Zeidwig v. Ward
| Decision Date | 27 July 1989 |
| Docket Number | No. 72316,72316 |
| Citation | 14 Fla. L. Weekly 392,548 So.2d 209 |
| Parties | , 14 Fla. L. Weekly 392 Howard M. ZEIDWIG, etc., et al., Petitioners, v. Joseph WARD, Respondent. |
| Court | Florida Supreme Court |
Melanie G. May of Bunnell and Woulfe, P.A., Fort Lauderdale, for petitioners.
Russell S. Bohn of Edna L. Caruso, P.A. and Montgomery, Searcy & Denney, P.A., West Palm Beach, for respondent.
We have for review Ward v. Zeidwig, 521 So.2d 215 (Fla. 4th DCA 1988), in which the district court held that a claim of legal malpractice against a lawyer for ineffective assistance of counsel in a criminal case is not barred by the doctrine of collateral estoppel where the criminal defendant/claimant has been denied relief in prior criminal postconviction relief proceedings on the same factual circumstances and on ineffective assistance grounds. The district court concluded that it was bound by our decision in Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla.1984), but noted that, absent Romano, it would rule to the contrary. The district court then certified the following question as one of great public importance:
Whether identity of parties or their privies continues to be a prerequisite in Florida to application of the doctrine of collateral estoppel.
Ward v. Zeidwig, 521 So.2d at 219. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We rephrase the question as follows:
Whether identity or mutuality of the parties or their privies is a prerequisite in Florida to the defensive application of the doctrine of collateral estoppel in the criminal-to-civil context.
For the reasons expressed, we answer the certified question in the negative and approve the use of defensive collateral estoppel to prevent a criminal defendant, as a plaintiff, from relitigating the same issue which has been litigated in prior criminal proceedings. In so doing, we also approve the rationale expressed in the Restatement (Second) of Judgments § 85 (1982) entitled "Effect of Criminal Judgment in Subsequent Civil Action."
The facts establish that the respondent, Joseph Ward, was a criminal defendant and a Fort Lauderdale policeman at the time of the offense, and was represented by the petitioner, Attorney Howard M. Zeidwig. We restate the pertinent facts from the district court of appeal opinion:
Ward was charged with and convicted of conspiracy to import and distribute marijuana. Ward's first conviction was reversed but, after retrial, his second conviction was affirmed on appeal.
A summary of the facts in the criminal case are set out in the report of the first appeal, United States v. Meacham, 626 F.2d 503, 506 (5th Cir.1980) (footnote omitted):
The evidence establishes that the appellants [including Ward] conspired to import marijuana from Colombia into the United States. They arranged to have a pilot named Travis Paul and a copilot Paul had selected fly from Ocean Springs, Mississippi, to Colombia to get a load of marijuana. The two pilots were to have flown the marijuana from Colombia to a small airstrip in Newborn, Georgia. Much to the appellants' distress, Paul turned out to be a Drug Enforcement Administration (DEA) informant, and the copilot turned out to be an undercover agent. On October 8, 1978, at the direction of the appellants, Paul and the copilot began their flight in a plane owned by Metsger. Just before reaching the Colombian coast, the plane developed fuel problems and crash-landed in the sea. The crew of a passing ship rescued Paul and the copilot.
On the night of October 10, DEA Special Agent Jack Taylor, who was in charge of the investigation, staged the return of Paul and the copilot to Newborn. Two of the defendants were apprehended at the Newborn airstrip that night. The others were arrested during the following weeks.
At his criminal trial, appellant, a Fort Lauderdale policeman during the time of the conspiracy, contended that he had been working undercover, albeit without approval of his department, against the other defendants and that therefore he did not have the criminal intent required for conviction of the crime. He testified that he had been in contact during the conspiracy with a DEA agent in Connecticut named Hoyt, and had kept Hoyt advised of the activities of the other four defendants. Hoyt, however, testified that although he had spoken on the telephone with appellant in September and October, appellant had reported nothing of value with respect to the case. 626 F.2d at 510. The factual issue, therefore, was whether appellant had in reality been working undercover or had simply "pretended" to be working undercover so as to provide a bogus defense in the event of prosecution. The jury resolved this question against appellant in both trials.
After appellant's second conviction was affirmed on appeal, he filed a motion to vacate, modify or set aside his sentence pursuant to 28 U.S.C. § 2255, on the grounds of ineffective assistance of counsel.
At the hearing on this motion appellant testified that he had taped several telephone conversations with Hoyt, including a conversation on September 21, 1978, during which appellant told Hoyt some of the details of the drug operation, including the names of several of the participants, where the plane was to land upon its return, and the airplane's "N" number. Two former fellow Fort Lauderdale police officers testified that they had listened to the tape of the September 21 conversation near the end of September, and corroborated appellant's version of what the tape revealed. An affidavit of a third police officer stated that he had been with appellant on September 21, 1978, and had overheard appellant's side of the conversation with Hoyt, and that he also had listened to the tape.
Appellant further testified at the hearing on the motion that he had told Zeidwig that he had a tape of the September 21 conversation with Hoyt, but that Zeidwig had refused to listen to the tape, had told appellant that the tape was illegal and inadmissible, and that appellant should destroy the tape. Before his second trial appellant again mentioned the tape to Zeidwig but Zeidwig became very upset, according to appellant, because appellant had not destroyed the tape, and again told appellant that the tape was illegal and inadmissible. Thereafter, appellant did destroy the tape.
Testifying by deposition, Zeidwig explained that he knew about the tape but he felt it unnecessary to listen to it because appellant had explained to him what was on the tape, and that he (Zeidwig) had decided not to attempt to introduce the tape into evidence because he thought it would hurt his client's case.
After the hearing the court denied appellant's motion to vacate, making the following detailed findings of fact and law:
1. The Court, having observed the witnesses testify at trial, credits the testimony of agent Hoyt and discredits the testimony of Ward in respect to what Ward told Hoyt on September 21, 1978. The Court finds that Ward called Hoyt on September 21, but that he did not inform Hoyt of the details of the Alabama smuggling operation;
2. Any tape recording of the September 21, 1978 conversation would have substantiated finding number 1;
3. Any tape recording wherein Ward advised Hoyt of any details of the smuggling operation would have taken place after September 21, 1978;
4. Hoyt called Ward on September 22, 1978 and was informed by Ward that he was going to assist a friend in purchasing a DC-3 in Texas which would be used to haul freight for Litton Industries and for carrying skydivers;
5. Jerry Pickett could not testify at Ward's second trial whether he was in fact at Ward's house on September 21, 1978 or whether it was in October of 1978. The Court finds that he was not present at Ward's house on September 21, 1978;
6. Gene Dodge had no personal knowledge (except what he was told by Ward) as to the specific date Ward called agent Hoyt with information;
7. Donald Schultz had no personal knowledge (except what he was told by Ward) as to the specific date Ward called agent Hoyt with information;
8. Any taped conversation which Pickett, Dodge, or Schultz heard wherein Ward advised of the marijuana smuggling details would have occurred after September 21, 1978;
9. From August 1978 through October 10, 1978, Ward was not acting under the authority of the Fort Lauderdale Police Department or any agency of the DEA;
10. Ward initiated no contact with any law enforcement agency or agent Hoyt after September 21, 1978 until he called Hoyt on October 10, 1978 and informed Hoyt that he had some names of some people he expected to be involved in marijuana smuggling;
11. Zeidwig did not listen to Ward's September 21, 1978 tape;
12. The United States had no knowledge that Ward had taped any conversations relative to this case;
13. Zeidwig did advise Ward that he may have violated Florida Statute § 934 [ch. 934] and that in his opinion, he was not within the law enforcement exception;
14. Zeidwig did walk out of his office when Ward attempted to play a tape to him in the presence of Pickett and Dodge because Zeidwig did not want to risk affecting his confidential attorney/client relationship with Ward and because the tapes may have been obtained in violation of Florida Statute § 934 [ch. 934];
15. Zeidwig never advised Ward that the September 21, 1978 tape was inadmissible in Court;
16. Zeidwig never advised Ward that it was a crime to play the tape;
17. Zeidwig never advised Ward to destroy the tape;
18. If in fact Ward did destroy the tape, he did it on his own initiative and not on the advice of Zeidwig.
19. Ward sought to use the September 21, 1978 tape recording during the course of his second trial but Zeidwig made the decision not to use and/or attempt to admit the tape into evidence at trial.
Ward v. Zeidwig, 521 So.2d at 216-18 (citation omitted; emphasis in original).
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