Phipps v. School Dist. of Kansas City, KCD

• Decision Date: 04 September 1979
• Docket Number: No. KCD,KCD
• Parties: Thomas J. PHIPPS, Appellant, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Respondent. 30208.
• Court: Missouri Court of Appeals

Page 128

588 S.W.2d 128

Thomas J. PHIPPS, Appellant, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Respondent.

No. KCD 30208.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 1, 1979.

Application to Transfer Denied Nov. 14, 1979.

Doyle R. Pryor, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, for appellant.

Taylor Fields, North, Colbert & Fields, Kansas City, for respondent.

Before SHANGLER, P. J., WASSERSTROM, C. J., and CLARK, J.

WASSERSTROM, Chief Judge.

This case stems out of the 1977 Kansas City school strike, during which many of the school employees, including plaintiff Phipps, were terminated for strike activity. As part of the strike settlement, the parties agreed to reinstatement of most of the employees who had been terminated. The job offered to Phipps by way of reinstatement was unacceptable to him, and he pursued a grievance proceeding before the defendant School District. From an adverse ruling in the grievance proceeding, he sought review in the circuit court. The circuit court dismissed his petition, from which action Phipps pursues the present appeal.

Some of the basic facts appear in the Petition for Review filed by Phipps in the circuit court, and other of the facts appear in the School District's Motion to Dismiss and exhibits attached thereto. On April 25, 1977, Phipps' employment was terminated "for excessive absence." At that time he had the position of Custodian-Fireman. On May 9, 1977, pursuant to an order by Judge Clymer in the circuit court, the terminated employees including Phipps were reinstated. However, in School District of Kansas City v. Clymer, 554 S.W.2d 483 (Mo.App.1977), this court held Judge Clymer exceeded his jurisdiction and prohibited enforcement of his order. Pursuant to that writ of prohibition, Phipps was again terminated effective July 8, 1977. It is of key importance for the purposes of this case to note that during the brief period that Phipps had been reinstated under Judge Clymer's order of May 9, 1977, he had been demoted from Custodian-Fireman to the lower classification of Custodian I.

The legal battle, however, had just begun. On July 13, 1977, the striking employees filed a class action lawsuit in the federal court under the Civil Rights Act. They complained that their civil rights had been violated in that their termination of employment was without just cause as required by certain published Board policies, and because further the School District had failed and refused to process this complaint as a grievance as required by other published Board policies and the requirements of constitutional due process.

On August 26, 1977, the School District and the Service School Employees Union, Local 12, entered into a Tentative Agreement, which provided in part for settlement as follows:

"1. All employees terminated effective April 25, 1977 and/or July 8, 1977 will be permitted to apply for reappointment to the positions from which they were terminated.

"2. (E)ach person who applies for reappointment by delivering to the District a completed form requesting reappointment shall be reappointed to a position with the same salary as that position held with the District on the date of termination. . . .

"7. The pending lawsuit (Walker et al., v. Carpenter, et al.) will be dismissed with prejudice . . . .

"8. Except in the event of an alleged breach of this agreement by the School District, no further administrative, legal or equitable proceedings will be instituted or financed by Local 12 on behalf of these employees terminated on April 25, and/or July 8, 1977 for reasons related to said terminations or relative to the job action against K. C. School District and arising during the period 3/20/77 through 7/8/77. All alleged breaches of this agreement will be processed through the agreed upon grievance procedures."

Thereafter Phipps did apply for reinstatement in compliance with the terms of the agreement, and he was offered reinstatement as Custodian I, the job he held on the date of the second separation effective July 8. Phipps refused that offer on the ground that he was entitled to reinstatement as Custodian-Fireman, the position he held on April 25, 1977, the date of original termination. In view of this disagreement, Phipps initiated grievance proceedings under Board Policy No. 6580, a hearing was held as provided under that policy, with an ultimate denial by the School District of Phipps' claim on January 13, 1978. ¹

While that grievance procedure was in progress, the School District and the Union were also moving toward a formal disposition of the federal court litigation. By consent of the parties, the federal court entered an order on January 18, 1978, that notice of the proposed settlement and dismissal of the class action be mailed to all members of the class, and such a notice was mailed to all of the affected employees, including Phipps, on January 23, 1978. That notice provided in part as follows:

"Walker and Caldwell have requested this Court to dismiss this action because Walker and Caldwell and the people they represent have either (1) had the opportunity to return to work at the School District and have not responded to that opportunity or (2) have in fact returned to the School District as full-time employees.

"If this action is dismissed by the Court as requested by plaintiffs and defendants, it may prevent you from making the same claims against these defendants in the future. If you do not believe that this case should be dismissed in a manner which might effect (sic) your ability to make these claims in the future, you should file a written statement with the Honorable Elmo Hunter, United States District Judge, 811 Grand Avenue, Kansas City, Missouri, with copies to Mr. Pryor and Mr. Bartlett at the addresses shown above, on or before January 30, 1978, setting forth in detail each reason why you object to this proposed settlement. If you do not file such a statement prior to January 30, 1978, the Court may dismiss this action as requested by both plaintiffs and defendants."

The present action was filed in the circuit court on February 10, 1978, and sought judicial review "of a final decision in a contested case" or alternatively for judicial review "in the nature of certiorari." The School District responded with a motion to dismiss for failure to state a claim upon which relief could be granted. That motion was sustained by the trial court.

That ruling by the trial court was not explained by any finding, conclusion or statement of reasons. However, the grounds for the motion as set forth therein and as argued by the School District in this court rest on the following theories: 1) that the dismissal with prejudice of the federal court action bars the present litigation under the principles of res judicata; and 2) that Phipps has not followed the proper procedure for a judicial review, in that (a) this is not a "contested case" ; and (b) the requirements for reviewing an "uncontested case" have not been met. We have concluded that these objections are not sound and that the dismissal of this case by the trial court must be reversed.

I. Res Judicata

Phipps' first rejoinder to the res judicata argument is that the School District did not lay any proper foundation for a ruling on that issue in that: (a) the motion to dismiss was not verified, it was not supported by any affidavit, and the purported federal court records attached as exhibits were not certified; and (b) the trial court did not purport to treat the motion to dismiss as a motion for summary judgment, as would be required under Rules 55.27(a) and 74.04 in order for the motion to dismiss to be given effect as a "speaking motion."

Phipps is technically correct, especially in regard to the first of the two contentions just mentioned. However, there is no dispute whatsoever as to what happened in the federal court. In the course of oral argument before this court, counsel for Phipps with commendable candor stated with respect to the federal court documents: "I don't dispute that they were authentic. . . . They are what they purport to be." We will treat that concession as a stipulation concerning the authenticity of the federal records in question. The failure of the trial court to formally treat the School Board's motion to dismiss as a motion for summary judgment under Rule 74.04 is of little moment and will be disregarded.

The present proceeding cannot be deemed foreclosed by the federal litigation under the strict doctrine of res judicata. Under that doctrine, taken in its strict sense, a second suit becomes precluded only when it proceeds on the same cause of action as that of an earlier case which has already been adjudicated. L_ v. R_, 518 S.W.2d 113 (Mo.App.1974). The present situation is not of that character. The cause of action here differs sharply from that presented in the federal court. The federal court litigation sought to vindicate a federal right not to be discharged without a hearing on the issue of just case. The present cause involves a completely different question as to whether Phipps is entitled to be reinstated as a Custodian-Fireman rather than as a Custodian I.

Nor does the related doctrine of collateral estoppel apply. That doctrine comes into play only when a party seeks to relitigate for a second time an issue which has already been decided in prior litigation between the same parties or their privies. There is no issue in the present case which was ever before the federal court. The issue here has to do with the proper interpretation of the settlement agreement which led to the consent disposition of the federal case. No problem concerning that settlement agreement was, nor in the nature of things could it have been, a subject of the pleadings in the federal case. Nor was this issue of interpretation presented to the federal court in any...