Payne v. City of Osage Beach

• Decision Date: 30 April 2004
• Docket Number: No. 25508.,25508.
• Citation: 132 S.W.3d 314
• Parties: John A. PAYNE, Plaintiff-Appellant, v. The CITY OF OSAGE BEACH, Missouri, a Municipal Corporation, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

132 S.W.3d 314

John A. PAYNE, Plaintiff-Appellant, v. The CITY OF OSAGE BEACH, Missouri, a Municipal Corporation, et al., Defendants-Respondents.

No. 25508.

Missouri Court of Appeals, Southern District, Division One.

April 30, 2004.

Richard D. Crites, Law Firm of Richard D. Crites & Associates, Springfield, for Appellant.

Michael G. Berry, Cari D. Collins, Jefferson City, and Clarence Hawk, Osage Beach, for Respondents.

PHILLIP R. GARRISON, Judge.

This is an appeal from a summary judgment entered in favor of the City of Osage Beach, Missouri ("the City"), and against John A. Payne ("Plaintiff").¹ The dispute primarily revolves around whether or not Plaintiff, who was a police officer with the City, resigned or quit that position, or if he was improperly terminated.

Plaintiff alleged in his second amended petition that on November 12, 1999 he was ill and attempted unsuccessfully to contact a supervisor in order to notify that person that he was ill and would not be able to work on that date. He alleged that he then contacted Ken Hammer ("Hammer"), the City Administrator, and because of emotional distress and his inability to contact a supervisor concerning his illness, he told Hammer that he was going to resign. According to Plaintiff's allegations, Hammer attempted to talk him out of resigning, and told him that if he was going to resign he would have to do so in writing, and that Hammer did not accept Plaintiff's statements as a resignation. He also alleged that he had no intent to resign and did not resign his employment. He further alleged that, four days later, on November 16, 1999, having "cooled down," he wrote a letter to Calvino, McCart, and the City that included an excuse from his doctor, and stated that as of that date he was still holding his position as corporal and, because of medical reasons, would be on two-weeks medical leave. Plaintiff alleged, however, that he was not allowed to return to his job as a police officer, was ordered to turn in all his city-owned equipment, and was told that his final paycheck was available for him to pick up. He alleged that as a result of the City's failure to allow him to return to his employment after the two-week sick leave, he was damaged in that he lost income, insurance benefits, vacation leave, sick leave and rank and seniority with the police department. He sought a judgment reinstating his employment to the date of the last payment to him, ordering that his seniority date back to his original hiring date, awarding him a judgment for the income he would have earned, and restoring his sick leave, vacation pay, and rank.

The City's answer alleged that Plaintiff resigned his employment by his oral statements to Hammer on November 12, 1999, that he was not involuntarily terminated, and that the City elected against reinstating him after his resignation. The City subsequently filed the motion for summary judgment that led to the trial court's judgment from which Plaintiff appeals.

The standard of review for an appeal from a summary judgment is described in ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). We are to review the record in the light most favorable to the party against whom the judgment was entered. Id. at 376. Facts set forth in affidavits or otherwise in support of a party's motion for summary judgment are taken as true unless contradicted by the non-moving party's response to the motion. Id. The non-movant is accorded all reasonable inferences from the record. Id. Our review is essentially de novo, and the criteria for determining the propriety of a summary judgment on appeal are no different from those that the trial court should employ in deciding to sustain the motion. Id. The propriety of a summary judgment is purely an issue of law, and since the trial court's judgment is founded on the record submitted and the law, we do not defer to the trial court's order granting the judgment. Id.

The key to entitlement to a summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. Id. at 380. Where the moving party is a defending party who will not bear the burden of persuasion at trial, that party need not controvert each element of the non-movant's claim in order to establish a right to summary judgment. Id. at 381. Rather, the defending party may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly pleaded affirmative defense. Id. Each of these three means establishes a right to a judgment as a matter of law. Id.

When the movant has made a prima facie showing required by Rule 74.04(c),² Rule 74.04(e) places the burden on the non-movant, who may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial. Id. If the non-movant cannot contradict the showing of the movant, judgment is properly entered against the non-movant because the movant has already established a right to judgment as a matter of law. Id. at 381.

Plaintiff contends that the summary judgment was erroneously entered because under Missouri law a police officer of a fourth class city will continue to hold that employment until terminated by the mayor and aldermen of the City, or until the employee effectively resigns his employment. Plaintiff contends that he was not terminated by the mayor and board of aldermen, and there was a genuine issue of material fact concerning whether he "actually or effectively" resigned his employment...