In this legal malpractice action, plaintiff appeals as of right from an order granting summary disposition in favor of defendant attorney pursuant to MCR 2.116(C)(7). We affirm.
Plaintiff was charged in January, 1983, with first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), for penetrating with his finger a person under thirteen years of age. Defendant was appointed to serve as defense counsel. Following a bench trial, plaintiff was found guilty as charged.
Plaintiff released defendant as his attorney and
Plaintiff appealed to this Court (People v Knoblauch, unpublished opinion per curiam, decided December 27, 1984 [Docket No. 73750]), arguing, inter alia, ineffective assistance of counsel under the bifurcated test of People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976). Specifically, plaintiff claimed three errors which denied him effective assistance of counsel: (1) defense counsel's failure to request a Walker hearing [People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965)]; (2) his failure to engage in complete discovery; and (3) his advice that plaintiff waive the right to a jury trial. This Court concluded that plaintiff was not denied effective assistance of counsel. The panel stated that "[t]he evidence adduced at trial was strong in supporting [plaintiff's] conviction; a different result was not probable had defense counsel performed the tasks [plaintiff] claims should have been done." The panel further noted that, even if plaintiff had been arguably denied effective assistance of counsel, the trial court negated the effect of any ineffectiveness by entering a conviction of second-degree criminal sexual conduct. The Supreme Court denied leave. 422 Mich. 961 (1985).
Plaintiff raises both procedural and substantive issues on appeal. Procedurally, he contends that the trial court erred in deciding the merits of defendant's motion, since the affirmative defense of collateral estoppel was not raised in defendant's first responsive pleading. We disagree. MCR 2.116(D)(2) requires that the grounds for a motion under MCR 2.116(C)(7) asserting that a plaintiff's claim is barred must "be raised not later than a party's responsive pleading." "[T]here is no requirement that these grounds be raised in the party's `first' responsive pleading. Thus, they are subject to the court's authority to grant permission to amend the [answer] to add the defense under MCR 2.118." 1 Martin, Dean & Webster, Michigan Court Rules Practice, p 300. This result is consistent with cases examining GCR 1963, 116.1, the
Substantively, plaintiff contends that the trial court erred in finding him collaterally estopped from asserting a claim of legal malpractice. As noted by the trial court, the question whether a criminal defendant who has raised and obtained a ruling on the issue of ineffective assistance of counsel is collaterally estopped from subsequently asserting a claim of legal malpractice appears to be one of first impression in this state.
Collateral estoppel bars the relitigation of issues previously decided when such issues are raised in a subsequent suit by the same parties based upon a different cause of action. Topps-Toeller, Inc, v City of Lansing, 47 Mich.App. 720, 727; 209 N.W.2d 843 (1973), lv den 390 Mich. 788 (1973). In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action. The parties must also have had a full opportunity to litigate the ultimate issues in the former action. Stolaruk Corp v Dep't of Transportation, 114 Mich.App. 357, 362; 319 N.W.2d 581 (1982).
In this case, the trial court concluded that plaintiff's previous allegation of ineffective assistance of counsel raised "essentially the very same issues that have been raised" in the instant legal malpractice case. Noting that plaintiff had an opportunity to assert the same issues and have them reviewed under the same standards as apply in a malpractice claim, the court found that the "identity of issues" requirement for application of collateral
People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), established a two-pronged test for determining whether a criminal defendant had received effective assistance of counsel. In Garcia, the Court adopted the reasoning in Beasley v United States, 491 F.2d 687, 696 (CA 6, 1974), in holding that "[d]efense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law," Garcia, p 264, and People v Degraffenreid, 19 Mich.App. 702; 173 N.W.2d 317 (1969), that even if defense counsel satisfies constitutional standards defendant may still be entitled to a new trial if defense counsel makes a "serious mistake" "but for [which] defendant would have had a reasonably likely chance of acquittal." Garcia, p 266. The standard for legal malpractice is stated in SJI2d 30.01, Professional Negligence and/or Malpractice:
First, in legal malpractice cases such as the instant one, where the client's injury is not the dollar amount of a judgment entered against him in the underlying case but rather the fact that he sustained an adverse judgment, the client must also show that but for the act or omission complained of he would have been successful in the underlying case. See generally Basic Food Industries, Inc v Grant, 107 Mich.App. 685; 310 N.W.2d 26 (1981), lv den 413 Mich. 913 (1982). This proof of damages is clearly a corollary to the second prong of the Garcia test.
Second, contrary to plaintiff's reading, Garcia's two-part test for ineffective assistance of counsel is not cumulative but disjunctive. People v Hunter, 141 Mich.App. 225; 367 N.W.2d 70 (1985), lv den 426 Mich. 871 (1986). Thus, a criminal defendant may establish ineffective assistance of counsel even where his attorney performed at least as well as an attorney with ordinary training and skill — the measure for legal malpractice — if he can show a serious mistake which might have resulted in acquittal. If anything, in light of Basic Food Industries, this "two bites at the apple" approach used to establish ineffective assistance of counsel is less stringent for the person claiming substandard representation than the measure used in a claim of legal malpractice.
Plaintiff discerns no other distinction between
The second requirement for application of the doctrine of collateral estoppel is the "identity of parties" in both cases. Local 98, supra, p 302. The circuit court ruled that "even though the defendant here, [attorney] William Kenyon, was not a party in interest by the time of the appeal of the [underlying criminal] case, ... the issues in dispute were sufficiently identical that the commonality of the parties is not an inadmissible [sic] bar...." This ruling was predicated upon the court's view "that even though the identity of the individuals was not the same in [the] criminal case as it is here, ... the essential question is whether or not the criminal defendant, here the civil plaintiff, had an opportunity to assert the same grounds, the same grievances, and to have them weighed by an impartial body such as the Court of Appeals in this particular instance."
In Howell v Vito's Trucking & Excavation Co, 386 Mich. 37; 191 N.W.2d 313 (1971), our Supreme Court reiterated that, in order to assert collateral
Clearly, in this case, defendant attorney was not a party in the underlying criminal case. Nor can he reasonably be considered a privy, defined as "one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase." Howell, supra, p 43, quoting Bernhard v Bank of America National Trust & Savings Ass'n, 19 Cal.2d 807; 122 P.2d 892 (1942). None of the exceptions to the mutuality rule set forth in Restatement Judgments (First) applies in this case. Consequently, if the rule of Howell controls, the assertion of collateral estoppel was not available to defendant in this case.
Defendant offers various reasons why this Court should allow his defensive use of collateral estoppel despite the holding of Howell. Clearly, the trial
Howell arose in a civil setting, where a claim alleging the defendant's negligence had been previously and successfully litigated in a civil suit, and the plaintiff sought to avoid relitigating the issue in a second civil action. It did not deal with defensive use of collateral estoppel in a criminal to
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The rationale for this rule appears in comment "e" to the section:
Defendant cites several cases in support of comment "e," including Lamore v Laughlin, 82 US App DC 3; 159 F.2d 463 (1947), decided twenty-four years before the mutuality requirement was abandoned by the Supreme Court in Blonder-Tongue, supra. In Lamore, the plaintiff sued his criminal appellate attorney, alleging that he had suppressed evidence that Lamore had been ineffectively represented by his trial counsel. Because the adequacy of his trial attorney's representation had been previously litigated in Lamore's habeas corpus action, the suit against the appellate attorney was dismissed. Significantly, the defendant appellate attorney was not involved in either the underlying criminal case or the habeas action.
Similarly, in People ex rel Snead v Kirkland, 462 F.Supp. 914 (ED Pa, 1978), decided before federal abrogation of the mutuality requirement, the plaintiff brought a civil action against several persons involved in a previous criminal trial, including his defense counsel. After the criminal trial, the plaintiff unsuccessfully brought posttrial motions which raised the issue of ineffective assistance of counsel. The court ruled in the civil action that the attorney's performance had been previously litigated and that reconsideration of the issue was precluded by collateral estoppel.
Hibbett v Cincinnati, 4 Ohio App.3d 128; 446 N.E.2d 832 (1982), also applied nonmutual defensive collateral estoppel in a criminal to civil context, although Ohio adheres to the mutuality requirement in a civil to civil context. In Hibbett, the plaintiff pled guilty in a criminal case. She then sued her criminal attorneys on the grounds that they inadequately represented her by promising
Although no Michigan cases are directly on point, there is evidence that Michigan courts have similarly repudiated the mutuality requirement in the criminal to civil context. In Imperial Kosher Catering, Inc v The Travelers Indemnity Co, 73 Mich.App. 543; 252 N.W.2d 509 (1977), the sole stockholders and officers of the plaintiff corporation were convicted of arson in a criminal proceeding. They then brought a civil suit to recover insurance proceeds for the burned building. Despite the fact that the defendant insurance company was not a party to the criminal case, was not in privity with the prosecution, and the relationship between the prosecution and the defendant was not within the "well recognized exceptions to the mutuality rule" set forth in Restatement Judgments (First), the defendant was allowed to use the plaintiffs' criminal conviction as evidence in the civil case.
The Howell Court articulated three reasons for its decision to reject nonmutual offensive estoppel in a civil to civil context: (1) in instances of several plaintiffs bringing successive actions against a single defendant, abandonment of the mutuality requirement would lead to "lopsided justice" in favor of the later plaintiffs, quoting Nevarov v Caldwell, 161 Cal.App.2d 762; 327 P.2d 111 (1958), (2) fear that abandonment would lead to increased litigation in order to avoid adverse judgment, and (3) the fact that "one contestant must be declared the loser to a competitor that he has never met," quoting Spettigue v Mahoney, 8 Ariz.App. 281; 445 P.2d 557 (1968). None of these reasons obtains in
Accordingly, we hold that, where a full and fair determination has been made in a previous criminal action that the client received the effective assistance of counsel, the defendant-attorney in a subsequent civil malpractice action brought by the same client may defensively assert collateral estoppel as a bar.
In this case, the adequacy of defendant's representation was determined at plaintiff's motion for new trial in the criminal action. Plaintiff had a full and fair opportunity to present his case. The court ultimately refused to grant a new trial on grounds of ineffective assistance of counsel after hearing testimony and argument. On appeal, the parties fully briefed the issue, and it received thorough treatment in this Court. Under these circumstances, plaintiff was collaterally estopped from again raising the issue in a legal malpractice action.