Johnson v. Buehler

DOWD, Presiding Judge.

Plaintiff filed suit in Warren County against his appointed counsel and against the State Public Defender, claiming intentional failure to prosecute his Rule 27.26 motion and requesting appointment of new counsel, monetary damages and costs. The circuit court judge dismissed the petition after finding it “to be totally frivolous and malicious” and finding improper venue. Plaintiff subsequently submitted a notice of appeal to this court along with a copy of an application, directed to the Circuit Court, to proceed with the appeal in forma pauperis. § 514.040, RSMo 1986. No filing fee was paid as required under Rule 81.04(c) and our records do not reveal that the application has been granted. Consequently, the appeal was never properly filed with this court and we dismiss. State v. Hanson, 563 S.W.2d 538, 539 (Mo.App.1978).

Even if plaintiff had correctly filed his appeal, he would not be entitled to relief. Rule 27.26(h) requires appointed counsel to provide a certain level of representation and if the record does not indicate that counsel had provided this representation, the motion court should not dismiss a movant’s petition. Berry v. State, 722 S.W.2d 130, 132 (Mo.App.1986). Dismissal under these circumstances would require reversal of the motion court’s order upon appeal. Lee v. State, 729 S.W.2d 647, 648 (Mo.App.1987). Plaintiff's petition indicates that the motion court had not yet addressed his Rule 27.26 motion. Consequently, his legal malpractice action was premature because counsel still had time to perform, 7A C.J.S. Attorney and Client § 267, and because the motion process had not yet determined that counsel had failed to perform his duties, see Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo.App.1986).

Appeal dismissed.

SIMON and HAMILTON, JJ. concur.