Wards Cove Packing Company, Inc. v. Antonio Petitions and Briefs

    320 Ala.

state. Financial Investment Corp. v. Tuka-
batche Arca Council, [nc.,353 So.Zt 1389

(Ala.l9?O. Moreover, terms should be con-
strued in pari materia and a construction
adopted which gives effect to all the terms
used. Hall v. Gulledge, 277 Ala. 580, 173

So.Zt 571 (1965).

This Court's holding today is not in con-
flict with Gulf Oil Corp. v. Decse,275 Ala.
178, 153 So.2d 614 (196:|), cited by the Bank.
There, this Court was confronted with a
trespass action to recover for injury to land.
The opinion quoted with approval a section
of the act creating the State Oil and Gas

Board which stated that the portion of pro-
duction allocable to each tract in a pooled

unit is to be considered as if it had been
produced from a well actually on that tract.
This assertion does not suggest a different
result in this case. Shut-in royalty pay-
ments were not at issue, nor were there any
lease provisions to be interpreted in that
case. It simply held that, in a trespass
action, the owner of land in a "pool" had no

right to complain of the lessee's entry upon
his land for purposes of production although
the oil well itself was actually located on
adjacent lands within the "pool".

For the foregoing reasons, this cause is
due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-
MON and EMBRY, JJ., concur.

Despina VODANTIS

Y.

BIRMINGHAM BOARD OF
EDUCATION et al.

No.78-209.

Supreme Court of Alabama.

July 20, 1979.

Former school district public informa-
tion specialist sued for wrongful termina-

3?3 SOUTHERN REPORTE& 2d SERIES

tion of employment. The Circuit Court,

Jefferson County, James O. Haley, J., ren-

dercd summary judgment in favor of the

board of education and former employee

appealed. The Supreme Court, Bloodworth,

J., held that where the superintendent of
education recommended the employee's dis'

missal and that recommendation was subse-

quently approved by the board, the dismiss-

al was a valid and effective act, complete in

itself, with no reference to or attempted

ratification of a prior dismissal, voted by

the boand without any recommendation

from the superintendent of education.

Affirmed.

l. Schoole Fl4f(2)
Superintendent of education has no

power to dismiss, but may only recommend

dismissal to board of education; similarly'

the board, acting alone, may not dismiss,

but may do so only upon recommendation

of superintendent. Code of A1a.1975,

ss 16-11-17, 16-12-16.

2. Schoolg el4l(5)
Where superintendent of education rec-

ommended employee's dismissal and that
recommendation was subsequently aP

proved by board of education, dismissal was

valid and effective act, complete in rtself,

with no reference to or attempted ratifica-
tion of prior dismissal, voted by board with-

out any rccommendation from superintend-

ent of education. Code of A1a.1975,

ss 16-rr-1?, 16-12-16.

John F. Kizer, Jr. and James N. Brown'

III, Birmingham, for appellant.

William G. Somerville, Jr., kwis W'

Page, Jr. and James E. Simpson, Birming'
ham, for appellees.

BLOODWORTH, Justice.

This is an appeal from summarY judg;

ment in favor of the Birmingham Board of

YOD

Fxlucation (Boad) in Vs"'
wrongful termioation of e

affirm.

The appellant had work
as a public information sE
uary 19?5. She rras not
not work as a teacher. (

1976, during public budg
Board voted to eliminate a
ment without any recon
the superintcndent of ed

quently, on December ?7,
ten recommendation of th
the Board voted to termin
employment effective Janr

The writtcn nReommen(
perintendent, dated Dec,
stated: "That the employt
pina Vodantis and John N
nated effective January
minutes of the Deeember I

reflect that the followi
passed by a 4-1 vote: "Tl
Miss Despina Vodantis, M
and Mrs. Audrey Farrow
fective Januar5r 31, IYI?.'
neasoru given nor any n
meetings or actions, eith
mendation or the motion.

Appellant then brougl
damages for breach of co
lully terminating her empl
al court panted summary
uoard. This appeal follor

On appeal, appellant c
elimination of her departr
et hearing effectivety ter
Ptoyment at that time, an,
was void because it was I
r€commendation of the r
edueation, a srrte qua n
contends that the Board's
Par ineffective as an attet
of a void act.

Initially, we recognize
n]t a t"rcher; thercforc
Jons resp.cting dismissa
tnapplicable. The resolu
tlePends upon whether
r,ode [9?5, SS lLt2-16 arrrt the statutes qovemi
Dere ?ollowed.



IES

ent. The Circuit Ceup1,
, James O. Haley, J., ren-
udgment in favor of the
on and former employee
preme Court, Bloodworth,
rrc the superintendent of
Lended the employee's dis-
commendation was subse_
by the board, the dismiss-
effective act, complete in
rference to or attempted
prior dismissal, voted by
ut any recommendation
:ndent of education.

"2)Lt of education has no
rut may only recommend
of education; similarly,
alone, may not dismiss,
ly upon recommendation
t. Code of Ala.19?5,
z-16.

r)
tendent of education rec-
ee's dismissal and that
was subsequently a1>

education, dismissal was
r act, complete in rtself,
lo or attcmpted ratifica-
sal, voted by board with-
lation from superintend-
. Code of AIa.19?5,

-16.

'. and James N. Brown,
rr appellant.

Lerville, Jr., Lcwis W.
rs E. Simpson, Birming-

Justice.

I from summary judg-
e Birmingham Board of

The appellant had worked for the Board

as a public information specialist since Jan-
uary 19?5. She was not certified and did
not work &s a t€acher. On December 13,

19?6, during public budget hearings, the
Board voted to eliminate appellant's depart'
ment without any recommendation firom

the superintendent of education. Subse-

quently, on December n,1976, upon writ-
ten recommendation of the superintendent,
the Board voted to terminate Ms. Vodantis'
employment effective January 31, 197?.

The written reeommendation of the su-

perintendent, dated December 2l'1, 19?6,

stated: "That the employment of Ms. Des-

pina Vodantis and John Northrop be termi-
nated effective January 31, 1977." The

minutes of the December 27 Board meeting
reflect that the following motion was

passed by a 4-1 vote: "The employment of
Miss Despina Vodantis, Mr. John Northrup
and Mrs. Audrey Farrow be terminated ef-
fective January 31, 1977." There were no

reasons given nor any reference to prior
meetings or actions, either in the recom-

mendation or the motion.

Appellant then brought suit, claiming
damages for breach of contract by wrong-
fully terminating her employment. The tri-
al court granted summary judgment for the
Board. This appeal followed.

On appeal, appellant contends that the
elimination of her department at the budg-
et hearing effectively terminated her em-
ployment at that time, and that such action

was void because it was taken without the
recommendation of the superintendent of
education, a sine qua non. She further
contends that the Board's subsequent action

was ineffective as an attempted ratification
of a void act.

Initially, we recognizr that appellant is

not a teacher; thereforne, the Code prtvi-
sions respecting dismissal of teachers are

inapplicable. The resolution of this ease

depends upon whether the provisions of
Code 19?5, SS f6-P-f6 and 16-11-l? which
are the ststut€s governing this situation,
were followed.

of education
board and shall
for dismigsal

. employees of the
. neoommend them

. ..tt

Section 16-11-1? provides that "[tJhe city
board of education may susPend

or dismiss any emPloYee 80 aP
pointed on the written recommendation of
the city superintendent of schools for immo'
rality, misconduct in office, incompetency,

willful neglect of duty or when, in the

opinion of the board, the best interests of
the schools may require .."

tll From these two sections, it is evi-

dent that joint action is necessary to dismiss

an employee in appellant's position. The

superintendent has no power to dismiss; he

may only recommend dismissal to the board

of education. Marsh v. Birmingham Board

of Fiuettion,349 So.2d 84 (A1a.1977). Sim-

ilarly, the board, acting alone, may not dia-

miss, but may do so only upon the recom-

mendation of the superintendent' Arm'
strcng v. Board of Fiuution, 430 F.Supp.

595 (N.D.Ah.r97?).

tzl It is clear from the record that ap
pellant was properly dismissed according to
the applicable ststutes. The superintend'
ent recommended her for dismissal in writ-
ing at the December 27 meeting, and the

Board, acting upon that recommendation,

approved the dismissal. Our holding on this
point is in complete accord with the holding
of the federal district court in Nortfuop v.

Kirby, 454 F.Supp. 698 (N.D.A1a.1978), a

suit filed by appellant'g fellow employee

Mr. Northrop who was dismiased in the

same manner and at the same time.

The contention that the Board's action on

December tl was merely an attempted but
ineffectual ratification of a prior void dia'
missal lacks merit. Under Code 1975,

S 16-13-143, s school budget may not be'
come final unless it is prepared by the eu-

perintendent, and no changes may be made

except by the superintendent, with board

VODANTIS v. BIRMINGHAM BD. OF ED.
cltc rt, AIL' t7t sord t20

Ala. g2l

Fxlucation (Board) in Ms. Vodantis' suit for Section lG12-16 provides that "[tJhe city
wrongful termination of employment. We superintendent of achools ahall nominate in

affirm. writing for appointment by the city board



922 Ala.

approval. Assuming, for the aake of argu-
ment, that the action of the Board in voting
to eliminate appellant's department at the
December l8 budget hearing effectually,
although indirectly, terminated her employ-
ment, and that this termination was void
because it was not recommended by the
superintendent, thic asaumption does not
aid appellant. The subsequent Deeember

2? dismissal was a valid and effective act,
complete in itself, with no reference to or
attcmptcd ratification of any prior act tak-
en by the Board. If appellant was not
dismissed on December 13, she clearly was

on December 27.

The cases citcd by appellant to support
her contention are inapposite. The alleged

void action which was ineffectively ratified
in Board of F,clucation v. Baugh, ?.40 Ala.
391, 199 So. 822 (1941), was found to be

va.lid upon remand and a second appeal.

Baugh v. Board of Eclucation, ?A Ala. 52,
14 So.2d 508 (1948). Moreover, it dealt with
tcnurcd teachers. Both A/exander v. Ala-
bama Statn Tenurc Commission, SSS So.2d

l0tl2 (Ala0iv.App.l978), and, Holman v. Al-
abama State Tenurc Commission, S6S So.Zt
101 (Ala.Civ.App.), cert. denied, 363 So.2d

10il (Ala.l978), ane cases involving letten of
resignation submitted by tenured teachen,
These letters werc withdrawn before any
action was taken by the respective boards

of education. The attempted acceptance of
the resignations by the superintendent or
assistant superintendent, acting alone, and

any subsequent ratification by the boards

after withdrawal of the letters wene cor-
rectly held ineffective. Finally, in Arm-
strcng v. Board of Education, supra, there
was no rccommendation of dismissal made

by the superintendent, and therefore the
attempted dismissal by the board acting
alone was propefly held ineffective.

It is thus that we must conclude that this
cause is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-
MON and EMBRY, JJ., concur.

373 SOUTHERN REPORTER, 2d SERIES

Ex perte GUERDON INDUSTRIES,
INC., et al.

In re Mrr. BetB Merahall et al.
Y.

Guerdon Induetrler, Inc., et al.

78-60.

Supreme Court of Alabama.

July 20, 19?9.

In an original proceeding, defendants

in personal injury and wrongful death ac'

tiona sought writ of mandamus requiring

that they be furnished access to all rtcords

and information concerning a juvenile pro-

ceeding and investigation of a minor child.

The Supreme Court, Embry, J., held that

trial court, which went to great length to

determine whether information sought by

defendants would aid them in preparing

their defense, did not abuse its discretion by

issuing a protective order denying defend-

ants access to records and information
sought.

Petition denied.

l. Pretrial Procedure 6337, 373

In action for wrongful death and per'

sonal injuries against manufacturer, distrib-

utor and retail vendor of a mobile home

which ca'lght fire and burned a minor child

who was inside, trial eourt, which went to

great lengths to determine whether infor'
mation sought by defendants would aid

them in preparing their defense, did not

abuse its discretion by issuing a protective

order denying defendants access to rtecords

and information concerning a juvenile pro'

ceeding and investigation of minor, wh9

was not a party to any of the lawsuits and

who was not claimed by any of the parties

to be a witness. Rules of Civil Procedurc'

rules 26(c), 3(d); Code of Ala.l975, SS 12-

t5-100, 12-15-101.

I

2. Pretrial Procedure
Trial court has bn

and limit discovery anr

tion relating to limita
covery is whether tria
broad discrction. Rule
rules 26(c), 30(d); Code

15-100, u-15-101.

3. Appeal and Error (
Supr.eme Court wil

resting in sound discr
unless there is a clear
tion.

W. F. Horsley of Sar
ley & Pettey, Opelika,
don Industries, Inc.

Hill, Hill, Carter, Fr

H. E. Nix, Jr., Montgt
Diversified Financial (

Hoyt W. Hill of V
Umbach & Herndon,
dents.

EMBRY, Justiee.

Petitioners, Guerdon
Diversified Financial
this court to issue an ,

damug requiring thc
f,iright, Jr., Judge o
C,ounty, to order the
Court, the Lee County
stons and Security, th
partment, and the Ea
hensive Mental Heslth
Petitioners all files ar
to a juvenile investigr
eonceraing a minor
name), and to anEwer
ing the investigation
tleny the petition.

Petitioners are the
utor and retail vendr
mobile home which ca
Ar a rcsult, plaintiffs,
of 81., filed seven sui,
cleiming almost five n
{et for wrongful deans. Tlre issue is wh

t'
f
j..

T

I*-r
g
t

;