Knoblauch v. Kenyon

• Decision Date: 24 November 1987
• Docket Number: Docket No. 92418
• Citation: 163 Mich.App. 712,415 N.W.2d 286
• Parties: Gerald KNOBLAUCH, Plaintiff-Appellant, v. William KENYON, Defendant-Appellee. 163 Mich.App. 712, 415 N.W.2d 286
• Court: Court of Appeal of Michigan — District of US

Page 286

415 N.W.2d 286

Gerald KNOBLAUCH, Plaintiff-Appellant, v. William KENYON, Defendant-Appellee.

Docket No. 92418.

163 Mich.App. 712, 415 N.W.2d 286

Court of Appeals of Michigan.

Submitted March 17, 1987.

Decided Oct. 19, 1987.

Released for Publication Nov. 24, 1987.

[163 MICHAPP 713] Thomas L. Stringer, P.C. by Thomas D. Yannitelli, Ann Arbor, for plaintiff-appellant.

Miller, Canfield, Paddock & Stone by Allyn D. Kantor and Kay Holsinger, Ann Arbor, for defendant-appellee.

Before MacKENZIE, P.J., and BEASLEY and QUINNELL, ^* JJ.

MacKENZIE, Presiding Judge.

In this legal malpractice action, plaintiff appeals as of right from an order granting summary disposition in favor of defendant attorney pursuant to MCR 2.116(C)(7). We affirm.

Plaintiff was charged in January, 1983, with first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a), for penetrating with his finger a person under thirteen years of age. Defendant was appointed to serve as defense counsel. Following a bench trial, plaintiff was found guilty as charged.

Plaintiff released defendant as his attorney and [163 MICHAPP 714] moved for a new trial, claiming ineffective assistance of counsel and the existence of new evidence. At the conclusion of an evidentiary hearing at which both plaintiff and defendant testified, the trial court granted the motion on the ground that defense counsel should have introduced a doctor's report indicating that there was no medical evidence that the victim had been sexually penetrated. On a subsequent prosecutorial motion, the trial court vacated the order granting a new trial and entered a conviction of second-degree criminal sexual conduct. Plaintiff was sentenced to six months in jail and four and one-half years' probation.

Plaintiff appealed to this Court (People v. Knoblauch, unpublished opinion per curiam, decided December 27, 1984 [Docket No. 73750] ), arguing, inter alia, ineffective assistance of counsel under the bifurcated test of People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976). Specifically, plaintiff claimed three errors which denied him effective assistance of counsel: (1) defense counsel's failure to request a Walker hearing [People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965) ]; (2) his failure to engage in complete discovery; and (3) his advice that plaintiff waive the right to a jury trial. This Court concluded that plaintiff was not denied effective assistance of counsel. The panel stated that "[t]he evidence adduced at trial was strong in supporting [plaintiff's] conviction; a different result was not probable had defense counsel performed the tasks [plaintiff] claims should have been done." The panel further noted that, even if plaintiff had been arguably denied effective assistance of counsel, the trial court negated the effect of any ineffectiveness by entering a conviction of second-degree criminal sexual conduct. The Supreme Court denied leave. Nusenbaum v. Michigan Dept. of Treasury, 422 Mich. 961, 372 N.W.2d 323 (1985).

[163 MICHAPP 715] On April 18, 1985, plaintiff filed the instant legal malpractice action asserting essentially the same grounds as had been raised in his ineffective assistance of counsel claim. Defendant answered in pro per, denying the allegations. Approximately one month later, his retained counsel filed an amended answer asserting collateral estoppel as an affirmative defense. Defendant then moved for summary disposition pursuant to MCR 2.116(C)(7), based on the collateral estoppel defense. The trial court granted the motion. The court initially found that defendant's failure to plead collateral estoppel as an affirmative defense in his first responsive pleading did not make the defense untimely. Addressing the merits of the motion, the court then concluded that the standards for determining ineffective assistance of counsel and malpractice were essentially the same and that, because the matter in dispute had been previously decided in the criminal matter and again on appeal, collateral estoppel barred relitigation of the issue.

Plaintiff raises both procedural and substantive issues on appeal. Procedurally, he contends that the trial court erred in deciding the merits of defendant's motion, since the affirmative defense of collateral estoppel was not raised in defendant's first responsive pleading. We disagree. MCR 2.116(D)(2) requires that the grounds for a motion under MCR 2.116(C)(7) asserting that a plaintiff's claim is barred must "be raised not later than a party's responsive pleading." "[T]here is no requirement that these grounds be raised in the party's 'first' responsive pleading. Thus, they are subject to the court's authority to grant permission to amend the [answer] to add the defense under MCR 2.118." 1 Martin, Dean & Webster, Michigan Court Rules Practice, p 300. This result is consistent with cases examining GCR 1963, 116.1, the [163 MICHAPP 716] predecessor to MCR 2.116(D)(2). See Harris v. Lapeer Public School System, 114 Mich.App. 107, 113, 318 N.W.2d 621 (1982); Manufacturer's Construction Co. v. Covenant Investment Co., 43 Mich.App. 123, 204 N.W.2d 54 (1972), lv. den. 388 Mich. 810 (1972). The trial court correctly determined that defendant's motion was not procedurally defective.

Substantively, plaintiff contends that the trial court erred in finding him collaterally estopped from asserting a claim of legal malpractice. As noted by the trial court, the question whether a criminal defendant who has raised and obtained a ruling on the issue of ineffective assistance of counsel is collaterally estopped from subsequently asserting a claim of legal malpractice appears to be one of first impression in this state.

Collateral estoppel bars the relitigation of issues previously decided when such issues are raised in a subsequent suit by the same parties based upon a different cause of action. Topps-Toeller, Inc, v. City of Lansing, 47 Mich.App. 720, 727, 209 N.W.2d 843 (1973), lv. den. 390 Mich. 788 (1973). In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action. The parties must also have had a full opportunity to litigate the ultimate issues in the former action. Stolaruk Corp. v. Dep't of Transportation, 114 Mich.App. 357, 362, 319 N.W.2d 581 (1982).

In this case, the trial court concluded that plaintiff's previous allegation of ineffective assistance of counsel raised "essentially the very same issues that have been raised" in the instant legal malpractice case. Noting that plaintiff had an opportunity to assert the same issues and have them reviewed under the same standards as apply in a malpractice claim, the court found that the "identity of issues" requirement for application of collateral[163 MICHAPP 717] estoppel, see Local 98 v. Flamegas Detroit Corp., 52 Mich.App. 297, 302, 217 N.W.2d 131 (1974), was satisfied. Plaintiff claims this was error. According to plaintiff, the standards for finding ineffective assistance of counsel and legal malpractice are different, and the ineffective assistance of counsel standard is more difficult for a client to meet. We disagree.

People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976), established a two-pronged test for determining whether a criminal defendant had received effective assistance of counsel. In Garcia, the Court adopted the reasoning in Beasley v. United States, 491 F.2d 687, 696 (C.A. 6, 1974), in holding that "[d]efense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law," Garcia, 398 Mich. at 264, 247 N.W.2d 547; and People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969), that even if defense counsel satisfies constitutional standards defendant may still be entitled to a new trial if defense counsel makes a "serious mistake" "but for [which] defendant would have had a reasonably likely chance of acquittal." Garcia, 398 Mich. at 266, 247 N.W.2d 547. The standard for legal malpractice is stated in SJI2d 30.01, Professional Negligence and/or Malpractice:

"When I use the words 'professional negligence' or 'malpractice' with respect to the defendant's conduct, I mean the failure to do something which [an attorney] of ordinary learning, judgment or skill in this community would do, or the doing of something which [an attorney] of ordinary learning, judgment or skill would not do, under the same or similar circumstances you find to exist in this case.

"It is for you to decide, based upon the evidence, what the ordinary [attorney] of ordinary learning, judgment or skill would do or would not do under the same or similar circumstances."

[163 MICHAPP 718] Plaintiff concedes that the SJI is patterned after Garcia, but maintains that because the test for ineffective assistance of counsel contains the extra requirement not present in a legal malpractice case--that counsel's mistake was that but for which the defendant would have had a reasonable chance for acquittal--the test for civil malpractice is a less demanding one for the client to satisfy. The argument fails for two reasons.

First, in legal malpractice cases such as the instant one, where the client's injury is not the dollar amount of a judgment entered against him in the underlying case but rather the fact that he sustained an adverse judgment, the client must also show that but for the act or omission complained of he would have been successful in the underlying case. See generally Basic Food Industries, Inc. v. Grant, 107 Mich.App. 685, 310 N.W.2d 26 (1981), lv. den. 413 Mich. 913 (1982). This proof of damages is clearly a corollary to the second prong of the Garcia test.

Second, contrary to plaintiff's reading, Garcia 's two-part test for ineffective assistance of counsel is not cumulative but disjunctive. People v. Hunter, 141 Mich.App. 225, 367 N.W.2d 70 (1985), lv. den. 426 Mich. 871 (1986). Thus, a criminal defendant...