                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                 ______________________________________________

STUART BOWDEN,

       Plaintiff-Appellant,
                                                                         FILED
                                                   Shelby Chancery No. 100712-1
Vs.                                                C.A. No. 02A01-9807-CH-00217
                                                                         April 16, 1999
MEMPHIS BOARD OF EDUCATION,
                                                                         Cecil Crowson, Jr.
      Defendant-Appellee.                                    Appellate C ourt Clerk
____________________________________________________________________________

                 FROM THE SHELBY COUNTY CHANCERY COURT
                 THE HONORABLE C. NEAL SMALL, CHANCELLOR




           Charles Hampton White, Jay N. Chamness; Cornelius & Collins, LLP,
                              of Memphis, For Appellant

                      Ernest G. Kelly, Jr.; Evans & Petree of Memphis
                                        For Appellee




                              AFFIRMED AND REMANDED

                                      Opinion filed:




                                                          W. FRANK CRAWFORD,
                                                          PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
     This is a teacher tenure case. Plaintiff/Appellant, Stuart Bowden, appeals the order of

the trial court granting summary judgment to Defendant/Appellee, Memphis Board of Education

(Board).
        Bowden obtained a Bachelor of Science degree from Auburn University in 1984. During

the 1987-88 academic year, Bowden began teaching in the Memphis City Schools System at

White Station Junior High School on an out-of-state teaching license.1                  Bowden was

subsequently reelected for employment by the Board for the 1988-89 and the 1989-90 academic

year.

        In the spring of 1990, Bowden received a notice of non-reelection. However, he was later

re-evaluated and subsequently recommended for a fourth year of employment for the 1990-91

academic year. At the July 1990 Board meeting, Bowden was reelected for the 1990-91

academic year.

        On April 9, 1991, Bowden received another notice of non-reelection effective for the

1991-92 academic year. As a result of this action by the Board, Bowden filed a complaint

against the Board on October 21, 1991. In the complaint, Bowden asserted that he attained

permanent tenure upon his reelection for a fourth year of service and that his subsequent

dismissal violated the Tennessee Teacher Tenure Act in that he was not presented with written

charges and afforded the opportunity of a hearing as required by T.C.A. § 49-5-512. Bowden

further asserted that he was entitled to be reinstated to his position as a teacher and made whole

for any monetary losses sustained as a result of the Board’s unlawful action. On December 4,

1991, the Board filed an answer in which it averred that the dismissal was lawful in that Bowden

never attained tenure status since the Board was not notified that re-employment of Bowden

would result in tenure.

        On April 2, 1998, Bowden filed a motion for summary judgment, and subsequently, the

Board filed a motion for summary judgment. On June 29, 1998, the trial court granted the

Board’s motion for summary judgment, denied Bowden’s motion, and dismissed the complaint.

        Bowden has appealed and presents the following issue, as stated in his brief, for our

review:

                 Did the trial court err in ruling that the plaintiff, Stuart Bowden,
                 did not acquire permanent tenure upon his re-election as a teacher
                 on July 1, 1990, and therefore was not discharged in violation of
                 the Tennessee Teacher Tenure Act?


        1
          In 1989, Bowden received his Tennessee teaching certificate with endorsements in the
areas of history and mathematics. At the same time, Bowden also received a Career Level I
certification.

                                                  2
       A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). In the instant case it is conceded that the facts are undisputed, and there

are no disputed issues of material fact. Bowden asserts that he is entitled to a judgment as a

matter of law and that the trial court erred in granting summary judgment to the Board.

       Since only questions of law are involved, there is no presumption of correctness

regarding a trial court’s grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       The criteria to attain permanent tenure is set forth in T.C.A. § 49-5-503 (2) (1996):

               (2) “Permanent tenure” applies to any teacher who:
               (A) Has a degree from an approved four-year college or to any
               vocational teacher who has the equivalent amount of training
               established and licensed by the state board of education;
               (B) Holds a valid professional license based on training covering
               the subjects or grades taught;
               (C) Has completed a probationary period of three (3) school years
               or not less than twenty-seven (27) months within the last five-
               year period, the last year to be employed as a regular teacher; and
               (D) Is reemployed by the board for service after the probationary
               period.

       From a review of the record and undisputed by the parties, Bowden met each of the
foregoing statutory requirements. At issue, however, is the application of T.C.A. § 49-5-504(b)
(1996) regarding notice to the Board. The statute provides:
                       Upon completion of the probationary period, any teacher
               who is reemployed or retained in the system is entitled to the
               tenure status for which such teacher is qualified by college
               training and licensing; provided, that the superintendent shall
               notify the board prior to reelection by the board that the teacher,
               if reelected, will attain tenure status.

       It is undisputed that the Board was not notified that Bowden would attain tenure status

upon reelection. However, Bowden asserts that when he was reelected by the Board for the

1990-91 academic year, he was entitled to tenure status and attained such since he met the

statutory requirements. Thus, he contends that as a result of his tenure status, his dismissal at

the conclusion of the 1990-91 academic year without charges and an opportunity for a hearing

was unlawful, therefore entitling him to reinstatement and full back pay. He states that given

that the duty imposed upon the superintendent to notify the board is mandatory rather than


                                                3
discretionary, the courts have held that there is a presumption that the superintendent has

performed such duty. Therefore, Bowden submits that the duty of notification cannot be read

as a condition upon a teacher’s entitlement to tenure. He contends that the statute entitles a

teacher to tenure and only requires the superintendent to notify the board that the teacher will

attain tenure. Bowden argues that if notification is read as a condition, the superintendent could

transform the statutory entitlement of tenure into a discretionary decision only the superintendent

could make. Moreover, Bowden argues that the statutes cannot and should not be read to allow

either the Board or the superintendent to reelect a tenure-eligible teacher while withholding

tenure. Finally, he asserts that neither T.C.A. § 49-5-504(b) nor any previous case law permit

the Board and the superintendent to deprive him of his entitlement to tenure by virtue of their

dereliction of duty.

       On the other hand, the Board asserts that T.C.A. § 49-5-504(b) requires that the Board

be specifically notified that reelection will confer tenure in order to prevent granting tenure

inadvertently. They submit that the notification requirement is not a mere formality but is a

crucial part of the process of conferring tenure and without the notice, the reelection does not

confer tenure status. The Board states that neither the substance nor the statutory procedure of

an election to tenure was carried out with regard to Bowden. They also assert that the undisputed

facts make it clear that the Board was never put on notice that reelection could confer tenure

status to Bowden, thus any presumption was specifically rebutted.

       When interpreting a statute, the role of the Court is to “ascertain and give effect to the

legislative intent.” Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn. 1996). To this end, the

meaning of a statute is not to be determined from special words in a single sentence or section,

but from the statute taken as a whole. State ex rel. Bastnagel v. City of Memphis, 224 Tenn.

514, 457 S.W.2d 532 (1970). In the absence of ambiguity, legislative intent is derived from the

face of a statute, and the Court may not depart from the “natural and ordinary” meaning of the

statute’s language. Davis v. Reagan, 951 S.W.2d 766, 768 (Tenn. 1997); Westland West

Community Ass’n v. Knox County, 948 S.W.2d 281, 283 (Tenn. 1997).

       “The conference of tenurial status is dependent not only upon service but also upon

affirmative action by the Board of Education.” Sanders v. Vinson, 558 S.W.2d 838, 842 (Tenn.

1977). The completion of the probationary period by a teacher “does not automatically confer


                                                4
permanent tenure. It merely is a condition precedent to eligibility for tenure.” Id. (emphasis in

original).

        We believe this case is controlled by our Supreme Court’s decision in Reeves v. Etowah

City School Board of Education, 806 S.W.2d 176 (Tenn. 1991), wherein the Court said:

                         The language and purpose of the statute are clear:

                         (b) Upon completion of the probationary period,
                         any teacher who is reemployed or retained in the
                         system is entitled to the tenure status for which he
                         is qualified by college training and licensing;
                         provided that the superintendent shall notify the
                         board prior to reelection by the board that the
                         teacher, if reelected, will attain tenure status.

                  Tenn. Code Ann. § 49-5-504(b) (emphasis added).

                          In Sanders v. Vinson, 558 S.W.2d 838 (Tenn. 1977), we
                  commented on this section of the statute: “The sole, and we think
                  self-evident, purpose of this proviso is to insure that the board
                  knows that re-employment will confer tenure.” Id. at 843. The
                  Sanders Court also made it clear that “[t]he conference of tenurial
                  status is dependent not only upon service but also upon
                  affirmative action by the Board of Education,” and that the
                  completion of the probationary period by a teacher “does not
                  automatically confer permanent tenure. It merely is a condition
                  precedent to eligibility for tenure.” (Emphasis in original).

                                 *               *               *

                  We hold that Tenn. Code Ann. § 49-5-504(b), which requires
                  notice by the superintendent, is a limitation on Tenn. Code Ann.
                  § 49-5-503(2)(D), which grants permanent tenure status when a
                  teacher is reemployed after the probationary period.

Id. at 178-179.

        Bowden attempts to distinguish Reeves by arguing that there is a crucial factual

distinction because in Reeves it was the superintendent himself who was eligible for tenure and

who failed to notify the board as required. Bowden appears to be asserting that notification is

a condition precedent only if it is the superintendent who is eligible for tenure. We find this

distinction to be untenable. Neither the Reeves Court nor the statutory provision makes such a

distinction, and such a distinction is unwarranted.

        From a review of the record and the undisputed facts, the Board was not notified prior

to reelection that Bowden, if reelected, would attain tenure status. Without the requisite

notification given to the Board, Bowden did not achieve permanent tenure status under the

Teacher Tenure Act when he was reelected for the 1990-91 academic year. Therefore, the


                                                  5
subsequent action by the Board in not reelecting Bowden was lawful.

       Accordingly, the judgment of the trial court is affirmed, and the case is remanded for

such further proceedings as necessary. Costs of appeal are assessed against the appellant.

                                                    _________________________________
                                                    W. FRANK CRAWFORD,
                                                    PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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