Charles Reinhart Co. v. Winiemko

Decision Date01 March 1994
Docket NumberNos. 94990,No. 7,O,94991,s. 94990,7
PartiesThe CHARLES REINHART COMPANY, Plaintiff-Appellee, v. Ronald C. WINIEMKO, Defendant-Appellant, and Bell, Hertler & Winiemko, P.C., Defendant. ct. Term 1993. Calendar
CourtMichigan Supreme Court
OPINION

RILEY, Justice.

At issue in the instant case is whether proximate cause in a legal malpractice action alleging negligence during an appeal is an issue of law reserved for the court or an issue of fact reserved for the jury. More specifically, we are presented with the question whether a court or a jury should determine whether the underlying appeal would have been successful. We hold that the issue is reserved to the court because whether an appeal would have been successful intrinsically involves issues of law within the exclusive province of the judiciary. Furthermore, we find that the trial court failed to resolve the issue as a matter of law, and that a determination of the issue by a court does not deprive a litigant of the right to trial by jury. Thus, we reverse the decision of the Court of Appeals and remand the case to the trial court for proceedings in accordance with this opinion.

I

Dr. and Mrs. William Kauffman brought suit against plaintiff The Charles Reinhart Company, 1 a real estate firm located in Washtenaw County, Michigan. The Kauffmans alleged that plaintiff had improperly altered an instrument conveying real estate that they had purchased by reserving a previously undisclosed utility easement. In July 1983, the jury found that plaintiff defrauded the Kauffmans and awarded $70,000 in damages. The jury also found that plaintiff negligently conveyed the property and awarded an additional $30,000 in damages. 2

Plaintiff's corporate counsel, deciding to proceed with another attorney on appeal, retained Ronald C. Winiemko as counsel. In September 1983, they discussed the case and determined that the appeal would focus on the claim that the jury awards for both fraud and negligence were cumulative. Although Winiemko timely filed an appeal, he failed to timely file his brief and formally answer his adversary's motion for dismissal. 3 Accordingly, the Court of Appeals dismissed the appeal. Winiemko also failed to timely file a motion for rehearing pursuant to MCR 7.215(H). 4 Furthermore, he failed to respond to repeated requests of plaintiff's corporate counsel to inform him of the progress of the appeal.

Thus, in September 1987, plaintiff filed the instant action against Winiemko and his law firm, Bell, Hertler & Winiemko, P.C., averring that Winiemko had committed professional malpractice by, inter alia, irretrievably losing plaintiff's right to appeal. Plaintiff alleged that but for Winiemko's negligence, plaintiff would have succeeded in its appeal of the underlying litigation. Furthermore, plaintiff alleged that it was denied the opportunity to negotiate a more favorable settlement, 5 and was confronted with a license revocation proceeding begun by the Kauffmans. 6

Winiemko filed several motions for summary disposition pursuant to MCR 2.116(C)(8) and (10), contending that plaintiff did not present a prima facie case because no proximate cause could be proven; Winiemko argued that the underlying appeal, as a matter of law, could not have succeeded. 7 Winiemko posited that because the trial attorney had not objected to the pertinent jury instructions, the appeal could not have prevailed, and that in any event the tactics utilized by the trial attorney foreclosed any possibility of a successful appeal. Finding the question a jury issue, the trial court denied Winiemko's motions and permitted plaintiff's legal experts to testify that the appeal would have succeeded. The jury found Winiemko guilty of professional malpractice and breach of contract, and awarded damages.

The Court of Appeals affirmed. 8 It ruled that proximate cause in a legal malpractice suit is a question of fact, 9 and found that even in an appellate malpractice action "issues that were questions of law in the underlying case ... become questions of fact" in the malpractice action. 10 Thus, the Court held that "[i]n a case charging appellate malpractice, the question for the trier of fact is whether a reasonable appellate court would, more likely than not, have granted the appellant in the underlying case some relief." 11

This Court granted leave to appeal on June 10, 1993. 12

II
A

A unanimous opinion of this Court recently defined the elements of a legal malpractice action in Michigan:

"(1) the existence of an attorney-client relationship;

"(2) negligence in the legal representation of the plaintiff;

"(3) that the negligence was a proximate cause of an injury; and

"(4) the fact and extent of the injury alleged." Coleman v. Gurwin, 443 Mich. 59, 63, 503 N.W.2d 435 (1993).

As in other tort actions, the plaintiff has the burden of proving all the elements of the suit to prevail. Id.

Often the most troublesome element of a legal malpractice action is proximate cause. As in any tort action, to prove proximate cause a plaintiff in a legal malpractice action must establish that the defendant's action was a cause in fact of the claimed injury. 13 Hence, a plaintiff "must show that but for the attorney's alleged malpractice, he would have been successful in the underlying suit." Id. (emphasis added). 14 In other words, " ' "the client seeking recovery from his attorney is faced with the difficult task of proving two cases within a single proceeding." ' " Id. at 64, 503 N.W.2d 435, quoting Basic Food Industries, Inc v. Grant, 107 Mich.App. 685, 691, 310 N.W.2d 26 (1981), quoting 45 ALR2d 5, § 2, p. 10. To hold otherwise would permit a jury to find a defendant liable on the basis of speculation and conjecture. 443 Mich. 65, 503 N.W.2d 435. 15 Although the "suit within a suit" concept is not universally applicable, it applies where the alleged negligent conduct involves the failure of an attorney to properly pursue an appeal. Id. 16

In a legal malpractice action alleging negligence in an appeal a plaintiff must prove two aspects of causation in fact: whether the attorney's negligence caused the loss or unfavorable result of the appeal, and whether the loss or unfavorable result of the appeal in turn caused a loss or unfavorable result in the underlying litigation. 2 Mallen & Smith, Legal Malpractice (3d Ed.), § 24.39, p. 538. 17 Whether the court as a matter of law or the jury as an issue of fact determines these aspects of proximate cause is the issue in the instant case. 18

B

Plaintiff urges this Court to affirm the Court of Appeals by holding that whether an appeal would have been successful is an issue of fact for the jury in a legal malpractice case because cause in fact is an issue for the jury in other professional malpractice cases. Plaintiff suggests that to hold otherwise would simply be an elitist ruling by this Court to protect attorneys from the rigors of the jury system. Defendants, on the other hand, suggest that the trial court is vested with the exclusive authority to determine the threshold issue whether the underlying appeal possessed legal merit as a component of proximate cause because the issue is inherently one of law. 19

"Since the basic premise of trying the underlying action is to prove what the result should have been, the guiding principle in identifying issues of law and fact is to utilize the same classifications as should have been applied in the underlying case." 2 Mallen & Smith, supra, § 27.10, p. 652. 20 Thus, whether an appeal lost because of an attorney's negligence would have succeeded if properly pursued is an issue for the court because the resolution of the underlying appeal originally would have rested on a decision of law. See, e.g., Chocktoot v. Smith, 280 Or. 567, 574-575, 571 P.2d 1255 (1977). With rare exception, appeals are based on and resolved as matters of law, not fact. 21 Demill v. Moffat, 45 Mich. 410, 8 N.W. 79 (1881); Keiser v. Enterprise Foundry Co, 357 Mich. 159, 97 N.W.2d 737 (1959). Thus, an appellate malpractice action presents an issue of law regarding the success of the underlying appeal within its proximate cause analysis.

The Texas Supreme Court has reasoned:

"The question of whether an appeal would have been successful depends on an analysis of the law and the procedural rules. [The plaintiff's] petition that the jury should make this determination as a question of fact would require the jury to sit as appellate judges, review the trial record and briefs, and decide whether the trial court committed reversible error. A judge is clearly in a better position to make this determination. Resolving legal issues on appeal is an area exclusively within the province of judges...." Millhouse v. Wiesenthal, 775 S.W.2d 626, 628 (Tex, 1989).

Although juries may often decide the issue of proximate cause in nonappellate malpractice suits, 22 the nature of appellate practice mandates judicial resolution of the issue. The Washington Supreme Court has explained:

"In cases involving an attorney's alleged failure to perfect an appeal ... [t]he cause in fact inquiry becomes whether the frustrated client would have been successful if the attorney had timely filed the appeal....

"The determination of this issue would normally be within the sole province of the jury. Underlying the broad inquiry, however, are questions bearing legal analysis. ...

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