Welsh v. Kan. City Pub. Sch., WD 83337

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKaren King Mitchell, Presiding Judge
Citation608 S.W.3d 751
Parties Michael WELSH, Respondent, v. KANSAS CITY PUBLIC SCHOOLS, Appellant.
Docket NumberWD 83337
Decision Date28 July 2020

608 S.W.3d 751

Michael WELSH, Respondent,
v.
KANSAS CITY PUBLIC SCHOOLS, Appellant.

WD 83337

Missouri Court of Appeals, Western District.

OPINION FILED: July 28, 2020
Application for Transfer to Supreme Court Denied September 1, 2020
Application for Transfer Denied November 3, 2020


William E. Quirk and Elizabeth Marden, Kansas City, MO, Attorneys for Respondent.

Jeff Klusmeier and Shana Long, Kansas City, MO, Attorneys for Appellant.

Before Division Two: Karen King Mitchell, Presiding Judge, and Anthony Rex Gabbert and W. Douglas Thomson, Judges

Karen King Mitchell, Presiding Judge

The School District of Kansas City 33 d/b/a Kansas City Public Schools (KCPS) appeals from the grant of summary judgment in favor of its former employee, Michael Welsh, on his claim that KCPS violated Missouri's Teacher Tenure Act when it failed to renew his teaching contract for the 2018-2019 school year without providing him the protections afforded to permanent teachers under the Act. KCPS raises two points on appeal. First, it argues that the trial court erred in denying its motion to dismiss Welsh's petition for failure to state a claim. And, second, it argues that the trial court erred in granting summary judgment in favor of Welsh because he was not entitled to judgment as a matter of law. Because Welsh's petition failed to state a claim upon which relief could be granted, we reverse the trial court's grant of summary judgment and remand with directions to dismiss Welsh's petition.

Background1

Welsh began working for KCPS as a teacher on July 1, 2013. KCPS discontinued his employment as of June 30, 2014, but rehired him beginning September 8, 2014, and continuing until June 30, 2018.2

Before working for KCPS, Welsh was employed in a teaching capacity for ten

608 S.W.3d 753

consecutive years in the Kansas City – St. Joseph Catholic School System and six consecutive years in the Cristo Rey Network of Schools, neither of which is a public school district. As part of Welsh's employment, both the Kansas City – St. Joseph Catholic School System and Cristo Rey Network of Schools required him to have a valid Missouri teaching certificate, which he continuously held from 1997 through August 2019.

On March 28, 2018, KCPS notified Welsh by letter that his employment would not be renewed for the 2018-19 school year. KCPS gave Welsh no advance statement of reasons for his non-renewal, no opportunity for a hearing on the non-renewal, and no right to appeal the outcome of any hearing.

On February 26, 2019, Welsh filed a petition against KCPS in Jackson County Circuit Court, alleging that KCPS violated Missouri's Teacher Tenure Act and, correspondingly, Welsh's teaching contract, which incorporated the provisions of the Act into its terms. In his petition, Welsh alleged that,

based on his five years of service as a teacher in the Kansas City Public Schools, his 10 years of consecutive service as a teacher in the Kansas City – St. Joseph Catholic School System, and his six years of teaching in the Cristo Rey Network of Schools, Mr. Welsh was a "permanent teacher" as defined in Mo. Rev. Stat. § 168.104.4 because he was entitled to one year of teaching credit for his prior experience.

He further alleged that, as a "permanent teacher," he was entitled to "written warning, prior to his non-renewal, identifying the actions that could result in his non-renewal for incompetency, inefficiency, or insubordination"; "written charges, prior to his non-renewal, that specified with particularity the alleged grounds for [his] non-renewal"; "notice and an opportunity for a hearing with the Board of Education on these written charges"; and "the right to appeal the Board of Education's decision after such a hearing." And he alleged that, by failing to provide the above, KCPS violated the Teacher Tenure Act, as well as his teaching contract.

KCPS moved to dismiss Welsh's petition for failure to state a claim upon which relief may be granted insofar as the facts alleged did not support Welsh's claim that he was a "permanent teacher" as defined by the Act. The trial court denied KCPS's motion, and Welsh filed a motion for summary judgment. The trial court granted Welsh's motion for summary judgment, and KCPS appeals.

Analysis

KCPS brings two points on appeal. First, it argues that the trial court erred in denying its motion to dismiss Welsh's petition for failure to state a claim upon which relief may be granted. Second, it argues that the trial court erred in granting summary judgment in favor of Welsh because he was not entitled to judgment as a matter of law.

Generally, the denial of a motion to dismiss is not a final judgment and, therefore, not reviewable. In re Care & Treatment of Bradley , 554 S.W.3d 440, 450 n.5 (Mo. App. W.D. 2018). But we may "review ... the denial of a motion to dismiss, ‘as part of the appeal from a final judgment[.]’ " U.S. Bank, N.A. v. Coverdell , 483 S.W.3d 390, 401 (Mo. App. S.D. 2015) (quoting In re O.J.B. , 436 S.W.3d 726, 729 (Mo. App. W.D. 2014) ). Though in some circumstances, the review of the denial of a motion to dismiss is for abuse of discretion, "[t]he question of whether a petition states a claim for which relief can be granted is a question of law,"

608 S.W.3d 754

State ex rel. Cmty. Treatment, Inc. v. Mo. Comm'n on Human Rights , 561 S.W.3d 107, 111 (Mo. App. W.D. 2018) ; and "[q]uestions of law are reviewed de novo. " Schoen v. Mid-Missouri Mental Health Ctr. , 597 S.W.3d 657, 659 (Mo. banc 2020).

Here, Welsh's petition alleged two counts: (1) violation of the Teacher Tenure Act; and (2) breach of contract premised upon the same alleged violation of the Act. Both claims were premised upon Welsh's allegation that he was a "permanent teacher" as defined in the Act. KCPS moved to dismiss the petition because, under the facts alleged, Welsh failed to meet the definition of a "permanent teacher" and, therefore, was not entitled to the protections that KCPS failed to provide and that are afforded by the Act to permanent teachers.

"A motion to dismiss for failure to state a claim on which relief can be granted is an attack on the plaintiff's pleadings." McConnell v. W. Bend Mut. Ins. Co. , 606 S.W.3d 181 (Mo. App. W.D. 2020) (quoting R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist. , 568 S.W.3d 420, 424 (Mo. banc 2019) ). "Such a motion is only a test of the sufficiency of the plaintiff's petition." Id. (quoting R.M.A. , 568 S.W.3d at 424 ). "When considering whether a petition fails to state a claim upon which relief can be granted, [we] must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations...

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