Kenneth Hall and Rhonda Kelso ("Plaintiffs") appeal the judgment dismissing their class action damages petition against John Podleski, the law firm of Crandall & Podleski, P.C., Gayle Crane, and the law firm of Sotta & Crane, P.C., (collectively, "Defendants"). Plaintiffs' petition, filed in the probate division of the circuit court, alleged that Defendants "were the attorneys for Rita Hunter[,] Public Administrator [("PA"),] who has been appointed [Plaintiffs'] Guardian and/or Conservator by the [c]ourt."
Count I of Plaintiffs' petition asserts that court orders approving payment of Defendants' fees from Plaintiffs' underlying probate estates were void ab initio because they were entered without a hearing and Defendants failed to give notice of their claims either to Plaintiffs' appointed guardians ad litem or to "other people interested in the estate of the wards, including but not limited to spouses, children, heirs, other guardians or conservators, who pursuant to Missouri law were entitled to notice of any actions taken in the estate." Count II of Plaintiffs' petition alleged that PA specifically intended Defendants' services to benefit Plaintiffs and that Defendants' failure to object to the payment of their fees out of the wards' estates constituted legal malpractice.
In support of Count I, Plaintiffs argue that Rule 74.06(b)
Because Plaintiffs (who have the burden of demonstrating error on appeal) failed to allege facts satisfying the elements of a cognizable claim under Count I, and because plaintiffs failed to allege facts demonstrating the existence of an attorney-client relationship between themselves and Defendants under Count II, we affirm the trial court's judgment dismissing Plaintiffs' petition.
"We review the dismissal of a case for failure to state a claim upon which relief can be granted solely for the adequacy of the plaintiff's petition." France v. Podleski, 303 S.W.3d 615, 617 (Mo.App. S.D.2010). In so doing, "we construe the plaintiff's pleadings liberally in the plaintiff's favor—giving them the broadest interpretation within reason." Wild v. Trans World Airlines, Inc., 14 S.W.3d 166, 167 (Mo.App. W.D.2000). The question is whether, when viewed in this light, "the averments invoke substantive principles of law which entitled the plaintiff to relief." In re Estate of Dean v. Morris, 963 S.W.2d 461, 464 (Mo.App. W.D.1998). "If the motion to dismiss can be sustained on any meritorious grounds, the ruling of the trial court will be affirmed." Id.
The following are the averments of Plaintiffs' petition. Prior to the institution of the instant case, a judge of the probate division of the circuit court ("the probate judge") appointed PA to serve as Plaintiffs' guardian and/or conservator.
At some unstated time, Defendants presented bills for services to PA without notifying plaintiffs' appointed attorneys or any other interested parties. The probate judge entered orders approving the charges, and PA paid those fees out of each plaintiff's respective estate.
Defendants filed separate motions to dismiss. Each alleged, among other things, that Plaintiffs' petition failed to state a cause of action because: 1) Defendants did not represent Plaintiffs; and 2) the petition constituted an impermissible collateral attack on the probate judge's orders that should have been challenged by appeal.
The trial court granted Defendants' motions to dismiss, finding that PA had notice of Defendants' fee requests and that no legal authority supported Plaintiff's claim that notice to other parties was required. The trial court further found that PA's employment of Defendants did not create an attorney-client relationship between Defendants and Plaintiffs. The trial court also stated that it could not
Plaintiffs' first point states:
In the argument section that follows, Plaintiffs state that the reasons supporting their claim that the probate judge's orders were void "are more clearly examined in the next two points." Point II states:
Point III states:
In construing Plaintiffs' first three points together, it becomes clear that they assert the trial court erred in dismissing Plaintiffs' petition for failure to state a cause of action because Rule 74.06(b)(4) allows a party affected by a judgment to challenge that judgment as void, and Plaintiffs allege the manner in which Defendants' attorney fees in the underlying probate cases were approved and paid violated their due process rights in that the procedures used did not provide interested parties with notice and a chance to be heard, rendering void the judgments approving those fees. We will address Plaintiffs' first three points together.
We first note that although Plaintiffs cite Rule 74.06, their Count I claim is not a motion filed in the applicable underlying probate cases seeking relief from the judgments entered therein.
Here, Plaintiffs claim that "Defendants failed to give notice of their [m]otions of their claims against the estate to the appointed attorneys or other interested persons as required by Missouri law" (without citing any such law) and that, as a result,
Plaintiffs have made no attempt in their brief to set forth the elements of their Count I claim and identify the factual averments in their petition that, assumed true, would satisfy each of those elements.
Plaintiffs' fourth and final point claims
But, once again, Plaintiffs failed to plead any facts supporting their claim that such an attorney-client relationship existed.
"In order to state a claim for legal malpractice, plaintiffs must allege facts that support: 1) the existence of an attorney-client relationship; 2) negligence or breach of contract by the attorney; 3) proximate causation of damages to the plaintiffs; and 4) damages to the plaintiffs." France, 303 S.W.3d at 619.
Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 628-29 (Mo. banc 1995) (emphasis added).
Plaintiffs' petition asserts no facts in support of its claim that Defendants either represented Plaintiffs directly or that PA specifically intended Defendants' services to benefit Plaintiffs. Plaintiffs effectively foreclosed the first alternative when they specifically averred that Defendants represented PA. As to the second, Plaintiffs' petition pleads no facts about what legal services Defendants provided, let alone assert facts from which an inference could be drawn that such services were specifically intended by PA to benefit Plaintiffs. Such factual averments are essential to Plaintiffs' legal malpractice claim. Plaintiffs' bare conclusion that PA intended Defendants' legal services to benefit her wards is not the equivalent of a factual averment and is insufficient to survive a motion to dismiss. Pikey, 203 S.W.3d at 824; Solberg, 174 S.W.3d at 699. As a result, Plaintiffs failed to plead a necessary element of their legal malpractice claim.
An examination of the petitions filed in the two cases demonstrates the futility of Plaintiffs' attempt to distinguish their claim from the claim asserted in France.
In France, the wards alleged on behalf of themselves (and others similarly situated) that Defendants represented PA and that the contracts for those service were invalid because they were not in writing. The second count of that petition alleged that Defendants failed to use the degree of care that an ordinary Missouri attorney would have used "in all matters which were the subject of Defendants' representation of the class members" and "breach[ed] their fiduciary duty" by failing to object to the payment of their legal fees out of the wards' underlying probate estates. The claim there, as here, was that Defendants' breached a duty owed to PA's wards by failing to object to the manner in which their legal fees were approved and paid.
In their petition, Plaintiffs simply omitted the "joint venture" allegation asserted in France and inserted instead some of the language from our France opinion about the second means of establishing the existence of a lawyer-client relationship—that PA specifically intended Defendants' legal services to benefit the wards. The identity of the two claims is most apparent when comparing the demand for relief contained in each petition.
In France, the plaintiffs concluded their petition with the following paragraphs:
(Emphasis added).
In Plaintiffs' petition, we find the same concluding allegations and request for relief, with a difference of only one word:
(Emphasis added).
In fact, this request for relief reveals the lack of any substance to the few changes made to Plaintiffs' malpractice claim. Plaintiffs' petition now alleges, as suggested by France, that PA specifically intended Defendants' services to benefit Plaintiffs. Yet, in their prayer for relief, Plaintiffs still assert that the fees paid were not used for their benefit. Plaintiffs are simply attempting to repackage (without the support of any additional factual averments) the same claim we found to have been correctly dismissed in France. As the character of an action is determined by the facts alleged and not by the legal labels applied to those facts, Bowles, 46 S.W.3d at 640, the cause of action asserted here is identical to the one we previously found deficient in France.
Despite Plaintiffs' arguments to the contrary, and the changing of one word from "fiduciary" to "legal," the concerns we enunciated in France—about the conflict of interest inherent in a holding that a lawyer hired to represent a public administrator also represents that public administrator's ward—are still present in this case. Cf. Patterson v. Warten, Fisher, Lee & Brown, L.L.C., 260 S.W.3d 417, 420 (Mo. App. S.D.2008) (plaintiff alleged both legal malpractice and breach of fiduciary duty, but both failed because an attorney-client relationship did not exist). The trial court correctly dismissed Plaintiffs' petition because its legal malpractice theory was not supported by any factual averments demonstrating the existence of an attorney-client relationship between Defendants and Plaintiffs.
The judgment dismissing Plaintiffs' petition is affirmed.
RAHMEYER and LYNCH, J., concur.
Unless otherwise indicated, all statutory references are to RSMo 2000.
