Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Jackson County, Missouri The
Honorable Sandra Midkiff, Judge.
Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and
Edward R. Ardini, Jr., Judge
D. WITT, JUDGE.
George Fuller and Clara Fuller (collectively the
"Fullers" and "George" and "Clara,
" respectively) appeal the judgment of the Circuit Court
of Jackson County, Missouri. Fullers filed a petition against
Ronald Partee ("Partee") and Byron Fox
("Fox") which alleged breach of contract, breach of
fiduciary duty, and legal malpractice. Partee and Fox filed a
motion to dismiss the action, which was granted by the trial
court. The Fullers raise six points on appeal alleging error.
We find that the circuit court erred in dismissing
George's claim for breach of contract against Partee. We
reverse and remand for further proceedings on this point. In
all other respects we affirm.
Fuller is currently incarcerated for murder and other related
charges. He was convicted following a jury trial in 1990 and
is serving a prison term of life without the possibility of
parole. George's conviction was affirmed on direct appeal
as were his pro se motions for post-conviction
relief. State v. Fuller, 837 S.W.2d 304 (Mo. App.
W.D. 1992); see Fuller v. State, 485 S.W.3d 768 (Mo.
App. W.D. 2016). On December 12, 2010, George contracted with
Partee for Partee to represent George in his appeal from the
denial of his motion to reopen his Rule 29.15 proceeding.
Pursuant to the terms of the contract, Partee specifically
agreed to perform certain services including: (a) prepare and
file appellate brief; (b) oral argument; and (c) reply brief
"if we decide that one was necessary." George's
sister, Clara, delivered to Partee the agreed upon attorney
fee of $6, 000 and Partee filed an Appellant's Brief
appealing the motion court's judgment denying the motion
to reopen his Rule 29.15 proceeding. The Fullers allege that
once Partee received payment of the $6, 000 retainer fee, he
ceased communication with them.
Court docketed the case for "no argument" and sent
a letter to Partee instructing him that he had ten days
within which to request the case be moved to the oral
argument docket. Partee sent a letter to George acknowledging
that George's case had been placed on the "no
argument" docket and stated he would make inquiries as
to why argument had not been scheduled. The Fullers attempted
to contact Partee to instruct him that he could and should
request oral argument. Partee did not timely request oral
argument nor did he discuss this decision with George. This
Court ultimately affirmed the judgment of the motion court.
Fuller v. State, 361 S.W.3d 22 (Mo. App. W.D. 2011).
this court's decision on George's appeal, the Fullers
brought suit against Partee. Ultimately, the Fullers jointly
filed an Amended Petition asserting claims against Partee and Fox
for breach of contract, breach of fiduciary duty, and legal
malpractice. Both Partee and Fox filed separate Motions to
Dismiss. The circuit court granted both motions. The Fullers
appeal raising six claims of error.
review de novo the grant of a motion to dismiss,
examining the pleadings to determine whether they invoke
principles of substantive law." Weems v.
Montgomery, 126 S.W.3d 479, 483 (Mo. App. W.D. 2004);
Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).
A motion to dismiss for failure to state a cause of action is
solely a test of the adequacy of the plaintiff's
petition. It assumes that all the plaintiff's averments
are true, and liberally grants to plaintiff all reasonable
inferences therefrom. No attempt is made to weigh any facts
alleged as to whether they are credible or persuasive.
Instead, the petition is reviewed in an almost academic
manner, to determine if the facts alleged meet the elements
of a recognized cause of action, or a cause that might be
adopted in that case.
Prenger v. Boat Store, Inc., 453 S.W.3d 381, 384-85
(Mo. App. S.D. 2015) (quoting Bosch v. St. Louis
Healthcare Network, 41 S.W.3d 462, 463-64 (Mo. banc
2001). "The pleadings are liberally construed and all
alleged facts are accepted as true and construed in a light
most favorable to the pleader." Weems, 126
S.W.3d at 483 (quoting Koger v. Hartford Life Ins.
Co., 28 S.W.3d 405, 410 (Mo. App. W.D. 2000)).
attached an affidavit to his motion to dismiss and the
Fullers attached additional affidavits and documents in their
suggestions in opposition to Partee and Fox's motions to
dismiss. The Fullers requested that the court treat Fox's
motion to dismiss as a motion for summary judgment. When the
parties request the court to consider exhibits or matters
outside of the pleadings in response to a motion to dismiss,
the motion may be converted to a motion for summary judgment.
Crest Constr. II, Inc. v. Hart,487 S.W.3d 85, 89
(Mo. App. W.D. 2016). Because all parties attached affidavits
and other documents to their motions on which they rely for
some of their arguments and the Fullers specifically
requested that the trial court treat the motion as one for
summary judgment we will review it as a motion for summary
judgment. "When considering appeals from summary
judgments, the Court will review the record in the light most
favorable to the party against whom judgment was
entered." ITT Commercial Fin. Corp. V. Mid-Am.
Marine Supply Co., 854 S.W.2d 371, 376 (Mo. banc 1993).
"Facts set forth by affidavit or otherwise in support of
a party's motion are taken as true unless ...