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Kesler v. Curators of University of Missouri

Court of Appeals of Missouri, Western District, Fourth Division

April 18, 2017

DYLAN KESLER, Appellant,

         APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY The Honorable Kevin Crane, Judge.

          Before Mark D. Pfeiffer, Chief Judge, Presiding, Lisa White Hardwick and Gary D. Witt, Judges.


         Dylan Kesler appeals the circuit court's entry of summary judgment in favor of the Curators of the University of Missouri ("the University"); R. Bowen Loftin, former chancellor of the University of Missouri-Columbia ("MU"); Mark Ryan, Director of MU's School of Natural Resources; Joshua Millspaugh, a professor in MU's Department of Fisheries and Wildlife Sciences; and Jack Jones, chair of MU's Department of Fisheries and Wildlife Sciences (collectively, "Respondents"), on his petition for damages for wrongful discharge, breach of the covenant of good faith and fair dealing, tortious interference with an employment expectancy, prima facie tort, and civil conspiracy. Kesler contends the court erred in entering summary judgment because Respondents' summary judgment motion was procedurally deficient and his claims were not barred by res judicata or collateral estoppel and did not fail as a matter of law. For reasons explained herein, we find no error and affirm.

         Factual and Procedural History

         From September 2007 to September 2015, Kesler was employed as an assistant professor in MU's Department of Fisheries and Wildlife Sciences. Assistant professors are employed on year-to-year appointments during a probationary period and are then considered for grant of tenure.

         Kesler applied for tenure in 2013-2014. While his tenure review process was pending, Kesler was involved in research misconduct proceedings concerning allegations of plagiarism and other misconduct. In June 2014, the research misconduct committee concluded by a 7-2 vote that Kesler had not committed plagiarism but unanimously found that he had engaged in other unacceptable behavior. Specifically, the committee found that his treatment of a former graduate student was unacceptable and that he had published a sole-authored article without citing or referencing that student's work. Kesler's employment as an assistant professor in MU's Department of Fisheries and Wildlife Sciences ended after he was denied tenure in July 2014 and received a one-year terminal contract, which expired September 1, 2015.

         In September 2014, Kesler sued the University, Loftin, and Ryan[1] seeking writs of prohibition and mandamus compelling the University to provide new tenure review proceedings, refrain from taking any further action with respect to its pending dismissal of him from employment, and take steps to restore his reputation following the research misconduct proceedings. Kesler's writ case was premised on alleged rule and policy violations and other wrongdoing in the proceedings by Loftin and Ryan, as well as by Millspaugh and Jones. The writ case was litigated extensively, with six rounds of written discovery and a two-day bench trial on the merits, during which Kesler testified and presented testimony from Loftin, Ryan, Millspaugh, and Jones. Ultimately, the court entered judgment against Kesler. In its judgment, the court made detailed findings of fact and conclusions of law explaining why it denied Kesler's writ requests ("Kesler I").

         Following the court's judgment in Kesler I, Kesler filed this lawsuit ("Kesler II"). In his petition, he sought damages for wrongful discharge in violation of public policy and breach of the covenant of good faith and fair dealing against the University; for tortious interference with an employment expectancy against Millspaugh; for prima facie tort and civil conspiracy against Millspaugh, Ryan, and Jones; and for prima facie tort against Loftin. Respondents asked the circuit court to stay discovery until it determined whether Kesler's claims were barred by res judicata and collateral estoppel. The circuit court granted a stay. Respondents then moved for summary judgment on the grounds that Kesler's claims against the University, Loftin, and Ryan were barred by res judicata; his claims against Millspaugh and Jones were barred by collateral estoppel; and his claims were legally deficient in other respects. The court granted Respondents' motion. Kesler appeals.

         Standard of Review

         Appellate review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom the judgment was entered. Wills v. Whitlock, 139 S.W.3d 643, 646 (Mo. App. 2004). However, we take as true the facts set forth in support of the summary judgment motion unless contradicted by the non-movant's response. ITT, 854 S.W.2d at 376.

         Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 74.04(c). Where, as in this case, the movant is the defendant, the movant establishes the right to judgment as a matter of law by showing one of the following:

(1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to--and will not be able to--produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support his properly pleaded affirmative defense.

Roberts v. BJC Health Sys., 391 S.W.3d 433, 437 (Mo. banc 2013). We will affirm a summary judgment under any theory supported by the record. Id.


         Point I -- Sufficiency of Respondents' Summary Judgment Motion

         In Point I, Kesler contends the circuit court erred in granting summary judgment in favor of Respondents because their summary judgment motion was procedurally deficient. Specifically, Kesler argues that Respondents failed to "state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts, " as required by Rule 74.04(c)(1).

         Along with their summary judgment motion, Respondents filed a "Statement of Uncontroverted Material Facts" that included nine separately-numbered paragraphs. In paragraphs one through five, Respondents asserted the authenticity of certain records from Kesler I, namely, the court's judgment, the trial transcript, Kesler's proposed findings of fact and conclusions of law, his writ petition, and the docket sheet. Respondents attached copies of each of these records to the statement of uncontroverted facts. In paragraphs six through nine, Respondents set forth facts about Kesler I, specifically, that Kesler was the relator and that the University, Loftin, and Ryan were the named respondents in that action; that the court held a two-day trial and entered judgment in Respondents' favor; and that Kesler did not appeal Kesler I.

         Kesler argues that Respondents' statement of uncontroverted facts merely cited documents instead of actual facts contained within those documents. He notes that he "vigorously complained" about this Rule 74.04(c)(1) violation in the circuit court. He asserts that he was prejudiced by this violation because he was forced to "argue against himself and do Respondents' work for them." Kesler further argues that this prejudice was compounded by the judgment, which did not delineate the reasons for the court's decision. He notes that the appellate court in Kitsmiller Construction Company v. Wynn Construction, Inc., 126 S.W.3d 795 (Mo. App. 2004), reversed summary judgment because the motion was similarly deficient.

         "'Generally, failure to comply with Rule 74.04(c)(1) warrants a trial court's denial of a summary judgment motion and warrants an appellate court's reversal of the grant of summary judgment.'" Premier Golf Mo., LLC v. Staley Land Co., LLC, 282 S.W.3d 866, 872 (Mo. App. 2009) (citation omitted). However, an absolute rule precluding summary judgment for a Rule 74.04(c)(1) violation would not serve the interests of judicial efficiency and economy. Id. "Where the 'issues are clear, the material facts are not disputed, and the question posed is one of law, ' procedural deficiencies will not preclude addressing a motion for summary judgment on the merits." Id. (citation omitted).

         In Chaney v. Cooper,954 S.W.2d 510, 515 (Mo. App. 1997), this court ruled that a motion raising the defenses of res judicata and collateral estoppel, which was properly treated as a summary judgment motion, "substantially complied with Rule 74.01(c)(1)" despite the fact that it was presented as a motion to dismiss and, consequently, did not designate uncontroverted material facts. In so holding, the court noted that all of the documents attached to the motion originated from court proceedings; that there was no dispute as to the documents' authenticity or existence; that the motion and the legal memoranda filed by the parties made specific references to ...

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