Fuller v. Partee

• Decision Date: 06 March 2018
• Docket Number: WD 80493
• Citation: 540 S.W.3d 864
• Parties: George FULLER and Clara Fuller, Appellants, v. Ronald PARTEE and Byron Fox, Respondents.
• Court: Missouri Court of Appeals

540 S.W.3d 864

George FULLER and Clara Fuller, Appellants,

v.Ronald PARTEE and Byron Fox, Respondents.

WD 80493

Missouri Court of Appeals, Western District.

OPINION FILED: March 6, 2018

George L. Fuller, Appellant pro se.

Clara A. Fuller, Appellant pro se.

Blade Asher Moore, Kansas City, MO, for respondent Ronald Partee.

Paul G. Danaher, Kansas City, MO, for respondent Byron Fox.

Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

Gary D. Witt, Judge

Appellants George Fuller and Clara Fuller (collectively the "Fullers" and "George" and "Clara," respectively) appeal the judgment of the Circuit Court of Jackson County, Missouri. Fullers filed a petition against Ronald Partee ("Partee") and Byron Fox ("Fox") which alleged breach of contract, breach of fiduciary duty, and legal malpractice. Partee and Fox filed a motion to dismiss the action, which was granted by the trial court. The Fullers raise six points on appeal alleging error. We find that the circuit court erred in dismissing George's claim for breach of contract against Partee. We reverse and remand for further proceedings on this point. In all other respects we affirm.

Background¹

George Fuller is currently incarcerated for murder and other related charges. He was convicted following a jury trial in 1990 and is serving a prison term of life without the possibility of parole. George's conviction was affirmed on direct appeal as were his pro se motions for post-conviction relief. State v. Fuller , 837 S.W.2d 304 (Mo. App. W.D. 1992) ; see Fuller v. State , 485 S.W.3d 768 (Mo. App. W.D. 2016). On December 12, 2010, George contracted with Partee for Partee to represent George in his appeal from the denial of his motion to reopen his Rule 29.15 proceeding. Pursuant to the terms of the contract, Partee specifically agreed to perform certain services including: (a) prepare and file appellate brief; (b) oral argument; and (c) reply brief "if we decide that one was necessary." George's sister, Clara, delivered to Partee the agreed upon attorney fee of $6,000 and Partee filed an Appellant's Brief appealing the motion court's judgment denying the motion to reopen his Rule 29.15 proceeding. The Fullers allege that once Partee received payment of the $6,000 retainer fee, he ceased communication with them.

This Court docketed the case for "no argument" and sent a letter to Partee instructing him that he had ten days within which to request the case be moved to the oral argument docket. Partee sent a letter to George acknowledging that George's case had been placed on the "no argument" docket and stated he would make inquiries as to why argument had not been scheduled. The Fullers attempted to contact Partee to instruct him that he could and should request oral argument. Partee did not timely request oral argument nor did he discuss this decision with George. This Court ultimately affirmed the judgment of the motion court. Fuller v. State , 361 S.W.3d 22 (Mo. App. W.D. 2011).

Following this court's decision on George's appeal, the Fullers brought suit against Partee. Ultimately, the Fullers jointly filed an Amended Petition² asserting claims against Partee and Fox for breach of contract, breach of fiduciary duty, and legal malpractice. Both Partee and Fox filed separate Motions to Dismiss. The circuit court granted both motions. The Fullers appeal raising six claims of error.

Standard of Review

"We review de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law." Weems v. Montgomery , 126 S.W.3d 479, 483 (Mo. App. W.D. 2004) ; Lynch v. Lynch , 260 S.W.3d 834, 836 (Mo. banc 2008).

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all the plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or a cause that might be adopted in that case.

Prenger v. Boat Store, Inc. , 453 S.W.3d 381, 384-85 (Mo. App. S.D. 2015) (quoting Bosch v. St. Louis Healthcare Network , 41 S.W.3d 462, 463-64 (Mo. banc 2001)). "The pleadings are liberally construed and all alleged facts are accepted as true and construed in a light most favorable to the pleader." Weems , 126 S.W.3d at 483 (quoting Koger v. Hartford Life Ins. Co. , 28 S.W.3d 405, 410 (Mo. App. W.D. 2000) ).

Fox attached an affidavit to his motion to dismiss and the Fullers attached additional affidavits and documents in their suggestions in opposition to Partee and Fox's motions to dismiss. The Fullers requested that the court treat Fox's motion to dismiss as a motion for summary judgment. When the parties request the court to consider exhibits or matters outside of the pleadings in response to a motion to dismiss, the motion may be converted to a motion for summary judgment. Crest Constr. II, Inc. v. Hart, 487 S.W.3d 85, 89 (Mo. App. W.D. 2016). Because all parties attached affidavits and other documents to their motions on which they rely for some of their arguments and the Fullers specifically requested that the trial court treat the motion as one for summary judgment we will review it as a motion for summary judgment. "When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Co. , 854 S.W.2d 371, 376 (Mo. banc 1993). "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Thus, this Court may consider the affidavit of Fox when deciding whether claims against him should have been dismissed. See generally, Deeken v. City of St. Louis , 27 S.W.3d 868, 870 (Mo. App. E.D. 2000).

Discussion

I.

For clarity of discussion we address the points on appeal out of order. We begin with Point Relied On VI which alleges that the trial court erred in finding that there was no partnership between Partee and Fox.

The Fullers allege that Fox was law partners with Partee at the time Partee and George contracted for legal representation. Because of the partnership Fullers argue, Fox would have shared in any proceeds from the contract and should be liable for any damages. Although the Fullers further admit that they joined "Defendant Fox because they had no other means to recoup the damages they suffered as a result of the breach of contract." The circuit court found that the petition failed to properly plead facts to establish that a partnership existed between Partee and Fox. We agree.

According to an affidavit provided by Fox, he has not practiced law in fifteen years and has not occupied an office with Partee in as much time. The Fullers allege that they hired Partee to represent George because, after attempting to contact Fox, they were told by an unknown person that Fox no longer practiced law and were given the name of Partee. The alleged "referral" does not provide evidence of a partnership. If it is indicative of anything, it supports Fox's contention that he was not practicing law at the time George hired Partee and therefore could not have been in a legal partnership with Partee at the time of the contract. The only additional evidence that the Fullers have to suggest that Fox and Partee were partners is that Partee used letterhead titled "Fox & Partee." The letterhead, did not identify Fox as an attorney with the firm and the engagement letter was signed solely by Partee and made no mention of Fox. Additionally, directly below the firm name, it is clearly indicated that the letter is coming from "Ronald E. Partee, P.C." This is further support for the finding that Partee was practicing law as a professional corporation and not as a law partner with Fox. The Fullers' brief identifies no response to the lack of evidence supporting a partnership other than noting that Fox does not explain why old letterhead was used nor affirmatively show that he did not share in profits. This was not his burden. The Fullers needed to plead facts, not mere conclusions, establishing that Fox was in a legal partnership with Partee. Pulitzer Publ'g v. Transit Cas. Co. , 43 S.W.3d 293, 302 (Mo. banc 2001). The use of letterhead bearing the name "Fox & Partee" and the fact that many years before George retained Partee, Fox acted as Partee's business partner are not sufficient facts to survive a motion summary judgment. As such, the court did not err in dismissing Fox from the action in its entirety. Because we find no error in the dismissal of Fox, the remainder of our discussion shall be related solely to Partee.

II.

We next address the Fullers' claim that the court erred in finding that Clara was not a third-party beneficiary to the contract and thus had no standing to bring a claim against Partee.³ For ease of discussion, we also address the Fullers' claim argued throughout their brief that Clara otherwise had standing to bring claims for malpractice and breach of fiduciary duty.

First, it is clear that Clara cannot bring a claim for legal malpractice or breach of fiduciary duty.⁴ "[T]he existence of an attorney-client relationship between the plaintiff and the attorney" is a required element of any legal malpractice case. Rose v. Summers, Compton, Wells & Hamburg, P.C. , 887 S.W.2d 683, 686 (Mo. App. E.D. 1994). With limited exception,⁵ the attorney "owes no actionable duty to strangers or non-parties to the attorney-client relationship in the way legal responsibilities are performed." Fox v. White , 215 S.W.3d 257, 260 (Mo. App. W.D. 2007). The elements necessary to establish a claim of legal...