Cusumano v. Curators of University of Missouri, s. WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMANFORD
Citation632 S.W.2d 319
Parties4 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.
Docket NumberNos. WD,s. WD
Decision Date13 April 1982

Page 319

632 S.W.2d 319
4 Ed. Law Rep. 666
Joseph Victor CUSUMANO and Dr. Sidney Harmon, Appellants,
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.

Page 320

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


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

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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...

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