Chadd v. City of Lake Ozark

• Decision Date: 07 December 2010
• Docket Number: No. WD 72098.,WD 72098.
• Citation: 326 S.W.3d 98
• Parties: Johnny Ray CHADD, Appellant, v. CITY OF LAKE OZARK, Respondent.
• Court: Missouri Court of Appeals

326 S.W.3d 98

Johnny Ray CHADD, Appellant,
v.
CITY OF LAKE OZARK, Respondent.

No. WD 72098.

Missouri Court of Appeals,
Western District.

Oct. 12, 2010.
Motion for Rehearing and/or Transfer t Supreme Court Denied Dec. 7, 2010.

326 S.W.3d 100

Anthony L. Gosserand, for Appellant.

Paul D. Link, for Respondent.

Before Division Two: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.

VICTOR C. HOWARD, Judge.

Johnny Ray Chadd appeals the summary judgment entered in favor of the City of Lake Ozark (City) on his petition for damages for wrongful termination (lost wages) and prima facie tort. Mr. Chadd claims that the trial court erred in finding that the doctrine of res judicata barred his claim for lost wages and that the doctrines of employment-at-will and sovereign immunity barred his prima facie tort claim. The judgment is affirmed.

The City hired Mr. Chadd as the city administrator in the fall of 2004. On August 9, 2005, at a meeting of the board of alderman, Mr. Chadd was discharged from the position after a split vote of the board of alderman and a tie-breaking vote by the mayor.

Thereafter, on October 10, 2005, Mr. Chadd filed a petition for peremptory writ of mandamus in the Miller County Circuit Court alleging that he had been terminated illegally and seeking an order requiring the City to reinstate him. He did not seek any other relief in that action. The circuit court entered its judgment and order denying Mr. Chadd's petition.

Mr. Chadd appealed the circuit court's judgment, and this court issued a mandate to the circuit court directing it to enter an order requiring the City to reinstate Mr. Chadd as the city administrator. It found that statute and city ordinance required a vote of the mayor and a majority of the board of alderman to remove city officers.

326 S.W.3d 101

Chad v. City of Lake Ozark, 223 S.W.3d 208, 214 (Mo.App. W.D.2007).

On August 16, 2007, the circuit court entered its judgment ordering the City to reinstate Mr. Chadd as the city administrator. On August 20, 20007, the City reinstated Mr. Chadd to the position of city administrator. It then immediately removed Mr. Chadd from the position by a unanimous vote of the board of alderman.

Thereafter, Mr. Chadd filed his petition for damages seeking damages for wrongful termination, specifically lost wages for the period between the first termination and the reinstatement, and for prima facie tort in connection with his second termination. The City filed a motion for summary judgment. The trial court granted the City's motion for summary judgment finding that Mr. Chadd's claim for lost wages was barred by the doctrine of res judicata and the prima facie tort claim was barred by both the employment-at-will and sovereign immunity doctrines. This appeal by Mr. Chadd followed.

Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. Facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id.

A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Id. at 381.

Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.

Res Judicata

In his first point on appeal, Mr. Chadd claims that the trial court erred in entering summary judgment in favor of the City on the first count of his petition for wrongful termination (lost wages) based on the doctrine of res judicata. He argues that the identities of cause of action and thing sued for were lacking.

The Latin phrase " res judicata " means "a thing adjudicated" and prohibits a party from bringing a previously litigated claim. Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712, 715 (Mo. banc 2008); Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002)(quoting Black's Law Dictionary 1312 (7th ed.1999)). Now commonly referred to as claim preclusion, res judicata also precludes a litigant from bringing, in a subsequent lawsuit, claims that, with the exercise

326 S.W.3d 102

of reasonable diligence, could have been brought in the first suit. Kesterson, 242 S.W.3d at 715.

For res judicata to adhere, "four identities" must occur: 1) identity of the thing sued for; 2) identity of the cause of

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