PUBLISHED OPINION
Case No.: 96-1075
†Petition for
Review Filed
Complete Title
of Case:
JOSEPH C. PIERCE,
Plaintiff-Appellant,†
v.
RONALD K. COLWELL and
COLWELL LAW OFFICE,
jointly, severally, and
in the alternative,
Defendants-Respondents.
Submitted on Briefs: February 6, 1997
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: March 5, 1997
Opinion Filed: March
5, 1997
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If
"Special", JUDGE: ROBERT A. HAASE
so indicate)
JUDGES: Snyder, P.J., Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Joseph C. Pierce pro se.
Respondent
ATTORNEYSOn behalf of the defendants-respondents, the cause was
submitted on the brief of Craig A. Kubiak of Liebmann, Conway,
Olejniczak & Jerry, S.C. of Green Bay.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED March
5, 1997 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1075
STATE OF WISCONSIN IN
COURT OF APPEALS
JOSEPH
C. PIERCE,
Plaintiff-Appellant,
v.
RONALD
K. COLWELL and
COLWELL
LAW OFFICE,
jointly,
severally, and
in the
alternative,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Winnebago County: ROBERT A. HAASE, Judge. Affirmed.
Before
Snyder, P.J., Nettesheim and Anderson, JJ.
NETTESHEIM,
J. Joseph C. Pierce appeals the summary judgment
dismissal of his legal malpractice action against Attorney Ronald K.
Colwell. Colwell represented Pierce at
sentencing in a prior criminal case.
Pierce alleged that Colwell negligently failed to object to the criminal
court's “competency” to sentence him because the court had not personally read
the information to him at the arraignment.
We affirm the summary judgment.
The Prior Criminal Case
We
first address the prior criminal case.
In an information, the State charged Pierce with ten counts of sexual
assault pursuant to § 948.02(2), Stats.
At the arraignment and the ensuing jury
trial, Pierce was represented by appointed counsel other than Colwell. The jury found Pierce guilty of all ten
counts. Colwell was then appointed to
represent Pierce at the sentencing phase of the proceedings. The criminal court sentenced Pierce to
twenty years in prison.
Pierce
appealed his conviction. He raised six
issues regarding ineffective assistance of counsel. He additionally argued that certain evidence was improperly
admitted and that the criminal court misused its sentencing discretion. Important to this case, Pierce also argued
that his due process rights had been violated because the criminal court did
not personally read the information to him at the arraignment pursuant to
§ 971.05(3), Stats.[1] In an unpublished opinion, this court
rejected all of Pierce's appellate arguments.
See State v. Pierce, No. 92-2263, unpublished slip op.
(Wis. Ct. App. Sept. 30, 1993).
The Present Civil Case
In
this civil case, the gravamen of Pierce's malpractice claim against Colwell is
one of the issues which Pierce raised in the criminal case: the criminal court lacked “competence” to
impose the sentence because the court did not personally address him at the
arraignment. Because Colwell did not
raise this objection at the sentencing, Pierce reasons that Colwell was
negligent.
Colwell
moved for summary judgment. In a
written decision, the trial court cited three grounds for granting Colwell's
motion. First, the court held that
Pierce had failed to show any injury as a result of Colwell's alleged
negligence. Second, the court held that
Pierce had failed to show that Pierce would have successfully defended the
criminal action but for Colwell's alleged negligence. Third, the court held that Pierce had unsuccessfully litigated
the issue in the prior criminal appeal.
We construe this final statement to mean that Pierce was precluded from
further litigating this claim in this civil action. Pierce appeals.
Discussion
1. Issue Preclusion
We
first address the question of whether Pierce is precluded from raising this
issue because he unsuccessfully litigated it in the prior criminal appeal. Whether a trial court correctly dismisses an
action on grounds of issue preclusion presents a question of law which we
review de novo. See Jensen
v. Milwaukee Mut. Ins. Co., 204 Wis.2d 231, 236, 554 N.W.2d 232, 234
(Ct. App. 1996).
Issue
preclusion turns on the concept of fundamental fairness. See id. at 235, 554
N.W.2d at 234. In Michelle T. v.
Crozier, 173 Wis.2d 681, 689, 495 N.W.2d 327, 330-31 (1993), our
supreme court set out “some or all” of the factors which a court may
consider when deciding whether it is fundamentally fair to preclude further
litigation of an issue. These
include: (1) the prior opportunity for
appeal; (2) the nature of the claims and the contexts in which they were
litigated; (3) the differences in the quality or extensiveness of the two
proceedings; (4) the burdens of proof; and (5) public policy and individual
circumstances.
We
conclude that the burden of proof factor governs this case. If the burden of proof was greater in the
first action than in the second, it is inappropriate to apply issue preclusion
against the party now assigned a lesser burden. See Jensen, 204 Wis.2d at 239, 554 N.W.2d at
235. In State v. Brunton,
203 Wis.2d 195, 207, 552 N.W.2d 452, 458 (Ct. App. 1996), this court clarified
that the “clear and convincing” burden of proof applies to claims of due
process violations. Therefore, under Brunton,
Pierce's burden of proof in the criminal case was the clear and convincing
standard. In this civil case, Pierce's
burden of proof is the lesser standard—“reasonable certainty by the greater
weight of the credible evidence.” See
Wis J I—Civil 200.
Therefore,
Pierce was not precluded from bringing this action. We thus turn to the other grounds upon which the trial court
granted summary judgment to Colwell.
2. Summary
Judgment
In
reviewing a grant of summary judgment, this court applies the same standards as
the trial court. A motion for summary
judgment should be granted if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. See Harris v. Bowe, 178
Wis.2d 862, 867, 505 N.W.2d 159, 161 (Ct. App. 1993).
Actionable
legal malpractice consists of the following:
1. existence of the lawyer-client relationship;
2. acts constituting the alleged negligence;
3. negligence as the proximate cause of the
alleged injury; and
4. the fact and extent of injury.
See Lewandowski
v. Continental Cas. Co., 88 Wis.2d 271, 277, 276 N.W.2d 284, 287
(1979).[2] The final element (the fact and extent of
injury) often involves the burden of showing that, but for the negligence of
the attorney, the client would have been successful in the defense of the
action. See id.
Our
supreme court has held that a successful legal malpractice case requires a
plaintiff to prove two cases in a single proceeding (a “suit within a
suit”). See Helmbrecht v.
St. Paul Ins. Co., 122 Wis.2d 94, 103, 362 N.W.2d 118, 124 (1985). This means that if the plaintiff has
established that the lawyer was negligent, the plaintiff must additionally
prove that the case would have been won absent the negligence. Functionally, this further inquiry answers
whether the malpractice was of any consequence; in other words, was the
plaintiff damaged? See Cook
v. Continental Cas. Co., 180 Wis.2d 237, 250, 509 N.W.2d 100, 105 (Ct.
App. 1993).
In
discharging the duty of reasonable care, a lawyer is required to exercise that
degree of knowledge, care, skill, ability and diligence usually possessed and
exercised by members of the legal profession in this state. See Wis
J I—Civil, 1023.5; see also Gustavson v. O'Brien,
87 Wis.2d 193, 199, 274 N.W.2d 627, 630 (1979). While not required in every malpractice case, expert testimony
will generally be required to satisfy this standard of care as to those matters
which fall outside the area of common knowledge and lay comprehension. See Olfe v. Gordon, 93
Wis.2d 173, 180, 286 N.W.2d 573, 576 (1980).
Stated differently, but to the same effect, expert testimony is not
necessary “in cases involving conduct not necessarily related to legal
expertise where the matters to be proven do not involve ‘special knowledge or
skill or experience on subjects which are not within the realm of the ordinary
experience of [persons], and which require special learning, study or
experience.’” Id. at 181,
286 N.W.2d at 577 (quoted source omitted).
Colwell's
summary judgment motion was based on the allegations of Pierce's complaint
coupled with Pierce's failure to name any expert witness within the time limits
set out in the trial court's original and amended scheduling orders.
We
conclude, under the facts of this case, that Pierce was obligated to present
expert testimony to sustain his claim that Colwell's alleged negligence caused
injury or damage. A lay person would
not understand how the criminal court's failure to personally read the
information to Pierce caused injury when Pierce pled not guilty, proceeded to a
jury trial, sentencing and appeal, and was represented by counsel at all stages
of the proceedings. The criminal law
holds that proceedings conducted after an imperfect arraignment are not
invalidated unless the defendant demonstrates prejudice. See State v. Martinez,
198 Wis.2d 222, 235, 542 N.W.2d 215, 2210 (Ct. App. 1995).[3] This is especially so where, as here,
Colwell represented Pierce only at the sentencing, not at the arraignment.
Conclusion
We
conclude that the circuit court properly granted summary judgment to Colwell.
By
the Court.--Order affirmed.