No. 90-381 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

DEBRA STEFFANI IRVING, Plaintiff and Appellant,-vsSCHOOL DISTRICT NO. 1-lA,VALLEY COUNTY, MONTANA; and the BOARD OF TRUSTEES, said Board consisting of Everett Breigenzer, SharonArchambeault, ~ois Johnson, ~hirley Kirkland, Terry Hueth, James Olk, and Fred Compton, Individually and as a Body ~olitic, Defendants and Respondents.

APPEAL FROM: DistrictCourtoftheSeventeenthJudicial District, In and for the County of Valley, The Honorable B. W. Thomas, Judge presiding.

COUNSEL OF RECORD: For Appellant: David L. Irving,Glasgow,Montana For Respondent: Chadwick H. Smith; Smith Law Firm, Helena,Montana Donald R. Herndon; Herndon, Hartman, Sweeney h Halverson,Billings,Montana

Filed: Submitted on Briefs: March 22, 1991 Decided: June 4, 1991JusticeR. C. McDonough delivered the Opinion of the Court.
Debra Steffani Irving appeals from a decision of the SeventeenthJudicial District, dismissingher lawsuit filedagainst School District 1-1A in Valley County and the Board of Trustees. The District Court dismissed the case pursuant to Rule 12(b), M.R.Civ.P. We reverse in part and affirm in part. The only issuewe find necessary for review is: Whether the District Court properly granted the defendants1 motion to dismiss under Rule 12(b), M.R.Civ.P. Debra Steffani Irving (Steffani)was first employedby School District 1-lA, Valley County (School District) in October 1985. She was rehired on a full time basis in 1986, and again in 1987. During the 1986-1987and 1987-1988 academicyears, Steffani taught part time in a social studies position and part time in a Spanish position in Glasgow High School. Throughout this period of time, she was evaluated as adequate and above average in her teaching ability. Shedid not obtain tenure, however, because her contract was not renewed for the requisite fourth year. According to Steffani, she was a victim of continual harassment which was perpetrated by officials at the School District. According to her statement of facts, the principal of Glasgow High School attempted to terminate her in 1987 by recommending that her teaching contract not be renewed for the 1987-1988 school year. He justified his actions by maintaining that the elimination of Steffani's job was part of a necessary reduction in force. TheSchoolBoard apparently disagreedwith the 2principal and renewed Steffani's contract for the 1987-1988 academicyear. According to Steffani's complaint, the high schoolprincipal

was undeterred by the School Board's action. She maintains that after her renewal in 1987, the principal vowed that he would ''get her next year.'' The following year the School District did not

renew her contract. Under the authority of 5 20-4-206, MCA, Steffani asked the School Board for a list of reasons for her non-renewal. In compliance with her request, the School Board told her shewas not renewed due to financial considerations, declining enrollment and that she was not rehired due to a reduction in force. Following her non-renewal, the responsibility of teaching Spanish was given to Karen Ortmann, a tenured teacher who taught part time since 1984.Steffani filed a notice of appeal with the Valley County Superintendent of Schools. This appeal was dismissed after the Superintendentruled that shedid not have jurisdictiontohear the claim. This ruling was affirmed by the State Superintendent of Public Instruction on May 1, 1989. Steffani also filed a complaint in District Court alleging breach of contract,bad faith, fraud, violations of provisions of the state and federal constitutions and an action under 42 U.S.C. § 1983. After the State Superintendent denied jurisdictionof her administrative claims, Steffani amended her complaint to add an appeal of that decision. Eventually, Steffani's lawsuit wasdismissed under Rule 12(b) for failure to state a claim forwhich relief can be granted. Steffani appeals this dismissal. The substance of her complaint will be discussed in greater detail below. Rule 12(b)

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## ,providesthat a defendant may, through a motion, raise the defense that the plaintiff has not stated a claim upon which relief can be granted. When considering such a motion, the District Court must consider only the sufficiency of matters raised in the complaint. Itmust not go beyond the four

corners of the complaint, nor may it engage in any fact finding. Nordlund v. School DistrictNo. 14 (1987), 227Mont. 402, 738 P.2d 1299. A complaint shouldnot bedismissedunless it appearsbeyond doubt that the plaintiff can prove no set of facts in support of her claim which will entitle her to relief. Proto 

### v. Missoula County (1988), 230 Mont. 351, 749 P.2d 1094. With this standard in mind, we will review Steffani's complaint to determinewhether it was properly dismissed.

In Count I of her second amended complaint, Steffani seeks judicial relief from an administrative order of the State Superintendentof Education. That order denied jurisdictionof her appeal of the School Board's decision to not renew her contract. Steffani also seeks damages which she alleges resulted from a closed meeting held by the School Board. TheDistrict Courtupheld the State Superintendent'sorder on the grounds that Steffanidid not timely file her appeal. A reviewof the record, however, reveals that Steffani did file her appeal within the sixty day period provided by 3 20-3-107(2), MCA. However, the Superintendent denied jurisdiction of Steffanils appeal because she found that as a non-tenured teacher, Steffani was not entitled to a hearing. We agree with this reasoning. Because Steffani was non-tenured she was not entitled to a hearing after her contract was not renewed. Rather, she was only entitled to a list of reasons for her non-renewal. See 3 20-4- 206, MCA. She requested and received written reasons for the School Board's decision. Nowhere in either the statutes or the collective bargaining agreement is Steffani given a right to appeal her non-renewal. Moreover, as a non-tenured teacher she has no legally recognized property right in a new contract. See Board of Regents v. Roth

(1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. Therefore, she was not entitled to constitutionaldueprocess and did nothave a legally cognizable claim under Montana law. Steffani did not present a claim upon which relief could be granted and the appeal of her administrative claim was properly dismissed. As stated above, Steffanialso seeks damageswhich shealleges

were incurred when the School Board held a closed meeting in violation of Article 11, Section 9 of the Montana Constitution. This provision requires all meetings of public bodies to be open to public scrutiny. The only exception to this rule is when the demands of individual privacy exceed the merits of public disclosure.The Legislature has provided one remedy that can be utilized when Article 11, Section 9 is violated. Section 2-3-213, MCA, provides that any decisionmade during an illegally closed meeting

canbe declared void by a District Court. A suit tovoid any such decisionmust be commenced within 30 days of the decision. Steffanihas not, however, soughttovoid the decision of the School Board. Instead, she has sought monetary damages. The damages she seeks to collect do not arisedirectly from the act of closing the meeting. Instead they arise from alleged acts of discrimination that may have occurred at that meeting. These damages have been sought in other portions of her complaint. In particular, they are recoverable under her 5 1983 claims and therefore all damages sought here are merely duplicative. This

cause of action was thereforeproperly dismissed. In Count I1 of her complaint, Steffani alleges that the defendants committed fraud by supplying her with a false reason for her discharge and by leading her to believe that she would be interviewed for the Spanish position sheheld during the 1987-1988 school year. The first allegation fails the basis her pleadings. In order to establish fraud, Steffani must prove nine elements: 1) the defendants made a representation; 2) the representationwas false; 3) the representationwas material; 4) thedefendantsknewtherepresentationwas false or were ignorant of its truth; 5) thedefendants intended that therepresentation should be acted upon in the manner contemplated; 6) Steffani was ignorant of the representation sfalsity; 7) Steffani relied upon its truth; 8 Steffani had a right to rely upon the representation;and 9) as a proximate cause of this reliance suffered damages. Kinjerskiv. Lamey (1979), 185 Mont. 111, 604 P.2d 782. As stated above, Steffani maintains that the defendants fraudulently misled her to believe that her contract was not renewed due to an overall reduction in force. However,even if the defendants did attempt to mislead Steffani, she cannot establish

an action for fraud. The sixth and seventh elements of this cause of action require that Steffani did not know the defendants1 representations were falseand that sherelied upon theassertions. According toherpleadings,the school principal toldher that he would "get her next year." Steffani believed that this statement constituted a threat that her contract would not be renewed the following year. The threat was made after the principal unsuccessfully attempted to terminateher. Ifwe assume that this threat in fact occurred,it is impossibletobelieve that Steffani thought she was non-renewed as part of a reduction in force. Byher own pleadings shecannotestablisha causeof action and this allegation was properly dismissed. Inher second allegation of fraud, Steffani maintains thatthe defendantsmisled her tobelieve that shewould be interviewed for a teaching position in the Spanish department. She states that under the circumstancesthis assurance,which the defendants knew

or should have known was false,prevented her from obtaining other work. 7Rule 9(b), M.R.Civ.P., requires that the circumstances constituting fraud must be stated with particularity. In Fraunhofferv. Price (1979), 182Mont. 7,594 P.2d 324,we stated: "Ofprimary importance in understandingtheparticularity requirementof Rule 9(b) is the recognition that it does not render the general principles set forth in Rule 8 entirely inapplicable to pleadings alleging fraud; rather, the two rules must be read in conjunction with each other. It should be kept in mind that Rule 8(a) requests 'ashort and plain statement of the claim1 for relief 

# . . 

# . Thus, it is inappropriate to focus exclusively on the fact that Rule 9(b) requires particularity in pleading fraud. This is too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules 

# .

.

# . The sufficiency of aparticular pleading underRule 9(b) depends upon a number of variables. For example, thedegree of detail required often turns on the context in which the fraud is alleged to have occurred 

# . . . Perhapsthemostbasic consideration in making a judgment as to the sufficiency of apleading is thedetermination of howmuch detail is necessary to give adequate notice to an adverse party and enable him to prepare a responsivepleading.I1 Wright & Miller, Federal Practice and Procedure: Civil 1298, p. 406-07, 410, 415; Fraunhoffer, 182 Mont. 715, 594 P.2d 324, 328-329. She has identifiedthepersonwho made the statement,the time the statementwasmade, that the defendants knew the statement was false, that she was misled and that she suffered damages. This information meets the rule set down in Fraunhoffer. Under this rule and under the guidelines established by Rule 12(b), she has stated a claim. In Count 111, ~teffani alleges that the defendants breached several provisions of the Collective ~argaining Agreement, which

was appended to andmadepart ofher complaint. Shemaintains that the defendantsbreached Articles 5.3 and 5.4 which state:5.3 Fair and Equitable Treatment No teacher shall be disciplined, dismissed, reduced in rank or compensations, or deprived of any professional advantage without due process. 5.4 Reduction in Force: a. 

### Inthe event itbecomes necessary to lay off certified tenure staff for any reason, staff shall be laid off in the reverse order of their seniority. b. For the purposes of a reduction in teaching staff, seniority and certification will be the criteria for lay-off within the system.

c. Seniority will be defined as the length of total service in the district. Time off for approved leaves of absence will count for seniority purposes, and such leaves will not be considered as an interruption of service. d. When a teacher receivesnotification of termination under Article 5.4, Reduction in Force, he/she upon request, will be granted 1 day of his/her personal leave, with pay, for the purpose of a job interview. According to Steffani's argument, she was entitled to the Spanish position because she had the most seniority. As stated earlier, Steffaniworked for the School District for three years. When she was non-renewed, the Spanish position was given to a tenured teacher, who worked for the School District for four years under part time contracts. Steffanimaintains that her full time experience exceeded the total experience of the part time teacher and that she therefore had more seniority. Her non-renewal, she argues,violatedthe seniority provisions contained inArticle 5.4. This argument, in light of the clear language of Article 5.4,is untenable. Section (a) of this provision clearly states that lay offs of certified tenure staff will occur in reverse order of seniority. Steffaniwas not tenured, and thereforethisprovision has no application to her. Next Steffani alleges that the School District violated Article 5.3 because they did not affordher any due processbefore they decided to not renew her contract. Article 5.3 provides that ''no teacher shall be disciplined, dismissed, reduced in rank or compensations, or deprived of any professional advantage without due process." As a nontenure teacher who had no legitimate expectation of contract renewal, Steffani was not dismissed or deprived of anyprofessional advantage. Shereceived all benefits, privileges and rights she was entitled to. When her contract expired in the spring of 1988, her employment with the School District was terminated. She had no right to a new contract and consequently she was not entitled to any due process. This allegation does not state a cause of action. Finally, Steffani alleges that the School District discriminated against her in violation of the Collective Bargaining Agreement because they did not pay the full amount of her health insurance. We need not explain this allegation in any detail. The face of the complaint reveals that this issue was resolved in the teacher's favor in Glasgow Education Association

v. Board of Trustees,Valley County, School District 1-1A (1990), 242 Mont. 478, 791 P.2d 1367. This allegation was, therefore, properly dismissed.InCount IV,~teffani allegesthat thedefendantsviolated the Wrongful Discharge fromEmploymentAct, 55 39-2-901,et. seq.,MCA. Section 39-2-912(2), MCA, states: This part does not apply to a discharge of an employee covered by a written collective bargaining agreement or a written contract of employment for a specified term. As thismakes clear, thisAct does not apply to Steffani and Count IV is dismissed. In CountV Steffani alleges that the defendantsbreached the implied covenant of good faith and fair dealing and the code of governmental fairpractices found at 5 49-3-201, et seq.,MCA. In Brinkmanv. State ofMontana (1987), 224 Mont. 238, 729 P.2d 1301,

we held that a cause of action for breach of the covenant of good faith and fair dealing is barred when the litigant is subject to a collective bargaining agreement. Therefore, Steffani cannot receive damages for this allegation. See also Riley v. State of Montana (1988), 748 P.2d 455, 229 Mont. 518. As stated above, Steffani alleges the defendants breached certain provisionsof Governmental Code of FairPractices. Section 49-3-201, et. seq., MCA. This statute directs governmental agencies to llrecruit, appoint, assign, train, evaluate and promote personnel on the basis of merit." 5 49-3-201(1), MCA. It forbids discrimination when the government seeksto carry out any of these duties. Steffaniwas not recruited,appointed, assigned, trained, evaluated or promoted. Rather, she was not rehired after her contract expired. Her allegation, therefore, does not fall under the purview of this statute and this cause of action similarlyfails. In Count VI, Steffani set forth several claims based upon alleged violations of her constitutional rights and 42 U.S.C. 5 1983. Inparticular, she argues that the defendants,while acting under the color of state law, violated her rights to equal protection, free speech,associationand dueprocess. TheDistrict Court, in a very brief opinion, dismissed this count on the basis of immunity and because Steffani's allegations were ''insufficient to state a claim under Section 1983." On the basis of the District Court's memorandum, it is impossible to discern the exact reasons for the dismissal of Steffani's 5 1983 claims. Her complaint, however, appears to adequately set forth a claim for relief. We therefore reverse the District Court's order of dismissal and order further considerationof these allegations todeterminewhich, if any,can proceed to ultimate resolution in trial. Conclusion The order of the District Court dismissing claims under the second allegation of Count I1 and Count 

### VI is reversed and the claims reinstated. All other allegations, claims and counts of her complaint were properly dismissed and the District Court, on these issues, isaffirmed. Pursuant toabove, the case is remanded for furtherproceeding.

We Concur:

Chief JusticeJustice Terry N. Trieweiler dissenting. I dissent from the opinion of themajority. This Court has as recently as April 30, 1991, refused to affirm summary dispositions of claims where the record is incomplete. Johnston v. American Reliable Ins. Co., et al., 48 St.Rep. 405 (Mont. 1991). Pursuant to Rule 52(a), M.R.Civ.P.: [Alny order of the court granting a motion under Rules 12 or 56which is appealable to an appellatecourt shall specify the grounds therefor with sufficient particularity as to apprise the parties in the appellate court of the rationale underlying the ruling and this may be done in the body of the order or in an attached opinion. Plaintiff's complaint was dismissed by the District Court pursuant to Rule 12(b)(6) for failing to state a claim upon which relief can be granted. Therefore, pursuant to Rule 52, plaintiff and this Court were entitled to an explanation from the District Court of the grounds for the dismissal of each of plaintiff's claims. Inthiscase,plaintiffIs complaintalleges at leasttenbases for relief. The DistrictCourt's order dismissed all of them,but gave reasonsonly for thedismissal ofplaintiff's petition to set aside an administrative order and plaintiff's claim for relief under 42 U.S.C. Themajority has now found both those grounds to be either incorrect or inadequate,although they have,

sllrr spotzte, found another basis for denying review of the State Superintendent's order.The record in this case is almost nonexistent. The factual bases fortheplaintiff's claims and the legal bases forthedenial of those claims have not been developed in the District Court. It is particularly troubling that on the basis of this inadequaterecord thisCourtwould enter suchan expansive decision concluding that plaintiff has no right to any appeal under the Administrative Procedure Act; she has absolutely no rights under the collectivebargaining agreement;andyet, she isprecluded from recoveryunder eithertheWrongful DischargeAct orpursuant toher employer's duty of good faith and fair dealing, because at all times relevant she was covered by a collective bargaining agreement. This decision would seem to leave untenured teachers uniquely unprotected under Montana law from retaliatory action by their employers. On the basis of this record, I am unwilling to arrive at such a sweeping conclusion. For these reasons, Iwould remand this case to the District Court for proper compliance with Rule 52(a)

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### , before further considerationby this Court.

I concur with the foregoing dissent of Justice Trieweiler.