DeMarr v. Kansas City, Mo., School Dist.

• Decision Date: 22 January 1991
• Docket Number: No. WD,WD
• Citation: 802 S.W.2d 537
• Parties: 65 Ed. Law Rep. 952 John DeMARR, Appellant, v. KANSAS CITY, MISSOURI, SCHOOL DISTRICT, Respondent. 43023.
• Court: Missouri Court of Appeals

Page 537

802 S.W.2d 537

65 Ed. Law Rep. 952

John DeMARR, Appellant, v. KANSAS CITY, MISSOURI, SCHOOL DISTRICT, Respondent.

No. WD 43023.

Missouri Court of Appeals Western District.

Jan. 22, 1991.

Larry Delano Coleman, Kansas City, for appellant.

John R. Phillips, William W. LaRue, Maurice A. Watson, Kansas City, for respondent.

Before LOWENSTEIN, J., Presiding, and SHANGLER and MANFORD, JJ.

LOWENSTEIN, Judge Presiding.

Appellant John DeMarr appeals the trial court's grant of the motion to dismiss of respondent, School District of Kansas City, Missouri, and also the subsequent denial of appellant's motion for leave to file his first amended petition. The reader will note, this appeal concerns only a count for breach of an employment contract with the respondent school district. Section 432.070, RSMo 1986, infra. The bulk of his petition, and of the proposed amended petition, was in tort and ran afoul of the defense of sovereign immunity.

This case involves an employment contract dispute between DeMarr and the School District. DeMarr alleges he was hired by the School District to fill the position of "Videographer/Electronic Field Technician, Magnet," which had as its primary purpose the recruiting of white students to help desegregate the District by attending Magnet schools. The job was described in a personnel bulletin as follows:

General Purpose:

To produce and display Magnet demonstration materials and to assist in Mobile Unit recruiting efforts.

Responsibilities:

a. Under the direction of the Recruitment Coordinator, to plan, film, and produce videotapes of Magnet classes and related activities;

b. To operate mobile recruiting equipment, including but not limited to video display and computer equipment;

c. To maintain a library of magnet video display and computer assisted instruction demonstration materials;

d. To drive the mobile unit;

e. Assist the Recruitment Coordinator during mobile recruiting activities;

f. Perform other duties as assigned.

DeMarr left positions as a Producer/Director of an Alabama TV station, and as an instructor at Alabama State University to take this job. DeMarr alleged there were substantial differences between the position advertised and the position he filled. These variances are listed fully, infra, in a discussion of DeMarr's petition.

DeMarr filed a grievance with the District and received no relief. He then filed a seven count petition against the District. In six counts, he alleged the District committed the intentional torts of wrongful interference with a prospective business advantage, wrongful interference with an employment relationship, misrepresentation, and fraudulent inducement by permitting recruitment of persons for a job the District knew or should have known did not exist; and the unintentional torts of gross negligence in recruiting and hiring him for an advertised position that they knew or should have known did not exist, and negligent supervision of District agents and employees by permitting them to recruit him for a job that never existed. In his seventh count, DeMarr alleged he was "an employee at will, without a written contract," and as a result, asked the court to imply a contract as a matter of law.

The District moved to dismiss for failure to state a claim upon which relief could be granted. In support of its motion, the District argued that Demarr's claims were barred by sovereign immunity. DeMarr then sought leave to file a first amended petition. In one order, the court denied DeMarr's motion to file an amended petition and granted the District's motion to dismiss. The court reasoned that, despite changes reflected in the first amended petition, the District still had a valid defense of sovereign immunity.

DeMarr then filed a motion to modify the order, which the court treated as a motion to reconsider. The court also denied this motion, reasoning that the original and amended petitions failed to allege sufficient facts to establish a written contract as required by § 432.070, RSMo 1986. ¹ The court ruled that DeMarr pled no writing that would conceivably bind both parties, and that the plaintiff could not attempt to amend the petition to file a claim for breach of a contract that he admitted in the original petition did not exist.

As his only point of error on appeal, DeMarr alleges:

The Circuit Court erred in failing to grant John DeMarr leave to file his first amended petition, as that first amended petition pled sufficient facts to raise an inference of the existence of the type of written contract between John DeMarr and the Kansas City, Missouri School District to satisfy the requisites of RSMo. section 432.070, since that statute does not require a single document to establish a contract; hence, given the liberal construction accorded pleadings, when confronted with a motion to dismiss, the Court erred in sustaining the District's Motion to Dismiss.

This court will address his point of error in three parts. First, whether the District's motion to dismiss was properly granted. Although not a point on appeal, this court must examine the dismissal as the petition relates to the proffered amended version. Second, if the motion was properly granted, then whether DeMarr's motion for leave to file an amended petition was properly denied. Third, whether DeMarr's motion to modify the court's order was properly denied.

The scope of review for a motion to dismiss a petition for failure to state a claim requires examination of plaintiff's petition, allowing the petition its broadest intendment, treating all facts alleged as true, construing the allegations favorably to determine whether they invoke principles of substantive law entitling plaintiff to relief. Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). DeMarr's petition included the following legal conclusions:

The District engaged in willful misrepresentation and/or gross negligence by offering a position when it knew that the position's components either did not exist or had not been approved by the District's Board of Directors. The District acted recklessly and wantonly in recruiting for a position which they knew or should have known did not exist. The District fraudulently induced DeMarr to detrimentally rely upon and to accept their misrepresentation, by leaving his secure job with a CBS affiliate.

As stated earlier, the original petition asked the court to imply a contract since he was, "an employee at will without a written contract." The court reasoned that dismissal was proper because sovereign immunity would effectively bar DeMarr's claims.

Sections 537.600-537.610, RSMo 1986, protect public entities from liability and suits for compensatory damages for negligent acts or omissions. There are two exceptions to this general rule. First, sovereign immunity does not apply when the claim is based on the negligent acts or omissions by public employees arising out of the operation of motor vehicles within the course of their employment. Section 537.600.1(1), RSMo 1986. Second, sovereign immunity does not apply when the claim is based on injuries caused by dangerous conditions on the public entity's property. Section 537.600.1(2), RSMo 1986.

A school district "is a quasi public corporation, 'the arm and instrumentality of the State for one single and noble purpose ... to educate the children of the district.' " Taylor v. Klund, 739 S.W.2d 592, 593 (Mo.App.1987) (citations omitted). The Taylor court stated "presumably, a school district should be protected by the doctrine of sovereign immunity to the same extent as the State." Id. Because DeMarr did not plead facts constituting either of the statutory exceptions under § 537.600.1(1) and (2), sovereign immunity effectively bars DeMarr's claim for relief. The trial court did not abuse its discretion in dismissing DeMarr's petition.

Now addressed is the next issue as to whether the trial court properly denied DeMarr's motion for leave to amend his petition after a responsive pleading was filed. Under Missouri Rule of Civil Procedure 55.03(a), leave to amend a pleading "shall be freely given unless justice so requires." The scope of review for a motion for leave to amend a pleading is that the decision "rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court obviously abused its discretion." Scott v. Dowling, 636 S.W.2d 176, 178 (Mo.App.1982) (citation omitted). The trial court will be considered to have abused its discretion if justice is subverted by the court's decision. Id.

Justice was not subverted in this case. In his amended petition, DeMarr sought to join as additional defendants "Dr. George Garcia, in his official capacity as Superintendent, and Ms. Sue Fulsom, in her official capacity as President of the Board of Education." Among other changes, DeMarr revised Count VII. In amended Count VII, DeMarr admitted he was an employee at will and without a single, written contract. He asked the court to aggregate correspondence, minutes, other documents and parol evidence to imply a contract between DeMarr and the defendants. He also added Count VIII, as set out below:

30. Plaintiff alleges that the defendants jointly and severally established a contract with him; and breached their contract with him, in that writings between the defendants and the plaintiff establish the position which the plaintiff was to encumber, and prescribe his duties and responsibilities and set forth arriving...