Laws v. O'Brien
| Decision Date | 30 September 1986 |
| Docket Number | No. 51448,51448 |
| Citation | 718 S.W.2d 615 |
| Parties | Leonard M. LAWS, Plaintiff-Appellant, v. W.H.S. O'BRIEN, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Leonard M. Laws, pro se.
James E. Bowles, Brian P. Taylor, Hillsboro, for defendant-respondent.
Leonard Laws appeals from a summary judgment granted in favor of respondent W.H.S. O'Brien, an attorney and defendant in Laws' action for legal malpractice. The gist of Laws' claim against respondent is that, after Laws was convicted of capital murder and sentenced by the Circuit Court of Greene County on April 18, 1982, to life imprisonment without probation or parole for fifty years, respondent failed to prosecute Laws' appeal in a timely fashion and the appeal was dismissed. The appeal was later reinstated and the conviction affirmed. State v. Laws, 699 S.W.2d 102 (Mo.App.1985). Appellant, nevertheless, contends that the delay caused him to be incarcerated for two years "without appeal." At the time of sentencing in that case, however, Laws was serving another life sentence without probation or parole for fifty years previously imposed by the Circuit Court of St. Louis County for capital murder. See State v. Laws, 668 S.W.2d 234 (Mo.App.1984). The Greene County sentence was ordered by the trial court to be served consecutively to the St. Louis County sentence. Laws, 699 S.W.2d at 102. Consequently, during the two years that Laws claims to have been "without appeal," execution of the sentence had not commenced and cannot commence for decades.
Appellant's points relied on do not comply with Rule 84.04(d) in that they fail to state wherein and why the trial court's actions were erroneous. We will, however, review them for plain error. It appears from his brief that Laws cites trial court error in the October 29, 1985 summary judgment order because: 1) there were material issues of fact in Laws' petition precluding summary judgment; 2) the order did not mention Laws' motion for leave to file a second amended petition; 3) the respondent was allowed to argue the summary judgment motion without appellant present and 4) appellant should have been permitted to amend his original petition, in order to add another plaintiff.
Taking appellant's points in order, we address the issue of the propriety of summary judgment in this case. Rule 74.04(c) provides that a summary judgment shall be granted if "there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Our review of a summary judgment is equivalent to review of a court tried case and if, as a matter of law, the judgment is sustainable on any theory, it will be affirmed. Rue v. Helmkampf, 657 S.W.2d 76, 80 (Mo.App.1983).
Where negligence by an attorney is alleged, plaintiff must do more than assert that negligence. Lange v. Marshall, 622 S.W.2d 237, 238 (Mo.App.1981). Plaintiff must plead damages proximately resulting from the attorney's negligence. Bainter v. Almond, 643 S.W.2d 649, 650 (Mo.App.1982). Other than the fact that he was jailed for two years on other convictions while his appeal was pending, Laws failed to allege any damages in his original petition. Furthermore, after reinstatement of the appeal, the case received full appellate review and the conviction was affirmed. Summary judgment for respondent lawyer was not an abuse of discretion. Bainter v. Almond, 643 S.W.2d at 650.
Laws further argues the trial court erroneously ignored Laws' motion for leave to file a second amended petition. This argument overlooks the principle that a trial court is under no obligation to take up a party's motion to amend before disposing of a motion for summary judgment where the proposed amended instrument offers no specific facts showing a genuine issue for trial. Sun Electric Corporation v. Morgan, 678 S.W.2d 410, 412 (Mo.App.1984).
The second amended petition asserts that, by reason of the delay in the appeal of his second conviction for murder, his right to attack the conviction by a Rule 27.26 motion was compromised. Appellant contends that during the delay a co-actor in the crime who testified against him died and that, had appellant been able to have an earlier Rule 27.26 hearing, the witness would have recanted his testimony. The point is meritless. Reference to the case shows that Laws' criminal agency was established by Laws' own extrajudicial admissions. State v. Laws, 699 S.W.2d 102, 104 (Mo.App.1985).
In his second amended petition, appellant also alleges that the delay in filing the appeal of his second murder conviction was the proximate cause of his being sentenced to death in yet another murder case. In the appeal of that case, State v. Laws, 661 S.W.2d 526 (Mo. banc 1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2401, 81 L.Ed.2d 357 (1984), appellant's conviction of two counts of capital murder was affirmed and the jury's assessment of the death penalty, upon its finding four statutory aggravating circumstances, was sustained. One of the aggravating circumstances found by the jury, as authorized by § 565.012.2(1), RSMo Cum.Supp.1982 (since repealed), was that, "The defendant has a substantial history of serious assaultive convictions." In holding that three of the four aggravating circumstances found by the jury "were soundly established by the evidence," the Supreme Court noted that the history of assaultive convictions included, "two convictions of armed robbery on pleas of guilty in Arizona in 1971, a conviction for aggravated assault in Mississippi in 1974, and two convictions for capital murder in Missouri in 1981 and 1982." Id., 532.
The record before us is not clear as to whether one of the convictions for capital murder referred to in the foregoing quote is the case which gave rise to the instant malpractice claim. If it is one of the convictions found by the jury, we are not informed by the record of that conviction's status in the appellate process at the time of the verdict in the later case. Answers to these questions, however, are of no moment. As the Supreme Court said in State v. Laws, 661 S.W.2d, at 533: "Our cases hold that there is no prejudicial error in submitting an aggravating circumstance to the jury even though the circumstance is not sufficiently defined to provide appropriate guidance, or is not supported by the evidence, if other properly supported circumstances are found." See also State v. Gilmore, 697 S.W.2d 172, 175-176 (Mo. banc 1985),cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986), and State v. Johns, 679 S.W.2d 253, 267 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). In view of the...
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