Rosenberg v. Shostak
| Decision Date | 13 August 2013 |
| Docket Number | No. ED 98219.,ED 98219. |
| Citation | 405 S.W.3d 8 |
| Court | Missouri Court of Appeals |
| Parties | Mark R. ROSENBERG, Appellant, v. Burton H. SHOSTAK and Moline & Mehan, LLC, Respondents. |
OPINION TEXT STARTS HERE
Frank K. Carlson, Union, MO, for appellant.
Joseph L. Green (Burton H. Shostak), Chesterfield, MO, Lawrence R. Smith (Moline & Mehan, LLC), Clayton, MO, for respondents.
Dr. Mark R. Rosenberg (Plaintiff) appeals the judgment of the Circuit Court of St. Louis County granting summary judgment in favor of Burton H. Shostak and his former law firm, Moline & Mehan, LLC (the Firm) (collectively, Defendants), on Plaintiff's petition for legal malpractice. Plaintiff argues that the trial court erred in granting Defendants' motion for summary judgment because: (1) genuine issues of material fact remain in dispute; (2) the statute of limitations did not bar Plaintiff's claim; (3) neither Plaintiff's criminal conviction, the denial of his coram nobis petition, nor the medical licensing boards' disciplinary actions collaterally estopped Plaintiff's claim; (4) Plaintiff's inconsistent positions did not judicially estop his claim; and (5) Defendants were not entitled to estoppel due to unclean hands. We affirm.
The record reveals the following undisputed facts: Plaintiff was licensed to practice medicine in Missouri, Kentucky, Maryland, North Carolina, and Ohio and was certified as a specialist in psychiatry by the American Board of Psychiatry and Neurology, Inc. (ABPN). Plaintiff served as officer, director, and shareholder of Neuropsychiatric and Counseling, P.S.C., a Kentucky professional services corporation (the Corporation). The Corporation discontinued operations following a raid by federal agents. Plaintiff retained Mr. Shostak and the Firm in connection with “the investigation currently being conducted relative to alleged insurance fraud in the northern Kentucky area and any criminal litigation that may result from it in the United States District Court.” 1
The United States Attorney charged Plaintiff with two misdemeanor counts of knowingly receiving and retaining stolen property of the United States. Plaintiff agreed to plead guilty pursuant to a plea agreement. At the plea hearing, Plaintiff admitted that when a physician working for the Corporation was not certified with a particular insurance company, the Corporation billed that physician's services in the name of a physician who was certified and accepted payment from the insurance company. Plaintiff acknowledged that he was aware of these improper billing practices and that the affected insurance companies included Medicare and other health insurance programs of the United States government. Plaintiff pleaded guilty to both counts. The United States District Court for the Eastern District of Kentucky sentenced Plaintiff to a term of two years' probation and ordered him to pay restitution of $209,435.78.2
Plaintiff notified the medical licensing boards of Missouri, Kentucky, Maryland, North Carolina, and Ohio of his conviction. Based on the conviction, the Missouri board publicly reprimanded Plaintiff, the Kentucky and North Carolina boards placed him on probation, the Ohio board suspended him, and the Maryland board revoked his medical license. Due to the boards' disciplinary actions, the ABPN revoked Plaintiff's certification as a specialist in psychiatry.
Plaintiff filed a petition for writ of error coram nobis in the United States District Court for the Eastern District of Kentucky. Plaintiff sought to vacate his conviction due to ineffective assistance of counsel, alleging that Defendants misadvised him about the “extreme collateral consequences” of pleading guilty. Plaintiff asserted that as a result of Defendants' inaccurate advice, he did not plead guilty knowingly, voluntarily, or intelligently. After an evidentiary hearing, the district court found that Defendants did not misadvise Plaintiff concerning the effect of his guilty plea on his medical licenses and that Defendants “conveyed only [the] belief or hope that the negotiated plea would avoid license issues as well as imprisonment.” The district court also found that at the time of the guilty plea, Plaintiff was aware of potential adverse consequences. The district court determined that Defendants did not render ineffective assistance of counsel and denied Plaintiff's petition.
Plaintiff filed a legal malpractice petition alleging that he pleaded guilty “upon the advice [of] Defendant Shostak, even though [Plaintiff] was not guilty and had a good and meritorious defense, because Defendant Shostak regularly and repeatedly assured Plaintiff that if he took the federal plea there would be no negative impact [on Plaintiff's] professional licensing status.” Plaintiff claimed that but for Mr. Shostak's allegedly negligent advice, he would have proceeded to trial and succeeded in defending the criminal charges. Plaintiff stated that as a result of Defendants' advice, he incurred the following damages: (1) the medical boards' disciplinary actions; (2) the ABPN's revocation of his specialist certification; (3) expenditure of attorneys' fees and restitution; (4) loss of income; and (5) “emotional and medical injury and damages,” including being “subject to embarrassment and humiliation by his peers, fellow workers, employees, friends and family.”
The Firm filed a motion for summary judgment, and the trial court granted Mr. Shostak leave to join the motion. Defendants contended that they were entitled to judgment as a matter of law on the grounds that the following barred Plaintiff's claim: ( l )the statute of limitations; (2) collateral estoppel based on Plaintiff's guilty plea and conviction, his unsuccessful petition for writ of error coram nobis, or the medical boards' disciplinary actions; and (3) judicial estoppel due to Plaintiff's inconsistent positions regarding Mr. Shostak's advice. The trial court granted Defendants' motion without providing a basis for its decision. Plaintiff appeals.
We review the entry of summary judgment de novo.3ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. “Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law.” Id. Thus, “[t]he propriety of summary judgment is purely an issue of law.” Id.
“As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.” Id. “If the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the decision if it was appropriate under any theory.” English ex rel. Davis v. Hershewe, 312 S.W.3d 402, 404 (Mo.App. S.D.2010) (quotation omitted).
When reviewing a trial court's grant of summary judgment, this court views the record in the light most favorable to the party against whom summary judgment was entered. ITT Commercial Fin. Corp., 854 S.W.2d at 376. “Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion.” Id. “We accord the non-movant the benefit of all reasonable inferences from the record.” Id.
Plaintiff presents seven points on appeal. Because our resolution of Plaintiff's third point is dispositive of the appeal, we decline to address his remaining six points.
In his third point on appeal, Plaintiff claims that the trial court erred in granting summary judgment in Defendants' favor because they were not entitled to judgment as a matter of law on the ground that Plaintiff's criminal conviction has not been vacated. More specifically, Plaintiff argues that vacation of his conviction was not a prerequisite to maintaining his legal malpractice action against Defendants. Defendants respond that Plaintiff's criminal conviction collaterally estopped him from demonstrating his innocence, which is an indispensable element of his malpractice claim. In particular, Defendants maintain that Plaintiff's guilt, which was established by his guilty plea and the federal district court's denial of post-conviction relief, collaterally estopped Plaintiff from proving that Defendants' actions proximately caused his damages.
The four elements of a legal malpractice action are: “(1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation of plaintiff's damages; [and] (4) damages to the plaintiff.” Klemme v. Best, 941 S.W.2d 493, 495 (Mo. banc 1997). A defendant moving for summary judgment may establish a right to judgment as a matter of law by demonstrating that the plaintiff “cannot and will not be able to prove one or more elements of [its] claim.” Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. banc 2006).
“Collateral estoppel, or issue preclusion, is used to preclude the relitigation of an issue that already has been decided in a different cause of action.” Brown v. Carnahan, 370 S.W.3d 637, 658–59 (Mo. banc 2012). Collateral estoppel applies when: (1) the issue in the present case is identical to an issue decided in the prior adjudication; (2) the court in the prior adjudication rendered a judgment on the merits; (3) the party against whom collateral estoppel is asserted is the same party or in privity with a party in the prior adjudication; and (4) the party against whom collateral...
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