Charles Reinhart Co. v. Winiemko

1994] Chаrles Reinhart Co v Winiemko COMPANY v WINIEMKO CHARLES REINHART 7). (Calendar 6, Argued No. Nos. 94991. October Docket 1, 1994. Decided March malpractice Company brought legal The Charles Reinhart against Ronald C. in the Washtenaw Circuit Court action Winiemko, negligence alleging but for his it would have that court, appeal litigation. Melinda in its of certain The succeeded Morris, J., plaintiff, judgment on a verdict for the entered finding appeal The Court of would have succeeded. JJ., P.J., Appeals, W. Sullivan, Fitzgerald, and Wahls and J. affirmed, malpractice ruling legal proximate in a cause that, alleging question in and even an action action fact questions malpractice handling appeal, in an issues that were underlying questions case become of fact in the of law the malpractice for the action. The Court held that court, a reasonable more trier fact is whether not, granted appellant likely have than would 128542). (Docket underlying Nos. The case some relief appeals. defendant joined by opinion Riley, In an Justices Griffin Justice opinion Cavanagh, an Justice Mallett, and Chief Supreme held: Court court, alleging jury, not the in an action trial handling appeal attorney malpractice an is to determine underlying appeal have been successful. whether the intrinsically law within involves issues of Such determination province judiciary. the exclusive malpractice prove must 1. A in an action for negligence attorney-client relationship, of an the existence legal representation that cause of an was alleged injury. injury, the fact and extent of Where handling appeal alleged, two further proved: attorney’s aspects in fact must be causation appeal, negligence or unfavorable result of caused loss References 2d, Attorneys 224. at Law § Am Jur Attorneys under at Law. See ALR Index Mich and that the loss or in turn unfavorable result caused a loss or litigation. unfavorable result in the attorney’s negli- 2. Whether an lost because gence pursued properly would have if succeeded is an issue for underlying appeal the Court because the resolution of the originally would have rested on a decision of It law. is the provincе law, regardless of the court to determine the of its procedural posture any given Rulings may case. of law be fact, findings legal reviewed de novo. Unlike of issues are not light conflicting probabilities. resolved the of The outcome of appellate predetermined princi- cases is decided on the basis of ples rulings may of law. Unlike a trial court’s of law that be novo, jury’s generally only may reviewed de verdict pursuant summary disposition reversed to the of standards or judgment notwithstanding traditionally the verdict. Juries do legal They not decide the law or the outcome of conflicts. are courts, appellate factfinders, determining not must but remain what, how, something happened, resolving and when but not questions by the law itself. The determination of of law the prerogative; contrary, courts is not a new elitist to the it is a judiciary, very purpose vindication of the existence of the the of judiciary. 3. In this case the of issue cause is to the reserved appeal court because whether an would have been successful intrinsically prov- involves issues of law within the exclusive ince of the courts. Because the trial court did not address the underlying issue whether the suit would have been successful law, ruling as a matter of its must be reversed. right by jury, protected 4. At no time has the to a trial law, Michigan any displace under fashion been understood to authority duty judiciary legal of the to determine long right recognized, issues. For as as the has been province exclusive of the Court to rule on matters of law has Hence, acknowledged. right been to a trial is in no infringed proceeds legal manner when the court to evaluate the underlying appeal legal malpractice merits of an in a action alleging negligence pursuit appeal. joined by Riley, Justice Justices Mallett, addi- Griffin tionally by stated that of issues law are resolved a reasoned application principles particular of neutral ato factual situa- particular may appear tion. That the resolution of a not litigation appeal obvious at the outset of or an does not belie principled application legal the notion that a neutral and of authority principled ambiguities will result in one result. While exist, they predilections within the law are resolved not 1994] Reinhart Co v Winiemko legal application judges, of but a reasoned of individual conflicting opinions principles. within That exist dissents legal system only that some members of the reveal same interpretation disagree application judiciary or of over achievable, principles, not or guiding that a result is not correct has not been achieved. view, plaintiff’s will differ in their courts that, thus, legal application no correct answer to of the law and sugges- exists, denigration Any law. rule of issues invites might Supreme from a Court or others deviate

tion that guiding principles pure application its is unwar- of the law and adjudica- principles contrary to the fundamental ranted and public distinguished forms from other tion. The law heavy making not its use of outcome- authoritative decision advance, determining but the use of laid down in rules making designed procedures to ensure that decision personal practice merely imposition orwill the ad hoc politics. concurring, Cavanagh, the ex- stated that Chief Justice appeal issue deci- involves an tent that an regarding likely making success of should sion court, jury. majority’s The discourse to the not the be reserved making process of is of decision on rule law and holding unnecessary case. to the of this result, Boyle, concurring stated that the issue Justice appeal had it would have been decided in this case how an way by framing timely that filed. best to determine been The question law. as one of and remanded. Reversed dissenting, Levin, Brickley, joined by Justice stated Justice appellate malprac- of a of causation cases

that determination by jury, question not a fact be tice is a resolved judge. question trial law to decided appellate malpractice requires prima A facie case proxi- negligence plaintiff the defendant’s was establish that plaintiff’s injury. Proximate cause is an issue of the mate cause preliminary appropriately as a matter law determined questions judge, issues of fact that cause faсt are trial while court in this the factfinder. trial must be decided prima properly had established determined province It was then within the exclusive facie case. particular were the defendant’s actions to determine whether plaintiff’s injury. fact that resulted in the causes in (1992) App reversed. NW2d Mich 444 Mich 579 Riley, J. Attorney Malpractice Appeal Underlying — — and Client on Litigation — of Law. Questions court, jury, alleging attorney

The trial and not the an action handling appeal an is to determine whether the underlying appeal successful; would have been such a determi- intrinsically nation involves issues law within the exclusive province judiciary. Fajen, (by Davis & P.C. Peter A. Davis and Miller), plaintiff. Nelson P. for the Cooney, (by Plunkett & P.C. Christine D. Oldani Ross), Mary Massaron for the defendant. Amici Curiae: Wright,

Dickinson, Moon, Van Dusen & Free- Powell) (by Michigan man Robert W. for Defense Trial Counsel. (by

Collins, Einhorn, Ulanoff, Farrell & P.C. Slank), Michigan Lawyers Noreen L. Mutual. J. At issue in the instant case is whether Riley, legal malpractice cause in a action alleging negligence during appeal is an issue of law reserved for the court or an issue of fact jury. specifically, reserved for the More we are presented with the whether a court or a should determine whether appeal would have been successful. We hold the issue is reserved to the court because whether intrinsically would have been successful prov- involves issues of law within the exclusive judiciary. Furthermore, ince of the we find that the trial court failed to resolve the issue as a matter of and that determination of the deprive litigant issue a court does not 1994] Charles Reinhart Co v Winiemko Opinion by Riley, by jury. right Thus, the decision reverse to we trial Appeals the case to remand the Court of proceedings with in accordance trial court for opinion.

i brought suit William Kauffman Dr. and Mrs. Company,1 against plaintiff The Reinhart Charles County, firm in Washtenaw real estate located a Michigan. alleged plaintiff The Kauffmans conveying improperly instrument altered an had reserving purchased by they had real estate previously July utility In easement. undisclosed plaintiff jury defrauded the found that damages. $70,000 in The and awarded Kauffmans negligently conveyed plaintiff jury found also property $30,000 in and awarded an additional damages.2 deciding proceed corporate to counsel,

Plaintiff’s appeal, attorney Ronald on retained another with September they Winiemko as counsel. C. that the the case and determined discussed for awards on the claim that would focus negligence Al- cumulative. were fraud both appeal, though timely he failed filed Winiemko formally timely file answer his his brief to Accordingly, adversary’s for motion dismissal.3 appeal. Appeals Winiemko dismissed Court of rehearing timely file a motion for failed also Kauffmans, dealings The At time of their initial with Company & Reinhart known as Caldwell Reinhart was Company. Although had breached its also found that Kauffmans, damages count. no on that it awarded contract with attorney, Winiemko, correspondence through Kauffmans’ Yet, filing disputed he fail to for his brief. did the deadline dismissal, formally respond he also failed meet to the motion computed deadline. his own 444 Mich Opinion by Riley, J. 7.215(H).4 pursuant Furthermore, to MCR he failed respond repeated requests plaintiff’s corpo- to to progress rate counsel to inform him of the of the appeal. September plaintiff

Thus, filed the in- against stant action firm, Winiemko and his law averring Bell, Winiemko, P.C., Hertler & that professional malpractice Winiemko had committed by, irretrievably losing plaintiff’s right alia, inter appeal. alleged to Plaintiff that but for Winiemko’s negligence, plaintiff would have succeeded in its appeal underlying litigation. Furthermore, plaintiff alleged opportunity that it was denied the negotiate a more settlement,5 favorable and was proceeding confronted with a license revocation begun by the Kauffmans.6 summary

Winiemko filed several motions for 2.116(C)(8) disposition pursuant contending (10), to MCR present prima did not facie case because no cause could be proven; peal, argued underlying ap- Winiemko

as a matter of could not have succeeded.7 posited attorney Winiemko that because the trial objected pertinent had not to the instructions, appeal prevailed, could not have and that any attorney event the tactics utilized the trial any possibility appeal. foreclosed of a successful eventually Winiemko submitted a motion for reinstatement appeal, Appeals but the Court of delayed considered the motion as a rehearing rejected motion for it. argued Court, Because was not before this we do not address alleged damages arising whether opportunity negoti from the ate a more favorable settlement are to be decided a court as a matter of law or the factfinder. complaints Dr. Kauffman seeking filed two related administrative plaintiff’s the termination of license on the basis of fraud. Plaintiff $38,000. settled those matters for summary disposition trial, Defendant filed a motion for before plaintiff’s opening statement, motion for a directed verdict after summary disposition plaintiff rested, motion for after and a motion summary disposition after he rested. 1994] Co v Winiemko Reinhart Finding issue, the trial court permitted motions Winiemko’s denied plaintiff’s legal testify experts jury found Winiemko have succeeded. would guilty professional and breach damages. contract, and awarded d.8 Appeals It ruled that affirme The Court malpractice legal proximate suit is a in a cause appel question in an fact,9 found that even questions malpractice that were action "issues late ques underlying . . . case become in the of law malpractice Thus, the action.10 fact” in the tions of charging appellate "[i]n held that Court malpractice, for the trier of fact would, more court whether likely reasonable appellant granted not, in the than have underlying case some relief.”11 granted June on

This Court leave 1993.12

ii A recently opinion Court A unanimous of this legal malpractice of a action defined elements Michigan: (1) attorney-client relation- the existence of an ship;

(2) representation of negligence legal plaintiff;

(3) proximate cause of negligence that the was injury; and_ (1992). App 8 196 Mich 492 NW2d 505 9 Id. 113-114. at Id. 115. 11 Id.

[12] 442 Mich 925. Mich (4) injury alleged. the fact and extent of the Gurwin,

[Coleman 435 59, 63; 443 Mich 503 NW2d (1993).] plaintiff actions, As in other tort has the proving burden of all the elements of the suit prevail. Id. Often the most troublesome element of a any action is cause. inAs prove proximate plaintiff action, tort a cause a legal malpractice action must establish that the defendant’s action was a cause fact of the injury.13 Hence, claimed "must show attorney’s alleged malpractice, that but for the he would have been successful added).14 (emphasis suit.” Id. words, In other "' seeking recovery attorney "the client from his proving is faced with the difficult task of two cases ’ ” single proceeding.” quoting within a Id. at App Industries, Grant, Basic Food Inc v (1981), quoting 685, 691; 310 NW2d 45 ALR2d p permit 5, § 2, 10. To hold otherwise would a 13 of, aspect distinguishable from, Causation fact is one and legal 439; supplemental proximate Alfono, Moning 425, cause. v 400 Mich 438- (1977), (1977), 254 NW2d 759 reh den 401 Mich 951 (1978). question order 402 Mich 958 of fact as to whether the defendant’s conduct was a cause of the plaintiff’s injury whether the defendant should be separated question must be from the as to legally responsible for the plaintiff’s 273, (5th injury. Keeton, ed), 42, pp Prosser & Torts 272- § Legal 279. foreseeability. cause is often stated in terms of Comm, Highway 46, 61-62; See McMillan v State 426 Mich 393 (1986). Pierce, NW2d 332 App v [Richards 316- (1987).] 412 NW2d 725 14 argue proven Defendants plaintiff that cause in fact is if a can attorney negligently show that the negligence acted and that his appeal, proximate resulted in the dismissal of the may but that cause proven if appeal the trial court rules that the would have Yet, been successful. appropriately the is more considered an issue of cause in fact because no causation in fact occurred if the underlying appeal event, any would have failed. In whether the issue categorized i.e., is proximate, as an issue of legal cause in fact or causation, is irrelevant to the resolution of the instant case. 587

1994] v Reinhart Co Winiemko specula- of on the basis liable to find a defendant Although conjecture. the 65.15 Mich tion universally concept not is a suit” applies "suit within alleged negligent applicable, it where the attorney to the failure of involves conduct properly appeal. pursue Id.16_ Thus, of cause to the essential determination appellate ability plaintiff’s the the to show that action is issue: have addressed the court even would appellate Specifically, plaintiff that an court the must show appel- appeal, jurisdiction the the to hear have had would granted reviеw discre- have review when late court would judgment have tionary, court’s would been and that trial malpractice: [Comment, Attorney Problems modified on review. associated with cases, failure-to-appeal Buffalo L R (1982).] (3d ed), 24.39, Smith, Legal Malpractice p 538 § & See also Mallen ("If right grant appellate but not review as matter court does persuade judge petition, only upon the trial must importance public or that court was sufficient the issue involved significant apparent that the would so error was have granted hearing”). agreed originally suggested that because Winiemko Plaintiff has Appeals represented appeal Court of would have to file the that the that the merit, arguing precluded appeal possessed from he should be appeal have failed. would noted, As at least one court has however, attorney irony, apparent at is that now [t]he previous tempts would have that his client’s show accepted pursuing though may duty he have failed even This, competent people though, practice where it. have Higgins, subject. the same different views on [Jablonski (1983).] 8,11; NE2d 1296 6 Ohio Misc 2d determining obligations by long As as Winiemko fulfilled his ethical punished appeal, may in this suit for his he not be the merits all, vanquished every advocacy. one has one victorious and After suit Yet, losing attorneys punish the ethical viola- party. tions for with we do Indeed, bring failing if this Court meritorious suits. strong freezing adopted sweep pursuing plaintiff, suggestion wind would rightfully through system: attorneys fear judicial being novel, complicated, to avoid haunted or difficult cases Yet, attorney malpractice subsequent advocacy actions. their permit Michigan Conduct were intended to Rules of Professional argument good-faith lawyer may for an just advocacy: "A offer such modification, existing extension, To law.” MRPC 3.1. or reversal of 444 Mich alleging negligence In a action appeal prove aspects in an two must attorney’s negli- causation fact: whether gence caused loss or result of the unfavorable appeal, and whether the loss or unfavorable result appeal turn caused a loss or unfavorable underlying litigation. result Mallen & (3d Legal Malpractice ed), p Smith, §24.39, 538.17 jury as Whether the court a matter of law or the aspects as issue of fact these determines proximate cause is the issue the instant case.18

B urges Plaintiff this Court to affirm the Court of Appeals holding appeal that whether an would have been successful an issue of fact for the legal malpractice ain cause in because fact is professional malprac- issue for the in other suggests tice cases. Plaintiff to hold otherwise simply ruling by an elitist this Court to protect attorneys rigors jury sys- from suggest Defendants, hand, tem. on the other the trial court is vested with the exclusive author- ity to determine the threshold issue whether the possessed appeal legal merit as a com- ponent cause because the issue is inherently one of law.19_ pursued, permit ensure that these ideals are we must Winiemko to posit his full defense. also, e.g., Mining Hughes, See App Rosebud & Mill Co v 21 Colo 247; (ND (1912); Homes, Rodgers, 121 P 674 Supp Better Inc v 195 F 1961). Va,W negligence Whether Winiemko’s caused the loss of the not contested because defendants admit that Winiemko faded to timely file his his brief and omission led to dismissal of the appeal. parties Ort, cite Cornelissen v 93 NW 617 (1903), dispositive reading of this case in their favor. A careful case, however, possesses any authority reveals if little 589

1994] v Winiemko Reinhart Co Opinion Riley, J. premise trying the under the basic "Since prove should lying what the result is to action identifying principle guiding been, the have issues the same classifi to utilize and fact is of law applied in the under have been as should cations p supra, Smith, §27.10, lying 2 & Mallen case.” appeal of an lost because Thus, an whether 652.20 attorney’s properly negligence if succeeded would have pursued court because for the is an issue originally appeal of the resolution e.g., See, ‍‌‌​‌​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌‌​‌‌‌‌​‌​‍of law. on a decision have rested would 567, 574-575; 571 P2d Smith, 280 Or v Chocktoot (1977). exception, appeals are rare With 1255 law, not fact.21 as matters of on and resolved based Demill v (1881); 410; 8 NW 79 Moffat, 45 Mich Enterprise Foundry Co, 159; 97 v Keiser (1959). appellate Thus, 737 an NW2d action success regarding presents an issue of law underlying appeal proxi its within analysis. mate cause Supreme has Court

The Texas reаsoned:_ file hand, the malpractice counsel had failed address the issue liable opinion (1977). persuasive question presented (Docket sive obiter presented by determinations. the which review legal separate Although alleged negligence This See also Chocktoot issue and factual among appeal. No. per these elements the few unclear references dicta. presented. appeal value because facts action, the Court of 102741), curiam of an action does The case See, plaintiff’s elements, to is all but an issue of would have been similar to the instant addressed timely e.g., lower tribunal of an involve, and to instruct is, Appeals in Cornelissen, Smith, Chocktoot, which it would be three Court file an attorney best, cause, the issue in the instant nor does an attorneys appeal. ambiguous regarding unpublished made Whipple supra Appeals, in an earlier case involved de Or resolved necessary the Court addressed a first case, novo, focused The Court did jury to for the failure at 575 opinion impression. the issue are in which the v 574-575; court is decided or other situations accordingly”). upon purely factual Proctor, unpublished for the trial court opinion. mostly on (holding resolve, case, May empowered 571 P2d 1255 the issue not to Thus, plaintiff’s unpersua- that "[i]f the issue it has who properly directly legal both was no at Mich appeal of whether an have depends analysis been successful on an of the law procedural plaintiff’s] petition and the rules. [The make that question should this determination as a require

of fact would sit as briefs, appellate judges, review the trial record and and decide whether the trial court committed judge clearly error. A reversible a better position Resolving to make this determination. exclusively issues on is an area within province the judges of .... v Wiesen- [Millhouse 626, thal, (Tex, 1989).] 775 628 SW2d Although juries may often decide the issue of proximate nonappellate malpractice cause practice suits,22 the of nature mandates 22 malpractice exclusively If the action is not one focused on the appellate process occurring during litigation cause 390 malpractice or of issues but is focused on negotiations, proximate or settlement then Reiter, 391, Ignotov 399; is an often issue of fact. Cf. v 425 Mich (1986) (Levin, J.); Espinoza Thomas, App NW2d v 110, (1991). 124; 472 NW2d 16 Washington Supreme The Court has illustrated: principles proof legal malpractice The of and causation usually ordinary negligence action do not differ from an instance, attorney . case. . . For when an error makes an trial, during subsequent malprac- the causation issue in the relatively straightforward. hearing tice action is The trial court malpractice merely retries, time,

the claim or tries for the first the client’s cause of action which the client asserts lost or was compromised by attorney’s negligence, the of the trier fact whether decides mishandling. the client would have fared better but for such appropriate ... In a case it such to allow the [Daugert Pappas, trier of fact to decide cause. v 254, 257-258; (1985).] Wash 2d 704 P2d 600 (Ariz Phillips 415, 421; Clancy, App, See also v 152 Ariz 733 P2d 300 1986) ("In malpractice, attorney’s negligence trial level either merits, precluded prevented a trial on the or client’s from being presented professional according If standards. judge jury, sitting suit would have been tried before a a as a trier fact, we conclude that case should disputed pertaining original suit”); decide the Mallen & factual issues to the Smith, 27.7, supra, p ("Normally, legal malprac- in a § action, negligence, proximate tice damage issues of cause and upon must be decided the trier fact based the recreated evi- Co v Reinhart Winiemko 1994] Washington The of the issue. resolution judicial explained: Court has Supreme involving alleged failure attorney’s cases in- . . cause in fact perfect . [t]he the frustrated client would whether quiry becomes timely had attorney if successful have been filed the . . . appeal. normally this issue would determination of The province Underlying of the jury. be within the sole however, questions bearing inquiry, are broad re- legal analysis. The whether determination granted and whether view have been judg- have received more favorable client would the law and the depends analysis on an ment [Daugert Pappas, Appеllate Procedure. Rules 254, (1985).] 2d 704 P2d Wash Michigan vests exclusively Constitution of justice in one power” of the state court "judicial Court, the Court composed Supreme original jurisdiction. the courts of Appeals, Michigan, judicial 1. In Const art § power to determine includes exclusive power Cooley noted: the law. Justice has apply upon protect rights adjudicate the and "To citizens, and to that end interests construe and individual laws, peculiar prov the apply the department.” v judicial ince of the [Johnson Inc, Lines, Freight 357 Mich Kramer Bros (1959), quoting Cooley, 586 Constitu 98 NW2d (7th ed), p tional Limitations 132.][23] States Justice Marshall United Chief trial, jury is instructed the same as dence. In a action”). should have been instructed 23 CJS, Johnson, supra quoting 16 Constitutional See also (the system Law, 144, p our role of the court in constitutional § " rights parties to determine the the law is and 'declare what ”). conformably thereto’ Mich Opinion by Riley, J. Supreme similarly expounded Court in the land- Marbury mark case v Madison: emphatically province duty It is judicial department say what the law is. Those apply particular cases, who the rule to must of expound necessity laws conflict with each interpret If rule. two other, the courts must operation [Marbury decide on the of each. v Madi Cranch) (1 (1803).[[24] son, 137,177; 5 US 2 L Ed 60 permit expert Indeed, "courts will not even wit- testimony ness on a of . . . law because responsibility judge it is the exclusive of the trial interpret applicable People to find and law.” (1979).25 Lyons, App 35, 46; 93 Mich 285 NW2d 788 Thus, case, in the instant because the issue underlying appeal whether would have suc- by legal principle, ceeded is resolved the issue is jury. Simply court, one for the not the because presented unique procedural issues of law are in a posture governing does not eviscerate this basic principle Michigan jurisprudence.26

Noting compli- the field of law is no more engineering cated than the fields medicine or juries professional and that determine causation in malpractice dealing plain- fields, cases with those presented tiff contends that issues in the instant readily jury. case are resolved The dissent- ing opinion in Millhouse concurs:_ addressing judi While Chief Justice Marshall was the federal ciary, powers Michigan’s judiciary regard in this are judiciary questioned. modeled after the federal is not Portus, 799, 802; App See also In re 371 NW2d 871 (1985) ("Experts may testify meaning as to the of the law or a term”). dissent, appellate attorney As noted causation in an malpractice Hence, e.g., action asks "what the law was.” Post at 614. intervening if a statute has been modified in the time between the underlying appeal provisions action, malpractice original statutory and the apply action. Co v Winiemko Reinhart

1994] Riley, J. complicated is no more of law The field medicine, chemistry, than the fields of obscure or engineering, construction, any of biology, in- negligence professions. In all cases myriad of is volving professions, the issue of causation these no The rule should be jury. to the submitted Further, attorneys. no less—for different —and upon rule is entitled to say that question of causation the court of in an as a matter law gives appear- legal malpractice case appellate ance that the bar. protecting position is in the of the bench being attorney should privilege The The immunity jury system. it carry from with equipped attorney-judges are better argument that is appellate legal cases to decide impanel physicians do not elitist. We decide a malpractice case. medical 628-629.] [Id. Yet, assump- is not based on the reasoning our deciding incapable correctly that a is tion expert through before it presented issue of law including complexity, of extreme testimony. Issues are engineering, medicine and matters of intricate Rather, holding our is to juries. often submitted premise province on the based is to determine system in our court constitutional law, posture any its regardless procedural determina- court makes given case. skills special may not only any tion because it is a court of law its also but because possess, system and justice constitutional order role what the law is.27 is to declare court decide Moreover, requires justice If case. the instant the issues law no matter how asserts that fact "[t]he The dissent adduced, applied of causa- fact to reach a detеrmination must be province unquestionably application task within Such an tion. Yet, always summary disposition jury.” has Post at 614-615. of a right party away jury. A has no from the issues of fact and law taken Mich Opinion Riley, J. plaintiff’s position accepted, juries then errant may find a defendant liable on the basis of an interpretation law, incorrect and that find- ing may judicial become immune from effective App Hall, In Martin v review. 424; plaintiff Cal 3d 421- (1971), Rptr instance, 97 Cal the legal against filed a action attorney was who retained to defend him a jury attorney criminal action. The should have and awarded the found argued jeopardy the issue of double

plaintiff damages. The Court of Appeals reversed, as a matter of some of the jury’s findings they because were inconsistent with jury the erroneously words, state of the law—in other had Jeopardy concluded that the Double precluded Clause would have convictions. some of the criminal accepted If court had plaintiff’s suggestions, then the defendant would subjected liability have been because of errone- legal reasoning. jury’s Furthermore, ous dict, ver- findings subject fact, would be to stricter effectively standards of review that would limit an ability jury’s court’s to reverse a errant findings. rulings Unlike a trial court’s of law that summary disposi- to reach a if he fails to meet the standards of Hence, may tion. summary disposition because the issue of causation be resolved on actions, attorney appellate malpractice Furthermore, jury. finding issue need not reach a out an 622. does not "carve exception attorneys only jury system.” Post at —for —from Every professional malpractice indeed, every brought case— any summary disposition before before it court —must overcome the hurdle of may jury. reach a permitting Nor does a trial court to resolve issues of causation in any involving manner reduce such cases to those not an actual " controversy. case, genuine, In the instant there exists 'a live contro- versy persons asserting between interested adverse claims ....’” General, Attorney 554, 589; Post at 616. See Shavers v (1978). all, presenting NW2d 72 After and a defendant are contrary ongoing attorney malрractice claims in an action. Whether 'genuine, "the itself. . . live involve[s] ” controversy,’ post added), (emphasis issue, at 617 is not but genuine controversy. Clearly whether does. this case involves a and live 1994] Co v Reinhart Winiemko gener- jury’s may novo, de verdict be reviewed pursuant may ally only to the stan- reversed disposition28 judgment summary or not- dards withstanding verdict.29 engi- analogy

Furthermore, to medical and neering inapposite. of science” If "laws cases is particular result with which reasonable dictate persons disposi- disagree, summary may then probabili- appropriate only when scientific tion is ties conflict does medicine — Unlike resolve issue.30 issues are not science, however, probabilities. conflicting The law is resolved only exists, one result akin to mathematics: more it appel- only all, an need be deduced. After when jurisprudence by state court binds late resolving Contrary legal issue, it that answer. a has deduced assertions, are no to the dissent’s there guesswork. conflicting probabilities, summary Hence, and no regarding legal disposition issue is always appropriate probabilities no of scientific because clash in

exists. Causation a medical accounting usually malpractice is issue action predetermined there is no rule of fact because in man that determines causation discoverable suggests dissent that in the instant such cases. The case, success- whether the would have been Indeed, is the dissent admits that ful unknown. holding, guessing jury simply "the is under its might principle applied by have been what law appellate Guesswork, at 618. how- court.” Post simply ever, deter- not the correct method to is legal consequences attorney’s of an fail- mine the appeal. appellate perfect to The outcome of ure predetermined on the basis cases is decided 28 2.116(C)(8) (10). MCR 29MCR 2.610. 30 result, minds reach one causation Where reasonable can Inc, Enterprises, Nabkey Mich question 400; v Loeks law. Jack Hood, 83, 89; (1965); App Accetola NW2d Smith, 27.10, p (1967); supra, 652. 2 Mallen & §

NW2d 210 Mich principles simply disputed of law.31 There is no respect issue of fact for a to decide with legal how a issue would have been decidеd on words, appeal. permitted In other is not finding decide causation on the basis of a court would have decided the issues incorrectly. Oregon Supreme regarding Court elaborated

this issue: very or, prediction, There is a famous view that it, put prophecies

Justice Holmes the of what "[t]he fact,” courts will do is all that is meant might imply law. Such a view of law probable legal ruling only done case, being in the earlier prediction of what the court would have fact, jury’s should be left to the belief competing prophecies expert of counsel and might witnesses. imply Or the task of predicting ruling, definition, being "law” belongs the court case. But we do not believe that the issue of causation in the malpractice retrospective prediction the actual behavior of a court on an issue of any more than that of a factfinder of an issue of object fact. The in the second trial is not to recon- struct done, actually what trial have [the court] judges Appeals or what the of the Court of Rather, actually appeal. have done on with respect case, to an issue of law the earlier issue case is what the outcome should have been if the properly issue had been presented, under the law as was at the time or 31 Michigan Michigan The source of law is derived from the Constitutions, statutes, Michigan federal and federal and the common mean, however, principles law. This does not that those are immuta law, daily: statutory The ble. modifications, law alters new case additions and commonplace. and constitutional amendments are Thus, separated by the law evolves and similar factual situations time legal precedent give may legal and core of principles rise to different outcomes. The legal however, making, apply newly arising decision is to those neutrally. of law 597

1994] Charles Reinhart Co Winiemko argued to [Chock- convincingly be. could have been toot, supra at 573.] legal not have clear course, issues do some Of especially in the of context This is so answers.32 legal presented courts, and before issues the courts of last for those in more true еven simply case is Nevertheless, "a because resort. that "it is indeterminate.” not hard” does mean Critiquing indeterminacy Solum, crisis: On (1987). dogma, 462, 475 54 U Chi LR critical applica- by a reasoned of law are resolved Issues particular principles to a factual of neutral tion particular the resolution of situation.33 That easily Nevertheless, majority legal of are the vast controversies See, e.g., Kress, legal possess unquestionable outcomes. decided (1989) ("most 283, 324, legal indeterminacy, Legal 77 Cal LR predictable”; open highly are to serious doubt and results are governed law, garden variety "[wjhen determinacy predominates. implausible to focus shifted actions easy pervasiveness of cases makes it The Schauer, indeterminacy”); Easy is radical there Solum, cases, Critiquing (1985); indeterminacy crisis: 58 S Cal L R 399 On (1987) 462, 472, dogma, 491-495 54 U Chi LR critical deconstruction, abound”); Hegland, Goodbye ("easy L 58 S to Cal cases (1985) ("not cases, but, 1203, 1205, easy there as a are R exists”) ("many appellate general matter, decisionmaking principled Sartorius, Bayes’ sign uncertainty”); of decisions show no doctrinal discretion, 1269, theorem, cases, judicial 11 Ga LR hard (1977) ("There cases”). majority uniquely in the of is a correct result vast dissenting Indeed, only a studies small number of reveal words, Kress, supra "easy opinions. at 324. In other cases” are pervasive. Id. at 296-297. judge bring about is not function of the some desirable "It right objectively to find decision within state of affairs but rules, judicial general independently system system that exists law, Barry, theory R activity 285-286 L itself.” classical Cornell (1988). Wechsler, principles neutral of consti- See also Toward (the (1959) "special duty R L courts tutional [is] courts 73 Harv issues”). Thus, judge by principles to all the neutral addressed obliged entirely principled. principled A "are —or are be— respect to all ... on with is one rests reasons decision case, generality in their and their neutral- reasons that issues any involved.” at 19. ity result Id. transcend immediate reasoning: explained process principled Pound Roscoe up precepts, considering is made sense we are

Law the 444 Mich Opinion Riley, J. litigation may appear at the outset of not obvious the notion that a or an does nоt belie principled application author- and neutral principled ity will in one result.34 While result ambiguities they exist, the law are resolved within predilections judges, not of individual but application legal principles. by a reasoned That conflicting opinions exist within the dissents and legal system reveal that some same of the interpretation members disagree application

judiciary over the or guiding principles, not that a achievable, correct result is not or has not been achieved.35 technique, body precepts, and ideals: A of authoritative devel- oped technique applied by light and or authoritative background on the in oping of authoritative traditional ideals. There is any developed legal system technique a traditional of devel- applying legal precepts by precepts which those are out, extended, restricted, adapted exigencies eked administration of applying authoritative as and no less to the justice. technique developing This craft, precepts, lawyer’s quite the art of the important precepts than the them- Pound, Jurisprudence, p

selves. [2 § 107.] 34 Putting appeals pursued aside those which are for collateral reasons, negotiation delay, probably such as for it true they good arguments that both sides believe have and at least not, however, winning. prove some chance of This does rule rather, deluded, indeterminacy; particularly land, proves easily that one is highly competitive litigation. [Heg world of supra n 32 at 1214.] 35Professor Dworkin illustrates: exchange promises If it is true that an of and that someone sued in tort either does or does contract, not constitute a valid either is or is not of a crime either is damages, and that liable someone accused guilty, every or is then at least case in dispositive right may which these issues are has a answer. It is, course, right uncertain and controversial what the answer

just as it is uncertain and controversial whether Richard III princes. murdered the tainty more than it It would not follow from that uncer- right legal question, any that there is no answer to the uncertainty seems follow from the about right Richard that there is no аnswer to the whether princes. [Dworkin, Principle he A murdered the Matter of Co v Charles Reinhart Winiemko 1994] plaintiff’s Furthermore, is view to embrace denigration the rule Under- of of law.36 to invite implicit assumption plaintiff’s position lying is the applica- will differ in their courts that legal to the law that no correct answer tion of and concede exists —otherwise must issues in the instant the issue of cause that reason- should be taken from because disagree legal out- on the able minds could plaintiff’s position Thus, the notion rests on come. applying jurisdiction that courts the same may, principles for of law to same facts sáme varying regarding factors, and unidentified differ legal purely decisions, and that the outcome Thus, differences are inherent the law. such Press, 1985), (Cambridge, Cohen, ed, p Mass: 120. See also Harvard Univ Jurisprudence Contemporary Ronald and Dworkin Allanheld, (Totowa, 1984).] NJ: & Rowman 36 Essentially, says requirements rule of law persons justice justice requires know what must take a form such can they act abuses them before and can detect charged enforcement. If the formal those with law to, procedural requirements rule of adhered law are persons "good” properly to act can know what those who seek knowledge they proper their actions are. this can order With others, peaceful thereby achieving with those of actions society . . . with a minimum of conflict. Moreover, provided by procedural the formal and standards problems law inherent in the adminis- the rule of tration of address two justice: problems of error and en- enforcement [Barnett, abuse. Forward: Unenumerated constitu- forcement law, Policy rights and 14 Harv J L & Pub tional 615-616 the rule of (1991).] explained importance of rule of law: Justice Scalia justice subject Rudimentary requires the law those knowing prescribes. what it ... As have the means of must laws have become increasingly can less the law U Chi numerous, people and as have become more courts, ready punish we their adversaries regarding protracted uncertainty what and less afford rules, may [Scalia, law mean. The rule of as a law (1989).] L R application neutral not determined law is repug- hyрothesis principles. guiding is Such an making law. and the rule of decision nant declared, "in America The Law Thomas Paine As King governments King. in absolute For as ought to be the law in free countries so ought King; are a to be no other.”37 We and there Any suggestion nation, Court, ruled law. might deviate from or others that pure application this Court guiding princi- its of the law and contrary ples funda- to the is unwarranted adjudication. principles Furthermore, mental wholeheartedly rejected hypothesis must be legiti- very of the law’s at the core strikes legitimate only rulings macy. are The of this Court application primarily long they rely the of on as originating principles constitu- from the neutral tion, statutes, regulations, or the common law. distinguished Hence, from other forms the "law is decisionmaking public not of or authoritative outcome-determining heavy rules laid its use of procedures advance, the use of down in but legal decisionmaking designed is to ensure imposition personal merely will the ad hoc of not practice politics.” Schauer, Rules and the or the of Policy JL rule of 14 Harv & Pub 645, 657 Although may to the rule of law be said (1991).38 37 (New Library, The Thomas Paine York: New American Essential 1776). 1969), 49, Paine, (Philadelphia: p quoting Sense Common Supreme Court ex- Justice Marshall of the United States Chief pressed is he wrote that the United States similar sentiments when laws, supra government Marbury, at 163. See "a of and not of men.” 592, Co, 597; Rapids Anway 179 350 R 211 Mich NW also (1920) ("We v Grand laws, operating government of under a written are still a Constitution”). exclusively judicial, power on this court "The conferred any required to exercise other.” it cannot be or authorized [Anway, supra n 37 at 602. Citation omitted.] Legislature, through people, the formulate the constitution or 1994] Reinhart Co v Winiemko prin- ideal, this fundamental we do violence to encouraging disregard. ciple by its holding traditionally do elitist. Juries Nor is this of outcome con- not decide the law the not courts. To maintain flicts. Juries are jury, of the must role the the traditional jury may factfinder; determine what remain may happened, how, when, it resolve but questions of law The determination itself. prerogative— by the is not a new elitist law courts contrary, it of the existence is vindication vеry purpose judiciary. Indeed, it is of the the judiciary.39 reasoning overwhelmingly em-

Moreover, jurisdictions. Indeed, at least our sister braced jurisdictions directly addressing the issue nineteen reported law, and found to be one of no have Furthermore, held have otherwise.40 decisions Hence, Michigan guiding principles if constitu- this Court. —not " wisdom, act, necessity, empowered propriety, tionally util- '[t]he legisla- legislation exclusively ity, expediency are matters for ” Comm, 290, Liquor Control Black tive determination.’ Ass’n, (1948), quoting Racing Rohan v Detroit 35 NW2d 269 (1946). words, 326, 347; function of In other Mich this Court NW2d policy, it as in law. is not but to enforce embodied to create 47, See, Penguin Madison, Papers, Kramnick, (England: e.g., ed Federalist No Books, published 1788]),pp [originally 302-305. credibility appears concerned about While dissent experts— legal profession proffering how laymen, spectacle of the battle of contradictory speculative theories about inconsistent and (or should) Appeals inevita the Court have ruled —that encourage disrespect bly for both flows from dissent could profession law. Cf. In re Air Crash Disaster at New rule and 1986). (CA La, Orleans, of an 1233-1234 The role 795 F2d course, expert, fact to the if the of to "assist the trier of understand is . . . .” MRE 702. But or to a fact issue evidence dissent’s dence” determine testimony regarding prevail, expert’s "evi an view to were simply opinion the his what law should be. be about easily an cases too become whatever ultimate issue in such can "[T]he Disaster, ‍‌‌​‌​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌‌​‌‌‌‌​‌​‍ supra 1233. A expert says ... .” Air at witness it is Crash therefore, permitted of an jury, to decide a case on the basis would be however, justice, system conjecture speculation. of expert’s damages may In our speculation of law are on issues not be based resolved courts. 40 ("Resolving legal appeal Phillips, supra is 421 issues on n 22 at 444 Mich 579 602 Accordingly, province judges. where of for the exclusive reserved issues possible trial 683; proceeding hinge upon legal malpractice the action in a of causation by the appeal, to be resolved such issues are outcome of an 680, Sanchez, App law”); 256 Cal 2d judge 64 questions v of Croce (1967) judge (finding trial in Rptr of the "no error 448 Cal original appeal of her the issue whether first on reversal of Ryan, resulted would have v No. 717307] case [Croce to the judgment. could not be submitted This issue was one which the 294, Evans, 295; App 73 411 SE2d jury”); 201 Ga & Block v Fine (1991) ("a appeal to this Court would of whether an determination law, exclusively question within the of is a have been successful province App Gaines, Ass’n, Top Ill judges”); Chicago Inc v 49 Cab of Red (1977) (affirming 332, 333; the trial court’s 328 3d 364 NE2d plaintiff’s of law because "[t]he action as matter dismissal of the it would have been the to establish burden is on appeal appears prosecution . . no the . . of [I]t successful argument here”); any proposition support such advanced to has been 1989) (CA 7, Psimos, 1277, (applying Indiana 882 F2d 1281 Jones v claim, law) ("When attorney malpractice analyzing the merits of an ought have put court that to itself into the role of the the court must underlying of the missed its chance because claim but reviewed attorney’s negligence Callahan, Dings perfecting appeal”); 4 v (1979) (affirming 36, 38; App the trial court’s 602 P2d 542 Kan 2d plaintiff’s matter of law because action as a dismissal of. success”); probability appeal underlying to reflect a lost "fail[ed] Brian, Simon, Cabot, Peragine, Smith & Red v Cabot & Forbes Co law) 1983) (ED 371, La, fearn, (applying Supp Louisiana F 374 law, question (holding determination "raises that this causation court, fact, jury, province not the exclusive within 162, Weiss, 170; decide”); App 524 NE2d 1381 26 Mass Romano v (1988) ("at point dispute one of is least in instances where instruct instructed should the finder of fact should be [or settled himself] permitted view of is, subject applicable and should not what the law premised finding on an erroneous to return a or verdict (Minn 675, Grant, App, law”); Hyduke v NW2d 1984) appeal (finding successful is would have been that "whether qualified, way jury a appeal”); question in a of law” because court a not, "[a] probable outcome of an determine the merits and the (1982) ("The Scelsi, 115, 118; 115 Misc 2d 453 NYS2d Katsaris v Judge ruling would have done 'as App grant court a case must determine what on such Maiorano, ”); v 76 Ohio an issue of law’ Rinehart (1991) (affirming 413, 420-422; trial court’s 3d NE2d attorney summary judgment in a in favor of the defendant legal malpractice defamation action was case because the Whiteside, law); v 101 Okla a matter of Suttоn meritless as 222 P 974 (1924) (dismissing malpractice it found action because judgment perfected court of the trial "if an had been Supreme necessarily Court” as a of a been affirmed must matter disputed decide a have ("Unlike Chocktoot, law); supra at 573 standard its decision care, professional cannot issue of the lawyers”); Floyd testimony disputed issue of law on the 1985) ("we (SC Kosko, App, that the hold 329 SE2d 603 1994] Charles Reinhart Co v Winiemko Opinion addressing specific directly issue, while unhesitantly jurisdictions many re- have other present legal in the issues solved litigation malpractice attorney if actions proximate Ac- for the court.41 was an issue cause agree knowledged legal commentators also appeal successful had would have been of whether the Millhouse, law”); supra question of instance a heard is been ("in legal malpractice appellate the determination 628 causation is a a case of Kaestner, 169, law”); 243 Va question v Goldstein (1992) (holding appropriate standard of "that the 413 347 SE2d prove can is whether the client of this nature review in an action that, filed, judgment timely appeal of law the as a matter been had judgment entered in his against reversed and him have been would 708, 712-713; Ferguson, App P2d favor”); 735 46 Wash Halvorsen v (1986) negligence ("Although questions causa- 675 tion are malpractice instances”); legal unique jury, usually characteristics of for inapposite general may rule certain render the action (a Inc, may Homes, supra n 17 at 97 Better timely appeal prove damages that a "where he can recover have resulted entry judgment against him and in a reversal of law”); Accident Fire & judgment a matter of General in his favor as 25, 27; Corp, Cosgrove, 42 155 257 Wis NW2d Ltd v Life Assurance (1950) ("Both agree parties in this case the sole appellant respondent’s damages as a result of flowed to whether failure to settle obviously question exceptions. This is the bill of summary judgment”); disposed cf. properly of on motion law 1979) (CA 9, 1273, (noting Meikle, that a 597 F2d 1294 Kidwell v any judge issues that would have should decide "federal trial hypothetical in the Rule state suit as a matter of law arisen (15 Exchange 1934 [promulgated Act of under the Securities 10b-5 suit”). Horton, 944, 949-950; 78j[b])] 96 But see Selsnick v Nev USC (Gunderson, J., dissenting (1980) concurring part 1256 620 P2d experts may part) (implicitly supporting decide the notion that in proximate cause). assertion, majority did not Contrary in Selsnick to the dissent’s malpractice action is in an that the issue of causation hold fact, such an issue. that standard of conduct was but an issue Furthermore, these cases is of some of the dissent’s dismissal actually expressly simply case either announced unfounded. Each appellate attorney case is an in an that causation found issue of law for the courts to decide. 41 Pillers, PC, Pillers, See, 573 e.g., 404 NW2d Kunau v Pillers & (Fla 948, 1989); Braxton, App, (Iowa, 1987); 547 So 2d v Oteiza (CA 1, 1971); Sullivan, A O F2d & Hurd v DiMento (CA 7, 1992); Furman, Lewis, Corp 979 F2d 546 & v Overbeck Smith (ED Pa, 1985); Bailey, Supp v Gray, McCord 612 F Gans (1980). 334, 340; App 636 F2d 204 US DC Riley, J. findWe for the courts.42 one of law the issue is persuasive. these authorities proximate cause the issue of Thus, hold that we to the court because is reserved in the instant case appeal successful have been whether intrinsically the ex- issues of law within involves province courts, and remand of the clusive legal litigation underlying presented in the issue by the trial court. for resolution

in the trial court contends that Plaintiff also proximate cause decided the issue instant case plaintiff it found that of law because as a matter argues appeal. prevailed Plaintiff on would have jury of cause fact decided the issue that finding and have identified that Winiemko should litigation underlying appealed error in the doing in a lower resulted that so would have damages Defendants counter on retrial. award jury. left to the that the issue was transcript clearly that reveals A of the review judge the under- ruled that the issue whether lying was one for would have been successful suit Although jury held the court to determine.43 ("The Smith, 24.39, supra, p decision about 537. § See Mallen & proper petition can be made must and the the trial resolution of a law, transcript upon judge review of as an issue of based action, counsel, argument underlying and record subject applied [by have been the same rules of review as should Leibson, Legal appeal”); mal motion or to the court] Special problems identifying fact practice issues of law аnd cases: (1986-87) ("This 1, expert testimony, Ky L J and in the use of Article negligence litigation suggests is best served that the law they judge each decide those issues when the trial and the action”). decided at the trial of would have instance, court, opinion regarding defendant’s in its for summary disposition pretrial found: motion case, allege prima must facie Plaintiffs To establish a

prove four elements: Co v Charles Reinhart Winiemko 1994] causation,”44 as to had met the "test that the court’s

analysis that it had deter- indicated question it, and mined that no of law was before proximate cause "can be a jury.”45Thus, the court did not address the issue as ruling and its must be reversed. a matter

iv suggests Finally, plaintiff to reverse the infringes Appeals in the instant case Court right protected by art to a trial Const attorney-client relationship; 1. The existence constituting negligence; 2. The acts relationship negligence A3. causal injuries; between the and the Plaintiff’s injury alleged. 4. The fact and extent of the Kauffman, argues no error Defendant there was damage proper the two damage awards and the verdict was because one exemplary damages award was for and the other compensatory damages. appeal, award was for Thus the even if filed, timely would not have been successful. . . . Plaintiff responds not an issue of law to be decided Court find as a matter of as this is that Defendant’s motion should be denied Court, by but should the a reasonable likelihood prevailing appeal, may judgment Court render on Plaintiff on this issue. [T|here Michigan requiring are no cases this court to rule as a matter of law on the merits of one or more of the four elements professional negligence. of a claim for ipso suit a suit doctrine does not facto call for within [T]he finding this to made as a matter of law before trial but can jury proper instructions on be a for a with damages including only of an cause and the result appeal. opportunity to . . . but the loss of the value of met the Basic Foods The Court finds that Plaintiff has [sic] damages attorney-client to as well as the test as causation acts, negligent relationship lished a and thus has estab- and claimed negligence. prima рrofessional facie case of 44 Id. 45 Id. 579 444 Mich

606 by object long has held 14.46This Court "[t]he § constitution, construction, to a written applied as adopting people intent of effect to the give is to (8th ed), p Limitations it.” 1 Cooley, Constitutional Hence, primary original).47 (emphasis 124 meaning is to examine its ascertaining source for at its ratifiers by understood meaning as plain its for Constitu Committee adoption. of its the time State, 425 Mich Secretary Reform v tional (1986). examination Often 389 NW2d interpretation proper to the necessary history therefore, constitution, may this Court " of the position in the place 'endeavour [itself] Constitution, what and ascertain framers Id., quoting time ....”’ was meant Ed, 560, 564; Detroit Bd of 118 Mich Pfeiffer v Dep’t of State also Sitz v (1898). See NW (1993). Police, 443 Mich 744, 764; 506 NW2d determining the con true when especially This is See, e.g., by jury. of trial guarantee stitutional (1867) ("The Cook, 15 Mich Tabor parties plain, preserve intention here jury, tried by controversies to have their right A Abner existed”); right then all cases where Walch, 253; 188 Wolf, Inc v NW2d (1971). " 'the Jefferson Thomas described man, which a imagined by yet anchor of its principles held to the can be government ”48 principle, embracing Strongly constitution.’ remain, right shall be waived trial shall but parties one of civil cases unless demanded all manner prescribed law. 2.509(A). 2.508(A), 27A.1352; 600.1352; MCR MCR MSA See also MCL 47 people have duty law which the "is to enforce the The Court’s made, of the constitution law which the words and not some other 481, Harding, People express.” may possibly v be made to (1884). 485; 19 NW 155 Ass’n, 48 64 Pepper’s Recreation Lucky v Columbia Park & Ned Ltd 1994] Charles Reinhart Co v Winiemko by territory very origins Michigan, from its as protected vigorously Union, the has American the by right jury.49 of a trial ancient right jury Yet, time to a trial at no has the displace any the au- fashion been understood duty judiciary thority to determine of long right legal jury For has issues. as province recognized, of been exclusive on of law has been acknowl- court to rule edged. matters supra e.g., Moffat, 411-412. See, v at Demill century Cooley summarized, over a As Justice recognized jurisprudence that a has a half of jury judge’s duty . . . "what to inform the jury left free and is,” "should law while opinion judge’s] to determine for [the unbiased evidence,” under the facts themselves whether judge, guilty verdict. of the show the instructions supra Cooley, supra Demill, at at 678. also See supra Johnson, 258. does evidence 411-412; Nor suggests or that the ratifiers framers exist long- alter this intended to the 1963 Constitution judge jury. established division between People "[n]o notes that fact, the Address prior change” constitutions. intended from was p 1961, Record, Convention Constitutional Official 3364. See also Abner right supra. Hence, Wolf, A infringed jury is in no manner to a trial proceeds to evaluate the court when legal malprac- in a merits tice action negligence pursuit alleging of the Buckley appeal. 367, 370; Gibbs, 321 Mich Cf. Jefferson, 222, (1985), quoting 225; Letter to App Md 494 A2d (1789). Thomas Paine ("No 1787, man shall be art 2 Ordinance Northwest See peers, judgment deprived liberty property, of his but his ("The 1, 1835, right land”); trial § art Const or the law 1908, 1850, 27; 6, inviolate”); art art Const § Const shall remain ("The right 2, remain”). trial shall art § Const § 444 Mich 579 Opinion by Cavanagh, C.J. (1948) ("Defendant’s appeal prop- NW2d 483 was erly dismissed ... as a matter of law. It therefore deprived cannot be said that defendant was of her right by jury”). to trial summary, question we hold that the whether

a court or a should determine whether underlying appeal would have been successful is appeal reserved to the court because whether an intrinsically would have been successful involves province issues of law within the exclusive of the judiciary. Furthermore, we find that the trial court failed to resolve law, the issue as a matter of and that a determination of the issue a court does deprive litigant right of the to a trial jury. Thus, we reverse the decision of the Court of Appeals and remand the case to the trial court for proceedings opinion. in accordance with this JJ., Mallett,

Griffin concurred with J. (concurring). general Cavanagh, C.J. I am in agreement majority’s holding analy- with the underlying appeal sis. To the extent that an in- making volves an issue of decision on the likely success of that should be reserved to early days republic, the court. Since the our legal system required jury, court, has not the procedural to declare what the law is. The unusual posture appellate malpractice of an case does not abrogation warrant of this well-established and Despite my сonstitutional mandate. basic accor- separately myself dance, I write to distance from majority’s discourse on the "rule of law” and process making. decision While schol- arly, majority’s exposition on such matters is

1994] Reinhart Co v Winiemko Boyle, J. holding case, unnecessary I this regard it as dicta.

Accordingly, respectfully concur. I (concurring). agree the result I with Boyle, treating plurality because reached represents we best of law issue as question court will decide do. The circuit can Appeals dis- If the Court of a matter law. as possible agrees, it This result is will reverse. appellate is cases if causation question of law. treated as litigation is civil and criminal aim of both The apply it. laws to truth and our to determine the by people, are run and Because our courts goal inherently In however, the is unobtainable. perfect, system words, not but we do other can. the best we typical issue, the where causation is an case allegedly might

question a car’s defec be whether steering caused an accident. tive mechanism fact —would accident issue would cause steering happened had if the not been defec have tive? The most accurate answer question

to this leading reenacting by the events could be obtained up using not a car that does have to the accident steering. type reenactment, This how defective possible usually npr, ever, expense because of neither potential danger, For those desirable. give reasons, can do is the evidence the best we expert jury let it decide. to a advice* represent can method the best we This does malpractice. alleging appellate legal with cases do would have decided At is how the courts issue * because, expert assign question simply if We cannot necessary disagreement among experts, any it is to decide there is however, do, persons may expert to restrict which which use. We skill, experience, qualified "by knowledge, testify training, experts to those . . . .” MRE 702. or education 444 Mich 579 Dissenting Opinion Brickley, legal question properly had been raised or filed. alleging malpracticе Unlike cases doctors or engineers, in which the issue is what result would produced procedure have been structure, a different appellate malpractice the issue in cases they is what the courts would have If decided. would have decided the the caused favor of plaintiff, plaintiff’s damages then the were malpractice. Letting the defendant’s a a decide how an court would answer legal question, letting however, is akin to person thinking. decide what a in the courtroom is way instances, In both a better to find out would be to ask. saying nothing

I am not the law is more judges say. unnecessary pretend than what It is very complex we have answered this ancient and appeal that relates to how an should be appeal decided. The issue in this case is how would have been if decided had been timely purpose answering filed. For the question, only agree we need the answer is judges regardless what the decided, would have might right metaphysical whether that a way they sense. The best to determine what would by framing ques- have decided is to ask them tion as one of law. (dissenting). respectfully J. I dissent Brickley,

from this Court’s decision that a determination of appellate malpractice causation question cases of is a by of law that must be decided a trial judge and not a of fact to be resolved a jury-

INTRODUCTION Foundationally, majority opinion from works apparently simple premise namely, judi- an cial that — appeals exclusively are resolved as matters of 1994] Co Winiemko Reinhart v Dissenting Brick'ley, law, law, courts decide matters fact. Because juries factfinder,”1 the must "remain while judge may majority the trial concludes legal appeal underlying would if an determine have been successful.2 reasons stated be- For the reasoning. low, to this I do not subscribe i appellate malpractice prima re- case of A facie plaintiff quires establish, alia, that inter that a negligence a cause of "was defendant’s plaintiff’s] injury. Gurwin, . . .” [the 443 Coleman (1993); 59, 63; Basic Food

Mich NW2d App 685, 690; Industries, Grant, 107 Mich Inc v (1981). mandate This "causation” 310 NW2d requires plaintiff prove that, absent the defen- negligence, plaintiff would have suc- dant’s appeal. undеrlying, never-taken ceeded Coleman, respect, supra at 63. In this charged proving what is often referred to is as with " ” Basic Food 'suit within Id. at suit.’ supra (quoting 5, § 2, Industries, at 45 ALR2d plO).

A malpractice, appellate the deter- In an action decision- of "causation” demands mination panel particular trial, decide, how a maker the ruled if the under- court should have properly lying appeal been taken defen- had 601. Ante at . an . . have succeeded ... issue "[W]hether appeal origi for the court because resolution exception, nally With rested on a decision of law. rare would have appeals at 589 majority to not fact.” Ante and resolved as matters are based on omitted). (citations exception” The "rare referenced empowered "appellate de novo court is which situation . . . .” Ante at n lower the ‍‌‌​‌​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌‌​‌‌‌‌​‌​‍facts of a tribunal review 21. 444 Mich 579 Dissenting Opinion Brickley, J. making that,

dant.3 It is notable this determina- guided by appel- tion, the decisionmaker is not late record: an court has not rendered a ruling Accordingly, underlying or decision. simply hypothetical "suit within a suit” is in- requires quiry the decisionmaker to ret- —one roactively examine the law as it existed at time of the never-taken in a suit between parties entirely legal different in an different con- inquiry I test. believe that such an concerns an issue of fact to be answered the factfinder. question applicable "What is the law?” is unmistakably important inquiries one of the most query gener- to be resolved at a trial. This —which ally requires the decisionmaker to determine what presently the law is—raises an "issue of law” properly judge. resolved the trial This is be- cause the demands an articulation of particular applied those laws that must be in the dispute presently actual before the court. This represents precedential articulation, legal therefore, properly conclusion made the trial court.4 important inquiry However, this must and does change determining when causation in an action appellate malpractice. for maker, Because the decision- retroactively trial, must look to the law (" premise trying See ante at 589 basic '[T]he ”) prove (quoting action is to what the result should have been’ Smith, (3d 652). ed), 27.10, Legal Malpractice p Mallen & § bar, judge properly the case at the trial articulated for the applicable appellate malpractice what law was trial. This guidance specifically was based on standard civil instructions for professional instructions), claims, negligence (professional malpractice SJI2d 30.01 proof determinations, for burden of and causation SJI2d (burden proof professional malpractice), 30.03 included special damages duplicated. instruction were not to These Michigan concerning legal instructions were consistent with malpractice. malpractice); case law See, (elements e.g., professional Coleman at 63 Bumpus, 337-338; see also Babbitt v 41 NW (1889). Accordingly, given presumptively the instructions were proper. 1994] Reinhart Co v Winiemko Dissenting Brickley, J. appeal would have time the

as it existed at longer important no "what taken, the issue is been instead, law?” but, "what was the is the law?” changes Simply, trial this law is examined at how appellate malpractice greatly the context an action. straight- query, important therefore, is

The forward: the time an was in existence at

What law appeal been taken? have would equally simplistic: Notably, is this the answer past any inquiry like is other search for into the legal is not a conclusion to What the law was fact. present instead, but, asser law” is a an "issue of examining properly deduced of fact tion appeal at the time an as it existed field law this assertion been taken.5 While should have trial), (i.e., present at the arises it prior inextricably past on founded is —based objectively affairs determina set of facts and query by any layperson. Further, does ble binding, prece judge that a articulate a demand 5Indeed, succinctly following hypothetical illustrates situation making namely, very point law was I that what the am the may — is; very what the law different from applicable regarding damages, Suppose it existed at law that the taken, provided underlying appeal have should been the time double (Law 1). permissible single injury recovery Now for a was trial, appeal, suppose the but before the defendant’s failure after damages changed expressly prohibit applicable law of was 2). (Law single injury recovery This second law does not for a double apply determination of causation? "applicable” purposes retroactively. law is Which is, presently 1 is Law what law Law 2 is what the law While purposes of this have taken. For been was when articulating causation, applies. process Law 1 The determination Law an "issue articulation is applicable however, legal ruling, precedential and is not does not create Rather, law,” applicable. presently because Law is i.e., past simply present fact: that the assertion 1. of law was Law rule 444 Mich Dissenting Opinion Brickley, present dential on decision state of law. simply gaze Rather, asks the decisionmaker to past identify into the answer, appeal what the law was. The

given hypothetical in the context of a place, binding that never took is neither precedential legal ruling simply nor as a —it purposes assertion of fact made for the of deter mining "causation.” remaining issue is who should answer this

"question general Michigan of fact.” The rule questions properly by that of fact are resolved jury. unpersuaded I am this rule should be simply altered because the factual issue arises in appellate malpractice accordingly, and, jury.6 would leave the determination to a B Even if one concludes that the identification of applicable underlying appeal law in an is a task properly court, entrusted to the trial this does not does)7 suggest (although majority the that there is proper jury no role for a in the "causation” deter- mination. The fact is that no matter how applied adduced, must be to fact to reach a deter- application mination of causation.8 Such an is testimony expert 6 I also believe that the of witnesses would be permissible jury making to aid the this determination. While I generally agree majority expert may People with the witnesses not " ” law,’ testify 'question (quoting on of . . . ante at 592 v Lyons, App 46; [1979]), expert testimony Mich 285 NW2d 788 concerning simply the what law was does not concern or create an but, rather, "issue of properly law” addresses an issue of fact resolved by pick among jury. regard, expert testimony merely helps jury In this was). conflicting interpretations (i.e., of fact what the law 7See n 2. 8Indeed, majority acknowledges, as the this desire to reach a result —i.e., primary purpose a determination of "causation” —is the resolving premise (" the "suit within a suit.” See ante at 589 basic '[T]he trying prove of action is to what the result ”) Smith, (quoting supra). should have been’ 2 Mallen & n 3 Reinhart Co v Winiemko

1994] by Dissenting Opinion Brickley, of province a task within unquestionably jury.9 to fact is applying law process

This hybrid This over- ignored by majority.10 mistakenly be- well-recognized distinctions disregards sight in our jury, and of judge, the roles of trial tween However, was issue justice. because system the Court majority nor discussed neither it in detail. greater I to address Appeals, decline c cau- that a determination I am also troubled malprac- the trial court sation Michigan case inconsistent with may tice case on rules. This conclusion based and court law case” "case within a fact that resolution 9Indeed, decision-making process the one that illustrates and forms the sanctioned Constitution, Michigan it is also Supreme system. jury States Court As United of our entire basis ably explained: has so premise jury system that the court state It is our a basic jury applies law the and that the law the facts as the States, finds them. Paoli United [Delli (1957); People 232, 242; 77 1 L Ed 2d 278 see also US S Ct (1967) 447, 454; (quoting Lewis, App 6 Mich NW2d 457 v Paoli).]

Delli ("Two (5th 45, Keeton, ed), p kinds of § Prosser & Torts See also questions, then, always by if reasonable are to be decided persons first, at trial— differ about them on the evidence received could and, second, applica- questions in the sense evaluative fact usual added.) facts.”). (Emphasis ... of standards to the tions 10 fact, majority neglects analysis any in its discussion In while determination, concerning opinion process: hybrid its facet of a "causation” this very application ironically concedes the existence application law resolved a reasoned Issues of are particular at principles situation. to a factual [Ante neutral Emphasis 597. added.] (the argues "pure application” majority also ante at 600 See neutral making). legitimate principles necessary decision 444 Mich 579 Dissenting Opinion Brickley, is analogous to an action for a declaratory judg- effect, ment. is being decisionmaker asked to declare the rights persons of certain in an underlying appeal place. that has never taken

Michigan requires law that declaratory judg- ments be made actual "[i]n Ins 2.605(A)(1); . . . .” MCR Allstate controversy (1993). Hayes, Co v 65; 442 Mich 499 NW2d 743 prerequisite This in purpose to the "case —similar or controversy” requirement of federal law11—is insuring aimed at of certain justiciability cases brought before Michigan courts. Id. 66 ("Prop- . erly understood . . the actual re- controversy quirement simply summary as justiciability ”). the necessary condition for judicial Impor- relief tantly, requirement has recognized been "prevent this Court [.ing] a court from deciding ” hypothetical issues. General, Shavers v Attorney (1978). 589; 402 Mich NW2d (Emphasis added.) Without satisfying requirement, a case may not be resolved the court: justiciable issue is not because it [I]f does genuine,

involve a live controversy between inter- persons claims, ested asserting adverse the deci- sion of which can definitively existing legal affect relations, a court may rights not declare the obligations Citations omitted. parties before it. Mich 66. [442 Emphasis added.] Because the underlying appeal in an appellate case —the determination of causation requires The United States Constitution that federal courts Const, III, decide actual cases or controversies. US art §2. similarity Michigan’s controversy” requirement, "actual and the controversy” requirement, United States Constitution’s "case or has acknowledged by been at least one member of this Court. See Girard Wagenmaker, 231, 266, (1991) n 470 NW2d 372 ("Michigan controversy’ requirement law embodies a similar of an 'actual ”) (Cavanagh, C.J., dissenting). Co v Reinhart Winiemko 1994] Opinion by Dissenting Brickley, J. actually inquiry hypothetical before the not —is a does not itself court, trial controversy” "genuine, in- between live involve Accordingly, persons.12 of this resolution terested argu- question is "hypothetical law as a issue” ably rule, as as Michi- court well violative spirit gan if in fact.

ii attempt majority’s I am also troubled malpractice attorney distinguish appellate deci- malpractice professional cases from other sions permitted juries to make Court has this where majority argues The determinations. causation pre- professions "no are in other there that while by man that rule[s] discoverable determined determine[ practice causation,” mal- ] ante at predetermined, neu- cases are decided only principles one correct law that dictate tral is both tenuous result. I believe that rationale holding self-serving, fear that this Court’s professions from alienate other will further legal system. A majority premise that there can be but one legal to a issue is somewhat "correct answer” judicial of a insofar as resolution accurate issue is of law. pronouncement on a also ñnal proverbial that, like the It has said been umpire, appellate court not have does baseball correct, but never the final word because final word. correct it has the theless because arguably may Therefore, be one "correct” there legal question insofar that answer to a answer course, controversy i.e., such a trial involves Of — negligence professional in fact occurred. whether 444 Mich Dissenting Opinion by Brickley, ultimately given by particular jurisdiction’s is highest court.13 may, majority’s premise only

Be that as it is assumption, i.e., relevant if its first that the causa- law, tion issue is also a previously is valid. As my discussed, it is view that the causa- appellate malpractice tion determination in an case does not law or otherwise create require jury that a decide what the jury pronounce, i.e., resolve, does not is— principle Rather, of law. jury identify was, is asked to what the law apply appeal. it to the facts of a never-taken jury guessing simply principle effect, the is what might applied by appellate law court. This courts or have been

guess binding subsequent is not on juries; it will never be annotated or "legal ruling”; appear summarized as a it will "legal princi- neither hornbook nor case text as a ple” or "rule of It law.” is not the resolution of a "legal issue,” but, instead, a causation determina- malpractice tion made to resolve that case before it.

B majority’s premise concerning predeter- principles distinguish mined, neutral is used to appellate malpractice causation determinations pro- cases from identical determinations in other particularly scenarios, fessional medi- malpractice. premise supposedly cal Because the dissenting viewpoints, forecloses alternative or legal also demands that issues have one interesting that, It parties to note if one of the to this case had appealed decision, Appeals opinion the Court of would be Michigan binding upon law in Further, the trial and benches. question subsequently if a similar came to this Court when Appeals panel, those members of the instant Court of or other like- jurists, perhaps bench, minded majority only had been elected to this today presumably rejected. view taken be So much for one "correct” answer.

1994] Reinhart Co v Winiemko Opinion by Dissenting Brickley, J. being possibility no There "correct” resolution.14 dispute legitimate law, issue of about an for a prediction lutely abso- outcome precluded must made decision —a judge.15 below, I reasons detailed For the trial subscribe tion applica- premise nor its to the neither majority. neu- of such if existence Even one concedes principles how this I fail to see tral legal profession distinguishes from conclusion other fields tainly principles expertise. cer- Similar professions. in medi- There is other

exist always example, medical cine, explanation an ultimate person why or becomes ill dies. accurately cannot be this reason Just because may just discerned, disagree different doctors or because applicability validity in a certain on its or explanation scenario, not make factual any does applicability. Similarly, in "neutral” its less engineering profession sci- there are ultimate phys- principles and of mathematics entific —rules example accurately discerned, if ics, that, — explain why occur in or results certain events Again, specific the exis- situations. while factual identify, principle may difficult to tence of the be engineers may dis- or scientists аnd reasonable specific agree validity applicability or on its principle scenario, this does not make the factual "predetermined.” any The same "neutral” less accounting, finance, for the fields of can said virtually any psychology, mathematics, other and profession._ authority will application legal principled neutral [A] Emphasis principled at 598. result. [Ante result added.] one on the basis of cases is decided The outcome disputed principles simply predetermined is no law. There legal respect to how a to decide with of fact for a issue appeal. [Ante on 595-596.] have decided been issue 444 Mich 579 Dissenting Opinion by Brickley, majority accepted

Therefore, if the rationale is acknowledged always, must also be that there is any professional malpractice question, almost one response specific "correct” answer or to a factual The existence of this situation. does not apparently "correct” answer preclude alternative, the existence of explanations.

valid, Rather, the exis- explanations gives tence of these as the rise, alternative majority "probabilities”16— references, probabilities, probabilities scientific and, medical I legal probabilities. probabilities believe, Such do necessarily not sally mean that there is no one univer- they suggest only rather,

"correct” answer — particular the "correct” answer to a factual may scenario deviate from the actual answer probability. jurists virtue of its Because reasonable may disagree appropriate given on the answer to a legal profession factual really counterparts. scenario any professional no different than of its important question, therefore, is this: If a jury may decide issues of medical, causation in engineering, accounting, and scores of other com- plicated professional why scenarios, preclude practice such a determination in the mal- majority explains

case? The that, because appeal presents exclusively, issues of law because there is one correct answer to an disagree- issue оf ment and a that there is no room for jury precluded. verdict is thus Ante at problems 595-596. There are two with this reason- ing. appeals exclusively present First, do not issues principles of law. if Even "neutral” exist, of law do they and even if resolved, articulated, must be Admittedly, Ante at 595. majority "probabili while the refers to ties,” it legal probabilities also denies that a conflict of is ever possible. Accordingly, majority "summary also concludes that disposition regarding always appropriate issue is because no probabilities clash of scientific exists.” Id. Co Winiemko Charles Reinhart

1994] Dissenting Bkickley, J. judge, the determination the trial determined principles requires such that of "correct” answer unique patterns, applied and this is a to factual jury. province of the See the exclusive task within accompanying text. ns 13-15 and implicit problematic, however, is the as- More majority opinion: sumption permeates identifying namely, it comes to that when " judge clearly in better answer, '[a] is "correct” ”17 position effect, determination.’ to make this majority artic- have the trial court both would legal principle apply it to the facts ulate the regard- underlying appeal to reach a decision of an result) (the ing on its "correct” own. causation grant justi- power Presumably, is such a broad qualified judge under- is more fied because a jury. If this sort of reason- the law than is stand ing adopted, however, must also con- then we able to understand the doctor better cede engineer medicine,” able to better "issues of engineering,” and the ac- understand "issues of ac- able to understand "issues countant better ordinary jury laypersons? counting” than is the juries And, if must continue to insist we types malpractice decide causation these cases, that a must not also concede then we appro- engineers, doctors, more or accountants is priate? negative.18 juries is in the We trust

The answer important laypersons determinations of to make involving other cases causation Similarly, juries professions. should trust we apply law fact— such determinations —to make Wiesenthal, quoting Millhouse v 775 SW2d Ante at 1989). (Tex, negative, experienced Indeed, most is оur answer expertise purposefully exclude from such trial counsel panel. 444 Mich 579 Dissenting Opinion by Brickley, J. appellate attorney malpractice in cases. The di- really lemma, exists, if it lies the structure of legal system. majority argues our in an appellate malpractice underlying appeal action an assuming is decided as an "issue of law.” Even accuracy unique assertion, of this such a situation nonlawyer malpractice could never arise in other simply "underlying cases because there are no appeals” malpractice in these sorts of actions. Accordingly, the issue of causation in a medical (or malpractice any malpractice case other exception legal malpractice) with the will never accordingly, be decided and, as an "issue of law” will never not be decided a factñnder. What the majority really advantageously does, therefore, unique procedural posture appellate utilize the malpractice exception cases to carve out an —for attorneys only jury system. ap- This —from proach self-serving potential and has the problematic already image systemic reinforce an attorney self-protection and further alienate from legal system peers professions. our in the other

c summary, even if I were to concede that there is one "correct” answer to a question, permitting I cannot conclude to make a causation determination in a case of appellate malpractice guess i.e., to how a never- — taken thetical hypo- would have been resolved any denigrating court —is more judiciary to the law or the than are similar deter- malpractice involving minations scenarios other professions. Juries medical cases routinely are happened asked to determine what would have patient

to a had an alternative medical procedure employed by Similarly, been a doctor. Co Reinhart v Winiemko

1994] Dissenting Opinion Brickley, malprac- ‍‌‌​‌​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌‌​‌‌‌‌​‌​‍engineering products liability juries required to determine whether are often tice cases а occurred had event would have an accident or manufacturing been process or design different might of what determinations These employed. of ac- an alternative course transpired, had have ques- taken, the sorts of precisely are been tion to resolve. upon juries call routinely we tions action, answer, appellate in an Their than it is to other to the law is no caustic more endeavors.19 professional with the that we agree majority certainly I However, to the make law. jury not allow should a to "make law” permit jury does not position my it to articulate medi- jury more than allows a any it principles. argue Nor does engineering cal or than, judi- good, are as or better juries that the law. determining articulating Ju- at ciary they for this task than qualified are no more ries of medi- discerning principles and applying are for Indeed, if qualified, even so engineering. cine or both evidence and concludes with cases cause letting what to appellate is that conclusively and criminal longer appeal malpractice suit. properly appeal context tion way. Ask whom? ^[19] it,” While instances, However, letting —this ante available reality this jury instant appellate court appellate malpractice, alleging at deduce what an inability litigation is suggested approach —the decide court what I expert jury concurring opinion notes that a better "[t]his directly. do not to the the action, court option decide and admits that "the best we more appellate legal malpractice.” what a method does advice way plaintiff first dispute What will just to determine importantly, of an it was to place. person to do appellate "ask” —is what find because certainly is going however, is not majority out would be to ask.” Id. not Indeed, jury to in causation the "better take the courtroom the truth and represent to do with this case. In court will defendant-attorney is also a method simply just would have this fails to "[t]he gave let supposedly the "better appeal ideal has no lack way” can do is it Id. do, longer aim of both civil realize, however, rise to the best decide,” id., —to apply is Why liked to "ask” it is to determine an available thinking. no founda- available. "is akin to we can do "ask” the our laws not? way” failed give 610. is Be no In it 444 Mich 579 Opinion by Dissenting Brickley, simply such articulation and determination is jury. merely of a role should permitted impaneled— to do that for it is which among competing probabilities, determine, what might something result have occurred had differ- ent been done a defendant.

hi aspect majority opinion Another that I troubling blurring important find is the distinc- "proximate tions between determinations of cause” appellate malprac- and "cause in fact” cases of oversight intruding tice. This has the effect of upon vitally impor- traditional roles tant not, causation determinations —a role that should, simply be, and diminished it is because implicated appellate malpractice appeal. in an previously prima discussed,

As facie case of appellate malpractice requires plaintiff that a es- " negligence tablish that proximate the defendant’s 'was a plaintiff’s] injury [the cause ”20 previously . . . .’ This Court has alluded to may the that fact the issue of in "cause fact” properly analyzed part "proximate be as of a causation” Nevertheless, determination.21 there "proximate can no be that doubt cause” and separate in "cause fact” issues, are distinct and upon unique the that resolution of each rests majority Indeed, considerations.22 the concedes p 611. See 21Moning Alfono, 425, 440, 13; (1977). v 400 Mich n NW2d 759 22Indeed, opinion Moning, supra, while this Court’s in n 21 has interpreted viewing been as in "cause fact” as a lesser included causation,” concept "proximate Reiter, Ignotov 391, see v 425 Mich (1986) ("Included 404; (Riley, J., dissenting) 390 NW2d 614 the within 'proximate requirement element of cause’ is the that the fact”), Moning explicitly recognized establish cause in in fact nature, resolution, unique questions: of both causation Co v Winiemko Reinhart

1994] Dissenting Brickley, J. majority point.23 very However, also concludes "proximate cause” between the distinction to the resolution "irrelevant in fact” is "cause disagree. 586, n 14.241 at Ante instant case.” of the " Michigan, proximate 'is essen causation In ’,25 problem tiаlly referred to law.’ Often proximate "responsible "legal cause,”26 or cause” basically whether an is a determination cause responsible legally may for harm.27 held be actor Being subject determination, questions properly may be resolved cause malprac appellate judge. of an In the context trial prima facie it one of the is tice —where proximate cause is of a valid elements claim28— approach 'proximate "PTjt possible as a series of cause’ unrelated, problems, to be determined more less distinct . . upon The . would include at considerations. list different following problems: problem of causation 1. least fact Prosser, 440, (quoting [Moning, supra n 13 Torts . . .” at . 42, p 249).] ed], [4th § ("'The 586, question of fact as whether 23 Ante n plaintiff’s injury must conduct was a cause defendant’s separated should be as to whether defendant from the ”) Quoting plaintiff’s injury.’ legally responsible Richards for the (1987) Pierce, (emphasis App 412 NW2d added). raised cause presumably, majority abundantly "cause 244). omitted). 25 Moning, Interestingly, Prosser & fact admits that defendant fact” issues clear that n . . Keeton, 21 . .” Ante at supra "is more majority are n causation at 9 implicated 440 supra, majority acknowledges appropriately (quoting n issue is one of cause in fact. § 41, does not (emphasis in both cases p Prosser, 263, 42, generally. considered dispute § added). n the causation issue 22 p supra, 272 In at bar an issue of short, (citations fact, distinct § 42, and, p depend is said to on whether sometimes cause] [Proximate important significant a that cause so the conduct has been Keeton, responsible. legally & [Prosser should be the defendant n 9 42, supra, p § 273.]

28Coleman, supra 63. at 444 Mich 579 Dissenting Opinion Brickley, essentially preliminary determination whether a plaintiff alleged enough get jury. to a has fact, in

Cause also known "but for” as causa- particular simply tion,29 "[t]hat is cause which produces an event and without which the event "hope- would not occurred.”30 have While often lessly proximate causation,31 confused” with question recognized in cause fact is well as the quintessential by jury: of fact to issue be decided simplest problem and most obvious con- [T]he nected "proximate with cause” that оf causation in upon question "fact.” ordinarily This "fact” is one gill guid learning, which literature lore of upon lost. It is a matter largely the law are which lay opinion most quite competent as as that of the reason, experienced court. For case, ordinary it is peculiarly a for the

jury. Keeton, (5th ed), §41, pp & Torts [Prosser Emphasis 264-265. added.] The distinction between "cause fact” and cgmnot "proximate overemphasized causation” be cgises appellate malpractice. Proximate cause appropriately determined, is preliminary "issue of law” as a judge. matter, the trial Cause in questions fact are "issues of fact” must commonly jury. decided factfinder — ruling bar, the case at the trial court’s Keeton, supra, 41, 265-266; pp Coleman, supra Prosser & 9n § ("Hence, plaintiff legal malpractice ain action must show that attorney’s alleged malpractice, but cessful 22 plaintiff’s defendant, he would have been suc suit”) added); (emphasis Ignotov, see also n (Riley, J., supra ("Therefore, dissenting) part at 405 proof liability burden of to establish on behalf of the but for the fact, plaintiff prove i.e., had to cause in attorney’s negligence parental would have retained his added). rights”) (emphasis (6th ed), (definition Dictionary p 30 Black’s Law of "cause in fact”). Comm, Hwy McMillan v State 393 NW2d 332 (1986), Keeton, quoting supra, pp Prosser & n 9 272-274. § v Co Winiemko Reinhart 1994] Dissenting Opinion Brickley, plaintiff sufficient elements to sub- had established jury fact, was, in a to the com- the mit proximate pletely appropriate cause determina- majority’s that the lower conclusion tion. The proximate by leaving causation erred court simply ignores jury32 the fact that to the issue trial when she proximate judge explicitly causation ruled on plaintiff’s determined, the context plaintiff disposition summary motion, had prima facie elements of a all of the established case appellate malpractice: Plaintiff met the The fínds that has Basic Court test[33] damages Foods as to causation well relationship claimed attorney-client as negligent acts, prima a and thus has established professional negligence.[34] case of facie at Ante 604-605. Grant, supra. The Basic Food Court Basie Food Industries prima legal malрrac requirements a four for facie case articulated tice, plaintiff negli including requirement show "that injury gence proximate . . .” 690. cause of . Id. at was the order, by Judge opinion and authored Melinda 34 Circuit court Morris, summary disposition response motion to defendant’s for added). fact, during Judge (emphasis four ruled least trial Morris finding that times on the cause issue—each time jury. plaintiff’s complaint legally to take the case a was sufficient that, judge points majority accurately of motion out context a assigned disposition, summary trial for task agree. importantly, applying I this is law to fact. I More note that judge ruling precisely on what the trial this case did when 2.116(C)(8) motion, (C)(10), pursuant to MCR defendant’s summary disposition. however, disposition ruling, merely plain- summary shows A not) (or properly pleaded facts sufficient to reach the tiff has has (MCR (MCR 2.116[C][8]). 2.116[C][10]), pleaded a valid claim summary disposition Notably, does not relieve elements of a not need motion for the denial of defendant’s having ultimately plaintiff all from establish so, professional malpractice action. Were this we would juries. may Therefore, judge majority is accurate in that trial while the dispo- summary preliminary the context of make a sition—on fact that necessary ments, determination —in issue, change the this conclusion does not the causation jury, prove, to the all four elements still must professional ele- One of these for a action. course, proximate causation. Mich Dissenting Opinion Brickley, J. Having properly prima determined that a facie established, case had been it was then within the province exclusive to determine (or inactions) whether defendant’s actions were particular those "causes in fact” that resulted plaintiff’s injury. majority apparently would abrogate important this distinction between the judge, jury, appellate role of and that of the in an malpractice case. disagree majority

I also with the that the trial judge underlying "ruled that the issue whether the suit would have been successful was one for the only to determine.” Ante at 604. Not does this ignore judge’s express ruling conclusion on the the trial prima facie elements mal- practicе judge case, but in fact all the trial said concerning who could make causation determina- tions was that

the suit within a suit call for this ipso doctrine does not facto finding to be made as a matter of law before trial but can proper be a for with instructions on cause and dam- ages including the result appeal, of an but the loss of the value of the opportunity to appeal including . . . opportunity lost pending appeal. settlement [Citing Ignotov v Re- iter, (1986). NW2d Empha- sis added.] interpret language holding I that not every "suit within a suit” must be resolved exclu- sively by judge. the trial The rationale for this conclusion is that some suits will raise issues of fact—such as whether there was a lost opportunity to settle or what sort of actual dam- ages appeal resulted from the failure to —that jury considering must be resolved factual reasoning evidence. I subscribe to this and note 1994] Charles Reinhart Co Winiemko Dissenting Opinion Brickley, nonbinding, support, in a it finds some albeit Appeals prior authored Court of decision Judge opinion Riley’s of this Court. Then member general purpose explained Food Basic concept: "suit suit” within arguably the suit within is at least true [I]t requirement to insure that dam- a suit serves attorney’s negli- ages complained of gence are more than mere to the due speculation.2 general damages is the rule of A tenet law damages certainty. certainty requires proof The rule of evidence, upon speculation. mere not on based factual [Id. at 693.][35] plaintiff’s complaint bar, included the case at

allegations proper that, had a been taken by defendant, re- not have been judg- quired pay damage judgment.36 This to "damages” represented the "cost” or ment to appeal. actual plaintiff arising failure to from defendant’s agree

I the Basic Food Court that with part, requirement aimed, in "suit a suit” within alleged damages. insuring certainty Cole- at agree supra man, at I with the Basic 64. further damages proof Food must based Court that speculation. evidence, not mere Basic on factual supra 693, n of "cer- Food, 2. This Coleman, concept supra ("[T]his at 64 'suit within a suit’ See also vitality only .... limited of situations This is so has because in a number purpose requirement is to insure of the 'suit-within-a-suit negligence damages attorney’s are that the claimed to result from ”) speculation’ (quoting Co v Charles Reinhart Win more than mere 110,115; [1992]). iemko, App 492 NW2d plaintiif’s suggest My complaint does not review appeal. alleged damages pending opportunity to a lost settle from Court, however; posit does a with this Plaintiff’s brief filed negotiate opportunity favorable settlement with "lost . . . [third a Further, complaint allege damages party].” plaintiff’s from did (Kauffman) party having because defendant had failed unfavorably with third settle claim appeal. take 444 Mich Brickley, Dissenting Opinion however, tainty,” is an issue of "fact” that must be believe, therefore, resolved I do not jury. (and judge the trial erred by simply accurately) recognizing that some underlying appeals a case of appellate malpractice will involve issues of fact —decided on factual evidence —that must be re- by jury. solved

IV I write to Finally, express my disagreement with the majority’s conclusion that reasoning its "is overwhelmingly embraced our sister jurisdic- tions,” and that "at least nineteen jurisdictions directly addressing the issue have found it to be one of reported and no decisions have held otherwise.” Ante at 601. In fact, of the cases many cited in support of this conclusion do not justify the majority holding For example, here. the court in Phillips Clancy, 152 Ariz 733 P2d 300 (Ariz 1986), App, did not hold that an underlying appeal in an appellate malpractice case must be resolved as an "issue of law” a trial judge Rather, the Phillips court concluded exclusively. appeals that such present questions mixed of law and fact and that should apply the law to the facts to resolve the underlying determine causation: Therefore, remand, on in the "case within the case,” applicable should be on instructed regulations . . . law and and be asked if, negligence, presented, based on the facts alleged but for the plaintiff] would have been entitled [the short,

to disability benefits. issues are to by judge; decided the factual issues are to be jury.[37] decided the at [Id. Pickett, Haislip, App 89; Cf. Houlon & Berman v 73 Md 533 A2d (1987) (an attorney malpractice in action which the issue of 1994] Co v Winiеmko Reinhart Dissenting Bbickley, J. reported

Similarly, decision from at least one apparently supreme held that the court has state appellate issue causation Supreme The Nevada resolution. demands Horton, 944; 620 P2d 96 Nev in Selsnick Court grant (1980), of sum- lower court reversed a attorney mary judgment defendant in favor of noted: pursu- in not conduct Whether defendant’s] [the of a reasonable . . . fell below that ing the should have been of fact which attorney is an issue resolved at trial. [Id. 946.] majority Clearly, believed that the Selsnick conduct constituted defendant’s whether negligence to be an "issue of fact” was the tort jury. necessi- This determination resolved (Gunder- finding Id. at of "causation.” tates dissenting part).38 concurring part son, J., Accordingly, the Nevada Su- it is also clear that preme issue that the lesser-included Court decided properly entrusted to a was one of "causation” jury. following find as

Further, I decisions—cited supportive by majority unpersuasive for the — Top Chicago Ass’n, Inc Red Cab reasons indicated: have the trial court would concerned the result causation reached determination involvement trial; held that court of law and of fact and involved issues both appropriate). was therefore support rely majority its Admittedly, on Selsnick does Rather, dissenting opinion concurring position. Selsnick Supreme indicating majority Nevada that at least one cited regarding expert testimony justice might allow Court cause issue. However, majority also maintains n 40. Ante at entrusting support reported causation determina no decisions that tions to a decision, Supreme jury. from the Nevada I believe Court, just that. does 444 Mich 579 632 by Dissenting Opinion Brickley, J. disposition (summary was awarded on v Gaines39 grounds; dis- issue was never

other the causation by the failed cussed allege question the court because (the "injury”); Jones v Psimos40 causation only issue; relevant lan- was not an (the dicta); guage Dings v causation Callahan41 by question court); issue nor discussed was neither an Simon, Brian, Cabot, & Forbes Co v Cabot (the Peragine, & Red fearn42 federal court Smith prior Supreme narrowly Louisiana construed a that, which held Court decision [Jenkins],43 action for an attorney’s suit, failure to file causa- damage questions up jury to tion and are to the (the decide); v causation issue was Romano Weiss44 narrowly addressed; not the court did decide who where the dis- makes the causation determination pute malpractice law; on unsettled centers jury); case was not even tried before a Rinehart v (the causation was never Maiorano45 court); by parties by the raised or addressed (the Goldstein v Kaestner46 court discusses the nothing says review; standard about decision who determines causation 39 (1977). 332; 328 App 49 Ill 3d 364 NE2d 40 1989). (CA 7, 882 F2d 1277 41 (1979). App 36; 4 Kan 2d 602 P2d 542 42 1983). (ED La, Supp 568 F 371 43 Co, (La, 422 Jenkins St Paul Fire & Marine Ins So 2d 1109 v 1982). 44 (1988). fact, 162; App 1381 while the Mass NE2d presented hypothesized in the instant Romano court about issue case: argument point if sound can be made that even is the [a] should, uncertainty, pure question

subject of if a court, by by not the finder of fact .... resolved expressly present require resolution it of that pressly noted that case [did] "[t]he question.” Simply, court Id. at n 18. the Romano ex- deciding today. the issue resolved this Court disclaimed (1991). App 76 Ohio 3d 602 NE2d (1992). 169; 413 243 Va SE2d Co v Winiemko Charles Reinhart

1994] Dissenting Opinion Brickley, J. Homes, (the Inc v trial); Better Rodgers47 causation Sutton court); not discussed issue was (the not discussed causation issue was Whiteside48 case, fact, court; the entire trial court was tried be- presumably, "causation” including no error reviewing court found fore a (the Chocktoot v Smith49 ap- this); fact; mixed of law and peal present questions may law; questions must decide judge fact). questions must decide sum, cases cited as least twelve of the fact, not, in directly do supportive by majority case at bar. position taken support ad- Indeed, of these decisions do not even many dress the issue decided today. this Court Nota- remaining eight arguably decisions that bly, of the two are from support majority position, only highest the state’s court.50 I the decision of the Court would affirm Appeals. Brickley,

Levin, J., concurred with (ND 1961). Va, Supp 47 195F W (1924). 79; 222 P 974 48 101Okla (1977). 567; 571 P2d 1255 280 Or Corp Accident Fire & Life Assurance The first decision is General (1950). Ltd, Cosgrove The Wisconsin 257 Wis 42 NW2d 155 simply Supreme to be resolved noted that the sole Court that, summary disposition, damages and in the context of concerned the issue was one of law. Wiesenthal, second, decision, ‍‌‌​‌​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌‌​‌‌‌‌​‌​‍n Millhouse v more recent justices Supreme supra. Notably, Court dissented of the Texas two dissent, brief, although persua- the Millhouse decision. Their from sive.

Case Details

Case Name: Charles Reinhart Co. v. Winiemko

Court Name: Michigan Supreme Court

Date Published: Mar 1, 1994

Citation: 513 N.W.2d 773

Docket Number: Docket Nos. 94990, 94991, (Calendar No. 7)

Court Abbreviation: Mich.