Lead Opinion
Rеlator 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,
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 proceеding. 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 sеrved 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*500 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.” Thе 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 mеan, 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 prosеcutor’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,
“... 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 plaintiffs 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 vаlidly 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,
In Oates it was held that collateral estop-pel should not be applied because of a conflict of interest inherent in uninsured motorist cases rendering the use of collateral estoppel inequitable under the facts of that case. In Hudson v. Carr, supra, no inequity was found in applying collateral estoppel to plaintiff’s personal injury claim based upon a verdict on a property damage claim which assessed his degree of negligence for the accident. Both Oates and Hudson apply an objective standard in assessing the “full and fair opportunity to litigate” standard.
In Parklane Hosiery Co., Inc. v. Shore,
In Bi-State Development Agency v. Whelan Security Co.,
We turn оur attention to the law dealing with prior criminal convictions and their effect upon subsequent litigation involving the criminal defendant. For our purposes the starting point is In re Estate of Laspy,
The distinction between offensive and defensive use of collateral estoppel found in the Missouri cases appears to parallel the federal decisions. Allen v. McCurry,
With these legal principles in mind we turn to the facts before us. O’Blennis seeks to utilize collateral estoppel defensively. His motion for summary judgment is premised upon preventing Poole from presenting evidence to establish that in fact Poole is innocent of the charge to which he pleaded guilty and for which he was convicted. Poole’s factual innocence of that charge is an indispensable element of his cause of action. Poole’s guilty plea was accepted after explanation to him of his rights, after explanation to him by counsel of its potential effect upon his civil litigation, after extensive questioning under oath by the trial court, and after he had on at least two occasions stated under oath that he was guilty of the offense charged. The extensive procedure followed by the court prior to aсcepting Poole’s plea was in accord with Rule 24.02. The court is precluded under Rule 24.02(e) from accepting the plea unless there exists a factual basis for the plea. Poole’s responses under oath established that factual basis as a result of a plea bargain satisfactory to Poole and Poole’s admission of having committed the acts supporting the charge and the conviction.
To exacerbate the situation here we have two statements under oath (the answers at the plea hearing and the affidavit in oppositiоn to summary judgment) which are diametrically opposed and one of which is a false statement of a material fact. Both statements were made to induce a court decision desired by Poole.
In this case involving defensive invocation of collateral estoppel Poole’s guilty plea precludes him from denying his guilt of the assault charge. That plea decided the same issue of fact present in his malpractice case; it resulted in a judgment on the merits; Poole is a party to both cases; he had a full and fair opportunity to litigatе his guilt or innocence. His subjective reasons for entering the plea do not form a basis for a collateral attack on the judgment of conviction which his malpractice suit is. It would be a dangerous precedent indeed to allow civil litigation premised upon an improper conviction to proceed on
“to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime.” In re Estate of Laspy, supra, [1, 2].
As such it is against public policy for the suit to continue in that it “would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.” Laspy, supra, [13].
Writ of Prohibition made absolute prohibiting respondents from further proceeding in Cause number 842-00048. Respondents are directed to grant the motion for summary judgment.
Notes
. Frequently those cases involve conviction or pleas of guilty to traffic violations. We do not read those cases as limited to that fact situation however.
. Jepson v. Stubbs,
. Poole did not seek to invoke the benefits of North Carolina v. Alford,
Concurrence Opinion
concurring.
With reservation, I concur. My reservation stems solely from the procedural propriety of issuing this writ.
The trial court here denied a motion for summary judgment. The court had jurisdiction over the subject matter and the person and, thus, had jurisdiction to make its ruling. If the ruling was erroneous, it can be appealed after final judgment is entered. Therefore, one would think the writ would not lie. Not so. That is nоt the law in Missouri today and may not have ever been, except, perhaps, during the short life of State ex rel. Morasch v. Kimberlin,
Prior to Morasch, the grounds for an appellate court to issue a writ of prohibition were, at best, imprecise. Tuchler, Discretionary Interlocutory Review in Missouri: Judicial Abuse of the Writ? 40 Mo.L.Rev. 577 (1975); Note, The Writ of Prohibition in Missouri, 1972 Wash.U.L.Q. 511. The primary cause of this imprecision, I believe, is our courts’ ambiguous use of the term “jurisdiction” when confronted with an application for the writ. We use “jurisdiction” to mean judicial authority over the subject matter and the person, but we also use it to mean the judicial power to grant speсific relief within that authority. Thus, prior to Morasch, our courts issued the writ when the trial court lacked jurisdiction over the subject matter or person, e.g., State ex rel. Rolla School District No. 31 v. Northern,
In a pristine sense, a trial court without jurisdiction over the subject matter or person has no authority to act, either rightly or wrongly. Therefore, its attempt to act should be prohibited. A trial court that has jurisdiction over the subject matter and person, however, can act, both rightly and wrongly, and its wrong acts — errors of law — can be appealed. Nonetheless, our appellate courts select certain of the latter acts and prohibit the attempts of trial courts to complete these acts. This selection, I believe, is done on an ad hoc basis; our courts selecting those wrongful acts— errors of law — which the courts believe are so egregious they must be stopped.
As I understood Morasch, and apparently as those judges who concurred in the result understood it, see Morasch,
Subsequent to Morasch, the Court stated the writ could be used not only to review “the question of trial court jurisdiction” but also could be used “in peculiarily limited situations ... in which absolute irreparable harm may come to a litigant....” State ex rel. Richardson v. Randall,
Then, in State ex rel. D.M. v. Hoester,
In its most recent pronouncement, the Court indicated that when an appeal would fail “to afford adequate relief, prohibition [would be] the appropriate remedy to forbear patently unwarranted and expensive litigation, inconvenience and waste of time and talent.” State ex rel. New Liberty Hospital District v. Pratt,
In light of these cases, I now believe Morasch made no change in the procedural principles governing the issuance of the writ. An appellate court can use the writ to determine whether the trial court is acting without jurisdiction over the subject matter or the person, e.g., State ex rel. Rolla School District No. 31 v. Northern, supra, whether the trial court, having such jurisdiction, is acting in “excess of its jurisdiction,” e.g., State ex rel. D.M. v. Hoester, supra, whether the trial court’s act will cause irreparable harm, e.g., State ex rel. Richardson v. Randall, supra, or whether a claim is clearly barred, e.g., State ex rel. New Liberty Hospital District v. Pratt, supra, State ex rel. General Electric v. Gaertner, supra, (Rendlen, J., concur
My reservation, however, stems from my belief that Morasch did not guide us out of our procedural morass. In short, the extraordinary writ of prohibition is being used as the procedural vehicle for an ordinary discretionary appeal of an interlocutory order. I have no quarrel with this use as such. I do not believe our State Constitution necessarily limits the use of the writ to the narrow grounds of jurisdiction over the subject matter or person, nor do I believe ideal appellate review precludes the writ from being used to process discretionary appeals of interlocutory orders. If the writ is to be so used, however, the propriety of this use should be stated explicitly and the grounds for that use should be specifically defined. If the writ should not be so used, the writ can still be maintained as an extraordinary procedural vehicle to question a trial court’s jurisdiction over the subject matter or the person, and the grounds for a discretionary appeal of an interlocutory order can be defined by rule or statute. See Fed.R.App. P. 5; 28 U.S.C. § 1292(b) (1982).
In other circumstances, it may well be true that rules of law are best developed on a case by case basis or are best applied on an ad hoc basis. This is not the case with the extraordinary writ of prohibition. Presently, the practicing bar has difficulty in determining when a preliminary writ will lie, particularly since none of our appellate courts support their denial of a preliminary writ with written reasons. The competent and conscientious lawyer is penalized for being aware of the apparent lack of exact grounds for issuing the writ. Moreover, the practicing bar no longer appears to suffer in quiet desperation but seems to have fallen into cynical resignation. The bar appears to believe the issuance of the preliminary writ is not governed by any fixed objective rules but rather is governed subjectively by the whim and caprice of individual judges. The bar deserves better, and we can do better.
I hаve no reservation, however, in concurring with the majority opinion on the merits. I agree with its major premise, its consistent logic and its rational conclusion.
Out of a proper concern for the rights of an accused, we have developed a detailed process for accepting a guilty plea to assure the plea is made voluntarily and knowingly, and, as additional protection, particularly for those tried by jury, we have developed an easily understood process for post conviction remedies. To permit plaintiff herе to turn these processes in on themselves, as he seeks to do, would ironically mock the system and greatly diminish the trust sensible people have in it.
. In D.M., supra, an adopted daughter sued her father for sexual abuse and sought her father’s medical history from his psychiatrist. Asserting the doctor-patient privilege, under § 491.060(5), RSMo Cum.Supp.1983, the father sought the writ to prohibit the disclosure. The daughter argued that § 210.140, RSMo Cum.Supp.1983 suspended the privilege or made it inapplicable in this case. In agreeing with the daughter and quashing the writ on its merits, the Court explained the procedural grounds for issuing the preliminary writ:
"It should be noted at the outset that prohibition lies in some instances to prevent judicial violation of statutory inhibitions, though in State ex rel. Morasch v. Kimberlin,654 S.W.2d 889 (Mo. banc 1983), we held that violation of a statutory provision by a trial court does not always constitute an act in excess of its jurisdiction. The court’s order in the instant case would allow discovery of materials privileged under § 491.060(5) RSMo Cum.Supp.1983. Since § 491.060(5) standing alone operates in part to restrict the power of a trial court in the discovery process, see State ex rel. Mehle v. Harper,643 S.W.2d 643 (Mo.App.1982), it can be said that violation of the statute constitutes an act in excess of jurisdiction. State ex rel. Collins v. Donelson,557 S.W.2d 707 (Mo.App.1977). See State ex rel. Uregas Service Co., Inc., v. Adams,262 S.W.2d 9 (Mo. banc 1953).”
State ex rel. D.M. v. Hoester,
. To me, these grounds are separate and distinct but not mutually exclusive.