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, 

Sharon Archambeault, ~ois Johnson, ~hirley 

Kirkland, Terry Hueth, James Olk, and Fred 

Compton, Individually and as a Body ~olitic, 

Defendants and Respondents. 

APPEAL FROM: District Court ofthe Seventeenth Judicial 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, 1991 
Justice R. C. McDonough delivered the Opinion of the Court. 

Debra Steffani Irving appeals from a decision of the 

Seventeenth Judicial District, dismissing her lawsuit filed against 

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 issue we 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 employed by 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 1986-1987 and 1987-1988 academic years, 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. She did 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. The School Board apparently disagreed with the 

2 
principal and renewed Steffani's contract for the 1987-1988 

academic year. 

According to Steffani's complaint, the high school principal 

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 she was 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 

Superintendent ruled that she did not have jurisdiction to hear 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 jurisdiction of her 

administrative claims, Steffani amended her complaint to add an 

appeal of that decision. Eventually, Steffani's lawsuit was 
dismissed under Rule 12(b) for failure to state a claim for which 

relief can be granted. Steffani appeals this dismissal. The 

substance of her complaint will be discussed in greater detail 

below. 

Rule 12 (b) , M.R. Civ. P. , provides that 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. It must not go beyond the four 

corners of the complaint, nor may it engage in any fact finding. 

Nordlund v. School District No. 14 (1987), 227 Mont. 402, 738 P.2d 

1299. A complaint should not be dismissed unless it appears beyond 

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 determine whether 

it was properly dismissed. 

In Count I of her second amended complaint, Steffani seeks 

judicial relief from an administrative order of the State 

Superintendent of Education. That order denied jurisdiction of 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. 

The District Court upheld the State Superintendent's order on 

the grounds that Steffani did not timely file her appeal. A review 
of 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 constitutional due process and did not have 

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, Steffani also seeks damages which she alleges 

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 decision made during an illegally closed meeting 

can be declared void by a District Court. A suit to void any such 

decision must be commenced within 30 days of the decision. 

Steffani has not, however, sought to void the decision of the 

School Board. Instead, she has sought monetary damages. The 

damages she seeks to collect do not arise directly 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 therefore properly 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 she held 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 representation was false; 

3) the representation was material; 

4) the defendants knew the representation was false 

or were ignorant of its truth; 

5) the defendants intended that the representation 

should be acted upon in the manner contemplated; 

6) Stef fani was ignorant of the representation s 
falsity; 

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. 

Kinjerski v. 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 false and that she relied upon the assertions. 

According to her pleadings, the school principal told her 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 terminate her. If we assume 

that this threat in fact occurred, it is impossible to believe that 

Steffani thought she was non-renewed as part of a reduction in 

force. By her own pleadings she cannot establish a cause of action 

and this allegation was properly dismissed. 

In her second allegation of fraud, Steffani maintains that the 

defendants misled her to believe that she would be interviewed for 

a teaching position in the Spanish department. She states that 

under the circumstances this assurance, which the defendants knew 

or should have known was false, prevented her from obtaining other 

work. 

7 
Rule 9(b), M.R.Civ.P., requires that the circumstances 

constituting fraud must be stated with particularity. In 

Fraunhoffer v. Price (1979), 182 Mont. 7, 594 P.2d 324, we stated: 

"Of primary importance in understanding the particularity 

requirement of 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 'a short 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 a particular pleading under Rule 

9 (b) depends upon a number of variables. For example, 

the degree of detail required often turns on the context 

in which the fraud is alleged to have occurred . . . Perhaps the most basic consideration in making a judgment 

as to the sufficiency of a pleading is the determination 

of how much detail is necessary to give adequate notice 

to an adverse party and enable him to prepare a 

responsive pleading.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 identified the person who made the statement, the time 

the statement was made, 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 and made part of her complaint. She maintains that 

the defendants breached 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. In the event it becomes 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 receives notification 

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, Steffani worked 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. Steffani maintains 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 in Article 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. Steffani was not tenured, and therefore this provision 

has no application to her. 

Next Steffani alleges that the School District violated 

Article 5.3 because they did not afford her any due process before 

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 any professional advantage. She received 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. 
In Count IV, ~teffani alleges that the defendants violated the 

Wrongful Discharge from Employment Act, 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 this makes clear, this Act does not apply to Steffani and Count 

IV is dismissed. 

In Count V Steffani alleges that the defendants breached the 

implied covenant of good faith and fair dealing and the code of 

governmental fair practices found at 5 49-3-201, et seq., MCA. In 

Brinkman v. State of Montana (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 provisions of Governmental Code of Fair Practices. 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 seeks to carry out any of these 

duties. Steffani was 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 similarly 
fails. 

In Count VI, Steffani set forth several claims based upon 

alleged violations of her constitutional rights and 42 U.S.C. 5 

1983. In particular, she argues that the defendants, while acting 

under the color of state law, violated her rights to equal 

protection, free speech, association and due process. The District 

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 

consideration of these allegations to determine which, 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, is affirmed. Pursuant to above, the case is remanded 

for further proceeding. 

We Concur: 

Chief Justice 

Justice Terry N. Trieweiler dissenting. 

I dissent from the opinion of the majority. 

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 56 which is appealable to an appellate court 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. 

In this case, plaintiff Is complaint alleges at least ten bases 

for relief. The District Court's order dismissed all of them, but 

gave reasons only for the dismissal of plaintiff's petition to set 

aside an administrative order and plaintiff's claim for relief 

under 42 U.S.C. The majority 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 for the plaintiff's claims and the legal bases for the denial 

of those claims have not been developed in the District Court. 

It is particularly troubling that on the basis of this 

inadequate record this Court would enter such an expansive decision 

concluding that plaintiff has no right to any appeal under the 

Administrative Procedure Act; she has absolutely no rights under 

the collective bargaining agreement; and yet, she is precluded from 

recovery under either the Wrongful Discharge Act or pursuant to her 

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, I would remand this case to the District 

Court for proper compliance with Rule 52 (a) , M.R. Civ. P. , before 

further consideration by this Court. 

I concur with the foregoing dissent of Justice Trieweiler.