author: MR. JUSTICE WEBER

text:
    ELEANOR KELLY, Plaintiff and Appellant, v. DON WIDNER and Harley Huntley, Defendants and Respondents.
    No. 88-324.
    Submitted Feb. 10, 1989.
    Decided April 6, 1989.
    771 P.2d 142.

      Joan Jonkel argued, Jonkel Law Offices, Missoula, Richard Simon-ton, Simonton, Howe & Jackson, Glendive, for plaintiff and appellant.
    Robert A. Terrazas argued, Worden, Thane & Haines, Missoula, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from a suit for personal injuries brought by Eleanor Kelly against Mr. Widner and Mr. Huntley. Ms. Kelly signed a release with Farmers Insurance Company in exchange for $8,900. She later filed a personal injury action against the insureds, Mr. Widner and Mr. Huntley, alleging negligence. In their answer, defendants plead the affirmative defense of release. The District Court granted summary judgment in favor of the defendants and Ms. Kelly appeals from that judgment. We reverse the summary judgment of the District Court and remand. The issues are:

1. Did the District Court err in granting summary judgment by finding that no genuine issues of material fact existed?

2. Did the District Court err in imposing technical pleading requirements in its summary judgment motion?

3. Did the District Court err in granting defendants’ request for a protective order?

Ms. Kelly was injured in an auto accident on November 18, 1979. Mr. Widner was the driver of the automobile which was owned by Mr. Huntley. Ms. Kelly was a passenger in the automobile. The accident fractured Ms. Kelly’s left leg in several places and caused other minor injuries. Doctors inserted a rod and bolts in her leg to hold the bone together and placed the leg in a cast. Ms. Kelly was hospitalized for 23 days, and was in a cast for 10 months.

At the time of the accident Ms. Kelly was 45, divorced, and lived alone. She had a ninth grade education. She rented a log cabin with no phone, and her car did not run. She had previously worked as a waitress, earning $2.75 an hour. Had she not been injured, she claims she would have begun a new job at $3.50 an hour. With her leg in a cast she was unable to work at all. During the months of December 1979 and January 1980, she had only $10 and food stamps to live on. In January 1980 Mr. Huntley’s insurance agents contacted Ms. Kelly. Mr. Widner brought her to his home so she could receive a call from the insurance agents. They questioned her over the phone about the accident and her injuries. The next day, on thirty minutes notice, the agents came to her home. They asked about her medical bills, lost wages, and income. The agents made out a check for $5,325, which Ms. Kelly endorsed to the hospital, and a check to Ms. Kelly for $3,634. From the $3,634, Ms. Kelly paid $1,542 in doctor bills; $1,460 was attributable to lost wages. The agents were at her home approximately thirty minutes. Ms. Kelly was not represented by an attorney. In exchange for the checks Ms. Kelly signed a release dated January 24, 1980. She also endorsed the two checks. Each check contained release language above the signature line. Thus Ms. Kelly actually signed three releases.

In September of 1980 Ms. Kelly’s doctors determined that her bone had not healed. They removed the cast and performed another leg surgery. However, pain and instability have prevented Ms. Kelly from holding any job which requires standing and walking. Ms. Kelly has incurred additional medical bills, and claims she has been unable to work during the 8 years since the accident.

Before discussing the issues involved, we feel it is appropriate to mention the obvious time delay in Ms. Kelly’s suit. While this is not a complicated case, it has stretched over a period of nearly 9 years to date. Ms. Kelly filed her initial suit on November 25, 1980. Defendants answered on March 5, 1981, asserting the release as an affirmative defense. In February of 1982, Ms. Kelly served her first set of interrogatories; however, defendants objected, calling them stock interrogatories. The case then lay dormant for four years, and from 1986 to present minimal discovery has been accomplished. No explanation is given for this delay. It is apparent that plaintiff’s counsel have not been diligent in pursuing this claim. The record also demonstrates that the defendants were not interested in bringing the matter to disposition. Neither party has handled this case in a timely manner.

I

Did the District Court err in granting summary judgment by finding that no genuine issues of material fact existed?

The appropriate standard in granting summary judgment was stated in Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315, 1317:

“Summary judgment is never to be used as a substitute for trial if a factual controversy exists. Reaves v. Reinbold (Mont. 1980), [189 Mont. 284,] 615 P.2d 896, 37 St.Rep. 1500. Summary judgment is only proper if the pleadings, depositions, answers to interrogatories and admissions on file show there is no genuine issue of material fact. Anderson v. Applebury (1977), 173 Mont. 411, 567 P.2d 951. The standard that an appellate court applies in reviewing a grant or denial of a motion for summary judgment is the same as that utilized by the trial court initially under Rule 56, M.R-Civ.P. — a summary judgment is proper when it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 10 Wright, Miller and Kane, Federal Practice and Procedure, § 2716, p. 643.”

Further, the defendant correctly recognizes the burden of proof which is required in a summary adjudication. Initially the burden of proof must be carried by the moving party seeking summary judgment, in this case, Mr. Widner and Mr. Huntley. However, where the record discloses no genuine issue of material fact, the burden of proof shifts to the party opposing the motion, in this case Ms. Kelly, who must come forward with substantial evidence raising an issue of fact. Once the burden has shifted in this fashion, the party opposing the motion is held to a standard of proof about equal to that initially imposed upon the moving party under Rule 56(c), M.R.Civ.P. Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613, 615; Kronen, 683 P.2d at 1318.

In light of the above standard and burden of proof, we conclude that Ms. Kelly raised a genuine issue of material fact in this case. Therefore, summary judgment was not appropriate.

A release is governed by contract law, and may be rescinded for the same reasons which allow rescission of a contract. Westfall v. Motors Insurance Corporation (1962), 140 Mont. 564, 374 P.2d 96, 98-99. The validity of a release may be challenged therefore on the basis of unconscionability.

In determining unconscionability we have previously applied the UCC standard. In All-States Leasing v. Top Hat Lounge (1982), 198 Mont. 1, 649 P.2d 1250, a case involving a lease transaction, we looked to § 30-2-302, MCA, which is modeled after the same provision in the Uniform Commercial Code, and provides:

“(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

“(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.”

The official comment to this section of the UCC states the basic test for unconscionability:

“[W]hether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract . . . The principle is one of the prevention of oppression and unfair surprise.”

In Westlake v. Osborne (1986), 220 Mont. 91, 713 P.2d 548, 551, 43 St.Rep. 200, 204, we applied this test in a contract case. While this statute applies to sales transactions under the UCC, courts have used this definition by analogy, to apply in non-sales cases. Restatement (Second) of Contracts § 208 (1979). See also Howard D. Hunter, Modern Law of Contracts § 12.06 (1986). We affirm the use of this standard.

Unconscionability is an equitable doctrine, without a succinct or precise definition. While no single factor is determinative, elements which may be indicators of unconscionability include unequal bargaining power, lack of meaningful choice, oppression, and exploitation of the weaker party’s vulnerability or lack of sophistication. See generally, J. Calamari and J. Perillo, The Law of Contracts § 56 (1970). Inadequacy of consideration does not by itself invalidate a bargain, but may be a factor in determining conscionability. Restatement (Second) of Contracts § 228 (1979).

The underlying principle of conscionability is that of doing justice under the circumstances of each case. We approve of this standard, framed by the Illinois Supreme Court, in Scherer v. Ravenswood Hosp. Med. Ctr. (1979), 70 Ill.App.3d 939, 27 Ill.Dec. 219, 388 N.E.2d 1768, 1271, when it stated:

“The modern trend is to set aside releases of personal injury claims in situations where the facts, when finally known, present an unconscionable result because of the equitable principle of doing justice under the circumstances of each case.”

The present case includes three circumstances which are relevant to a determination of unconscionability. First, Ms. Kelly’s dire financial situation, her lack of education and lack of legal advice, and her isolated living arrangements created a vulnerability susceptible to exploitation. Second, at the time of settlement there was substantial uncertainty as to the extent of injury to Ms. Kelly’s leg, and the future prognosis. The surgery on Ms. Kelly’s leg had required insertion of a steel rod. When Ms. Kelly executed the release, it had only been two months since the accident. Her leg was still in a cast and would remain in a cast for another 8 months. It was obvious that Ms. Kelly’s leg would not be healed for some time. It was also clear that Ms. Kelly would be unable to resume work in the near future. Ms. Kelly’s physical condition suggests that this was not an appropriate time for execution of a complete release. Third, the insurance adjusters procured a very hasty settlement in this case, spending only half an hour in the total discussion. When they left, Ms. Kelly had released all claims, yet received barely enough money to pay her medical expenses through the date of settlement. There is an issue of fact whether the checks issued to Ms. Kelly were adequate under the circumstances known by the parties at that time. The appropriateness of having Ms. Kelly execute a complete release in her particular situation, and procured in that manner, is subject to question. We conclude that the combination of these three circumstances raises an issue of fact whether under all the circumstances, justice was done.

Furthermore, facts subsequent to a settlement may be considered in determining unconscionability. Newborn v. Hood (1980), 86 Ill.App.3d 784, 42 Ill.Dec. 96, 98, 408 N.E.2d 474, 476. The Illinois Supreme Court in Scherer and Hood considered the large disparity between the settlement amount and the actual monetary loss which the injured party eventually incurred. In the present case that disparity may be similarly large. Ms. Kelly claims she has been unable to work for the 8 years since the accident, and this disability may continue. She claims her leg needs further medical attention, including surgery. She is entitled to a factual determination on the issue of whether the settlement amount indicates an unconscionable bargain. We conclude that Ms. Kelly has raised a sufficient issue of material fact to preclude summary judgment.

We reverse the summary judgment by the District Court and remand.

II

Did the District Court err in imposing technical pleading requirements in its summary judgment ruling?

Ms. Kelly alleges that the District Court imposed technical pleading requirements in making its summary judgment ruling, and we conclude that the court may have done so. We therefore discuss this issue although it does not appear that Ms. Kelly was prejudiced. In Ms. Kelly’s complaint she alleged only negligence. Defendants’ answer raised the affirmative defense of release. Ms. Kelly challenged the validity of the release in answers to interrogatories and in her brief in opposition to summary judgment. She never amended her complaint, nor made a responsive pleading to defendants’ answer. In the Order and Memorandum which granted summary judgment, the District Court stated, “The Plaintiff has not, in any of her pleadings or replies to Defendant’s pleadings, questioned the validity of the January 24, 1980 Release.” The opinion also mentioned twice that plaintiff had not plead with particularity nor argued duress, menace, fraud, nor undue influence. The court stated that it therefore would not address any of those defenses which Ms. Kelly had asserted. Because we have concluded that an issue of fact exists as to unconscionatality, it is unnecessary to consider whether an issue of fact exists relative to these other theories. We nevertheless discuss the pleading requirements for clarification.

Pleading requirements begin with Rule 7(a) M.R.Civ.P., which provides:

“There shall be a complaint and an answer; and there shall be a reply to a counterclaim denominated as such; and an answer to a cross-claim; a third-party complaint, if a person who was not an original party is summoned under Rule 14; and there shall be a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.”

This role neither requires nor allows a responsive pleading to an answer. Thus Ms. Kelly was not required to reply to defendant’s answer. Further, the affirmative defense of release was deemed denied pursuant to Rule 8(d), M.R.Civ.P., which provides:

“Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”

In Wheat v. Safeway Stores, Incorporated (1965), 146 Mont. 105, 404 P.2d 317, the defendants raised the affirmative defense of release in the answer, and later moved for judgment on the pleadings based on the ground that plaintiff failed to reply to the answer. The motion was granted, but we concluded that the District Court had erred, stating:

“From this authority, it is clear that the plaintiff had no duty to reply unless ordered to do so by the court. No such order was made in this case. The defendant’s contention that a reply was mandatory to an affirmative defense of a release set forth in defendant’s answer is, under the above authority and Rule 7(a), without merit.”

404 P.2d at 319.

The intent of Rule 7(a) was explained in B. Mason, The Montana Rules of Civil Procedure, 23 Mont.L.Rev. 3, 19, (1961), as follows:

“Under the Rules pleadings are fewer and terminate earlier than under code practice. Code practice contemplates a three stage system of pleadings, consisting of a complaint, an answer, and a reply whenever new matter is alleged in the answer. The Rules allow only two stages, unless the court in its discretion otherwise orders. Under Rule 7(a) a reply is mandatory only when the answer contains a counterclaim denominated as such

As stated in Wheat, Ms. Kelly was not required to file a reply or otherwise plead to the issue of release. The absence of a responsive pleading should not have been considered by the District Court in a summary judgment motion. We sense the presence of frustration on the part of the District Court because of the extreme delay in this case, and we have the same sense of frustration. Nevertheless, procedural law must still be applied to Ms. Kelly’s case.

Ill

Did the District Court err in granting defendant’s request for a protective order?

In December of 1986, defendant moved for summary judgment on whether the release barred Ms. Kelly’s claim. Ms. Kelly requested a continuance pursuant to Rule 56(f), M.R.Civ.P., which was granted. Thereafter, in interrogatories and requests for production, she requested information about the training of the insurance agents, the process by which they evaluate claims, and their job descriptions. Defendants sought a protective order, stating that this information was not relevant to the adequacy of the release. The court granted the protective order.

In view of our conclusions in Part I it is not necessary to discuss this issue in detail. Ms. Kelly may now proceed under Rule 26, M.R.Civ.P., and this type of information will be obtainable.

We reverse and remand to the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, HUNT and GULBRANDSON concur.

MR. JUSTICE McDONOUGH did not participate in this decision.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    J. DARRELL JOHNSON, Petitioner and Appellant, v. BOARD OF TRUSTEES, BEAVERHEAD COUNTY HIGH SCHOOL DISTRICT, Respondent and Respondent.
    No. 88-352.
    Submitted on Briefs Feb. 3, 1989.
    Decided April 6, 1989.
    771 P.2d 137.

      Charles A. Graveley, Helena, for petitioner and appellant.
    W.G. ‘Duke’ Gilbert, III, Dillon, Poore, Roth & Robinson, Donald Robinson, Butte, for respondent and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

J. Darrell Johnson (Johnson) appeals the decision of the First Judicial District Court, Lewis and Clark County, affirming the County Superintendent’s decision to dismiss him from his employment as a teacher with the Beaverhead County High School in Dillon, Montana. We affirm.

Appellant presents the following issues upon appeal:

1. Was the dismissal of appellant without good cause and therefore a wrongful violation of his rights as a tenured teacher?

2. Was appellant wrongfully deprived of his right to a de novo trial before the County Superintendent?

Appellant Johnson worked as an arts teacher with the Beaverhead County High School in Dillon from 1970 until August of 1984. In August of 1984, he was suspended pending a hearing before the Beaverhead County School Board (Board) regarding charges of sexual contact with two female students during the 1983-84 school year. The Board subsequently dismissed Johnson on March 21, 1985 for immorality and unfitness after a full hearing on the charges. Johnson appealed this dismissal to the County Superintendent, pursuant to §§ 20-4-207(5) and 20-4-205(2), MCA.

A full evidentiary hearing on the charges was conducted before the Acting County Superintendent, Wallace Vinnedge, on April 11 and 12 of 1985. Both parties agreed that the sole issue on appeal was whether the Board dismissed Johnson without good cause. Before rendering a decision, the County Superintendent considered all the evidence introduced at this hearing, the transcripts from the school board hearing, and the earlier videotaped testimony given by the two girls with whom Johnson allegedly engaged in sexual acts. The County Superintendent then concluded the Board had good cause to dismiss Johnson and affirmed the Board’s dismissal.

Johnson appealed this decision first to the State Superintendent of Public Instruction and then to the District Court. The County Superintendent’s decision was affirmed in both of these reviewing forums. Johnson then filed this appeal.

A teacher in Montana who holds a valid employment contract may be dismissed prior to the expiration of the contract for “immorality, unfitness, incompetence, or violation of the adopted policies of such trustees.” Section 20-4-207, MCA. In the present case, Johnson was dismissed for that immorality and unfitness apparent from his alleged sexual activity with two minor female students during the 1983-84 school year. If these factual findings of sexual activities are supported by the evidence, then the dismissal was indeed for good cause and not a violation of Johnson’s rights as a tenured teacher under contract. We therefore turn to an examination of the facts upon which the County Superintendent based his conclusions of immorality and unfitness.

We note at the outset that the County Superintendent is the trier of fact in an appeal from a trustee decision dismissing a teacher under contract. Section 20-3-210(2), MCA; Yanzick v. School Dist. No. 23 (1982), 196 Mont. 375, 641 P.2d 431. The County Superintendent, as the trier of fact, had the ability to judge the credibility of each witness. Consequently, this Court has recently held that “neither the State Superintendent of Public Instruction nor the District Court may substitute its judgment for that of the County Superintendent on issues of fact.” Trustees of Lincoln County School Dist. No. 13 v. Holden (Mont. 1988), [231 Mont. 491,] 754 P.2d 506, 509, 45 St.Rep. 786, 789 [,7 Ed. Law 123]. A court upon review of a dismissal action will reverse the factual findings of the County Superintendent only if they are clearly erroneous. Carruthers v. Board of Horse Racing (1985), 216 Mont. 184, 188, 700 P.2d 179, 181. As stated in § 2-4-704(2), MCA:

“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings . . . are:

“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . .”

Having reviewed the entire record in the present case, we hold that the findings of fact issued by the County Superintendent are not clearly erroneous. Specifically, we hold that the following findings, which support a charge of immorality and unfitness sufficient to warrant a dismissal, are supported by reliable, probative and substantial evidence:

“FINDINGS OF FACT

“3. That the Petitioner had admitted that he gave back rubs and placed his hands upon female students in a locked storage room during the 1983-84 school year. That such conduct is inappropriate and improper for a teacher.

“4. That the Petitioner had, during the 1983-84 school year, engaged in acts of sexual contact with a Student under the age of sixteen years at various places within Beaverhead County High School, during class periods, and at other times, which sexual contact amounted to sexual intercourse or attempted sexual intercourse.

“5. That the teacher engaged in acts of sexual contact with an additional student . . . during school hours and on school premises during the 1983-84 school year, which contact consisted of fondling and kissing the students’ breasts. That such conduct is improper for a teacher.”

In regards to Finding No. 3, Johnson testified before the County Superintendent that he had rubbed the neck and shoulders of several female students who came to his art storage room to discuss personal problems. Moreover, Johnson plead guilty in May of 1985 to misdemeanor assault charges; he admitted that when a female student came to him for counseling toward the end of May, 1984, he “rubbed her back and held her in my arms, in what I felt was a consoling manner, but apparently to her it was an insulting nature.” The two students with whom Johnson allegedly had sexual contact also testified that Johnson routinely gave them “back massages.” The principal and assistant principal both testified that rubbing the neck and shoulders of a young female student in a locked room on school premises during school hours constituted improper teacher conduct.

Finding No. 4 involves the sexual contact and attempted sexual intercourse upon a 14-year-old freshman student (hereinafter K.B.) during the year preceding Johnson’s dismissal. K.B. testified in great detail as to the progression of sexual activity occurring from November of 1983 until June of 1984. She stated that her initial physical contact with Johnson occurred in the art storage room at BCHS a few days before Halloween. She massaged his back after he complained about back aches. Two weeks later in the same room, he rubbed her shoulders and back. She testified that a week or so later, he expanded his massage to include her chest, armpits and breast area. K.B. stated that shortly thereafter, he began slipping his hand inside her brassiere and cupping her breasts. She alleged this activity continued more or less on a daily basis during the week for the rest of the 1983-84 school year, generally during her fifth period Driver’s Education class and occasionally at noon or after school. The three or four days each week when not driving or being tested, K.B. and two other girls (J.N. and A.P.) would obtain a pass from Johnson and then go down to the art room for the period. The testimony of K.B. is supported by the statement of A.P. that during fifth period, K.B. and Johnson often would leave the classroom for at least ten to fifteen minutes at a time. If A.P. or J.N. then needed assistance while Johnson was gone, they could usually find him and K.B. in the art storage room. Another student, in the fifth period art class that year, similarly testified that K.B. and Johnson would leave class together three to four days each week and that Johnson was usually gone from the classroom fifty percent of the period.

The sexual activity with K.B. allegedly escalated in late March or early April of 1984 to include frequent acts of sexual intercourse in the art storage room. K.B. further alleged that Johnson attempted sexual intercourse with her on a piece of plywood and cloth located in the basement underneath the girls gym in late April. K.B. testified that on the last day of May of 1984, Johnson again attempted sexual intercourse with her on a canvas tarp spread on the floor of the camera room above the auditorium. K.B. testified that her last sexual contact with Johnson occurred on June 18, 1984 in the art storage room.

Several types of circumstantial evidence exist which indicate that K.B. did in fact become involved in those sexual activities alleged. Deputy sheriff Keith Reeder investigated the area under the gym in late summer and sent the red cloth and red coveralls found under the gym to the Missoula Crime Lab. An analysis of the hairs on the coveralls revealed several with characteristics similar to K.B.’s hair. The Deputy also collected a canvas from the camera room and sent hairs found on it to the Crime Lab. An analysis of the hairs from the canvas revealed one with characteristics similar to Johnson’s hair and several with characteristics similar to K.B.’s hair. Additionally, respondent introduced three letters written by K.B. to her girlfriend T.B. (who lived in Idaho). These letters detailed her alleged sexual activities with Johnson. Moreover, Dr. Myers, a psychologist who met with K.B. nineteen or twenty times for individual therapy during the summer of 1984 in regards to this reported incident, stated his opinion that those incidents of sexual activity with Johnson detailed in K.B.’s letters were not fantasy.

Finding No. 5 involves the sexual contact in 1983-84 with a 16-year-old student (hereinafter J.N.). J.N. testified that her physical contact with Johnson occurred two to three weeks after she enrolled in BCHS in Dillon. While working in the ceramics room after school, Johnson came up and massaged her neck and shoulders. A few weeks later when she was in the art storage room during the class period, he requested her to massage his back and she did so. Shortly thereafter, she stated he began placing his hands inside her brassiere and massaging her breasts. She testified this activity escalated from one to three days per week to a nearly daily weekday activity. This sexual contact allegedly occurred in the art storage room generally after school or during her ceramics or painting class period; J.N. testified they would be absent from the classroom for 30 to 45 minutes of the class period. J.N. testified that the last sexual contact with Johnson occurred three to four weeks before the end of the 1983-84 school year. She testified that she told him in letters and verbally that such activity was wrong and that she thereafter avoided him. She subsequently wrote a letter to another teacher, Russell Fisk, stating that Johnson had rubbed her neck and back and “one day went farther.” Teacher Fisk confirmed his receipt of such a letter which he admitted contained “sexual implications.” This letter was later passed on to school counselor Gwen Brott. Brott testified that she destroyed this letter. The misdemeanor assault charge, to which Johnson pled guilty, further indicates some physical contact occurred between Johnson and J.N. In his plea, Johnson admitted that in May of 1984 he had rubbed her back and held her in his arms to console her.

Appellant Johnson introduced a substantial amount of testimony by students and teachers alike in regards to his excellent teaching abilities, his caring nature, and as to the amount of time he was absent from classes each day. However, this Court is not charged with re-weighing the evidence to determine whether the dismissal was in fact made with good cause. Rather we may only review the entire record to determine whether reliable, probative and substantial evidence existed to support the County Superintendent’s decision dismissing Johnson. All the above-cited evidence is sufficient to meet this standard and to support the allegations of sexual activity. Such sexual activity by a 41-year-old married teacher with two of his minor female students indeed supports the conclusion of his immorality and unfitness. Further, a teacher is charged by statute with providing “moral and civic instruction” to students and with “endeavoring to impress the pupils with the principles of morality, truth, justice, and patriotism.” Section 20-4-301(l)(f), MCA. The evidence of Johnson’s sexual activity with students indicates he failed to discharge these duties with which he was charged. We therefore hold good cause existed supporting Johnson’s dismissal for immorality, unfitness and his failure to fulfill his duties as a teacher. The District Court did not abuse its discretion when it affirmed the County Superintendent’s dismissal of Johnson.

Appellant’s second argument is that he was wrongfully deprived of his right to a de novo hearing because the County Superintendent considered the transcripts and the videotaped testimony of K.B. and J.N. taken during the School Board hearing. Appellant contends a de novo hearing mandates a decision based only on those facts adduced at the hearing before the County Superintendent. We disagree.

Section 20-3-210(2), MCA, requires a county superintendent to base a dismissal decision upon those facts established at the hearing conducted before him or her. This Court has interpreted this section as requiring a de novo hearing before a county superintendent. Yanzick, 641 P.2d at 437. When conducting this hearing, a county superintendent is governed by the rules set forth in § 2-4-612, MCA. Section 2-4-612(2) expressly allows a county superintendent to receive any part of the evidence in written form if the “hearing will be expedited and the interests of the parties will not be prejudiced substantially” by admission of such evidence.

The transcripts from the School Board hearing, as written evidence, were properly admissible under § 2-4-612(2), MCA, because they did not substantially prejudice appellant and they did expedite a determination of the issue. The Board transcripts are largely duplicative of that testimony given before the County Superintendent. They do not introduce any substantially new evidence. Additionally, the appellant had every opportunity to cross-examine those witnesses whose testimony was transcribed. Consequently, appellant may not claim substantial prejudice.

Admission of the transcripts, which included the testimony of K.B. and J.N. also helped expedite the hearing before the County Superintendent. The testimony of K.B. and J.N. was essential to a determination of the appeal. Yet, K.B. and J.N. were both unavailable to testify at the time of the second hearing. See 804(a)(5), M.R.Evid. This unavailability was not due to any wrongdoing by the respondent. Both girls had moved outside the State of Montana with their respective families after the 1983-84 school year. Respondent went through the formality of issuing subpoenas to the last known address of each girl within Montana to prove that service of process upon them was not possible within the State and to indicate respondent’s inability to procure their attendance through process. Admission of the two girls’ transcribed testimony prevented a delay of the hearing until the two girls could be present.

No statutory provision expressly provides for the admission of videotaped testimony in a de novo hearing such as that hearing conducted before the County Superintendent. Further, even if the videotape was properly admissible, it was not taken in compliance with the requirements found in Rule 30(h), M.R.Civ.P., a section providing those procedures mandated for videotaped depositions. However, we need not determine the issue of whether the admission of the videotape in this case was proper. Admission of the videotaped testimony did not substantially prejudice the appellant. The audio testimony of the two girls recorded on the videotape is duplicated in the Board transcripts, which we have just held were properly admissible. The videotape does not introduce any new evidence without giving appellant an opportunity to cross-examine the witnesses. As previously noted in this opinion, appellant had the opportunity to fully cross-examine the two girls during the Board hearing. We therefore hold that neither admission of the videotaped testimony nor admission of the Board transcripts acted to deprive appellant of his right to a de novo hearing before the County Superintendent.

Having found that substantial, reliable and probative evidence indicated Johnson was dismissed for good cause and that appellant was properly afforded his right to a de novo trial, we affirm the judgment of the District Court upholding the decision by the County Superintendent to dismiss appellant.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and WEBER concur.