Cusumano v. Curators of University of Missouri

• Citation: 632 S.W.2d 319
• Decision Date: 13 April 1982
• Docket Number: Nos. WD,s. WD
• Parties: 4 Ed. Law Rep. 666 Joseph Victor CUSUMANO and Dr. Sidney Harmon, Appellants, v. The CURATORS OF the UNIVERSITY OF MISSOURI, et al., Respondents. 32384, 32385.
• Court: Court of Appeal of Missouri (US)

Page 319

632 S.W.2d 319

4 Ed. Law Rep. 666

Joseph Victor CUSUMANO and Dr. Sidney Harmon, Appellants, v. The CURATORS OF the UNIVERSITY OF MISSOURI, et al., Respondents.

Nos. WD 32384, 32385.

Missouri Court of Appeals, Western District.

April 13, 1982.

James W. Devier, Columbia, for appellants.

Jackson A. Wright, James S. Newberry, Ted D. Ayres, Robert L. Ross, Columbia, for respondents.

Before CLARK, P. J., and MANFORD and KENNEDY, JJ.

MANFORD, Judge.

This appeal originated with the filing of two separate petitions seeking money damages for alleged breach of contract (Count I) and for the malicious disregard of contractual rights (Count II). The parties stipulated to a change of venue and subsequent thereto, a third count was amended to the petition, seeking money damages (Count III) for the alleged breach of administrative duties. The cases were consolidated for the purpose of the hearing upon the motion to dismiss. The judgment is in the form of an order of dismissal with prejudice. The appeals from the judgment were consolidated by this court. The judgment is affirmed.

In summary, appellant charges the trial court erred in the dismissal of the petitions upon the doctrine of res judicata because (a) there was no showing that the issues had previously been litigated between the parties and (b) there was no showing of sufficient identity of interest between the parties to conclude the parties were privies in a prior action.

Before reciting pertinent facts necessary to the disposition of this appeal, it is necessary to identify the parties. The parties within this appeal will hereafter be referred to by their party designation before the trial court. Joseph Cusumano and Sidney Harmon, appellants (plaintiffs at trial) were former faculty members of the University of Missouri-Rolla. The respondents (defendants at trial) are the University of Missouri, a public corporation (Mo.Const.Art. IX, § 9(a) and § 172.020, RSMo 1978); the Board of Curators of the University; James Olsen, President of the University; Merl Baker, University Chancellor; Dudley Thompson, Dean; Stewart Johnson, Dean; Glen Haddock, Department Chairman; and Harold Fuller, Dean. ¹

Plaintiff (Cusumano) was hired as an instructor of Engineering Mechanics on a one-year term appointment for the school year 1964-65. He thereafter received additional one-year term appointments for the school years 1965-66, 1966-67, 1967-68, 1968-69, 1969-70, and 1970-71. On or about March 31, 1971, he accepted a terminal one-year appointment for the 1971-72 school year. Plaintiff Harmon was hired as an Associate Professor of Mathematics for a one-year term for the school year 1968-69. He thereafter received additional one-year term appointments for the school years 1969-70 and 1970-71. On or about December 22, 1970, he accepted a terminal one-year appointment for the 1971-72 school year.

Plaintiffs appealed (to the Board of Curators) the decision on their one-year terminal contracts. Both contended that they were entitled to a status as tenured teachers. Pending this appeal, they filed a joint petition in the United States District Court of Missouri (Eastern District), alleging violation of 42 U.S.C. § 1983 (1970). This action was dismissed without prejudice for lack of jurisdiction and upon the abstention doctrine. Plaintiffs' appeals to the Board of Curators were denied and they filed a second action in the U.S. District Court (Eastern District). This second action also alleged a violation of 42 U.S.C. § 1983 (1970). In response, defendants filed a motion to dismiss on the basis that plaintiffs failed to state a claim against defendants. The U.S. District Court dismissed plaintiffs' petition with prejudice. Plaintiffs appealed to the 8th Circuit Court of Appeals. The 8th Circuit Court of Appeals affirmed the District Court dismissal. Plaintiffs sought review by writ of certiorari to the United States Supreme Court, but their petition was denied. After their petition for a writ was denied, on August 30, 1976, plaintiffs filed these separate but simultaneous actions in the Circuit Court of Phelps County. In response, defendants filed their motion to dismiss alternatively, alleging that the petitions were barred by the doctrine of res judicata and that the petitions failed to state a claim upon which relief could be granted against the defendants. A change of venue to the Circuit Court in Boone County was granted, the cases consolidated and a hearing on defendants' motion conducted. Following the hearing, the circuit court entered its order judgment declaring, "Defendants' Motion to Dismiss is sustained, as to all counts. Cause is ordered dismissed with prejudice. Costs taxed against plaintiff." This appeal followed, and the cases were consolidated on appeal as per the order of this court.

At the hearing on defendants' motion, by stipulation, two documents were admitted into evidence. The first was the appendix which had been filed in the 8th Circuit Court of Appeals, attending the appeal from the U.S. District Court. The second document was the Academic Tenure Regulations, University of Missouri. These regulations had been established and adopted by the Board of Curators, University of Missouri, on March 10, 1950 and were in effect at the time plaintiffs' contracts were executed and during the pendency of these proceedings.

Both parties spend a great deal of time and effort arguing the doctrine of res judicata. Because of the disposition made herein, this court need not reach and does not reach that point or the argument as to privity, and gives no consideration to either. The real question on this appeal is whether defendants had authority to limit the form or type of contract offered (and accepted) to plaintiffs or whether, by virtue of the respective positions of plaintiffs, the actions of defendants amounted to a breach of contract.

The trial court ordered dismissal of the petitions upon all grounds stated in the motion to dismiss. Here, if defendants' actions did not amount to a breach of contract, the petitions failed to state a claim for relief against defendants. It is evident on this appeal that appellants are preoccupied with the doctrine of res judicata. They overlook the remainder of the trial court's ruling which included their failure to state a claim for relief. Even if the trial court had not made its ruling and order inclusive of all grounds in the motion to dismiss, this court would be required to affirm the dismissal upon a finding that any ground asserted was valid, or that the result is correct even though the reason assigned is erroneous or incomplete. Pizzurro v. Estate of Hichew, 568 S.W.2d 263 (Mo.banc 1978); Campbell 66 Exp. v. Thermo King of Springfield, 563 S.W.2d 776 (Mo.App.1978). See also McClellan v. Highland Sales & Investment Co., 514 S.W.2d 371 (Mo.App.1974) and Rule 73.01(d).

As noted above, the Academic Tenure Regulations, University of Missouri (adopted March 10, 1950) were admitted by stipulation into evidence. The pertinent and applicable portions of those regulations are as follows:

CONCERNING PLAINTIFF CUSUMANO:

Sec. 4. Appointments of persons without experience to regular academic staff positions.

The following provisions apply to an appointment to regular academic staff position of a person who has not previously held a full-time regular or nonregular academic staff position at the rank of Instructor or higher at this University, or a comparable position elsewhere.

A. Instructor. Initial appointment at the rank of Instructor shall be a term appointment for one academic year. The maximum probationary period on term appointments shall not exceed seven years. During the appointee's initial one year term, and during each succeeding term through his seventh year of service, his dean or other appropriate administrative officer shall make one of the following recommendations, except that recommendations (1) and (2) shall not be made during the appointee's seventh year of service:

(1) that he be reappointed Instructor for a term;

(2) that he be promoted to Assistant Professor on term appointment. If such recommendation is effected by Board action Section 4 B controls thereafter, except that the maximum probationary period on term appointments shall not exceed seven years, and all of the service as an Instructor shall be credited toward said seven year period;

(3) that he be promoted to Assistant Professor on continuous appointment;

(4) in exceptional individual cases, that he be reappointed Instructor on continuous appointment;

(5) in special types of positions under the jurisdiction of the Dean of the College of...