             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

 MICHAEL WELSH,                                    )
                                                   )
                                  Respondent,      )
                                                        WD83337
 v.                                                )
                                                   )
                                                        OPINION FILED:
                                                   )
                                                        July 28, 2020
 KANSAS CITY PUBLIC SCHOOLS,                       )
                                                   )
                                     Appellant.    )


                 Appeal from the Circuit Court of Jackson County, Missouri
                         The Honorable Justine E. Del Muro, Judge

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

       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 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

         1
           The parties stipulated to the underlying facts.
         2
          Beginning on September 8, 2014, KCPS hired Welsh as a full-time teacher for the remainder of the 2014-15
school year, and his salary for that school year was prorated to reflect that he worked as a full-time teacher for 161 of
the 185 total school days in that school year.


                                                           2
       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



                                                 3
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,” 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., WD 82865, 2020 WL 2529019,

at *4 (Mo. App. W.D. May 19, 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

favorably to the pleader.” Id. (quoting R.M.A., 568 S.W.3d at 424). We do not “weigh the factual

allegations to determine whether they are credible or persuasive.” Id. (quoting R.M.A., 568 S.W.3d

at 424). “Instead, [we] review[ ] the petition to determine if the facts alleged meet the elements of

a recognized cause of action. . . .” Id. (quoting R.M.A., 568 S.W.3d at 424).




                                                 4
       The Teacher Tenure Act is codified in sections 168.102 through 168.130 of the Missouri

Revised Statutes. § 168.102.3 “The Act identifies two different kinds of teachers to which it

applies: permanent teachers and probationary teachers.” Stolov v. Jackson Cty. Sch. Dist. C-1 of

Hickman Mills, Jackson Cty., 408 S.W.3d 218, 222 (Mo. App. W.D. 2013) (citing

§ 168.104(4)-(5)). A permanent teacher, in relevant part, is “any teacher who . . . is . . . employed

as a teacher in the same school district for five successive years and who . . . thereafter continues

to be employed as a teacher by the school district . . . .” § 168.104(4). A probationary teacher is

“any teacher as herein defined who has been employed in the same school district for five

successive years or less.” § 168.104(5). But, “[i]n the case of any probationary teacher who has

been employed in any other school system as a teacher for two or more years, the board of

education shall waive one year of his probationary period.” Id.

       “The distinction between permanent and probationary teachers relevant to this appeal is

that permanent teachers are afforded considerably more procedural protections than are

probationary teachers before a school board is allowed to terminate their teaching contracts.”

Stolov, 408 S.W.3d at 222-23. “Specifically, before the indefinite contract of a permanent teacher

[may] be terminated upon one of six statutorily specified grounds,[] a school board must serve the

permanent teacher with ‘written charges specifying with particularity the grounds alleged to exist

for termination of such contract, notice of a hearing on [the] charges and a hearing by the board of

education on [the] charges if requested by the teacher.’” Id. at 223 (quoting § 168.116.1). “For

probationary teachers, on the other hand, ‘a school board may refuse to renew the contract . . . for

any reason or no reason, as long as the non-renewal is not based on some ground impermissible

under the Constitution.’” Id. (quoting Smith v. King City Sch. Dist. R-1 of Gentry Cty., 990 S.W.2d



       3
           All statutory references are to the Revised Statutes of Missouri, as updated through the 2018 supplement.


                                                          5
643, 646 (Mo. App. W.D. 1998)). “And the only procedural protection afforded a probationary

teacher is that the school board must notify him of its decision not to renew his contract no later

than the fifteenth day of April, and, only upon request, must the board provide a concise statement

of the reason or reasons for the termination.”4 Id. (citing § 168.126.2).

        The nature of each of Welsh’s claims is that he was a “permanent teacher” and, therefore,

entitled to the additional protections. In support of this assertion, Welsh alleged the following

facts in his petition:

               “Mr. Welsh was employed as a teacher with Defendant for five consecutive years,

                beginning in September of 2013 and ending at the conclusion of the 2017-2018

                school year.”

               “Before his employment with Defendant, Mr. Welsh was employed for ten

                consecutive years as a teacher in the Kansas City – St. Joseph Catholic School

                system and six consecutive years as a teacher in the Cristo Rey Network of

                Schools.”

               “As part of his teaching duties, Mr. Welsh obtained a valid Missouri teacher’s

                certificate, a license that he has continuously held from 1997 to the present, and

                that he held continuously during his employment with the Kansas City – St. Joseph

                Catholic School System and the Cristo Rey Network of Schools.”

               “At the time of his non-renewal, 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


        4
          Here, Welsh submitted a request for the reasons for his non-renewal on December 21, 2018, and KCPS
responded by advising him that he was not renewed “due to performance.”


                                                     6
                  defined in Mo. Rev. Stat. § 168.104.4 because he was entitled to one year of

                  teaching credit for his prior experience.”

KCPS argues that these facts do not satisfy the definition of a “permanent teacher,” and, as a result,

Welsh’s petition failed to state a claim upon which relief may be granted.5 We agree.

         To begin, Welsh appears to acknowledge that his five years of service with KCPS, alone,

are insufficient to meet the definition of a “permanent teacher” insofar as he invokes § 168.104(5)

to allege that “he was entitled to one year of teaching credit for his prior experience.” KCPS argues

that Welsh’s prior experience does not qualify for the one-year credit; that his five years of service

were not successive and therefore did not qualify; and that, even if the five years were considered

successive, because Welsh was not renewed following the five years, he failed to meet the

definition of a “permanent teacher.”

         As mentioned above, a “permanent teacher” is “any teacher who has been employed . . . as

a teacher in the same school district for five successive years and . . . who thereafter continues to

be employed as a teacher by the school district.” § 168.104(4) (emphasis added). Thus, to be a

permanent teacher, Welsh needed to allege facts showing that he had been both employed at KCPS

for five successive years and renewed for the following year. Vilelle v. Reorganized Sch. Dist. No.

R-1, Benton Cty., 689 S.W.2d 72, 76 (Mo. App. W.D. 1985) (“A teacher does not achieve

permanent status until he has been rehired for the sixth successive year by a district.”). Though

Welsh’s petition alleged that he had been employed as a teacher for KCPS for five consecutive




        5
          Though Welsh directly alleged that he was a “permanent teacher,” this allegation is a legal conclusion, so
we do not accept it as true; rather, we accept as true the facts upon which Welsh relied to reach this legal conclusion.
See Dunn v. Precythe, 557 S.W.3d 454, 457 (Mo. App. W.D. 2018) (“pleading a legal conclusion which is not
supported by the facts alleged in the petition is subject to dismissal for failure to state a claim”) (citing Mackey v.
Mackey, 914 S.W.2d 48, 50 (Mo. App. W.D. 1996)).


                                                           7
years, he did not allege that he had been renewed; in fact, his non-renewal was the basis for his

lawsuit.

        But he did not need to be renewed if he was entitled to the one-year credit under

§ 168.104(5) afforded to a probationary teacher “who has been employed in any other school

system as a teacher for two or more years.” Welsh argues that his collective sixteen years of prior

experience teaching at the Kansas City – St. Joseph Catholic School System and the Cristo Rey

Network of Schools qualified him for the one-year credit. We disagree.

        We addressed this very issue in Stolov v. Jackson County School District C-1 of Hickman

Mills, Jackson County, 408 S.W.3d 218, 221 (Mo. App. W.D. 2013), where a probationary teacher

sought the one-year credit based upon his nearly nine years of prior instructional experience at

various educational institutions.   The teacher argued that, in accordance with the statutory

language, he “ha[d] been employed in . . . [an]other school system as a teacher for two or more

years.” Id. at 223. In examining the statutory language, we noted that, “to qualify for the waiver,

one must have been employed (1) in a school system (2) as a teacher (3) for two or more years.”

Id. The flashpoint of the analysis turned on the meaning of “teacher” for purposes of the waiver

provision and its interplay with the phrase, “any other school system.” Id. After evaluating the

statutory definition of “teacher” in § 168.104(7) and cases interpreting that statute, we held that,

“to be considered a teacher under section 168.104(7), one must: (1) teach in a public school, (2) in

grades kindergarten through twelve, and (3) have a valid teaching certificate.” Id. at 224. We then

held that,

        to fall within the waiver provision of section 168.104(5), a person’s past teaching
        experiences “in any other school system” must have been (1) in public schools,
        containing grades kindergarten through twelve, or in a prekindergarten program in
        which no fees are charged to parents or guardians; (2) pursuant to the authority of
        a valid teaching certificate; and (3) of at least a two-year duration.




                                                 8
Id.

       Just as Welsh argues here, the teacher in Stolov argued that “the statutory definition of

teacher supplied in section 168.104(7) cannot be applied to the waiver provision without

effectively nullifying the phrase, ‘any other school system,’ in section 168.104(5), given that the

definition of ‘teacher’ requires, in part, that the individual be employed in a ‘school district.’” Id.

We rejected the teacher’s argument, noting that “[t]he entirety of the waiver provision can be given

meaning if we read the phrase, ‘any other school system,’ as merely eliminating the requirement

that a ‘teacher’ be an employee of a ‘school district,’ but leaving in place all other qualifications

required for a ‘teacher.’” Id. at 225. We determined that the teacher’s—and, here, Welsh’s—

interpretation “is both inconsistent with legislative intent and likely to lead to absurd results”

insofar as it would “impose a waiver requirement on a school board any time a teacher has been

employed at any institution in any instructional capacity,” even if that institution was not a school.

Id. at 226. Welsh’s argument here is indistinguishable for the argument put forth by the teacher in

Stolov. We have already rejected that argument, and we see no need to revisit it here.

       Welsh’s prior instructional experience at the Kansas City – St. Joseph Catholic School

System and the Cristo Rey Network of Schools could qualify for the one-year credit allowed

probationary teachers to reach permanent teacher status only if they are public schools. But Welsh

did not allege that Kansas City – St. Joseph Catholic School System or the Cristo Rey Network of

Schools are public schools, though that allegation was essential to bring Welsh within the statutory

definition of “permanent teacher,” as his five years’ experience with KCPS, successive or not,

would not, alone, satisfy the definition. And because the facts alleged, taken as true, do not satisfy

the definition of “permanent teacher”—a status upon which each of his claims relies—Welsh failed




                                                  9
to state a claim upon which relief may be granted. Accordingly, the trial court erred in overruling

KCPS’s motion to dismiss and subsequently entering judgment in Welsh’s favor.

       Point I is granted, the trial court’s judgment is reversed, and the case is remanded with

directions to dismiss Welsh’s petition.6

                                                      Conclusion

       The trial court erred in both overruling KCPS’s motion to dismiss Welsh’s petition for

failure to state a claim and subsequently entering judgment in Welsh’s favor. Its judgment is

reversed and the case is remanded with directions to dismiss Welsh’s petition.



                                                         Karen King Mitchell, Presiding Judge

Anthony Rex Gabbert and W. Douglas Thomson, Judges, concur.




       6
           In light of our resolution of Point I, we need not reach Point II, as it is moot.


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