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No. 84-522
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985

PRYOR SCHOOL DISTRICT NOS. 2 & 3, BIG HORN COUNTY, MONTANA,
Appellants,

THE SUPERINTENDENT OF PUBLIC
INSTRUCTION, STATE OF MONTANA,
AND BRUCE YOUNGQUIST,

Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Jock B. West argued, Billings, Montana

For Respondents :
John W. Larson; Richard W. Bartos argued, Office of Public Instruction, Helena, Montana Davidson, Veeder, Broeder, Poppler & Michelotti; Doris M. Poppler argued, Billings, Montana
Submitted: August 221 1985
Decided: September 18, 1985

Filed: $EP lf
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

The appellant, school district, discharged the respondent, Youngquist, from his job as principal. Administrative appeals resulted in reinstatement and compensation. An appeal to District Court resulted in affirmance. All parties appeal. We affirm.
The respondent, Bruce R. Youngquist, was a "nontenured"
principa 1 employed by the appellant, Pryor School District.
He was an elementary school principal for the school year
1981 and 1982. He was the elementary and high school
principal for part of the 1982 and 1983 school year.

On December 11, 1982, the respondent had taken a group
of teachers and students to a ball game in Laurel, Montana.
He was the supervisor for the school and had responsibility
for the gate and concession receipts. On his return trip to
Pryor he was injured in an automobile accident and reported
that he would be absent from school the following Monday.

When respondent returned to school on December 14, 1982,
a confrontation took place between respondent and the school
superintendent concerning the gate and concession receipts
from the ball game. The administrative hearing at county
level resulted in a finding that this "confrontation"
occurred in the confines of the superintendent's office, was
not heard by anyone else, and what was said was reasonable
and justified in the face of the accusatory nature of the
superintendent's inquiry.

Immediately following this "confrontation" another
incident occurred where the respondent addressed the senior
class at a meeting. This meeting resulted in a physical
confrontation between the respondent and a student. The

administrative hearing at county level resulted in a finding
that the respondent acted reasonably in protecting himself
from the aggressor student.

For these two incidents, and another incident, which
occurred over a year prior, during which the respondent
allegedly spanked an elementary student, the respondent was
discharged. The administrative hearing resulting in a
finding that the spanking incident did not occur at all.

The appellant, school district, alleges that there are
"facts" not in the record that should have been evidence in
this action. All of these "facts" occurred during the
incidents for which the respondent was discharged. It is
alleged that the respondent was insubordinate, could not
control his temper, used obscenities to express his anger,
used improper language to students, was deceitful, and struck
a student in the face with a closed fist.

This case commenced when the superintendent of the
appe 1 lant school district recommended to the board of
trustees of the school district that respondent Youngquist be
discharged. The board of trustees suspended the respondent.
A later hearing resulted in discharge. The suspension and
discharge were based on the following charges:

1.
During the morning of December 14, 1982, you
were unable to control your temper, lost your
composure and were insubordinate to the
Superintendent during your discussion with the
Superintendent concerning the handling of the
concession stand and gate proceeds of the Lodge
Grass basketball game which was played in Laurel
during the preceding week. As a result of your
inability to control your temper and maintain your
composure as high school and elementary principal,
you publicly shouted obscenities at the
Superintendent. Said obscenities were done in a
public area within the hearing and observation of
the high school students which you supervise and
set an example for.


2.
That, on December 14, 1982, while in another
fit of anger, you used language that is not morally
proper nor acceptable for an individual in your
position of trust and authority, in the class room,
in the presence of the Senior class. Such language
should not be used with impressionable students.


3.
That, on December 14, 1982, during a fit of
rage and anger, you disregarded the personal safety
of a female student by striking said student with
your closed fist, in the face, and resultantly
bruising and injuring the girl and further, by
physically forcing said girl to her knees and
holding her there.


4.
That during the fa11 of 1981 you inflicted
bodily harm on a kindergarten student. That, when
questioned by the Superintendent you angrily denied
that this event happened. In your anger you
purposely and deceitfully misled the Superintendent
in that you later admitted that the incident did
happen.



The respondent appealed to the county level

superintendent. The Big Horn County superintendent was

disqualified and a superintendent from Yellowstone County was

substituted. An administrative hearing was held. The county

superintendent found that:

1.
In regard to the alleged insubordination . . . the incidences that occurred during this time were provoked by the Superintendent's imp1 ied accusations of dishonesty and Bruce Youngquist was not proven unfit or insubordinate in his discussion with the Superintendent on December 14, 1982.

2.
That in regard to . . . language used in the Senior Class meeting by Mr. Youngquist was not proven to be obscene and could not be considered morally improper or indecent under the facts and circumstances offered as proof.

3.
That in regard to . . . Bruce Youngquist acted within his statutory authority to restrain a defiant student and did what was necessary to control a volatile situation . . ..

4.
The seriousness of the spanking incident is
diluted to one of insignificance because of the one
and one half year inattention, even if the incident
did occur as alleged. I find the incident,
according to the evidence, did not occur.



The county superintendent found that there was not "good

cause" for dismissal. He ordered reinstatement and

compensation at the contract rate for time lost pending

appeal.

The appellant, school district, then appealed to the

state superintendent. The appellant assembled affidavits

from witnesses that had not testified at the county level.

The state level administrative hearing resulted in an

affirmance of the county level decision. The state

superintendent stated that the affidavits that the school

district sought to present as new evidence were not subject

to cross examination and should not be admitted as part of

the evidence or record. The state superintendent concluded

that a full and fair hearing was had at county level and that

the substantial rights of the appellant, school district,

were not prejudiced by that procedure. The state

superintendent also denied respondent's request that attorney

fees be included in costs.

The state superintendent stated in part:

A review of the affidavits submitted to this State
Superintendent for consideration reveals that the
opposing party did not have an opportunity for
cross examination in these matters, nor were they
subject to the bright light of cross examination.
Witnesses were presented on both sides of all major
issues and subjects supplemented by affidavits to
the State Superintendent. Many of the affidavits
themselves are questionably presented. Severa 1 of
the affidavits have writing on them different from
the typewriting. Others were cut and pasted
together, statements were pasted over prior
statements. Affidavits were done in haste with
liquid whiteout deleting sections of the
affidavits. The State Superintendent will not
permit the administrative appeal process to be
burdened by nonsupportive affidavits submitted
after the de novo hearing. The discretion to
submit additional affidavits or additional material
is left totally within the discretion of the State
Superintendent. See Section 20-3-107, MCA. The
State Superintendent, after reviewing the extensive
and exhaustive hearing transcript and the
documents and exhibits which were introduced at the
hearing, finds that it is not necessary to
supplement the hearing or the record with
additional affidavits and statements where opposing

counsel does not have the opportunity to question
the same.

The incident regarding the female pupil was
described in exhaustive testimony by many parties.
After examination and cross-examination, the two
principal parties to the altercation, the pupil and
Respondent, gave consistent testimony. Their
description of the incident coincided very closely.
The other witnesses also testified to the best of
their ability, and the County Superintendent as the
trier of fact spent fourteen hours listening to
this testimony. His findings, again, clearly set
out his reasons for this decision.

An appeal to the District Court resulted in an
affirmance of the administrative decisions. The District
Court concluded that the state superintendent correctly
reviewed the county level decision and correctly used
discretion in not allowing additional evidence. The District
Court concluded that there was ample, reliable, probative,
and substantial evidence present at county level.

All parties appeal. The appellant school district
appeal from the denial by the District Court to order
additiona 1 evidence be taken. The respondents and
cross-appellants, state superintendent and Youngquist, appeal
from an alleged change in the award, and Youngquist, alone,
raises matters concerning attorney fees.

Four issues are presented:

I-. Whether the District Court erred in denying appellant's motion for remand to the county superintendent for taking additional evidence.
2.
Whether the District Court erred in modifying the
county and state superintendents' award to Youngquist.


3.
Whether attorney fees should be assessed as
additiona 1 damages.



4. Whether the contingency fee agreement for attorney
fees is reasonable.
The first issue is raised by the appellant school district. It is whether the District Court erred in denying appellant's motion for remand to the county superintendent for taking additional evidence.
The appellant, school district, argues that because the respondent, Youngquist , changed his version of the facts surrounding his confrontation with the student the appellant was "surprised" at the county level hearing. It is argued that this is good cause for not having presented certain material evidence. The appellant argues that fairness and due process warrant a remand to county level.
The respondents, state superintendent and Youngquist, argue that the county level hearing was conducted in compliance with administrative rules. It is argued that each party had a full opportunity to present evidence and conduct
cross  examination.  Respondents  argue  that  no  remand  was  
justified  or  required.  
All  parties  have  made  some  reference  to  Yanzick  v.  
School District No.  23  (Mont. 1982), 641 P.2d  431,  39 St.Rep.  

191. In Yanzick, a tenured teacher was discharged for lack of fitness and moral values. The teacher had been discussing abortion with and displaying fetuses to young students in an indiscrete manner and without authority. Although Yanzick sets forth many legal principles that generally apply to the case now before the Court, it has little direct bearing on the issue presented here.
All parties correctly state that Yanzick held that in the appellate levels of an administrative hearing, including judicial review, there can be no substitution of judgment for
the determination ma-de at the county level. However, as the

appellant, school district, points out, substitution of
judgment is not an issue here. The issue here is whether
additional evidence should be received.

Upon application prior to a proceeding in judicial
review of an administrative determination the District Court
may order that additional evidence be taken before the
agency. This may occur if the District Court is satisfied
that the additional evidence is material and that there were
good reasons for failure of a party to present it in the
proceeding before the agency. Section 2-4-703, MCA.

The appellant, school district, did apply for leave to submit additional evidence pursuant to S 2-4-703, MCA. Memoranduma pertaining to this application were submitted by both parties. The affidavits that the appellant sought to introduce were also before the District Court. The District Court denied the application without stating reasons why.
However, the District Court did ultimately find and set
forth in its conclusion that the state superintendent
correctly used its discretion when previously denying
appellant's request to submit additional evidence. The state
superintendent had found that the affidavits were not subject
to cross-examination and were of questionable quality with
varying type print, cut and pasted statements, and use of
"whiteout." The state superintendent found that the
affidavits were unnecessary to supplement the thorough
hearing at county level.

The District Court did not err in denying the
appellant's motion to order receipt of additional evidence.
The county-leve 1 hearing wa s a thorough hearing.
Eyewitnesses to the incidents testified and the testimony was

consistent. Based on the record the evidence supports the county level decision and the state and District Court conclusions on this issue.
Part of the evidence that the appellant, school district, sought to submit was a statement made by respondent, Youngquist, to Harvey Sorrells, a deputy sheriff of Big Horn County. The statement allegedly included an admission that Youngquist had struck the student. The remaining affidavits were mostly from persons that had heard statements by Youngquist after the incidents for which he was discharged. All the parties to this action were represented by attorneys. They knew the evidence needed to establish their respective burdens. All of the evidence was available prior to hearing.
We hold that the District Court did not err in denying the appellant's motion to order receipt of additional evidence. Furthermore, we believe that the requested evidence would add little to the already thorough hearings.
The second issue is raised by the respondents and cross appellants, state superintendent and Youngquist. It is whether the District Court modified the county and state superintendent's award and, if so, did it err in doing so.
The appellant, school district, argues that the county superintendent' s award applies only to the 1982-1983 school year. They argue that the termination of Youngquist's contract was for all future years beyond the 1982-1983 controversy. It is argued therefore that the District Court
did  not  modify  the  award  but  affirmed  the  county  level  
decision.  
The  respondents  argue  that  the  county  level  hearing  
resulted  in  reinstatement  and award  at  the  contract  rate  for  

time pending all appeals and that "contract rate" includes
salary and contractual fringe benefits. They argue that the
state superintendent affirmed this decision and award. They
argue that the District Court erroneously modified the award
to include only salary for the 1982-1983 year. They argue
that the award due is salary and fringe benefits for all time
pending all appeals and reinstatement at this time too. They
argue that Youngquist was never terminated and his contract
and statutory right to this job still exists.

The issue here centers around what the award at county
level actually was and what it should be now. The county
superintendent concluded that:

Youngquist is entitled to reinstatement as principal . . . and he must be compensated at his
contract  amount  for  the  time  lost  during  the  
pending appeal.  
This order  was  made  February 18, 1983, approximately one  

month after Youngquist had been terminated as principal. The appeal to the state superintendent resulted in the following affirmance: Respondent requested . . . in addition . . . payment of attorney fees.. . . Such attorney fees request is denied and the County Superintendent's
decision is affirmed.
This decision was made September 28, 1983, approximately one
month into the school year following the one during which
Youngquist wa.s discharged.

Judicial review of the agency action resulted in the following order: "the decision of the Superintendent . . . be and hereby is, affirmed." This order was issued June 20, 1984, after the completion of the school year following the year in which Youngquist was discharged.
The order by the District Court was accompanied by a
conclusion of law which stated:

[Tlhe principal should be reinstated and his back pay made to him at his contract rate plus increments for the time lost during the pending appeal to date.
The appellants moved to have this conclusion amended by striking "plus increments for the time lost during the pending appeal to date." It was argued that this phrase went beyond the intended order. After hearing on the matter the District Court granted the motion.
Then the District Court issued judgment in the case. The judgment affirmed the state superintendent, reinstated Youngquist, and set forth the amount due to Youngquist, $14,242.03, set out as follows:
$12,579.24 salary for 1982-1983 school year


849.80 social security contribution
812.99 teacher's retirement contribution In addition Youngquist was to receive 10 percent interest on
the salary to date and $804.25  for costs.  
The  proper  award  in  this  instance  is  codified  in  S  
20-4-207  (2), MCA:  
If the county superintendent . . . determines that the dismissal . . . was made without good cause, he shall order the trustees to reinstate such teacher and to compensate such teacher at his contract amount for the time lost during the pending of the appea1.  
However,  the  years  for  which  the  award  applies  is  

affected by the following statute applying to nontenure
teachers:
20-4-206. Notification . . . (1) The trustees shall provide written notice by April 15 to all nontenure teachers who have been reelected. Any nontenure teacher who does not receive notice of reelection or termination shall be automatically reelected for the ensuing school fiscal year.
Here, Youngquist is a nontenured teacher. It is clear
that the trustees elected to terminate his contract and, by
the schaol district's pursuit of the matter on appeal, it is also clear that Youngquist would not be re--elected for subsequent years. We hold that the District Court properly limited the award to the 1982-7983 school year.
The third issue is raised by the respondent, Youngquist. It is whether attorney fees should be assessed as additional damages. Appellants argue that this issue cannot be raised on appeal for the first time. It is also argued that absent an agreement or statutory grant attorney fees are not allowable.
The respondent recognizes that attorney fees are not usually allowed unless there is an agreement or statutory grant. The r~spondent argues that attorney fees should be allowed in this case to make him whole. It is argued that he should not be forced to absorb the cost of enforcing his right to reinstatement. The respondent argues that bad faith, delay, and an unlawful discharge justify an award of attorney fees.
The District Court made no direct ruling on attorney fees. The appellant argues that the issue was not before the District Court at any time. The state superintendent had ruled that attorney fees were not to be awarded. The respondents did not appeal that ruling. The issue was not raised in District Court and it need not be considered by this Court. Lima School District No. 12 v. Simonsen (Mont. 1984), 683 P.2d 471, 477, 41 St.Rep. 944, 951.
The general rule on attorney fees is that absent a specific contract provision or statutory grant, the prevailing party is not entitled to an award of attorney fees either as costs of the action or as an element of damage. Martin v. Crown Life Insurance Company (Mont. 1983), 658 P.2d 1099, 1104, 40 St.Rep. 216, 221.
We hold that whether the issue is properly before this Court or not the general rule would apply. Attorney fees are not allowed.
The last issue is whether the contingency fee agreement
for attorney fees is a reasonable basis for the fees awarded.

4F

Because of our holding on the third issue this matter need not be addressed. Affirmed.
We concur: d
Justic

7

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