Jennings v. Bd. of Curators of Mo. State Univ.

• Decision Date: 18 September 2012
• Docket Number: No. SD 31900.,SD 31900.
• Citation: 386 S.W.3d 796
• Parties: Mary Ann JENNINGS, Appellant, v. The BOARD OF CURATORS OF MISSOURI STATE UNIVERSITY, Respondent.
• Court: Missouri Court of Appeals

386 S.W.3d 796

Mary Ann JENNINGS, Appellant,

v.The BOARD OF CURATORS OF MISSOURI STATE UNIVERSITY, Respondent.

No. SD 31900.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 27, 2012.

Rehearing Denied Sept. 18, 2012.

George Swearingen Smith, Columbia, for Appellant.

Ian P. Cooper, St. Louis, for Respondent.

DANIEL E. SCOTT, P.J.

Mary Ann Jennings (“Plaintiff”), a tenured faculty member at Missouri State University (“MSU”), initially sued MSU for age discrimination and retaliation (“Jennings I”). She later sought leave to file an amended petition adding two more counts for (1) breach of implied covenant of good faith and fair dealing, and (2) a declaratory judgment and other relief per Missouri's Administrative Procedure Act (“MAPA”).¹ The trial court denied Plaintiff's request.

With Jennings I still pending, Plaintiff filed her new claims as a separate two-count action in the same court (“Jennings II”). MSU moved to dismiss Jennings II for failure to state a claim (Rule 55.27(a)(6)) and because “another action pend[s] between the same parties for the same cause in this state” (Rule 55.27(a)(9)). The trial court granted MSU's motion.

Plaintiff appeals the dismissal of Jennings II. Our review is de novo. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App.2005). As the trial court did not state the reason for its ruling, we will affirm if dismissal was proper on any ground stated in MSU's motion. Fleddermann v. Camden Cty., Missouri Bd. of Adj., 294 S.W.3d 121, 124 (Mo.App.2009).

Rule 55.27(a)(6)—General Principles

A Rule 55.27(a)(6) motion solely tests a petition's adequacy. Id. We deem factual allegations true and review the petition almost academically to determine if the alleged facts state a recognizable action. See Avila v. Community Bank of Virginia, 143 S.W.3d 1, 4 (Mo.App.2003).

Nonetheless, “motions to dismiss for failure to state a claim have substantially more ‘bite’ under our ‘fact pleading’ rules than they have under the federal system of ‘notice pleading.’ ” ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 379 (Mo. banc 1993). Our rules “demand more than mere conclusions that the pleader alleges without supporting facts.” Pulitzer Pub. v. Transit Cas. Co., 43 S.W.3d 293, 302 (Mo. banc 2001); see also Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005). We disregard such conclusions in determining whether a petition states a claim. Solberg, 174 S.W.3d at 699.

Count I—Good Faith and Fair Dealing

Citing Missouri case law, the Eighth Circuit has noted that:

The law does not allow the implied covenant of good faith and fair dealing to be an everflowing cornucopia of wished-for legal duties; indeed, the covenant cannot give rise to new obligations not otherwise contained in a contract's express terms. Glass v. Mancuso, 444 S.W.2d 467, 478 (Mo.1969). The implied covenant simply prohibits one party from “depriv[ing] the other party of its expected benefits under the contract.” Morton v. Hearst Corp., 779 S.W.2d 268, 273 (Mo.Ct.App.1989) (citing Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466, 473 (Mo.Ct.App.1986))....

Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063, 1066 (8th Cir.1996).

That said, it appears that a written employment contract for a definite term implies a covenant of good faith and fair dealing which is breached if an employer, in bad faith, exercises its contractual right to unilateral action in order to deprive the employee of expected contract benefits. See Morton v. Hearst Corp., 779 S.W.2d 268, 273 (Mo.App.1989). As developed by later (non-employment) cases, this implied duty is to not “us[e] express contract terms in such a way as to evade the spirit of the transaction or to deny a party an expected contract benefit.” Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.App.2000); see also Missouri Consolidated Health Care Plan v. Community Health Plan, 81 S.W.3d 34, 46 (Mo.App.2002).

Given these cases and our fact-pleading rules, Plaintiff had to plead more than mere conclusions without supporting facts (Pulitzer, 43 S.W.3d at 302), showing that MSU used express contract terms in bad faith to deny Plaintiff an expected contract benefit or evade the spirit of the transaction.

Count I does not meet this standard.² In conclusory fashion, Plaintiff twice charges MSU with “not complying with the Faculty Handbook concerning Plaintiff's reassignment and the Faculty grievance process.” With no greater specificity, she complains that “MSU's reassignment and the decisions in Plaintiff's grievance, taken in violation of the Faculty Handbook and under the terms of Plaintiff's contract, was wrongful, in bad faith, and in violation of its duties.” Such conclusions, however, are offered without supporting facts. What was the “reassignment”? What was “Plaintiff's grievance”? What were “the decisions in Plaintiff's grievance”? How was “the Faculty grievance process” allegedly amiss? How was any of the foregoing allegedly “in violation of the Faculty Handbook ” or “the terms of Plaintiff's contract” or otherwise “wrongful, in bad faith, and in violation of [MSU's] duties” (and indeed, what “duties”)?

Perhaps most importantly, Count I wholly fails to allege, as it must per Missouri Consolidated and Koger, express contract terms that MSU supposedly misused in bad faith. Bare mention of “the Faculty Handbook,” or “the terms of Plaintiff's contract,” or MSU's “duties” does not meet Missouri fact pleading standards or identify express contract terms that might support the Count I claim.³

Our supreme court has firmly stated that “Missouri is not a ‘notice pleading’ state.” ITT, 854 S.W.2d at 379. That Count I may give MSU “ ‘fair notice of what the plaintiff's claim is and the grounds upon which it rests' ” is not good enough. Id. (quoting and distinguishing federal pleading standard as expressed in Conley v. Gibson, 355 U.S. 41, 47–48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).⁴ Count I fails to state a claim under Rule 55–05(1).

Count II—Declaratory Judgment

Count II seeks a declaratory judgment per § 536.150, despite our supreme court's 1995 prescience that “applicability of the MAPA to colleges and universities may now be a moot point because the general assembly has enacted § 536.018, RSMo 1994, which states that the term ‘agency’ does not include an institution of higher education that has otherwise established constitutionally adequate safeguards.” State ex rel. Yarber v. McHenry, 915 S.W.2d 325, 330 n. 3 (Mo. banc 1995).⁵See also Edoho v. Bd. of Curators of Lincoln Univ., 344 S.W.3d 794, 798 (Mo.App.2011); Kixmiller v. Bd. of Curators of Lincoln Univ., 341 S.W.3d 711, 715 (Mo.App.2011). Such institutions seem to be “out from under the MAPA for all purposes and all cases....” Alfred S. Neely IV, 20 Missouri Practice, Administrative Practice and Procedure § 3.1, p. 81 (2006).

As in Kixmiller, 341 S.W.3d at 715, Plaintiff's petition fairly read “avers that the University's rules and regulations represented to employees that reasons would be provided and a hearing would be allowed before termination implying a self-imposed prohibition against terminating an employee unfairly and a promise not to terminate without providing some procedural due process.” Given these allegations, by parity of reasoning with sovereign immunity, it seems that Plaintiff should further allege why or how a MAPA claim lies against MSU. We need not develop our views on this, however, since even if the MAPA did apply, circuit court review thereunder does not include the power of equity or of declaratory judgment. Anderson v. Div. of Child Support Enforcement, 995 S.W.2d 546, 549 (Mo.App.1999).⁶

Conclusion

Given our disposition on Rule 55.27(a)(6) grounds, we need not reach any Rule 55.27(a)(9) issues or arguments. The judgment of dismissal is affirmed.

ROBERT S. BARNEY, J., concur.

NANCY STEFFEN RAHMEYER, J., dissents in separate opinion.

NANCY STEFFEN RAHMEYER, J., dissenting.

I respectfully disagree with the majority opinion that Plaintiff did not plead a cause of action.

The standard of review for the granting of a motion to dismiss is de novo. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001). Where a trial court fails to state a basis for its dismissal, the appeals court will presume that the dismissal is based on the grounds stated in the motion to dismiss. Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo.App. E.D.1996). The appeals court will affirm the dismissal if it can be granted on any grounds supported by the motion to dismiss. McBride v. McBride, 288 S.W.3d 748, 750–51 (Mo.App. S.D.2009).

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. [The court] assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) (internal citations omitted). A petition cannot be dismissed for failure to state a claim if it asserts any facts which, if proved, would entitle the plaintiff to relief. Duggan v. Pulitzer Pub. Co., 913 S.W.2d 807, 810 (Mo.App. E.D.1995).

Plaintiff's first count in Jennings II, as noted herein, was for a breach of the implied covenant of good faith and fair dealing. MSU argues that to be able to recover for that breach, there must be a contract and that Plaintiff never claimed there was a contract. Her petition sets forth the additional factual allegations that have a bearing on whether she stated a claim:

2. Missouri State University (“MSU”), formerly known as Southwest Missouri State University, is an institution of higher education created pursuant to §§...