Cain v. Hershewe, 15487

Decision Date19 October 1988
Docket NumberNo. 15487,15487
Citation760 S.W.2d 146
PartiesJohn W. CAIN, Appellant, v. Edward J. HERSHEWE and Phillip A. Glades, Respondents.
CourtMissouri Court of Appeals

John W. Cain, pro se.

Stephen H. Snead, Mann, Walter, Burkart, Weathers & Walter, Springfield, for respondents.


Appellant John W. Cain was formerly licensed as a podiatrist in the State of Arkansas. The license was revoked and the revocation of the license was upheld on appeal. Cain v. Arkansas State Podiatry Examining Board, 275 Ark. 100, 628 S.W.2d 295 (1982).

Cain filed this action in which he acts as counsel pro se against two Missouri attorneys, Edward J. Hershewe and Phillip A. Glades. He claims that in 1980 Hershewe and Glades were in partnership. According to the petition, Hershewe and Glades failed to proceed on appellant's behalf in claims he had against two Arkansas attorneys and failed to represent him in the proceedings relating to revocation of his Arkansas podiatry license after being employed to do so. The defendants filed a motion for summary judgment which was sustained. Cain now appeals.

Cain purports to raise five points on appeal. A review of the argument under those points discloses that the same essential complaint is made in four of the points. Each of the four points relate to the trial judge's failure to disqualify. The other point suggests that the trial judge did "not allow testimony provided in the affidavit" supplied by Cain in opposition to the motion for summary judgment and argues that the affidavit demonstrates there was a genuine issue of fact.

Cain's brief claims that the trial judge's law firm had formerly represented Cain in 1973 and Cain's wife in a 1974 divorce. He argues that these facts should have required the judge to disqualify himself.

The only reference to Judge Copeland's prior representation found in the legal file or transcript is a letter from Cain to the trial judge dated October 19, 1987. The letter makes reference to the first summary judgment which had been filed in this case on July 20, 1987. Cain's October 19, 1987 letter purports to confirm a discussion held on September 29, 1987, in which it was brought to the judge's attention that the parties had not been notified of the filing of the first summary judgment. Cain's letter recounting the discussion reminds the trial judge that he indicated he would "make an entry and bring the above-styled case up to date" so Cain could appeal. On November 2, 1987, noting the absence of notice to the parties of the entry of the July 20, 1987 judgment, the trial judge set it aside. Rule 74.03. 1 The same judgment was re-entered on November 3, 1987.

In Cain's letter of October 19 recalling the conversation with the judge, he states as follows:

At the same time I was also informed by you that you had been one of the attorneys against me in the case of Cain v Cain in 1974 and remained one of the Ex-Mrs. Cain's attorneys until you were elected to be a Judge. You have since disqualified yourself in the Cain v Buehner....

Nothing in the letter indicates that Cain desired the trial judge to disqualify himself in this case. The letter was sent many months after the motion for summary judgment had been under submission and after the trial judge had indicated how he intended to rule on that motion.

No application to disqualify Judge Copeland was filed in this case. None of the specific causes mandating disqualification without an application under Rule 51.07 exist, nor do any of the specific causes for disqualification described in Rule 2, Canon 3(C) exist. The prior representation of a party by a judge or his law firm with regard to a matter unrelated to the litigation before him does not mandate disqualification, and a judge has an affirmative duty not to disqualify himself unnecessarily. National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir.1978). In addition, there is nothing here to indicate that Judge Copeland's actions on the bench indicated an extrajudicial bias. If the judge was to be disqualified, it was discretionary. He cannot now be convicted of an abuse of discretion when no request was made to exercise such discretion.

Cain argues that the representation of Cain and Cain's ex-wife by the trial judge's former law firm had served as a basis for disqualification of Judge Copeland in another case in which Cain was plaintiff. We, of course, do not take judicial notice of records in other cases and we limit our review to the record before us. Smitty's Super Markets v. Retail Store, etc., 637 S.W.2d 148, 151 (Mo.App.1982). However, Cain's brief reports that a timely application to disqualify was filed in the other case, while here the first indication that Cain wanted the trial judge disqualified appears in his brief on appeal. A claim made for the first time on appeal that a judge should have disqualified on discretionary grounds cannot be characterized as timely. The trial judge's discretionary disqualification in another case did not disqualify him in this case.

Cain's other point suggests that there are genuine issues of fact left for determination and the trial court should not have granted summary judgment. When there is no theory within the scope of the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed which would permit recovery, a defendant is entitled to a summary judgment. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984); Rule 74.04(c). We review the record in a light most favorable to Cain. Zafft v. Eli Lilly & Co., supra. However, the facts set out in the affidavits filed in support of the motion for summary judgment which are not controverted by Cain's opposing affidavits are deemed admitted even if contrary to the pleadings. Missouri Farmers Ass'n, Inc. v. Campbell, 754 S.W.2d 596, 598 (Mo.App.1988); Rule 74.04(e).

Cain filed a three-count petition. Each count alleges indistinguishable facts but asserts the basis of liability in Count I is negligence, in Count II is breach of fiduciary duty, and in Count III is breach of contract. The pleadings assert that Hershewe and Glades entered into a contract to defend Cain in the proceeding for revocation of his podiatry license in Arkansas and to pursue Cain's claims against two Arkansas attorneys, William Wilson and Bob Scott. The alleged fee for these services was a 50% contingent fee. The petition states that Hershewe and Glades violated their duties by failing to communicate, failing to defend the podiatry license revocation proceeding, failing to file lawsuits against Wilson and Scott, and making use of records relating to the license revocation proceeding against Cain in three medical malpractice suits filed in 1983. By...

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    ...v. Singh, 586 S.W.2d 410, 420 (Mo.App.1979). A judge has an affirmative duty not to disqualify himself unnecessarily. Cain v. Hershewe, 760 S.W.2d 146, 148 (Mo.App.1988). After the trial begins, the trial judge should not disqualify himself in the absence of actual prejudice. State v. Vermi......
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