Klemme v. Best, 78949

• Court: United States State Supreme Court of Missouri
• Citation: 941 S.W.2d 493
• Decision Date: 25 February 1997
• Docket Number: No. 78949,78949
• Parties: Byron KLEMME, Appellant, v. Robert B. BEST, Jr., individually and as a member of Watson & Marshall, L.C. and Watson & Marshall, L.C., an assignee of Watson, Ess, Marshall and Enggas, formerly a partnership, Respondents, and James Linzie, et al., Defendants.

Page 493

941 S.W.2d 493 Byron KLEMME, Appellant,
v.
Robert B. BEST, Jr., individually and as a member of Watson
& Marshall, L.C.
and
Watson & Marshall, L.C., an assignee of Watson, Ess,
Marshall and Enggas, formerly a partnership, Respondents,
and
James Linzie, et al., Defendants. No. 78949. Supreme Court of Missouri,
En Banc. Feb. 25, 1997.
Rehearing Denied March 25, 1997.

Page 494

Albert J. Yonke, Bruce C. Jackson, Jr., Kansas City, for Appellant.

Dale C. Doerhoff, Jefferson City, for Respondents.

BENTON, Judge.

Byron Klemme sued attorney Robert B. Best, Jr., and his law firm Watson & Marshall, L.C., alleging breach of fiduciary duty and constructive fraud. The circuit court dismissed the petition due to failure to state a claim upon which relief can be granted and the bar of the statute of limitations, § 516.120. ¹ Following opinion by the Court of Appeals, this Court granted transfer. Mo. Const. art. V, § 10; Rule 83.03. Affirmed.

I.

On May 29, 1986, James and Cathy Linzie filed a 42 U.S.C. § 1983 action in federal

Page 495

court against the city of Columbia, the Joint Communications Center and seven police officers, including "Officer Klemme." The Linzies alleged that Klemme and the other officers intentionally killed their nineteen-year-old daughter. Best represented all defendants until February 1987, when Klemme retained separate counsel. On February 19, 1987, the federal court dismissed Klemme with prejudice because the facts did not support a claim against him.

On February 19, 1988, Klemme filed a malicious prosecution action in state court against the Linzies and their attorneys. On September 19, 1994, Klemme filed a fourth amended petition joining Best and Watson & Marshall for the first time.

On April 25, 1995, the circuit court dismissed Best and Watson & Marshall because:

[Klemme's] petition fails to state a claim against defendants Best and Watson & Marshall L.C. upon which relief may be granted. Specifically, plaintiff has failed to allege facts which, if true, would make a submissible case against these defendants under any recognized theory of Missouri law. The court further finds that the factual allegations in the Fourth Amended Petition show on their face that the claims plaintiff is attempting to assert against defendants Best and Watson & Marshall L.C. are barred by the applicable statute of limitations, § 516.120 RSMo 1986.

The circuit court, finding no just reason for delay, designated the judgment final on these claims. Rule 74.01(b).

II.

A motion to dismiss for failure to state a claim may be sustained only where the petition fails to allege facts essential to a recovery. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In determining whether sufficient facts exist, the petition is broadly construed in the plaintiff's favor, with all allegations and reasonable inferences accepted as true. Sheehan v. Sheehan, 901 S.W.2d 57, 58 (Mo. banc 1995).

The petition alleges the following facts. Before the filing of the federal complaint, Klemme's attorney Best discussed with opposing counsel the identity of each officer involved in the shooting. Opposing counsel presented Best a draft copy naming "Officer Klemme" as a defendant. Although Best knew Klemme did not participate in the shooting, he did not so inform opposing counsel, allegedly to advance the interest of the city of Columbia and its self-insured association that had retained Best. Best did, however, inform opposing counsel that another officer named in the draft complaint did not participate, and opposing counsel eliminated him as a defendant in the filed complaint. Klemme claims that he first discovered the pre-complaint dealings at depositions of these attorneys in March and April 1994.

Klemme asserts that Best violated the fiduciary duties of fidelity, loyalty, devotion, and good faith. Summarizing these allegations, Klemme characterizes his claims as "constructive fraud and breach of fiduciary duty."

A.

This Court recently defined the elements of a legal malpractice action: (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. Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 626 (Mo. banc 1995). 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).

A breach of a fiduciary obligation is constructive fraud. Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731, 739 (1950); In re Oliver, 365 Mo. 656, 285 S.W.2d 648, 655 (1956). Constructive fraud is a long-recognized cause of action. Baker v. Humphrey, 101 U.S. 494, 502, 25 L.Ed. 1065 (1879); 1

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Joseph Story, EQUITY JURISPRUDENCE, 252-422, esp. 301-09 (12th ed. 1877). Missouri courts typically label these claims as breach of fiduciary duty. See In re Buder, 358 Mo. 796, 217 S.W.2d 563, 572, 573-75 (1949); Lehnig v. Bornhop, 859 S.W.2d 271, 272-73 (Mo.App.1993); Jarnagin v. Terry, 807 S.W.2d 190, 194 (Mo.App.1991); Cain v. Hershewe, 760 S.W.2d 146, 148, (Mo.App.1988); Jo. B. Gardner, Inc. v. Beanland, 611 S.W.2d 317, 320-21 (Mo.App.1980). But see Rose...