Vandever v. Junior College Dist. of Metropolitan Kansas City

• Decision Date: 25 February 1986
• Docket Number: Nos. WD,s. WD
• Citation: 708 S.W.2d 711
• Parties: 32 Ed. Law Rep. 343 Elizabeth VANDEVER, Appellant-Respondent, v. The JUNIOR COLLEGE DISTRICT OF METROPOLITAN KANSAS CITY, Missouri, Respondent- Appellant. 36331, WD 36377.
• Court: Missouri Court of Appeals

Page 711

708 S.W.2d 711

32 Ed. Law Rep. 343

Elizabeth VANDEVER, Appellant-Respondent, v. The JUNIOR COLLEGE DISTRICT OF METROPOLITAN KANSAS CITY Missouri, Respondent- Appellant.

Nos. WD 36331, WD 36377.

Missouri Court of Appeals Western District.

Feb. 25, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

March 27, 1986.

Application to Transfer Denied

May 13, 1986.

Hollis H. Hanover, Scott Mach, Popham, Conway, Sweeny, Fremont, & Bundschu, P.C., Kansas City, for appellant.

Darry Gene Sands, Foster C. Collins, Dietrich, Davis, Dicus, Rowlands, Schmitt & Gorman, Kansas City, for respondent.

Before CLARK, C.J., and DIXON and KENNEDY, JJ.

DIXON, Judge.

Plaintiff Elizabeth Vandever sued defendant Junior College District of Metropolitan Kansas City, Missouri (District) for breach of employment contract. District sought summary judgment of the case asserting Vandever's claim was barred under the doctrine of res judicata. The trial court denied District's motion for summary judgment, but did grant a directed verdict in its favor at the close of all the evidence. Vandever appeals the ruling sustaining the directed verdict. District cross appeals the denial of its summary judgment motion. The propriety of the trial court's action in overruling a motion for summary judgment is not an appealable order. Parker v. Wallace, 431 S.W.2d 136, 137 (Mo.1968). District's appeal must be dismissed.

The underlying issue of res judicata will be considered, however, since District's motion for directed verdict reasserted that Vandever's claim was barred by res judicata. The issues on appeal are: (1) whether the evidence was sufficient to make a submissible case, and (2) whether a prior action against District in which an injunction was sought by Vandever and other furloughed teachers bars Vandever's present action under the doctrine of res judicata.

Plaintiff Vandever was employed by defendant District on a full time basis from the beginning of the fall semester of the 1972-73 academic year until December 21, 1979. Because her employment by District exceeded a five year period, Vandever obtained "non-probationary" status under the District's rules and regulations.

For each academic year Vandever was employed by District, she had a written contract. Incorporated into each contract were the Policies, Regulations, and Procedures (PRPs), which have been promulgated by the District and which govern its operations. PRP 3.0034, adopted in 1975, provides criteria for determining if a reduction in force is necessitated and how such a reduction should be implemented.

In December 1978, Vandever received letter notice from the District Chancellor advising her she would be placed on leave of absence without pay at the conclusion of the fall semester of the 1979-1980 year. On May 7, 1979 Vandever signed a contract with District effective for the fall 1979 term only. On December 21, when the fall 1979 semester ended, Vandever, as well as several other teachers, was placed on unpaid furlough. On December 26, 1979, Vandever and six other instructors filed suit against District in the Circuit Court of Jackson County, Missouri, in an action styled Gloria Directo v. The Junior College District of Metropolitan Kansas City, Missouri, Case No. CV 79-4929. In that case, plaintiffs alleged District had breached its contract with them and violated its own policies and procedures as well as § 168.124(4), RSMo 1978, a portion of the Teacher Tenure Act, by putting plaintiffs on unpaid leave of absence and by intending to hire part-time teachers to fill the vacancies created by the furloughed plaintiffs. Plaintiffs sought to enjoin District from continuing plaintiffs on unpaid leave of absence and from appointing new teachers to fill the vacancies created by plaintiffs' furlough. The trial judge denied plaintiffs any injunctive relief and upon the motion of District made after trial dismissed the plaintiffs' petition for failure to state any cause of action upon which relief could be granted.

On November 1, 1982, Vandever filed the present suit against District alleging that teaching positions became available in the District during the two-year period immediately following her placement on unpaid furlough and that District, in violation of its contract with her, and in violation of its policies and procedures and § 168.124(4), RSMo, appointed new teachers on a part-time basis to fill those positions while at the same time maintaining plaintiff on unrequested, unpaid furlough. The issue as to the applicability of the Teacher Tenure Act has been abandoned and is not reached or decided in this case. District denied any breach of contract and further asserted that, as a result of plaintiff's participation in the Directo suit, she was barred by res judicata from bringing this suit. If res judicata applies, the claim is barred and the direction of a verdict by the trial court should be sustained.

District asserts that the trial court erred in denying it relief on res judicata grounds because all the issues in the case at bar were determined in District's favor when the Directo court dismissed the petition of the Directo plaintiffs for failure to state a claim upon which relief could be granted. District contends that in Missouri, an involuntary dismissal, such as in Directo, is with prejudice unless the court in its order otherwise specifies, and that it operates as an adjudication on the merits. District cites Rule 67.03 as authority for its proposition.

District is correct in its contention that the dismissal of the Directo petition was with prejudice. Rule 67.03 states "... any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue or for failure to substitute a party for a decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify."

The dismissal was involuntary and a dismissal for failure to state a claim does not fall under any of the categories excepted from involuntary dismissal without prejudice under Rule 67.03. The lower court did not specify that its order dismissing the petition was without prejudice. Where the court sustains a defendant's motion to dismiss for failure to state a claim upon which relief can be granted, but makes no mention of whether dismissal was with or without prejudice, and where dismissal is involuntary, the dismissal is with prejudice. Pennyrich, Inc. v. Lawton-Byrne-Bruner Insurance Agency, 613 S.W.2d 473, 474 (Mo.App.1981).

District errs, however, in its assertion that such a dismissal with prejudice operates as an adjudication on the merits. Denny v. Mathieu, 452 S.W.2d 114, 118-119 (Mo. banc 1970), holds that a dismissal with prejudice is not an adjudication on the merits equivalent to a jury verdict but instead simply serves as a mechanism for termination of litigation. Dodge v. Jackson, 635 S.W.2d 46, 48 (Mo.App.1982), asserts correctly that Denny reversed a long line of cases which held a dismissal with prejudice tantamount to a judgment on the merits. The Denny court held that such a dismissal should only bar future litigation of the same claim against the same party, Denny, 452 S.W.2d at 119, and in 1974, Rule 67.03 was changed to reflect that holding. Subsequent cases which have held a dismissal with prejudice to be a judgment on the merits are inconsistent with Denny and with the Rules in that respect.

Technically, without adjudication of the prior suit on the merits, res judicata cannot exist. Neal v. Drennan, 640 S.W.2d 132, 136 (Mo.App.1982). Nevertheless, Vandever's present suit is barred by Rule 67.03, itself, if she is asserting "the same cause of action or claim" against the same party as was asserted in the Directo suit. All that is required to find identity of parties is a finding that the present plaintiff was a plaintiff in the first suit and the present defendant was a defendant in the first suit. Roach v. Teamsters Local Union No. 688, 455 F.Supp. 322, 324 (E.D.Mo.1978), aff'd, 595 F.2d 446 (8th Cir.1979). Vandever was one of seven plaintiffs in Directo. The real issue is whether the present action "is the same cause of action or claim" as that ruled upon in Directo.

In the case at bar, Vandever alleges that as of December 21, 1979, she was put on an unrequested and unpaid leave of absence by District, that she was a "permanent" teacher at that time, that after that date, teaching positions became available with District which she was qualified and willing to teach, that District, in violation of its contract with her § 168.124(4), RSMo, and PRP No. 3.0034 appointed new teachers on a part-time basis to fill those positions while maintaining her on leave of absence, and that thereby she was illegally and improperly denied her position, salary, and benefits as a full-time teacher. Vandever requests judgment in her favor with reinstatement as a full-time teacher, and an award of back-pay and benefits stemming from the time positions first became available that Vandever was qualified to teach until the date of judgment in this case.

In the Directo suit, plaintiffs alleged in Count I, in pertinent part, that they were non-probationary teachers, that District, in violation of its contracts with plaintiffs and its PRP No. 3.0034, placed plaintiffs on leave of absence without pay at the conclusion of the fall semester of the 1979-1980 academic year even though there were available courses during the spring semester which plaintiffs were qualified and willing to teach, that District in further violation of its contracts and its policies and procedures, intended to hire part-time teachers to replace plaintiffs even though plaintiffs had not been offered reinstatement. Plaintiffs requested a temporary and permanent injunction be issued enjoining District from continuing plaintiffs on unpaid leave of absence as long as courses were available which they were qualified and...