                                  Cite as 2017 Ark. App. 184


                  ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                        No. CV-16-845



KIM HALL                                           Opinion Delivered: March   29, 2017

                                 APPELLANT APPEAL FROM THE NEVADA
                                           COUNTY CIRCUIT COURT
V.                                         [NO. 50CV-14-5]


PRESCOTT SCHOOL DISTRICT                           HONORABLE DUNCAN
                                                   CULPEPPER, JUDGE
                                    APPELLEE
                                                   REVERSED AND REMANDED



                         RAYMOND R. ABRAMSON, Judge

        Appellant Kim Hall appeals the order of the Nevada County Circuit Court awarding

 summary judgment to the Prescott School District (the District). The core of this case is

 whether teaching prekindergarten (pre-K) qualifies as performing the duties of a full-time

 teacher under Arkansas Code Annotated section 6-17-2403(c)(3)(A) (Repl. 2015). We hold

 that the circuit court incorrectly awarded summary judgment because, in answering the

 question of what constitutes a full-time teacher, the circuit court improperly made a factual

 finding regarding the material fact that is in dispute in this case. Accordingly, we reverse and

 remand this case for further proceedings consistent with this opinion.

        On July 28, 2011, Hall entered into a teacher’s contract with the District to be

 employed as an elementary school teacher for the 2011–2012 school year. When she signed

 the contract, the superintendent of the District gave her credit for seven years of teaching
                                Cite as 2017 Ark. App. 184

experience beginning in 1998 but declined to give her credit for six years of teaching

experience from 2005 through 2011. 1 Her contract with the District was renewed May 16,

2012 for the 2012–2013 school year. On February 5, 2014, Hall filed her complaint against

the District in the Nevada County Circuit Court alleging that the District had failed to pay

her based on her years of teaching experience in accordance with the minimum-salary

schedule, as required by Arkansas Code Annotated section 6-17-2403. The District filed a

timely answer to the complaint on March 3, 2014.

       On January 15, 2016, Hall filed her motion for summary judgment and brief in

support thereof. Attached to her motion was her affidavit, which delineated her work history

from 1998 through 2011. Hall asserted that at the beginning of the 2011–2012 school year,

she had thirteen years of experience, which included her time both as an elementary school

teacher and as a pre-K teacher. Hall argued in her motion that she was underpaid $2,700

for the 2011–2012 school year and $2,700 for the 2012–2013 school year.

       The District filed a response to Hall’s motion for summary judgment and a

countermotion for summary judgment on February 1, 2016. Attached was the affidavit of

Robert Poole, the superintendent of the District. Poole’s affidavit provided that, under

District personnel policies and practices, the District does not credit teachers with years of

experience when they are teaching at a pre-K program because such teachers do not perform

the full-time duties of a teacher as required by Arkansas law. Hall was given credit on the

salary schedule for seven years of elementary teaching experience from 1998 through 2005,


       1
        The District did not consider Hall’s experience in a pre-K program as “performing
the full-time duties of a teacher” in determining not to credit these six years toward her
salary.

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but was not given credit for an additional six years of teaching experience in pre-K programs

from 2005 through 2011. Poole stated that Hall had specific knowledge of the District’s

policy and practice when she signed her employment contract with the District.

       Hall responded to the District’s countermotion for summary judgment on February

22, 2016, and attached her affidavit in which she stated that at the time she entered into her

contract with the District, she had no knowledge that the District had a policy or practice

that did not give certified personnel credit for years of teaching experience in a pre-K

program and that she had no agreement with the District that she would not be paid in

accordance with the salary schedule. Hall asserted that her six years of experience in a pre-

K program was “unquestionably” performing the full-time duties of a teacher for a full

school year with a valid Arkansas teaching license.

       On May 5, 2016, the circuit court held a hearing on the parties’ competing motions

for summary judgment. The court found, as a matter of law, that years of teaching

experience in a pre-K program do not count toward performing full-time duties of a teacher

for a full school year with a valid Arkansas teaching license within the meaning of Arkansas

Code Annotated section 6-17-2403(c)(3)(A).

       Arkansas Code Annotated section 6-17-2403 provides the following:

       (c)(1) For purposes of the salary schedules described in this section, the teacher’s
       experience is his or her total years’ experience as a teacher with a valid Arkansas
       teaching license and teaching at any:
       (A) Public school accredited by the Department of Education or a nationally
       recognized accrediting association;
       (B) Private school within the State of Arkansas accredited by a nationally recognized
       accrediting association;
       (C) Institution of higher education within the State of Arkansas accredited by a
       nationally recognized higher education institution accrediting association; or


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       (D) Any facility operated by the Division of Youth Services or any facility contracting
       with the division to provide care for juveniles committed to the division.
       (2) A teacher’s years of experience shall be based upon:
       (A) The years in the school district in which the teacher is employed when the salary
       schedule in this section is considered; and
       (B) The teacher’s years of experience with a valid Arkansas teaching license at an
       institution in subdivision (c)(1) of this section.
       (3) For purposes of this section, “years of service” means:
       (A) Performing the full-time duties of a teacher for a full school year with a valid Arkansas
       teaching license;
       (B) Years of employment with an Arkansas public school in a full-time position that
       requires that the teacher have an Arkansas teaching license; or
       (C) Years of employment in an educational capacity with an institution in subdivision
       (c)(1)(C) of this section with a valid Arkansas teaching license.

(Emphasis added.)

       The circuit court’s order granting the District’s motion for summary judgment was

filed on May 31, 2016, and this timely appeal is now before our court.

       The law is well settled that summary judgment is to be granted by a circuit court

only when it is clear that there are no genuine issues of material fact to be litigated, and the

party is entitled to judgment as a matter of law. Harrisburg Sch. Dist. No. 6 v. Neal, 2011

Ark. 233, 381 S.W.3d 811; Bishop v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 2016 Ark. App.

168, 486 S.W.3d 211. Once the moving party has established a prima facie entitlement to

summary judgment, the opposing party must meet proof with proof and demonstrate the

existence of a material issue of fact. Bishop, supra. In reviewing a grant of summary judgment

on appellate review, we determine if summary judgment was appropriate based on whether

the evidentiary items presented by the moving party in support of the motion leave a

genuine issue of material fact unanswered. Campbell v. Asbury Auto., Inc., 2011 Ark. 157,

381 S.W.3d 21. We view the evidence in the light most favorable to the party against whom

the motion was filed, resolving all doubts and inferences against the moving party. Id.

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       Even when parties file cross-motions for summary judgment, the proceeding is not

converted into a bench trial; rather, the circuit court’s ruling must still be one of law. Po-

Boy Land Co. v. Mullins, 2011 Ark. App. 381, at 7–8, 384 S.W.3d 555, 560. If material

issues of fact remain to be decided, the circuit court may deny cross-motions for summary

judgment. Acuff v. Bumgarner, 2009 Ark. App. 854, 371 S.W.3d 709. If it is impossible to

determine on appeal that either party is entitled to judgment as a matter of law, summary

judgment should be reversed, even if the parties have filed cross-motions for summary

judgment. Deltic Timber Corp. v. Newland, 2010 Ark. App. 276, 374 S.W.3d 261.

       In the present case, the circuit court erred in awarding summary judgment because

it made a factual finding. Specifically, it found that teaching in a pre-K program does not

count toward performing the full-time duties of a teacher for a full school year with a valid

Arkansas teaching license within the meaning of Arkansas Code Annotated section 6-17-

2403(c)(3)(A). Hall’s argument is that it does, while the District contends that it does not.

       The parties couch their arguments in terms of statutory interpretation and cite two

cases that have addressed the statute—Marvel v. Cole Hill Public School District, 276 Ark. 369,

635 S.W.2d 245 (1982), and Stone v. Mayflower School District, 319 Ark. 771, 894 S.W.2d

881 (1995). In Marvel, our supreme court found that a teacher cannot be denied the

minimum salary as promulgated by statute even if the teacher contracts in writing for a

lesser amount. The District relies on Stone and argues that it requires dismissal of Hall’s

claim. In Stone, our supreme court held that

       [o]ur law is clear that school districts must adopt a minimum salary schedule with
       annual increments for education and experience and that they must abide by that
       schedule. Marvel, 276 Ark. 369, 635 S.W.2d 245; [Ark. Code Ann.] section 6-17-
       1001. As an assurance that districts would actually pay teachers according to the

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       schedule, our legislature has required that the salary schedule must reflect the actual
       pay practices of the district in order for the district to receive state aid. Section 6-20-
       319(4)(B). However, our law is equally clear that the personnel policies of a school
       district are incorporated into a teacher’s contract unless changed by mutual consent.
       Section 6-17-204; Helena-West Helena Sch. Dist. # 2 v. Randall, 32 Ark. App. 50,
       796 S.W.2d 586 (1990). Appellee’s personnel policies provided that a teacher could
       be excluded from the salary schedule for good reason. Appellee’s “good reason” for
       giving appellant only five years experience for the counselor’s position was because
       only two of her seventeen years of experience were in the counseling field. The trial
       court found appellant and appellee reached an agreement. Based on this record, we
       cannot say the trial court erred.

319 Ark. at 774, 894 S.W.2d at 882–83.

       Hall responds to the District’s reliance on Stone and maintains that it is no longer

good law. Hall contends that when Stone was decided, the law did not mandate that teachers

be given full credit for all past years of teaching experience and that in 2003, the legislature

passed its first version of a salary-schedule law that required districts to give credit for all past

years of teaching experience. Hall argues that in 2005, the legislature enacted the current

version of the salary-schedule law mandating that teachers be given credit not only for all

past years of teaching experience in Arkansas school districts, but also for all experience in

private schools and institutions of higher education.

       In the instant case, it is unclear as to whether the circuit court relied on Marvel or

Stone, but it is apparent to this court that when the circuit court granted the District’s motion

for summary judgment, it also effectively found a fact in dispute. The circuit court ruled

from the bench that it was granting the District’s motion for summary judgment with its

primary reason being that it did not “think the duties of the preschool teacher are the same

as a full-time teacher.” Moreover, in its order from which Hall appeals, the circuit court

found that “years of teaching experience in a pre-K program do not count toward



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performing the full-time duties of a teacher for a full school year with a valid Arkansas

teaching license within the meaning of Arkansas Code Annotated section 6-17-

2403(c)(3)(A).”

       We do not reach the merits of the parties’ arguments regarding statutory

interpretation because we hold that the circuit court improperly granted the District’s

motion for summary judgment by finding a material fact that was in dispute. We recognize

that in order to interpret the statutory language, the circuit court must make a factual finding

as to whether pre-K teaching qualifies as the “full-time duties” as provided in Arkansas Code

Annotated section 6-17-2403(c)(3)(A). However, this is a clear factual dispute; therefore,

we hold that the circuit court’s granting of the District’s motion for summary judgment was

in error. Accordingly, we reverse and remand.

       Reversed and remanded.

       KLAPPENBACH and VAUGHT, JJ., agree.

       Mitchell, Blackstock, Ivers & Sneddon, PLLC, by: Greg Alagood, for appellant.

       Bequette & Billingsly, P.A., by: George J. Bequette, Jr., and W. Cody Kees, for appellee.




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