Shaffer v. Jones
| Decision Date | 08 June 1982 |
| Docket Number | No. 2,No. 55130,55130,2 |
| Citation | 650 P.2d 918 |
| Parties | 1982 OK CIV APP 29 Earl David SHAFFER, Appellant, v. Stephen JONES, Appellee |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Oklahoma County; David M. Cook, Trial Judge.
Action by client against attorney for alleged malpractice. From order granting summary judgment, client appeals. AFFIRMED.
Earl David Shaffer, pro se.
James D. Fellers, K. Nicholas Wilson, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, for appellee.
Client Earl David Shaffer sued Stephen Jones, his former attorney, for malpractice arising from a child custody dispute. Client appeals from summary judgment granted in favor of Attorney. Client appeared pro se throughout the proceedings, including this appeal. We reviewed the record and found no disputed facts nor any evidence tending to support the allegations in Client's fourth amended petition. We affirm.
The facts of this dispute are uncontroverted. In November 1971, Client filed for divorce in Oklahoma County from his wife, Sue Allen Shaffer, now May. She was served by publication. A default decree of divorce was entered in January 1972 wherein custody of the minor son was awarded to the defaulting wife. Client, apparently in total control of the litigation, reserved reasonable visitation rights for himself.
In November 1973 Client filed a petition asking the court in Jefferson County, Texas, to modify the decree to extend his visitation rights or, in the alternative, to enforce his existing visitation rights. Ex-wife is a Texas resident.
The Texas action was apparently abandoned because Client hired Attorney Jones who filed a motion to modify the decree in Oklahoma County on September 9, 1974. The motion alleged the neglect and failure of Ex-wife to furnish adequate medical treatment for the child. As part of this action, Judge LaFon issued an ex parte order awarding temporary custody of the child to Client. At the same time, hearing for permanent custody was set for November 1, 1974.
In response, Ex-wife filed a special appearance, objection to jurisdiction and motion to quash on October 28, 1974. Attorney received his copy of the special appearance on the date of hearing, November 1; consequently, he was unprepared to meet this challenge to jurisdiction. He requested and received a continuance.
Later that same day, Ex-wife and her new husband "snatched" the child from Client near the entrance to the motel where he was staying and returned to Texas with the child.
Client blamed his loss of custody on Attorney and fired him right after the child was taken by its mother. Another attorney eventually concluded the custody matter.
At the next hearing, in February 1975, Judge Cannon sustained Ex-wife's motion to quash. Another motion was made and an order was issued in April 1975 by Judge Graham commanding Ex-wife in Texas to produce the child before Oklahoma courts and to respond to the motion to modify. This time her motion to quash was overruled. Ex-wife then filed a writ of prohibition in the Oklahoma Supreme Court which was granted, denying jurisdiction of the lower court to hear the matter. May v. Graham, Okl.Sup.Ct., No. 48,495 (June 16, 1975) (unpublished).
Client then filed suit against Attorney alleging malpractice and conspiracy. Appealing from summary judgment granted in favor of Attorney, Client urges four grounds of error which warrant discussion:
1. That Attorney was negligent by not being prepared to present the motion on November 1, 1974;
2. That Attorney conspired with Ex-wife to permit the child to be forceably removed from the jurisdiction;
3. That the court erred by not permitting Client to file a fifth amended petition; and,
4. That trial judge should have been disqualified.
Client argues under his first proposition that the court erred as a matter of law by not finding Attorney was negligent. Client's fourth amended petition alleged in part:
The record indicates Attorney did not have notice of the motion filed by Ex-wife until the morning of the hearing. Procedurally, there is no question that objections to the court's jurisdiction must always be resolved before a hearing can be had on the merits. It was a serious motion, not to be taken lightly, especially when the opposing party is, in fact, a non-resident.
Under these circumstances, the request for continuance cannot form the basis for a cause of action sounding in negligence. Attorney received notice of the motion immediately prior to the hearing, and his "confession" to the court, referred to in the petition, is nothing more than the truth which formed the basis for the requested continuance. It is not, as contended by Client, an admission of incompetence. On the contrary, these matters not only involve intricate issues of law, but factual development as well and require careful consideration and preparation.
In addition, we note that even with careful presentation Client eventually lost on this very issue--after the issue had been considered by two trial judges and nine supreme court justices. The delicacy of such mixed questions of fact and law involved in interstate litigation are known only too well by experienced attorneys. Attorney's conduct may have come closer to actionable negligence had he not requested more time to prepare.
In final analysis, absent very special facts not pleaded or present here, 1 when the client has discharged his first attorney, hired another attorney, and had his day in court, the subsequent loss of the case on its merits cannot form the basis of actionable negligence against the original attorney. Not every mistake humans make gives rise to legal damages--recovery is limited to those mistakes which proximately cause damages. Loper v. Austin, Okl., 596 P.2d 544, 546 (1979); Green v. Sellers, Okl., 413 P.2d 522, 528 (1966); Ellis v. Hollis, Okl., 398 P.2d 832, 834 (1965). The facts pleaded here in no way proximately caused or contributed to Client's eventual loss of custody. Allred v. Rabon, Okl., 572 P.2d 979 (1977); Collins v. Wanner, Okl., 382 P.2d 105 (1963).
As his second point of error, Client argues the court erred as a matter of law by not finding that Attorney conspired with Ex-wife to "snatch" the child at the motel. Attorney denied the allegation. Client offered evidence in support of his claim to the effect that Attorney advised Client to return to the motel after the hearing was continued. An affidavit was filed by a friend of Client which alleged he, John Clausen Curry, told Attorney to tell Client not to go back to the motel. No explanation was offered as to why Curry failed to personally warn his friend. Client claims Attorney failed to pass this warning to him. For several reasons, we find this evidence far short of the proof required to sustain an allegation of conspiracy.
First, we are required to ignore all allegations framed as legal conclusions. The cause of action is pleaded about 95 percent conclusory, except for the few facts set forth above. It is elementary that allegations and conclusions do not replace proof. Weeks v. Wedgewood Village, Inc., Okl., 554 P.2d 780, 785 (1976).
Second, to make a prima facie case of conspiracy, Client's proof must be clear and convincing and do more than just raise suspicion. Holland v. Perrault Bros., Inc., Okl., 311 P.2d 795 (1957); 15A C.J.S. Conspiracy § 30 (1967).
Third, the Oklahoma Supreme Court has ruled that circumstantial evidence is insufficient to establish a prima facie case of conspiracy where the acts alleged are as consistent with lawful purposes as with the alleged unlawful scheme. Nissen v. Andres, 178 Okl. 469, 63 P.2d 47 (1936).
We find the facts offered to support the cause of action fall short of the mark.
Client next argues there is reversible error because the judge refused to allow him to amend his petition for the fifth time and refused to disqualify himself....
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