Kixmiller v. the Bd. of Curators of Lincoln Univ., No. WD 72999.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBefore Division Three: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and THOMAS H. NEWTON, Judge.
Citation341 S.W.3d 711,269 Ed. Law Rep. 395
PartiesCarl KIXMILLER, Appellant,v.The BOARD OF CURATORS OF LINCOLN UNIVERSITY, et al., Respondents.
Decision Date17 May 2011
Docket NumberNo. WD 72999.

341 S.W.3d 711
269 Ed.
Law Rep. 395

Carl KIXMILLER, Appellant,
v.
The BOARD OF CURATORS OF LINCOLN UNIVERSITY, et al., Respondents.

No. WD 72999.

Missouri Court of Appeals, Western District.

May 17, 2011.


[341 S.W.3d 712]

George S. Smith, for Appellant.Kent L. Brown, for Respondents.Before Division Three: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and THOMAS H. NEWTON, Judge.VICTOR C. HOWARD, Judge.

Carl Kixmiller appeals the judgment of the trial court dismissing his petition against the Board of Curators of Lincoln University, Carolyn Mahoney, and Jim Marcantonio. The judgment is reversed, and the case is remanded to the trial court.

Factual and Procedural Background

Mr. Kixmiller was hired in 2004 as a boiler operator by the Board of Curators of Lincoln University. On January 31, 2008, his employment with Lincoln University was terminated. Mr. Kixmiller filed a grievance on February 11, 2008, challenging his termination. On February 19, the University's Human Resources Services Director, Jim Marcantonio, completed his investigation of Mr. Kixmiller's grievance, and Mr. Kixmiller was informed of Mr. Marcantonio's conclusions by letter dated February 22, 2008. Thereafter, on February 26, 2008, Mr. Kixmiller, through his attorney, requested a review before the University's Internal Grievance Panel. On March 23, 2008, a hearing was held before a subcommittee of the Internal Grievance Panel. Mr. Kixmiller was informed by

[341 S.W.3d 713]

letter dated March 28, 2008, that the Grievance Panel had completed its investigation and that he could appeal to the President within five days. On April 18, 2008, the University's President, Carolyn Mahoney, informed Mr. Kixmiller that “the process will be restarted.” It never was.

On October 14, 2009, Mr. Kixmiller filed his two-count petition against the Board of Curators of Lincoln University and Carolyn Mahoney, and Jim Marcantonio in their official and individual capacities. In count I, Mr. Kixmiller sought a declaratory judgment as to his rights relating to the termination of his employment with the University. In count II against the individual defendants, Mr. Kixmiller sought damages for violation of due process.

Defendants filed a motion to dismiss the claims for failure to state a claim upon which relief can be granted for three reasons—Mr. Kixmiller's claims were barred by the thirty-day statute of limitations in section 536.110.1, RSMo Cum.Supp.2009, of the Missouri Administrative Procedure Act (MAPA); Lincoln University was protected by sovereign immunity; and count I for declaratory judgment should have been dismissed because Mr. Kixmiller had another adequate remedy, judicial review for contested cases under the MAPA. 1 The trial court dismissed Mr. Kixmiller's petition finding that he failed to file suit within thirty days under the MAPA. This appeal by Mr. Kixmiller followed.

Standard of Review

A motion to dismiss for failure to state a claim “ ‘is solely a test of the adequacy of the plaintiff's petition.’ ” City of Lake St. Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010)(quoting Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002)). “A court reviews the petition ‘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.’ ” Id. (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993)). The court treats the plaintiff's averments as true and liberally grants the plaintiff all reasonable inferences. Id. The credibility or persuasiveness of the facts alleged are not weighed. Id. Appellate review of a trial court's grant of a motion to dismiss is de novo. Id. The appellate court must affirm the trial court's ruling if the motion to dismiss could have been sustained on any of the meritorious grounds raised in the motion regardless of whether the trial court ruled on that particular ground.

[341 S.W.3d 714]

Breeden, 273 S.W.3d at 6 (internal quotes and citation omitted).

Analysis

In his first point on appeal, Mr. Kixmiller argues that the trial court erred in dismissing his petition based on lack of subject matter jurisdiction. He contends that the trial court had the authority to hear and decide the matter because failure to exhaust administrative remedies is an affirmative defense. In point two, Mr. Kixmiller contends that the trial court erred in determining that he failed to exhaust administrative remedies because his claim was not a contested case.2

Mr. Kixmiller is correct that the exhaustion of administrative remedies doctrine has traditionally been characterized as a jurisdictional requirement. Coleman v. Mo. Sec'y of State, 313 S.W.3d 148, 154 (Mo.App. W.D.2010). He is also correct that after the Missouri Supreme Court's decisions in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), and McCracken v. Wal–Mart Stores E., L.P., 298 S.W.3d 473 (Mo. banc 2009), the concept of subject matter jurisdiction is no longer applicable to evaluation of the effect of a failure to exhaust administrative remedies. Coleman, 313 S.W.3d at 154. A circuit court's jurisdiction—a...

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7 practice notes
  • Hansen v. Ritter, No. WD 74115.
    • United States
    • Court of Appeal of Missouri (US)
    • July 31, 2012
    ...allegations in the petition, and all reasonable inferences drawn there from, as true. Kixmiller v. Bd. of Curators of Lincoln Univ., 341 S.W.3d 711, 713 (Mo.App. W.D.2011). 2. Count II of the Amended Petition asserted a claim of negligence against Snyder. Count III asserted a claim of negli......
  • Doe v. Kan. City, Mo. Sch. Dist., No. WD 73800.
    • United States
    • Court of Appeal of Missouri (US)
    • May 29, 2012
    ...to dismiss, we cannot consider them as grounds for upholding the dismissal on appeal. See Kixmiller v. Bd. of Curators of Lincoln Univ., 341 S.W.3d 711, 713...
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...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 Prac......
  • Suppes v. Curators of the Univ. of Mo., WD 80231.
    • United States
    • Court of Appeal of Missouri (US)
    • June 20, 2017
    ...Edoho v. Bd. of Curators of Lincoln Univ. , 344 S.W.3d 794, 798 (Mo. App. W.D. 2011) ; Kixmiller v. Bd. of Curators of Lincoln Univ. , 341 S.W.3d 711, 715 (Mo. App. W.D. 2011).Suppes argues that under section 536.018, a university is exempt from the procedures and rules of the MAPA if it pr......
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7 cases
  • Hansen v. Ritter, No. WD 74115.
    • United States
    • Court of Appeal of Missouri (US)
    • July 31, 2012
    ...allegations in the petition, and all reasonable inferences drawn there from, as true. Kixmiller v. Bd. of Curators of Lincoln Univ., 341 S.W.3d 711, 713 (Mo.App. W.D.2011). 2. Count II of the Amended Petition asserted a claim of negligence against Snyder. Count III asserted a claim of negli......
  • Doe v. Kan. City, Mo. Sch. Dist., No. WD 73800.
    • United States
    • Court of Appeal of Missouri (US)
    • May 29, 2012
    ...to dismiss, we cannot consider them as grounds for upholding the dismissal on appeal. See Kixmiller v. Bd. of Curators of Lincoln Univ., 341 S.W.3d 711, 713...
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...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 Prac......
  • Suppes v. Curators of the Univ. of Mo., WD 80231.
    • United States
    • Court of Appeal of Missouri (US)
    • June 20, 2017
    ...Edoho v. Bd. of Curators of Lincoln Univ. , 344 S.W.3d 794, 798 (Mo. App. W.D. 2011) ; Kixmiller v. Bd. of Curators of Lincoln Univ. , 341 S.W.3d 711, 715 (Mo. App. W.D. 2011).Suppes argues that under section 536.018, a university is exempt from the procedures and rules of the MAPA if it pr......
  • Request a trial to view additional results

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