DAVID DIEHL V FREDRIC S ABOOD
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID DIEHL,
UNPUBLISHED
February 11, 2000
Plaintiff-Appellant,
v
No. 215793
Gratiot Circuit Court
LC No. 97-004727-NM
FREDERIC S. ABOOD,
Defendant-Appellee.
Before: Talbot, P.J., and Gribbs and Meter, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendant’s motion for summary disposition
pursuant to MCR 2.116(C)(10), in this legal malpractice case. We affirm.
This case arises out of defendant’s legal representation of plaintiff in a criminal proceeding. In
the underlying criminal action, plaintiff was convicted by a jury of felonious assault, MCL 750.82; MSA
28.277, and felony-firearm, MCL 750.227b; MSA 28.424(2). Plaintiff contends that defendant was
negligent in not calling certain witnesses and not requesting jury instructions on self-defense. Plaintiff
also contends defendant’s negligence was a breach of contract. The trial court granted defendant’s
motion for summary disposition because plaintiff’s complaints related to trial tactics within the discretion
of trial counsel.
On appeal, plaintiff argues the court committed error requiring reversal when it granted
defendant’s motion for summary disposition because there were genuine issues of material fact for trial.
This Court reviews de novo a grant of summary disposition under MCR 2.116(C)(10), based on a
finding that there was no genuine issue of material fact. Smith v Globe Life Ins Co, 460 Mich 446,
454; 597 NW2d 28 (1999); Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 86; 514 NW2d
185 (1994). In so doing, the entire record is reviewed, including affidavits, pleadings, depositions,
admissions, and documentary evidence filed in the action or submitted by the parties, in the light most
favorable to the nonmovant, and making all legitimate inferences in the nonmovant’s favor. Quinto v
Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996). Where there is no genuine
issue of material fact, upon motion for summary disposition, a movant is entitled to judgment as a matter
of law pursuant to MCR 2.116(C)(10). Smith, supra at 454-455; McClusky v Womack, 188 Mich
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App 465, 469; 470 NW2d 443 (1991). A party opposing a summary disposition motion on this
ground may not rest on his or her pleadings but must set forth specific facts that there is a genuine issue
of material fact for trial by submitting affidavits, depositions, admissions or other documentary evidence.
Smith, supra at 455; McClusky, supra at 469.
In a legal malpractice action, a plaintiff must prove (1) the existence of an attorney-client
relationship, (2) negligence in the legal representation of the plaintiff, (3) the negligence was the
proximate cause of an injury, and (4) the fact and extent of the injury alleged. Simko v Blake, 448
Mich 648, 655; 532 NW2d 842 (1995); McClusky, supra at 473.
Plaintiff argues that there was a genuine issue of material fact regarding whether defendant was
negligent in failing to produce expert witness testimony at his criminal trial regarding ballistics evidence
and lighting conditions, and that defendant was negligent in failing to call paramedics as witnesses. We
disagree.
It is a tactical decision whether to call particular witnesses, as long as the attorney acts with full
knowledge of the law and in good faith. Simko, supra at 660. This Court will not question an
attorney’s tactical decision. Id. There is no allegation here that defendant acted in bad faith or without
full knowledge of the law in regard to his decisions not to call these witnesses at plaintiff’s criminal trial.
Consequently, as a matter of law, plaintiff cannot sustain his claim of legal malpractice.
Next, plaintiff argues that there was a genuine issue of material fact regarding whether defendant
was negligent in failing to request jury instructions on self-defense in plaintiff’s criminal trial. There is no
merit to this issue.
At his criminal trial, plaintiff denied that he aimed his shotgun at the police officers. There was
thus no basis for an instruction on self-defense. Furthermore, had plaintiff defended on the ground of
self-defense, it is evident from the record that the trial court would have allowed the prosecution to
introduce evidence of plaintiff’s prior criminal sexual conduct conviction for impeachment purposes.
Defendant thought this would be detrimental to his client and plaintiff acknowledged in his deposition in
this case that he wanted evidence of his prior conviction excluded from the jury’s consideration. Under
these circumstances, defendant’s decision not to seek instructions on self-defense was a tactical one.
Tactical decisions are not grounds for malpractice and this Court will not question or second-guess an
attorney’s tactical decision. Simko, supra at 660. Again, as a matter of law, plaintiff cannot sustain his
claim of legal malpractice.
Plaintiff also argues that there was a genuine issue of material fact as to whether defendant
breached his contract with plaintiff. We disagree.
There is some authority for holding an attorney liable under a contract theory. Brownell v
Garber, 199 Mich App 519, 525; 503 NW2d 81 (1993). However, a lawyer is not an insurer of the
result in a case in which he is employed, unless he makes a special contract to that effect. Id., citing
Babbitt v Bumpus, 73 Mich 331, 337-338; 41 NW 417 (1889). Plaintiff does not allege any special
contract with defendant. The grounds for breach of contract alleged by plaintiff are indistinguishable
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from the duty to render legal services in accordance with the applicable standard of care and are merely
duplicative of his legal malpractice claim. Id. Consequently, because plaintiff‘s grounds for his legal
malpractice claim are all based on defendant’s tactical decisions, plaintiff’s contract claim must fail as
well.
Finally, defendant raises issues of collateral estoppel in his brief on appeal. To preserve an issue
for review, an appellee must cross-appeal. MCR 7.207; Barnell v Taubman Co, 203 Mich App 110,
123; 512 NW2d 13 (1993). Because defendant failed to cross-appeal, his arguments regarding
collateral estoppel are not preserved for appeal and this Court will not review them.
Affirmed.
/s/ Michael J. Talbot
/s/ Roman S. Gribbs
/s/ Patrick M. Meter
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