State ex rel. O'Blennis v. Adolf, 49752

• Decision Date: 21 May 1985
• Docket Number: No. 49752,49752
• Citation: 691 S.W.2d 498
• Parties: STATE ex rel. Robert O'BLENNIS, Relator, v. The Honorable George ADOLF and The Honorable William Nicholls, Judges of the Circuit Court of the City of St. Louis, Mo., Respondents.
• Court: Missouri Court of Appeals

Page 498

691 S.W.2d 498

STATE ex rel. Robert O'BLENNIS, Relator, v. The Honorable George ADOLF and The Honorable William Nicholls, Judges of the Circuit Court of the City of St. Louis, Mo., Respondents.

No. 49752.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 21, 1985.

Robert Presson, Jefferson City, for relator.

Robert Herman, St. Louis, for respondents.

SMITH, Presiding Judge.

Relator seeks our writ of prohibition to command respondents to refrain from further proceeding in an underlying action for legal malpractice. That case is entitled Charles Poole v. Robert G. O'Blennis. Respondent Nicholls denied relator's motion for summary judgment. The matter is currently pending before respondent Adolph.

The litigation has its genesis in an indictment in October 1974, charging Poole with assault with intent to kill. O'Blennis, a public defender, was appointed to represent Poole on that charge. O'Blennis, pursuant to that appointment represented Poole throughout trial, sentencing, and appeal. Poole was found guilty of assault with intent to kill with malice in July, 1976, and was sentenced to twenty years imprisonment as a second offender. That conviction was affirmed on appeal. State v. Poole, 556 S.W.2d 493 (Mo.App.1977). Poole filed a motion pursuant to Rule 27.26 to correct, vacate, or set aside his conviction and sentence on the basis that he had ineffective assistance of counsel at his trial. Relief on that motion was denied by the trial court. In October, 1983, we reversed the action of the trial court and remanded for further proceedings. Poole v. State, 671 S.W.2d 787 (Mo.App.1983). Poole's suit against O'Blennis was filed in January, 1984.

On November 7, 1984, Poole pleaded guilty to the original charge of assault with intent to kill with malice. Pursuant to a plea bargain with the prosecutor Poole was sentenced to imprisonment for seven years. Prior time served on the 1976 conviction was allowed as a credit, which exceeded the seven year sentence imposed on the 1984 conviction. Poole was immediately freed.

At the guilty plea hearing Poole was represented by counsel originally appointed to represent him in the 27.26 proceeding. Counsel made the following statement to the Court in the presence of Poole:

"Mr. Poole has indicated to me, up to today, that he did desire to have this matter tried before a jury. I indicated to him that I was prepared to try it before a jury, had spent a lot of time in the last week or so reviewing the file, and have talked to Mr. Poole, and a witness that I have a subpoena served upon, a Jerome Stevens, who would purport to be an alibi witness, in effect, for Mr. Poole.

This morning, Mr. Poole indicated to me that he desired to, in effect, enter a plea of guilty to the charge pending before this court. I have advised him that, in my opinion, that would diminish if not absolutely defeat the civil suit that he had pending as a result of what had happened or did not happen in the past; and that I was leaving the decision solely to him as to whether or not he wanted to enter a plea of guilty or not enter the plea of guilty and proceed on to trial. I explained to him what the recommendation of the Circuit Attorney was if he did enter a plea of guilty that the recommendation would be that he would get credit for the time served and would not have to serve any additional time. I explained to him that, conceivably, he could be convicted and may have to do more time, but that I also told him, in my opinion, I did not think it was likely. But, in any event, I wanted to explain to the Court and make it clear on the record that the decision to do this is solely Mr. Poole's and that I am willing to represent him in whatever matter he wants to pursue."

Poole was then placed under oath to answer questions of the court in order for the court to decide "whether or not to accept your plea of guilty." The trial court then conducted an extensive questioning of Poole designed to determine the voluntariness of the plea and Poole's understanding of his rights. To a question by the court if Poole had any questions before proceeding further, Poole stated:

"No more than directing my questions to the Court, your Honor. I have been down--I have been incarcerated for seven years, and since I have been out, I have been out for a year and several months. I feel, it was best for me to do the thing that was right. I mean, I can lie to everybody else, but not myself. I mean, I'm tired. I mean, I'm tired of the penal system. I don't want any of that anymore. I want to remain out here in society and try to be a citizen as best as I possibly can. I'm just flat-foot tired. You know, running back and forth down to court. I want to do what I have to do as a man, my responsibility. And that's why I gave the statement that I gave today."

The court then inquired whether "along the lines of the statement that you just made, Mr. Poole: Are you pleading guilty here today because you are guilty of this crime?" Poole's response: "To be truthful with the Court and the people that are present, yes. I must say that."

The prosecutor's summary of the evidence of the state was that Poole fired at a Mr. Wilson with a shotgun but missed him. Poole was asked if the statement of the prosecutor was substantially true and correct, to which Poole answered, "Yes sir, Your Honor." He also affirmatively responded that his willingness to plead guilty was the result of the plea bargain reached between his attorney and the prosecutor. The Court found a factual basis for the plea, accepted the plea of guilty and found Poole guilty beyond a reasonable doubt.

O'Blennis filed a motion for summary judgment on the basis of Poole's plea of guilty in November 1984. In response to that motion Poole filed an affidavit in which he denied having shot at Mr. Wilson or any other person or of performing any other act charged by the prosecuting attorney in the criminal case. He also stated that he pleaded guilty "only to avoid the mental anguish of a second jury trial on these charges and to eliminate the possibility of returning to prison." The trial court denied the motion for summary judgment and we issued our preliminary writ.

We turn first to the availability of prohibition to review the denial of the motion for summary judgment. Normally we are reluctant to utilize the writ for the purposes of reviewing a denial of summary judgment or to correct trial court error. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983). But as stated in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984) (Rendlen, J. concurring): "Forcing upon a defendant the expense and burdens of trial when the claim is clearly barred is unjust and should be prevented." Prohibition is generally the appropriate remedy to forestall unwarranted and useless litigation. State ex rel. New Liberty Hospital District v. Pratt, 687 S.W.2d 184 (Mo. banc 1985); State ex rel. Hamilton v. Dalton, 652 S.W.2d 237 (Mo.App.1983) [1-5]. The issue before the trial court and us is solely a matter of law. There is no dispute regarding the facts which present that issue. If relator is correct then he has an impregnable defense against Poole's suit. There is no right of appeal from the denial of the motion for summary judgment and refusal to utilize the writ will compel defendant to undergo what we have concluded is clearly unwarranted and useless litigation at great expense and burden. Under the factual situation here, we conclude that prohibition is an available remedy. We turn to the merits.

Relator contends that Poole is conclusively bound under the principles of collateral estoppel by his guilty plea in November, 1984. That plea, relator opines, establishes Poole's guilt of the assault crime and concomitantly precludes his suit for malpractice because of the absence of proximate causation of his injuries from any negligence of relator. In Roehl v. Ralph, 84 S.W.2d 405 (Mo.App.1935) [2, 3] this court held that 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 which he bears the burden of establishing. See also Lange v. Marshall, 622 S.W.2d 237 (Mo.App.1981). Roehl v. Ralph, supra, further held that:

"... it was essential that plaintiff show that he actually had a valid defense to the note which he might have supported by substantial evidence so as to have required its submission to the jury, and which, had the jury followed the law as it is to be presumed that they would have done, would have impelled the bringing in of a verdict in his favor. This for the reason that any failure, neglect, or omission on Ralph's part to have set up a futile and unavailing defense could not be regarded as the proximate cause of plaintiff's having been held to the payment of the note which he admittedly executed, and the case would therefore fail for want of the proof of the essential element of causal connection." [4, 5].

Poole's charges of malpractice by O'Blennis are that he failed to properly investigate, interview, subpoena and call witnesses, and cross-examine to establish Poole's defenses of misidentification and alibi. As an element of his case against O'Blennis, Poole bears the burden of establishing that he in fact had defenses of misidentification and alibi. Obviously, if Poole committed the charged offense he did not validly have such defenses. The parties are not in disagreement to this point.

Collateral estoppel has traveled a less than tranquil path in recent years. It deals with issue preclusion. The nature of collateral estoppel is that a fact appropriately determined in one lawsuit is given effect in another lawsuit involving different issues. Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984) [1, 2]. Originally the doctrine required a mutuality of estoppel--that both parti...