Opinion
No. 90-1301
Submitted June 26, 1991 —
Decided October 16, 1991.
APPEAL from the Court of Appeals for Logan County, No. 8-90-3.
Joy J. Tavenner, appellee and cross-appellant, signed contracts with the Indian Lake Local School District Board of Education ("board"), appellant and cross-appellee, to tutor handicapped children for the 1985-1986 and 1986-1987 school years. Under the 1985-1986 contract, titled "TEACHER'S CONTRACT — LIMITED," Tavenner agreed to work as a "Title VI(B) Tutor" for seven hours per day at nine dollars per hour for an annual salary of $11,340. She agreed to teach for one hundred eighty days and to perform all curricular and extra-curricular duties assigned to her. In the 1986-1987 contract, she agreed to perform the same duties for ten dollars per hour for an annual salary of $12,600.
Both contracts recite that Tavenner's salary is "* * * in accordance with the salary schedule set forth in the currently effective Comprehensive Agreement between the Board and the Indian Lake Education Association or as it may be amended during the duration of this contract. All payments of salary shall be made in accordance with the pay plan prescribed by the Comprehensive Agreement." The contracts also state that the requirement to teach for one hundred eighty days was also provided for in the Comprehensive Agreement. Nevertheless, according to the pay schedules of the agreements, a teacher with relator's qualifications and experience earned $15,500 in 1985-1986 and $19,795 in 1986-1987. Teachers worked seven and one-quarter hours per day and one hundred eighty-four days per year for the two years in question.
According to her affidavit, Tavenner taught one to six learning disability students who were exclusively assigned to her in given periods. She claims she taught the same hours as did the other teachers, 7:30 a.m. to 2:30 p.m., and stayed until 2:45 p.m., when the last of the children left. She also performed bus duty together with the other teachers.
Tavenner filed a complaint in mandamus with the Court of Appeals for Logan County to obtain the difference between the scheduled pay and her contract pay, and post-judgment interest on this difference. The court of appeals denied both parties' motions for summary judgment but, on the evidence before it, found that Tavenner was a teacher and entitled to a writ of mandamus to obtain back pay under State, ex rel. Brown, v. Milton-Union Exempted Village Bd. of Edn. (1988), 40 Ohio St.3d 21, 531 N.E.2d 1297. However, the court denied an award of post-judgment interest.
The cause is now before this court upon an appeal and cross-appeal as matters of right.
Snyder, Rakay Spicer and Peter J. Rakay, for appellee and cross-appellant.
Bricker Eckler, Nicholas A. Pittner and Sue A. Wyskiver, for appellants and cross-appellees.
Means, Bichimer, Burkholder Baker Co., L.P.A., Robert T. Baker and Amy J. Girvin, urging reversal on the appeal for amicus curiae, Ohio School Boards Association.
In Brown, supra, we held that a tutor is a "teacher" under R.C. 3319.09(A), a tutor is entitled to compensation according to the board of education's duly adopted pay schedule under R.C. 3317.14 and 3317.13(B), and a tutor may obtain back pay by way of mandamus.
Neither the board nor amicus advances any argument which persuades us to reverse or limit Brown. Accordingly, we affirm the judgment of the court of appeals granting back pay in this case.
Moreover, the board and amicus fail to persuade us to apply Brown prospectively only. In Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210, 57 O.O. 411, 129 N.E.2d 467, 468, we stated the general rule that:
"* * * [A] decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law. The one general exception to this rule is where contractual rights have arisen or vested rights have been acquired under the prior decision. * * *"
Here, Brown did not overrule a former decision; it set forth the law that had always existed even if it had not been applied. Thus, contractual rights could not have arisen nor vested rights been acquired under any prior decision. The law stated in Brown was always the law, even if unarticulated.
Finally, we reverse, on Tavenner's cross-appeal, the appellate court's refusal to grant her post-judgment interest.
According to R.C. 3313.17, a board of education is "* * * a body politic and corporate, and, as such, capable of suing and being sued * * *." In State, ex rel. Springfield City School Dist. Bd. of Edn., v. Gibson (1935), 130 Ohio St. 318, 4 O.O. 352, 199 N.E. 185, paragraph two of the syllabus, we stated:
"A board of education or school district, clothed with the capacity to sue and be sued, is thereby rendered amenable to the laws governing litigants * * *."
In Gibson at 322, 4 O.O. at 354, 199 N.E. at 187, we explained that a school board was not the complete sovereign that the state was. We added:
"Where a board of education or school district is subject to suit, it is to be treated, for the purpose of such suit, in the same manner as a private litigant. Not being an entire sovereignty, there is no sound reason for treating it in a manner different from the manner of treating any other litigant. The law should be of universal application and without distinction among litigants. The fact that a board of education or school district is engaged in a public task is an immaterial circumstance. When it is rendered subject to suit without consent, it is automatically stripped of its attribute of sovereignty and of the exemptions and immunities available to sovereignties."
R.C. 1343.03(A) renders litigants liable for post-judgment interest "* * * upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of * * * a contract, or other transaction * * *." Under this authority, Tavenner is entitled to post-judgment interest.
Accordingly, we affirm the portion of the judgment of the court of appeals that grants Tavenner back pay but reverse the portion that denies her post-judgment interest on the back pay.
Judgment affirmed in part and reversed in part.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
I concur in the well-reasoned decision of the majority. I write separately for the sole purpose of calling attention to Beifuss v. Westerville Bd. of Edn. (1988), 37 Ohio St.3d 187, 525 N.E.2d 20. While Beifuss was a prejudgment interest case and the case at bar is a post-judgment interest matter, and thus are clearly distinguishable from each other, nevertheless some of the language in today's case is incompatible with some of the language in Beifuss and, thus, Beifuss should, at the very least, be called to the attention of the bench and bar. The language and judgment in today's decision are a correct statement of the law as it is and should be.