M. Kent Smith v. University of Mississippi ( 2000 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CA-00281-SCT
M. KENT SMITH
v.
THE UNIVERSITY OF MISSISSIPPI BY AND THROUGH THE BOARD OF TRUSTEES
FOR STATE INSTITUTIONS OF HIGHER LEARNING
DATE OF JUDGMENT: 01/19/2000
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH LAFAYETTE COUNTY CIRCUIT COURT
APPEALED:
ATTORNEY FOR MICHAEL LEE KNAPP
APPELLANT:
ATTORNEYS FOR MARY ANN CONNELL
APPELLEES:
L. LEE TYNER, JR.
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND
PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 5/10/2001
MOTION FOR REHEARING
FILED:
MANDATE ISSUED: 5/31/2001
BEFORE PITTMAN, C.J., COBB AND DIAZ, JJ.
PITTMAN, CHIEF JUSTICE, FOR THE COURT:
¶1. This is an appeal from the Circuit Court of Lafayette County, Mississippi, the Honorable R. Kenneth
Coleman presiding. M. Kent Smith filed a complaint in the Chancery Court of Lafayette County seeking
reinstatement to his position as Head Engineer at the University, and in the alternative, money damages. In
response, the University filed a Motion to Dismiss for Lack of Jurisdiction or, Alternatively, for Summary
Judgment Based on Res Judicata. The chancery court never ruled upon the University's motion, but, on its
own motion transferred the case to the Circuit Court of Lafayette County. The circuit court conducted a
telephonic hearing on the University's motion. Following oral argument, the circuit court granted the
University's Motion to Dismiss for Lack of Jurisdiction or, Alternatively, for Summary Judgment based on
Res Judicata. The present appeal followed.
FACTS
¶2. M. Kent Smith ("Smith") was formerly a Head Engineer at the University of Mississippi's
Teleproduction Resource Center. In September of 1997, Smith's immediate supervisor, Dr. Edwin E.
Meek, Assistant Vice Chancellor for Public Relations and Marketing at the University, notified Smith that he
had decided to terminate Smith's employment. The reasons for Smith's termination are not relevant to
resolve the issues presented by Smith's appeal. However, the record reflects that Dr. Meek decided to
terminate Smith's employment because of excessive absenteeism and because of Smith's failure to timely
perform the tasks required for his particular job title, among other reasons.
¶3. The appellate procedure for the review of employment termination decisions was published in the
University's Handbook for Faculty and Staff. Utilizing the handbook procedure, Smith appealed Dr.
Meek's termination decision to Dr. Andrew Mullins, the Executive Assistant to the Chancellor. After
meeting with Smith and considering his appeal, Dr. Mullins affirmed the decision to terminate. Smith then
appealed the termination decision to the University's Personnel Action Review Board ("PARB") for a full
administrative hearing.
¶4. On November 5, 1997, the PARB conducted a hearing on Dr. Meek's termination decision and Smith's
request for reinstatement. The PARB is a quasi-judicial administrative panel that has the authority to review
and overturn staff employment decisions. At Smith's hearing, the PARB panel included Rex Deloach,
Interim Vice Chancellor for Administration and Finance, Bonnie Brown, representing the Staff Council, and
D. Russell Cooper, an employee-at-large. Gene Hartley, Director of Human Resources, served as the
presiding officer at the hearing, but did not vote as a member of the PARB.
¶5. At the hearing, Smith appeared before the PARB on his own behalf. Smith's attorney, John Luckett,
also attended the hearing to counsel Smith. Smith's counsel was not allowed to speak or present evidence
at the hearing, but he was allowed to advise Smith concerning Smith's presentation and the hearing process
itself.
¶6. On November 12, 1997, the PARB issued its decision denying Smith's appeal and affirming the
termination of his employment. Approximately eighteen months later, Smith filed a complaint in the
Chancery Court of Lafayette County seeking reinstatement to his position as Head Engineer and in the
alternative, money damages. In his complaint, Smith alleged that Dr. Meek's decision to terminate him was
without just cause and that the University's appeal process was constitutionally insufficient.
¶7. The University moved to dismiss because Smith had not appealed the University's termination decision
to the circuit court by writ of certiorari, pursuant to Miss. Code Ann. §§ 11-51-93 & -95 (1972 & Supp.
2000). The University argued that appeal to the circuit court by writ of certiorari was the only way for
Smith to seek judicial review of the PARB's termination decision. The University also argued that because
Smith did not properly appeal, the PARB's decision was final so that Smith's claims were barred by res
judicata.
¶8. Without ruling on the University's motion, the chancery court transferred the case to the Circuit Court of
Lafayette County. The circuit court conducted a telephonic hearing on the University's motion on January
18, 2000. Following oral argument, the circuit court granted the University's motion and dismissed Smith's
claims. Smith subsequently filed the present appeal.
DISCUSSION
I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO APPELLEE BECAUSE OF APPELLANT'S FAILURE TO SEEK A
WRIT OF CERTIORARI.
A. Whether the statutory method for seeking review is University employment decisions is
the exclusive remedy.
¶9. The statutory method for seeking review of University employment decisions is by writ of certiorari. The
two statutes applicable to the University's employment decision are Miss. Code Ann. §§ 11-51-93 & -95
(1972 & Supp. 2000). Section 11-51-93 provides in pertinent part:
All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may,
within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to
the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in
all cases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in
cases of appeal from justices of the peace; and in any cause so removed by certiorari, the court shall
be confined to the examination of questions of law arising or appearing on the face of the record and
proceedings....
Miss. Code Ann. § 11-51-93 (1972). Further, § 11-51-95 provides that "[l]ike proceedings as provided in
section § 11-51-93 may be had to review the judgments of all tribunals inferior to the circuit court, whether
an appeal be provided by law from the judgment sought to be reviewed or not." In Hall v. Board of Trs.
of State Insts. of Higher Learning, 712 So.2d 312 (Miss. 1998), this Court held that hearing panels at
state universities are such "tribunals inferior," whose employment decisions may be reviewed by writ of
certiorari pursuant to § 11-51-95.
¶10. In reviewing an administrative agency's findings of fact, the circuit court and this Court afford great
deference to an administrative agency's construction of its own rules and regulations and the statutes under
which it operates. Board of Supervisors v. Waste Mgmt. of Miss., Inc., 759 So.2d 397, 400 (Miss.
2000) (citing McDerment v. Mississippi Real Estate Comm'n, 748 So.2d 114, 118 (Miss.1999)).
When appeal is taken to the circuit court through writ of certiorari, § 11-51-93 provides that "[t]he court
shall be confined to the examination of questions of law arising or appearing on the face of the record and
proceedings...." Smith argues that because of the "inadequate record" before the Personnel Action Review
Board, his sole meaningful remedy was to seek de novo review by filing an original lawsuit. Smith's claim
raises the issue of whether the statutory appeal method is the exclusive method for seeking relief.
¶11. In analyzing whether the statutory appeal method was Smith's exclusive remedy, the University points
out that judicial deference to administrative decision-making is firmly rooted in this State's constitutional
jurisprudence. The State's public universities are considered a part of the executive branch of State
government. Board of Trs. of State Insts. of Higher Learning v. Van Slyke, 613 So.2d 872, 879
(Miss. 1983). State universities, like other executive branch agencies, have adopted appellate procedures
for employees who wish to contest an adverse employment decision and have formed administrative, quasi-
judicial tribunals to hear and rule upon employee appeals. The University's Personnel Action Review Board
is one such tribunal.
¶12. This Court has repeatedly recognized the availability of the writ of certiorari under § 11-51-95 for the
review of decisions of inferior state administrative tribunals. In Hall, this Court held that hearing panels at
state universities are such "tribunals inferior," whose employment decisions may be reviewed by writ of
certiorari pursuant to § 11-51-95. Hall, 712 So.2d at 324. Hall also held that:
Where a decision of an administrative agency is appealed to the circuit court pursuant to a writ of
certiorari as provided by Miss. Code Ann. § 11-51-93, the circuit court's review of the decision of
state agencies is to "be confined to the examination of questions of law arising or appearing on the
face of the record and proceedings.
Hall, 712 So.2d at 324 (citing Miss. Code Ann. § 11-51-93 (1972)). Moreover, Smith contests neither
the wording nor the applicability of § 11-51-95. Smith argues, rather, that his case warrants an exception to
the statutory method because his procedural due process rights were violated.
¶13. Smith argues that he is entitled to bring an independent suit and seek de novo review of the
University's employment decision for two reasons. First, Smith argues that since this Court allowed a former
University of Mississippi football coach trial de novo in Board of Trs. of State Insts. of Higher
Learning v. Brewer, 732 So.2d 934 (Miss. 1999), that he also is entitled a trial de novo. Second, Smith
argues that the PARB hearing was constitutionally infirm and that, to address the hearing's constitutional
flaw, the Court must consider matters outside the record before the PARB. Smith claims that if his sole
remedy is by writ of certiorari, and if the reviewing court is confined to the face of the record, then he
essentially has no remedy because the record from his appeal before the PARB is inadequate. Additionally,
Smith argues that since he sought reinstatement as a remedy, the chancery court had jurisdiction to hear the
matter.
¶14. The University argues that appeal to the circuit court by writ of certiorari was Smith's exclusive
remedy for review of the PARB's employment decision. The University asserts that because Smith did not
appeal the PARB's decision, that decision is final, and Smith's claims are therefore barred by res judicata.
The University also asserts that the circuit court lacks jurisdiction over the matter, because Smith did not file
a petition for writ of certiorari with the required bond within six months of the PARB's decision.
¶15. In support of his first contention, that his claims are not barred by his failure to appeal the PARB's
decision in the statutorily prescribed manner, Smith relies on Board of Trs. of State Insts. of Higher
Learning v. Brewer, 732 So.2d 934 (Miss. 1999). In Brewer, former University head football coach
Billy Brewer appealed his termination to the PARB for a full hearing. Brewer, 732 So.2d at 935. The
PARB ultimately upheld his termination, and Brewer then filed a complaint in the circuit court, seeking
monetary damages for breach of contract, violation of his constitutional rights, and tortious interference with
contract. Id. The Board of Trustees ("Board") filed a Motion to Dismiss for Lack of Jurisdiction, claiming
that the circuit court lacked jurisdiction over the case, because Brewer failed to follow the statutory
procedure under Miss. Code Ann. §§ 11-51-93 and 11-51-95. The circuit court denied the Board's
motion, and the Board appealed to this Court.
¶16. In explaining why Brewer could maintain a separate action in the circuit court, despite the fact that he
did not follow the statutory procedure, this Court cited Hall v. Board of Trs. of State Insts. of Higher
Learning, 712 So.2d 312 (Miss. 1998). In Hall, the Court approved the use of the statutory procedure
for appeals from administrative tribunals at Mississippi universities. In Brewer, this Court differentiated the
two cases by stating that:
Hall is easily distinguished from the current case. Hall sought to have the decision of the
administrative tribunal...reversed; his action was a direct appeal from the administrative procedure. In
this case, Brewer filed a separate suit seeking monetary damages for breach of contract after he
received confirmation from the University's director of Personnel...that his administrative remedies
with the University had been exhausted. Brewer's action in circuit court was not an attempt to seek
reinstatement through an appeal from the decision of the University or the Board's approval, but was
instead a separate breach of contract action for damages.
Brewer, 732 So.2d at 936. The Court held that Brewer followed the proper procedure for initiating a
breach of contract claim against the Board by filing a complaint in the circuit court. Id. at 937.
¶17. Smith argues that, although he did and still does seek reinstatement, his complaint before the chancery
court also sought monetary damages in the alternative. Smith argues that the reason this Court ruled that
Brewer did not have to avail himself of the statutory procedure requiring a writ of certiorari was because
Brewer sought damages, "a separate type of remedy." He claims that since he demanded damages in his
complaint to the chancery court, he should have been allowed to pursue the action upon the chancery
court's transfer to the circuit court. Smith also argues that the chancery court had jurisdiction to hear the
entire matter- - - the issue of reinstatement and the issue of monetary damages.
¶18. Smith's reliance on Brewer is misguided. Brewer did not overrule this Court's prior holding in Hood;
rather, the holding in Brewer was limited to the facts of that particular case. Brewer emphasized that, "the
circuit court has original jurisdiction over all breach of contract cases, and that Brewer's action in circuit
court "was not an attempt to seek reinstatement through an appeal from the decision of the University or the
Board, but was instead a separate breach of contract action for damages." Id. at 936. Brewer had three
years remaining on his contract with the University at the time he was terminated. Id. at 935. The Court's
rationale in Brewer was based on the fact that Brewer had a written, separately negotiated contract with the
University, the terms of which were in dispute. This Court places high importance on such contractual
relationships. Smith, however, had no such written contract. Smith refers to an "oral contract of
employment" with the University. In truth, Smith was a state employee with no separate, written contract.
Smith was afforded statutory protections and procedures for the purpose of appealing employment
decisions, while an employee with a separate, written contract may pursue other avenues in search of relief.
¶19. Also, in Brewer, the Court implied that its decision was based in part on fairness concerns, stating
that:
Our notions of due process would be impugned by requiring Brewer to pursue a breach of contract
claim against the Board in an administrative tribunal ultimately answerable to the Board itself and
subject to the limited review of the circuit court allowed under § 11-51-93.
Id. at 937.
B. Whether circuit court had jurisdiction to review the PARB's termination decision.
¶20. Because Smith did not exhaust his administrative remedies, by following statutory appeal procedures,
the circuit court lacked jurisdiction to review the University's employment decision. This Court has
previously held that failure to post the required appeal bond under § 11-51-93 is a jurisdictional issue.
Mississippi State Pers. Bd. v. Armstrong, 454 So.2d 912, 914-15 (Miss. 1984). In Armstrong, the
court addressed the statutory bond requirements, (specifically the requirements in § 11-51-95), and stated
that:
As stated, we hold that the required supersedeas bond is jurisdictional, and the appeal is not
perfected until the bond is approved by the circuit judge and filed.
Armstrong, 454 So.2d at 914-15 (citing Phillips Constr. Co. v. Mississippi State Highway Comm'n,
420 So.2d 1374 (Miss. 1982)); see also Grand Gulf Military Monument Comm'n v. Cox, 492 So.2d
287 (Miss. 1986) (holding that circuit court lacked jurisdiction over matter because terminated employee
failed to file petition required by statute). Again, in Bertucci v. Mississippi Dep't of Corrs., 597 So.2d
643 (Miss. 1992), this Court required strict compliance with the appeal provisions for a writ of certiorari by
stating that "[w]e decline to ignore statutory requisites and accept that a brief is in substantial compliance
with § 11-51-93. We are not willing to accept anything less than full compliance with all essentials within the
time allowed...." Id. at 646-47. As the University correctly points out, Smith failed to submit a petition
supported by an affidavit and post a bond, with security, within six months of the decision of the PARB per
the requirements of § 11-51-95. Smith's failure to perfect his appeal under § 11-51-95 deprived the circuit
court of jurisdiction to review the University's decision to terminate Smith, therefore the court's dismissal of
Smith's claims was proper.
C. Whether Smith's claims are barred by res judicata.
¶21. Moreover, even if the circuit court had jurisdiction to review Smith's claims, such claims are barred
under the doctrine of res judicata. This Court addressed a situation identical to Smith's in Hood v.
Mississippi Dep't of Wildlife Conservation, 571 So.2d 263 (Miss. 1990). The Mississippi Department
of Wildlife Conservation ("DWC") terminated Hood after he was convicted of a crime. Hood, 571 So.2d
at 265. Hood appealed the termination decision to the Mississippi Employee Appeals Board ("EAB"),
which affirmed his termination. Id. Hood did not seek judicial review in the circuit court after exhausting his
administrative remedies. Id. Hood instead filed an action in the chancery court seeking both reinstatement
and money damages. Id. The chancery court dismissed Hood's claims, holding that his appellate remedy
was adequate and exclusive. Id. The Court held that the statutorily prescribed employee appeals procedure
was a vehicle through which a former state employee could assert, and ultimately appeal, his various
claims.(1) Id. at 267. This Court held that,
Because every claim Hood asserts was available to him before the Employee Appeals Board- -and
before the Circuit Court thereafter, had he chosen that route, we hold Hood's remedy at law plain,
speedy, adequate and complete. Because that remedy has been exhausted, Hood's claim is barred
under elementary notions of res judicata.
Id. at 268.
¶22. Under Mississippi law, res judicata or collateral estoppel precludes relitigation of administrative
decisions. In Mississippi Employment Sec. Comm'n v. Philadelphia Mun. Separate Sch. Dist., 437
So.2d 388 (Miss. 1983), this Court held that the doctrine of collateral estoppel applied to administrative
proceedings. Id. Further, this Court has held that "[o]nce an agency decision is final and the decision
remains unappealed beyond the time to appeal, it is barred by administrative res judicata or collateral
estoppel." Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So.2d 853, 861 (Miss. 1999).
The holding in Hood dictates that the doctrine of res judicata precludes not only further litigation of claims
that were actually raised in a prior proceeding, but also any claim that could have been raised in the earlier
suit. Hood, 571 So.2d at 267-69. Smith's claims are likewise barred by res judicata because he did not
properly appeal the PARB's decision.
¶23. Smith's second contention, that the statutory appeals process could not provide a meaningful remedy,
is without merit. Smith claims that the PARB violated his constitutional rights by refusing to allow his
attorney to actively participate in the PARB hearing. Smith argues that since his attorney was "essentially
gagged at the hearing...an adequate record could not be made." Thus, Smith asserts, trial de novo is the
only meaningful way to obtain justice. Smith maintains that his position is that "this is not an appeal but a
direct attack upon the Appellee's hearing process in the instant case," and that "[t]his would include matters
outside the record."
¶24. Smith's argument fails for three reasons. First, the PARB transcript clearly indicates the limited role
allowed Smith's counsel. Therefore, the PARB record is sufficient to address any alleged constitutional flaw.
At the beginning of the hearing, Gene Hartley, the University's Director of Human Resources, read a
statement informing the participants that, "[i]t is noted that counsel is only to assist the parties who will
present their own cases." The hearing transcript also provides the following statement made in response to
an attempt by Smith's attorney to speak:
BY MR. LUCKETT (Smith's attorney): I read the report that he faxed me that said he was suffering
from some sort of stress. I don't remember - -
BY MR. HARTLEY: Could I ask you not to speak for him.
¶25. Second, Smith failed to contemporaneously object to the hearing process before the PARB. In
United Cement Co. v. Safe Air for the Env't, Inc., 558 So.2d 840 (Miss. 1990), an environmental
group, "SAFE," appealed a decision by the Mississippi Department of Natural Resources Permit Board.
SAFE was granted a full evidentiary administrative hearing before the Permit Board, which designated a
Special Assistant Attorney General to sit with the Board as hearing officer. Id. at 841. After the Permit
Board reaffirmed its earlier decision, SAFE appealed to the chancery court, charging that it had been
denied due process of law because the hearing officer was a Special Assistant Attorney General and that
the attorney representing the Mississippi Bureau of Pollution Control was also a Special Assistant Attorney
General. Id. This Court reversed the chancery court, holding in part that:
SAFE admits having knowledge of the identity of the hearing officer as an Assistant Attorney General
well before the hearing and in time to object if any legitimate objection existed. It made no objection
before the Board and proceeded through the hearing without objection. We are of the opinion that it
waived any real or supposed objection it might have had by this conduct.
Id. at 843. The State argues that any other result would give Smith and other aggrieved employees an
incentive to hold any objections and adduce less than all of the evidence, and then rely upon the flaws in the
process or the inadequate record to obtain trial de novo.
¶26. Third, this Court has held that the appeals process is adequate to address alleged constitutional flaws
in the appeals process. In Hood, a terminated employee filed an action in the chancery court charging,
among other things, that the DWC had violated rights secured to him under state and federal constitutions.
Hood, 571 So.2d at 266. The chancery court dismissed Hood's claims, holding that his appellate remedy
was adequate and exclusive. Id. On appeal, this Court addressed the issue of whether the statutory appeals
process was adequate to assert a denial of constitutional rights. Id. at 265, 268. This Court held that the
Employee Appeals Board and the circuit court on appeal had the ability to adjudicate Hood's breach of
contract and constitutional claims, and stated that:
The remedial process provided such employees(2) necessarily vests the employee's department,
agency or institution, and ultimately the EAB, with full authority to hear not only the merits vel non of
any charge of inefficiency or other good cause, but also any other matter of fact or law the employee
may assert affecting his employment.
The more relaxed administrative appellate process before the EAB is quite conducive to a full airing
of the employee's constitutional claims.
Because every claim Hood asserts was available to him before the Employee Appeals Board- -and
before the Circuit Court thereafter, had he chosen that route, we hold Hood's remedy at law plain,
speedy, adequate and complete.
Id. at 268. Every claim Smith now asserts could have been addressed before the PARB and the circuit
court on appeal, had Smith filed a writ of certiorari.
II. WHETHER THE CHANCELLOR ERRED IN TRANSFERRING THE CASE TO THE
CIRCUIT COURT ON HIS OWN MOTION.
¶27. In Benedict v. City of Hattiesburg, 693 So.2d 377, 378 (Miss. 1997), the plaintiff filed a complaint
against the City of Hattiesburg in chancery court, alleging that an election had been conducted without legal
authority. The City of Hattiesburg filed a motion to dismiss for, among other things, lack of subject matter
jurisdiction. Id. at 378. The chancellor held that the chancery court lacked jurisdiction and dismissed the
case. After clarifying that Miss. Code Ann. § 11-51-75(3) afforded complainants such as Benedict a "plain,
adequate, speedy, and complete remedy for a judicial determination of his right," Id. at 381 (citing Moore
v. Sanders, 558 So.2d 1383 (Miss. 1990)), and that the chancery court did indeed lack subject matter
jurisdiction, the Court nonetheless reversed the lower court for failure to transfer to the case to circuit court.
The Court cited Article 6, § 162 of the Mississippi Constitution, which reads as follows: "All cases that may
be brought in chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the
circuit court." Miss. Const. art. 6, § 162 (1890). The Court reiterated its prior holding in Moore v.
Mississippi Hosp. & Med. Serv., 317 So.2d 919 (Miss. 1975), that a chancellor's failure to transfer when
a demurrer was requested on the basis of lack of subject matter jurisdiction amounts to reversible error. Id.
at 381.
¶28. In the case sub judice, the University filed a motion in the chancery court to dismiss for lack of subject
matter jurisdiction. Since the circuit court had exclusive jurisdiction over Smith's claims, there is no doubt
that the chancellor acted properly in transferring the case to the circuit court pursuant to the Mississippi
Constitution and the case law of Mississippi.
CONCLUSION
¶29. For these aforementioned reasons, the Court affirms the judgment of the trial court and holds both that
appeal to the circuit court by writ of certiorari was Smith's exclusive remedy for review of the PARB's
decision, and that the chancery court judge did not err in transferring Smith's case to the circuit court on his
own motion.
¶30. AFFIRMED.
SMITH, MILLS, WALLER, COBB, DIAZ AND EASLEY, JJ., CONCUR. McRAE, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, P.J.
McRAE, PRESIDING JUSTICE, DISSENTING:
¶31. Once he had exhausted the administrative procedure of the Personnel Action Review Board ("PARB")
, Smith had two possible avenues. He could have sought reinstatement of his position by posting bond and
petitioning for writ of certiorari pursuant to Miss. Code Ann. §§ 11-51-93 & -95(1972 & Supp. 2000),
with limited review by the circuit court, or he could have sought monetary damages for breach of contract in
an original action in the circuit court. See Bd. of Trs. of State Insts. of Higher Learning v. Brewer, 732
So.2d 934 (Miss. 1999). Nothing in the statutes prescribe them as the exclusive means to seek judicial
review of decisions of the PARB. I would, therefore, reverse the circuit court's grant of summary judgment
as to Smith's claim for monetary damages arising from breach of contract. Accordingly, I dissent.
¶32. Smith argues that he had a verbal contract of 17 years with the University. Upon termination by his
immediate supervisor, Smith followed the procedures of the University's Handbook for Faculty and Staff to
appeal the decision. The Executive Assistant to the Chancellor upheld his termination, and Smith appealed
to the PARB. After a full hearing, the termination was affirmed. At this point, Smith had exhausted his
administrative remedies, and the two above avenues were available to him. He then filed suit in the circuit
court, seeking monetary damages and reinstatement.
¶33. These facts are analogous to those in Brewer, 732 So.2d at 935, in which Brewer appealed his
termination to the department head, and then to the PARB. Instead of seeking further review of his
termination by way of a writ of certiorari, Brewer chose to pursue an original breach of contract claim for
monetary damages in the circuit court. In Brewer, we held as follows: "Our notions of due process would
be impugned by requiring Brewer to pursue a breach of contract claim against the Board in an
administrative tribunal ultimately answerable to the Board itself and subject to the limited review of the
circuit court allowed under § 11-51-93." Id. at 937.
¶34. The majority attempts to distinguish the instant case from Brewer by emphasizing that Brewer had a
written contract with the University. However, we did not limit our holding in Brewer specifically to claims
based on written contracts. A contract is a contract, whether it is oral or written. Whether Smith was under
a valid oral contract is a question of fact for a jury to determine. In addition, the administrative review
process was the same for either Brewer or Smith. Our notions of due process should be no less offended
by requiring Smith to pursue his breach of contract claim against the Board of Trustees in an administrative
tribunal that is ultimately answerable to the Board itself and subject only to the limited review provided for
by sections 11-51-93 and 11-51-95. Whether the claim for breach of contract is based on an oral or a
written agreement is irrelevant.
¶35. Likewise, Smith's breach of contract claim is not barred by res judicata. Smith initially sought
reinstatement of his employment, and his claim for damages based on breach of contract is a separate and
original action, as was the plaintiff's suit for breach of contract in Brewer. The majority opines that the
doctrine of res judicata bars not only those claims actually raised in the prior proceeding, but any claim that
could have been raised. However, as discussed above, requiring Smith to bring his claim before a body that
is only answerable to the defendant violates Smith's due process rights.
¶36. For these reasons, I would reverse the Lafayette County Circuit Court's grant of summary judgment in
favor of the Board of Trustees as to Smith's claim for monetary damages based on breach of contract.
Under our holding in Brewer, Smith ought to be able to pursue his damage claim in the circuit court as an
original matter. Accordingly, I dissent.
BANKS, P.J., JOINS THIS OPINION.
1. The Court was addressing the Mississippi Statewide Personnel System statutes which consolidated the
state's civil service system. Miss. Code Ann. § 25-9-121 (Supp. 1990). The Court noted that the statute
prescribes a remedial process available to state employees aggrieved regarding the terms and conditions of
their employment. Hood, 571 So.2d at 267.
2. The Mississippi Statewide Personnel System statutes consolidated the state's civil service system. Miss.
Code Ann. § 25-9-105 (Supp. 1990). The statutes proscribe a remedial process available to state
employees aggrieved regarding the terms and conditions of their employment. Prior to his termination, Hood
had attained permanent employee status under the civil service system. Hood, 571 So.2d at 267.
3. Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a
city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the
board of supervisors or municipal authorities rendered such judgment....The clerk thereof shall transmit the
bill of exceptions to the circuit court at once, and the court shall... determine the same on the case as
presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment.