In the 

Missouri Court of Appeals 

Western District

RUSSELL SCOTT LYNCH,

Appellant,

v.

JAMES HURLEY,

Respondent.

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WD81790

OPINION FILED:

February 13, 2019

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. 
2

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, 07SLCR07249, and 07SL-CR05800-01. In addition, the St. Charles County judgment imposed 

long-term treatment pursuant to section 217.3621for 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On August 25, 2016, Lynch's probation in the St. Charles County case was revoked, 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 

 

1All statutory references are to RSMo. Supp. 2008 unless otherwise noted. 
3

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. 
4

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 

 

2Lynch'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. 
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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,
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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 
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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 longterm 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 
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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 
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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 

 

3King 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. 
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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 
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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 oneyear 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 
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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. 
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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
14

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