Summary
Lоwell Fox (“Fox”), the stepfather of Robert L. Burns, Sr. (“Burns”), appeals the dismissal of his pro se action against attorney F.A. White (“White”), who represented Burns in a Platte County criminal prosecution. The action is styled as a “petition for damages,” and сontains six counts, all of which are predicated upon various actions and inactions in connection with the defense of Burns in his criminal prosecution. 1 In response to that petition, White filed a motion to dismiss for lack of standing and failure to state a claim, which the trial court granted. This appeal follows. Because a review of the record discloses that Fox’s petition failed to state a claim upon which relief could be granted, this court affirms that dismissal.
Factual and Procedural Background
Prior to the trial of Burns in the Platte County criminal prosecution, White discussed the possibility of representing Burns in that case with both Burns and Fox. In the course of those discussions, an agreement was reached by which White would undertake that representation and Fox would pay for White’s services. Fox paid White, and White represented Burns at a criminal trial at which Burns was ultimately convicted and sentenced to 144 years imprisonment.
Fox subsequently initiated the present case on August 24, 2005; claiming that various failures on White’s part constituted professional malpractice, resulting in damages to Burns’s family, including Fox himself. White filed a motion to dismiss for lack of standing and failure to state a claim, which the triаl court granted. On October 27, 2005, Fox filed a motion to vacate, void, and set-aside that order, an expanded petition for damages, and a notice of appeal.
Standard of Review
“Where, as here, the trial court does not provide reasons for dismissal of the petition, we presume the decision was based on grounds stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein.”
Rychnovsky v. Cole,
The Rules of Civil Procedure permit a defendant to assert the plaintiff’s “[fjailure to state a claim upon which relief can be granted” by way of a mоtion to dismiss. Rule 55.27(a)(6). This rule exists “to permit resolution of claims as early as they are properly raised in order to avoid the expense and delay of meritless claims or defenses and to permit the efficient use of scarce judicial resources.”
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
In reviewing a trial court’s dismissal, this cоurt, like the trial court, assumes that all of the averments in the original petition are true and liberally grants all reasonable inferences that may be drawn therefrom.
Sullivan v. Carlisle,
Discussion
The petition filed in this case alleges — in great detail — that White was negligent, careless, reckless, and ineffective in representing Burns at his criminal trial. These claims are collected into six separate counts. While denominated as various forms of action, the first four of those counts are all based upon the negligent rendition of legal services and will be collectively addressed here as a claim for legal malpractice.
3
The fifth count contains a claim for punitive damages, and need not be addressed here, as it is well established that punitive damages are not available in the absence of actual damages.
See Adelstein v. Jefferson Bank & Trust Co.,
A plaintiff pursuing a claim for legal malpractice must establish four elements in order to succeed at trial.
See, e.g., Klemme v. Best,
Giving Fox’s petition the broadest reading pоssible, and assuming the truth of all the averments and reasonable inferences contained therein,
see Klemme,
941
That “contract” does not supply the missing element, since “the mere payment of fees, without more, is not proof of an agency relationship, much less an attorney-client relationship. The relation betweеn a lawyer and his client is a delicate and exacting one, highly personal. It involves much more than the payment of fees.”
Mid-Continent Cas. Co. v. Daniel, Clampett, Powell & Cunningham,
Where, as here, an attorney undertakes to represent a client and agrees to accept payment from a third party, caution would suggest that the relationships created by such an arrangement be clarified, as by way of a non-representation letter to the third-party payor. See Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice Section 2.12 (2005) (discussing the use of nonengagement letters to avoid both the existence and the appearance of an attorney-client relationship). The absence of such a letter, however, does not alter the underlying relationships, and Fox has pled no facts in his petition sufficient to establish an attorney-client relationship between himself and White or any other basis for a duty to Fox in the exercise of the attorney’s duties to Burns.
Indeed, the contract at issue, the language of which Fox quotes extensively in his brief to this court, does not appear to have been a part of the petition filed with the trial court.
6
Instead, Fox asserts in that petition that he “hired [White],
at the request of Robert L. Burns, Sr
.... to provide criminal defense
for said Robert Bums
in a Platte County, Missouri case originating in 1999.” (Emphasis added.) Thus, to the extent that Fox’s petition alleges that Fox entered a contractual relationship with White, that allegation is merely that he did so
on behalf of
Burns. The petition filed in this case does not allege that White undertook to represent Fox in any way. All of the benefits that
The allegations contained in Count IV of the petition, which is styled as a claim for “Alienation of Children” are illustrative of this point. That count alleges that familial rights held by the “family and extended family” of the children involved in the underlying criminal case were severed as a result of White’s actions. Fox does not, howеver, allege that White promised or undertook to perform any specific action on behalf of anyone other than Burns. Certainly, had Burns been acquitted or had he in some other way succeeded in preserving his parеntal rights, other family members would have benefited from that result. Merely acknowledging this fact, however, does not confer upon White a duty to those family members. Such a duty could only be found in some sort of specific undertaking on behalf of those family members. Without pleading such an undertaking or promise, Fox has not pled that White owed any such duty to Fox. No such undertaking or promise appears in the petition filed in this case.
The remaining counts in Fox’s petition similarly fail tо establish any professional duty to Fox regarding White’s rendition of legal services to Burns. Because Fox has not pled facts sufficient to establish an attorney-client relationship between himself and White, the trial court propеrly granted White’s motion to dismiss for failure to state a claim upon which relief could be granted.
The dismissal is affirmed.
Notes
. Fox’s petition enumerates White’s alleged failures in 74 separate subparagraphs, each of which deаls with actions in connection with investigation, preparation, and representation of Burns in State v. Burns, Case No. 99-CR-82013.
. Because Fox’s failure to state a claim is dispositive of the issues raised on appeal, White’s assertion that Fox lacked stаnding to bring suit need not be addressed here.
. These four counts are styled as claims for "Professional Malpractice,” "Lost Chance of Survival, of Family, and of Liberty,” "Ineffective Assistance of Counsel,” and "Alienation of Children.”
. Fox's reliаnce on this statute is entirely inexplicable based on the record, and is, presumably, a mistake. Even were the statute somehow applicable to the case at hand, Fox has elected to proceed pro se, and does not allege that he has incurred any attorney’s fees in connection with the current action.
.See, e.g., Donahue v. Shughart, Thomson & Kilroy, P.C.,
. Fox’s brief before this court includes a copy of the Fee Agreement as an appendix. That agreement does not, hоwever, appear in the record on appeal, and there is no indication in the record that the agreement was actually before the trial court when it ruled on White's motion to dismiss. Fox’s claim before this court that the language of that agreement creates an attorney-client relationship is misplaced to the extent that matters not before the trial court "may not be raised on appeal to convict the trial court of error.”
Rugg v. City of Carrollton,