Kandalaft v John M. Peters, PLC, unpublished per curiam opinion of the court of appeals, issued April 17, 2007 (Docket No. 267497)

Link: http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20070417_C267471_85_267471.OPN.PDF

Underlying Case or Transaction: Appellate litigation

Key Concepts: (1) causation; (2) attorney-judgment rule; (3) failure to present expert testimony

Plaintiff appealed the grant of summary disposition in favor of defendant Peters on plaintiff's malpractice claims. Those claims arose from a matter involving a property dispute between Plaintiff and Cvetko Zdravovski pertaining to an alleged encroachment of Plaintiff's building onto a property owned by Zdravovski (the "underlying litigation"). Peters filed a motion for summary disposition on plaintiff's behalf in the underlying litigation, which was granted. On appeal, the trial court's ruling was reversed.

In the subsequent malpractice action, Plaintiff claimed Peters committed malpractice by (1) failing to submit important documentary evidence to both the trial court and the court of appeals; (2) failing to present arguments that were successful in the trial court to the court of appeals; and (3) failing to ask the court of appeals for reconsideration.

The trial court granted summary disposition on these claims and the court of appeals affirmed. First, the court of appeals explained that a plaintiff in a legal malpractice action asserting negligence in an appeal must prove two aspects of causation in fact: "whether the attorney's negligence caused the loss or unfavorable result of the appeal, and whether the loss or unfavorable result of the appeal in turn caused a loss or unfavorable result in the underlying litigation." Charles Reinhart Co v Winiemko, 444 Mich 579, 588; 513 NW2d 773 (1994). The question of whether an underlying appeal would have been successful is reserved to the court "because whether an appeal would have been successful intrinsically involves issues of law with the exclusive province of the judiciary." Id. at 608.

Here, since there was no "magic bullet" argument or document that Peters could have presented on Plaintiff's behalf that would have changed the outcome on the appeal in the underlying litigation, it was logical to infer that Plaintiff's alleged injury -- the reversal of the grant of summary disposition -- was not based on Peters' negligence or malpractice, but rather on the legal insufficiency of Plaintiff's claims in the underlying litigation.

Next, the court of appeals found that Peters had presented all of the arguments to the court of appeals that had been presented to the trial court. Plaintiff failed to comprehend that all of the arguments, as set forth in the lower court record and the brief on appeal, were all before the court of appeals for consideration and review pursuant to MCR 7.210(A)(1). Moreover, an appellate attorney's decision pertaining to which issues to raise is a matter of judgment and generally does not comprise grounds for claiming malpractice if the attorney acts in good faith and exercises reasonable care. Simko v Blake, 448 Mich 648, 658; 532 NW2d 842 (1995). An appellate attorney is not required to raise every claim of arguable legal merit in order to be an effective counsel. People v Reed, 449 Mich 375, 382; 535 NW2d 496 (1995).

Similarly, Peters' decision to appeal the court of appeal's decision to the supreme court rather than seek reconsideration fell squarely within the attorney-judgment rule. That rule recognizes that decisions involving trial tactics or litigation strategy may avoid the issue of legal liability. An attorney is responsible for fashioning a strategy or representation that is consistent with the law, but does not have to insure the most favorable possible outcome.

Finally, Plaintiff contested the trial court's dismissal of his claims based on his failure to present expert testimony that malpractice was committed and the interplay of the attorney-judgment rule. However, a plaintiff's claim that a lawyer breached the standard of care must generally be supported by expert testimony. Law Offices of Lawrence J. Stockler, PC v Rose, 174 Mich App 14, 48; 436 NW2d 70 (1989). As such, the trial court did not err when it concluded that expert testimony would be required to establish a prima facie case of legal malpractice under the factual circumstances presented.