McCormack v. Maplewood-Richmond Heights School Dist. Bd. of Educ.

• Decision Date: 22 October 1996
• Docket Number: MAPLEWOOD-RICHMOND
• Citation: 935 S.W.2d 703
• Parties: 115 Ed. Law Rep. 171 Carol McCORMACK, Plaintiff/Appellant, v.HEIGHTS SCHOOL DISTRICT BOARD OF EDUCATION, and Charlotte Cobb, Board President, Lynn Shipp, Sue Wadsack, Ann Clark, Mary Tessereau, Roy Nickles, Pickett Lema, Board Members, and Jerry Elliott, Jr., Superintendent, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 703

935 S.W.2d 703

115 Ed. Law Rep. 171

Carol McCORMACK, Plaintiff/Appellant, v. MAPLEWOOD-RICHMOND HEIGHTS SCHOOL DISTRICT BOARD OF EDUCATION, and Charlotte Cobb, Board President, Lynn Shipp Sue Wadsack, Ann Clark, Mary Tessereau, Roy Nickles, Pickett Lema, Board Members, and Jerry Elliott, Jr., Superintendent Defendants/Respondents.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 22, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 17, 1996.

Application to Transfer Denied

Jan. 21, 1996.

Lawrence J. Altman, Gerard A. Fowler, Clayton, for plaintiff/appellant.

Thomas A. Mickes, Peper, Martin, Jensen, Maichel and Hetlage, Peter G. Yelkovac, St. Louis, for defendants/respondents.

CRANE, Presiding Judge.

A former public high school principal appeals the entry of summary judgment in defendants' favor on all counts of her petition seeking damages on various causes of action arising out of her midcontract termination as principal. We affirm.

Plaintiff, Carol McCormack, began her employment with the Maplewood-Richmond Heights School District as an assistant principal at the Maplewood-Richmond Heights High School in July, 1991. She was reemployed as a principal under one-year contracts for the 1992-93 and 1993-94 school years. In February, 1994 defendant Jerry Elliott, Jr., the district superintendent, met with McCormack to discuss concerns about her job performance. On March 14 and 15, 1994 the superintendent again met with McCormack to discuss her job performance. At that meeting McCormack was given job targets, which were written notifications of areas that needed improvement. On April 11, 1994, the superintendent issued a memorandum to McCormack advising her that she would be offered a contract for the 1994-95 school year. It also mentioned concerns evidenced by the job targets dated March 14, 1994 that needed to be addressed.

On June 16, 1994 the defendant Maplewood-Richmond Heights Board of Education (the school board) sent McCormack a Letter of Notification setting her salary for the 1994-95 school year. It asked her to sign and return the letter before July 18, 1994 if she intended to be employed by the district for the 1994-95 school year. McCormack signed this letter. On July 20, 1994 McCormack and the superintendent met to review her job targets. At that time the superintendent told her that she had not achieved her job targets and that her performance would be monitored during the 1994-95 school year.

McCormack began the 1994-95 school year as principal at the district's high school. On October 4, 1994 the superintendent met with McCormack and informed her that he intended to request that the school board either terminate her or request her resignation. At that time the superintendent addressed five incidents that led to his decision. McCormack then provided the superintendent with what she described as a "very complete explanation in response to all five incidents addressed." The meeting lasted forty-five minutes to an hour. McCormack testified by deposition that she had a "fair opportunity" to tell him how she felt.

On October 21, 1994 the superintendent advised McCormack by letter that at its October 19 meeting the school board had voted to terminate her current contract and not to renew her contract as a principal for the 1995-96 school year. The letter advised her that if she desired a written statement itemizing the reasons for this decision, it would be provided if requested within ten days. If she desired a hearing before the school board, it would be afforded to her if she requested it within ten days of receipt of the statement of reasons. She could elect an open or a closed hearing. On October 28, 1994 McCormack requested a written statement of the reasons for non-renewal. By letter dated November 7, 1994, the superintendent listed twenty-four reasons her contract was not to be renewed and also advised that McCormack's current contract was terminated for the same reasons. McCormack did not request a hearing with the school board.

On October 28, 1994, the same day she requested a written statement of reasons for non-renewal, McCormack filed a four-count petition in the St. Louis County Circuit Court naming as defendants the school board, seven school board members, and the superintendent. Her subsequently-filed amended petition alleged breach of her 1994-95 employment contract by illegal termination procedures, statutory and constitutional due process violations in the termination of that contract, defamation, and infliction of emotional distress. Each of the counts sought damages arising out of her mid-contract termination. She did not challenge the decision to not renew her contract.

McCormack filed a motion for summary judgment on Counts I and II of her amended petition and defendants filed a motion for summary judgment on all four counts of the amended petition. The trial court granted summary judgment in favor of all defendants on all counts of the amended petition. On appeal McCormack challenges both the denial of her summary judgment motion and the grant of the defendants' motion for summary judgment.

For her first point McCormack asserts the trial court erred in denying her motion for summary judgment on Counts I and II. The denial of a motion for summary judgment is not an appealable order even where the order denying summary judgment to one party is entered at the same time as an appealable order granting summary judgment to the other party. Estate of Knapp by and through Igoe v. Newhouse, 894 S.W.2d 204, 208 (Mo.App.1995); Lake Center Boatworks, Inc. v. Martin, 804 S.W.2d 842, 844 (Mo.App.1991). Accordingly, point one is denied.

For her second point McCormack contends as follows:

DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT TO RESPONDENTS ON ALL FOUR COUNTS OF PETITIONER'S FIRST AMENDED PETITION WHEN JUDGMENT SHOULD HAVE BEEN GRANTED TO PETITIONER ON COUNTS I AND II OF HER FIRST AMENDED PETITION AS A MATTER OF LAW AND WHEN THERE WERE GENUINE MATERIAL ISSUES OF FACT IN DISPUTE IN REFERENCE TO COUNTS III AND IV OF PETITIONER'S FIRST AMENDED PETITION WHICH WOULD HAVE PRECLUDED A JUDGMENT FOR RESPONDENTS ON COUNTS III AND IV OF PETITIONER'S FIRST AMENDED PETITION AS A MATTER OF LAW.

The defendants attack this point on procedural grounds, arguing that it does not comply with the "wherein and why" requirements of Rule 84.04(d), and therefore preserves nothing for review. This argument is well-taken.

The contentions advanced in this point merely track the standard for granting summary judgment and are too general to raise an issue on appeal. Chancellor Development Co. v. Brand, 896 S.W.2d 672, 674 (Mo.App.1995); Rule 84.04(d). These statements do not set forth with sufficient specificity "wherein and why" the trial court erred. In particular, they fail to present the disputed facts and why those facts were material with respect to Counts III and IV and fail to identify the legal theories upon which the trial court should have relied to grant judgment in McCormack's favor as a matter of law on all four counts. See Chancellor, 896 S.W.2d at 674. See also Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 858-59 (Mo.App.1993). Further, phrasing a point in the form of a question is not proper form. Chancellor, 896 S.W.2d at 674; Schnucks v. Bridgeton Health and Fitness, 884 S.W.2d 733, 741 n. 1 (Mo.App.1994).

In addition, all of plaintiff's contentions on appeal with respect to the contract count, the statutory/constitutional due process count, the defamation count, and the emotional distress count are made under this one point. When an appellant contends that an order which disposes of multiple counts based on different causes of action is erroneous, a separate point of error with respect to each count is advisable. Chancellor, 896 S.W.2d at 674; Gould v. Missouri State Bd. of Registration for the Healing Arts, 841 S.W.2d 288, 290 n. 3 (Mo.App.1992). Moreover, separate issues should be stated in separate points. Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978); In re Marriage of Cohen, 884 S.W.2d 35, 37 n. 1 (Mo.App.1994).

This point relied on preserves nothing for review. However, because this case involves a matter of public interest, we will address the arguments in the brief which are arguably encompassed by this point so as to render a decision on the merits.

In the argument portion of her brief, McCormack contends that the trial court erred in granting summary judgment on each of the four counts of her amended petition. Rule 74.04(c) provides that summary judgment shall be entered where the moving party has demonstrated, through the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

When considering an appeal from an order granting summary judgment, we view the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id.

Review of summary judgment is essentially de novo. Id. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. The propriety of summary judgment is purely an issue of law. Id. As the trial court's judgment is founded on the record submitted and the law, we need not defer to the trial court's order granting summary judgment. Id.

Counts I and II

In Count I McCormack alleged that her 1994-95 contract was illegally terminated and sought the alternative remedies of...