Bresnahan v. Bass

• Decision Date: 31 January 1978
• Docket Number: No. 38136,38136
• Citation: 562 S.W.2d 385
• Parties: James M. BRESNAHAN, Administrator of the Estate of Margaret M. Bresnahan, Plaintiff, v. Hon. John F. BASS, Comptroller and Chairman, Mary Lou Mullen, Robert R. Thompson, R. Elliot Scearce, James Cantwell, Joseph A. Campagna, Comprising the Board of Trustees, Employees Retirement System of the City of St. Louis, Defendants. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 385

562 S.W.2d 385

James M. BRESNAHAN, Administrator of the Estate of Margaret

M. Bresnahan, Plaintiff, v. Hon. John F. BASS, Comptroller and Chairman, Mary Lou

Mullen, Robert R. Thompson, R. Elliot Scearce, James

Cantwell, Joseph A. Campagna, Comprising the Board of

Trustees, Employees Retirement System of the City of St.

Louis, Defendants.

No. 38136.

Missouri Court of Appeals, St. Louis District, Division Two.

Jan. 31, 1978.

Donald L. Schlapprizzi, Murphy & Schlapprizzi, St. Louis, for plaintiff.

Jack L. Koehr, Robert C. McNicholas, St. Louis, for defendants.

STEWART, Judge.

The trial court, upon petition for review, affirmed the decision of the Board of Trustees of the Employees Retirement System of the City of St. Louis (Trustees) holding that Margaret Bresnahan was not eligible for membership in the Retirement System (System) and not entitled to receive any benefits under the System.

Miss Bresnahan appealed the adverse ruling. During the pendency of this appeal, Miss Bresnahan died and James M. Bresnahan, the Administrator of her Estate, was substituted as the appellant. We shall refer to Miss Bresnahan throughout this opinion as plaintiff.

We must first determine whether this cause is moot by reason of the death of plaintiff. In Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404, 407(4, 5) (Banc 1954), the court stated:

"A question is moot when the question presented for decision seeks a judgment upon some matter which if judgment were rendered could not have any practical effect upon any then existing controversy."

Upon the death of an employee covered under the System no benefits are payable to deceased's heirs or to deceased's estate, only the amount of the employee's contributions and the earnings thereon are payable to the beneficiary named by the deceased. If plaintiff is not a participant the amount so determined is payable to her estate.

Our decision will have a practical effect upon the issue of whether the sum due will be paid to the beneficiary named or to the estate of plaintiff. There are also other court reporters in plaintiff's position and a decision at this time will be dispositive of many other controversies.

The trial court prepared extensive findings of fact and well reasoned conclusions of law. We adopt large portions of the findings and conclusions without quotation marks and with minor changes.

Plaintiff was first employed by the City of St. Louis on October 7, 1933. She held various positions with the City until October 1, 1944, when she became an official court reporter of the Circuit Court of the City of St. Louis, a position she held until her death. The salary of an official court reporter is set by the General Assembly of Missouri and is paid in part by State and in part by City funds. On October 18, 1957, the Attorney General of Missouri issued an opinion holding that official court reporters of the circuit courts were not State employees and were not eligible for membership in the Missouri State Employees Retirement System.

The Employees Retirement System of the City of St. Louis was established by ordinance approved March 23, 1960, and became operative on April 1, 1960. Plaintiff was enrolled as a member of the City System from its inception and appropriate payments were deducted from that portion of her pay received from City funds.

On October 26, 1972, the Missouri Court of Appeals, Kansas City District, issued its decision in Hawkins v. Missouri State Retirement System, 487 S.W.2d 580. This was a class action brought on behalf of the official court reporters serving the circuit courts and courts of Common Pleas in the State of Missouri. The Court held that court reporters were entitled to participate in the Missouri State Employees Retirement System to the full extent of their salaries whether paid by the State or received from other sources and that the reporters were entitled to "prior membership credit" dating from the commencement of such employment. In accordance with this decision, plaintiff became a member in the State Retirement System with a membership date of October 1, 1944.

After the decision in Hawkins the System notified plaintiff that since she was fully covered under the State System with credit for prior service she was not eligible for membership in the City System. Plaintiff disagreed and filed her request for an application for retirement thus starting in motion the proceedings which are now before us.

The Employees Retirement System of the City of St. Louis was established by Chapter 59 of the Revised Code of the City of St. Louis, 1960. Section 59.010 defines various terms used in the ordinance and provides "(3) Employee shall mean any regular appointive or elected employee of an Employer, whether performing city or county functions, except . . . members of other retirement systems established by ordinance and/or State Statute . . . are excluded." The Board of Trustees denied plaintiff's request for retirement on the grounds that she was excluded under this section of the ordinance.

Plaintiff contended that she had a vested interest in the Retirement System by reason of having at least twelve years of creditable service and having attained age 45 as provided in Section 59.050(5), Revised Code of the City of St. Louis. ¹

Before we can address the merits of plaintiff's claim we must consider the jurisdictional issues raised by the Trustees. They contend that the circuit court was without jurisdiction to entertain plaintiff's petition for review because plaintiff failed to either deliver a copy of the petition or send a copy by registered mail to the Trustees within 30 days after notice of the agency's decision, in violation of § 536.110 V.A.M.S., now Rule 100.04.

Rule 100.04, in relevant part, reads:

"(a) Petition for Review When Filed

Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of plaintiff's residence within thirty days after the mailing or delivery of the notice of the agency's final decision.

(b) Petition for Review How Served

* * * No Summons shall issue in such case, but copies of the petition shall be delivered to the agency * * * or shall be mailed to the agency * * * by registered mail, and proof of such delivery or mailing shall be filed in the case."

The Trustees claim that the Rule requires plaintiff to mail to the Trustees, by registered mail, a copy of the petition within thirty days after the agency delivers its final decision.

The primary purpose of Rule 100.04(b) is to provide notice to the opposing party that a petition has been filed in order "(t)o eliminate any claim of a denial of due process under the state and federal constitutions." State ex rel. Day v. County Court of Platte County, 442 S.W.2d 178, 182(5) (Mo.App.1969). Considering the statutory language in light of this purpose it is apparent that the only time limitation imposed by the Rule is that the petition be filed in the circuit court within the thirty day period. There is no time limitation imposed by subsection (b) of the Rule and this portion of the rule is not violated unless notice is so untimely as to deprive the Trustees of due process. No such violation is shown here. The agency rendered its final decision on June 14, 1975. Plaintiff filed a petition for review on July 9, 1975, well within the only time limitation imposed by the Rule. On that same date, plaintiff sent to the Trustees, by first class mail, a copy of the petition which the Trustees admit receiving on July 11, 1975.

The registered mail provision of the Rule is to provide plaintiff a method of proving that the notice has been given. Here, however, the Trustees admit receiving a copy of the petition two days after it was filed in the circuit court, thereby removing the need for such proof.

The trial court did not err in overruling the Trustees' Motion to Dismiss for lack of jurisdiction on the grounds the copy of the petition was not mailed by registered mail within 30 days after the agency made its final decision.

The System further contends that this Court is without jurisdiction because plaintiff failed to file the record of administrative proceedings within 30 days after filing her petition as required by Section 536.110 RSMo. On August 11, 1975, thirty-two days after the petition was filed, the Court entered an order extending the time to file the transcript to September 12, 1975. This extension was granted upon the ex parte application of plaintiff without motion or notice to the Trustees. The record was filed on August 26, 1975. Section 536.130 provides the filing of the record within thirty days "or within such further time as the court may allow." The issue is whether the Court had authority to grant the extension on an ex parte application therefor after the original thirty-day period had expired.

Rule 100.06 in part, provides:

"Within thirty days after the filing of the petition or within such further time as the court may allow, the record before the agency shall be filed in the reviewing court."

In Greene County v. Hermel, Inc., 511 S.W.2d 762, 764(2) (Mo.1974) the Court analogized the above Rule to Rule 81.04 which provides that upon filing a timely appeal in an appellate court "(the) failure of the appellant to take the further steps required to secure review within the periods allowed 'does not affect the validity of the appeal, but shall be ground for such action as the appellate court deem appropriate.' " Reading Rule 100.06 in the context of Greene County v. Hermel we hold that the timely filing of the transcript of the administrative hearing is not jurisdictional and under the facts in this case the court did not abuse its discretion in granting...