Summary
holding that when the circuit court had no jurisdiction to hear an appeal, res judicata did not attach to bar a second suit
Summary of this case from Desoto Gathering Co. v. HillOpinion
No. 87-301
Opinion delivered February 22, 1988
1. JUDGMENTS — CONCLUSIVENESS OF JUDGMENTS — WHERE A DECREE WAS VOID BECAUSE JURISDICTION WAS LACKING, IT WAS NOT RES JUDICATA. — Where a decree was void to the extent that jurisdiction was lacking, it was not res judicata to a subsequent action in a court of competent jurisdiction. 2. SCHOOLS SCHOOL DISTRICTS — A PROBATIONARY TEACHER'S REMEDY FOR AN ILLEGAL TERMINATION — ACTION FOR BREACH OF CONTRACT WAS NOT PRECLUDED BY AN ATTEMPT TO APPEAL THE TERMINATION TO CIRCUIT COURT. — Where the appellant had attempted to appeal his termination to the circuit court, but that court had no jurisdiction to hear the appeal, res judicata did not attach, and appellant's suit for breach of contract had never been previously asserted and was not precluded by the attempt to appeal the board's decision to circuit court.
Appeal from Montgomery Circuit Court; Gayle K. Ford, Judge; reversed and remanded.
Mitchell and Roachell, by: Clayton R. Blackstock, for appellant.
Charles E. Black, for appellee.
Joe Dale Head filed suit against the Caddo Hills School District alleging that the district terminated his contract to teach for reasons that were arbitrary, capricious and discriminatory in violation of the Arkansas Teacher Fair Dismissal Act. The district moved to dismiss the complaint on grounds of res judicata and the trial court granted the motion. Head has appealed. We reverse and remand.
Ark. Code Ann. 6-17-1510 (1987).
Joe Dale Head was a probationary teacher with the Caddo Hills School District for the school year 1979-80. In July of that year Head was notified that his contract for 1980-81 was not being renewed. Head requested a hearing before the board and the dismissal was upheld by a vote of five to none, one member abstaining.
Head appealed to the circuit court and when the circuit court upheld the action of the district as being a nonrenewal of a probationary teacher, rather than a termination, Head appealed to this court. See Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982).
While we affirmed the circuit court's dismissal of Head's appeal, we pointed out that the circuit court was clearly wrong in holding that Head's contract was not terminated. We reached the same result, however, finding that no right of appeal is given to probationary teachers under the Teacher Fair Dismissal Act, a jurisdictional requirement which the parties had not argued, but which we are obliged to raise on our own. First Pyramid Life Insurance Company v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970).
Following the issuance of the mandate in Head v. Caddo Hills School District, supra, Head filed in circuit court the suit now before us on appeal, which, as noted above, was dismissed on grounds of res judicata. That was error.
"It is well settled that where jurisdiction is lacking a decree to that extent is void and therefore not res judicata to a subsequent action in a court of competent jurisdiction." Weathers v. City of Springdale, 239 Ark. 535, 390 S.W.2d 125 (1965). See also Hendricks v. Henson, 192 Ark. 544, 92 S.W.2d 867 (1936); Kyle v. Pate, 222 Ark. 4, 257 S.W.2d 34 (1953); Restatement (Second) of Judgments, 20(1)(a) (1980); 46 Am.Jur. 2d Judgments 446 (1969).
The circuit court had no jurisdiction to hear an appeal by Joe Dale Head from the school board and res judicata does not attach by reason of that attempt. We noted as much in the dictum of Head v. Caddo Hills School District, when we said, "a probationary teacher's remedy for an illegal termination is a suit for breach of contract." Head, 277 Ark. at 486. That cause of action has never been previously asserted and is not now precluded because of a futile attempt to appeal to a court which had no jurisdiction to entertain the appeal. "That which has not been tried cannot have been adjudicated." Shaver v. Sharp County, 62 Ark. 76, 34 S.W. 261 (1896).
Reversed and remanded.