Sheets v. Dollarway School District ( 2003 )

Andree Layton Roaf, Judge,

concurring. I concur in the majority’s analysis and conclusion as to Garrett Sheets’s entitlement to back pay for the 2000-2001 school year. However, I would affirm the trial court’s decision that Sheets is not entitled to any back pay for the 2001-2002 school year on a different basis. Because Sheets has not challenged the trial court’s finding that he failed to mitigate his damages in both the 2000-2001 and 2001-2002 contract years, I would not address the issues Sheets raises on appeal with respect to 2001-2002.

In its order, the trial court found that: 1) Sheets was not entitled to the protections of the Arkansas Teacher Fair Dismissal Act (ATFDA), Ark. Code Ann. § 6-17-1501 et seq. (Repl. 1999), because he was a probationary teacher in 1990-2000; 2) Sheets was not a teacher, probationary or otherwise, during the 2000-2001 school year because his position as an in-school suspension monitor did not require certification as a condition of employment; 3) even if Sheets was entitled to judgment on his alternative claim for breach of contract, he failed to mitigate his damages both in 2000-2001 while still employed by the appellee Dollarway School District and in 2001-2002 after his termination by failing to accept an offer of employment from the Altheimer School District. The trial court did not specify the dollar amounts at issue in either year in its finding of failure to mitigate.

Sheets makes no argument challenging the trial court’s finding that he is entitled to no damages based on the failure to mitigate. With regard to the 2000-2001 school year, Sheets argues that he is entitled to all of the extra coaching stipends, employer matching and retirement contributions, interest, costs, and attorneys fees, and cites to Ark. Code Ann. §§ 6-17-1503 and 1506, Ark. Code Ann. § 16-22-208, and Love v. Smackover School District, 329 Ark. 4, 946 S.W.2d 676 (1997). Sheets simply does not acknowledge or address in any way the duty to mitigate in his arguments or request for relief from this court.

With regard to the 2001-2002 school year, for which the alleged offer of employment with the Altheimer School District was made to Sheets, he argues that he was a “teacher” during 2000-2001, and that he is entitled to a full teacher’s salary for this subsequent year because of non-renewal of his position as in-school suspension monitor. However, there was testimony that Sheets would have made a higher salary with the Altheimer School District than with the appellee district. Again, Sheets does not address the trial court’s finding that he failed to mitigate his damages in this contract year.

In sum, Sheets has raised no direct challenge to the trial court’s findings that he failed to mitigate his damages in either of these two years. The majority has concluded that Sheets is not required to challenge this ruling to obtain a reversal on the merits of his other arguments with respect to the first year, because Dollarway did not offer him the full amount of the coaching stipends that he had received in the previous year, and the trial court’s ruling on failure to mitigate would thus only apply to the actual sum offered to Sheets and which was refused by him. I agree with this conclusion. However, it is a familiar rule of practice that an appellate court does not reverse on a ground not argued by the appellant, even when the record is subject to de novo review on appeal. McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997). Arguments not made on appeal are deemed waived. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977).

Consequently, we cannot reverse the finding that Sheets is entided to no damages at all for the 2001-2002 school year by addressing and reversing on the points he has selectively chosen to raise. We should therefore affirm the trial court’s finding on this contract year without consideration of the other issues Sheets advances on appeal, because Sheets has failed to challenge a ruling which is in effect dispositive of his claim for damages for 2001-2002.