*1 HARDWICK, Before LISA WHITE P.J., SMART, JR., JAMES M. ALOK AHUJA, JJ. SMART, JR., Judge.
JAMES M. appeals Bernardo Costa the trial court’s judgment dismissing his tort action damages representing him in relief. his motion claims of breach fiducia- asserted *2 to her. wanted to legal judg- The were available Costa ry malpractice. duty attendance Loletta compel ment the of Combs is affirmed. alleged also purpose. for the same Costa Background Procedural he to the that told counsel secure attend- hearing at Mel- post-conviction ance of first-degree was convicted Costa Combs, Welpman, along with Loletta issa rape daughter. of his See State statutory Costa, prove to introduce their notes in order to (Mo.App.1999). v. S.W.3d appeal. that an- testimony The was affirmed on that their trial of conviction Rear, filed a motion for person, Id. Costa Lee was false. other Costa v. relief under Rule 29.15. See Costa prove also wanted to that an insect State, (Mo.App.2002). The S.W.3d 758 daughter’s vaginal area was misidentified Id. of that was affirmed. denial motion public crab and his daughter’s as that prompted by leading were statements Thereafter, brought action Costa a civil questions. wanted to show that the Costa E. malpractice against Arthur legal for allegedly by behaviors acted out Costa’s Alien, represented who defender daughter not occur and that testi- did proceeding. in his Rule 29.15 Cos- Costa mony testimony to that effect was false petition was prejudice. ta’s dismissed with family Lee Rears. appealed. opinion presented After in this of Costa court, accept Supreme the Missouri Alen, that alleged Costa “his own Allen, 274 ed transfer. See Costa reasons” and to “further the interests” of (Mo. 2008). Ater S.W.3d banc State, not to did follow instructions that a cause holding Costa state the attendance of the witnesses. secure action, of the Court nevertheless remand alleged He actions Alen’s constituted ed the to trial court case because intentionally an breach fidu- dishonest to opportunity court had denied Costa fraud, duty ciary and constructive as well file petition. an amended Id. at 463-64. negligent duty. breach There is no as remand, Upon pe Costa filed amended Allen allegation that Defendant was bribed tition. money participated otherwise conspiracy to sell an innocent man “down
Allegations of the Amended Petition river” personal for some other motive. alleged In at the petition, gist petition is that Alen of Costa’s time he post-conviction proceeding, he uncooperative (dishonestly, was because Allen, Mr. directed as did communicate to Costa refusal counsel, to of Dr. secure the attendance cooperate) and chose to “further hearing. Alen Scott at the motion Dr. by refusing the State interests” of to rec- Scott in the criminal trial as had testified insights the wisdom of ognize hymenal opening. to the size of victim’s get alleged a new He how to employ Costa wished certain documents attempted get pertinent Alen docu- falsity Dr. Scott’s demonstrate the evidence, ments into but that could not at testimony. Costa to show also wanted necessary spon- witnesses because the that Dr. Frasier hearing motion Lori He present. sor the documents were not hymenal but opening, did not measure the alleged that resulted in the failure simply relied on Dr. Scott’s measure- false documents, which inadmissibility of certain ments. Costa further wanted to show Dr. did would have shown that he “erroneous- pertinent Frasier not even review com- photographs, although ly sought money convicted.” Costa photographs damages, A pensation, including punitive criminal conviction is only achieved after alleged malpractice Mr. Allen. determination the existence of
proof beyond a reasonable doubt. The law provides allows and appeals for of the di- Ruling Trial Court rect conviction. Missouri law further al- Defendant Allen moved to dismiss the lows post-conviction motions for remedies complaint, contending that amended Costa and appeal for of the rulings thereon. a claim for relief. He state also provides Missouri law an opportunity for protected by that he contended was official counsel post-conviction at the stage as well The immunity. granted trial court the as at stage. 545.820, the trial See sections motion, dismissing prejudice. case with Const., 547.360.5, 2000; RSMo Mo. art. Costa appeals. 18(a). sec. 29.15(e), See also Rules 24.035(e). Attack Costa’s Collateral long As as a not conviction is set on the Conviction aside by appeal an a post-conviction or in presented Numerous issues are this procedure, it a final judgment, remains appeal. Many are briefed State. and it presumptive stands as proof to the appeal Because this involves the dismissal entire purposes world all the per that plaintiffs petition, of and because fac- son guilty. convicted was in fact actually allegations petition tual of taken are as While may deny the defendant guilt, the purposes analysis, true for of our the is- entirely denial is legal import without as presented sues are issues of law. See long as judgment of conviction stands. Coll.,
Nazeri v. Mo. Valley The judgment conclusively binds de (Mo. 1993). Although banc there are precludes fendant and assertion of a multiple apparent legal obstacles Cos- collateral claim toas which his actual inno claim, ta’s of pursuit we select one as cence is an essential element. See State ex easily dispositive appeal: of this Adolf, rel. O’Blennis v. policy not doctrine that the law does allow (Mo.App.1985). 502-04 a collateral attack of a valid criminal con- The proceeding as to viction. which legal malpractice Costa claims was a petition in proceeding asserts that was under Supreme Missouri erroneously statutory 29.15, of the Rule rape challenge convicted which allows of a of alleges He daughter. grounds that witnesses conviction or sentence on that the coached, daughter were that lying, was conviction the consti- or sentence violates and that there was a scheme to convict tution or laws of this state the United (the States, him propagated by family including the foster of claims ineffective assis- Rears) family of Lee with whom his tance of counsel. The rule allows also daughter spent implies, challenge time. He thus but on basis the trial court sentence, does expressly plead, jurisdiction impose not that he is actual- lacked innocent, ly innocent, opposed legally or that in the sentence was excess statutory permitted by crime rape law. Rule 29.15 is not de- daughter. The imply- signed distinction between to create a for a second forum insignificant, and expressing opportunity is discredit witnesses who when possible one considers that it is testified at trial. It is not a retrial evidence, If, however, bogus thus itself. the post-conviction framed with con- victed, actually pleads of a crime commit. movant the trial proves one did Noting that for de- guilty of constitution- at 136. the standard
defense counsel was termining such ally assistance ineffective assistance of counsel ineffective proceeding prac- was the movant prejudicial, ineffectiveness new entirely purposes can obtain tical identical with standard movant, course, can required legal malprac- trial. Then for submission of a impeachment of claim, have a as to the applica- “do-over” tice the court found that the against him the criminal the witnesses estoppel collateral tion the doctrine of appropriate. Id. at 137-38. *4 on, however, beyond facts court went the Here, to does not or seem case, public policy of that to invoke the about understand that the 29.15 motion is that equally applica- considerations were the of at proving ineffectiveness counsel that ble. The court declared the pleads against He his claim trial level. person of this state dictates that policy a Arthur Mr. Allen should though Allen as has “failed in attack his upon who though as the case proceeded 29.15 collaterally” and directly conviction both bring to a were intended allow chance to the (referring appeal to the direct and witnesses back into the court- prosecution post-conviction proceeding appeal) and impeach room them with their own and permitted should “not be to recover words, records —in other to di- notes and attorney against malpractice in a civil rectly guilty by cast doubt on the verdict damages allegedly arising action for out of be- essentially re-trying the case. But the of his attorney’s handling defense.” cause a Rule is not proceeding under 29.15 Id. at The said that it would court retrial, indirectly a at best it could have “undermine the effective of administration by demonstrating cast on the doubt verdict judicial system” relitiga- allow to trial In ineffective assistance of counsel. guilt tion of the of in a issue innocence event, overlooking lapse subsequent action. Id. argument will pleading, we assume purposes that Costa wishes to be under- of despite This Costa’s use asserting stood if phrase fiduciary duty” “breach of and counsel wanted had done what Costa had fraud,” mal essentially “constructive a do, counsel would have been to counsel practice retry action that seeks successfully con- able demonstrate the case, regardless how plead criminal stitutional ineffectiveness trial counsel. er wishes to describe the claim. In State a v. Adolf,
It is settled that claim for ex rel. O’Blennis client, a (Mo.App.1985), pursuant from valid conviction cannot asserted See, legal e.g., malpractice. plea bargain, pleaded guilty claim of to assault (His Raban, 134, 138 Johnson v. with intent to kill with malice. earlier Johnson, In convicted after been (Mo.App.1985). conviction trial had reversed client, losing appeal upon appeal, after his direct and direct and the case had been Id.) motion, Later, attorney after guilty sued the remanded. criminal subsequent who him in the at represented plea, and after failed aside, Id. at attorney tempt 135. The defendant moved set it he sued the defense attorney, contending ground dismiss the action on that counsel failed estoppel. investigate, subpoena, collateral The trial court took and cross-examine trial, fail reported involving thereby note cases witnesses in the earlier alibi mis- ing client and held that the action to establish defenses of Id. Id. at 501. Trial defense properly estoppel. barred collateral identification. counsel, point at defendant here is the defeat of his effort to obtain a case, sought prohibition civil a writ of on new trial. Even if we assume that an the suit acquittal the basis that was barred col trial, would result from a new estoppel public policy. lateral Id. at only puts the case in posture equiva- O’Blennis, 503. The court issued its writ based on lent to in which the court found considerations defensive collateral es- the public policy and collateral estoppel toppel public policy. Id. at 504. The principles to be so compelling that it recognized plaintiff’s granted court in prohibition actual a writ of against allow- (which proceed. nocence the court called “factual the claim to innocence”) “indispensible” was an element Also, course, in the absence of actual of a claim innocence, which is not pleaded, represented who the defendant at trial. illegal own actions would legal be the full Id. at 503. court stated that it would and proximate cause of damages. be against public policy for the suit to Anything else would “shock the public con- *5 continue in that it would “shock the public science.” Id. at 504. See also 7A C.J.S. conscience, engender disrespect for courts Client, (2004): Attorney & sec. at 362 generally discredit the administration A criminal defendant bringing a mal- justice.” Id. at (quoting In re Es practice action fails to state a cause of (Mo. Laspy, tate action when he or she fails to App.1966)). actual innocence and fails to set forth
Although this case alleged involves mis- any facts that would establish actual in- feasance in connection a post-convic- with nocence in underlying criminal case. proceeding tion rather than a claim as to public The same policy principles should itself, the criminal trial we believe that the apply whether the assertion is entitled here, principles apply same would if not “breach fiduciary duty” “professional more so.1 If anything, applying negligence.” To rule otherwise would be policy doctrine bar such a claim makes to undermine the state’s interest in not in even more sense this context than it allowing guilty escape punishment in alleged does the case which the tor- in that it would allow the actually guilty to tious conduct was that of the trial defense transfer all or part punishment counsel, because here the “but-for causa- id., another. See sec. at 340. As a tion” as to the conviction of an innocent considerations, public policy result of Cos- person step is another removed. It money damages ta’s claim for for his attor- impossible quantify the damage value of ney’s alleged misdeeds is barred entirely loss of an new trial without presumption guilt imposed by final being way there a to have predicted the judgment of conviction. noted, outcome of the new trial. As Costa Conclusion plead does not what such an outcome be, would much less actual permitted assert inno- Because cannot be Costa cence, or us with a provide map collaterally road attack or undermine the final conviction, judicial our accommodation of concept judgment a we hold that the determining merely having the value of trial properly peti- court dismissed Costa’s only trial. The damage pleaded prejudice. new tion with We need not reach W.D.2010), (Mo.App. 1. This court has reached the same conclusion handed down con- pending very temporaneously in another case with a similar with this 321 S.W.3d at Hogan, context. See Kuehne v. and at have been in his file before would other- should issues that any of the other Beyond general these the time of trial.” -appeal. in this present wise be describing Costa’s allegations HARDWICK, concurs. claims, the Petition post-conviction relief suggesting facts that the plead fails to opinion. separate concurs in AHUJA negligently present Allen evidence AHUJA, concurring. Judge, ALOK proven prosecu- have that either the would knew, or should tion or defense counsel that the dismissal of agree I Although discovered, falsity alleged affirmed, I do Petition should Costa’s at criminal testimony presented to address the issue necessary find it Instead, Petition contains de- majori- impression of first decided that the evidence omitted allegations tailed plaintiff alleging ty: namely, whether would post-conviction proceeding from his with a connection testimony pre- have established proceeding pro- can false, trial was sented in his criminal innocence, alleging his actual ceed without deliberately, the witnesses acted ei- subsisting criminal in the face of prosecution aid the or from other ther to Instead, Peti- I believe Costa’s conviction. ulterior motives. mundane, from defects more tion suffers first, the Peti- dispositive: grounds but nonetheless on which Costa Given adequately allege relief as described sought post-conviction tion fails *6 Petition, relief post-conviction would have obtained in his he needed to show either malpractice; claimed prosecution knowingly presented but for Allen’s that the second, allege damages proxi- false, it fails to testimony;2 material or that his de- malprac- mately alleged caused Allen’s present exculpatory fense counsel failed to tice, he allege does not either was known to de- because Costa evidence which (or counsel, received acquitted through would have been or was discoverable fense outcome) at the investigation.3 other more favorable Yet Costa’s Pe- reasonable failed negligently allege new trial he claims Allen that Allen failed to tition does accordingly I concur in the proven to secure. which would have present evidence This linchpin result. either of these issues. alone, justifies dismissal. ground, matter, Petition 1. As an initial Costa’s from anoth- 2. Petition suffers adequately allege that he would Costa’s fails er, defect: it fails to equally relief but for fundamental have achieved acquitted have been negligence. At the out- would purported Allen’s (or Petition, more disposition that the received some other alleges set of his trial) original than in his at the sought post-convic- which he favorable grounds on negligently he claims that Allen prosecution “that the knew new trial tion relief were Instead, Petition [testimony it failed to secure. or should have known that false, that he have merely alleges and failed would been presented at his trial] (in it,” these cir- trial counsel awarded to correct and that his trial) cumstances, if acted a new Allen had “exculpatory materials in present failed enough. That is not competently. or more the form of documents which were 551, State, Albanese, 39, See, See, e.g., S.W.3d 3. Fisher v. 192 e.g., v. 9 S.W.3d 49- State State, Arndt, S.D.2006); W.D.1999), v. (Mo.App. Alhamoud (Mo.App. v. 881 555 50 State 119, E.D.2002). S.D.1994). (Mo.App. (Mo.App. S.W.2d cause, recognized among things, Prior Missouri decisions other he had failed to that, damages proxi in order to establish show that he would have achieved a more attorney’s negligent caused favorable mately outcome at the new trial litigation, plain handling malpractice alleged which he he was entitled: prove “that it pre tiff must would have dispose We could of the claim that in the but for vailed case [the there would have been a reversal of the attorney’s] Advertising, Day actions.” [underlying judgment], by simply point- & Assocs., P.C., Inc. v. Devries S.W.3d plaintiff out that offered no evidence W.D.2007). (Mo.App. damages amount of he would have retrial, suffered at a plaintiff legal malpractice had there been [in suit] such a has the burden to the defen- reversal. We do not believe establish it proximately was defendants’ burden to negligence go dant’s resulted forward on point. Plaintiff damages plaintiff. to the Because the was attempting proof prove damages. negli- Mere alleged damages are based on reso- gent ..., failure to secure a lution of the reversal of the underlying action [underlying] judgment plaintiff simply prove must “case within a left plaintiff’s midair, hanging case prove case.” The must that it [underlying] a valid claim since the had or defense. case would damage have had to be retried on the (citations quotation Id. internal marks issue. The fact hypothet- that at such a omitted); also, e.g., see Stockmann ical retrial it would have been un- [the Frank, (Mo.App. E.D. derlying plaintiffs] prove burden to 2007). amount of his damages is no reason precise While not in these circum relieving this [malpractice] plaintiff of stances, litigants other have made essen duty plead prove damages tially the same claim as Costa resulting neglect. from defendants’ here: attorney negligently does that their added) (citations Id. *7 (emphasis at 804 omit- trial, right forfeited their to a to a new ted). trial, or to a trial a particular before fact- that, similarly Another case in observes outgrowth finder. As a natural of the legal malpractice a alleging negli- claim within a principle, “case case” courts ad counsel, gence by appellate dressing such claims have held that litigant’s procedural forfeiture a the relevant determinations are wheth- er, rights attorney’s taken, if caused an appeal timely had an been —even and, negligence enough a plaintiff prevailed establish would have on —is claim, retrial, malpractice viable without evidence have obtained a more favorable proceeding litigant wanted result. In such a first issue would have resulted more favorable the trial court is determine on Thus, Carter, trial, original outcome. in Kilmer v. 274 in the record made 81, (1969), Cal.App.2d Cal.Rptr. though appeal, 800 a it were a direct whether malpractice plaintiff alleged plaintiff prevailed that his attor would have had the ney negligently failed to file an opening appeal timely been taken. If that is favor, in appeal judgment, plaintiffs brief adverse resolved in the second thereby costing malpractice plaintiff retry matter before the trial court is to a right original his new trial. The case on the merits to deter- California whether, law, Appeal malpractice Court held that the mine on the facts and plaintiff prove plaintiff prevailed. had failed to his claim be should County, plaintiff based on what a could have Corp. Ideas v. Linn re-
Universal (1983) 1165, 1166 Or.App. 669 P.2d covered in the lawsuit. Thus against claim trial court clerk (involving plaintiff prove must a ‘case within a ” failing judgment, to send notice of re case.’ Id. at 657. (ci appeal rights) in forfeiture of sulting Here, only alleges Costa’s Petition omitted); E. tations see also Ronald in alleged negligence post-con- Allen’s Legal Smith, Jeffrey Mallen & M. Mal him proceeding right viction relief cost (2010). practice 31:52, § at 743 Other ato new trial. The Petition contains no reach in circum decisions the same result allegation that would have been ac- malpractice plaintiff in which a stances re-trial, quitted at such a or that he would negligence that an attorney’s claims cost other, have received some more favorable right to a trial: the denial original outcome than in his trial. This trial, right even if based on justifies omission likewise affirmance of acknowledged negligence, enough is not the dismissal of Costa’s Petition. malpractice plaintiff to state a claim—the prove must what the results of pleading Based on the defects described Indeed, trial would have been.4 above, join I in the affirmance the dis- essentially the result reached missal Costa’s Petition. Stockmann, Eastern District in malpractice plaintiff S.W.3d where a attorney’s
claimed that her “failure to
timely refile her products liability/person injury
al ... lawsuit resulted the loss
of her cause of action.” Id. at 652. In (where
these circumstances allegedly
had forfeited the
plaintiffs right litigate even merits claim), applied gen
of her that, principle
eral legal malprac “[i]n lawsuit,
tice plaintiffs damages are See, e.g., Comp. duty, neglects Holtkamp, appear Jones Motor a suit Liese, Childress, P.C., client, judg- & Beckemeier 197 F.3d with the result that a default (7th law) Cir.1999) (Illinois (claim taken, ment is it does not follow that the ” *8 negligently right damage,’ that counsel forfeited client’s client has without evi- suffered court, by jury, showing to trial malpractice- rather than to in under dence the merit of the action; action), lying affirming summary judgment plaintiff's position underlying in the attorney-defendant grounds, Shipman where "there is no overruled on other v. Kruck, 495, (2004); jury might credible evidence of what a have 267 Va. 593 S.E.2d awarded”); Consultants, 608, Mgmt. Gray, F.Supp. Law Practice but see Gans v. 621 n. Fiduciaries, LLC, (E.D.Pa.1985) ("The challenged LLC v. & A M Counselors & conduct (E.D.N.Y.2009) F.Supp.2d post-trial, procedural consists of a error. It (granting summary judgment mal would be unreasonable under these circum- practice plaintiff plaintiff proof where contended stances to demand of success on the attorney negligently timely op underlying merits in the action. The more pose summary judgment underly appropriate motion in have standard would malpractice plaintiff plaintiff present because made evidence that he would have showing actually pre no that it would succeeded on a motion for a new trial. To Prods., case); deprived vailed in Allied Inc. the extent that a Duesterdick, novo, right certainly 217 Va. 232 S.E.2d to a trial de is dam- (1977) (" attorney, disregard aged.”). 'If an