Cook v. Connolly

• Decision Date: 19 April 1985
• Docket Number: No. C6-83-2043,C6-83-2043
• Citation: 366 N.W.2d 287
• Parties: Robin COOK, Appellant, v. John S. CONNOLLY, Respondent,
• Court: Minnesota Supreme Court

Page 287

366 N.W.2d 287

53 USLW 2550

Robin COOK, Appellant, v. John S. CONNOLLY, Respondent,

No. C6-83-2043.

Supreme Court of Minnesota.

April 19, 1985.

Syllabus by the Court

1. The retainer of an attorney by the mother and natural guardian of a child to prosecute the child's personal injury action establishes an attorney-client relationship between the attorney and the child.

2. Court approval of settlement of a minor's personal injury claim does not preclude, by way of collateral estoppel, a subsequent claim that the settlement was inadequate due to attorney malpractice.

3. A legal malpractice claim is a separate, independent cause of action, so it is not a prerequisite to the malpractice claim

that a prior court-approved minor's settlement be set aside.

4. Summary judgment seeks to relieve the court system from unfounded litigation. The rule protecting a professional from honest errors of judgment needs to be considered on motions for summary judgment.

Michael J. Healey, St. Paul, for appellant.

Thomas R. Hughes, St. Paul, James P. Miley, Mark E. Duval, Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

This appeal raises the issue whether a prior court order approving a minor personal injury settlement bars, by collateral estoppel, a subsequent malpractice suit by the injured person against her attorney for an allegedly inadequate settlement. The Court of Appeals, sitting en banc, with two concurrences and two dissents, held that collateral estoppel was a bar. Cook v. Connolly, 353 N.W.2d 184 (Minn.App.1984). We reverse.

On May 1, 1969, plaintiff-appellant Robin Cook, age 4, caught her right arm in the wringer of a washing machine, necessitating amputation of the arm near the shoulder. The child's mother, Carolyn K. Cook, retained defendant-respondent John S. Connolly, a St. Paul attorney, to bring suit. Attorney Connolly commenced an action against the owner of the apartment building where the Cooks lived, the firm providing the caretaker services for the building, and Maytag Company, the manufacturer of the washing machine. When the case was called for trial on April 3, 1973, the child then being 8 years old, the trial court was advised the parties had arrived at a settlement of Robin's claims for $15,000, subject to the court's approval. Following a hearing, the court entered an order approving the proposed disposition, finding this was "a fair and reasonable settlement."

Ten years later, on September 20, 1983, Robin, then 18 years old, commenced this malpractice action against attorney Connolly, alleging that Connolly had negligently failed to plead strict liability against Maytag Company (although negligent, unsafe design had been pleaded) and claiming, further, that Connolly had failed to use proper care in pursuing the products liability claim against Maytag, all with the result that she had received an inadequate settlement. Promptly, without waiting for any pretrial discovery, defendant Connolly moved for summary judgment on the ground of "no privity" between Robin and him at the time of the alleged negligence and on the ground that the prior court-approved settlement was, in the absence of any allegation of fraud, "binding against plaintiff." The trial court granted defendant's motion on the second ground, and on appeal the Court of Appeals affirmed. We granted further review.

I.

We agree, first of all, with the Court of Appeals that Robin Cook is "in privity" with attorney Connolly. Defendant Connolly's argument seems to be that he was retained by Carolyn Cook, the mother, and that Robin was not privy to this retainer, so the first requisite of a malpractice action--proof of an attorney-client relationship--is lacking. There is no merit to this argument. Since Connolly is also here urging collateral estoppel, he concedes, as he must, that the personal injury action was Robin's cause of action. Brunette v. Minneapolis, St. Paul and Sault Ste. Marie Ry. Co., 118 Minn. 444, 446, 137 N.W. 172, 173 (1912). ("It is the infant's case. [She] is the real party plaintiff.") The mother, as authorized by statute, retained Connolly to represent her child. ¹ Because procedurally the child acts through its parent in retaining legal counsel and in maintaining the cause of action should not obscure the reality that the child is the attorney's client. To suggest that Robin's mother alone is the client, and not Robin, is to ignore the mother's representative capacity and the child's direct interest. Maintenance of Robin's cause of action was for Robin's benefit and the attorney was paid for his services from Robin's recovery. We hold that an attorney-client relationship existed between the minor child and attorney Connolly in the handling of the minor's personal injury action.

II.

We now reach the main issue, namely, does collateral estoppel apply? The trial court in 1973, in ordering approval of settlement of the minor's claim for $15,000, found that the settlement was fair and reasonable. In the current malpractice suit, Robin challenges this finding, claiming her minor settlement was not fair and reasonable. Is this a collateral attack? We think not.

For collateral estoppel to apply, among other requirements, the issue raised in the pending litigation must be the same issue that was adjudicated in the prior proceeding, and the party estopped must have had a full and fair opportunity to litigate the issue in the prior proceeding. ² We conclude neither of these requirements has been met here.

In her malpractice action, Robin Cook is claiming that defendant Connolly was negligent in his conduct of the investigation and presentation of the claim against Maytag, and that as a result of this negligence Robin settled for less than her case was worth if it had been properly presented. This is not the same issue that was before the trial court on the proposed settlement approval. The trial court in 1973 was evaluating the adequacy of the proposed settlement, not the adequacy of the minor's legal representation. While there is a correlation between these two matters, the trial court assumes the proposed settlement is the product of adequate legal representation. Ordinarily, the trial court is not in a position to question this assumption because it has before it only the information furnished by counsel in support of the settlement. ³ Even if the trial court should reject a proposed settlement, this need not suggest attorney incompetence, but only difference of opinion. A proposed settlement represents the best judgment of counsel on what is attainable for his or her client based on a wide variety of considerations, each of which some other attorney might weigh differently; and counsel's good faith judgment, even if in error, is not deemed to be malpractice. Glenna v. Sullivan, 310 Minn. 162, 169, 245 N.W.2d 869, 872-73 (1976). In short, at a hearing on approval of a proposed minor settlement, the trial court is not adjudicating issues of legal malpractice.

Neither is the hearing on a proposed minor settlement designed to afford a full and fair opportunity to consider the issue of lawyer competence. The minor's guardian, a layperson, is ill-equipped to raise the issue, much less present it; counsel for both the minor and the defendant are interested in obtaining approval, not disapproval, of the proposed settlement, and the minor's attorney, surely, is unlikely to use the occasion to confess any professional inadequacy.

We agree, therefore, with Judge Foley's dissent. We do not have here the conditions for issue preclusion. The issue of whether the court-approved settlement was fair and reasonable in the light of an allegation that the claimant's attorney had negligently presented that claim, was not adjudicated at the hearing on approval of the proposed minor settlement. We hold collateral estoppel does not apply.

III.

The majority opinion of the Court of Appeals suggests that Robin Cook's malpractice action is premature. The court states that the approval of the $15,000 settlement "must be set aside before appellant can establish damages upon which a malpractice case can be predicated." Cook, 353 N.W.2d at 187. But, as the dissent points out, the malpractice action is a separate, independent action from the action against Maytag. Indeed, if the minor settlement, hypothetically, were set aside and a further recovery then obtained from Maytag, the malpractice action against Connolly would be frustrated for inability any longer to show damages. Or if the minor settlement were set aside and the case against Maytag competently tried to a jury, resulting in a defense verdict, again, plaintiff's separate malpractice action would fail for want of damages. It is not enough for a malpractice plaintiff to prove attorney negligence if the consequence of that negligence has been set aside and remedied in a separate proceeding. ⁴

Moreover, we have recognized that a client may sue her attorney for malpractice in obtaining an inadequate personal injury settlement without first having the settlement set aside. We implicitly so held in Glenna. Compare Becker v. Julien, Blitz & Schlesinger, P.C., 95 Misc.2d 64, 406 N.Y.S.2d 412 (1977). We hold, therefore, that plaintiff's malpractice action is an independent cause of action, not subsumed in the plaintiff's personal injury action, and, consequently, that setting aside the court-approved settlement is not a prerequisite to maintenance of plaintiff's malpractice action.

It follows from this holding that plaintiff's malpractice action is not limited to instances where the results in the minor's personal injury action were the result of fraud on the part of the minor's attorney. The presence of a prior court-approved minor settlement does not make this malpractice suit different from any other malpractice action on the standard of conduct required of the defendant attorney, although it may be relevant evidence...