STEPHEN G RUSIECKI V STATE APPELLATE DEFENDER OFFICE
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
STEPHEN G. RUSIECKI,
UNPUBLISHED
June 4, 2002
Plaintiff-Appellant,
v
STATE APPELLATE DEFENDER OFFICE and
DEBRA GUTIERREZ,
No. 235206
Marquette Circuit Court
LC No. 00-37779-NM
Defendants-Appellees.
Before: Griffin, P.J., and Hood and Sawyer, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting summary disposition to defendants in
plaintiff’s suit alleging legal malpractice. We affirm.
This Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t
of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary
disposition under MCR 2.116(C)(10) tests the factual basis of a claim.1 In evaluating a motion
for summary disposition on the ground that there is no genuine issue of material fact, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461
Mich 109, 119-120; 597 NW2d 817 (1999). The motion is proper if no genuine issue of material
fact exists, thereby entitling the moving party to judgment as a matter of law. Koenig v City of
South Haven, 460 Mich 667, 674; 597 NW2d 99 (1999); Quinto v Cross & Peters Co, 451 Mich
358, 362-363; 547 NW2d 314 (1996).
This legal malpractice action filed against defendants Debra Gutierrez and the State
Appellate Defender Office (SADO) arises from SADO attorney Gutierrez’ representation of
plaintiff at the appeal stage following a plea-based conviction on March 21, 1997, for third1
Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). The trial court’s
order did not indicate which subsection of MCR 2.116 supported its grant of summary
disposition. Because the trial court considered documentary evidence beyond the pleadings in
evaluating the motion, this Court reviews its decision as having been decided under MCR
2.116(C)(10). DeHart v Joe Lunghamer Chevrolet, Inc, 239 Mich App 181, 184; 607 NW2d 417
(1999).
-1-
degree criminal sexual conduct involving sexual contact with an underage victim. Plaintiff is
currently serving a seven- to fifteen-year prison term for this offense. In August 1997, defendant
SADO was assigned to represent plaintiff in his appeal and defendant Gutierrez was assigned by
SADO to represent plaintiff. In the months following her assignment, Guiterrez, on behalf of
plaintiff, and plaintiff individually and pro se, both filed several motions to withdraw plaintiff’s
guilty plea and to seek a Ginther2 hearing. On October 21, 1998, the trial court issued a written
opinion and order denying plaintiff’s motions. It is undisputed in this case that defendant
Gutierrez subsequently failed to file a timely appeal from the trial court’s order. The application
for leave to file a delayed appeal, dated December 9, 1998, was denied by this Court on January
22, 1999, for failure to comply with MCR 7.205(F)(3).3
Plaintiff then filed a delayed application for leave to appeal to the Michigan Supreme
Court. On January 21, 2000, the Supreme Court issued an order in lieu of granting leave to
appeal, directing that the case be remanded to the Court of Appeals with instructions to further
remand it back to the circuit court for the purpose of scheduling a Ginther hearing to determine
whether defendant Gutierrez’ failure to file a timely application deprived plaintiff of effective
assistance of counsel. The Court further directed that “[i]f the trial court finds in favor of
defendant’s [plaintiff herein] claim, then the Court of Appeals shall treat defendant’s application
as having been timely filed, and shall then either grant or deny the application.”
Following the Ginther hearing, the trial court found that defendant Gutierrez did in fact
deprive plaintiff of effective assistance of counsel by failing to timely file an application for
leave to appeal. With representation by a substitute court-appointed appellate attorney, plaintiff
then filed a supplemental delayed application for leave to appeal with this Court. In an order
dated July 17, 2000, this Court issued an order denying plaintiff’s application “for lack of merit
in the grounds presented.”
Plaintiff subsequently initiated the present action in circuit court alleging malpractice,
negligence, fraud, and deceit on the part of defendant Gutierrez arising out of her failure to file a
timely appeal and her failure to raise certain issues in the trial court and this Court, i.e., that the
guilty plea was the product of a period of illegal detention and therefore not voluntarily made,
and that the increase in the charge in advance of the guilty plea was the result of prosecutorial
vindictiveness. Plaintiff alleged damages consisting of wrongful imprisonment and incarceration
of seven to fifteen years based on a constitutionally invalid guilty plea, loss of wages and
reputation, and emotional distress. Defendants Gutierrez and SADO responded with their
motion for summary disposition, which is the subject of this appeal, arguing in essence that
plaintiff’s claims were heard by this Court, a decision was rendered on the merits, and plaintiff’s
continued incarceration is a result of the fact that the appellate issues raised in his criminal case
were without merit, rather than the product of professional negligence on the part of defendant
Gutierrez. The trial court granted defendants’ motion, holding that plaintiff was not prejudiced
by defendant Gutierrez’ alleged acts of professional negligence. Plaintiff now appeals.
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
In the interim, the circuit court issued an order granting defendant Gutierrez’ motion to
withdraw as plaintiff’s counsel.
-2-
Plaintiff first contends on appeal that the trial court erred in granting summary disposition
because it is undisputed that defendant Gutierrez was found to have rendered ineffective
assistance of counsel and in so doing, violated plaintiff’s civil rights. Plaintiff maintains that he
may recover nominal as well as punitive damages even if a violation of his civil rights caused no
actual injury. As a preliminary matter, we agree with the trial court’s assessment of the nature of
this case when it stated, “It is important to recognize that this is a suit for legal malpractice, not
for a violation of civil rights.” Plaintiff’s complaint pleads professional negligence. Although
plaintiff attempts to characterize the present action as a claim for violation of his civil rights due
to his alleged failure to receive effective assistance of counsel, the record clearly indicates that
plaintiff ultimately received effective assistance of counsel and was successful in having his
claims heard, on the merits, by this Court. Thus, we view this case as one premised on legal
malpractice, not a civil rights violation.
A claim of legal malpractice is grounded in professional negligence. In order to establish
a cause of action for legal malpractice, a plaintiff has the burden of establishing the following
elements: (1) the existence of an attorney-client relationship; (2) negligence in the legal
representation of the plaintiff; (3) that 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). With regard to the third element, factual causation, the plaintiff/client must establish
that, but for the attorney’s negligence, he would have prevailed in the underlying suit:
As in any tort action, to prove proximate cause a plaintiff in a legal
malpractice action must establish that the defendant’s action was a cause in fact of
the claimed injury. Hence, a plaintiff “must show that but for the attorney’s
alleged malpractice, he would have been successful in the underlying suit.”
[Charles Reinhart Co v Winiemko, 444 Mich 579, 586; 513 NW2d 773 (1994)
(emphasis in original).]
This so-called “suit within a suit” analysis applies where the alleged negligent conduct
involves the failure of an attorney to properly pursue an appeal. Id. at 587. Consequently, in a
legal malpractice action alleging negligence in an appeal, a plaintiff 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.” Id. at 588. The question 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 within the exclusive province of the
judiciary.” Id. at 608.
In the instant case, plaintiff’s claim must fail because plaintiff has failed to plead or
present any facts that would establish either component of the “suit within a suit” analysis. It is
undisputed that defendant Gutierrez failed to file a timely appeal. However, plaintiff’s right to
have his claims heard on appeal was nonetheless preserved and the merits of the issues raised by
plaintiff concerning his criminal conviction were ultimately considered and rejected by this
Court. Thus, plaintiff has failed to demonstrate that he was prejudiced by defendant Gutierrez’
actions.
As previously noted, on this Court’s initial denial of plaintiff’s application for leave to
appeal in January 1999, plaintiff filed a delayed application for leave to appeal to the Michigan
-3-
Supreme Court. The Supreme Court issued an order in lieu of granting leave to appeal directing
that plaintiff’s application for leave to appeal be considered timely and either granted or denied,
if the trial court concluded that plaintiff did not receive effective assistance of counsel in
connection with his appeal. By virtue of this order, the Supreme Court relieved plaintiff of any
negative effect resulting from the missed deadline. Thus, when the circuit court conducted its
Ginther hearing and found that defendant Gutierrez had provided ineffective assistance of
counsel, plaintiff was in fact given the opportunity to be heard by this Court. Pursuant to an
order of the circuit court, plaintiff was provided with new appellate counsel who, in conformance
with the Supreme Court’s order, filed a brief in support of the supplemental delayed application
for leave to appeal in this Court. The appellate brief addressed, among other issues, challenges
to the efficacy of plaintiff’s guilty plea (illegal detention and prosecutorial vindictiveness) and
the operative allegations of ineffective assistance of counsel that form the basis for plaintiff’s
current claim of professional negligence. The appellate challenges to plaintiff’s underlying
conviction and his claims arising out of defendant Gutierrez’ handling of his appeal were
therefore considered on their merits by this Court which, having given full consideration to the
issues raised by plaintiff, denied his application “for lack of merit in the grounds presented.”
The underlying criminal conviction was thus reviewed by this Court and plaintiff’s claims were
found to be unmeritorious. Under these circumstances, plaintiff is unable to demonstrate the
requisite “suit within a suit” causation elements necessary to sustain a legal malpractice action:
that defendant Gutierrez’ negligence “caused the loss or unfavorable result of the appeal” and
that “the loss or unfavorable result of the appeal in turn caused a loss or unfavorable result in the
underlying litigation.” Winiemko, supra at 588. The trial court therefore properly granted
summary disposition in favor of defendants.
Plaintiff further claims that the trial court abused its discretion when, in granting
summary disposition in favor of defendants, it also allowed defendants, as the prevailing parties,
to tax costs against plaintiff when no such motion was pending before the court. However,
pursuant to MCR 2.625, no motion is necessary. Plaintiff’s argument is therefore without merit.
Affirmed.
/s/ Richard Allen Griffin
/s/ Harold Hood
/s/ David H. Sawyer
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
