                                   No. 85-424
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1986




HARVEY D. HURTT,
                Plaintiff and Appellant,


SCHOOL DISTRICT NO. 29, BIG HORN
COUNTY, MONTANA,
                Defendant and Respondent.




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 Appellant:
                 Felt   &   Martin; James D. Walen, Billings, Montana

         For Respondent:
                 Smith La.w Firm; Chadwick H. Smith, Helena, Montana




                                       Submitted on Briefs: March 14, 1986
                                         Decided:       August 1, 1986


Filed:     Ati~..1~~~i


                                                    0


                              &#
                               a-      Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


      Harvey Hurtt appeals the judgment of the District Court,
Thirteenth        Judicial    District,    holding    that    he    was    not
entitled to recover from the school district for breach of
contract and failure to follow statutory notice and hearing
requirements.
     We     affirm    in part, reverse in part             and remand      for
determination of damages.
     Appellant raises four issues on appeal:
      (1) Whether the contract for the 1979-1980 school year
between Hurtt and the school district was fully performed.
      (2) Whether the school district was required to give
notice of non-renewal of appellant's 1980-1981 contract, and
whether failure to give notice resulted in the automatic
renewal of that contract.
      (3) Whether       any    damages    awarded    for     the    1980-1981
contract should be           reduced by    the amount of retirement,
unemployment benefits and work study wages.
      (4)     Whether attorney's fees and statutory penalties
should be assessed as additional damages.
     On August 30, 1979 the respondent school district hired
appellant Hurtt as the administrator of the district.                      The
contract     between    the    parties    described    the    position     as
"Superintendent/Principal."          The school district indicated
the duration of the contract was "for the school term of two
hundred     and    twenty days    and     7 pupil-instruction        related
days. "     The contract did        not indicate any beginning or
termination        dates.      Hurtt's     compensation       was    set   at
$20,000.00 salary plus a housing allowance.
     Appellant acted as both superintendent and principal
throughout the 1979-1980 school year.      Instruction for that
school year ended May 30.     During a school board meeting on
June 4, 1980, Hurtt notified the trustees that he believed
his 1979-1980 contract would be completed June 10, 1980.      He
based this conclusion upon a time report which he presented
to the board.      The time report indicated he had worked 26
days in addition to instruction and instruction-related days.
The additional time was used by attending ten school board
meetings that had lasted past midnight and by working 16
Saturdays and Sundays on school business.
     The trustees voted to reject Hurtt's time report and
decided to contact the county attorney for an opinion to
resolve the issue of when performance under the contract
would be completed.       The trustees asked Hurtt to stay on
until the opposing contentions relating to the contract could
be resolved.     Hurtt indicated he would be willing to stay on
and that he would negotiate for either compensatory time or
added compensation.     The trustees then voted to continue the
meeting in executive session.    When they returned to the open
meeting at approximately 1:30 a.m.      on June 5, they orally
informed Hurtt that his contract would not be renewed for the
1980-1981 school year.     This was the first time the trustees
had discussed renewing or not renewing Hurtt's contract.
They gave no reasons for their decision.
     On   June   6,   1980 the board   requested by   letter the
opinion of the county attorney.    Hurtt was not advised of any
opinion from the county attorney, nor did the board discuss
the dispute with Hurtt, prior to June 11, 1980.            Hurtt
continued on the job through June 11, 1980 and moved from the
school district that day to look for other employment.
        The county attorney never issued an opinion as to the
duration of the contract.      No written notice was ever sent by
the school board to Hurtt informing him that his contract for
the     1979-1980   school year    was    terminated, or        that   his
contract would not be renewed for the 1980-1981 school year.
On the advice of counsel, the board did send Hurtt notice
that he would not be offered a contract for the 1981-1982
school    year.      The   board   paid   Hurtt    $17,636.54    salary,
$1,250.00 housing allowance and $113.64 unused sick leave
under the 1979-1980 contract and nothing thereafter.
      Hurtt sued the school district for alleged breach of the
1979-1980 contract and for failure to timely notify him that
his contract would not be renewed for the 1980-1981 school
year.     The District Court found as a matter of law that the
term 220 days meant 220 week days, that Hurtt himself had
breached the 1979-1980 contract, and that he was not entitled
to notice of non-renewal.
        The   first issue presented on appeal is whether the
1979-1980 contract was fully performed.           There is no dispute
that Hurtt left Wyola June 11, 1980, leaving unfinished work
behind.       We will not disturb the District Court's findings
and conclusions when they are adequately supported by the
evidence.       Bartel v. State    (Mont. 1985), 704       P.2d    1067,
1076, 42 St.Rep. 1, 10.
      Appellant presents a second issue:          Whether his contract
for the 1980-1981 school year was automatically renewed by
operation of law, because the school board failed to notify
him in writing before April 15, 1980 that his, contract would
not be renewed for 1980-1981 school year.
      The resolution of this second issue presented on appeal
depends on whether Hurtt is a Superintendent, subject to
termination without notice under S 20-4-401(3), MCA, or, a
Principal entitled to notice under S 20-4-206 (1) MCA, which
provides that " [Tlhe 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."                     The School District
contends Hurtt served as superintendent and is entitled to be
treated only as a superintendent.                   Hurtt responds that he
served in both a superintendent's and principal's capacities.
      We   hold   that    Hurtt was       a    principal      as well       as   a
superintendent and was therefore entitled to the statutory
processes    regarding non-renewal             of    a   principal's    and      a
superintendent's contract.
      Hurtt's     employment      contract     titled      his   position        as
~uperintendent/Principal. This title does not indicate which
duties Hurtt would perform, or how much time Hurtt would
spend under each part of his title.                  However, the language
clearly indicates Hurtt would be required to perform both
capacities.       Where    language of a contract is clear and
unambiguous on its face, it is the duty of the court to
enforce it as the parties made it.              Wortman v. Griff (1982),
200 Mont. 528, 651 P.2d 998, - - S 28-3-201, MCA.
                             see also                                        The
language clearly indicates that Hurtt was both a principal
and a superintendent.          For us to hold that he filled only one
of those positions would be to impermissibly rewrite the
contract between the parties.             Lemley v. Bozeman Community
Hotel Co.     (1982), 200 Mont.         470, 651 P.2d        979; Herrin v.
Herrin (1979), 182 Mont. 142, 595 P.2d 1152.
      This meaning        of   the     contract is buttressed          by    the
applicable statutes.           School trustees are elected officials
with    the   duty   to    employ   and   dismiss   administrators    as
provided by Title 20, MCA.          Sections 20-3-324 and 20-3-361,
MCA.    Section 20-4-401(1), MCA, provides that the trustees of
a high school district may join with the trustees of the
elementary district where the high school is situated to
jointly employ a superintendent.            As in the case of many
small schools, the Wyola trustees wished to hire only one
administrator.       However, 5      20-4-403, MCA, allows     school
districts, in lieu of hiring a superintendent, to employ a
principal who shall perform the duties of a principal and a
district superintendent.       That statute provides:
       (1) Whenever the trustees of a district employ
       and appoint a school principal but do not employ
       and appoint a district superintendent, such
       principal shall perform the duties of the a
       district   superintendent   as   prescribed   in
       subsections (4), (5), (6), ( 7 ) , and (8) of
       20-4-402 and shall have general supervision of
       such school and personnel assigned to such
       school.
       (2) If granted authority by the board of
       trustees, a school principal in a district that
       does employ and appoint a district superintendent
       may suspend for good cause any pupil of the
       school where the principal is employed.
We must assume Hurtt was hired pursuant to 55 20-4-401 and
20-4-403,     MCA,   and     therefore    was   both   principal     and
superintendent.
       Section 20-4-401 (3), MCA, sets out the powers of school
board trustees to terminate a superintendent's employment.
That sub-section, in relevant part, provides:
       [A superintendent's] contract shall be for a term
       of not more than 3 years, and after the second
       successive contract, the contract shall be deemed
       to be renewed for a further term of 1 year from
       year to year thereafter unless the trustees shall,
       by resolution passed by a majority vote of its
       membership, resolve to terminate the services of
       the district superintendent or the county high
       school principal at the expiration of his existing
       contract.
     While Hurtt, in his capacity as a superintendent cannot
complain that his employment was unlawfully terminated, he
also served as a principal and termination of his employment
in that capacity must follow statutory procedures outlined
for principals.
     We now turn to the statutes applicable to a principal.
Section 20-1-101 (11), MCA, provides, "for the purposes of
this title, any reference to a teacher shall be construed as
including a principal as hereindefined."    The same subsection
defines principal as "any person who holds a valid class 3
Montana teacher certificate with an applicable principal's
endorsement and who has been employed by a district as a
principal."    Hurtt held such a certificate and was hired as a
principal.
     Because Hurtt was a principal, the provisions of S
20-4-206, MCA, apply to the nonrenewal of Hurtt's contract.
That statute, in relevant part, provides:
     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 ensuring school
     fiscal year.


    When the trustees notify a nontenure teacher of
    termination, the teacher may within 10 days after
    receipt of such notice make written request of the
    trustees for a statement in writing of the reasons
    for termination of employment.      Within 10 days
    after receipt of the request, the trustees shall
    furnish such statement to the teacher.
     Under    the   statute nontenure principals must   receive
written notice from the trustees by April 15 that they will
not be re-elected for the following school year.     If notice
of termination is timely received the principal can request
and shall receive a written statement of the reasons for the
termination.     Hurtt did not receive timely notice, therefore
he had been reelected for the 1980-1981 school year on April
16, 1980.     In order to terminate that 1980-1981 contract the
trustees    needed       to   comply   with     20-4-207, MCA,   which
provides for dismissal of a teacher under contract.                The
trustees did not comply with that statute.
    Hence, we hold that Hurtt is entitled to damages for
breach of the 1980-1981 contract, subject to mitigation of
damages, but is not entitled to damages stemming from the
1979-1980 contract.
    The third issue presented concerns the measurement of
damages awarded under the 1980-1981 contract.               The trial
record    reveals    a    finding by     the   court relating to   the
measurement of Hurtt's damages.           We remand this issue to the
District Court for determination in light of Wyatt v. School
District No. 104 (1966), 148 Mont. 83, 417 P.2d 221.
     Hurtt also seeks attorneys fees.             We hold an award of
attorneys fees is not proper in this case because there is
not specific applicable contract provision or statutory grant
of attorneys fees.            -
                              See,   Pryor School v. Super. of Publ.
Instruction (Mont. 1985), 707 P.2d             1094, 1098, 42 St.Rep.
1405, 1413.
     This case is remanded to the District Court for further
proceedings consistent with this opinion.




We Concur:



         Chief Justice
Justices
Mr. Chief Justice J. A. Turnage dissenting:
      I respectfully dissent from the majority opinion and
would affirm the District Court.
      The District Court Finding of Fact Nos. 5 and 18 state:
           5. That on August 30, 1979, Plaintiff
           and Defendant school district, through
           its Board of Trustees, executed a writ-
           ten contract, prepared by Defendant,
           whereby Plaintiff was employed to super-
           vise the school of the Defendant dis-
           trict for the school term of 1979-1980,
           consisting of 220 days and seven (7)
           pupil instruction related days, for a
           total compensation of $20,000.00, pay-
           able over a 12-month period, plus a
           housing allowance of $125.00 per month.
           18. That Plaintiff testified that he
           would have accepted the job for the
           1980-1981 school term, had it been
           offered to him, but he made no request
           of the school board, nor did he notify
           the Defendant that he would so accept,
           or that he in fact wanted it. Plaintiff
           left Wyola on June 11, 1980, leaving his
           forwarding address, and leaving several
           reports and applications for funds
           unfinished.
      The District Court's Conclusion of Law No. 1 states:
           1. That Plaintiff breached and did not
           fully perform his contract with the
           Defendant for the school year 1979-1980
           in that he performed only 193 of the
           required 227 days of service; that
           Plaintiff was not entitled to a day's
           credit for service performed on Satur-
           days or Sundays during the school year,
           or for a day's credit for school board
           meetings that extended past midnight;
           that such interpretation was not intend-
           ed by the contracting parties and was
           not later approved by the Defendant.
      The first issue presented on appeal is whether the
1979-1980 contract was fully performed.   I do concur with the

majority in their disposition of the first issue as expressed
by the majority:
           The first issue presented on appeal is
           whether the 1979-1980 contract was full-y
           performed.   There is no dispute that
           Hurtt left Wyola June 11, 1980, leaving
           unfinished work behind.            We will not
           disturb the District Court's findings
           and conclusions when they are adequately
           supported by the evidence.            Eartel v.
           State (Mont. 1 9 8 5 ) , 7 0 4 P.2d 1 0 6 7 , 1 0 7 6 ,
           42 St.Rep. 1, 1 0 .

      This issue and its disposition as articulated by the
majority is dispositive of the entire case.
      Appellant breached        his    contract with        respondent by
failing to complete his obligation to perform 2 2 7 days ser-
vice and performed only 1 9 3 days service and in leaving his
employment without completing several reports and applica-
tions critical to the interest of the school district.                   He
clearly breached his contract and is entitled to no further
notice of its non-renewal.
      The judgment of the District Court should be affirmed.




Mr. Justice John Conway Harrison and Mr.                   Justice L .   C.
Gulbrandson:
      We join in the foregoing dissent of Mr. Chief Justice
Turnage.
