Geary v. Missouri State Employees' Retirement System

• Decision Date: 05 July 1994
• Docket Number: No. WD,WD
• Citation: 878 S.W.2d 918
• Parties: William A. GEARY, Jr., Appellant, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent. 48740.
• Court: Missouri Court of Appeals

Page 918

878 S.W.2d 918

William A. GEARY, Jr., Appellant, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent.

No. WD 48740.

Missouri Court of Appeals,

Western District.

July 5, 1994.

William J. Travis and Carolyn A. Aylward, St. Louis, for appellant.

Allen D. Allred and James W. Erwin, St. Louis, for respondent.

Before HANNA, P.J., and BRECKENRIDGE and ELLIS, JJ.

ELLIS, Judge.

This is an appeal by William A. Geary, Jr. from dismissal of his seven-count, first amended petition against the Missouri State Employees' Retirement System ("MOSERS") by the Circuit Court of Cole County. Geary filed the petition after the MOSERS Board of Trustees denied his appeal from the refusal of his request for retroactive payment of certain retirement benefits for the period from February 5, 1987 through September 1, 1992.

Geary filed a two-count suit against MOSERS on October 29, 1992. On December 3, 1992, MOSERS responded by filing a motion to dismiss Geary's petition. The motion did not dispute any of the factual allegations made by Geary, but argued that Geary was barred by the statutes and Constitution of Missouri from receiving the retirement benefits As pleaded in the first amended petition, the facts are as follows. Geary served in the Missouri General Assembly as a State Representative for three full biennial terms, from January 1, 1957 through January 1, 1963. He was subsequently appointed to the bench, and served as a Circuit Judge of the St. Louis Circuit Court, Twenty-Second Judicial Circuit, from December 29, 1972 through August 31, 1992.

prayed for in his petition. Before the court ruled on the motion, MOSERS filed an amended motion to dismiss on January 12, 1993 alleging a different legal ground for dismissal of Geary's claims. Three days later, on January 15, 1993, Geary filed an affidavit, attached to which were copies of two letters written by Geary to MOSERS officials on September 1, 1992, requesting retroactive payment of retirement benefits for past legislative service. The affidavit requested that the court receive those letters as true and correct copies of the original letters. MOSERS made no objection and the letters were received by the court. About two weeks later, on February 3, 1993, Geary filed his first amended petition, adding five new counts alleging various constitutional violations by MOSERS. On April 5, 1993, MOSERS filed a motion to dismiss Geary's first amended petition in which the factual allegations made by Geary were once again not disputed. Geary responded by filing a second affidavit containing a copy of a September 29, 1992 letter to Geary from the Executive Director of MOSERS and requesting that the court receive the letter. The letter was received by the trial court without objection. MOSERS' April 5, 1993, motion to dismiss Geary's first amended petition was argued on September 20, 1993, and on October 13, 1993, the trial court entered an order granting the motion and dismissing Geary's first amended petition. Geary then perfected this appeal.

Geary was born on February 5, 1927 and became sixty years of age on February 5, 1987. On January 23, 1987, Geary made a written application to MOSERS for retirement benefits, to commence on his sixtieth birthday, based on his age and service in the General Assembly. MOSERS denied Geary's application, and the denial was upheld by the full MOSERS Board of Trustees. Geary was notified of the Board's decision by letter dated February 24, 1987. Geary did not seek judicial or any other review of that decision.

On August 31, 1992, Geary retired from his position as a circuit judge. On September 1, 1992, he again applied to MOSERS for retirement benefits based on his past service as a State Representative. He requested that he be paid those benefits for the period from February 5, 1987 to September 1, 1992, including accumulated interest at the statutory rate. MOSERS denied the request for payment of "unpaid benefits," and Geary appealed to the MOSERS Board of Trustees, which denied the appeal on September 29, 1992. Geary then brought the action which is the subject of this appeal.

Geary's first amended petition was in seven counts. Count I appealed MOSERS' administrative decision denying him legislative service retirement benefits for the period from February 5, 1987 to September 1, 1992, while Count II claimed MOSERS breached its contract with Geary by denial of the requested payments. In Counts III through V, Geary contended that if certain Missouri statutes or MOSERS' application of certain provisions of the Missouri Constitution deny him recovery of the benefits claimed, such statutes and MOSERS' application of the Missouri Constitution should be declared unconstitutional as a denial of equal protection of the law. In Count VI, Geary sought relief asserting deprivation of property (the requested benefits) without due process of law because no reason was given for denial of his application. And finally, in Count VII, Geary claimed a taking of property for public purposes without just compensation because he was not being compensated for the withholding of the claimed benefits.

Geary presents two points on appeal, both with numerous sub-parts based on the grounds asserted for dismissal in MOSERS' motion to dismiss. First, he contends the trial court erred in dismissing the first amended petition because, when viewed in the light most favorable to him, it demonstrates grounds upon which relief can be We review the trial court's order of dismissal as a grant of summary judgment. Only those matters appearing on the face of the petition can be considered in a motion to dismiss for failure to state a claim. Empiregas, Inc. v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 & n. 4 (Mo.1974); Feinstein v. Edward Livingston & Sons, Inc., 457 S.W.2d 789, 792 (Mo.1970). When matters outside the pleadings are presented to and not excluded by the trial court, a motion to dismiss a pleading for failure to state a claim upon which relief can be granted is to be treated as one for summary judgment. Rule 55.27(a); Black Leaf Products Co. v. Chemsico, Inc., 678 S.W.2d 827, 829 (Mo.App.1984).

granted. And second, he urges trial court error because the statutes applied by MOSERS, and MOSERS' actions, violate the Missouri and United States Constitutions.

When, as Geary did here, the plaintiff introduces evidence beyond the pleadings, he is charged with knowledge that the defendant's motion to dismiss is thereby "automatically converted to a motion for summary judgment." Hyatt Corp. v. Occidental Fire & Cas. Co., 801 S.W.2d 382, 392 (Mo.App.1990) (emphasis in original); see also Schwartz v. Lawson, 797 S.W.2d 828, 833 (Mo.App.1990) (when plaintiffs filed affidavits in opposition to defendant's motion to dismiss for failure to state a claim, they "convert[ed] [the] motion to dismiss ... into a motion for summary judgment.") Under the circumstances, Geary was "placed on notice that the motion was converted when he introduced evidence beyond the pleadings." Shafer v. Western Holding Corp., 673 S.W.2d 117, 119-20 (Mo.App.1984). See also Williams v. Mercantile Bank, 845 S.W.2d 78, 83 (Mo.App.1993) (where "no additional evidence was needed by the trial court to dispose" of the case, a motion to dismiss can properly be considered a motion for summary judgment even though "no matters outside the pleadings were presented to the court.")

We therefore review the trial court's order under the summary judgment standard of review. "Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law." ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is purely an issue of law which we review de novo on the record submitted and the law. Id.

When reviewing the entry of summary judgment, we view the evidentiary record in the light most favorable to the party against whom summary judgment was granted, determine if any genuine issue of fact exists which would require a trial, and determine if the judgment is correct as a matter of law. We will affirm if the judgment is sustainable as a matter of law under any theory.

State ex rel. Conway v. Villa, 847 S.W.2d 881, 886 (Mo.App.1993) (citations omitted); Rule 74.04(c). A genuine issue of fact exists where the record contains competent evidence that two plausible but contradictory accounts of essential facts exist. ITT Commercial Fin. Corp., 854 S.W.2d at 382. In the case at bar, there is no genuine issue of fact requiring a trial because MOSERS never disputed any of the factual allegations made by Geary in his original or first amended petitions. "[I]t is not the 'truth' of the facts upon which the court focuses, but whether those facts are disputed. Where they are not, the facts are admitted for purposes of analyzing a summary judgment motion." Id.; see also Villa, 847 S.W.2d at 888 (no question of material fact exists with respect to any issue where the party moving for summary judgment does not challenge his opponent's alleged facts). We therefore need only determine whether the trial court correctly determined that MOSERS demonstrated it was entitled to judgment as a matter of law on each of the seven counts contained in Geary's first amended petition. See ITT Commercial Fin. Corp., 854 S.W.2d at 380 ("The key to summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question.")

COUNTS I AND II

In its motion to dismiss, MOSERS asserted, inter alia, that Missouri statutes prohibit a person serving in appointive state office from receiving retirement benefits for past legislative service and Geary was therefore ineligible for such benefits until he retired from his position as circuit judge.

Geary counters by...