Frimel v. Humphrey, KCD
| Decision Date | 08 August 1977 |
| Docket Number | No. KCD,KCD |
| Citation | 555 S.W.2d 350 |
| Parties | Karen M. FRIMEL, Kendall A. Shipley, and Donna K. Jones, Plaintiffs-Appellants, v. Norman HUMPHREY, John R. Ferguson, Jeanne Miller, Robert B. Goodrich, Carlton L. Milby, Betty Stites and Emory Parks, Defendants-Respondents. 28234. |
| Court | Missouri Court of Appeals |
George E. Kapke, Thomas D. Cochran, Piedimonte & Cochran, Independence, for plaintiffs-appellants.
Rufus Burrus, Independence, for defendants-respondents.
Before DIXON, P. J., and NORMILE, CONLEY and BELT, Special Judges.
This is an appeal from a judgment entered on August 21, 1975, denying appellants' application for a temporary injunction and the granting of respondents' motion to dismiss appellants' petition and assessing the costs of the action.
Appellants, Karen Frimel, Kendall Shipley and Donna Jones, were each offered probationary teaching contracts with the Independence School District on April 14, 1975. Each appellant executed and returned the probationary teaching contracts. All of the appellants were members of the Missouri Public School Retirement System.
The respondents acting as the Board of Education passed a resolution on June 24, 1975, furloughing ten probationary teachers including appellants.
Each appellant on June 25, 1975, was forwarded an identical letter from the school district which provided that they were being officially placed on leave by the Board of Education, without pay, because of "further erosion of the expected sources of revenue."
Thereafter, appellants filed a petition for temporary and permanent injunction. Respondents filed motions to dismiss, and a hearing was held on appellants' application for a temporary injunction. The trial court denied appellants' application for a temporary injunction and granted respondents' motion to dismiss. Appellants filed timely notice of appeal, and this appeal was perfected.
From an examination of the transcript, it appears that the hearing held before the trial court on July 30, 1975, was, in fact, on appellants' application for a temporary injunction and that there was no explicit stipulation to hear the case on its merits. It further appears from a review of the transcript that the plaintiffs-appellants assumed the burden of going forward with the evidence on the temporary injunction.
There are three permissible phases in an injunction proceeding:
(1.) a restraining order granted against a defendant with or without notice or hearing; . . .
(2.) temporary injunction granted after notice and summary hearing; and, . . .
(3.) permanent injunction granted after the pleadings are made up and the evidence is fully developed. (See Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 12 (Mo.App.1966).
It is furthermore noteworthy that the burden is expressly placed upon the defendant to show cause why the temporary injunction should not issue. See State ex rel. Eagleton v. Cameron, 384 S.W.2d 627 (Mo.1964).
Furthermore, the denial of a prayer for temporary injunction is not appealable. See Bayer v. Associated Underwriters, Inc., supra, and Goldman v. Hoehn, 228 Mo.App. 202, 64 S.W.2d 733 (1933).
The parties have, however, stipulated that there is no additional evidence other than that received at time of hearing on the temporary injunction and the sense of their comments at the oral argument is that they implicitly agreed to the hearing on the entire case. They likewise assumed the burden of going forward with the evidence as in a hearing on a permanent injunction. We consider this matter as a final appealable order from the trial court's action.
The correctness of the trial court's action depends upon an interpretation of § 168.124, RSMo 1969, and upon a determination as to whether the School Board's furloughing of appellants was unconstitutional, unlawful, unreasonable, arbitrary or capricious or involved an abuse of discretion. Rule 100.08.
Section 168.124 provides that:
"The board of education of a school district may place on leave of absence as many teachers as may be necessary because of a decrease in pupil enrollment, school district reorganization or the financial condition of the school district."
Subsection (1) further provides that a permanent teacher may not be furloughed if qualified for a position in which a probationary teacher is retained. A reasonable construction of this statute would indicate that both probationary and permanent teachers...
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