Charles Reinhart Co. v. Winiemko

• Decision Date: 21 September 1992
• Docket Number: 128542,Docket Nos. 126230
• Citation: 492 N.W.2d 505,196 Mich.App. 110
• Parties: CHARLES REINHART COMPANY, Plaintiff-Appellee, v. Ronald C. WINIEMKO, Defendant-Appellant, and Bell, Hertler & Winiemko, P.C., Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 505

492 N.W.2d 505

196 Mich.App. 110

CHARLES REINHART COMPANY, Plaintiff-Appellee, v. Ronald C. WINIEMKO, Defendant-Appellant and Bell, Hertler & Winiemko, P.C., Defendant.

Docket Nos. 126230, 128542.

Court of Appeals of Michigan.

Submitted Jan. 8, 1992, at Lansing.

Decided Sept. 21, 1992, at 9:20 a.m.

Released for Publication Dec. 21, 1992.

Davis & Fajen, P.C. by Peter A. Davis and Nelson P. Miller, Ann Arbor, for plaintiff-appellee.

Plunkett & Cooney, P.C. by Christine D. Oldani and Larry G. Mason, Detroit, for Ronald C. Winiemko.

Before SULLIVAN, P.J., and WAHLS and FITZGERALD, ^* JJ.

SULLIVAN, Presiding Judge.

A jury awarded plaintiff $70,200 in damages against defendant Ronald C. Winiemko, an attorney, for his professional negligence and breach of contract arising out of his representation of plaintiff in an earlier appeal. ¹ The trial court awarded plaintiff mediation sanctions in the amount of $35,743.01, representing the entire amount of attorney fees and costs requested by plaintiff. Winiemko (hereafter defendant) appealed both awards as of right, and the appeals have been consolidated. We affirm the judgment on the verdict and reverse in part the sanctions award.

Plaintiff, a real estate company, had been sued by Dr. and Mrs. Kauffman, the purchasers in a real estate transaction in which plaintiff was the broker for the seller. The Kauffmans claimed that plaintiff altered the legal description of the property on the instrument of conveyance, reserving a previously undisclosed easement. The trial of that case took place thirteen years after the sale; by that time, the property's value had more than doubled. The jury found that the Kauffmans were damaged and awarded them $30,000 for negligence and $70,000 for fraud.

An insurance company satisfied the negligence judgment and Reinhart decided to appeal the fraud judgment. Reinhart retained defendant to represent it on appeal. Defendant and Reinhart's corporate counsel agreed that the key issue on appeal would be whether the verdict represented duplicative damages.

Defendant timely filed a claim of appeal. For reasons not shown in the record, it took over a year to get all the transcripts filed. There was some dispute over when the last transcript was filed, thus starting the time running under MCR 7.212(A)(1)(a)(ii) for filing the appellant brief. The Kauffmans' attorney filed a motion to dismiss the appeal after the time for filing an appellant brief had passed according to his calculations. Defendant responded by letter, claiming that his brief was not due until August 28, 1985. Defendant neither answered the motion in accordance with MCR 7.211(B), nor filed a brief by August 28, 1985.

This Court dismissed the appeal by order dated October 15, 1985. Defendant did not file a timely motion for rehearing under MCR 7.215(H). His later attempts to reinstate the case and to have the Court consider it as a delayed application for leave to appeal were refused by the clerk of this Court as untimely. Reinhart then paid the judgment plus accumulated interest and sued defendant for malpractice and breach of contract.

I

The primary issue presented in this case is whether, in a case involving appellate malpractice, the question of proximate cause is a question of law for the trial court or a question of fact for the jury. The trial court in this case ruled that it was a question of fact for the jury. We agree.

This is a question of first impression in Michigan. In general, to establish attorney malpractice, a plaintiff must prove: (1) the existence of an attorney-client relationship; (2) the acts allegedly constituting the negligence; (3) that the negligence was a proximate cause of the injury; and (4) the existence and extent of the injury alleged. Espinoza v. Thomas, 189 Mich.App. 110, 115, 472 N.W.2d 16 (1991); Law Offices of Lawrence J. Stockler, P.C. v. Rose, 174 Mich.App. 14, 25-26, 436 N.W.2d 70 (1989).

In this case, the only element disputed on appeal is proximate cause. Proximate cause is usually a question of fact to be decided by the jury; if, however, the facts bearing on proximate cause are not in dispute, and if reasonable minds could not differ, then the issue is one of law for the court. Richards v. Pierce, 162 Mich.App. 308, 317, 412 N.W.2d 725 (1987).

Although not previously confronted with the precise issue now before us, Michigan courts have held that proximate cause in an attorney malpractice case is a question for the trier of fact. See, e.g., Espinoza, supra, 189 Mich.App. at p. 124, 472 N.W.2d 16. Our Supreme Court has treated it as a question of fact, without addressing the issue raised here. Cornelissen v. Ort, 132 Mich. 294, 299, 93 N.W. 617 (1903). In Ignotov v. Reiter, 425 Mich. 391, 390 N.W.2d 614 (1986), an evenly divided Supreme Court did not agree on the outcome or on the analysis; the Court agreed, however, that the question whether the attorney's breach of the duty of care caused the plaintiff's loss was a question of fact. Id. at p. 399, 390 N.W.2d 614 (Levin, J.), p. 400, 390 N.W.2d 614 (Boyle, J.), pp. 404-405, 390 N.W.2d 614 (Riley, J.).

Defendant contends that appellate malpractice is an exception to the general rule. The array of opinions from other jurisdictions in support of defendant's position is impressive, but not, ultimately, persuasive. See Phillips v. Clancy, 152 Ariz. 415, 733 P.2d 300 (App.1986); Fine & Block v. Evans, 201 Ga.App. 294, 411 S.E.2d 73 (1991); Hyduke v. Grant, 351 N.W.2d 675 (Minn.App.1984); Chocktoot v. Smith, 280 Or. 567, 571 P.2d 1255 (1977); Floyd v. Kosko, 285 S.C. 390, 329 S.E.2d 459 (App.1985); Millhouse v. Wiesenthal, 775 S.W.2d 626 (Tex.1989); Daugert v. Pappas, 104 Wash.2d 254, 704 P.2d 600 (1985).

The majority of the Texas Supreme Court articulated this majority view in Millhouse, supra, at p. 628:

The question of whether an appeal would have been successful depends on an analysis of the law and the procedural rules. Millhouse's position 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; a court is qualified in a way a jury is not to determine the merits and probable outcome of an appeal. Thus, in cases of appellate legal malpractice, where the issue of causation hinges on the possible outcome of an appeal, the issue is to be resolved by the court as a question of law.

The majority view rests on a fundamental misconception. It assumes that the issues that were questions of law in the underlying case remain questions of law in the legal malpractice case. They do not. They become questions of fact.

Where a plaintiff claims that an attorney's negligence prevented an appeal from being perfected, the plaintiff must show that, more likely than not, the client would have achieved a better result had the appeal been pursued. Basic Food Industries, Inc. v. Grant, 107 Mich.App. 685, 692-693, 310 N.W.2d 26 (1981). The purpose of this suit-within-a-suit requirement is to insure that the damages claimed to result from the attorney's negligence are more than mere speculation. Id. at p. 693, 310 N.W.2d 26. The jury in the malpractice case applies the customary objective standard of reasonableness. Jackovich v. General Adjustment Bureau, Inc., 119 Mich.App. 221, 230-231, 326 N.W.2d 458 (1982).

In 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. In this case, that question was whether this fictional court would, more likely than not, have set aside some part of the original verdict as duplicative.

Of course, this process can become quite complicated, involving questions of the likelihood of a better result on remand as well as on appeal, and the possibility of settlement at any point in the process. These questions, however, as the record in this case demonstrated, are susceptible of proof and are no more complicated than questions facing juries every day. This Court has recognized the difficulty facing a trial judge in determining appropriate jury instructions in a case within a case. Jackovich supra at p. 230, 326 N.W.2d 458. The instructions are, however , no more difficult than in other complex cases. Complexity alone does not transform a question of law into a question of fact.

The majority view relied on by defendant also posits the superior ability of trial court judges to decide how appellate court panels are likely to rule. We disagree with this aspect of the majority view for the reasons stated in the dissenting opinion in Millhouse, supra at pp. 628-629:

The field of appellate law is no more complicated or obscure than the fields of medicine, chemistry,...