Court of Appeals of Missouri, Southern District, Second Division
PHILIP H. BERGER, Plaintiff-Appellant,
EMERSON CLIMATE TECHNOLOGIES, SCROLL COMPRESSORS LLC, and GEORGE SVARANOWIC, Defendants-Respondents.
FROM THE CIRCUIT COURT OF LACLEDE COUNTY Honorable Kenneth M.
BURRELL, P.J. JUDGE
H. Berger ("Employee") appeals the judgment
("the dismissal judgment") that dismissed with
prejudice his second amended petition ("the
petition") against Emerson Climate Technologies
("Emerson"), Scroll Compressors LLC
("Scroll"), and George Svaranowic (collectively,
petition presented three counts: (1) ("the
discrimination claim") Respondents intentionally and
outrageously discriminated against Employee between November
2013 and March 2015 in violation of the Missouri Human Rights
Act, section 213.010 et. seq.("the MHRA"), by not
reasonably accommodating Employee's disability after
Employee received a verdict for money damages in his lawsuit
against Respondents ("the Copeland case" or
"the Copeland trial") "for injuries to his
lungs from exposure to dangerous chemical products in
[Respondent]s' work environment"; (2) ("the
retaliation claim") Respondents retaliated against
Employee in violation of the MHRA based upon his
"reports and complaints of discrimination"; and (3)
("the wrongful discharge claim") Employee was
wrongfully discharged in violation of a "public
policy" allowing "access to the courts for redress
of wrongs" when Respondents discharged him after the
jury's verdict in the Copeland trial.
presents seven points on appeal that contend the trial court
erred in granting Respondents' motion to dismiss the
petition ("the dismissal motion") because: (1)
Employee was not judicially or collaterally estopped from
asserting his claims; (2) the petition properly pleads claims
for disability discrimination, retaliation, and
"wrongful termination in violation of public
policy"; and (3) Emerson was operating as "an
integrated entity" with Scroll, and Emerson was acting
in the interest of an employer of Employee.
merit in Employee's first five points (and the last two
moot), we reverse the dismissal judgment and remand the case.
Principles of Review and Governing Law
review de novo the trial court's grant of a
motion to dismiss. Lang v. Goldsworthy, 470 S.W.3d
748, 750 (Mo. banc 2015); Avery Contracting, LLC v.
Niehaus, 492 S.W.3d 159, 161-62 (Mo. banc 2016).
"When considering whether a petition fails to state a
claim upon which relief can be granted, this Court must
accept all properly pleaded facts as true, giving the
pleadings their broadest intendment, and construe all
allegations favorably to the pleader." Bromwell v.
Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). As a result,
no factual averments are weighed for their credibility or
persuasive effect. Nazeri v. Mo. Valley Coll., 860
S.W.2d 303, 306 (Mo. banc 1993). "Evidence outside the
pleadings cannot serve as the basis for granting a motion to
dismiss." In re Estate of Ridgeway, 369 S.W.3d
103, 109 (Mo. App. E.D. 2012). A trial court goes beyond a
petition when it takes judicial notice of matters in another
court file that were not incorporated into the challenged
pleading. Cf. Chesterfield Vill., Inc. v. City of
Chesterfield, 64 S.W.3d 315, 318 n.1 & 5 (Mo. banc
2002) (the earlier judgment was described in the petition and
attached to it as an exhibit, thus "the circuit court
had the earlier judgment before it and did not need to refer
to matters outside the pleadings"); Gardner v. City
of Cape Girardeau, 880 S.W.2d 652, 654-55 (Mo. App. E.D.
1994) ("the trial court did not confine itself to the
face of the petition, but rather treated the motion as a
request for summary judgment" as it "considered and
took judicial notice of" jury instructions "and the
circuit court records" in a previous case). Indeed,
"neither the trial court nor the appellate court on
de novo review may consider matters outside the
pleadings when adjudging a motion to dismiss."
Naylor Senior Citizens Hous., LP v Side Constr. Co.,
423 S.W.3d 238, 241 n.1 (Mo. banc 2014).
filed his original petition in the instant case in November
2014, and Respondents responded with a motion to dismiss.
Employee filed a first amended petition, and Respondents
moved to dismiss that petition. An April 2015 docket entry
reflects that the trial court held a hearing, and, after
having taken judicial notice of the court file and
transcripts from the Copeland case, granted Respondents'
second motion to dismiss (without prejudice) "for the
[r]easons [s]et [f]orth [i]n" it. Employee responded by
filing the petition at issue in this appeal.
averments in the petition include, inter alia, that:
Employee brought the Copeland case "against
[Respondents] and others based on conditions in the plant
that were negatively impacting [Employee]'s health";
Employee shifted to a different area of the plant as a result
of his health conditions; Employee worked at the plant
"until the week before trial" of the Copeland case
in an area of the plant that "had the presence of
chemicals that aggravated [Employee's] condition."
The petition alleges that Respondents "were already
aware of [the] type of work environment that [he] would
need[, ]" and a reasonable accommodation would have been
to place Employee in an open warehouse position for which he
alleging facts about evidence presented at the Copeland
trial, the petition refers to testimony from two doctors who
testified on Employee's behalf as expert witnesses. One
doctor "testified that he believed [Employee] was doing
fine and could continue working, including working at [the
plant]." The other doctor testified that if Employee
continued to work "'the approach would be to
minimize the exposure to those environments'" that
triggered Employee's health problems.
petition avers that after Employee received a favorable
verdict in the Copeland trial, he "attempted to return
to work" but was told "that he would not be allowed
to return to work." The petition also alleges that
Employee was later told by Mr. Svaranowic that he "would
not be allowed to return to work unless he provided medical
documentation clearing him to return or explaining what
limitations he might have."
subsequent complaint to the Missouri Commission on Human
Rights and a "right to sue" letter issued by that
commission are attached to the petition, but no other
materials or exhibits are attached to or incorporated into
the petition. Additional averments from the petition will be
discussed in our analysis of points 3 through 7.
filed the dismissal motion with supporting suggestions. The
dismissal motion contends, inter alia, that: (1)
Employee's position on his disability as expressed in the
Copeland case judicially estopped him from asserting in the
instant case that his disability could be accommodated; and
(2) Employee's litigation in the Copeland case of his
"ability to perform his job" collaterally estopped
him from re-litigating that same issue in the instant case.
The dismissal motion also asserts that each of the
petition's counts fail to state a claim. Additional
details from the dismissal motion will be addressed in our
analysis of points 3 through 7.
incorporated their prior briefing in support of their motion
to dismiss the first amended petition, and Respondents cited
materials outside the petition, including the trial
transcript, the jury's verdict, and the initial judgment
in the Copeland case. The citations to the Copeland trial
transcript include testimony from two doctors Employee had
called as witnesses and an expert on economic damages. The
exhibits included in Respondents' prior briefing were the
petition in the Copeland case, four separate, multi-page
portions of the Copeland trial transcript, and the
"AMENDED FINAL JUDGMENT" in the Copeland case.
Portions of these materials relevant to an analysis of
judicial estoppel will be described in our analysis of points
1 and 2.
filed suggestions in opposition to the dismissal motion
("Employee's suggestions") that addressed the
concept of treating the dismissal motion as a motion for
summary judgment (without objecting to that procedure), made
similar arguments against the dismissal motion as were made