individual in your
position of trust and authority, in the class room,
in the presence of the Senior class. Such language
should not be used with impressionable students.
3. That, on December 14, 1982, during a fit of
rage and anger, you disregarded the personal safety
of a female student by striking said student with
your closed fist, in the face, and resultantly
bruising and injuring the girl and further, by
physically forcing said girl to her knees and
holding her there.
4. That during the fa11 of 1981 you inflicted
bodily harm on a kindergarten student. That, when
questioned by the Superintendent you angrily denied
that this event happened. In your anger you
purposely and deceitfully misled the Superintendent
in that you later admitted that the incident did
happen.
The respondent appealed to the county level
superintendent. The Big Horn County superintendent was
disqualified and a superintendent from Yellowstone County was
substituted. An administrative hearing was held. The county
superintendent found that:
1. In regard to the alleged insubordination ...
the incidences that occurred during this time were
provoked by the Superintendent's imp1ied
accusations of dishonesty and Bruce Youngquist was
not proven unfit or insubordinate in his discussion
with the Superintendent on December 14, 1982.
2. That in regard to . ..
language used in the
Senior Class meeting by Mr. Youngquist was not
proven to be obscene and could not be considered
morally improper or indecent under the facts and
circumstances offered as proof.
3. That in regard to ...
Bruce Youngquist acted
within his statutory authority to restrain a
defiant student and did what was necessary to
control a volatile situation . . ..
4. The seriousness of the spanking incident is
diluted to one of insignificance because of the one
and one half year inattention, even if the incident
did occur as alleged. I find the incident,
according to the evidence, did not occur.
The county superintendent found that there was not "good
cause" for dismissal. He ordered reinstatement and
compensation at the contract rate for time lost pending
appeal.
The appellant, school district, then appealed to the
state superintendent. The appellant assembled affidavits
from witnesses that had not testified at the county level.
The state level administrative hearing resulted in an
affirmance of the county level decision. The state
superintendent stated that the affidavits that the school
district sought to present as new evidence were not subject
to cross examination and should not be admitted as part of
the evidence or record. The state superintendent concluded
that a full and fair hearing was had at county level and that
the substantial rights of the appellant, school district,
were not prejudiced by that procedure. The state
superintendent also denied respondent's request that attorney
fees be included in costs.
The state superintendent stated in part:
A review of the affidavits submitted to this State
Superintendent for consideration reveals that the
opposing party did not have an opportunity for
cross examination in these matters, nor were they
subject to the bright light of cross examination.
Witnesses were presented on both sides of all major
issues and subjects supplemented by affidavits to
the State Superintendent. Many of the affidavits
themselves are questionably presented. Severa 1 of
the affidavits have writing on them different from
the typewriting. Others were cut and pasted
together, statements were pasted over prior
statements. Affidavits were done in haste with
liquid whiteout deleting sections of the
affidavits. The State Superintendent will not
permit the administrative appeal process to be
burdened by nonsupportive affidavits submitted
after the de novo hearing. The discretion to
submit additional affidavits or additional material
is left totally within the discretion of the State
Superintendent. See Section 20-3-107, MCA. The
State Superintendent, after reviewing the extensive
and exhaustive hearing transcript and the
documents and exhibits which were introduced at the
hearing, finds that it is not necessary to
supplement the hearing or the record with
additional affidavits and statements where opposing
counsel does not have the opportunity to question
the same.
The incident regarding the female pupil was
described in exhaustive testimony by many parties.
After examination and cross-examination, the two
principal parties to the altercation, the pupil and
Respondent, gave consistent testimony. Their
description of the incident coincided very closely.
The other witnesses also testified to the best of
their ability, and the County Superintendent as the
trier of fact spent fourteen hours listening to
this testimony. His findings, again, clearly set
out his reasons for this decision.
An appeal to the District Court resulted in an
affirmance of the administrative decisions. The District
Court concluded that the state superintendent correctly
reviewed the county level decision and correctly used
discretion in not allowing additional evidence. The District
Court concluded that there was ample, reliable, probative,
and substantial evidence present at county level.
All parties appeal. The appellant school district
appeal from the denial by the District Court to order
additiona 1 evidence be taken. The respondents and
cross-appellants, state superintendent and Youngquist, appeal
from an alleged change in the award, and Youngquist, alone,
raises matters concerning attorney fees.
Four issues are presented:
I-. Whether the District Court erred in denying
appellant's motion for remand to the county superintendent
for taking additional evidence.
2. Whether the District Court erred in modifying the
county and state superintendents' award to Youngquist.
3. Whether attorney fees should be assessed as
additiona 1 damages.
4. Whether t h e c o n t i n g e n c y f e e a g r e e m e n t f o r a t t o r n e y
fees is reasonable.
The first issue is raised by the appellant school
district. I t i s whether t h e District Court e r r e d i n denying
appellant's motion f o r remand t o t h e county superintendent
f o r t a k i n g a d d i t i o n a l evidence.
The a p p e l l a n t , s c h o o l d i s t r i c t , a r g u e s t h a t b e c a u s e t h e
respondent, Youngquist , changed his version of the facts
surrounding h i s confrontation with t h e s t u d e n t t h e a p p e l l a n t
was " s u r p r i s e d " a t t h e county level hearing. I t i s argued
that this i s good cause for not having presented certain
material evidence. The a p p e l l a n t a r g u e s t h a t f a i r n e s s and
d u e p r o c e s s w a r r a n t a remand t o c o u n t y l e v e l .
The respondents, state superintendent and Youngquist,
argue that the county level hearing was conducted in
compliance w i t h a d m i n i s t r a t i v e r u l e s . I t i s argued t h a t each
p a r t y had a f u l l o p p o r t u n i t y t o p r e s e n t e v i d e n c e and c o n d u c t
cross examination. Respondents argue that no remand was
justified o r required.
All parties have made some reference to Yanzick v.
School D i s t r i c t No. 23 (Mont. 1 9 8 2 ) , 641 P.2d 431, 39 St.Rep.
191. I n Yanzick, a t e n u r e d t e a c h e r was d i s c h a r g e d f o r l a c k
of f i t n e s s and m o r a l v a l u e s . The t e a c h e r had been d i s c u s s i n g
a b o r t i o n w i t h and d i s p l a y i n g f e t u s e s t o young s t u d e n t s i n an
i n d i s c r e t e manner and w i t h o u t a u t h o r i t y . A l t h o u g h Yanzick
s e t s f o r t h many l e g a l p r i n c i p l e s t h a t g e n e r a l l y a p p l y t o t h e
c a s e now b e f o r e t h e C o u r t , i t h a s l i t t l e d i r e c t b e a r i n g on
t h e issue presented here.
All parties correctly s t a t e t h a t Yanzick h e l d t h a t i n
t h e a p p e l l a t e l e v e l s of an administrative hearing, including
j u d i c i a l r e v i e w , t h e r e c a n be n o s u b s t i t u t i o n o f judgment f o r
the determination ma-de at the county level. However, as the
appellant, school district, points out, substitution of
judgment is not an issue here. The issue here is whether
additional evidence should be received.
Upon application prior to a proceeding in judicial
review of an administrative determination the District Court
may order that additional evidence be taken before the
agency. This may occur if the District Court is satisfied
that the additional evidence is material and that there were
good reasons for failure of a party to present it in the
proceeding before the agency. Section 2-4-703, MCA.
The appellant, school district, did apply for leave to
submit additional evidence pursuant to S 2-4-703, MCA.
Memoranduma pertaining to this application were submitted by
both parties. The affidavits that the appellant sought to
introduce were also before the District Court. The District
Court denied the application without stating reasons why.
However, the District Court did ultimately find and set
forth in its conclusion that the state superintendent
correctly used its discretion when previously denying
appellant's request to submit additional evidence. The state
superintendent had found that the affidavits were not subject
to cross-examination and were of questionable quality with
varying type print, cut and pasted statements, and use of
"whiteout." The state superintendent found that the
affidavits were unnecessary to supplement the thorough
hearing at county level.
The District Court did not err in denying the
appellant's motion to order receipt of additional evidence.
The county-leve1 hearing wa s a thorough hearing.
Eyewitnesses to the incidents testified and the testimony was
consistent. Based on t h e r e c o r d t h e e v i d e n c e s u p p o r t s t h e
county level decision and the state and District Court
c o n c l u s i o n s on t h i s i s s u e .
Part of the evidence that the appellant, school
district, sought to submit was a statement made by
respondent, Y o u n g q u i s t , t o Harvey S o r r e l l s , a d e p u t y s h e r i f f
of Big Horn County. The statement allegedly included an
admission that Youngquist had struck the student. The
r e m a i n i n g a f f i d a v i t s w e r e m o s t l y from p e r s o n s t h a t had h e a r d
s t a t e m e n t s by Y o u n g q u i s t a f t e r t h e i n c i d e n t s f o r which h e was
discharged. All t h e p a r t i e s t o t h i s action w e r e represented
by attorneys. They knew t h e e v i d e n c e needed t o establish
t h e i r r e s p e c t i v e burdens. A l l of t h e e v i d e n c e was a v a i l a b l e
p r i o r t o hearing.
W e hold t h a t t h e D i s t r i c t Court d i d n o t err i n denying
the appellant's motion to order receipt of additional
evidence. Furthermore, we believe that the requested
e v i d e n c e would add l i t t l e t o t h e a l r e a d y t h o r o u g h h e a r i n g s .
The s e c o n d i s s u e i s r a i s e d by t h e r e s p o n d e n t s and c r o s s
appellants, state superintendent and Youngquist. It is
whether the District Court modified the county and state
s u p e r i n t e n d e n t ' s award a n d , if so, d i d it err i n d o i n g s o .
The a p p e l l a n t , school d i s t r i c t , argues t h a t t h e county
s u p e r i n t e n d e n t ' s award a p p l i e s o n l y t o t h e 1982-1983 school
year. They argue that the termination of Youngquist's
contract was for all future years beyond the 1982-1983
controversy. I t i s argued t h e r e f o r e t h a t t h e D i s t r i c t Court
did not modify the award but affirmed the county level
decision.
The respondents argue that the county level hearing
r e s u l t e d i n r e i n s t a t e m e n t and award a t t h e c o n t r a c t r a t e f o r
time pending all appeals and that "contract rate" includes
salary and contractual fringe benefits. They argue that the
state superintendent affirmed this decision and award. They
argue that the District Court erroneously modified the award
to include only salary for the 1982-1983 year. They argue
that the award due is salary and fringe benefits for all time
pending all appeals and reinstatement at this time too. They
argue that Youngquist was never terminated and his contract
and statutory right to this job still exists.
The issue here centers around what the award at county
level actually was and what it should be now. The county
superintendent concluded that:
Youngquist is entitled to reinstatement as
principal .. . and he must be compensated at his
contract amount for the time lost during the
pending appeal.
This order was made February 18, 1983, approximately one
month after Youngquist had been terminated as principal.
The appeal to the state superintendent resulted in the
following affirmance:
Respondent requested . . . in addition . . .
payment of attorney fees.. .. Such attorney fees
request is denied and the County Superintendent's
decision is affirmed.
This decision was made September 28, 1983, approximately one
month into the school year following the one during which
Youngquist wa.s discharged.
Judicial review of the agency action resulted in the
following order: "the decision of the Superintendent ...
be and hereby is, affirmed." This order was issued June 20,
1984, after the completion of the school year following the
year in which Youngquist was discharged.
The order by the District Court was accompanied by a
conclusion of law which stated:
[ T l h e p r i n c i p a l s h o u l d b e r e i n s t a t e d and h i s back
pay made t o him a t h i s contract rate plus
increments f o r t h e t i m e l o s t d u r i n g t h e pending
appeal t o date.
The appellants moved to have this conclusion amended by
striking "plus increments for the time lost during the
pending appeal t o d a t e . " I t was a r g u e d t h a t t h i s p h r a s e went
beyond t h e i n t e n d e d o r d e r . A f t e r h e a r i n g on t h e m a t t e r t h e
D i s t r i c t Court g r a n t e d t h e motion.
Then the District Court issued judgment in the case.
The judgment affirmed the state superintendent, reinstated
Youngquist, and set forth the amount due to Youngquist,
$14,242.03, set o u t a s follows:
$12,579.24 s a l a r y f o r 1982-1983 s c h o o l y e a r
849.80 social security contribution
812.99 teacher's retirement contribution
I n a d d i t i o n Youngquist was t o r e c e i v e 10 p e r c e n t i n t e r e s t on
t h e s a l a r y t o d a t e and $804.25 f o r c o s t s .
The proper award in this instance is codified in S
20-4-207 ( 2 ) , MCA:
I f t h e county superintendent
...
... determines t h a t
the dismissal was made w i t h o u t good c a u s e , h e
s h a l l o r d e r t h e t r u s t e e s t o r e i n s t a t e such t e a c h e r
and t o compensate s u c h t e a c h e r a t h i s c o n t r a c t
amount f o r t h e t i m e l o s t d u r i n g t h e p e n d i n g o f t h e
appea 1.
However, the years for which the award applies is
affected by the following statute applying to nontenure
teachers:
20-4-206. Notification . . . (1) The t r u s t e e s
s h a l l p r o v i d e w r i t t e n n o t i c e by A p r i l 15 t o a l l
n o n t e n u r e t e a c h e r s who have been r e e l e c t e d . Any
n o n t e n u r e t e a c h e r who d o e s n o t r e c e i v e n o t i c e o f
r e e l e c t i o n o r termination s h a l l be automatically
reelected f o r t h e ensuing school f i s c a l year.
Here, Youngquist i s a n o n t e n u r e d t e a c h e r . It is clear
t h a t t h e t r u s t e e s e l e c t e d t o t e r m i n a t e h i s c o n t r a c t and, by
t h e s c h a o l d i s t r i c t ' s p u r s u i t o f t h e m a t t e r on a p p e a l , it i s
also clear that Youngquist would not be re--elected for
subsequent years. W e hold t h a t t h e D i s t r i c t Court properly
l i m i t e d t h e award t o t h e 1982-7983 s c h o o l y e a r .
The t h i r d i s s u e i s r a i s e d by t h e r e s p o n d e n t , Y o u n g q u i s t .
It i s whether a t t o r n e y f e e s should be assessed a s a d d i t i o n a l
damages. Appellants argue t h a t t h i s i s s u e cannot be r a i s e d
on a p p e a l f o r t h e f i r s t t i m e . I t i s a l s o argued t h a t a b s e n t
an agreement or statutory grant attorney fees are not
allowable.
The respondent recognizes that attorney fees are not
usually allowed unless there i s an a g r e e m e n t o r s t a t u t o r y
grant. The r ~ s p o n d e n t a r g u e s t h a t a t t o r n e y f e e s s h o u l d be
a l l o w e d i n t h i s c a s e t o make him whole. I t i s argued t h a t he
should not be forced to absorb t h e cost of enforcing h i s
right to reinstatement. The respondent argues that bad
f a i t h , delay, and a n u n l a w f u l d i s c h a r g e j u s t i f y an award o f
attorney fees.
The D i s t r i c t C o u r t made no d i r e c t r u l i n g on attorney
fees. The a p p e l l a n t a r g u e s t h a t t h e i s s u e was n o t b e f o r e t h e
District Court at any t i m e . The s t a t e s u p e r i n t e n d e n t had
ruled that attorney fees were not to be awarded. The
respondents d i d n o t appeal t h a t r u l i n g . The i s s u e was n o t
raised i n D i s t r i c t C o u r t and it need n o t b e c o n s i d e r e d by
t h i s Court. Lima S c h o o l D i s t r i c t No. 12 v . Simonsen (Mont.
1 9 8 4 ) , 683 P.2d 471, 477, 4 1 St.Rep. 944, 951.
The general rule on attorney fees is that absent a
specific contract provision or statutory grant, the
p r e v a i l i n g p a r t y i s n o t e n t i t l e d t o an award o f a t t o r n e y f e e s
e i t h e r a s costs of t h e a c t i o n o r a s an element of damage.
M a r t i n v. Crown L i f e I n s u r a n c e Company (Mont. 1 9 8 3 ) , 658 P.2d
1 0 9 9 , 1 1 0 4 , 40 St.Rep. 216, 221.
We hold that whether the issue is properly before this
Court or not the general rule would a p p l y . Attorney fees are
not allowed.
The last issue is whether the contingency fee agreement
for attorney fees is a reasonable basis for the fees awarded.
4F
Because of our holding on the third issue this matter need
not be addressed.
Affirmed .
We concur: d
7
Justic