Pool v. Burlison, 52684
| Decision Date | 21 July 1987 |
| Docket Number | No. 52684,52684 |
| Citation | 736 S.W.2d 485 |
| Parties | Frank Kevin POOL, Plaintiff-Appellant, v. Rex BURLISON, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Frank Kevin Pool, pro se.
Michael M. Flavin, St. Louis, for defendant-respondent.
Plaintiff, Frank Kevin Pool, appeals the dismissal of his petition for legal malpractice against defendant, Rex Burlison, for failure to state a claim. We affirm.
In reviewing the dismissal in this case, we accept as true the facts as pleaded and all reasonable inferences arising therefrom. Lynn v. T.I.M.E.--D.C., Inc., 710 S.W.2d 359, 360 (Mo.App.1986). If, viewed in this manner, the allegations invoke substantive principles of law, which if proved may entitle the pleader to relief, the petition should not be dismissed. Id.
The facts gleaned from plaintiff's pro se petition are as follows: Plaintiff previously filed an action in federal district court against the sheriff of Phelps County based upon 42 U.S.C. Section 1983. The crux of plaintiff's claim in that action was the inadequacy of the food provided him while he was incarcerated in the Phelps County Jail. Defendant was appointed counsel for plaintiff by the federal district court to pursue the appeal of that action. (It is not clear what precisely occurred at the district court level with regard to the action.) Defendant never filed an appeal, did not notify plaintiff of this fact, and did not formally withdraw from the case. As a result, plaintiff "lost his ability to appeal." In the present action, plaintiff seeks to recover damages for defendant's malpractice in the handling of the prior action. The trial court dismissed plaintiff's petition for failure to state a claim upon which relief can be granted.
In a case seeking to recover for legal malpractice, the existence of a causal connection between the lawyer's negligence and the plaintiff's loss and injury is a necessary element of plaintiff's cause of action. State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 501 (Mo.App.1985). In the instant action, plaintiff bears the burden of establishing that there is a basis for a civil rights action against the sheriff in whose jail he was confined. See, e.g., Fischer v. Vonck, 614 S.W.2d 26, 27 (Mo.App.1981). Specifically, plaintiff must plead that, but for his attorney's inaction, he would have been successful in prosecuting his claim against the sheriff.
The only inkling of the basis for plaintiff's civil rights claim against the sheriff of Phelps County is contained in Paragraph 9 of plaintiff's petition. In that paragraph, plaintiff alleges the following: ...
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Vescovo v. Kingsland
...appeal would have been successful as required for a legal malpractice claim premised on a failure to appeal. See Pool v. Burlison , 736 S.W.2d 485, 486 (Mo. App. E.D. 1987) (client alleged that appointed counsel failed to appeal his section 1983 action, or notify client of his failure to ap......
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Cain v. Webster, 15585
...element of plaintiff's cause of action. State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 501 (Mo.App.1985)." Pool v. Burlison, 736 S.W.2d 485, 486 (Mo.App.1987). "There is no allegation of any basis for a meritorious claim for damages against the railroad company, nor is there any allegati......
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Vescovo v. Kingsland
...an appeal would have been successful as required for a legal malpractice claim premised on a failure to appeal. See Pool v. Burlison, 736 S.W.2d 485, 486 (Mo. App. E.D. 1987) (client alleged that appointed counsel failed to appeal his section 1983 action, or notify client of his failure to ......
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Salau v. Jones
..."he would have been successful in prosecuting his [underlying] claim" but for his attorney's action or inaction. Pool v. Burlison, 736 S.W.2d 485, 486 (Mo. Ct. App. 1987). See also State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 933 (Mo. 2008) (plaintiffs must show that "but for this ......