Cain v. Webster, 15585

• Decision Date: 27 March 1989
• Docket Number: No. 15585,15585
• Citation: 770 S.W.2d 327
• Parties: John W. CAIN, Plaintiff-Appellant, v. Richard WEBSTER, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 327

770 S.W.2d 327

John W. CAIN, Plaintiff-Appellant, v. Richard WEBSTER, et al., Defendants-Respondents.

No. 15585.

Missouri Court of Appeals,

Southern District,

Division Two.

March 27, 1989.

Motion for Rehearing and Transfer Denied and Overruled

April 18, 1989.

Application to Transfer Denied June 13, 1989.

John W. Cain, pro se.

Robert W. Schroff, John G. Newberry, Schroff, Glass & Newberry, Springfield, for defendant-respondent.

PER CURIAM:

By his petition the plaintiff, John W. Cain, seeks to recover damages from lawyers Richard Webster and William Webster because they did not represent him in a proceeding in which his Missouri license as a podiatrist was revoked. He also seeks to recover from lawyers Richard J. Collins and David W. Kinnard as associates of the Websters on the basis of vicarious liability. The defendants filed a motion to dismiss. Discovery, including depositions of the plaintiff and the two Websters, was had. The trial court treated the motion as a motion for summary judgment. Following a hearing, it sustained the motion and entered judgment for the defendants. The plaintiff appeals.

In the trial court and in this court the plaintiff has appeared pro se. "That, of course, is [his] right. [He is] bound, however, by the same rules and procedures as those admitted to practice law and [is] entitled to no indulgence [he] wouldn't have received if represented by counsel." Boyer v. Fisk, 623 S.W.2d 28, 30 (Mo.App.1981). Also see Niemann v. Kasch, 740 S.W.2d 706 (Mo.App.1987); Johnson v. St. Mary's Health Center, 738 S.W.2d 534 (Mo.App.1987); Mullen v. Renner, 685 S.W.2d 212 (Mo.App.1984); Shelton v. Julian, 610 S.W.2d 129 (Mo.App.1980). To state a claim, a pro se litigant is required to plead facts which state a claim as a matter of law. Mullen v. Starr, 537 F.Supp. 945 (W.D.Mo.1982), cert. denied, 461 U.S. 960, 103 S.Ct. 2434, 77 L.Ed.2d 1320 (1983). These rules are particularly applicable in view of the plaintiff's experience in litigation. Mullen v. Renner, supra. See Cain v. Scott, 782 F.2d 1050 (8th Cir.1985); Cain v. State of Arkansas and Arkansas State Podiatry Board, 734 F.2d 377 (8th Cir.1984); Cain v. Arkansas State Podiatry Examining Board, 275 Ark. 100, 628 S.W.2d 295 (1982); Cain v. Hershewe, 760 S.W.2d 146 (Mo.App.1988); Cain v. Cain, 546 S.W.2d 203 (Mo.App.1977); Cain v. Cain, 536 S.W.2d 866 (Mo.App.1976).

The plaintiff's petition is in three counts. In the first count the plaintiff alleged the defendants negligently breached their obligations as his lawyers. In the second count the plaintiff charges the defendants are liable because they breached their fiduciary duties to him. In the third count he alleges they breached their contract to represent him.

Each count is premised upon the same two basic allegations. First, in each count, he alleges the defendants Webster "entered into an oral agreement with plaintiff ... to proceed on plaintiff's behalf regarding plaintiff's defense of the Missouri Board hearings before the Administrative Hearing Commission." Second, he alleges in each count the defendants breached their duties in the following respects: (1) They did not maintain communication with the plaintiff nor did they return the plaintiff's telephone calls. (2) The defendants raised no defenses by association or otherwise regarding the claims and defenses defendants agreed to raise. (3) The defendants supplied then Attorney General Ashcroft and his assistants files and transcripts and records to use against the plaintiff and helped Administrative Hearing Commissioner Campbell write up his decision against the plaintiff in the proceeding to revoke his Missouri license. In each count he alleges that those breaches resulted in the loss of his Missouri license and the damages for which he seeks recovery.

Allegations (1) and (2) referred to above are allegations of conclusions. They do not aid the petition in stating a cause of action. Goodson v. City of Ferguson, 339 S.W.2d 841 (Mo.1960). They did not call for a response. Landmark North County Bank v. National Cable Training Centers, 738 S.W.2d 886 (Mo.App.1987). By their deposition testimony, the defendants Webster emphatically denied they agreed to represent the plaintiff. That testimony also established circumstances corroborating that denial. Further, in unmistakable terms they denied supplying any documents or information to the office of the Attorney General or in assisting the Administrative Hearing Commissioner. The latter facts were also established by affidavits based upon the personal knowledge of the state officials who handled the proceedings that resulted in the revocation of the plaintiff's Missouri license. Such affidavits also established that in that proceeding the plaintiff was represented by Michael R. Thiessen of Brown and Thiessen, P.C., Suite 2121, 1100 Main St., Kansas City, Mo. and David M. Harding of Van Osdol, Magruder, Erickson & Redmon, 515 Commerce Bank Building, P.O. Box 13363, Kansas City, Missouri.

The plaintiff filed no affidavits or evidentiary material specifically opposing the deposition evidence and affidavits referred to above. He did not direct the attention of the trial court to contrary evidentiary material. He has not by his briefs referred this court to such contrary evidentiary material. The judgment of the trial court should be upheld upon the basis of that omission. Landmark North County Bank v. National Cable Training Centers, supra; Hill v. Air Shields, Inc., 721 S.W.2d 112 (Mo.App.1986).

However, the deposition of the plaintiff was on file when the judgment of the trial court was entered. Also, the plaintiff had filed various affidavits in connection with other motions and aspects of the case. Contrary to the precept cited above, in view of the finality of the judgment of the trial court, this court has examined all evidentiary material contained in the record. Such examination reveals that the only evidentiary material to the effect that the defendants agreed to represent the plaintiff is an isolated answer by the plaintiff to a leading question given in the course of the taking of his deposition. It is not necessary to consider if plaintiff's testimony is so self-contradictory that it does not raise an issue of fact. See Roehl v. Ralph, 84 S.W.2d 405 (Mo.App.1935). Nor is it necessary to determine if that isolated statement, considered in the light of the entire record, is so inherently incredible or frivolous that it does not raise an issue of fact. See Whitaker v. Coleman, 115 F.2d 305 (5th Cir.1940); Barrett v. Craven County Board of Education, 70 F.R.D. 466 (E.D.N.C.1976); Waltz v. Cameron Mutual Insurance Co., 526 S.W.2d 340 (Mo.App.1975); 6 Moore's Federal Practice § 56.15 (2d ed.1976).

As stated, the plaintiff's petition seeks recovery for damages which accrued because of three alleged breaches of the defendants' duties as lawyers for the plaintiff. A petition must "contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief ...." Rule 55.05 (emphasis added). Neither allegation (1) nor allegation (2) is an allegation of facts showing that plaintiff is entitled to the relief sought. Landmark North County Bank v. National Cable Training Centers, supra. Consequently, the sole basis for recovery alleged in the petition is allegation (3); i.e., the defendants supplied material to the office of the Attorney General and assisted the Administrative Hearing Commissioner in writing up his decision against the plaintiff. The defendants presented clear and unmistakable denials of this allegation by their own deposition testimony and the independent affidavits referred to above.

As stated in Rule 74.04(e), when a motion for summary judgment is made and supported as provided, an adverse party may not rest upon the mere allegations or denials of his pleading, but must respond, by affidavit or otherwise, with specific facts showing there is a genuine issue for trial. Without a verified denial or counter-affidavits, the facts alleged in support are deemed admitted, Scaife [v. Kansas City Power and Light Co.], 637 S.W.2d at 733 [Mo.App.1982], even if contrary to pleading allegations, Hoffman v. Franklin County Mercantile Bank, 666 S.W.2d 446, 450 (Mo.App.1984).

Anderson v. Meglemre, 738 S.W.2d 931, 933 (Mo.App.1987). The records are bereft of any evidentiary material opposing the defendants' deposition testimony and the affidavits cited by the defendants. That testimony and those affidavits provide unassailable proof the defendants breached no duty to the plaintiff. A summary judgment is proper when "the prevailing party has shown by unassailable proof, from which no genuine issue of material fact on any controlling issue exists, that as a matter of law judgment should be entered in his favor." Bakewell v. Missouri State Employees' Retirement System, 668 S.W.2d 224, 226 (Mo.App.1984). "When there is no theory within the scope of the pleadings, depositions, answers to interrogatories,...