Scher v. Sindel

• Decision Date: 18 August 1992
• Docket Number: No. 60937,60937
• Citation: 837 S.W.2d 350
• Parties: Greg SCHER, Plaintiff-Appellant, v. Richard SINDEL, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 350

837 S.W.2d 350

Greg SCHER, Plaintiff-Appellant, v. Richard SINDEL, et al., Defendants-Respondents.

No. 60937.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 18, 1992.

Greg Scher, plaintiff-appellant acting pro se.

Richard Charles Wuestling, St. Louis, for defendants-respondents.

STEPHAN, Judge.

Greg Scher appeals from the judgment of the trial court dismissing his pro se petition against respondents "Richard Sindel, Sindel and Sindel, P.C. and John and Jane Does # 1-10, et al." upon a motion to dismiss for failure to state a claim. We affirm.

On review of a trial court's order dismissing a petition for failure to state a claim upon which relief can be granted, the pleadings are given their broadest intendment, all facts alleged are treated as true, and all allegations are construed favorably to plaintiff. Stevenson v. City of St. Louis School District, 820 S.W.2d 609, 611 (Mo.App.1991). However, the conclusions of the pleader are not admitted. Id. The same standard applies to petitions filed by pro se litigants. Howard v. Pettus, 745 S.W.2d 821, 822 (Mo.App.1988).

In his pro se petition in a section captioned "STATEMENT OF THE CASE", appellant sets out about half a dozen paragraphs containing the following allegations of facts. Appellant is an inmate in a penitentiary in Jefferson City, Missouri. In January 1990, while incarcerated, appellant telephoned respondent Richard Sindel, an attorney, for the purpose of retaining Sindel in order to secure appellant's release from prison on house arrest. Respondent agreed and asked for $1,000.00 as a retainer to represent appellant.

Within three days of this conversation, Richard Sindel advised appellant that detainers had been lodged against appellant for two felony charges: one, in Florida for defrauding an innkeeper; the other, in St. Louis for tampering with evidence. Both detainers arose from circumstances surrounding the charges for which appellant had been imprisoned. Richard Sindel requested an additional $4,000.00 to resolve the detainers and secure appellant's house arrest. Richard Sindel received all payments for his retainer through Ms. Georganne Baker, appellant's then girlfriend who was acting as appellant's agent. Richard Sindel communicated with appellant directly only after first getting permission to do so from Baker. Appellant specifically alleged:

Richard Sindel entered into a conflict of interest by accepting a retainer to represent plaintiff and then by expending time and money against that retainer to represent the interests of Georganne Baker even when those interests were clearly diametrically opposed to the interests of the plaintiff and served to act to plaintiff's detriment.

Appellant further alleged that, although an associate had disposed of the St. Louis County detainer, neither Richard Sindel nor his law firm had resolved the Florida detainer or effected appellant's release on house arrest or transfer to a minimum security unit. Appellant subsequently demanded an itemized accounting of the retainer fee paid. Richard Sindel wrote appellant telling him that Sindel would discuss the matter only with Georganne Baker and that Sindel was not employed by appellant. Appellant threatened to sue for a refund of the retainer paid. Respondents allegedly gave appellant's confidential files to postal authorities in order to have appellant prosecuted for making threats through the mail. Unsuccessful with that, respondents also contacted the parole board concerning cancellation of appellant's "presumptive release date of May 27, 1991", and, finally, respondents contacted the attorney general's office to have appellant placed into indefinite punitive confinement for warning respondents that he would sue them for refund of his retainer.

During indefinite punitive confinement, appellant was denied medical treatment for a urinary problem. His bladder subsequently ruptured requiring that appellant wear a permanently installed catheter and drainage bag for the rest of his life. Appellant concludes his "STATEMENT OF THE CASE" with a paragraph alleging that respondent Richard Sindel voluntarily appeared at a hearing in federal court in the case of Scher v. Ashcroft on Friday, March 15, 1991, without informing appellant and that Sindel testified concerning his employment contract with appellant as well as personal communications between them in violation of their attorney-client relationship.

After this lengthy statement of the case, appellant's pro se petition follows with his "GROUNDS FOR RELIEF," where he sets out thirteen separate counts against respondents. Counts one through seven state that respondents were guilty of legal malpractice because they (1) failed to secure his release on house arrest or his transfer to a medium security institution or to resolve the detainers outstanding against appellant; (2) represented appellant's girlfriend despite a conflict of interest with their representation of appellant; (3) violated appellant's attorney-client privilege by disclosure of appellant's confidential records to the postal inspection service; (4) violated appellant's attorney-client privilege by contacting the attorney general's office resulting in appellant's placement into indefinite punitive segregation (5) violated appellant's attorney-client privilege by discussing appellant's confidential matters with his former girlfriend Georganne Baker; (6) violated the attorney-client privilege by contacting the parole board's chairman and disclosing confidential matters about appellant to the board; and (7) violated the attorney-client privilege by testifying in open court against appellant in a federal case appellant had filed.

Counts eight, nine and ten allege breach of contract for respondents' failure to effectuate: (1) appellant's release on house arrest, (2) the disposition of the outstanding detainers, or (3) the transfer to a minimum security prison. Count eleven alleges appellant suffered "grievous personal injury" by respondents having him placed into punitive confinement. Count twelve alleges appellant suffered "grievous emotional and mental distress" resulting from the harshened conditions of confinement, cancellation of his parole release date, and the physical injury and disfigurement he suffered. Count thirteen, his final count, alleges personal injury by respondents having appellant placed into punitive confinement resulting in the rupture of his bladder. Based upon the foregoing allegations, appellant's prayer sought $10,000 actual damages on each count; $100,000 punitive damages, payment of medical bills, a public apology published in the St. Louis Post Dispatch newspaper by way of a full page advertisement to run for fourteen days, full refund of his retainer, court costs, attorneys' fees and any other relief deemed proper.

Appellant raises two points on appeal. His first point disputes the dismissal of his pro se petition for failure to state a claim because his petition "clearly and concisely stated a cause of action for legal malpractice, breach of contract, personal injury, declaratory judgment, damages and all other necessary and appropriate relief." His second point states the dismissal was improper because all well-pleaded allegations must be taken as true and admitted to by defendants/respondents. The...