Fitzpatrick v. Hoehn

• Decision Date: 22 March 1988
• Docket Number: No. 53748,53748
• Citation: 746 S.W.2d 652
• Parties: Clifford F. FITZPATRICK, Plaintiff/Appellant, v. Juanita HOEHN and Nina Holloway, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 652

746 S.W.2d 652

Clifford F. FITZPATRICK, Plaintiff/Appellant, v. Juanita HOEHN and Nina Holloway, Defendants/Respondents.

No. 53748.

Missouri Court of Appeals,

Eastern District,

Division One.

March 22, 1988.

Clifford F. Fitzpatrick, pro se.

Kemper R. Coffelt, Thomas B. Tobin, Clayton, William G. Reeves, Farmington, for defendants-respondents.

GARY M. GAERTNER, Presiding Judge.

Plaintiff-appellant Clifford Fitzpatrick appeals from trial court's order granting respondents' motions for summary judgment. On appeal appellant alleges that the trial court erred in (1) failing to appoint counsel for appellant; and (2) rejecting the affidavits offered by appellant in opposition to respondents' motions for summary judgment. We affirm.

Appellant is an incarcerated felon currently serving a sentence for an offense that is not part of the record. Appellant brought an action against his wife's sister Juanita Hoehn and Nina Holloway, the former operator of the health care facility at which appellant's wife resides. Appellant's petition alleged that Hoehn and Holloway (hereinafter respondents) acted together in alienating the affections of appellant's wife. The petition further alleged that respondent Hoehn failed to render adequate medical care to appellant's wife thereby causing appellant to suffer mental anguish and emotional distress. ¹

Respondents each filed separate motions for summary judgment with affidavits in support. Appellant filed a response supported by affidavits. The trial court disregarded the counter-affidavit of appellant's prison caseworker as it was not verified under oath. The court found that appellant's counter-affidavit failed to raise or preserve any genuine issue in that the affidavit was founded primarily on conclusions, hearsay and matters not within the personal knowledge of appellant. The court then sustained respondents' motions for summary judgment.

In his first point on appeal, appellant asserts that the trial court erred in failing to appoint counsel to represent him. Appellant filed his pro se petition and thereafter petitioned the court to appoint counsel. It is unclear from the record whether this motion was properly before the trial court in this action. The court docket sheet does not show that the motion was filed in this cause of action. It appears from the face of the motion that the motion may have been filed in a separate action brought by appellant which is currently pending. Appellant thereafter proceeded pro se with the assistance of "counsel substitute" Horace Bonner without requesting a ruling on the motion.

Initially we note that appellant concedes in brief that no rule or statute exists in this state which requires trial courts to appoint counsel to indigent civil litigants. Appellant nevertheless argues that the trial court abused its discretion in failing to appoint counsel considering the facts in this case. Generally, an indigent's right to appointed counsel only exists where the indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640 (1981). Further, "as a litigant's interest in personal liberty diminishes, so does his right to appointed counsel." Id. at 26, 101 S.Ct. at 2159. Although counsel would likely have been of great assistance to appellant in bringing this civil action, we find no authority to mandate reversal. See also State ex rel. Scott v. Roper, 688 S.W.2d 757 (Mo. banc 1985); State ex rel. Shaw v. Provaznik, 708 S.W.2d 337 (Mo.App., E.D.1986). Appellant's first point is denied.

In his second point on appeal, appellant alleges that the trial court erred in rejecting two affidavits offered in opposition to respondents' motions for summary judgment. Appellant further argues that the affidavits raised a factual dispute thus precluding summary judgment. The trial court rejected appellant's affidavit because it was founded primarily on hearsay, conclusions, and matters not within the personal knowledge of appellant. "The proper function of an affidavit is to state facts not conclusions." Bakewell v. Mo. State Employees' Retirement System, 668 S.W.2d 224, 227 (Mo.App., W.D.1984). Hearsay statements contained in an affidavit are not facts that would be admissible in evidence and thus should not be considered by a trial court. See Allen v. St. Luke's Hosp., 532 S.W.2d 505, 508 (Mo.App., W.D.1975), cert. denied, 429 U.S. 804, 97 S.Ct. 37, 50 L.Ed.2d 65 (1976). Rule 74.04(e) requires that affidavits be made on personal knowledge. Most of the facts stated in appellant's affidavit were clearly not within appellant's personal knowledge as...