Norval v. Whitesell

Decision Date09 September 1980
Docket NumberNo. 61910.,61910.
Citation605 S.W.2d 789
PartiesMary and John NORVAL, Jr., etc., Appellants, v. Kenneth WHITESELL, Jr., et al., Respondents.
CourtMissouri Supreme Court

Mark R. Singer, Overland Park, Kan., Arthur A. Benson, II, Kansas City, for appellants.

Ray Fowler, Nevada, for respondents.

ALDEN A. STOCKARD, Special Judge.

Appellants' petition for a declaratory judgment and injunctive relief was dismissed by the trial court on the basis that the judgment in a previous case was res judicata of the issues pleaded. The judgment of dismissal was affirmed by the Missouri Court of Appeals, Southern District, but on application of appellants the case was transferred to this court.

In Count I of their petition appellants alleged they are the parents of a student attending the secondary school in the R-2 School System located at El Dorado Springs, Missouri, and that pursuant to a rule adopted by the School Board of said district the respondents, as officials of that district, have informed them that children attending the El Dorado High School would not be loaned free textbooks unless they made a cash deposit in the amount of $7.00 as a book deposit. They further allege that the rule is arbitrary, capricious and beyond the authority of the said School Board, and that it violates § 170.051 RSMo 1978, and Art. IX, § 1(a) Const. Mo.

By Count II of their petition appellants sought an injunction prohibiting such alleged unlawful conduct of respondents, and by Count III they asked for the return of the $7.00 collected from them.

A brief statement of the history of this and related litigation is necessary. In September 1973, Franz and Marian Penner filed suit in the Circuit Court of Cedar County, Missouri against the then members of the Board of Education of the R-2 School District at El Dorado Springs seeking a writ of mandamus. An alternative writ was issued. The petition alleged that the petitioners were the parents of two children who were students at the El Dorado High School, and that petitioners had been advised that textbooks would not be issued to their children unless a book deposit of $10.00 was made for each child. It was then alleged that the rule requiring the deposit was arbitrary, capricious, unreasonable and unlawful, and that petitioners had no plain, speedy or adequate remedy at law for the reason that any proceeding other than mandamus would not be finally determined until after an unreasonable time had expired. In the return to the alternative writ the defendants responded that the children had been tendered textbooks conditioned upon the payment of a cash deposit of $7.00 per student which would be refunded at the end of the school year if the books were returned in good condition, and that at the student's option a locker could be rented at the rate of $3.00 a year. In October, 1973 the court entered judgment denying the writ of mandamus. No appeal was perfected.

In July 1974 the Penners filed a second suit in the same court in which they sought a declaratory judgment that the requirement of a book deposit violated § 170.051 RSMo and that the requirement was in violation of the Missouri Constitution. The defendants filed a motion to dismiss alleging, among other grounds, that the judgment in the mandamus action was res judicata. The petition was dismissed and the judgment of dismissal was affirmed by the Missouri Court of Appeals. Penner v. Whitesell, 538 S.W.2d 772 (Mo.App.1976).

On December 2, 1975 the petition in the pending suit was filed by appellants, and respondents filed a motion to dismiss in which they alleged that the judgments in the two previous cases disposed of the issues and therefore constituted res judicata. That motion was sustained and this appeal followed.

The issue in this case is whether the final judgment entered in 1973 denying the Penners a writ of mandamus is res judicata as to appellants in this suit for a declaratory judgment and injunctive relief. We hold that it was not.

What is referred to as the doctrine of estoppel by judgment is set forth in Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo. banc 1966) by way of a quotation from Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, l. c. 122-123 as follows:

"`Generally, in order to have estoppel by a former judgment (res adjudicata), there must be: (1) Identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made, Rossi v. Davis et al., 345 Mo. 362, 133 S.W.2d 363, loc. cit. 373, 125 A.L.R. 1111, and cases there cited. The rule stated is, however, general and not exclusive. Res adjudicata may be as to a judgment or as to some particular facts litigated between the parties. In re McMenamy's Guardianship, 307 Mo. 98, loc. cit. 110, 270 S.W. 662, loc. cit. 665; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608, loc. cit. 611. * * * "A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action and persons in privity with them, and cannot be again litigated in any future action between such parties or privies,
...

To continue reading

Request your trial
29 cases
  • JBK, Inc. v. City of Kansas City, Mo., 83-1326-CV-W-0.
    • United States
    • U.S. District Court — Western District of Missouri
    • 14 Enero 1986
    ...the doctrine of "virtual representation." Defendants rely primarily upon the Missouri Supreme Court's decisions in Norval v. Whitesell, 605 S.W.2d 789 (Mo.1980) (en banc), State ex rel. Fort Zumwalt School Dist. v. Dickherber, 576 S.W.2d 532 (Mo. 1979) (en banc), and Siebert v. City of Colu......
  • State ex rel. Hewitt v. Kerr, SC 93846
    • United States
    • Missouri Supreme Court
    • 28 Abril 2015
    ...under very limited circumstances as it “is a hard and fast unreasoning writ, and is reserved for extraordinary emergencies.” Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980).A court should issue a writ of mandamus only if the relator has demonstrated a clear, unequivocal, and specif......
  • State ex rel. Chassaing v. Mummert
    • United States
    • Missouri Supreme Court
    • 22 Noviembre 1994
    ...his claims, a petition for a writ of mandamus. Mandamus will not lie. Mandamus is a discretionary writ, not a writ of right. Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980). Mandamus will lie only when there is a clear, unequivocal, and specific right. State ex rel. Sayad v. Zych, ......
  • Investors v. Kan. City Downtown Streetcar Transp. Dev. Dist.
    • United States
    • Missouri Court of Appeals
    • 24 Diciembre 2013
    ...preclusion principles described in Powell have been repeated, and applied, in a number of later cases. See, e.g., Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980); Seibert v. City of Columbia, 461 S.W.2d 808, 810–11 (Mo. banc 1970) (“It would be unthinkable in our system of jurispru......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT