Kerkman v. Varnum, Riddering, Schmidt and Howlett
| Decision Date | 31 May 1994 |
| Docket Number | No. 96548,No. 143791,96548,143791 |
| Citation | 519 N.W.2d 862 |
| Parties | Charles H. KERKMAN and Mary P. Kerkman, his wife, Plaintiffs-Appellants, v. VARNUM, RIDDERING, SCHMIDT AND HOWLETT, a Michigan partnership, and Dennis C. Kolenda, individually, Defendants-Appellees. COA |
| Court | Michigan Supreme Court |
On order of the Court, the motion for reconsideration of this Court's order of November 12, 1993, 511 N.W.2d 685 is considered, and it is DENIED, because it does not appear that the order was entered erroneously.
LEVIN, J., states as follows:
I would remand to the Court of Appeals for reconsideration in light of Gebhardt v. O'Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994).
The Court of Appeals granted a motion to affirm "for the reason that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission."
The defendants' motion was based on (1) the assertion that the legal malpractice claim of a defendant in a criminal case is barred under the doctrine of collateral estoppel by an adverse determination of his claim that he was denied the effective assistance of counsel, and (2) the decision of the Court of Appeals in Gebhardt v. O'Rourke, 195 Mich.App. 506, 491 N.W.2d 249 (1992), in which the Court of Appeals declared that a defendant in a criminal case cannot maintain an action for malpractice unless he obtains postconviction relief.
This Court reversed Gebhardt and, in so doing, did not opine about whether an adverse determination of the effective assistance issue would bar an action for legal malpractice.
It is unclear whether, in summarily affirming the dismissal of this action "for the reason that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission," the Court of Appeals was relying on Gebhardt, subsequently reversed by this Court, or was deciding the question that this Court did not decide (collateral estoppel). 1
Since this Court reversed the decision of the Court of Appeals in Gebhardt, this case should be remanded to the Court of Appeals so that that Court can consider the collateral estoppel issue.
Although there is case law against the plaintiff, a judgment in an ineffective assistance case should not ordinarily collaterally estop a legal malpractice action. 2
The Restatement of 1 Judgments, 2d, § 28, p. 273, states the applicable rule of law.
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
* * * * * *
(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action.... [Emphasis added.]
It cannot properly be said that a convicted person who does not prevail in an ineffective assistance case would necessarily be unable to show prejudice in a legal malpractice case. The ineffective assistance case may be dismissed because the plaintiff was unable to show, under the daunting standard for showing ineffective assistance, that the level of performance was less than required. If the ineffective assistance case is dismissed on that basis, the ineffective assistance court need not and probably will not reach the prejudice issue. If the ineffective assistance court reaches the prejudice issue, there might then be justification in a particular case for applying the doctrine of collateral estoppel, but that requires a far more careful review of the record in the criminal trial and of the record in the ineffective...
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Rantz v. Kaufman
...(1999), cert. denied, 461 Mich. 966, 607 N.W.2d 728 (2000); Krahn, 538 N.E.2d at 1062, n. 8. But see Kerkman v. Varnum, Riddering Schmidt and Howlett, 519 N.W.2d 862, 864 (Mich.1994) (pointing to the "daunting standard for showing ineffective assistance," stating that "it cannot properly be......