Barrow v. Pritchard, Docket No. 199849.

• Decision Date: 09 August 1999
• Docket Number: Docket No. 199849.
• Parties: Thomas J. BARROW, Plaintiff-Appellant, v. Clyde B. PRITCHARD, Edith Thomas, and Pritchard & Thomas, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

597 N.W.2d 853

235 Mich. App. 478

Thomas J. BARROW, Plaintiff-Appellant, v. Clyde B. PRITCHARD, Edith Thomas, and Pritchard & Thomas, P.C., Defendants-Appellees.

Docket No. 199849.

Court of Appeals of Michigan.

Submitted April 6, 1999, at Detroit.

Decided May 11, 1999, at 9:05 a.m.

Released for Publication August 9, 1999.

Elbert L. Hatchett, Pontiac, for the plaintiff.

Garan, Lucow, Miller, Seward & Becker, P.C. (by Thomas F. Myers, Anne K. Newcomer, and David M. Shafer), Detroit, for the defendants.

Before: SAAD, P.J., and MURPHY and O'CONNELL, JJ.

MURPHY, J.

A grand jury returned a fifteen-count indictment against plaintiff in the United States District Court for the Eastern District of Michigan for various counts of income tax evasion, filing a false income tax return, making false statements in connection with a loan application, and bank fraud. Plaintiff retained defendants to represent him in this criminal matter, paying them approximately $200,000. Following a ten-day jury trial, plaintiff was convicted on eleven counts and acquitted on the rest. Following his conviction, plaintiff moved in the trial court for a new trial, arguing in part that he received ineffective assistance of counsel. The trial court denied the motion. Thereafter, plaintiff filed a complaint in the Wayne Circuit Court, alleging that defendants had committed legal malpractice in their representation of plaintiff in his criminal trial. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (10), arguing that the doctrine of collateral estoppel barred plaintiff's malpractice action because the federal court had previously denied plaintiff's motion for a new trial based on ineffective assistance of counsel. Following a hearing, the trial court granted the motion.¹ Plaintiff appeals by leave granted. We affirm.

Plaintiff argues that the trial court erred in concluding that the federal court's decision to deny his motion for a new trial based on ineffective assistance of counsel collaterally estopped this cause of action for legal malpractice in state court. We review de novo both a trial court's decision to grant or deny a motion for summary disposition and issues concerning the application of the doctrine of collateral estoppel. Hawkins v. Mercy Health Services, Inc., 230 Mich.App. 315, 324, 583 N.W.2d 725 (1998); McMichael v. McMichael, 217 Mich.App. 723, 727, 552 N.W.2d 688 (1996).

We review a trial court's decision to grant summary disposition pursuant to MCR 2.116(C)(7) by considering the affidavits, pleadings, and other documentary evidence and construing them in the light most favorable to the nonmoving party. Alcona Co. v. Wolverine Environmental Production, Inc., 233 Mich.App. 238, 246, 590 N.W.2d 586 (1998). A lower court should grant summary disposition under MCR 2.116(C)(10) when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Id. A court reviewing a motion pursuant to MCR 2.116(C)(10) must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the nonmoving party and grant the benefit of any reasonable doubt to the nonmoving party. Id.

"Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding." Porter v. Royal Oak, 214 Mich.App. 478, 485, 542 N.W.2d 905 (1995). Generally, mutuality of estoppel is a necessary element of collateral estoppel. Nummer v. Dep't of Treasury, 448 Mich. 534, 542, 533 N.W.2d 250 (1995). Collateral estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him. Howell v. Vito's Trucking & Excavating Co., 386 Mich. 37, 43, 191 N.W.2d 313 (1971). Crossover estoppel, which involves the preclusion of an issue in a civil proceeding after a criminal proceeding and vice versa, is permissible. In re Forfeiture of $1,159,420, 194 Mich.App. 134, 145-146, 486 N.W.2d 326 (1992).

This Court has addressed the issue raised in this appeal on two previous occasions. In Knoblauch v. Kenyon, 163 Mich.App. 712, 716, 415 N.W.2d 286 (1987), a panel of this Court examined "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." The plaintiff argued that the standards for ineffective assistance of counsel and legal malpractice are different, contending that the standard for finding ineffective assistance of counsel is more difficult for a client to establish. However, in concluding that the plaintiff was collaterally estopped from bringing a legal malpractice action, this Court stated, "the legal standards for ineffective assistance of counsel in criminal proceedings and for legal malpractice in civil proceedings are equivalent for purposes of application of the doctrine of collateral estoppel." Id. at 719, 415 N.W.2d 286. Further, in Schlumm v. Terrence J O'Hagan, PC, 173 Mich.App. 345, 356, 433 N.W.2d 839 (1988), this Court adopted the reasoning set forth in Knoblauch, stating that once a full and fair determination has been made that a plaintiff received the effective assistance of counsel, "the plaintiff has had his day in court and is now collaterally estopped from again raising the same issue" in the form of a claim of legal malpractice.

When this Court decided Knoblauch and Schlumm, the standard in Michigan for establishing ineffective assistance of counsel was controlled by People v. Garcia, 398 Mich. 250, 264, 266, 247 N.W.2d 547 (1976). In Garcia, supra at 264-266, 247 N.W.2d 547, our Supreme Court, in discussing the constitutional standard for establishing ineffective assistance of counsel, adopted the reasoning in Beasley v. United States, 491 F.2d 687, 696 (C.A.6, 1974), which held that "[d]efense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law." Further, in discussing the nonconstitutional standard for establishing whether a defendant received a fair trial, our Supreme Court cited with approval People v. De-Graffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969), which held that a new trial is also warranted if defense counsel makes a serious mistake but for which the defendant would have had a reasonably likely chance of acquittal.

After Garcia was decided, however, and following this Court's decisions in Knoblauch and Schlumm, the standard for determining whether a defendant received the effective assistance of counsel changed. In People v. Tommolino, 187 Mich.App. 14, 17, n. 1, 466 N.W.2d 315 (1991), this Court recognized that the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), not Garcia, supra, set the standard for whether a defendant has received effective assistance of counsel.² In Tommolino, supra at 17, 466 N.W.2d 315, this Court, citing Strickland, supra, stated:

To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that, under an objective standard of reasonableness, counsel made an error so serious that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment. Moreover, the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Second, the deficiency must be prejudicial to the defendant.

In the wake of this Court's decision in Tommolino, another panel of this Court in Alterman v. Provizer, Eisenberg, Lichtenstein & Pearlman, PC, 195 Mich.App. 422, 426, 491 N.W.2d 868 (1992), stated the following:

Given that the standard for establishing ineffective assistance of counsel has been restricted in People v. Tommolino, 187 Mich.App. 14, 466 N.W.2d 315 (1991), so that it is no longer identical to the standard for a civil claim of malpractice, we do not express an opinion with regard to the continuing validity of Knoblauch and Schlumm in crossover situations.

Accordingly, we are called upon in this case to decide whether Knoblauch and Schlumm continue to represent the state of the law in Michigan. We hold today that they do. In order to establish a cause of action for legal malpractice, the plaintiff has the burden of establishing the following elements: (1) the existence of an attorney-client relationship (the duty); (2) negligence in the legal representation of the plaintiff (the breach); (3) that the negligence was a proximate cause of an injury (causation); and (4) the fact and extent of the injury alleged (damage). Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 842 (1995). As previously indicated, in order for a defendant in a criminal case to establish that he did not receive the effective assistance of...