Fox v. White

• Court: Missouri Court of Appeals
• Writing for the Court: Ronald R. Holliger
• Citation: Fox v. White, 215 S.W.3d 257 (Mo. App. 2007)
• Decision Date: 23 January 2007
• Docket Number: No. WD 66701.,WD 66701.
• Parties: L. Lowell FOX, Appellant, v. F. Al WHITE, Respondent.

215 S.W.3d 257

L. Lowell FOX, Appellant, v. F. Al WHITE, Respondent.

No. WD 66701.

Missouri Court of Appeals, Western District.

January 23, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 27, 2007.

L. Lowell Fox, St. Joseph, pro se.

Michael Marsh, Overland Park, KS, for Respondent.

RONALD R. HOLLIGER, Presiding Judge.

Summary

Lowell Fox ("Fox"), the stepfather of Robert L. Burns, Sr. ("Burns"), appeals the dismissal of his pro se action against attorney F.A. White ("White"), who represented Burns in a Platte County criminal prosecution. The action is styled as a "petition for damages," and contains six counts, all of which are predicated upon various actions and inactions in connection with the defense of Burns in his criminal prosecution.¹ In response to that petition, White filed a motion to dismiss for lack of standing and failure to state a claim, which the trial court granted. This appeal follows. Because a review of the record discloses that Fox's petition failed to state a claim upon which relief could be granted, this court affirms that dismissal.

Factual and Procedural Background

Prior to the trial of Burns in the Platte County criminal prosecution, White discussed the possibility of representing Burns in that case with both Burns and Fox. In the course of those discussions, an agreement was reached by which White would undertake that representation and Fox would pay for White's services. Fox paid White, and White represented Burns at a criminal trial at which Burns was ultimately convicted and sentenced to 144 years imprisonment.

Fox subsequently initiated the present case on August 24, 2005; claiming that various failures on White's part constituted professional malpractice, resulting in damages to Burns's family, including Fox himself. White filed a motion to dismiss for lack of standing and failure to state a claim, which the trial court granted. On October 27, 2005, Fox filed a motion to vacate, void, and set-aside that order, an expanded petition for damages, and a notice of appeal.

Standard of Review

"Where, as here, the trial court does not provide reasons for dismissal of the petition, we presume the decision was based on grounds stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein." Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App. W.D.2003). In the instant case, White's motion to dismiss alleged that Fox failed to state a claim upon which relief could be granted.²

The Rules of Civil Procedure permit a defendant to assert the plaintiff's "[f]ailure to state a claim upon which relief can be granted" by way of a motion to dismiss. Rule 55.27(a)(6). This rule exists "to permit resolution of claims as early as they are properly raised in order to avoid the expense and delay of meritless claims or defenses and to permit the efficient use of scarce judicial resources." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Thus, "[w]here the pleadings fail to state a cause of action under the law or fail to state facts entitling the party to relief, the trial court may dismiss the lawsuit." Id.

In reviewing a trial court's dismissal, this court, like the trial court, assumes that all of the averments in the original petition are true and liberally grants all reasonable inferences that may be drawn therefrom. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). In the context of the present case, this means that—assuming all of the facts in Fox's petition are true—his case was properly dismissed only if he stated no cause of action that entitled him to the relief he requested.

Discussion

The petition filed in this case alleges—in great detail—that White was negligent, careless, reckless, and ineffective in representing Burns at his criminal trial. These claims are collected into six separate counts. While denominated as various forms of action, the first four of those counts are all based upon the negligent rendition of legal services and will be collectively addressed here as a claim for legal malpractice.³ The fifth count contains a claim for punitive damages, and need not be addressed here, as it is well established that punitive damages are not available in the absence of actual damages. See Adelstein v. Jefferson Bank & Trust Co., 377 S.W.2d 247, 252 (Mo.1964). Similarly, this court need not address the sixth count, a statutory claim for expenses under Section 544.195 of the Missouri Revised Statutes, which allows the recovery of reasonable attorney's fees where a citizen brings an action based upon a wrongful body cavity or strip search.⁴

A plaintiff pursuing a claim for legal malpractice must establish four elements in order to succeed at trial. See, e.g., Klemme v. Best, 941 S.W.2d 493, 495 (Mo. banc 1997). In order to survive a motion to dismiss on the pleadings, that plaintiff must allege facts sufficient to support each of those elements. See ITT Commercial Fin. Corp., 854 S.W.2d at 376. The elements necessary to establish a claim of legal malpractice are: "(1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation of plaintiff's damages; (4) damages to the plaintiff." Klemme, 941 S.W.2d at 495. Thus, "the existence of an attorney-client relationship between the plaintiff and the attorney" is a required element in any legal malpractice case. Rose v. Summers, Compton, Wells & Hamburg, P.C., 887 S.W.2d 683, 686 (Mo. App. E.D.1994) (emphasis added). It is the first essential element because from that relationship arises the duty to exercise reasonable care in the attorney's practice of the profession. The attorney, with limited exceptions,⁵ owes no actionable duty to strangers or non-parties to the attorney-client relationship in the way legal responsibilities are performed.

Giving Fox's petition the broadest reading possible, and assuming the truth of all the averments and reasonable inferences contained therein, see Klemme, 941 S.W.2d at 495, facts necessary to establish the existence of an attorney-client relationship between Fox and White are not pled. Instead, Fox has pled, at best, the existence of a contractual relationship between himself and White, consisting of Fox's promise to pay White, and White's return promise to represent Burns in the Platte County criminal proceedings.

That "contract" does not supply the missing element, since "the mere payment of fees, without more, is not proof of an agency relationship, much less an attorney-client relationship. The relation between a lawyer and his client is a delicate and exacting one, highly personal. It involves much more than the payment of fees." Mid-Continent Cas. Co. v. Daniel, Clampett, Powell & Cunningham, 196 S.W.3d 595, 598 (Mo.App. S.D.2006) (citations omitted). Rather, "[a]n attorney-client relationship exists when a person seeks and receives legal advice and assistance from a lawyer who intends to give legal advice and assistance to the person." Collins v. Mo. Bar Plan, 157 S.W.3d 726, 736 (Mo.App. W.D.2005).

Where, as here, an attorney undertakes to represent a client and agrees to accept payment from a third party, caution would suggest that the relationships created by such an arrangement be clarified, as by way of a non-representation letter to the third-party payor. See Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice Section 2.12 (2005) (discussing the use of nonengagement letters to avoid both the existence and the appearance of an attorney-client relationship). The absence of such a letter, however, does not alter the underlying relationships, and Fox has pled no facts in his petition sufficient to establish an attorney-client relationship between himself and White or any other basis for a duty to Fox in the exercise of the...