Varnal v. Kansas City

• Decision Date: 03 April 1972
• Docket Number: No. 25634,25634
• Parties: Mr. and Mrs. Charles VARNAL, Appellants-Plaintiffs, v. KANSAS CITY, Missouri, a municipal corporation, and P. W. Halloran,Respondents-Defendants.
• Court: Missouri Court of Appeals

Page 575

481 S.W.2d 575

Mr. and Mrs. Charles VARNAL, Appellants-Plaintiffs, v. KANSAS CITY, Missouri, a municipal corporation, and P. W.

Halloran,Respondents-Defendants.

No. 25634.

Missouri Court of Appeals, Kansas City District.

April 3, 1972.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 11, 1972.

Application to Transfer Denied July 17, 1972.

Elwyn L. Cady, Jr., Independence, for appellants-plaintiffs.

Aaron A. Wilson, Jr., Acting City Counselor, Robert A. Dakopolos, Associate City Counselor, Thomas C. Clark, Asst. City Counselor, Kansas City, for respondents-defendants.

CROSS, Judge.

Summary judgment was rendered in favor of defendants Kansas City, Missouri and P. W. Halloran, on grounds this action was barred by a former judgment in a federal court and that the relief plaintiffs sought was not recoverable against defendants by reason of their immunity from liability in performing a governmental function. Plaintiffs appeal.

We state the history of the litigation chronologically. ¹ On September 21, 1967, plaintiffs filed in the United States Court for the Western District of Missouri a petition against the defendants named herein, prefaced by an introductory paragraph stating, 'This action arises under U.S.C. Title 42, Section 1983, as hereinafter more fully appears.' Immediately following are allegations, as a theory of recovery, that 'Defendants on or about September 2, 1965 began and conducted a campaign of illegal and unconstitutional harrassment of plaintiffs under color of local law, defendant Halloran being an employee of defendant City charged with the duty of inspections by the City.' Specific averments of the acts complained of read:

'A. Plaintiff Mrs. Varnal was threatened with arrest;

B. Plaintiff Mr. Varnal was falsely arrested and imprisoned;

C. Plaintiffs home was subjected to unauthorized and unconsented entry and search without proper authorization and in violation of constitutional prohibitions against Search and Seizure and in violation of Due Process guarantees of the Missouri and United States constitutions.'

The petition further pleaded that those acts interfered with plaintiffs' rights in the sanctity of their home, compelled them to expend substantial sums for counsel fees, litigation expenses and travel, and caused them to suffer mental anguish, humiliation and embarrassment. The petition prayed for actual and punitive damages against both defendants.

On the same day, September 21, 1967, plaintiffs filed an identical petition against defendants in the Circuit Court of Jackson County, Missouri, except for deletion of the allegation that the suit was brought under the Civil Rights Act and extremely minor variations of preliminary language of descriptive nature. Plaintiffs' allegations of their case theory and the specific tortious acts complained of are in language exactly as appear in the federal court petition; likewise, their allegations of resulting injury and their prayer for damages.

After so filing both actions, and at some undisclosed date, plaintiffs voluntarily dismissed the federal court action as to defendant Kansas City and proceeded to a jury trial against defendant Halloran, resulting in a verdict and judgment in favor of defendant Halloran. Thereafter, on February 11, 1969, defendants filed their motion for summary judgment in the state action pursuant to which the relief prayed was granted by the court as above stated.

As appellants, plaintiffs undertake to challenge the validity of both grounds upon which the trial court rendered summary judgment. They dispute (1) that this action is barred by the former judgment, and (2) that defendants are immune from liability because their acts complained of were performed as a governmental function.

Plaintiffs' first point in its entirety reads, 'The court erred in sustaining the motion for summary judgment because the federal civil rights case and this case are separate causes with different standards and different parties.' That language does not conform to requirements of Civil Rule 84.04(d), V.A.M.R., in order to constitute a valid appeal point and presents nothing properly for review, in that it fails to state concisely why it is contended the court was wrong in its ruling. Merely to say that the state and federal actions are 'separate causes' because they are 'different' as to 'standards and parties' is mere conclusory assertion and conveys no reason whatsoever for this court to hold the trial court ruled incorrectly. Plaintiffs' 'argument' following their first point presents no more of substance to differentiate the two causes than does the point itself. It is completely void of any fact or statement demonstrating that the two actions are 'separate causes with different standards and different parties.' Notwithstanding the insufficiency of both point and argument, we examine the question sought to be raised.

Submitted as supporting their proposition that the two actions are separate causes with different standards and parties, plaintiffs cite and rely on one case only, Whirl v. Kern, 5 Cir., 407 F.2d 781, which they say 'points up the separateness of the Federal Civil Rights cause and that in state court.' Plaintiffs misconceive the opinion's effect as it pertains to their contention. The case actually holds that 'litigation should not be fissioned or atomized where both federal and state causes of action arise out of 'a common nucleus of operative fact.'' citing Mine Workers v. Gibbs, 1966, 383 U.S. 715, at 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218, 228. After noting that Whirl's state action for false imprisonment and his federal civil rights case 'no doubt' arose out of a common nucleus of operative fact and that the federal district court had already determined both the state and federal actions, the reviewing court held that procedure to have been the proper course of action by the district court. So ruling, the court stated: 'Under such circumstances, unless it can be said that the federal claim involved was frivolous or clearly foreclosed by prior Supreme Court decisions, * * * 'the strong and practical policies undergirding the pendent jurisdiction doctrine require that * * * (the state cause of action) * * * be determined by a federal forum.' Connecticut General Life et al. v. Craton, et al., 5 Cir. 1968, 405 F.2d 41.'

A Minnesota case, Campbell v. Glenwood Hills Hospitals, Inc., 273 Minn. 525, 142 N.W.2d 255, involves facts essentially identical with those of this case and is directly in point on the question of res judicata. In the cited case, a plaintiff commenced actions in both federal and state courts, against the same parties and founded on the same facts, claims and law. The federal court case was termed a 'civil rights' action to redress deprivation of his liberty in violation of his constitutional rights. In his state action plaintiff alleged he was subjected to false imprisonment and technical assault and battery in violation of his constitutional rights. The federal case first came to hearing with the resultant ruling from the court that plaintiff had no cause of action arising from any violation of constitutional or civil rights, and the rendition of a final judgment dismissing plaintiff's action. Thereafter, upon consideration of plaintiff's state court action, the state court held it was barred by the federal court judgment, in language as follows: 'It...