Fischer v. Browne, KCD

Citation586 S.W.2d 733
Decision Date31 July 1979
Docket NumberNo. KCD,KCD
PartiesHobert W. FISCHER, Plaintiff-Appellant, v. Allan R. BROWNE and Robert A. Dakopolos, Defendants-Respondents. 30124.
CourtCourt of Appeal of Missouri (US)

Hobert W. Fischer, pro se.

Don B. Roberson, Robert G. Sachse, Kansas City, for respondent Browne; Shughart, Thomson & Kilroy, Kansas City, of counsel.


DIXON, Presiding Judge.

This appeal is from an order of the circuit court which sustained both of the defendants' motions for summary judgment. The appellant, plaintiff below, filed a petition for malpractice against Allan R. Browne, respondent, and Robert A. Dakopolos, respondent, both practicing attorneys. The claim relates to a suit filed on behalf of plaintiff by defendant Allan R. Browne against plaintiff's former employer, the Missouri Pacific Railroad Company, and plaintiff's union, The Brotherhood of Railroad Trainmen. The parties will be referred to as they were designated in the circuit court.

Plaintiff's petition was filed pro se and his appeal has been prosecuted pro se. A respondent's brief has been filed on behalf of defendant Allan R. Browne, but no brief has been filed on behalf of respondent, Robert A. Dakopolos. The brief of the plaintiff is totally inadequate to comply with the rules of procedure concerning briefs. Despite the clear and total violation of Rule 84.04 and all of its subparts, the defendants' motion to dismiss the appeal will be denied. Under the provisions of Rule 84.08, this court will waive compliance with the provisions of Rule 84.04 and consider the appeal on its merits.

If the plaintiff's pro se petition stood alone, it would be impossible to ascertain the basis for his claim. However, both defendants failed to file a motion to dismiss and engaged in extensive discovery resulting in a fairly clear definition of plaintiff's claims. Simply put, the plaintiff claims that the defendant, Allan R. Browne, was negligent in failing to pursue plaintiff's administrative remedies under a collective bargaining agreement before filing suit. As to the defendant, Robert A. Dakopolos, plaintiff asserts he was negligent in failing to take an appeal in the underlying litigation after defendant, Allan R. Browne, withdrew from the case and defendant, Robert A. Dakopolos, undertook the representation. To understand the claims of the plaintiff, it becomes necessary to give an extensive chronological review of the circumstances of the initial claim for wrongful discharge and the various legal proceedings which followed.

This recital of proceedings has been made difficult by the various exhibits filed by the plaintiff which have no relevancy to the issues. One hundred eleven exhibits were filed originally, consisting primarily of letters from the plaintiff to various officials seeking assistance with his legal problems and correspondence with federal agencies concerning his claim under the federal law affecting railroad employees. Plaintiff has likewise filed what purports to be complete copies of the court files in the underlying circuit court litigation, but they are not complete nor are they in order. To be sure that the chronology of events recited herein is correct, the original court files have been examined fully. The following statement of fact is taken both from the materials supplied by the plaintiff in connection with this appeal, and from the original court files of the Jackson County Circuit Court.

On February 9, 1964, anonymous calls were made to railroad officials from a phone located in the freight yard in Kansas City. An investigation was made on February 11, 1964 concerning the responsibility of the plaintiff for the telephone call. Upon the basis of that investigation, the plaintiff was dismissed from the service of the Missouri Pacific Railroad.

Pursuant to the provisions of the union contract, the Brotherhood of Railroad Trainmen proceeded to process a grievance for plaintiff. This was disallowed by the division superintendent and a subsequent appeal was made to the general manager. In accordance with the procedures of the union contract, the general chairman of the union and the general manager of the railroad were the appropriate parties to that appeal. In December of 1964, the union withdrew its support for the grievance. There were apparently other procedures available for review of the claimed grievance, a detailed recitation of which is unnecessary for the purposes of this opinion.

The plaintiff then contacted Allan R. Browne who undertook to represent him in an appeal within the union to reverse the union's decision to abandon the grievance. Mr. Browne did, in fact, appear before the appropriate tribunal of the union, and that board refused to take any further action in connection with the plaintiff's grievance against the Missouri Pacific.

Mr. Browne then filed a lawsuit in the Circuit Court of Jackson County, Missouri, No. 676763, "Hobert W. Fischer v. The Brotherhood of Railroad Trainmen, et al.," the general theory of which was an action in contract against the union for failing to provide plaintiff with appropriate representation as provided in the union agreement. That case was removed to the United States District Court for the Western District of Missouri and, thereafter, was dismissed without prejudice.

Mr. Browne then filed a subsequent action, No. 707638, "Hobert W. Fischer v. Brotherhood of Railroad Trainmen and Missouri Pacific Railroad Company," which was removed to the Federal District Court but, on order of the Federal District Court, was remanded to the Circuit Court of Jackson County, Missouri. That case was in contract against the union and for wrongful discharge against the railroad. The case continued upon the docket of the Jackson County Circuit Court and was at various stages handled by various of the circuit judges in Jackson County.

In the year 1969, settlement negotiations were undertaken between the attorneys for the Missouri Pacific Railroad and Mr. Browne. Mr. Browne communicated to the plaintiff an offer to settle and compromise the litigation for $2,000, which the plaintiff refused to accept.

On February 20, 1970, Mr. Browne wrote to the plaintiff and informed him that he was withdrawing from the case. That withdrawal was accomplished by a written withdrawal consented to by the court on March 3. Mr. Browne had no further connection with the litigation. There can be no doubt that Mr. Browne's withdrawal was clearly and unequivocally communicated to the plaintiff.

The defendant Dakopolos apparently accepted employment by the plaintiff at some point after Mr. Browne withdrew, but did not enter a formal entry of appearance until shortly before final disposition of the case. The file reflects that despite defendant Dakopolos' failure to formally enter his appearance, the attorneys for the union and for the railroad were aware of his representation, as was the circuit court. Mr. Dakopolos was informed of the various proceedings in the case by service of the necessary papers upon him.

By August of 1970, the case had reached the docket of Judge Stubbs in the circuit court and was pending upon motions for summary judgment filed by the railroad and the union. These motions had been filed and briefed by the parties and were under submission to Judge Stubbs. On August 14, 1970, Judge Stubbs communicated with all of the attorneys in the case his order of that date sustaining the motions for summary judgment and requesting that appropriate judgment entries be prepared in the case. Those judgment entries were filed on September 22, 1970. The order and judgment entry is dated and signed by the judge as entered on that date, but it is clear from the original entry in the case that he determined and ruled the motions for summary judgment on August 14, 1970 and so advised all of the attorneys in the case.

The issue raised by the motions for summary judgment was whether or not the plaintiff had exhausted his administrative remedies before filing his suit for wrongful discharge and for breach of contract. The merits of Judge Stubbs' ruling do not need to be examined here, nor is any implication intended with respect to the propriety or correctness of that order by this court.

As noted, ...

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    • November 19, 1996 are barred by the relevant statute of limitations. 1 Statutes of limitations are absolute bars to actions. Fischer v. Browne, 586 S.W.2d 733, 736 (Mo.App.1979). In the present case, the parties agree that a five-year statute of limitations applies to each of Mr. Jordan's claims. See ......
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