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STATE OF MICHIGAN
COURT OF APPEALS


DAVID SCHIED, Plaintiff-Appellant, v LINCOLN CONSOLIDATED SCHOOLS, LINCOLN CONSOLIDATED SCHOOLS BOARD OF EDUCATION, and DR. SANDRA HARRIS, Defendants-Appellees.

UNPUBLISHED June 29, 2006

No. 267023 Washtenaw Circuit Court LC No. 04-000577-CL

Before: Fort Hood, P.J., and Cavanagh and Servitto, JJ. PER CURIAM. This appeal arises from a decision by defendants to terminate the probationary employment of plaintiff, a former teacher. Plaintiff appeals as of right from a circuit court order granting defendants summary disposition pursuant to MCR 2.116(C)(8) and (10), and denying plaintiff's motion for partial summary disposition. We affirm. In December 1977, plaintiff pleaded guilty and was convicted of aggravated robbery in Texas. Two years later, the sentencing court entered an order discharging plaintiff from the term of probation it had imposed, setting aside plaintiff's guilty plea and conviction, and dismissing the indictment against him (1979 early termination order). In June 1983, the Governor of Texas granted plaintiff a "pardon and restoration of full civil rights of citizenship." Plaintiff subsequently obtained a teaching certificate and, after moving to Michigan in 2003, sought employment with Lincoln Consolidated Schools. In September 2003, the school district hired plaintiff as a conditional employee. In November 2003, however, defendants terminated plaintiff's employment after they learned from an FBI criminal background report that plaintiff was convicted of aggravated robbery in Texas in 1977, contrary to his representation on a September 2003 disclosure form. The FBI background report contained no indication that the conviction had been set aside.

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After the discharge, plaintiff filed this action alleging that defendants breached his contract of employment, that the discharge violated Michigan public policy, that defendants ignored a federal rule when they failed to afford him a sufficient opportunity to counter the information in the FBI's criminal background report, and that school district superintendent, Dr. Sandra Harris, defamed him in two November 2003 letters by suggesting that he had misrepresented his criminal history. The parties filed cross-motions for summary disposition, and the circuit court granted defendants' motion on the basis that, under Texas law, the 1979 early termination order and the 1983 gubernatorial pardon had not erased the 1977 conviction to the extent that plaintiff truthfully could deny its existence on the September 2003 disclosure form. The court concluded that because plaintiff had misrepresented his criminal history, defendants properly terminated his employment. Plaintiff primarily contends on appeal that the circuit court incorrectly interpreted Texas law in finding that the 1979 early termination order and the 1983 gubernatorial pardon did not wipe out the existence of his 1977 conviction. This Court reviews de novo a circuit court's summary disposition ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Defendants sought summary disposition pursuant to MCR 2.116(C)(8) and (10), and plaintiff moved for summary disposition under MCR 2.116(C)(9) and (10). The circuit court did not cite any particular subrule in granting defendants' motion and denying plaintiff's motion. But it appears that the circuit court considered the documentary evidence submitted by the parties with their respective motions and responses and, therefore, the court effectively ruled on the motions pursuant to MCR 2.116(C)(10). See MCR 2.116(G)(5). A summary disposition motion premised on subrule (C)(10) tests the factual support of a claim. Walsh, supra. "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material facts exists to warrant a trial." Id. Near the time that plaintiff commenced his employment with the school district, he completed a disclosure form that the district presented to him. On the disclosure form, plaintiff placed a check mark next to the statement, "Pursuant to 1993 Public Act 68 and Public Act 83 of 1995, I, represent that . . . I have not been convicted of, or pled guilty or nolo contendere (no contest) to any crimes" (emphasis added). The disclosure form thereafter sets forth the following: I understand and agree that pursuant to 1993 Public Act 68 and Public Act 83 of 1995: (1) the Board of Education of the school district or governing body of the nonpublic school ("the School") must request a criminal history check on me from the Central Records Division of the Michigan Department of State Police; (2) until that report is received and reviewed by the School, I am regarded as a conditional employee; and

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(3) if the report received from the Department of State Police is not the same as my representation(s) above respecting either the absence of any conviction(s) or any crimes of which I have been convicted, my employment contract is voidable at the option of the School. [Emphasis added.] The clear and unambiguous language of the disclosure form, which plaintiff signed on September 11, 2003, thus authorizes defendants to void plaintiff's conditional employment should he misrepresent that he "ha[s] not been convicted of, or pled guilty . . . to any crimes." The analysis of this issue therefore depends on whether plaintiff had pleaded guilty or been convicted of any crimes under Texas law at the time he signed the disclosure form on September 11, 2003. The parties do not dispute the following events concerning plaintiff's criminal history. On December 14, 1977, plaintiff "was convicted in the 183rd District Court of Harris County, Texas . . . and was sentenced to serve Ten (10) years in the Texas Department of Corrections for the offense of Aggravated Robbery . . . (Penitentiary Sentence Probated)." On December 20, 1979, the 183rd Criminal District Court entered an "Early termination order of the court dismissing the cause" against plaintiff, which provided in its entirety as follows: It appears to the Court, after considering the recommendation of the defendant's probation officer, and other matters and evidence to the effect [sic] that the defendant has satisfactorily fulfilled the conditions of probation during a period of over one third of the original probationary period to which he was sentenced. Therefore, the period of probation is terminated. It is therefore the order of the Court that the defendant be and he is hereby permitted to withdraw his plea of guilty, the indictment against defendant be and the same is hereby dismissed and the Judgment of Conviction be hereby set aside as provided by law. On June 1, 1983, plaintiff received an executive order from the Governor of Texas that stated, in relevant part: Subject has been represented as being worthy of being restored full civil rights. NOW, THEREFORE, I, MARK WHITE, Governor of the State of Texas, by virtue of authority vested in me under the Constitution and laws of this State, and acting upon and because of the recommendation of the Board of Pardons and Paroles dated April 28, 1983 do hereby grant unto the said DAVID SCHIED, AKA, DAVID EUGENE SCHIED A FULL PARDON AND RESTORATION OF FULL CIVIL RIGHTS OF CITIZENSHIP THAT MAY HAVE HERETOFORE BEEN LOST AS A RESULT OF HIS CONVICTION OF THE OFFENSE ABOVE SET OUR [SIC] IN CAUSE NO. 266491.

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The parties dispute only the effect under Texas law of the 1979 early termination order and the 1983 gubernatorial pardon. The Texas Code of Criminal Procedure authorizes the entry of orders like the 1979 early termination order involved in this case. Article 42.12,

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