Axtell v. Park School District R-3

Opinion by Judge PLANK.

In this employment contract action, plaintiff, Kristine E. Axtell, appeals from the summary judgment entered in favor of defendant, Park School District R-3 (School District), and from the district court’s award of attorney fees to the School District. We affirm, except that we dismiss the appeal as to the award of attorney fees.

Plaintiff was a probationary teacher employed with the School District pursuant to a one-year contract for the 1993-1994 school year, as provided for in the Teacher Employment, Compensation, and Dismissal Act (TECDA), § 22-63-203, C.R.S.1997. At the end of her contract, the School District, acting pursuant to § 22-53-203(4), C.R.S.1997, declined to renew her contract for the 1994-1995 school year.

Plaintiff filed a complaint against the School District alleging it improperly evaluated her and failed to provide her with remediation in violation of § 22-9-101, et seq., C.R.S.1997 the Certificated Personnel Performance Act (Evaluation Act), and that the improper evaluation procedure and lack of remediation breached her employment contract. Plaintiff also claimed that the School District failed to follow its own policies on evaluation and remediation and that this failure also was a breach of her employment contract.

Plaintiff does not claim that the School District improperly failed to renew her contract or otherwise violated TECDA.

The district court dismissed plaintiff’s claims for relief pursuant to the Evaluation Act, finding that it did not provide a private right of action for plaintiff. The district court granted the School District’s motion for summary judgment on plaintiff’s contract claims.

I.

Plaintiff contends that the district court erred in finding that the Evaluation Act does not create a private right of action. We disagree.

Whether a statute creates a private right of action is a question of law. We will not infer a private right of action based on an alleged violation of a statute unless there is a clear intent by the General Assembly to create such a cause of action. Moreover, when the General Assembly enacts remedies other than private damages to redress a statutory violation, a private cause of action is precluded. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo.1997).

The Evaluation Act includes a specific remedy for violations by school districts. Section 22-9-104(2)(e), C.R.S.1997, provides that the state board of education shall “[w]ithhold or suspend the accreditation of any school district and publicize such withholding or suspension of accreditation if it determines that the school district has not complied with the provisions of this article.”

Thus, we agree with the district court that the Evaluation Act does not create an independent private right of action.

II.

We reject plaintiffs contention that the Evaluation Act creates a “contract by law.”

Plaintiff relies on several cases adopting the proposition that the Teacher Tenure Act, Colo. Sess. Laws 1953, ch. 212 at 559, precursor to TECDA, ‘“creates a new liability where none would otherwise exist; it makes a contract for the parties by operation of the law, where otherwise none would exist....’ ” Marzec v. Fremont County, School District No. 2, 142 Colo. 83, 86, 349 P.2d 699, 701 (1960). See also Julesburg School District No. RE-1 v. Ebke, 193 Colo. 40, 562 P.2d 419 (1977); Maxey v. Jefferson County School District No. R-1, 158 Colo. 583, 408 P.2d 970 (1965).

We find the application of these cases to the Evaluation Act inappropriate. The Teacher Tenure Act was held to be a contract by operation of law because it specifically required school districts to enter into employment contracts with teachers and established many of the terms of those contracts. Nothing in the Evaluation Act requires school districts to alter their contractual duties to teachers. Rather, the requirements for teacher employment contracts are dictated by TECDA, which specifically provides for non-renewal of probationary teachers upon the recommendation of a school district’s chief administrative officer, “for any reason he deems sufficient.” Section 22-63-203(4)(A), C.R.S. 1997.

III.

Plaintiff next contends that the district court erred in granting summary judgment on her express and implied contract claims. We reject this contention.

When reviewing a summary judgment, we are required to determine whether there is a clear showing that no issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coots Co., 759 P.2d 1336 (Colo.1988).

A.

First, we reject plaintiffs argument that her employment contract incorporated the Evaluation Act.

The written employment contract provides the following:

All applicable Board of Education policies, procedures, FORMAL AGREEMENTS BETWEEN THE BOARD AND TEACHERS, and state statutes concerning teacher rights, benefits and obligations are incorporated herein and made part of this contract, (emphasis in original)

Plaintiff first contends that the Evaluation Act is made a part of her contract through this provision because the Act grants her statutory rights. However, as discussed above, the Evaluation Act does not create any rights or benefits to plaintiff. Plaintiffs employment contract is governed by TEC-DA, not the Evaluation Act, and plaintiff has admitted that the school district did not violate TECDA.

B.

Plaintiff next contends that the School District’s evaluation policy creates contractual rights because the School District’s policies are incorporated into the contract under the above quoted contract provision. However, the evaluation policy provides the following:

Nothing in this policy shall be construed to imply in any manner the establishment of any personal rights not explicitly established by statute or Board policy. Neither shall this policy be deemed or construed to establish any conditions prerequisite to renewal of contracts, transfer, assignment, dismissal or other employment decisions.

As a result, even if this policy is part of plaintiffs contract, it expressly does not grant her any contractual rights.

C.

For similar reasons, we also reject plaintiffs contention that she had an implied contractual right under the School District’s evaluation policy.

Termination procedures found in an employee manual or handbook may create an implied contract. However, if there is a clear disclaimer of any contractual rights, no implied contract is created. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987); Allabashi v. Lincoln National Sales Corp. of Colorado-Wyoming, 824 P.2d 1 (Colo.App.1991). Plaintiff has not presented any evidence that suggests the disclaimer in the evaluation policy is not effective.

IV.

Finally, plaintiff contends that the district court erred in finding her complaint frivolous and groundless and awarding the School District attorney fees pursuant to § 13-17-102(4), C.R.S.1997.

We decline to address this contention and dismiss this part of the appeal because the order granting attorney fees does not determine the amount awarded. Thus, that portion of the judgment is not final until the amount of fees is set by the trial court. Ball Corp. v. Loran, 42 Colo.App. 501, 596 P.2d 412 (1979).

METZGER, J., concurs. TAUBMAN, J., concurs in part and dissents in part.