Costa v. Allen, No. SC 89177.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Daniel E. Scott
• Citation: 274 S.W.3d 461
• Docket Number: No. SC 89177.
• Decision Date: 25 November 2008
• Parties: Bernardo O. COSTA, Appellant, v. Arthur E. ALLEN, Respondent.

274 S.W.3d 461 Bernardo O. COSTA, Appellant,
v.
Arthur E. ALLEN, Respondent. No. SC 89177. Supreme Court of Missouri, En Banc. November 25, 2008. As Modified on Denial of Rehearing January 13, 2009.

Bernardo O. Costa, Cameron, MO, pro se.

[274 S.W.3d 462]

Jeremiah W. (Jay) Nixon, Attorney General, James R. McAdams, Maureen C. Beekley, Office of Missouri Attorney General, Jefferson City, MO, for respondent.

DANIEL E. SCOTT, Special Judge.

Bernardo Costa appeals the dismissal of his pro se petition for damages against Arthur Allen, an assistant public defender who represented Costa in an unsuccessful Rule 29.15 post-conviction action. After opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const. art. V, sec. 10. The judgment is vacated, and the case is remanded.

Facts and Procedural Background

Costa captioned his petition "Civil Action for Breach of Fiduciary Duties (Constructive Fraud)." It alleged that Costa instructed Allen to obtain and secure certain witnesses for Costa's Rule 29.15 evidentiary hearing; Allen assured Costa that he would call those witnesses, but did not; and Allen thereby breached his fiduciary duty to Costa and doomed Costa's otherwise valid post-conviction claim. Allen answered the petition and filed a motion to dismiss. The trial court granted Allen's motion without elaboration and dismissed Costa's petition with prejudice.

General Principles of Review

Where, as here, the trial court does not indicate why it dismissed the petition, the Court presumes it was for some reason stated in the dismissal motion and will affirm if dismissal was appropriate on any ground stated therein. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003). Allen's motion to dismiss asserts that Costa's petition fails to state a claim upon which relief can be granted.¹ See Rule 55.27(a)(6).

Fiduciary Duty

The elements of Costa's "Civil Action for Breach of Fiduciary Duties (Constructive Fraud)" were: (1) an attorney-client relationship; (2) the attorney's breach of a fiduciary obligation; (3) proximate cause; (4) damages to the client; and (5) no other recognized tort encompasses the facts alleged. Klemme v. Best, 941 S.W.2d 493, 496 (Mo. banc 1997). Central to this appeal is the second element; breach of a fiduciary obligation.

Although the attorney-client relation is fiduciary,² and breach of a fiduciary obligation is constructive fraud,³ not all lawyer obligations are fiduciary duties, nor counsel's every failure a constructive fraud. An attorney's fiduciary duties equate specifically to client loyalty and confidentiality, in contrast to contractual obligations or the duty of due care.

A legal malpractice action thus is founded on an attorney's duty to exercise due care or to honor express contract commitments. In addition, an attorney has the basic fiduciary obligations of undivided loyalty and confidentiality. Ronald E. Mallen and Jeffrey M. Smith, Legal Malpractice, § 14.1 at 227 (4th ed.1996), citing Shaffer v. Terrydale Management Corp., 648 S.W.2d 595 (Mo.App.1983); Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731 (1950).

Klemme, 941 S.W.2d at 495 (emphasis added).

Klemme arose out of a federal suit against a city and seven police officers,

274 S.W.3d 463

including Klemme, after a shooting death. Eventually, the federal court dismissed Klemme with prejudice since the facts did not support a claim against him. Klemme later sued attorney Best, who had represented all defendants, for breach of fiduciary duty and constructive fraud. He alleged that Best deliberately placed the interests of the City and its insurer above...