DocketNumber: WD 80493
Citation Numbers: 540 S.W.3d 864
Judges: Witt
Filed Date: 3/6/2018
Status: Precedential
Modified Date: 1/21/2022
Appellants George Fuller and Clara Fuller (collectively the "Fullers" and "George" and "Clara," respectively) appeal the judgment of the Circuit Court of Jackson County, Missouri. Fullers filed a petition against Ronald Partee ("Partee") and Byron Fox ("Fox") which alleged breach of contract, breach of fiduciary duty, and legal malpractice. Partee and Fox filed a motion to dismiss the action, which was granted by the trial court. The Fullers raise six points on appeal alleging error. We find that the circuit court erred in dismissing George's claim for breach of contract against Partee. We reverse and remand for further proceedings on this point. In all other respects we affirm.
Background
George Fuller is currently incarcerated for murder and other related charges. He *867was convicted following a jury trial in 1990 and is serving a prison term of life without the possibility of parole. George's conviction was affirmed on direct appeal as were his pro se motions for post-conviction relief. State v. Fuller ,
This Court docketed the case for "no argument" and sent a letter to Partee instructing him that he had ten days within which to request the case be moved to the oral argument docket. Partee sent a letter to George acknowledging that George's case had been placed on the "no argument" docket and stated he would make inquiries as to why argument had not been scheduled. The Fullers attempted to contact Partee to instruct him that he could and should request oral argument. Partee did not timely request oral argument nor did he discuss this decision with George. This Court ultimately affirmed the judgment of the motion court. Fuller v. State ,
Following this court's decision on George's appeal, the Fullers brought suit against Partee. Ultimately, the Fullers jointly filed an Amended Petition
Standard of Review
"We review de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law." Weems v. Montgomery ,
A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all the plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or a cause that might be adopted in that case.
Prenger v. Boat Store, Inc. ,
Fox attached an affidavit to his motion to dismiss and the Fullers attached additional affidavits and documents in their suggestions in opposition to Partee and Fox's motions to dismiss. The Fullers requested that the court treat Fox's motion to dismiss as a motion for summary judgment. When the parties request the court to consider exhibits or matters outside of the pleadings in response to a motion to dismiss, the motion may be converted to a motion for summary judgment. Crest Constr. II, Inc. v. Hart,
Discussion
I.
For clarity of discussion we address the points on appeal out of order. We begin with Point Relied On VI which alleges that the trial court erred in finding that there was no partnership between Partee and Fox.
The Fullers allege that Fox was law partners with Partee at the time Partee and George contracted for legal representation. Because of the partnership Fullers argue, Fox would have shared in any proceeds from the contract and should be liable for any damages. Although the Fullers further admit that they joined "Defendant Fox because they had no other means to recoup the damages they suffered as a result of the breach of contract." The circuit court found that the petition failed to properly plead facts to establish that a partnership existed between Partee and Fox. We agree.
According to an affidavit provided by Fox, he has not practiced law in fifteen years and has not occupied an office with Partee in as much time. The Fullers allege that they hired Partee to represent George because, after attempting to contact Fox, they were told by an unknown person that Fox no longer practiced law and were given the name of Partee. The alleged "referral" does not provide evidence of a partnership. If it is indicative of anything, it supports Fox's contention that he was not practicing law at the time George hired Partee and therefore could not have been in a legal partnership with Partee at the time of the contract. The only additional evidence that the Fullers have to suggest that Fox and Partee were partners is that Partee used letterhead titled "Fox & Partee." The letterhead, did not identify Fox as an attorney with the firm and the engagement letter was signed solely by Partee and made no mention of Fox. Additionally, directly below the firm name, it is clearly indicated that the letter is coming from "Ronald E. Partee, P.C." This is further support for the finding that Partee *869was practicing law as a professional corporation and not as a law partner with Fox. The Fullers' brief identifies no response to the lack of evidence supporting a partnership other than noting that Fox does not explain why old letterhead was used nor affirmatively show that he did not share in profits. This was not his burden. The Fullers needed to plead facts, not mere conclusions, establishing that Fox was in a legal partnership with Partee. Pulitzer Publ'g v. Transit Cas. Co. ,
II.
We next address the Fullers' claim that the court erred in finding that Clara was not a third-party beneficiary to the contract and thus had no standing to bring a claim against Partee.
First, it is clear that Clara cannot bring a claim for legal malpractice or breach of fiduciary duty.
The engagement letter sent by Partee to George forming the alleged contractual relationship was solely for the representation of George. George and Partee *870were the only signatories to the letter. George was the only one who was a party to the Rule 29.15 proceeding on which Partee was hired to work. Generally, an individual must be a party to a contract or a third-party beneficiary in order to have standing to enforce the agreement. General Motors Acceptance Corp. v. Windsor Grp., Inc. ,
The trial court did not err in finding Clara had no standing to bring the claims for breach of contract, malpractice, or breach of fiduciary relationship because she was not a party to the contract between Partee and George, was not a third party beneficiary to that contract, and neither did she have an attorney-client relationship with Partee. The remainder of this opinion shall thus be dedicated to the remaining claims of George against Partee.
III.
George's second and third points on appeal allege that the trial court erred in dismissing their claims for malpractice and breach of fiduciary duty.
George's brief outlines the elements of breach of fiduciary duty and legal malpractice and alleges that George's petition fully set forth those elements. As previously stated, a plaintiff seeking to recover for legal malpractice must establish "(1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation of plaintiff's damages; (4) damages to the plaintiff." Fox, at 260. "A breach of fiduciary obligation is constructive fraud." Klemme , 941 S.W.2d at 495. "Whether characterized as breach of fiduciary duty or constructive fraud, the elements of such a claim are: (1) an attorney-client relationship; (2) breach of a fiduciary obligation by the attorney; (3) proximate causation; (4) damages to the client; (5) no other recognized tort encompasses the facts alleged." Id. at 496. It is the second and fifth elements that distinguish a breach of fiduciary claim from a legal malpractice action. Id. It is a claim for constructive fraud rather than one of negligence. Id.
The brief, however, fails to address that, when the claims are asserted in the context of post-conviction relief, the petition must also allege that the plaintiff is actually innocent of the underlying crime charged. Kuehne v. Hogan ,
We similarly find that the public policy concerns underlying the actual innocence requirement in the context of a malpractice suit against a criminal trial attorney apply equally to cases involving *871a criminal defendant's post-conviction counsel. Therefore, Kuehne's innocence of the criminal charges for which he was convicted is essential to satisfy the causation element of his claim. Although Kuehne asserted in his petition that he is an innocent man, his allegation is merely a bare conclusion without factual support. The fact of his guilt was previously determined when he was convicted of the criminal charges, and Kuehne is therefore barred from asserting a collateral civil claim where actual innocence is an essential element.
Kuehne ,
We find that these cases fully dispose of George's claims for breach of fiduciary duty and malpractice. Both claims are civil claims that seek to obtain money damages against Partee for what are essentially malpractice claims. George does not attempt to distinguish this case law or otherwise argue it is inapplicable to this case. We therefore find that the circuit court did not err in dismissing George's claims for malpractice and breach of fiduciary duty against Partee.
IV.
Finally, George's first point on appeal alleges that the circuit court erred in granting Partee's motion because it was contrary to the law. Specifically, George argues that the circuit court failed to find that there was not a contract between George and Partee and the court further failed to find that George would be unable to demonstrate a breach of such a contract.
George's claim for breach of contract against Partee is that he failed to obtain oral argument in his case before this court. "A client may sue an attorney when the attorney fails to follow instructions or fails in the attorney's obligations as the client's agent. This action is for the attorney's breach of contract. It is not predicated on a lack of legal expertise. It is based on the law of contract and agency, not on negligence." 34 Mo. Prac. Personal Injury and Torts s. 11:10; See Jarnagin v. Terry,
The engagement letter outlining the terms of the agreement were included by the Fullers in their original petition. Additionally, in his own Motion to Dismiss, Partee admits that he entered into a contract with George for "among other things, *872all research and preparation of Mr. Fuller's Brief, and oral argument in the Western District." (emphasis added). It is undisputed that Clara delivered $6,000 to Partee on George's behalf, thus satisfying George's obligations under the contract. It is further undisputed that Partee did not request or present oral argument to this Court although oral argument was a service contracted for under the agreement and a request affirmed by the Fullers. Although George cannot obtain damages as a direct result of his crimes, as discussed fully above, we believe he can obtain damages for amount paid for a service that he did not receive.
Missouri has yet to address when a criminal defendant can obtain damages for a specifically contracted for service which was not rendered by his defense counsel under a claim for breach of contract. Other states have faced this question. In California, the court found that, as with a malpractice claim, a criminal defendant cannot bring a claim for breach of contract against their attorney unless they can show actual innocence. Lynch v. Warwick ,
We hasten to note that this is an unusual case in which George had a contract clearly listing certain legal services that would be provided and has alleged that one of those services was not provided without his consent. This is not a generalized claim that his attorney breached his contract by providing unsatisfactory representation which is merely a legal malpractice claim repackaged. See generally , Gill v. Blau ,
Conclusion
For the reasons stated above we affirm the circuit court's dismissal of all claims *873brought by the Fullers against Fox, all claims brought by Clara against Partee, and the dismissal of George's claims for malpractice and breach of fiduciary duty against Partee. We, however, reverse the court's dismissal of George's claim against Partee for breach of contract and remand for further proceedings consistent with this opinion.
All concur
The facts set forth are taken from the petition filed in the trial court and for purposes of this appeal we presume them to be true. Dujakovich v. Carnahan ,
The initial "Petition" was filed as a motion. The Fullers then submitted various amendments to the "Petition" asserting various claims against various parties. For brevity, we only address the claims in the final Amended Petition filed on March 23, 2015.
Point Relied On V is specifically addressed to the Fullers' claims regarding Clara as a third-party beneficiary but this discussion relates to her right to bring any of the claims filed in the Amended Petition, implicating all points on appeal and fully disposing of Clara's rights in this case.
"A breach of a fiduciary obligation is constructive fraud." Klemme v. Best ,
These exceptions have been limited to intentional torts. Macke Laundry Serv. Ltd. P'ship v. Jetz Serv. Co. ,
The Fullers additionally raise a claim in their Point Relied on IV that the circuit court erred in failing to make specific findings of fact regarding a claim of Fraud. Fraud was not a claim brought in the Amended Petition. The Fullers' arguments as they relate to fraud have been incorporated into the relevant discussion for the claims actually brought in the petition; legal malpractice, breach of fiduciary duty, and breach of contract, infra.
Also, we note that Partee makes no argument that performance was impossible or that George otherwise agreed to waive argument.