King v. Superior Court, 17078-SA

CourtSupreme Court of Arizona
Writing for the CourtGORDON; HOLOHAN
Citation673 P.2d 787,138 Ariz. 147
PartiesTed KING, et ux., Petitioners, v. The SUPERIOR COURT of the State of Arizona, and E.G. Noyes, Jr., a Judge thereof, and Robert Bauer, et al., Respondents.
Docket NumberNo. 17078-SA,17078-SA
Decision Date09 November 1983

Ted King, in pro. per.

Murphy & Posner by Robert R. Bauer, Phoenix, for respondents.

GORDON, Vice Chief Justice:

In December, 1981, petitioner Ted King was sued by Albert and Saralee Beletz regarding an alleged partnership agreement [hereinafter "the first action"]. The Beletzes requested a declaration that a partnership existed and sought a partnership accounting, the quieting of title to certain partnership properties, and punitive damages. King hired respondent Robert R. Bauer, a partner in the respondent law firm, to defend him in this action. Prior to the trial, the parties agreed to bifurcate the matter. A first trial was to be limited to determining whether a partnership existed. If its existence was established, a second trial would be held on the remaining issues. The first trial took place in early November, 1982; the jury found in favor of the Beletzes, determining that a partnership had indeed existed. 1 Through this point, King was apparently satisfied with Bauer's services.

Within three weeks after the conclusion of the trial, King learned of settlement negotiations that had allegedly taken place before and during the trial. Though his attorney, Bauer, supposedly had participated in them, King had allegedly never been advised of nor consulted about the negotiations. On November 30, 1982, King terminated Bauer's employment and also requested the return of his file on the Beletz partnership matter. The file was not returned. In mid-January, 1983, King, acting pro se, filed a Motion for New Trial. In that motion, he alleged that Bauer's conduct at trial and Bauer's failure to confer with him about the settlement offers had prejudiced the case against him. To obtain documentary support for this motion, King moved to compel Bauer to release his file to him. Bauer refused, stating that

"[i]nasmuch as we are not a party to this litigation and the Court does not have jurisdiction over us, we do not intend to make any appearance in this matter nor respond to the motion [to compel]." 2

King's Motion to Compel and his Motion for New Trial were denied. Final judgment was entered against him.

On April 13, 1983, King, still acting pro se, filed a lawsuit against Bauer asserting several acts of legal malpractice [hereinafter "the second action"]. These charges encompassed the same issues as those raised by King in his pro se Motion for New Trial in the first action. Bauer filed a Motion to Dismiss the second action pursuant to Ariz.R.Civ.P. 12(b). He maintained that King's complaint failed to state a claim upon which relief could be granted because "all of the issues presented in the complaint were presented * * * [in the] Motion for New Trial * * * and decided against Mr. King * * * thereby collaterally estopping him from raising those issues anew in this or any other litigation." A minute entry granting the Motion to Dismiss with prejudice was entered on July 18, 1983. One month later, King, still acting pro se, challenged the minute entry in a Petition for Special Action to this Court.

We accepted jurisdiction pursuant to Ariz. Const. art. 6, § 5 and Ariz.R.P.Sp.Act. 4. The acceptance of jurisdiction of a petition for special action is highly discretionary in this Court, Wicks v. City of Tucson, 112 Ariz. 487, 543 P.2d 1116 (1975); State Bar Committee Notes, Ariz.R.P.Sp.Act. 3. We generally accept jurisdiction of these cases only where the issues raised in the petition are such that justice cannot be satisfactorily obtained by other means, Nataros v. Superior Court of Maricopa County, 113 Ariz. 498, 557 P.2d 1055 (1976). For example, jurisdiction is usually refused when there is an adequate remedy available to the petitioner by appeal, Graham v. Ridge, 107 Ariz. 387, 489 P.2d 24 (1971); Armstrong v. City Court of Scottsdale, 118 Ariz. 593, 578 P.2d 1022 (App.1978). However, jurisdiction is frequently accepted when under no rule of law can a trial court's actions be justified, State v. Superior Court of Maricopa County, 129 Ariz. 156, 629 P.2d 992 (1981); Western Waste Service Systems, Inc. v. Superior Court of Maricopa County, 120 Ariz. 90, 584 P.2d 554 (1978); Nataros, supra. In the instant case, we agree with petitioner King that the trial court's ruling on Bauer's Motion to Dismiss was without precedent or support in the law and could not be justified. Jurisdiction is, thus, proper. 3

In its minute entry dismissing the legal malpractice action, the trial court stated:

"The allegations raised in Plaintiff's * * * complaint all pertain to the attorney-client relationship that existed in [the first action] between Plaintiff and Defendant. Those allegations were all presented to the Judge in [that] action in connection with this Plaintiff's Motion for New Trial in that case; all allegations were there resolved against plaintiff.

* * *

* * *

"Plaintiff had full and fair opportunity to present his case on those issues to the trial judge in [the first action]; he did so and is bound by the final judgment * * *.

"IT IS THEREFORE ORDERED granting Defendant's Motion to Dismiss, with prejudice, the complaint."

We cannot agree with the trial court's analysis or result. Therefore, we vacate the trial court's order dismissing the second action, order the complaint in the second action (Maricopa County Action No. 484999) reinstated, and remand to the trial court for further proceedings not inconsistent with this opinion.

It is clear that a judgment on the merits of an issue generally precludes relitigation of that issue in a subsequent suit. See Yavapai County v. Wilkinson, 111 Ariz. 530, 534 P.2d 735 (1975); Industrial Park Corp. v. U.S.I.F. Palo Verde Corp., 26 Ariz.App. 204, 547 P.2d 56 (1976). However, it is equally clear that the preclusion exists only when an issue was actually litigated and determined in the prior suit. Krumtum v. Burton, 111 Ariz. 448, 532 P.2d 510 (1975); Industrial Park, supra. If an issue was neither essential nor necessary to the prior judgment, such preclusion is inappropriate, Sekaquaptewa v. MacDonald, 448 F.Supp. 1183 (D.Ariz.1978), rev'd in part on other grounds, 619 F.2d 801 (9th Cir.) cert. denied, 449 U.S. 1010, 101 S.Ct. 565, 66 L.Ed.2d 468 (1980). The Restatement (Second) of Judgments § 27 states the general rule as follows:

"When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim."

In Arizona, the determination of an issue may also be conclusive in a subsequent action when, as here, it is raised by a party not involved in the prior action so long as it is asserted defensively against a party who was involved in that prior action. Standage Ventures, Inc. v. State, 114 Ariz. 480, 562 P.2d 360 (1977). Thus, Bauer can defensively assert against King any issues actually litigated and determined, and essential to the judgment, in the first action.

As noted above, the first action was limited to a jury determination of whether a partnership existed between the parties. The alleged acts of legal malpractice at issue in the second action were neither litigated in the trial portion of the first action nor essential to the jury's verdict therein. Bauer asserted in his motion to dismiss the second action, however, that those alleged acts were litigated and determined in, and essential to the ruling on, King's Motion for New Trial in the first action. The trial court concurred and dismissed on this basis.

We cannot agree that King's assertions of attorney malpractice were necessarily litigated and determined in, and essential to the ruling on, King's Motion for New Trial. Motions for new trials and the hearings thereon allow the trial court to reexamine the litigated issues and the conduct of a trial. Ariz.R.Civ.P. 59(a) allows the trial court to vacate a verdict, decision, or judgment and grant a new trial for any of the following causes:

"1. Irregularity in the proceedings of the court, referee, jury or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial.

"2. Misconduct of the jury or prevailing party.

"3. Accident or surprise which could not have been prevented by ordinary prudence.

"4. Material evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at the trial.

"5. Excessive or insufficient damages.

"6. Error in the admission or rejection of evidence, error in the charge to the jury, or in refusing instructions requested, or other errors of law occurring at the trial or during the progress of the action.

"7. That the verdict is the result of passion or prejudice.

"8. That the verdict, decision, findings of fact, or judgment is not justified by the evidence or is contrary to law."

Though a trial court does have broad discretionary powers when considering a motion for new trial, Reeves v. Markle, 119 Ariz. 159, 579 P.2d 1382 (1978), those powers are not unlimited. While attorney misconduct can be a basis for the granting of a new trial, see, e.g., Taylor v. Southern Pacific Transportation Co., 130 Ariz. 516, 637 P.2d 726 (1981), we have fully examined Rule 59(a) and find that a party's mere dissatisfaction with his own counsel or allegations of his own counsel's neglect, inadvertence, or mistake do not justify the granting of a new trial in civil cases. 4 See Andrea Dumon, Inc. v. Pittway Corp., 110 Ill.App.3d 481, 66 Ill.Dec. 148, 442 N.E.2d 574 (1982); Engelbrechten v. Galvanoni & Nevy Bros., Inc., 60 Misc.2d 419, 302 N.Y.S.2d 691 (1969); Wilson v. Sherman, 461 P.2d 606 (Okl.1969); Scheffer v....

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