Sturgess v. Guerrant, KCD

• Decision Date: 11 June 1979
• Docket Number: No. KCD,KCD
• Citation: 583 S.W.2d 258
• Parties: Mr. and Mrs. Joseph E. STURGESS, Mr. and Mrs. Glen W. Pendegraft, Theron Carl Sturgess, by his next friend, Joseph E. Sturgess, and Bryan Pendegraft, by his next friend, Glen W. Pendegraft, Relators-Respondents, v. Mr. Robert GUERRANT, Mr. George H. Carrington, Mr. E. C. Tennyson, Mr. Ernest Wagner, Mr. Clyde Hickman, Mr. Frank Mahoney, Jr., and Mr. Robert Hunt, Sr., Respondents, Gary Vandelicht, Monroe Bartley, Jim Meyer, Stanley Brown, Wayne Brooks and Richard Smart, Intervenors-Appellants. 30199.
• Court: Missouri Court of Appeals

Page 258

583 S.W.2d 258

Mr. and Mrs. Joseph E. STURGESS, Mr. and Mrs. Glen W.

Pendegraft, Theron Carl Sturgess, by his next friend, Joseph

E. Sturgess, and Bryan Pendegraft, by his next friend, Glen

W. Pendegraft, Relators-Respondents, v. Mr. Robert GUERRANT, Mr. George H. Carrington, Mr. E. C.

Tennyson, Mr. Ernest Wagner, Mr. Clyde Hickman,

Mr. Frank Mahoney, Jr., and Mr. Robert

Hunt, Sr., Respondents,

Gary Vandelicht, Monroe Bartley, Jim Meyer, Stanley Brown,

Wayne Brooks and Richard Smart, Intervenors-Appellants.

No. KCD 30199.

Missouri Court of Appeals, Western District.

June 11, 1979.

Larry M. Woods, Sapp, Woods & Orr, Columbia, for intervenors-appellants.

James C. Swearengen, Kenneth R. Scatterly, Hawkins, Brydon & Swearengen, P.C., Jefferson City, for relators-respondents.

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

WASSERSTROM, Judge.

The parents of Theron Sturgess and the parents of Bryan Pendegraft applied to the Board of Directors of South Callaway R-II School District (hereafter referred to as "the Board") for reassignment of these two children to the Fulton School District under the authority of Section 167.121. ¹ The Board declined to make either reassignment. The parents, on behalf of themselves and as next friend of their respective children, filed a joint petition in the circuit court for mandamus to compel the transfers. The circuit court issued its alternative writ and thereafter its preemptory writ in favor of the relators. The Board appeals.

As a preliminary matter, we note that the relators failed to follow the customary practice of filing their application for mandamus in the name of the State. However, no point has been made with respect to this in either the trial court or in this court. Inasmuch as the defect is not jurisdictional, we will proceed to a consideration of the cause on its merits. England v. Eckley, 330 S.W.2d 738, l.c. 740 (Mo. banc 1960). This matter is mentioned only for the purpose of preventing the bar from being misled as to the proper form of procedure through any reliance upon the manner in which the present case is styled.

The facts are undisputed. The Sturgess and Pendegraft families live in the South Callaway R-II School District, and Theron and Bryan would both normally attend the Mokane Elementary School. However the area in which they live is much closer to the schools in the Fulton School District. Because of the greater convenience to the families in this area of sending their children to the Fulton schools, a petition was filed and an election held in 1972 with respect to a change of the school boundary line. Although the voters in the Fulton School District and the residents of this particular area voted in favor of a boundary change, the proposed change failed because of an adverse vote of the voters as a whole in the South Callaway R-II School District.

In 1976, Theron attained school age and the Sturgesses filed an application on April 25, 1976, to the Board for reassignment of Theron to the Fulton District. At a meeting of the Board, of which notice was sent to the Sturgesses, but which they did not attend, the Sturgess application was denied on July 14, 1976. The Sturgesses nevertheless enrolled Theron in the Bush Elementary School in the Fulton District at their own expense. They again requested a reassignment of Theron and the request was again denied on December 17, 1976.

Bryan Pendegraft was 11 years old at the time of the trial. He had attended the Mokane School until January 27, 1977. He was having reading difficulty, but the Mokane School had no remedial reading program. ² The Pendegrafts therefore requested a reassignment to the Fulton School District which did have such a program, but their application was denied by the Board on March 9, 1977. The Pendegrafts nevertheless enrolled Bryan in the Center School in the Fulton District at their own expense, and Bryan attended that school for the balance of the school year.

The application for mandamus by the two families to compel reassignment of the two children was filed in the circuit court on April 19, 1977, and alleged in accordance with the statutory language of Section 167.121 that the Fulton schools were "more accessible" to them than the Mokane School. An alternative writ was issued by the circuit court, to which the Board filed a return in which it denied the allegation of greater accessibility of the Fulton schools. In addition, the Board's return alleged "that to permit reassignment of said students to the Fulton School District will set a dangerous precedent by the Court which in effect constitutes a rewriting of the boundary lines of said school districts involved."

Preliminary to the trial in the circuit court, the parties entered into a stipulation which included the following facts. If Theron were required to attend the Mokane School, that would require a round trip of 46.6 miles each day. In contrast, the round trip to the Bush School is only 7.4 miles. The difference in daily mileage for Theron therefore comes to 39.2 miles. Bryan would have to travel 47.8 miles daily to the Mokane School, whereas the distance for the round trip to the Center School is only 8 miles, for a difference of 39.8 miles daily. On the other hand, South Callaway R-II District is the only school district authorized to furnish transportation to these children, and no such transportation is provided by the Fulton School District to them.

Additional facts were introduced by way of testimony. Uncontradicted testimony on behalf of Theron showed that his father is employed by the Fulton School District, the mother also works in Fulton, both travel there to work, and one or the other drives Theron to and from the Bush school. If both parents are delayed in the after school pickup for any reason, Theron can walk to the home of a babysitter who lives two blocks from the school and where Theron's younger sister is cared for during the day. As an alternative to that, neighbors who have children in the Fulton schools can pick Theron up and take him home.

The Sturgesses attend church in Fulton and they do their shopping and banking there. Their doctor and dentist are located in Fulton. If Theron were required to take the Mokane School bus, in the morning he would have to cross the road in front of his house to get to the bus, and that road has been the scene of some traffic accidents. Mrs. Sturgess works with the Bush School PTA assisting in school activities there, was president of the Fulton Art League and has been a member of the hospital auxiliary of Fulton. If the Mokane bus were utilized, Theron could arrive home before his parents and there would be no one to receive him.

The following uncontradicted testimony was offered with respect to Bryan. During his partial year attendance at Center School, he was driven each way by his mother in the family car. During the time he was at the Mokane School, he started but had to drop out of Cub Scouts because of the distance involved. He would have liked to attend school basketball games, but it was impossible for him to do so. He did not enter into any extracurricular activities at the Center School because he entered there too late in the school year, but during the ensuing school year he expected to participate in school wrestling and school basketball. Mrs. Pendegraft had been unable to participate in PTA activities at the Mokane School, but intended to participate in the PTA at the Center School. Bryan has an ear affliction, and the doctor to whom he goes for periodic attention is located in Fulton. The Pendegrafts do their shopping and banking in Fulton.

For its first point on appeal, the Board argues that the trial court erred in issuing its writ of mandamus because by doing so it improperly substituted its discretion for that of the Board. In support of that contention, the Board invokes the rule that mandamus will not lie to control or coerce a discretionary act of an administrative body. However, the rule relied upon by the Board was held in State ex rel. Seidl v. Jefferson County Board of Education, 548 S.W.2d 853 (Mo.App.1977) to be subject to the following exception: "Exception to the general rule is that in cases of undisputed facts, where the discretion of the official...