                                          In the
                        Missouri Court of Appeals
                                 Western District
 RUSSELL SCOTT LYNCH,                        )
                                             )
                Appellant,                   )   WD81790
                                             )
 v.                                          )   OPINION FILED:
                                             )   February 13, 2019
 JAMES HURLEY,                               )
                                             )
               Respondent.                   )

               Appeal from the Circuit Court of Cole County, Missouri
                        The Honorable Daniel R. Green, Judge

Before Division One: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and
                            Thomas H. Newton, Judge


      Russell Scott Lynch ("Lynch") appeals from the trial court's judgment dismissing

his petition for declaratory judgment. Lynch argues that he is entitled to receive credit

against sentences imposed in St. Charles County for time spent in jail in connection with

St. Louis County charges, and for time spent in a long-term treatment program. We affirm

in part and reverse and remand in part.
                                 Factual and Procedural Background

       On October 22, 2010, Lynch pleaded guilty in St. Charles County in Case No. 0711-

CR06162-01 to two charges, represented by Lynch to be burglary and stealing. On the

same date, judgment was entered sentencing Lynch to seven years in the Department of

Corrections for burglary and three years in the Department of Corrections for stealing, with

these sentences to run consecutive to one another, but concurrent with sentences imposed

in four cases from St. Louis County: 07SL-CR06306-01, 07SL-CR06299-01, 07SL-

CR07249, and 07SL-CR05800-01. In addition, the St. Charles County judgment imposed

long-term treatment pursuant to section 217.3621 for twenty-four months. Thereafter, by

order dated November 18, 2010, Lynch was released on probation pursuant to section

217.362, with custodial release occurring on December 12, 2010.

       On August 25, 2016, Lynch's probation in the St. Charles County case was revoked,

and his previously suspended sentences were executed. As with the initial judgment, the

order revoking probation provided that Lynch's sentences would be served consecutively

with one another, and concurrently with sentences in the above referenced St. Louis County

cases. According to Lynch, he was delivered to the Department of Corrections on

September 6, 2016, and he is presently incarcerated at the Northeast Correctional Center

in Bowling Green, Missouri.

       In all four of the St. Louis County cases, Lynch pled guilty on October 2, 2008, and

was placed on probation on December 28, 2009, for three years, with the obligation to



       1
           All statutory references are to RSMo. Supp. 2008 unless otherwise noted.

                                                         2
remain in custody for two years, and an anticipated custodial release date of December 9,

2010. It appears from the record that long-term treatment pursuant to section 217.362 was

also ordered in each of these cases. The record indicates that Lynch successfully completed

a two-year treatment program on January 18, 2010, but that other cases required him to

remain detained in the Department of Corrections until December 12, 2010, the date which

corresponds with Lynch's release pursuant to the probation order entered in the St. Charles

County case. Lynch requested early release from the custodial component of the probation

orders in the St. Louis County cases (which required him to remain in custody until

December 9, 2010), but that request was denied on October 22, 2010. The records support

the conclusion that Lynch was either ultimately discharged from probation in the St. Louis

County cases, that he is not presently incarcerated in connection with any claimed violation

of the terms of probation in those St. Louis County cases, or both.

       On November 1, 2017, Lynch filed a petition for declaratory judgment ("Lynch's

petition") against the Missouri Department of Corrections ("Department of Corrections")

in the Circuit Court of Cole County. Lynch's petition asserted that the Department of

Corrections erroneously refused to give Lynch credit against the service of his sentences

in the St. Charles County case for two time periods: (i) the time he spent in the St. Louis

County jail until his delivery to the Department of Corrections for his sentences in the St.

Charles County case, and (ii) for the time he spent in a long-term treatment program in

connection with the St. Louis cases.

       Lynch's petition claimed that he was entitled to 400 days of credit for the time he

spent in custody in the St. Louis County jail from September 11, 2007, to October 15, 2008.

                                             3
Lynch attached exhibits to his petition to support this claim, including copies of his

Department of Corrections face sheet, the Department of Corrections' decision following

his complaint about credit for the time he spent in custody, and docket sheets from each of

the cases for which he was held in custody in the St. Louis County jail.

         Lynch's petition further claimed that he was entitled to credit for the entire time he

spent in a section 217.362 long-term treatment program, and that the Department of

Corrections only gave credit for fifty-seven days, calculated from the time he was

sentenced on October 22, 2010, in the St. Charles County case, until December 12, 2010,

the day he was released on probation in the St. Charles County case. Lynch's petition did

not identify the number of additional days credit to which he believed he is entitled, or the

time frame for the additional credit to which he believed he is entitled. Lynch attached

exhibits to his petition to support this claim, including copies of his Department of

Corrections face sheet, the Department of Corrections' decision following his complaint

about credit for the time he spent in custody, documentation from the classification hearing

following his successful completion of the long-term treatment program, and docket sheets

from his St. Charles County case.

         The Department of Corrections filed a motion to dismiss Lynch's petition on

January 2, 2018 ("Motion to Dismiss").2 The Motion to Dismiss argued that Lynch had


         2
           Lynch's petition named the Department of Corrections as the Respondent. The Motion to Dismiss
identifies James Hurley ("Hurley") as the respondent. According to the record, Hurley is a former warden of the
Northeast Correctional Center in Bowling Green, the correctional institution where Lynch is an inmate. There is no
indication in the record that the trial court substituted Hurley as the properly named party in lieu of the Department
of Corrections. Nonetheless, the trial court's judgment uses a case caption that identifies Hurley as the respondent.
Plainly, Hurley could only have been the Respondent in his official capacity. Though the official record in this
appeal is required to use the same case caption as that which appears on the trial court's judgment, we refer to the
Department of Corrections as the respondent throughout this opinion.

                                                          4
previously litigated his request for credit for the time he spent in the St. Louis County jail,

and that he was collaterally estopped from litigating the same issue in his petition for

declaratory judgment. To support this argument, the Department of Corrections attached

a copy of a judgment ("Habeas Judgment") entered by the Circuit Court of Pike County

("habeas court") wherein the court entered judgment on Lynch's request for habeas release

on the same grounds alleged in the declaratory judgment petition. The Habeas Judgment

found that a habeas petition was not the proper method to compel jail-time credit because

the one-year credit sought by Lynch would not entitle him to immediate release. Thus, the

Habeas Judgment concluded that Lynch's habeas claim was not cognizable. Nonetheless,

the Habeas Judgment addressed the merits of Lynch's claim and concluded that Lynch

failed to prove that his time in custody in St. Louis County jail was related to the St. Charles

County case for which he was currently serving.

       The Motion to Dismiss also argued that Lynch's petition failed to allege facts

entitling him to relief in connection with the claim for credit for time spent in a long-term

treatment program. In particular, the Motion to Dismiss argued that the allegations in

Lynch's petition addressed only the time frame for which the Department of Corrections

had already awarded Lynch fifty-seven days credit. The Motion to Dismiss asserted that

"Lynch does not contend that he should receive credit for time spent in custody before

sentencing, and he does not contend that he should receive credit for time spent on

probation after probation release."

       Lynch filed a response to the Motion to Dismiss which reiterated the arguments in

his petition for declaratory judgment and which attached additional exhibits. Thereafter,

                                               5
the trial court issued its memorandum, order, and judgment ("Judgment") granting the

Motion to Dismiss and entering judgment in favor of the Department of Corrections.

       The Judgment concluded that Lynch's claim for 400 days of credit for the time he

spent in the St. Louis County jail until his delivery to the Department of Corrections in

connection with the St. Charles County case had already been determined in the Habeas

Judgment. The Judgment noted that "[t]he Pike County Circuit Court determined that state

habeas was not the proper vehicle by which to litigate jail time credit issues, but it also

concluded the claim was meritless." (Citations omitted.) As such, the Judgment concluded

that "[p]rinciples of res judicata and collateral estoppel prevent Lynch['s] repetition of the

first claim." The Judgment further concluded that Lynch had already received credit for

fifty-seven days in connection with the long-term treatment program, and that his petition

did not state any facts identifying or requesting "credit for time spent in custody before

sentencing . . . and . . . credit for time spent on probation after probation release." Thus,

the Judgment found that Lynch's petition failed to allege facts that entitled him to any

additional relief.

       Lynch appeals.

                                          Analysis

       Lynch's single point relied on argues both that the trial court erred in granting

summary judgment in favor of the Department of Corrections, and that the judgment from

which he is appealing was a judgment on the pleadings. His point relied on states:

       The Circuit Court of Cole County erred in granting summary judgment to the
       respondent because the circuit court did not have all the facts in this case
       matter presented to the courts properly and in detail[.] [T]his petitioner was

                                              6
       acting pro se and did not properly present all the case[] laws and evidence[]
       in this . . . matter to the circuit court[.]

       This petitioner will show that [there] is a legal right to judgment and this
       movant will show material facts required to support [a] claimed right to
       judgment. . . .

       Now on appeal from a judgment on the pleadings, the courts accept the facts
       alleged in the losing party['s] petition as true. The court [will] uphold the
       judgment if the facts plead[ed] by the losing party were insufficient as a
       matter of law, but in this case[] matter if the courts look at all the facts in this
       cases and all the [exhibits] in the legal file they will see that this matter should
       be reversed in favor of this petitioner.

(Citations omitted.) Perpetuating the confusion, the argument portion of Lynch's brief does

not address whether or how the well-pleaded facts in his petition stated a claim for relief

as to prohibit dismissal of the petition, and instead argues about the merits of the claims

raised in his petition. The Judgment granted the Motion to Dismiss in reliance on a matter

outside the scope of Lynch's petition with respect to the credit for time spent in the St.

Louis County jail, but with respect to Lynch's claim for credit for time spent in the long-

term treatment program, the Judgment limited its determination to whether the facts

pleaded in Lynch's petition stated a claim for relief. We therefore address the claims

separately, as the Judgment's disposition of each claim requires us to apply differing

standards of review.

The claim for credit for time spent in the St. Louis County jail

       The Department of Corrections denominated its response to Lynch's petition as a

Motion to Dismiss. Yet, with respect to Lynch's claim that he was entitled to credit for the

time he spent in the St. Louis County jail, the Motion to Dismiss attached the Habeas




                                                7
Judgment, and then relied on the Habeas Judgment to argue that Lynch was collaterally

estopped from asserting that claim for credit.

       Collateral estoppel, or issue preclusion, is an affirmative defense, the proof of which

ordinarily requires reliance on matters outside the pleadings to demonstrate that the issue

asserted by the plaintiff has been previously litigated to a final judgment. Noble v. Shawnee

Gun Shop, Inc., 316 S.W.3d 364, 368 (Mo. App. W.D. 2010). Nonetheless, our Supreme

Court has held that a pleading designated as a motion to dismiss may be an appropriate

mechanism for raising this defense because collateral estoppel is essentially a "'defense[] .

. . alleging the plaintiff has failed to state a claim upon which relief may be granted.'"

Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 n.1 (Mo. banc 2002)

(quoting King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day

Saints, 821 S.W.2d 495, 498 (Mo. banc 1991)).

       Even so, Rule 55.27(a) tempers the use of a motion to dismiss for that purpose. Rule

55.27(a) provides that, if "matters outside the pleadings are presented to and not excluded

by the court" in a motion to dismiss, "the motion shall be treated as one for summary

judgment and disposed of as provided by Rule 74.04" provided that "[a]ll parties [are]

given reasonable opportunity to present all material made pertinent to such a motion by

Rule 74.04." Thus, in King General Contractors, our Supreme Court concluded that

"[a]lthough [the defendant] delineated its pleading a motion to dismiss and the trial court

employed the term 'dismissed' in its order, the [trial] court's action was in essence a grant

of summary judgment in favor of [the defendant]." 821 S.W.3d at 498. The Court

concluded that the introduction of matters outside the pleadings, which the trial court

                                              8
accepted and considered, automatically transformed the action into one for summary

judgment.3 Id. at 499.

         Our Supreme Court clarified in Naylor Senior Citizens Housing, LP v. Side

Construction Co., that when adjudicating a motion to dismiss, materials outside the four

corners of the petition may only be considered if the trial court converts the motion to

dismiss into one for summary judgment and provides notice that it is doing so to the parties.

423 S.W.3d 238, 241 n.1 (Mo. banc 2014). "If the trial court gives no such notice and the

judgment expressly grants the motion to dismiss, this is an affirmative statement that the

trial court did not convert the motion and, more importantly, that it did not consider matters

outside the pleadings." Id. However, notice to the parties and compliance with the

procedural requirements associated with summary judgment is not necessary "when the

parties both submit matters outside the pleadings for the court's consideration" because "the

parties [effectively] waive notice of the court's conversion of the matter into a motion for

summary judgment, and they likewise waive compliance with Rule 74.04's procedural

requirements." Wilson v. Cramer, 317 S.W.3d 206, 208 (Mo. App. W.D. 2010).

         Here, the Department of Corrections attached a copy of the Habeas Judgment to its

Motion to Dismiss as support for its argument that Lynch is collaterally estopped from

claiming that he is entitled to credit for the time he spent in the St. Louis County jail.

Despite the Department of Corrections' introduction of a matter outside the pleadings, the



         3
           King was cited with approval in Chesterfield Village for the proposition that collateral estoppel could be
raised in a motion to dismiss. 64 S.W.3d at 318 n.1. However, in Chesterfield Village, the earlier judgment was
attached to the petition, permitting the trial court to consider the affirmative defense raised in the motion to dismiss
without having to refer to matters outside the petition. Id.

                                                            9
trial court did not give notice that it was treating the Motion to Dismiss as a motion for

summary judgment. Instead, the trial court allowed Lynch to file a response to the Motion

to Dismiss. Lynch's response included additional exhibits for the trial court to consider.

Because both the Department of Corrections and Lynch submitted exhibits for the trial

court to consider in its disposition of the Motion to Dismiss, they acquiesced in treating

this matter as a motion for summary judgment. Wilson, 317 S.W.3d at 208-09. As such,

we review the trial court's denial of Lynch's claim for credit for time spent in the St. Louis

County jail based on the affirmative defense of collateral estoppel under the same standards

as a motion for summary judgment. Spath v. Norris, 281 S.W.3d 346, 349 (Mo. App. W.D.

2009).

         Whether the trial court properly granted summary judgment is a question of law that

we review de novo. A party is entitled to summary judgment when there is no dispute of

material fact so that the moving party is entitled to judgment as a matter of law. Wilson,

317 S.W.3d at 209 (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,

854 S.W.2d 371, 382 (Mo. banc 1993)). We view the record in the light most favorable to

the party against whom summary judgment was entered. ITT Commercial Fin. Corp., 854

S.W.2d at 376. Where, as here, the defendant has raised an affirmative defense, the right

to summary judgment may be established by showing any one of the following: "(1) facts

that negate any one of the claimant's elements facts, (2) that the non-movant, after an

adequate period of discovery, has not been able to produce, and will not be able to produce,

evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's

elements, or (3) that there is no genuine dispute as to the existence of each of the facts

                                               10
necessary to support the movant's properly-pleaded affirmative defense." Id. at 381

(emphasis omitted). Establishing any of the three establishes a right to judgment as a matter

of law, assuming the facts underlying this right are beyond dispute. Id.

       The Department of Corrections' Motion to Dismiss claimed that collateral estoppel

precluded Lynch's request for credit for the time he spent in the St. Louis County jail until

his delivery to the Department of Corrections for the crimes he committed in St. Charles

County. Collateral estoppel "'prohibits the relitigation of an issue that was necessary and

unambiguously already decided in a different cause of action.'" Carter v. Treasurer of

State-Custodian of Second Injury Fund, 532 S.W.3d 203, 209 (Mo. App. W.D. 2017)

(quoting Kesler v. Curators of Univ. of Mo., 516 S.W.3d 884, 896 (Mo. App. W.D. 2017)).

Collateral estoppel is an affirmative defense that requires proof of four elements:

       (1) the issue decided must be identical; (2) the prior litigation must have
       resulted in a final decision on the merits; (3) the party to be estopped must
       have been a party . . . to the prior adjudication[;] and (4) that party must have
       had a full and fair opportunity to litigate the issue in the prior suit.

Id. (quoting Stine v. Warford, 18 S.W.3d 601, 606 (Mo. App. W.D. 2000)).

       The Habeas Judgment does not have the preclusive effect that the Department of

Corrections argued and the trial court found. The Habeas Judgment found that "the one-

year credit Lynch seeks would not entitle him to immediate release as he has more than

one year left to serve on his sentences," and then concluded that "his claim is not cognizable

in habeas corpus" and that his "claim would be properly brought in a declaratory judgment

action or in a petition for a writ of mandamus." Only after concluding that Lynch's claim

was not cognizable in a habeas proceeding did the habeas court consider the merits of


                                              11
Lynch's claim and conclude that he was not entitled to the credit he claimed. The habeas

court's disposition of Lynch's noncognizable claim on its merits "'exceed[ed] the

determination required to dispose of a claim [so that the conclusion] is considered

gratuitous surplusage.'" Autumn Ridge Homeowners Ass'n v. Occhipinto, 311 S.W.3d 415,

420 (Mo. App. W.D. 2010) (quoting Craft v. Philip Morris Cos., 190 S.W.3d 368, 377

(Mo. App. E.D. 2005)). Stated another way, gratuitous conclusions in a judgment do not

preclude relitigation of the same issue in a different cause of action. See State ex rel.

Greitens v. Am. Tobacco Co., 509 S.W.3d 726, 734 (Mo. banc 2017) ("Under collateral

estoppel, also known as issue preclusion, a court's decision about an issue of fact or law

that is necessary to the court's judgment may preclude relitigation of that issue about a

different cause of action involving a party to the first case. (emphasis added)); Carter, 532

S.W.3d at 209 ("'Collateral estoppel, or issue preclusion, prohibits the relitigation of an

issue that was necessary and unambiguously already decided in a different cause of

action.'" (quoting Kesler, 516 S.W.3d at 896) (emphasis added)). Because the Habeas

Judgment's conclusion addressing the merits of Lynch's claim for credit for time served in

the St. Louis County jail was not necessary to the Habeas Judgment, which found the claim

to be not cognizable in a habeas proceeding, the conclusion on the merits has no preclusive

effect. The Department of Corrections did not establish a right to judgment as a matter of

law on the affirmative defense of collateral estoppel. The trial court erred in entering

judgment in favor of the Department of Corrections in reliance on this defense with respect

to Lynch's claim for credit for the time he served in the St. Louis County jail.



                                             12
The claim for credit for time spent in a long-term treatment program

       Lynch's second claim for credit concerns the time he spent in a long-term treatment

program. The Motion to Dismiss argued that Lynch's petition failed to state a claim for

relief for this time beyond the fifty-seven days of credit already afforded. The trial court

agreed, and the Judgment granted the Motion to Dismiss on the basis alleged in the Motion

to Dismiss. Specifically, the Judgment concluded that Lynch's claim failed as a matter of

law because he did not allege in his petition the time frame for which he should receive

credit beyond the fifty-seven days of credit already received.

       "'We review the grant of a motion to dismiss de novo and will affirm the dismissal

on any meritorious ground stated in the motion.'" Isom v. Deutsche Bank Nat'l Tr. Co., 549

S.W.3d 498, 501 (Mo. App. W.D. 2018) (quoting Gerke v. City of Kansas City, 493 S.W.3d

433, 436 (Mo. App. W.D. 2016)). "'In reviewing the petition to determine if it states a

claim, we accept the allegations in the petition as true and grant the plaintiff[] all reasonable

inferences from those allegations.'" Id. (quoting Gerke, 493 S.W.3d at 436). As such, we

review Lynch's petition "'in an almost academic manner, to determine if the facts alleged

meet the elements of a recognized cause of action.'" Smith v. Humane Soc'y of U.S., 519

S.W.3d 789, 798 (Mo. banc 2017) (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303,

306 (Mo. banc 1993)).

       Here, though Lynch's petition asked the trial court to declare that Lynch was entitled

to credit for the time he served in a long-term treatment program, Lynch's petition fails to

identify the days he spent in the long-term treatment program beyond the fifty-seven days

for which he has already been awarded credit. As the Judgment found, Lynch's petition

                                               13
does not allege that he was entitled to credit for any time spent in custody before he was

sentenced for the St. Charles County offenses on October 22, 2010, or for time spent on

probation after his release on probation in connection with the St. Charles County offenses

on December 12, 2010. There are no factual allegations in the petition that would support

a claim for credit for the time spent in a long-term treatment program beyond the credit

already afforded.

       The trial court did not err in granting the Motion to Dismiss insofar as the Judgment

concluded that Lynch's petition failed to allege facts that would entitled him to any further

credit for the time spent in a long-term treatment program beyond the fifty-seven days

credit already afforded.

                                        Conclusion

       The Judgment is affirmed insofar as it concluded that Lynch's petition failed to state

facts supporting a claim for additional credit for time spent in a long-term treatment

program. The Judgment is reversed insofar as it concluded that Lynch's claim for credit

for time he spent in the St. Louis County jail before being transferred to the Department of

Corrections for crimes committed in St. Charles County was barred by the affirmative

defense of collateral estoppel. This matter is remanded to the trial court for further

proceedings consistent with this opinion.



                                            __________________________________
                                            Cynthia L. Martin, Judge


All concur

                                             14
