ATTORNEYS FOR APPELLANT
: ATTORNEY FOR APPELLEE:
COURT OF APPEALS OF INDIANA
JOHN R. PRICE THOMAS E. WHEELER II
BRUCE A. STUARD Locke Reynolds LLP
John R. Price & Associates Indianapolis, Indiana
KENNETH MCMICHAEL, )
vs. ) No. 72A01-0208-CV-330
SCOTT COUNTY SCHOOL )
DISTRICT #2, )
APPEAL FROM THE SCOTT CIRCUIT COURT
The Honorable Robert L. Bennett, Special Judge
Cause No. 72C01-0008-CP-125
March 18, 2003
OPINION FOR PUBLICATION
STATEMENT OF THE CASE
Kenneth McMichael appeals the trial court order dismissing his complaint against Scott County
School District #2 ("the District").
Whether the trial court erred in dismissing McMichael's complaint.
In 1999, McMichael had been employed as a vocational agriculture teacher at Scottsburg
High School for twenty-two years. On March 16, 1999, the District advised
him that at its April 20, 1999, meeting, the District's Board of Trustees
("the Board") would consider canceling his teaching contract. McMichael asked for a
written statement of reasons. He was provided such a statement, attached to
which were various reprimands from his personnel file. At McMichael's request, the
Board conducted hearings about the possible termination on seven occasions in April and
May of 1999. Thereafter, on June 7, 1999, the Board voted to
cancel McMichael's contract.
McMichael pursued the procedure established in the master contract between the Board and
Scott County School District 2 Classroom Teachers Association ("the contract") and filed a
grievance. Specifically, McMichael claimed that the District had violated the contract
and his due process rights therein when it "introduced written reprimands that were
attachments to the statement of reasons as evidence in the dismissal hearing .
. . without redacting any alleged facts." (District's App. 58). The
"remedy sought" in McMichael's grievance was that he "be reinstated with full back
pay and benefits." Id.
The processing of McMichael's grievance culminated in arbitration. After a lengthy evidentiary
hearing, the Arbitrator found the applicable provision of the contract to be "mandatory"
in requiring that "[u]nredacted reprimands must not be seen" by the Board when
it considered possible termination. (McMichael's App. 29). Because the "Board had
access to material that was prohibited to them," the Arbitrator held, "[t]he due
process procedures negotiated on behalf of persons situated such as Mr. McMichael were
breached." Id. 30, 31. The Arbitrator's order of March 9, 2000,
directed that McMichael be "returned to employment," "paid all monies he would have
earned but for this breach" of the contract, and "credited" for all fringe
benefits "as if this incident had not occurred." Id. at 31.
Within the ninety-day statutory timeframe, see Ind. Code § 34-57-2-14, on May 31,
2000, the District filed a complaint to vacate the Arbitrator's order. This
lawsuit was filed in Scott Circuit Court and assigned cause number 68.
Three months later, on August 28, 2000, with new counsel acting on his
behalf, McMichael filed a complaint for damages he suffered "by virtue of the
fact that he was improperly terminated by" the District. (McMichael's App. 7).
This lawsuit was also filed in Scott Circuit Court, and it was
assigned cause number 125.
On October 23, 2000, the District filed a motion to dismiss McMichael's complaint,
with accompanying exhibits. The District argued inter alia for dismissal under Trial
Rule 12(B)(6), in that McMichael had sought relief through the arbitration process, all
consequential damages should have been covered therein, and any damages not argued to
the Arbitrator could not now be sought "in this separate action." (District's
App. 9). Thus, the District argued, McMichael's complaint "fail[ed] to state a
claim upon which relief could be granted." Id. at 10. McMichael
opposed the motion to dismiss, but he did not ask that his complaint
be joined in the District's complaint to vacate.
On August 2, 2001, hearings were held on the District's complaint to vacate
the Arbitrator's award. On September 21, 2001, the trial court affirmed the
award of the Arbitrator. (McMichael's App. 81).
In December of 2001, a special judge was appointed to hear McMichael's complaint.
Subsequently, correspondence in April of 2002 between McMichael's counsel and counsel for
the Board confirmed the exact amounts owed by the District to McMichael to
"fully compensate for all his losses under the arbitration award." District's App.
86. Then, on May 22, 2002, the special judge heard arguments on
the District's motion to dismiss McMichael's complaint. The motion was granted on July
18, 2002, and McMichael's lawsuit dismissed. It is from this ruling that
Both parties cite the standard of review for a T.R. 12(B)(6) motion to
dismiss. However, the District's motion was accompanied by "supporting materials." District's
Br. at 1. And the brief in support of its motion referred
to the attached master contract
See footnote and McMichael's filed grievance. In his brief
opposing the District's motion, McMichael referred to the District's contract exhibit. Further,
the correspondence between counsel regarding the specific amounts covered by the Arbitrator's award
was presented to the trial court before the hearing on the District's motion.
We presume these materials were discussed by the parties in their arguments
before the court.See footnote
"If, on a motion" to dismiss pursuant to T.R. 12(B)(6) "for failure to
state a claim upon which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion
treated as one for summary judgment and disposed of as provided in Rule
56." T.R. 12(B) (emphasis added). Summary judgment "shall be rendered forthwith
if the designated evidentiary matter shows that there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law." T.R. 56(C). When the facts
are not in dispute, "the court's task is to apply the relevant law
to the undisputed facts." Speedway Int'l Trucks, Inc. v. Rosselle, 648 N.E.2d
1161, 1162 (Ind. 1995). Our task upon review is the same.
Here, we find no disagreement between McMichael and the District as to the
underlying facts. Thus, we consider whether the District was entitled to judgment
as a matter of law based upon those facts.
The District argues that because McMichael had sought and received damages pursuant to
his contract grievance rights, the election of remedies doctrine precludes his subsequently bringing
a lawsuit for damages he incurred when he was terminated from employment.
The election of remedies doctrine is equitable in origin.
Chosnek v. Rolley,
688 N.E.2d 202, 207 (Ind. Ct. App. 1997). The doctrine is intended
to prevent excessive and repetitive litigation. Hoover v. Hearth & Home Design
Ctr., 654 N.E.2d 744, 745 (Ind. 1995). The doctrine applies when a
party who has two co-existing but inconsistent remedies elects to pursue one remedy
to a conclusion rather than sue on the other remedy. Id.
Under the doctrine, electing one's remedy "imports an intentional, deliberate choice of remedies
by the party making the election." 11 I.L.E. Election of Remedies §
4 (1998). "Where there are concurring effectual remedies, the choice and uninterrupted
prosecution of one excludes the others." Id.
Here, the contract does not preclude McMichael from initially filing an action in
the court to claim the violation of his contract and his improper termination.
However, McMichael elected to challenge his termination and the resulting financial loss
by pursuing a grievance under the procedure provided in the contract. The
express remedy he sought therein was to "be reinstated with full back pay
and benefits." (District's App. 58). The result was an arbitration award
that ordered his return to employment and payment of all money and benefits
he would have earned if the termination had not occurred. The District
filed its complaint to vacate the award ordered by the Arbitrator, and by
the time the trial court ruled on the District's motion concerning McMichael's complaint,
that award had been affirmed. Thus, McMichael's elected remedy under the grievance
procedure had reached its conclusion, and the trial court now faced the question
of whether McMichael could subsequently pursue a separate lawsuit to seek various damages
allegedly suffered as a result of his termination.
McMichael argues that the election of remedies does not bar his complaint because
it sought "compensation for injuries the arbitrator's award could not reach." McMichael's
Br. at 17. However, he directs us to no authority for his
statement. In his brief, McMichael described the complaint as seeking
the following monetary losses: Reimbursement for money borrowed for living expenses during the
period of time he was improperly terminated by the defendant; interest on loans
and credit cards to pay personal living expenses for the same; lost interest
on investments he was forced to liquidate to pay for living expenses; expenses
in seeking employment with a career counseling company; mileage, phone calls, postage, and
other costs incurred in the process of seeking employment; the return of personally
owned tools kept from him upon his wrongful termination; reimbursement for work he
had performed in regard to Young Farmers Seminars for the School Corporation for
which he was not paid; eight days of his contract for which he
was not reimbursed; legal fees for representation regarding termination by the School Corporation;
reimbursement for sums for which [he] is obligated to the Indiana State Teacher's
Association for their involvement in his termination case; loss of farm stock occurring
as a result of his not being able to build a barn due
to his improper termination and inability to finance the building to protect said
animals; mileage, costs and expenses for travel arising as a direct result of
his termination; interest on his teacher's retirement account and damage to his reputation
and marketability as a teacher arising from his termination.
McMichael's Br. at 20.
As McMichael notes, the scope of issues that may be arbitrated is determined
by the contract. See North Miami Educ. Ass'n v. N. Miami Cmty.
Schs., 736 N.E.2d 749, 757 (Ind. Ct. App. 2000), clarified 746 N.E.2d 380
(Ind. Ct. App. 2001), trans. denied. The meaning of the terms of
a contract is a question of law for the court. Heritage Dev.
Of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 891 (Ind. Ct.
App. 2002). According to the contract, a grievance "is an alleged
violation" of the contract, and the "purpose of the grievance procedure is to
settle equitably . . . claims of violation" of the contract. (McMichael's
App. 61). No limits to such a settlement are stated. The
scope of a possible damages award under the contract grievance procedure appears quite
broad. If McMichael had sought in the grievance process the damages he now
argues -- and provided evidentiary support therefor -- we do not find that
as a matter of law, the terms of the contract would have prohibited
compensation for those damages.
In his reply, McMichael argues that the election of remedies doctrine does not
apply because his complaint sought "damages that arose after the arbitrator's award was
entered," which would make it "impossible for him to have deliberately selected one
of two available remedies when the second remedy had not yet arose [sic]."
Reply at 7. When we review McMichael's recitation of the damages
he sought in his complaint, as set out above, we cannot agree that
the alleged consequential damages "arose after the arbitrator's award was entered." Id.
Therefore, this argument must fail.
NAJAM, J., and VAIDIK, J., concur.
McMichael's own appendix also contains the contract.
Footnote: McMichael's record contains no transcript of the hearing.
Footnote: McMichael's complaint also included a count seeking damages for defamation.
The District asserted that because McMichael had never filed a tort claims
notice, this cause of action was barred under the Indiana Tort Claims Act.
McMichael does not provide any argument to the contrary. Hence, we
consider only his damages claim described above.