Kuehne v. Hogan

• Decision Date: 08 June 2010
• Docket Number: No. WD 71130.,WD 71130.
• Citation: 321 S.W.3d 337
• Parties: Christopher M. KUEHNE, Appellant, v. Susan L. HOGAN, Respondent.
• Court: Missouri Court of Appeals

321 S.W.3d 337

Christopher M. KUEHNE, Appellant,

v.Susan L. HOGAN, Respondent.

No. WD 71130.

Missouri Court of Appeals,Western District.

June 8, 2010.

Christopher Kuehne, Appellant pro-se.

Kathleen R. Robertson, for Respondent.

Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.

VICTOR C. HOWARD, Judge.

Christopher Kuehne appeals the trial court's judgment dismissing his legal malpractice action. On appeal, Kuehne contends that the trial court erred in dismissing his petition because it stated a claim for malpractice against his post-conviction attorney. The judgment of the trial court is affirmed.

Factual and Procedural Background

In 1998, Christopher Kuehne was charged with the first degree statutory rape and first degree statutory sodomy of his daughter (“Daughter”). At trial, Connie Guerrero, Kuehne's ex-girlfriend and Daughter's mother (“Mother”), testified that Daughter had told her that Kuehne had been sexually abusing her. Daughter, who was ten years old at the time of the trial, testified regarding the abuse that had occurred when she was six or seven years old.

Kuehne's defense at trial was that Mother and Daughter's allegations were false. He sought to convince the jury that Mother had a history of making false allegations of sexual abuse and that Mother had fabricated the current allegations and influenced Daughter to falsely accuse Kuehne. In support of this theory, Kuehne's trial counsel elicited testimony from Mother in which she admitted that she had made previous allegations of sexual abuse against Kuehne and that the Division of Family Services had found her allegations to be unsubstantiated.

The jury convicted Kuehne of the charges. This court affirmed Kuehne's convictions on direct appeal. See State v. Kuehne, 37 S.W.3d 298 (Mo.App. W.D.2000). Kuehne then filed a Rule 29.15 motion for post-conviction relief in which he asserted that his trial counsel provided ineffective assistance of counsel by failing to call four witnesses that would have supported Kuehne's defense theory. The motion court denied the motion without an evidentiary hearing.

On appeal, this court reversed and remanded Kuehne's Rule 29.15 motion for a hearing on the issue of whether his trial counsel was ineffective for failing to call the four witnesses. See Kuehne v. State, 107 S.W.3d 285, 301 (Mo.App. W.D.2003). In his motion, Kuehne alleged that, if called to testify, Greg Guerrero, Mother's ex-husband, would have testified that Mother had previously falsely accused him of sexually abusing his and Mother's daughter, Carly Guerrero. Kuehne further alleged that Carly Guerrero would have testified that Mother continually insisted Carly's father or Kuehne had touched her inappropriately although Carly told her that nothing inappropriate had occurred.

Kuehne also alleged that his trial counsel should have called Daughter's guardian ad litem to testify because she would have testified regarding Mother and Daughter's failure to attend a meeting in which a therapist was to observe Kuehne's interactions with Daughter. Finally, Kuehne alleged that his trial counsel should have called Kuehne's former criminal attorney to testify. His former attorney would have testified that Mother provided police officers with a videotape that allegedly contained evidence of Kuehne abusing Daughter but that, after viewing the video, the police ceased their investigation of Kuehne.

This court found that, if these four witnesses testified as Kuehne said they would, their testimony would impeach Mother's credibility and support Kuehne's defense that Mother had fabricated the sexual abuse allegations against him. Thus, the case was remanded for a hearing on whether Kuehne's trial counsel was ineffective in failing to present the testimony of the four witnesses. On remand, Susan Hogan, a public defender, served as Kuehne's post-conviction counsel. At the hearing, Hogan presented the testimony of Kuehne and Kuehne's trial counsel and did not call any of the four witnesses to testify. The motion court denied Kuehne's Rule 29.15 motion, finding that Kuehne's testimony as to what the four witnesses' testimony would be was speculative and insufficient to prove his allegations of ineffective assistance of counsel. This court affirmed the motion court's denial of Kuehne's Rule 29.15 motion. See Kuehne v. State, 182 S.W.3d 266 (Mo.App. W.D.2006).

After the denial of his Rule 29.15 motion was affirmed, ¹ Kuehne filed a petition against Hogan, claiming that she had committed legal malpractice by not calling the four witnesses to testify at the Rule 29.15 motion hearing. Kuehne alleged that, based on his instructions and the ruling of this court which remanded his Rule 29.15 case for a hearing, Hogan had a duty to call the four witnesses to testify at the hearing. He contends that, but for Hogan's failure to call the witnesses, he would have won his Rule 29.15 hearing. Kuehne seeks both compensatory and punitive damages.

Hogan filed a motion to dismiss Kuehne's petition, arguing that Kuehne failed to state a claim for legal malpractice and that she was protected by the doctrine of official immunity. The trial court granted the motion and dismissed the case with prejudice. This appeal by Kuehne followed.

Standard of Review

“The standard of review for a trial court's grant of a motion to dismiss is de novo.” Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). Where, as here, the trial court does not indicate why it dismissed the petition, we will presume it was for a reason stated in the motion to dismiss and will affirm if dismissal was appropriate on any ground stated therein. Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008).

A motion to dismiss for failure to state a claim “ ‘is solely a test of the adequacy of the plaintiff's petition.’ ” LeBlanc v. Research Belton Hosp., 278 S.W.3d 201, 204 (Mo.App. W.D.2008) (quoting Pikey v. Bryant, 203 S.W.3d 817, 821 (Mo.App. S.D.2006)). When reviewing the dismissal of a petition for failure to state a claim, we treat all facts alleged in the petition as true “and liberally grant[ ] to plaintiff all reasonable inferences therefrom.” Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002). However, we must disregard conclusions which are not supported by the facts pled. Ford Motor Credit Co. v. Updegraff, 218 S.W.3d 617, 621 (Mo.App. W.D.2007). If the plaintiff's petition “sets forth any set of facts that, if proven, would entitle the plaintiff[ ] to relief, then the petition states a claim.” Lynch, 260 S.W.3d at 836. Thus, the petition is reviewed “to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Reynolds, 79 S.W.3d at 909.

Discussion

In his sole point on appeal, Kuehne contends that the trial court erred in dismissing his petition because he stated a claim for legal malpractice against his post-conviction attorney. ² He claims that his petition contained allegations sufficient to establish each element of legal malpractice and that Hogan is not entitled to official immunity.

In order to survive a motion to dismiss, a plaintiff must allege facts sufficient to support the following four elements of a legal malpractice claim: (1) the existence of an attorney-client relationship; (2) negligence or a breach of contract by the attorney; (3) proximate causation of the plaintiff's damages; and (4) damages to the plaintiff. See Fox v. White, 215 S.W.3d 257, 260 (Mo.App. W.D.2007). Therefore, the plaintiff must allege facts demonstrating “a causal connection between his or her attorney's negligence and the resulting injury.” Collins v. Mo. Bar Plan, 157 S.W.3d 726, 732 (Mo.App. W.D.2005). In the context of a malpractice action, the plaintiff must establish causation by alleging that, “ ‘but for the attorney's negligence, the result of the underlying proceeding would have been different.’ ” Id. (quoting Rodgers v. Czamanske, 862 S.W.2d 453, 458 (Mo.App. W.D.1993)).

Although there are no Missouri cases addressing whether a plaintiff may maintain a malpractice cause of action against his post-conviction attorney, there are several Missouri cases which address the elements a plaintiff must prove in a malpractice action against his trial counsel. See, e.g., State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498 (Mo.App. E.D.1985). In O'Blennis, the court found that, where the plaintiff had been convicted of a crime and thereafter sued his trial counsel for malpractice, factual innocence of the criminal charge was an indispensable element of his cause of action. Id. at 503. Such cases also require the plaintiff to “allege and establish that the actions or omissions by [the trial attorney] prevented [the plaintiff's] acquittal.” Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo.App. W.D.1986).

While Missouri cases rejecting malpractice claims against a criminal defendant's trial counsel have been decided, in part, based on the principles of collateral estoppel, those cases also emphasize public policy concerns associated with such claims. For instance, in O'Blennis, the court concluded that to permit the continuation of the malpractice claim without requiring a showing of innocence would allow the convicted criminal “ ‘to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his iniquity, or to acquire property by his own crime.’ ” O'Blennis, 691 S.W.2d at 504 (quoting McCallop v. Laspy ( In re Estate of Laspy ), 409 S.W.2d 725, 728 (Mo.App.1966)). As such, the court found that it was “against public policy for the suit to continue in that it ‘would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.’ ” Id. (quoting Laspy, 409 S.W.2d at 737).

In light of the aforementioned cases, Hogan argues that, because Kuehne's claim is premised on a challenge to the...