# FILED April 16, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ STUART BOWDEN, Plaintiff-Appella

nt, Shelby Chancery No. 100712-1 Vs. C.A. No. 02A01-9807-CH-00217 MEMPHIS BOARD OF EDUCATION, Defendant-Appellee.

__________________________________________________ __________________________ FROM THE SHELBY COUN TY CHANCERY COURT THE HONORABLE C. NEAL SMALL, CHANCELLOR

Charles Hampton White, Jay N. Chamness; Cornelius & Collins, LLP,

of Memphis, For Appellant Ernest G. Kelly, Jr

.; Evans & Petree o

f Memphis For Appellee

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE This is a teacher tenure case. Plaintiff/Appellant , Stua rt Bowden, appeals the order of the trial co urt granting summary judgment to Defendant/Appellee, Memphis Board of Education (Board).1 In 1989, Bowden received his Tennessee teaching certificate with endorsements in the

areas of history and math ematics. At the sa

me time, Bowden als

o received a Car

eer Level I certification. 2 Bowden obtained a Bache lor of Science de

gree from Aubur

n University

in 1984. During the 1987-88 academic ye ar , Bowden began teaching in the Memphis City Schools System at White Station Junior Hi gh School on an out-of-state teaching license. 1 Bowden was subsequently

reelected for

employment by the Board for the 1988-89 and the 1989-90 ac ademic year. In the spring of 1990, Bowden received a notice of non-reelection. However, he was later re-evaluated

andsubsequently recommended for a fourth year of employment for the 1990-91 academic year. At the July 1 990 Board me eting, Bowden was reelected for the 1990-91 academic year. On Ap ril 9, 1991 , Bowden received another notice of non-reelection effective for the 1991-92 academic ye a r. As a result of this action by the Board, Bowden filed a complaint against the Board on October 21, 19 91. In the complaint, Bowden asserted that he attained permanent

tenure upon his reelection for a fourth year of service and that his subsequent dismissal violated the TennesseeTeacher Tenure Act in that he was not presented with written charges and afforded the opportunity of a hearing as required by T.C.A. § 49-5-512. Bowden further asserted that he was entitled to be reinstated to his position as a teacher and made whole for any monetary losses sustained as a result of the Board’s unlawful action. On December 4, 1991, the Board filed an answer in which it averred that the dismissal was lawful in that Bowden
never attained tenure status since the Board wa s not notified that re-employment of Bowden would result in tenure. On April 2, 1998, Bowden filed a motion for summary judgment, and subsequently, the Boardfiled a motion forsummary judgment. On June 29, 1998, the trial court granted the Board’s motion for summary judgment, deniedBowden’s motion, an d dismissed the comp

laint. Bowden ha s appealed and presents the following issue, as stated in his brief, for our review: Did

the trial court err

in ruling that the plaintiff, Stuart Bowden, didnot acquire permanent tenure upon his re-election asa teacher on July 1, 1990, and therefore was not discharged in violation of the Tennessee Te

acher Tenure A

ct?3 A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is

entitled to a judgment
as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). In the instant case it is conceded that the facts are

undisputed, and there
are no dis puted is sues of material f act. Bowden asse

rts that he is entitle

d to a judgment as a matter of law and that the trial court erred in granting summary judgment to the Board. Since only questions of la w are involved, th

ere is no presumpt

ion of correctne

ss regarding a trial court’s grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court

’s grant of summar

y judgment is de novo on the record befo re this Court. Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997). The criteria to attain permanent tenure is set forth in T.C.A. § 49-5-503 (2) (1996): (2) “Permanent tenure” applies to any teacher who: (A) Ha s a deg ree from an approved four-year college or to any vocational teache r who has the equivalent amount of training established and licensed by the state board of education; (B) Holds a

valid professional license based on training covering the subjects or gr

ades taught; (C) Has completed a probationary period of three (3) school years or not less than twenty

-se ven (27) months within the last fiveyear period, the last year to beemployed as a regular teacher; and (D) Is reemployed by the board for service after

the probationary period. Froma review of the r

ecord and undispu

ted by the partie

s, Bowden met each of the foregoing statutory requirements. At issue, however, is the application of T.C.A. § 49-5-504(b) (1996) regardin

g notice to the Boar

d. The statute pro

vides: Upon completion of the probationary period, any teacher who is reemployed or retained in the system is entitled to th e tenure status for which such tea c her is qualified by college training and licensing; provided, that the superinten dent shall notify the board prior to reelection by the board that the teacher, if reelected, w

ill attain tenure s

tatus. It is undisputed that the Boardwas not notified that Bowden would attain tenure status upon reelection. However, Bowden asserts that when he was reelected by the Board for the 1990-91 academic year, he was entitled to tenure status and attai ne d such since he met the statutory requirements. Thus, he c o ntends that as a result of his tenure status, his dismissal at the conclusion of the 1990-91 academic year without charges and an opportunity for a hearing
was unlawful, therefore entitling him to reinstatement and full back pay . He stat es that given that the du ty imposed upon the superintendent to notify the board is mandatory rather than4

discretionary, the courts have held that there i s a p resumption that the superintendent has performed

such duty. Therefore, Bowden submits that the duty of notification cannot be read
as a condition upon a t

eacher’s entit

lement to tenure.

He contends that th e statute entitles a teache r to tenure and only requires the superintendent to notify the board that the teach er wil l attain tenure. Bowden argues that if notification is read as a

condition, the supe

rintendent could transfor mthe statutory entit

lement of tenure

into a discretiona

ry decision only the

superin tenden t could make. Moreover, Bowden argues that the statutes cannot

and should not be read to allow either the Board or the superintendent to reelect a tenure-eligible tea cher w hile withholding tenure. Finally, he asserts that neith er T.C.A. § 49-5-504(b) nor any pre vious case law pe

rmit th e Board and the superintendent to deprive him of his entitlement to tenure by virtue of t hei r dereliction of duty. On the other hand, the Board asserts that T.C.A. § 49-5-504(b) requiresthat the Board be specifically notified that ree lection will confer tenure in order to prevent granting tenure inadvertently. They submit tha t the notification requ irement is not a mer

e formality but is a crucial part of the process of conferring tenure and without the notice , the reelection does not confer tenure status. The Board states that neither the substance nor the statutory procedure of
an election to tenure was carried out with regard to Bowden. They also assert that the undisputed facts make it clear tha

t th e Board was never put on notice that reelection could confer tenure status to Bowden, thus any presumption was specifically rebutted. When interp retin g a statute, the role of the Court is to “ascertain and give effect to the legislative intent.” Sharp v. Richardson , 937 S.W.2d 846, 850 (Tenn. 1996). To this end, the meaning of a statute is not to be determined fr

om special words in

a single sentence or section, butfrom the statute taken as a whole. State ex rel. Ba stnagel v. City of Me mphis , 224 Tenn. 514, 457 S.W.2d 532 (1970). In the absence of ambiguity, legislative intent is derived from the face of a statute, and the Court may not depart from the“natural and ordinary” meaning of the statute’s language. Davis v. Reagan , 951 S.W.2d 7 66, 768 (Te nn. 1997); Westland West Community Ass’n v. Knox Cou nty , 948 S.W.2d 281, 283 (Tenn. 1997). “The conference of

tenurial sta tus is dependent not only upon service but also upon affirmative action by the Board of Education.” Sanders v. Vinson , 558 S.W.2d 838, 842 (Tenn. 1977). The completion of the probationary period by a teacher “does notautomatically confer5

permanent

tenure. It merely is a condition precedent to eligibility for tenure.” Id. (emphasis

in original). We believe this case

is controlled by our Supreme Court’s decision in Reeves v. Etowah City School Board of Education , 806 S.W.2d 176 (Tenn. 1991), wherein the Court said:

The language and purpose of the statute are clear: (b) Upon completion of the probationary peri od, any teacher who is

reemployed or retained

in the systemis entitled to the tenure status for which he is qualified by college training a nd licensing; provided that the sup erintendent shall notify the board prior to reelection b y the board that the teacher, if reele

cted, will attain tenu

re status. Tenn. Code Ann. § 49-5-504(b) (emphasis added). In Sanders v. V

inson , 558 S.W.2d 838 (Tenn. 1977), we commentedon this section of the statute: “The sole, and we think self-evident,

purpose of

t his proviso is to insure that the board knows that re-employment will confe r ten ure.” Id. at 843. The Sanders Court also made it clear

that “[t]he conference of tenurial statu s is dependent not only upon service but also upon affirmative action by the Board of Education, ” and that the completion of th e probationary p eriod by a teach

er “does not automatically

confer permanent tenure. It merely is a condition precedent to eligibility

for tenure.” (Emphasis in original).

* * * We hold that Tenn. Code Ann. § 49-5-504(b), which requires notice by the superintende nt, is a limitation on Tenn. Code Ann. § 49-5- 5 03(2)(D), which grants permanent tenure status when a teacher is reemployed after the probationary period. Id . at 178-179. Bowden attempts to distinguish Reev es by a rguing that there is a crucial factual distinction because in Reeves it was the superintendent himself who was eligible for tenure and who failed to notify the board as required. Bowden appears to be asserting tha t notification is
a condition preced

ent only if it is the su

perintendent who

is eli gib le for tenure. W e find this distinction to be untenable. Neither the Reeves Court nor the statutory provision makes such a distinction, and such a distinction is unwarranted. Froma review of the record and the undisputed facts, the Board was not notifiedprior to reelec tion that Bowden, if reelected, would attain tenure status. Without the requi sit e notification given to the Board, Bowden did not ach ieve permanent tenure status under the Teacher Tenure Act when he wa s reelec ted for the 1990-91 academic year. Therefore, the6

subsequent action

by the Board in not r

eelecting Bowden

was lawful. Accordingly, the judgme n t of the trial court is affirmed, and the case is remanded for such further pro

ceedings as nec

essary. Costs of a

ppeal are asses sed against the ap pellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE