Summary
finding official immunity did not apply to public defenders, but after this Court accepted transfer of the case, this holding no longer held any precedential value
Summary of this case from Laughlin v. PerryOpinion
No. WD67378
January 2, 2008
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, The Honorable Gene Hamilton, Judge.
Bernardo O. Costa, Pro Se, Cameron, for Appellant.
David Allen Johnston, Jefferson City, for Respondent.
Before Patricia A. Breckenridge, Presiding Judge, Harold L. Lowenstein, Judge, and Ronald R. Holliger, Judge
After this case was submitted for this court's decision, Judge Breckenridge was appointed to the Supreme Court of Missouri. By special assignment, she has continued to serve as a member of this court's panel in considering this case.
In a case of first impression we must determine whether a public defender has official immunity for acts committed in the representation of an indigent criminal defendant. Bernardo Costa ("Costa") appeals the dismissal with prejudice of his pro se action for damages against Arthur Allen ("Allen"), an attorney with the Missouri Public Defender's Office who represented Costa in connection with a motion for post-conviction relief under Rule 29.15. The petition under review is styled as a "civil action for breach of fiduciary duties (constructive fraud)." In response to that petition, Allen filed an answer and a motion to dismiss under Rule 55.27(a)(6), asserting various grounds for dismissal, including official immunity and that Costa has failed to allege damages because his action is premature. The trial court sustained that motion without elaboration and entered judgment dismissing the petition with prejudice. Having reviewed the record on appeal, we find that Allen is not entitled to the protection of official immunity and that Costa's action is not premature. The judgment is reversed and remanded for appropriate proceedings.
All rules cited are Missouri Rules of Court (2006), unless otherwise noted.
Factual and Procedural Background
The petition filed in this case alleges that Allen breached a fiduciary duty to Costa by failing to secure the presence of various witnesses at an evidentiary hearing in connection with his motion for post-conviction relief. Costa pleads that he instructed Allen to "obtain and secure" the presence of those witnesses at that hearing and that Allen "assured [Costa] that he would call the witnesses." Those witnesses did not testify at the evidentiary hearing and Costa alleges that Allen's failure to secure their presence was fatal to his otherwise valid claim for post-conviction relief.
Costa's petition does not disambiguate the word "call" in this context. While it is possible to read the petition only to suggest that Allen promised to contact the witnesses (i.e. by telephone), this court must give the petition the benefit of all reasonable inferences. See Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). We therefore read Costa's petition as alleging that Allen's promise was to "call" the witnesses in the sense of calling them to testify at the hearing.
In response to Costa's petition, Allen filed both an answer and a motion to dismiss under Rule 55.27(a)(6). Those pleadings asserted, inter alia, Allen's official immunity from Costa's claim and Costa's failure to set forth facts establishing the requisite elements of causation and damages. The trial court granted Allen's motion to dismiss with prejudice. Costa then filed a reply to Allen's answer, along with a motion to vacate, a motion to amend pleadings, and a request for a brief opinion. The trial court denied the request for a brief opinion. The record on appeal does not disclose any ruling on Costa's other motions.
Allen's answer asserts ten defenses, and additional grounds are asserted in his suggestions in support of his motion for dismissal. Those defenses include sovereign immunity, official immunity, the inapplicability of respondeat superior, that the state is not subject to punitive damages, Costa's failure to state a claim in legal malpractice, Costa's failure to state a claim for breach of fiduciary duty, Costa's failure to mitigate damages, that Costa's claim is premature, and Costa's failure to comply with Missouri Revised Statutes, section 33.120. We consider only those raised in the motion to dismiss.
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, 119 S.W.3d 204, 208 (Mo.App.W.D. 2003). The Rules of Court permit a defendant to assert the plaintiff's "[f]ailure to state a claim upon which relief can be granted" by way of a motion 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., 854 S.W.2d 371, 376 (Mo. banc 1993). Thus, "[w]here the pleadings fail to state a cause of action under the law or fail to state facts entitling the party to relief, the trial court may dismiss the lawsuit." Id.
In reviewing a trial court's dismissal, this court, 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, 851 S.W.2d 510, 512 (Mo. banc 1993).
Discussion
Allen's brief before this court, like his motion to dismiss, asserts only that Costa's suit is premature and that Allen is immune from suit. If Allen is immune, Costa's action was properly dismissed with prejudice, as Costa could plead no set of facts entitling him to relief. Geiersbach v. Blue Cross/Blue Shield of Kansas City, 58 S.W.3d 636, 640 (Mo.App.W.D. 2001). If, on the other hand, Costa's petition was subject to dismissal under Rule 55.27(a)(6) for any of the other reasons asserted in Allen's motion, it should have been dismissed without prejudice. See, e.g., Brinson v. Whittico, 793 S.W.2d 632, 633 (Mo.App. E.D. 1990) (holding that an action dismissed as premature must be dismissed without prejudice). Since we must "presume the decision was based on grounds stated in the dismissal motions," Rychnovsky, 119 S.W.3d at 208, and a dismissal with prejudice would have been inconsistent with any of the stated grounds except for immunity, it would appear that the trial court dismissed the case on that basis, and that issue is addressed first.
Allen's motion before the trial court asserted both sovereign immunity and official immunity. Costa has made no attempt to add the public defender's office or any other state agency to this suit and Allen advances no grounds for a finding that Allen, individually, is protected by the doctrine of sovereign immunity. The first question before this court, therefore, is whether the doctrine of official immunity applies to attorneys working for the state public defender's office.
Official Immunity
"To be liable in tort for his or her official acts, a public official or employee must breach a ministerial duty imposed by statute or by regulation." Norton v. Smith, 782 S.W.2d 775, 777 (Mo App. E.D. 1989). The doctrine of official immunity is intended to further:
society's compelling interest in vigorous and effective administration of public affairs [by protecting] those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public's business. If an officer is to be put in fear of financial loss at every exercise of his official function, manifestly the interest of the public will inevitably suffer from the too complacent attitude thus engendered.
Kanagawa v. State, 685 S.W.2d 831, 836 (Mo. banc 1985) (internal citations and quotes omitted).
Costa essentially claims that Allen failed to secure the attendance of witnesses necessary to the success of his post-conviction motion despite his express instructions and Allen's promise to do so. Specifically, he alleges that the presence of those witnesses would have allowed the foundation to be laid for the introduction of documents that would have impeached those same witnesses' trial testimony. Viewed strictly in terms of whether Allen's actions were discretionary or ministerial, it seems clear that any decision regarding whether to call specific witnesses at trial (or at a post-conviction hearing) would fall within the discretionary category. Such decisions require the exercise of professional judgment within the factual and procedural context of an individual case. For purposes of immunity, discretionary acts are those that require "the exercise of reason in the adaption of means to an end and discretion in determining how or whether an act should be done or course pursued." Id. (quoting Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo banc 1984).
Costa claims that one document relied upon at trial, a medical report, had been altered, and that this fact could have been proven if various documents were received at his evidentiary hearing.
Thus, if the official immunity doctrine is applicable, Allen would appear to be immune from the suit filed by Costa, because his actions were discretionary. Whether or not attorneys in the public defender's office enjoy official immunity for their actions on behalf of clients, however, is a question of first impression in Missouri. This question has been raised twice in cases applying Missouri law, but in neither case did the court directly rule on that question. See Johnson v. Schmidt, 719 S.W.2d 825 (Mo.App.W.D. 1986) (suit held to be premature); and Underwood v. Woods, 406 F.2d 910 (8th Cir. 1969) (suit barred by statute of limitations) (applying Missouri law).
While most other jurisdictions find that public defenders are not protected by official immunity, the Supreme Court of Minnesota has extended such immunity to its public defender system. See Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993). The Minnesota high court draws a distinction between public defenders and other attorneys based on the fact that indigent defendants do not pay for their own defense. Id. at 776. Indigent defendants therefore have "no economic incentive for eschewing frivolous claims . . . [and] more frequently attempt to litigate claims which are patently without merit than do non-indigent parties." Id. This results in a problem to the extent that "[t]he office of the public defender does not have sufficient funds to represent each client assigned to it in the way each client might demand to be served." Id. From this set of circumstances, the court reasons that:
Immunity from suit for public defenders best serves the indigent population in preserving the resources of the defender's office for the defense of the criminally accused. Immunity also aids in the recruitment of qualified attorneys to represent indigent clients in criminal proceedings. Immunity preserves the criminal justice system which relies upon the judge, prosecutor and public defender as essential participants. This serves the best interests of indigent defendants and of society as a whole.
Id. at 777.
The Dziubak opinion, however, is accompanied by a vigorous dissent, which argues that:
While the majority considers it an unfair burden to subject the public defender to malpractice stemming from acts or omissions due to impossible caseloads and an under-funded office, factors out of the control of the defender, it is even more unfair that the indigent client should suffer from misrepresentation due to under-funded offices. I do not believe this court should sanction the chronic underfunding of public defense organizations by lessening the obligations which public defenders have to their indigent clients.
Id. at 778 (Gardebring, J., dissenting).
Most jurisdictions find that public defenders are not entitled to immunity either because they are not "public officials" for purposes of that doctrine, or because they owe duties to their clients independent of their official status. See Annotation, Public defender's immunity from liability for malpractice, 6 A.L.R.4th 774 (1981 Supp. 2007) (collecting cases).
The Supreme Court of Connecticut has held that public defenders are not state "officers" for purposes of official immunity:
Even though the state must ensure that indigents are represented by competent counsel, it can hardly be argued that the actual conduct of the defense of an individual is a sovereign or governmental act. The principle that the state cannot function both as prosecutor and defender is so deeply rooted in our system of justice as to require no citation. The public defender when he represents his client is not performing a sovereign function and is therefore not a public or state official to whom the doctrine of sovereign immunity applies.
Spring v. Constantino, 362 A.2d 871, 875 (Conn. 1975).
This analysis rests upon the premise that the common law doctrine of official immunity flows from the doctrine of sovereign immunity. Connecticut also provides statutory immunity for state employees. The court, in Spring, went on to find that a public defender did not fall within the protection of that statute, since his relationship to the state was that of an independent contractor rather than an employee. Spring v. Constantino, 362 A.2d 871, 878 (Conn. 1975). Missouri does not have a blanket statutory immunity for state employees but rather provides financial protection for their acts under the State Legal Expense Fund.
Similarly, two Florida appellate courts have declined to apply the doctrine of judicial immunity to public defenders, noting that:
Considerations which require that a judge and prosecutor be immune from liability for the exercise of duties essential to the administration of justice, do not require that the same immunity be extended to the public defender. While the prosecutor is an officer of the state whose duty it is to see that impartial justice is done, the public defender is an advocate, who once appointed owes a duty only to his client, the indigent defendant. His role does not differ from that of privately retained counsel.
Windsor v. Gibson, 424 So.2d 888, 889 (Fla.Dist.Ct.App. 1982); See also Wilcox v. Brummer, 739 So.2d 1282 (Fla.Dist.Ct.App. 1999).
In the present case, Allen does not assert that judicial immunity is applicable. Our citation to these Florida cases is intended to illuminate the general principles involved, and should not be interpreted as deciding the applicability of judicial immunity to public defenders under Missouri law.
The Pennsylvania Supreme Court employed similar reasoning in Reese v. Danforth, 406 A.2d 735, 739 (Pa. 1979):
[O]nce the appointment of a public defender in a given case is made, his public or state function ceases and thereafter he functions purely as a private attorney concerned with servicing his client. His professional relationship with his client takes on all the obligations and protections attendant upon a private attorney-client relationship except one: the public pays his fee.
While not explicitly addressing whether public defenders are "officers" or "employees" of the state, an Illinois appellate court has held that public defenders are not immune from suit because they owe duties to their clients that do not arise solely from their state employment:
Every attorney has the duty to exercise a reasonable degree of skill and care in representing his client. Plaintiff has alleged that defendants breached their duty to use the skill and care ordinarily used by a reasonably well-qualified attorney under similar circumstances. This is the same duty owed by every attorney to every client regardless of whether the attorney is a state employee. This duty is derived from the lawyer's status as a licensed attorney and is wholly independent of the lawyer's state employment.
Johnson v. Halloran, 728 N.E.2d 490, 494 (Ill.App.Ct. 2000) (citations omitted).
Similarly, the United States Court for the District of Nevada (apparently applying Nevada law) has noted that:
The relationship [between an indigent defendant and his court-appointed counsel] is no different than that between a client and privately retained counsel. The professional obligations of the attorney to his client are the same. The fact that the attorney, in a sense, holds a public office and is compensated from public funds makes no difference.
Sanchez v. Murphy, 385 F.Supp. 1362, 1364 (D.Nev. 1974) (decided on other grounds).
Several of the cases from other jurisdictions rely in part on analogies between public defenders and state-employed physicians. See, e.g., Reese, 406 A.2d at 739 (noting that a public defender is "like the physician rendering professional services which are paid for out of public funds and, like that physician, he ought to be subject to liability for tortious conduct"). This analogy is equally relevant in Missouri, where state-employed physicians have been held not to be "public officials entitled to immunity but are employees subject to suit in which their liability for medical malpractice may or may not be established." State ex rel. Eli Lilly Co. v. Gaertner, 619 S.W.2d 761, 764 (Mo.App.E.D. 1981).
The discretionary decisions shielded by official immunity "are those which are a manifest exercise of the sovereign's power, those decision which `go to the essence of governing.'" Id. at 765 (quoting Jones v. State Highway Comm'n, 557 S.W.2d 225, 230 (Mo. banc 1977)). In order to be shielded by the doctrine of official immunity, a defendant must, therefore, be "invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." Id. at 764. Like the physicians at issue in Gaertner, a public defender, once appointed, does not exercise any portion of the sovereign's power, but instead provides professional services to a client. See id. As such, attorneys in the office of the public defender are not shielded from liability by the doctrine of official immunity, and the trial court's dismissal with prejudice must be reversed.
Breach of Fiduciary Duty and Legal Malpractice
In addition to asserting official immunity, Allen argues that Costa has failed to state a claim for breach of fiduciary duty. We note, initially, that a dismissal on this basis should generally be granted without prejudice. See, e.g., Brinson, 793 S.W.2d at 633. It would thus appear that the judgment under review was entered on the basis of immunity rather than any other grounds alleged in Allen's motion to dismiss. Nonetheless, the grant of a motion to dismiss will be affirmed if a dismissal is appropriate on any of the grounds stated in the motion to dismiss. See Rychnovsky, 119 S.W.3d at 208.
Allen asserts that "Costa's claim appears to be grounded in legal malpractice rather than constructive fraud," that such a claim is premature until "Costa is successful in securing post-conviction relief upon a finding that he was denied effective assistance of counsel," and that Costa has therefore failed to properly allege damages.
As support for this argument, Allen cites Donahue v. Shugart, Thompson Kilroy, P.C., 900 S.W.2d 624 (Mo. banc 1995), in which our Supreme Court distinguished a claim for breach of fiduciary duty from a claim for legal malpractice based on professional negligence. The fiduciary breach alleged in Donahue was based upon "the existence of attorney negligence, not on the breach of a trust." Id. at 629. While Allen argues that this distinction is somehow related to the time frame in which the breach occurs, this court finds no support for that argument in the Donahue opinion itself.
In Williams v. Preman, 911 S.W.2d 288 (Mo.App.W.D. 1995), a case not cited by Allen, this court read Donahue to suggest that an attorney's breach of trust "during the course of representation" is legal malpractice, whereas a similar breach occurring "outside the time frame of the representation" of the client is properly characterized as an action for breach of fiduciary duty. Id. at 301 (overruled by Klemme v. Best, 941 S.W.2d 493 (Mo. banc 1997)). Williams, however, has been explicitly overruled by Klemme v. Best, another case not cited by Allen, in which our Supreme Court held:
While Allen never cites Williams, he does quote that opinion verbatim: "An attorney's breach of duty to a client during the course of representation of the client is legal malpractice, not breach of fiduciary duty as a separate tort." Respondent's brief at 8; see also Williams, 911 S.W.2d at 301.
This interpretation of Donahue is incorrect. Clients may sue their attorneys for torts other than legal malpractice. As indicated, an attorney may breach a fiduciary duty to a client at any time during their relationship.
Klemme, 941 S.W.2d at 496. Thus, the mere fact that Allen's alleged fiduciary breach occurred during the course of his representation of Costa does not preclude an action for breach of fiduciary duty. Allen's motion before the trial court asserts no other basis for a finding that Costa has failed to plead a breach of fiduciary duty. Similarly, this is the only basis argued on appeal for holding that Costa has not pled an action for fiduciary breach.
This argument affords no basis for sustaining the trial court's judgment. Indeed, even were we to hold that Costa's claim sounds in legal malpractice rather than fiduciary breach, such a holding would provide no support for the judgment entered, since that holding would necessitate a remand for trial on the claim of malpractice.
Ripeness and Damages
Allen's original answer to Costa's petition stated, without elaboration, that Costa had "failed to plead a claim for legal malpractice by setting forth facts showing that the actions or omissions by defendant prevented post-conviction relief." In both his motion to dismiss and his brief before this court, Allen argues that Costa has not properly pled legal malpractice because such an action is unripe. This argument, in turn, relies upon an assertion that Costa cannot plead that Allen has proximately caused him damages.
Whether viewed in terms of fiduciary breach or legal malpractice, Costa must plead damages proximately caused by Allen's actions in order to state a compensable claim. Id. Relying upon Johnson v. Schmidt, 719 S.W.2d 825 (Mo.App.W.D. 1986), Allen argues that Costa cannot establish damages because he has yet to obtain post-conviction relief. In Johnson, the plaintiff filed a malpractice suit against his trial counsel while an appeal of his unsuccessful motions for post-conviction relief were pending. Id. at 826. This court held that such an action was premature "until such time as appellant is successful in securing post-conviction relief upon a finding that he was denied effective assistance of counsel." Id.
The present case is distinguishable from Johnson. Allen represented Costa in connection with his post-conviction motion and did not represent him at trial. Because Allen did not serve as Costa's trial counsel, no further post-conviction proceeding is pending or can be brought that would address the effectiveness of Allen's representation of Costa. For the same reason, Costa need not establish, as Allen asserts, that Allen's breach "prevented his acquittal." Instead, Costa must establish that Allen's breach prevented him from obtaining the relief sought in the post-conviction motion. Thus, in order to proceed on his claim, Costa need not allege that he would have obtained an acquittal, but merely that the motion court would have granted his 29.15 motion. The petition filed in this case does allege that, absent the complained of breach, Costa "would have obtained relief from his conviction and sentence from the motion court." The averments in the petition are sufficient to withstand a motion for dismissal.
Costa does not claim that Allen abandoned him, and it would appear from the facts in the record that no such claim would lie in the present case. See Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991).
Conclusion
The trial court's dismissal with prejudice was error. Costa's claim against Allen is not premature. The case is reversed and remanded.
Patricia A. Breckenridge, Presiding Judge, and Harold L. Lowenstein, Judge, concur.
After this case was submitted for this court's decision, Judge Breckenridge was appointed to the Supreme Court of Missouri. By special assignment, she has continued to serve as a member of this court's panel in considering this case.
MISSOURI APPELLATE COURT OPINION SUMMARY
Bernardo Costa ("Costa") appeals the dismissal of his pro se action against Arthur Allen ("Allen"). Allen is an attorney with the State Public Defender's Office who represented Costa in connection with a motion for post conviction relief. Costa's suit is styled as a "civil action for breach of fiduciary duties (constructive fraud)." Allen filed a motion to dismiss the cause asserting official immunity. Allen also asserted that Costa has failed to state a claim for breach of fiduciary duty because an alleged breach that occurs during the course of an attorney's representation of a client should be pled as an action in legal malpractice. The trial court sustained that motion without elaboration and entered judgment dismissing the petition with prejudice.
Reversed and remanded.
Division holds:
(1) Attorneys in the office of the public defender are not shielded by official immunity.
(2) For purposes of determining whether a client's claim against an attorney is governed by principles of agency (breach of fiduciary duty) or professional malpractice, it is irrelevant whether the alleged breach occurred before, during, or after the course of actual representation.
This summary is UNOFFICIAL and should not be quoted or cited.