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Old Facts and (no) New Tricks - Res Judicata Applies Despite Plaintiff's Change in Legal Theory

May 24, 2017 | John Patterson

In Kesler v. The Curators of the University of Missouri, et al., the Court of Appeals for the Western District of Missouri has provided a refresher course on the defense of res judicata.

Plaintiff was a former assistant professor at the University of Missouri. While he was in the process of tenure review, he simultaneously faced university disciplinary proceedings for “plagiarism and other misconduct.”  Although he prevailed on the plagiarism charge, plaintiff was found to have engaged in “other unacceptable behavior.”  Plaintiff was ultimately denied tenure, and given a one year terminal contract.  In September 2014, he sued MU and various University officials (Kesler I), seeking writs of prohibition and mandamus compelling the University to provide various items of relief, including new tenure review proceedings.  Kesler I was premised on the University officials’ alleged improper conduct during the tenure and disciplinary proceedings.  After extensive litigation, the trial court ruled against plaintiff and in favor of the university.

Soon after losing Kesler I, plaintiff filed another lawsuit against MU and the same University officials (Kesler II).  In Kesler II, plaintiff sought recovery on various tort theories which were not asserted in Kesler I.  However, the factual basis for Kesler II was the same as before – once he again he complained of the University officials’ alleged improper conduct during the tenure and disciplinary proceedings.  Defendants were granted summary judgment on the basis of collateral estoppel and res judicata.  Plaintiff appealed, apparently arguing in part that res judicata did not apply because he sought to advance different legal theories in Kesler I and Kesler II.

The Western District affirmed, holding that for res judicata to apply, four “identities” must be present: identity of (1) the things sued for, (2) the cause of action, (3) the persons and parties to the action, and (4) the person for or against whom the claim is made.  For res judicata purposes, “[s]eparate legal theories are not to be considered as separate claims[.]”  Instead, analysis of the “identity of the things sued for” and “identity of the cause of action” must focus on the underlying facts, and “[f]or a subsequent claim on the same transaction to be considered separate, there must be new ultimate facts, as opposed to evidentiary details, that form a new claim for relief.” Citing Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712, 715 (Mo. banc 2008).

Kesler reminds practitioners that, when performing a res judicata analysis, a new legal spin on an old set of facts is generally insufficient to overcome the defense.  If the facts are the same, then new labels will not resurrect a dead claim.

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