State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.

[This opinion has been published in Ohio Official Reports at 

69 Ohio St.3d 217

.]




THE STATE EX REL. CASSELS, APPELLANT, v. DAYTON CITY SCHOOL DISTRICT
                          BOARD OF EDUCATION, APPELLEE.
      [Cite as State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.,
                                     

1994-Ohio-92

.]
Schools—Employment of administrators—Failure to comply with R.C. 3319.02(D)
        evaluation procedures will not invalidate a board of education's action not
        to renew an administrative contract.
      (No. 93-1876—Submitted February 22, 1994—Decided May 4, 1994.)
     APPEAL from the Court of Appeals for Montgomery County, No. 13607.
                                  __________________
        {¶ 1} On August 19, 1992, Winona P. Cassels, relator-appellant, filed this
mandamus action in the Montgomery County Court of Appeals against the Dayton
City School District Board of Education, respondent-appellee. The complaint, as
subsequently amended, requested a writ of mandamus commanding appellee to
issue a two-year assistant principal contract to appellant, effective as of July 1,
1992. Appellant further prayed for back pay and fringe benefits. The parties filed
motions for summary judgment.
        {¶ 2} Appellee employed appellant as an assistant director of magnet
schools for the 1989-1990 school year at a salary of $48,904.13. Appellee then
contracted with appellant for employment in the same position for a two-year
period beginning July 1, 1990 and ending June 30, 1992, at a salary of $53,485.12
per year. During this period appellant was transferred to a position as assistant
principal and her salary was increased. At no time prior to June 1, 1992 did
appellant notify appellee in writing that she did not wish to be deemed reemployed
pursuant to R.C. 3319.02(C). Prior to March 31, 1992, appellee issued to appellant
a written notice of its intent not to reemploy her as an assistant principal.
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        {¶ 3} In deciding not to reemploy appellant as an assistant principal or other
administrator, appellee neither reviewed nor discussed any written evaluation of
appellant. In fact, during appellant's last school year as an assistant principal,
appellee did not make any written evaluation of her. During the school year
beginning July 1, 1992, appellee employed appellant in a position other than as an
assistant principal or school administrator at a substantially lower salary.
        {¶ 4} Appellee attached to its motion for summary judgment and
memorandum in opposition to appellant's motion for summary judgment the
affidavits of David B. Puthoff, treasurer of appellee, and Robert Cannarozzi,
Supervisor of Certificated Personnel and Reserve Teachers for appellee. The
affidavits noted as follows:
        "The factual statements set forth in the Memorandum in Opposition to
Motion For Summary Judgment under the argument: The Position for which
Relator held an administrative contract was abolished, are true and accurate."
        {¶ 5} That memorandum indicated that (1) appellant, along with all other
administrators whose contracts were expiring on June 30, 1992, was sent notice by
appellee of its intent not to reemploy her as an administrator for the 1992-1993
school year; (2) the school district subsequently abolished eleven assistant principal
positions, including appellant's, for the 1992-1993 school year; and (3) appellant
accepted reemployment as a high school English teacher.
        {¶ 6} On December 11, 1992, appellant filed a motion to strike certain
portions of the Puthoff and Cannarozzi affidavits, including those parts
incorporating the factual statements set forth in appellee's memorandum. Appellant
claimed that the affidavits failed to establish that either of the affiants possessed the
requisite personal knowledge concerning the matter. Appellee filed no response to
appellant's motion, and the court of appeals never expressly ruled on it. The court
of appeals ultimately granted appellee's summary judgment motion and denied
appellant's complaint for a writ of mandamus.




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                                January Term, 1994




       {¶ 7} This cause is before the court upon an appeal as of right.
                               __________________
       Young, Pryor, Lynn & Jerardi, and Larry A. Smith, for appellant.
       John F. Lenehan, for appellee.
                               __________________
       Per Curiam.
       {¶ 8} In order for a writ of mandamus to issue, a relator must demonstrate
that (1) he or she has a clear legal right to the relief prayed for; (2) respondent is
under a corresponding legal duty to perform the requested act; and (3) relator has
no plain and adequate legal remedy. State ex rel. Glass, Molders, Pottery, Plastics
& Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp.
Relations Bd. (1993), 

66 Ohio St.3d 157, 158

, 

609 N.E.2d 1266, 1267

.
Furthermore, Civ.R. 56(C) provides that before summary judgment may be granted,
it must be determined that (1) no genuine issue as to any material fact remains to
be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3)
it appears from the evidence that reasonable minds can come to but one conclusion,
and viewing the evidence most strongly in favor of the nonmoving party, that
conclusion is adverse to the nonmoving party. Davis v. Loopco Industries, Inc.
(1993), 

66 Ohio St.3d 64, 65-66

, 

609 N.E.2d 144, 145

; Temple v. Wean United, Inc.
(1977), 

50 Ohio St.2d 317, 327

, 

4 O.O.3d 466, 472

, 

364 N.E.2d 267, 274

.
       {¶ 9} Appellant's second, third, fourth, and fifth propositions of law
essentially assert that the court of appeals committed reversible error by granting
appellee's motion for summary judgment because appellee's failure to comply with
the evaluation requirements of R.C. 3319.02(D) rendered its action to not reemploy
appellant as an assistant principal void.
       {¶ 10} R.C. 3319.02(C) provides in part:
       "An assistant superintendent, principal, assistant principal, or other
administrator is, at the expiration of his current term of employment, deemed




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reemployed at the same salary plus any increments that may be authorized by the
board of education, unless he notifies the board in writing to the contrary on or
before the first day in June, or unless such board, on or before the last day of March
of the year in which his contract of employment expires, either reemploys him for
a succeeding term or gives him written notice of its intention not to reemploy him."
       {¶ 11} R.C. 3319.02 is a remedial statute that must be liberally construed in
favor of administrators. State ex rel. Smith v. Etheridge (1992), 

65 Ohio St.3d 501

,

605 N.E.2d 59

, syllabus; R.C. 1.11. Pursuant to R.C. 3319.02(C), a board of
education's failure to provide timely written notice of its intention not to reemploy
an administrator results in the administrator's entitlement to mandamus to be
reemployed by the board. State ex rel. Luckey v. Etheridge (1992), 

62 Ohio St.3d 404

, 

583 N.E.2d 960

; State ex rel. Brennan v. Vinton Cty. Local School Dist. Bd. of
Edn. (1985), 

18 Ohio St.3d 208

, 18 OBR 271, 

480 N.E.2d 476

. Similarly, appellant
claims that the failure of a board of education to comply with the evaluation
procedures of R.C. 3319.02(D) renders any board action not to reemploy an
administrator void.
       {¶ 12} Resolution of appellant's contentions requires statutory construction
of R.C. 3319.02(D), which provides:
       "Each board of education shall adopt procedures for the evaluation of all
assistant superintendents, principals, assistant principals, and other administrators
and shall evaluate such employees in accordance with these procedures. The
evaluation based upon such procedures shall be considered by the board in deciding
whether to renew the contract of employment of an assistant superintendent,
principal, assistant principal, or other administrator. The evaluation shall measure
each assistant superintendent's, principal's, assistant principal's, and other
administrator's effectiveness in performing the duties included in his job description
and the evaluation procedures shall provide for, but not be limited to, the following:




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                                January Term, 1994




       "(1) Each assistant superintendent, principal, assistant principal, and other
administrator shall be evaluated annually through a written evaluation process.
       "(2)     The evaluation shall be conducted by the superintendent or his
designee.
       "(3) In order to provide time to show progress in correcting the deficiencies
identified in the evaluation process the completed evaluation shall be received by
the evaluatee at least sixty days prior to any action by the board of education on the
employee's contract of employment.
       "* * *
       "The establishment of an evaluation procedure shall not create an
expectancy of continued employment. Nothing in this section shall prevent a board
of education from making the final determination regarding the renewal of or
failure to renew the contract of any assistant superintendent, principal, assistant
principal, or other administrator." (Emphasis added.)
       "In construing a statute, a court's paramount concern is the legislative intent
in enacting the statute. * * * In determining legislative intent, the court first looks
to the language in the statute and the purpose to be accomplished." State v. S.R.
(1992), 

63 Ohio St.3d 590, 594-595

, 

589 N.E.2d 1319, 1323

. Words used in a
statute must be taken in their usual, normal or customary meaning. R.C. 1.42;
Indep. Ins. Agents of Ohio, Inc. v. Fabe (1992), 

63 Ohio St.3d 310, 314

, 

587 N.E.2d 814, 817

. In construing a statute, it is the duty of the court to give effect to the
words used and not to insert words not used. 

S.R., supra, at 595

, 

589 N.E.2d at 1323

. "Where the language of a statute is plain and unambiguous and conveys a
clear and definite meaning, there is no need to apply rules of statutory
interpretation. * * * However, where a statute is found to be subject to various
interpretations, a court called upon to interpret its provisions may invoke rules of
statutory construction in order to arrive at legislative intent." Cline v. Ohio Bur. of
Motor Vehicles (1991), 

61 Ohio St.3d 93, 96

, 

573 N.E.2d 77, 80

.




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                             SUPREME COURT OF OHIO




       {¶ 13} At least one treatise has noted an arguable internal inconsistency in
R.C. 3319.02(D):
       "It is not entirely clear whether an administrator's contract may be
nonrenewed even though the board has failed to provide an evaluation sixty days
prior to the nonrenewal action. The language of the statute seems to make timely
receipt of the evaluation by the administrator an absolute prerequisite to any
contract action. However, the statute also declares that the evaluation procedure
'shall not create an expectancy of continued employment,' and that '[n]othing in
this section shall prevent a board of education from making the final determination
regarding the renewal or failure to renew the contract * * *.' The latter language
would appear to allow the board to renew or nonrenew an administrator's contract
even in the absence of strict compliance with its evaluation procedures." (Footnotes
omitted.) 1 Baker & Carey, Ohio School Law (1993) 115-116, Section 3.48.
       {¶ 14} In other words, the latter language of R.C. 3319.02(D) provides that
the board makes the final determination regarding the renewal or nonrenewal of the
administrator's contract so that it may lawfully decide not to renew the contract of
an administrator even where it has not complied with the evaluation requirements
of R.C. 3319.02(D).
       {¶ 15} In State ex rel. Smith, 

65 Ohio St.3d at 508

, 605 N.E.2d at 64-65, the
court noted the following regarding R.C. 3319.02(D):
       "While the foregoing statutory language requires the board to consider the
administrator's evaluation, it does not require the board to base its decision on such
evaluations. * * * [T]he * * * language indicates that even if a board did not
consider an administrator's evaluation in voting to nonrenew a contract, such a
failure does not by itself undermine a board's decision to nonrenew an
administrative contract."
       {¶ 16} The court of appeals interpreted the foregoing language from Smith
as follows:




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                                January Term, 1994




       "Whether a board's failure to consider an evaluation will invalidate their
decision to nonrenew must turn upon the facts of each case. If the complaining
party can show no prejudice resulting from the school board's failure to evaluate
their administrative personnel and to consider these evaluations before taking any
decision affecting administrative contracts then that failure will not entitle the
complainant to relief."
       {¶ 17} The court of appeals then determined that the board had decided not
to renew appellant's contract because her position had been abolished and that
appellant did not establish prejudice from appellee's failure to evaluate her and
consider the evaluations since even an excellent evaluation would not have resulted
in a decision to renew her contract.
       {¶ 18} It is apparent that the court of appeals misinterpreted State ex rel.
Smith and R.C. 3319.02(D). Although R.C. 3319.02(D) mandates the evaluation
procedure, it provides no remedy of reemployment for failure on the part of the
board to comply with that procedure.          Indeed, R.C. 3319.02(C) deems an
administrator reemployed by operation of law only if a timely written notice of the
board's intention not to reemploy is not given. By contrast, as appellee notes, R.C.
3319.11 specifically provides that a board's failure to comply with the teacher
evaluation requirements of R.C. 3319.111 results in reemployment of the teacher.
In other words, if the General Assembly had intended that board compliance with
the administrative evaluation provisions of R.C. 3319.02(D) be a prerequisite to a
valid board decision not to renew an administrative contract, it would have so
provided, as it did in R.C. 3319.11 for teachers' contracts.
       {¶ 19} Furthermore, R.C. 3319.02(D) expressly states that "[n]othing in this
section shall prevent a board of education from making the final determination
regarding the renewal of or failure to renew the contract of any assistant
superintendent, principal, assistant principal, or other administrator."       This
manifestly indicates that noncompliance with any or all of the R.C. 3319.02(D)




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evaluation procedures does not invalidate a board's action not to renew an
administrative contract. Cf., e.g., Martines v. Cleveland City School Dist. Bd. of
Edn. (Dec. 16, 1993), Cuyahoga App. No. 64263, unreported (R.C. 3319.02[D]
bestows upon the board the power to make a final determination concerning the
contract renewal of an administrator).
       {¶ 20} Therefore, the State ex rel. Smith language should be interpreted to
mean that a failure to comply with the R.C. 3319.02(D) evaluation procedures will
not invalidate a board's action not to renew an administrative contract. This result
comports with the language of R.C. 3319.02(C) and (D). But, cf., State v. Arnold
(1991), 

61 Ohio St.3d 175, 178

, 

573 N.E.2d 1079, 1082

 (it is a cardinal rule of
statutory construction that a statute shall be construed, if practicable, as to give
some effect to every part of it). Since appellant never alleged anything in addition
to the failure of appellee to comply with R.C. 3319.02(D) and readily admitted that
she was sent a timely notice of nonrenewal pursuant to R.C. 3319.02(C), she was,
as a matter of law, not entitled to a writ of mandamus to compel her reemployment
as an assistant principal. In short, she has demonstrated neither a clear legal right
to renewal of her assistant principal contract nor a corresponding clear legal duty
on the part of appellee to provide it.
       {¶ 21} While the court of appeals did not rely on the aforementioned
rationale to enter summary judgment in favor of appellee, a reviewing court is not
authorized to reverse a correct judgment merely because erroneous reasons were
assigned as a basis thereof. Myers v. Garson (1993), 

66 Ohio St.3d 610, 614

, 

614 N.E.2d 742, 745

; Joyce v. Gen. Motors Corp. (1990), 

49 Ohio St.3d 93, 96

, 

551 N.E.2d 172, 174

; but, cf., Murphy v. Reynoldsburg (1992), 

65 Ohio St.3d 356

, 

604 N.E.2d 138

 (failure of a trial court to comply with mandatory duty to thoroughly
examine all appropriate materials filed before ruling on a motion for summary
judgment constitutes reversible error).




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                                January Term, 1994




       {¶ 22} Appellant relies heavily on State ex rel. Lee v. Bellefontaine City Bd.
of Edn. (1985), 

17 Ohio St.3d 124

, 17 OBR 271, 

477 N.E.2d 1135

, in support of
her contention that the failure of appellee to comply with R.C. 3319.02(D) rendered
its action not to reemploy appellant void. However, Lee involved former R.C.
3319.11's written notice requirements concerning teachers. The former and current
versions of R.C. 3319.11 do not contain the language of R.C. 3319.02(D) that
"[n]othing in this section shall prevent a board of education from making the final
determination regarding the renewal of or failure to renew" an administrative
contract. Consequently, Lee is inapposite. Therefore, for the foregoing reasons,
appellant's second, third, fourth and fifth propositions of law are meritless.
       {¶ 23} Appellant's first proposition of law asserts that the court of appeals
erred in granting summary judgment to appellee and denying the requested
mandamus relief where (1) the court of appeals' judgment was based upon portions
of affidavits that should have been stricken because they were not based on the
affiants' personal knowledge; and (2) even if the affidavits were proper summary
judgment evidence, genuine issues of material fact remain. Appellant moved to
strike the portions of Puthoff's and Cannarozzi's affidavits incorporating the factual
statements of appellee's memorandum in opposition to appellant's summary
judgment motion. The court of appeals never expressly ruled on the motion.
Nevertheless, when a trial court fails to rule upon a pretrial motion, it may be
presumed that the court overruled it. Newman v. Al Castrucci Ford Sales, Inc.
(1988), 

54 Ohio App.3d 166

, 

561 N.E.2d 1001

. Therefore, it must be determined
if the court of appeals abused its discretion in overruling the motion to strike. See,
e.g., Jewett v. Our Lady of Mercy Hosp. of Mariemont (1992), 

82 Ohio App.3d 428

,

612 N.E.2d 728

. The term "abuse of discretion" connotes more than an error of law
or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. Rock v. Cabral (1993), 

67 Ohio St.3d 108, 112

, 

616 N.E.2d 218, 222

.




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                              SUPREME COURT OF OHIO




        {¶ 24} Affidavits filed in support of and in opposition to motions for
summary judgment shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Civ.R. 56(E); McCormac, Ohio
Civil Rules Practice (2 Ed.1992) 158-9, Section 6.33. A witness may not testify to
a matter unless evidence is introduced sufficient to support a finding that he has
personal knowledge of the matter. Evid.R. 602. The challenged affidavits do not
indicate that the affiants are testifying based upon personal knowledge. While some
cases have stated that the requisite personal knowledge may be inferred from the
position or title of the affiant, see, e.g., Barthelemy v. Air Lines Pilots Assn. (C.A.
9, 1990), 

897 F.2d 999

, 1018, and Fisher v. Lewis (1988), 

57 Ohio App.3d 116, 117

, 

567 N.E.2d 276, 278

, those cases also noted other indicia not present here,
e.g., other evidence in the affidavits in Barthelemy concerning the affiants'
participation in the disputed matters. Here, nothing indicates that either Treasurer
Puthoff or Supervisor Cannarozzi had personal knowledge of the specific events
here or even participated in them. In fact, the minutes attached to appellant's motion
for summary judgment indicate Puthoff's absence during the board's consideration
of the superintendent's recommendation not to renew appellant's contract.
Therefore, the court of appeals arguably abused its discretion in not striking those
portions of the affidavits and in relying on those affidavits to grant summary
judgment in favor of appellee. Moreover, this error would be prejudicial to
appellant if the court of appeals' interpretation of the pertinent statute were correct.
        {¶ 25} Furthermore, as to appellant's second contention under her first
proposition of law, the portions of the memorandum incorporated in the affidavits
noted only that the school district had abolished appellant's assistant principal
position subsequent to its action sending notice to appellant of its intent not to
reemploy her as an assistant principal or other administrator. The court of appeals
determined that because her position had been abolished, any evaluation would




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                                January Term, 1994




have had no effect on the board's decision whether to renew her contract. However,
as noted by appellant, construing the evidence most favorably to appellant,
reasonable minds could conclude that since the decision to abolish her position was
made after the decision not to renew her administrative contract, an excellent
evaluation could have affected appellee's earlier decision not to renew.
Nevertheless, given our disposition concerning appellant's second, third, fourth,
and fifth propositions of law, the error committed by the court of appeals in this
regard is harmless, and the first proposition is thus moot.
       {¶ 26} Accordingly, for the foregoing reasons, the judgment of the court of
appeals is affirmed.
                                                               Judgment affirmed.
       MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY
and PFEIFER, JJ., concur.
                               __________________




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