Robinson v. Southerland

• Decision Date: 03 October 2005
• Docket Number: No. 101,000. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,101,000. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
• Citation: 2005 OK CIV APP 80,123 P.3d 35
• Parties: Luke ROBINSON, Plaintiff/Appellant, v. Stewart W. SOUTHERLAND; and Stewart W. Southerland, P.C., Defendants/Appellees.
• Court: Oklahoma Supreme Court

123 P.3d 35

2005 OK CIV APP 80

Luke ROBINSON, Plaintiff/Appellant, v. Stewart W. SOUTHERLAND; and Stewart W. Southerland, P.C., Defendants/Appellees.

No. 101,000. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 3.

May 13, 2005.

Rehearing Denied June 24, 2005.

Certiorari Denied October 3, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal from the District Court of Tulsa County, Oklahoma; Honorable Michael Gassett, Judge.

AFFIRMED.

Luke Robinson, Hominy, OK, Pro Se.

Stewart W. Southerland, Tulsa, OK, for Appellees.

Opinion by LARRY JOPLIN, Presiding Judge.

¶ 1 Plaintiff/Appellant Luke Robinson (Plaintiff) seeks review of the trial court's order summarily disposing of his claims against his former attorney(s), Defendants/Appellees Stewart W. Southerland and Stewart W. Southerland, P.C. (Defendant). In this accelerated review proceeding, Plaintiff complains he was deprived of a fair trial when the trial court (1) denied him, an indigent, certified copies of the record and other documents at state expense; (2) denied him adequate discovery; (3) denied his motion to vacate the prior interlocutory disposition of some of his claims; (4) failed to ensure his appearance for trial; and (5) summarily granted judgment to Defendant upon his failure to appear for trial.

¶ 2 Plaintiff was convicted of the offense of Robbery By Force After Former Conviction of a Felony in Tulsa County District Court, and, in January 1993, was sentenced to seventy-five years confinement. The Court of Criminal Appeals affirmed his conviction in May 1995.

¶ 3 Plaintiff was convicted of the offense of Larceny of Merchandise From A Retailer After Two or More Former Felony Convictions in Muskogee County District Court, and, in November 1993, was sentenced to sixty years confinement. On direct appeal, the Court of Criminal Appeals affirmed in January 1996.

¶ 4 In November 1996, Plaintiff retained Defendant to prosecute actions for post-conviction relief on allegations of ineffective trial counsel. On April 22, 1997, Defendant filed an Application for Post-Conviction Relief in Tulsa County District Court. On April 23, 1997, Defendant filed an Application for Relief in Muskogee County District Court. At or about the same time, Defendant filed a petition for writ of habeas corpus in the United States District Court, Northern District of Oklahoma.

¶ 5 The Northern District federal court dismissed the petition for writ for failure to exhaust state remedies. The Tulsa County District Court denied the Application for Post-Conviction Relief on November 25, 1997; Defendant timely commenced an appeal of that decision in December 1997; and, the Court of Criminal Appeals affirmed in February 1998. The Muskogee County District Court denied the Application for Post-Conviction Relief on June 2, 1998; Defendant timely commenced an appeal of that decision June 26, 1998; and, the Court of Criminal Appeals affirmed in September 1998.

¶ 6 On February 17, 1999, Defendant filed another Petition for Writ of Habeas Corpus in the United States District Court, Northern District of Oklahoma, challenging the Tulsa County conviction. On April 14, 1999, Defendant filed a Petition for Writ of Habeas Corpus in the United States District Court, Eastern District of Oklahoma, challenging the Muskogee County conviction.

¶ 7 In May 1999, a United States magistrate of the Northern District recommended dismissal of the Plaintiff's petition as filed outside the one-year limitation provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.A. §§ 2244(d)(1)-(d)(2) (West, 2004) (eff. April 24, 1996).¹ See also, Hoggro v. Boone, 150 F.3d 1223 (10th Cir. 1998) (June 24, 1998) (Rehearing and Suggestion for Rehearing En Banc Denied July 24, 1998); U.S. v. Simmonds, 111 F.3d 737 (10th Cir. 1997) (April 14, 1997). In July 1999, a federal judge agreed with the recommendation of the magistrate, and ordered the Northern District action dismissed. In October 1999, a federal judge of the Eastern District ordered Plaintiff's petition in that jurisdiction dismissed.

¶ 8 Plaintiff pro se appealed both orders to the United States Court of Appeals, Tenth Circuit. The Tenth Circuit consolidated, and in May 2000, denied certificates of appealability, dismissing both appeals. Robinson v. Kaiser, 215 F.3d 1337 (10th Cir. 2000).

¶ 9 In January 2001, Plaintiff commenced the instant action against Defendant, claiming actual and punitive damages for Defendant's professional negligence, i.e., the untimely filing of the federal habeas corpus actions. In February 2001, Defendant filed a motion to dismiss. In May 2001, the trial court dismissed the action, finding Plaintiff under a legal disability to prosecute his claims.

¶ 10 Plaintiff subsequently filed an amended petition, and based on the same allegations of fact, sought actual and punitive damages under the theories of fraud, tortious breach of contract, failure of substantial performance, unjust enrichment and negligence. In August 2001, the trial court ordered Plaintiff's amended petition stricken.

¶ 11 Plaintiff appealed, and the Court of Civil Appeals affirmed. However, the Supreme Court granted Plaintiff's petition for writ of certiorari, vacated the opinion of the Court of Civil Appeals, reversed the order of the trial court, and remanded for further proceedings. Robinson v. Southerland, Case No. 96,591 (April 15, 2003) (not for publication).

¶ 12 In June 2003, Defendant filed an amended motion to dismiss, to which Plaintiff responded. In July 2003, the trial court conducted a telephone hearing on Plaintiff's motion to set/motion for extension of time for pre-trial conference. On October 7, 2003, Defendant filed a motion for summary judgment.

¶ 13 On October 23, 2003, Plaintiff filed a motion to compel production of documents, particularly, original documents and pleadings provided to Defendant by Plaintiff, as well as all Defendant's work product and pleadings filed on Plaintiff's behalf. On the same day, Plaintiff filed: (1) a "Motion to Take Judicial Notice of Opinions and Orders Issued by the Courts of the Northern and Eastern District of Oklahoma and United States Court of Appeals for the Tenth Circuit"; (2) a motion in limine, seeking to exclude any cross-examination concerning his convictions; and (3) a request for "certified copies of documents from the [court] clerk without cost for use in evidence in lue [sic] of requiring clerk to testify as to authenticity," particularly, "letters and documents of communication appended to the original complaint filed" in January 2001.

¶ 14 In November 2003, Defendant responded to the motion in limine. Defendant also responded to the request for copies, alleging Plaintiff's possession of the original or copies of all documents sought, and Plaintiff's failure to demonstrate entitlement to certified copies without cost.

¶ 15 In December 2003, Plaintiff filed his response and objection to Defendant's motion for summary judgment, and the trial court conducted a telephonic hearing in February 2004. By journal entry filed March 9, 2004, the trial court denied Defendant's motion for summary judgment on Plaintiff's "contract claim for the return of attorney fees," but granted Defendant's motion for summary judgment "on all other claims asserted by Plaintiff," "[s]pecifically, ... Plaintiff's claims for fraud, bad faith breach of contract, unjust enrichment, negligence and legal malpractice." The trial court denied the motion to compel "conditioned upon the fact that Plaintiff is entitled to copies if he has filed the proper in pauperis documents"; denied all Plaintiff's other pending motions; and scheduled pre-trial conference for March 22, 2004.

¶ 16 Plaintiff filed another motion for extension of time for pre-trial conference. After another telephone hearing on March 29, the trial court directed Defendant to prepare a pre-trial order and set jury trial for June 21, 2004.

¶ 17 On April 12, 2004, Plaintiff filed a motion for appointment of counsel and waiver of jury fees. On April 15, Defendant filed its response and objection. On April 19, 2004, Plaintiff filed a motion to vacate the March 9 order granting partial summary judgment to Defendant. On April 21, Defendant filed its response and objection to Plaintiff's motion to vacate. After a telephonic hearing May 5, 2004, the trial court denied Plaintiff's motion to vacate, denied Plaintiff's motion for appointment of counsel, and, upon Defendant's withdrawal of objection, granted Plaintiff's motion to waive jury fees.

¶ 18 On June 16, 2004, Plaintiff filed a motion to disqualify the assigned trial judge. On June 21, 2004, Plaintiff failed to appear for trial, and by journal entry of judgment filed June 24, 2004, the trial court denied the motion to disqualify and granted judgment to Defendant:

Upon review of the file, the Court noted that Plaintiff had filed a Motion to Disqualify th[is] Honorable [trial judge] on June 16, 2004. The Court denied Plaintiff's motion as untimely for failure to file ten (10) days prior to trial. The Court also denied the motion on the merits.

Previously the Court had informed Plaintiff of his duty to proceed under 12 O.S. § 397 to apply for a writ of habeas corpus in order to appear on the June 21, 2004, trial date. The last date that the Court advised Plaintiff of his duty under 12 O.S. § 397 was at the Pretrial Conference on March 29, 2004, where Plaintiff appeared by telephone. Plaintiff failed to make an application for a writ of habeas corpus and failed to appear for trial.

THIS COURT ORDERS that Plaintiff's motion to disqualify ... is denied.

THE COURT FURTHER ORDERS that judgment is entered in favor of Defendants on all of Plaintiff's causes of action. Defendants may submit an Application for Attorney's Fees and Costs with the statutory time period to be considered by the Court.

Plaint...