In this lеgal malpractice action, plaintiff appeals as of right from an order granting summary disposition in favor of defendant attorney pursuant to MCR 2.116(C)(7). We affirm.
Plaintiff was charged in January, 1983, with first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), for penetrating with his finger a person under thirteen years of age. Defendant was appointed to serve as defense counsel. Following a bench trial, plaintiff was found guilty as charged.
Plaintiff released defendant as his attorney and
Plaintiff appealed to this Court
(People v Knoblauch,
unpublished opinion per curiam, decided December 27, 1984 [Docket No. 73750]), arguing, inter alia, ineffective assistanсe of counsel under the bifurcated test of
People v Garcia,
Plaintiff raises both procedural and substantive issues on appeal. Procedurally, he contends that the trial court erred in deciding the merits of defendant’s motion, since the affirmative defense of collateral estoppel was not raised in defendant’s first responsive pleading. We disagree. MCR 2.116(D)(2) requires that the grounds for a motion under MCR 2.116(C)(7) asserting that a plaintiffs claim is barred must "be raised not later than a party’s responsive pleading.” "[T]here is no requirement that these grounds be raised in the party’s 'first’ responsive pleading. Thus, they are subject to the court’s authority to grant permission to amend the [answer] to add the defense under MCR 2.118.” 1 Martin, Dean & Webster, Michigan Court Rules Practice, p 300. This result is consistent with cases examining GCR 1963, 116.1, the
Substantively, plaintiff contends that the trial court erred in finding him collaterally estopped from asserting a claim of legal malpractice. As noted by the trial court, the question whether a criminal defendant who has raised and obtained a ruling on the issue of ineffective assistance of counsel is collaterally estopped from subsequently asserting a claim of legal malpractice appears to be one of first impression in this state.
Collateral estoppel bars the relitigation of issues previously decided when such issues are raised in a subsequent suit by the same parties based upon a different cause of action.
Topps-Toeller, Inc, v City of Lansing,
In this case, the trial court concluded that plaintiff’s previous allegation of ineffective assistance of counsel raised "essentially the very same issues that have been raised” in the instant legal malpractice case. Noting that plaintiff had an opportunity to assert the same issues and have them reviewed under the same standards as apply in a malpractice claim, the court found that the "identity of issues” requirement for application of col
People v Garcia,
When I use the words "professional negligence” or "malpractice” with respect to the defendant’s conduct, I mean the failure to do something which [an attorney] of ordinary learning, judgment or skill in this community would do, or the doing of something which [an attorney] of ordinary learning, judgment or skill would not do, under the same or similar circumstances you find to exist in this case.
It is for you to decide, based upon the evidence, what the ordinary [attorney] of ordinary learning, judgment or skill would do or would not do under the same or similar circumstances.
First, in legal malpractice cases such as the instant one, whеre the client’s injury is not the dollar amount of a judgment entered against him in the underlying case but rather the fact that he sustained an adverse judgment, the client must also show that but for the act or omission complained of he would have been successful in the underlying case. See generally
Basic Food Industries, Inc v Grant,
Second, contrary to plaintiffs reading,
Garcia’s
two-part test for ineffective assistance of counsel is not cumulative but disjunctive.
People v Hunter,
Plaintiff discerns no other distinction between
The second requirement for application of the doctrine of collateral estoppel is the "identity of parties” in both cases. Local 98, supra, p 302. The circuit court ruled that "even though the defendant here, [attorney] William Kenyon, was not a party in interest by the time of the appeal of the [underlying criminal] case, . . . the issues in dispute were sufficiently identical that the commonality of the parties is not an inadmissible [sic] bar . . . .” This ruling was predicated upon the court’s view "that even though the identity of the individuals was not the same in [the] criminal case as it is here, . . . the essential question is whether or not the criminal defendant, here the civil plaintiff, had an opportunity to assert the same grounds, the same grievances, and to have them weighed by an impartial body such as the Court of Appeals in this particular instance.”
In
Howell
v
Vito’s Trucking & Excavation Co,
Clearly, in this case, defendant attorney was not a party in the underlying criminal case. Nor can he reasonably be considered a privy, defined as "one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.”
Howell, supra,
p 43, quoting
Bernhard v Bank of America National Trust & Savings Ass’n,
19 Cal 2d 807;
Defendant offers various reasons why this Court should allow his defensive use of collateral estop-pel despite the holding of
Howell.
Clearly, the trial
Howell
arose in a civil setting, where a claim alleging the defendant’s negligence had been previously and successfully litigated in a civil suit, and the plaintiff sought to avoid relitigating the issue in a sеcond civil action. It did not deal with defensive use of collateral estoppel in a criminal to
With respect to issues determined in a criminal prosecution:
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(2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action:
(a) Against the defendant in the criminal prosecution as stated in § 29. [Restatement Judgments (2d), § 85(2)(a), p 294.]
The rationale for this rule appears in comment "e” to the section:
e. Judgment for prosecution: preclusion in favor of third party. ... At аn earlier period in the development of res judicata doctrine, the "mutuality” requirement was an obstacle to applying issue preclusion in favor of such a third party. That is, since the third party would not have been bound in his civil action if the prosecution had resulted in an acquittal, under the mutuality rule it would follow that the third party could not take advantage of the issue determined in a conviction. However, long before the mutuality rule was repudiated in civil cases, well reasoned decisions had extended the rule of preclusion to operate in favor of third persons where the first action is criminal and the second is civil....
. . . The clearest situation is where the person who was convicted of an offense brings an action against the third party to assert a claim that rests on factual premises inconsistent with those established in the criminal prosecution. [RestatementJudgments (2d), § 85, comment (e), pp 298-299. Emphasis changed.]
Defendant cites several cases in support of comment "e,” including Lamore v Laughlin, 82 US App DC 3; 159 F2d 463 (1947), decided twenty-four years before the mutuality requirement was abandoned by the Supreme Court in Blonder-Tongue, supra. In Lamore, the plaintiff sued his criminal appellate attorney, alleging that he had suppressed evidence that Lamore had been ineffectively represented by his trial counsel. Because the adequacy of his trial attorney’s representation had been previously litigated in Lamore’s habeas corpus action, the suit against the appellate attorney was dismissed. Significantly, the defendant appellate attorney was not involved in either the underlying criminal case or the habeas action.
Similarly, in
People ex rel Snead v Kirkland,
Hibbett v Cincinnati,
4 Ohio App 3d 128;
Although no Michigan cases are directly on point, there is evidence that Michigan courts have similarly repudiated the mutuality requirement in the criminal to civil context. In
Imperial Kosher Catering, Inc v The Travelers Indemnity Co,
The
Howell
Court articulated three reasons for its decision to reject nonmutual offensive estoppel in a civil to civil context: (1) in instances of several plaintiffs bringing successive actions against a single defendant, abandonment of the mutuality requirement would lead to "lopsided justice” in favor of the later plaintiffs, quoting
Nevarov v Caldwell,
161 Cal App 2d 762;
[PJublic policy dictates that a person convicted of a crime who has failed in his attack upon his conviction both directly and collaterally should not be permitted to recover against his attorney in a civil malpractice action for damages allegedly arising out of the attorney’s handling of his defense. It would undermine the effective administration of the judicial system to ignore completely a prior decision of a court of competent jurisdiction in this state on the same issue which plaintiff seeks to relitigate in a subsequent action.
Accordingly, we hold that, where a full and fair determination has beеn made in a previous criminal action that the client received the effective assistance of counsel, the defendant-attorney in a subsequent civil malpractice action brought by the same client may defensively assert collateral es-toppel as a bar.
In this case, the adequacy of defendant’s representation was determined at plaintiffs motion for new trial in the criminal action. Plaintiff had a full and fair opportunity to present his case. The court ultimately refused to grant a new trial on grounds of ineffective assistance of counsel after hearing testimony and argument. On appeal, the parties fully briefed the issue, and it received thorough treatment in this Court. Under these circumstances, plaintiff was collaterally estopped from again raising the issue in a legal malpractice action.
Affirmed.