WILLIAM McNEELEY v. LOWELL E. SPENCER
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RENDERED: SEPTEMBER 27, 2002; 10:00 a.m.
ORDERED NOT PUBLISHED BY THE KENTUCKY SUPREME COURT:
DECEMBER 11, 2003 (2002-SC-0986-D)
C o m m o n w e a l t h O f K e n t uc k y
C o urt O f A ppe a l s
NO.
1999-CA-003017-MR
WILLIAM McNEELEY
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 94-CI-00390
v.
LOWELL E. SPENCER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE:
William McNeeley,pro se, has appealed from an
order entered by the Johnson Circuit Court on November 16, 1999,
which granted Lowell E. Spencer’s motion for summary judgment and
1
dismissed McNeeley’s complaint for legal negligence. Having
concluded that there is no genuine issue as to any material fact
and that pursuant to the doctrine of collateral estoppel Spencer
is entitled to summary judgment as a matter of law, we affirm.
1
Kentucky Rules of Civil Procedure (CR) 56.03.
McNeeley, who was represented by Spencer, was
2
convicted of murder for the heinous killing of Sherman Newsome,
3
the two-year-old son of Rebecca Newsome. McNeeley’s jury trial
4
was held in Johnson Circuit Court in 1992, and he received a
sentence of life in prison.
Evidence presented by the
Commonwealth showed that McNeeley inflicted the fatal injuries on
the toddler by stomping on his stomach and back.
McNeeley has unsuccessfully pursued post-conviction
5
relief by direct appeal and by motions pursuant to RCr 11.42 and
CR 60.03.
McNeeley’s conviction was first reviewed by our
Supreme Court in an opinion rendered on March 24, 1994.
The
Supreme Court noted some trial errors, but it affirmed McNeeley's
6
conviction and sentence on the grounds that any errors were
harmless due to the Acompelling evidence of guilt.7
@
McNeeley
then filed an RCr 11.42 motion, claiming that Spencer had
provided him with ineffective assistance of counsel, and that he
2
Kentucky Revised Statutes (KRS) 507.020.
3
McNeeley lived with his wife and their four children and
with Rebecca Newsome and her six children.
4
The record from the underlying criminal case has not been
certified for our review, but the record on appeal indicates that
McNeeley was indicted by a Martin County grand jury for the
January 20, 1992, murder of Sherman J. Newsome. The case was
transferred to Johnson Circuit Court on a change of venue so the
question of McNeeley’s guilt could be decided by an impartial
jury.
5
Kentucky Rules of Criminal Procedure.
6
Case No. 1992-SC-000906-MR.
7
RCr 9.24.
-2-
was entitled to a new trial.
The Johnson Circuit Court, without
conducting an evidentiary hearing, denied McNeeley’s RCr 11.42
motion.
On September 26, 1997, this Court affirmed that order,
and concluded that McNeeley had failed to show that he had
received ineffective assistance of counsel during his murder
trial.8
McNeeley next attempted to have his conviction and
sentence vacated in September 1998, by filing a CR 60.03 motion.
McNeeley alleged that newly discovered evidence concerning a
potassium level test performed on the child showed that the
previous claimed time of death was incorrect.
In denying the CR
60.03 motion, the Johnson Circuit Court concluded that even if
9
this new evidence were considered, it would not with reasonable
certainty change the guilty verdict.
On April 5, 2002, this
Court affirmed the denial of the CR 60.03 motion, on the ground
that CR 60.03 was not intended to provide the type of relief
10
sought by McNeeley.
The civil complaint that is the basis for this appeal
was filed in the Johnson Circuit Court on September 12, 1994,
after our Supreme Court had affirmed McNeeley’s conviction in his
direct appeal.
The complaint alleged that Spencer had committed
8
Case No. 1995-CA-003128-MR.
9
The trial court also found that McNeeley's CR 60.03 motion
was not brought within a reasonable time.
10
Case No. 2001-CA-000073-MR. On appeal from the trial
court's denial of his CR 60.03 claim, McNeeley raised a host of
issues that were not originally presented to the trial court.
This Court also agreed with the trial court's determination that
the CR 60.03 motion was not brought within a reasonable time as
required by the rule.
-3-
legal malpractice during his representation of McNeeley on the
murder charge, and it sought monetary damages.
On November 16,
1999, the trial court granted Spencer's motion for summary
11
judgment and dismissed McNeeley’s complaint.
This appeal
followed.
McNeeley argues in his brief to this Court that the
trial court erred by granting summary judgment, and he sets forth
several instances of alleged negligence by Spencer during his
representation on the murder charge, including: (1) that Spencer
failed to impeach certain witnesses, (2) that Spencer failed to
call certain witnesses who may have provided favorable testimony;
and (3) that Spencer failed to request a mistrial.
McNeeley
contends that these several instances of alleged negligence by
Spencer present genuine issues of material fact.
The flaw in
McNeeley’s argument in that the issue of whether Spencer provided
him with reasonably competent representation at his murder trial
has already been litigated and decided unfavorably to McNeeley in
the denial of his RCr 11.42 motion.
Accordingly, we hold that
since McNeeley’s claim of ineffective assistance of counsel was
found adversely to him in the RCr 11.42 proceeding, the doctrine
of collateral estoppel precludes the relitigation of the issue of
Spencer’s effectiveness in this negligence action, and the trial
court’s granting of summary judgment in favor of Spencer was
11
From the record, it appears that the five-year lapse
between the commencement of the lawsuit and the granting of
summary judgment was due to both periods of inactivity and
procedural matters.
-4-
correct as a matter of law.
Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, stipulations, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
12
the moving party is entitled to a judgment as a matter of law."
In Paintsville Hospital Co. v. Rose 13 the Supreme Court of
,
Kentucky held that for summary judgment to be proper the movant
must show that the adverse party cannot prevail under any
circumstances.
The Court has also stated that "the proper
function of summary judgment is to terminate litigation when, as
a matter of law, it appears that it would be impossible for the
respondent to produce evidence at the trial warranting a judgment
14
in his favor."
The standard of review on appeal of a summary
judgment is whether the trial court correctly found that there
was no genuine issue as to any material fact and that the moving
15
party was entitled to judgment as a matter of law.
There is no
requirement that the appellate court defer to the trial court
16
since factual findings are not at issue.
"The record must be
12
CR 56.03.
13
Ky., 683 S.W.2d 255 (1985).
14
Steelvest, Inc. v. Scansteel Service Center, Inc. Ky.,
,
807 S.W.2d 476, 480 (1991).
15
Scifres v. Kraft Ky.App., 916 S.W.2d 779, 781 (1996).
,
16
Goldsmith v. Allied Building Components, Inc. Ky., 833
,
S.W.2d 378, 381 (1992).
-5-
viewed in a light most favorable to the party opposing the motion
for summary judgment and all doubts are to be resolved in his
favor."17
In Napier v. Jones By & Through Reynolds 18 this Court
,
discussed the application of the doctrine of collateral estoppel:
Although collateral estoppel and res
judicata are cut from the same cloth, the
effect of collateral estoppel is different
from that of res judicata:
The basic distinction between the
doctrines of res judicata and
collateral estoppel, . . . has
frequently been emphasized. Thus,
under the doctrine of res judicata,
a judgment ‘on the merits’ in a
prior suit involving the same
parties or their privies bars a
second suit on the same cause of
action. Under the doctrine of
collateral estoppel, on the other
hand, such a judgment precludes
relitigation of issues actually
litigated and determined in the
prior suit, regardless of whether
it was based on the same cause of
action as the second suit.
In McNeeley's RCr 11.42 motion alleging ineffective
assistance of counsel, he attempted to show, as the standard set
out in Strickland v. Washington 19 requires, Athat counsel's
,
representation fell below an objective standard of
17
Steelvest, supra at 480.
18
Ky.App., 925 S.W.2d 193, 195-96 (1996)(citingCity of
Louisville v. Louisville Professional Firefighters Association
,
Ky., 813 S.W.2d 804, 807 (1991)).
19
466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,
693 (1984). Accord Gall v. Commonwealth Ky., 702 S.W.2d 37, 40
,
(1985).
-6-
reasonableness.
@
In this negligence action, McNeeley is also
alleging as one of the required elements for legal malpractice,
Athat the attorney neglected his duty to exercise the ordinary
care of a reasonably competent attorney acting in the same or
similar circumstances[.]20
@
Thus, since the doctrine of
collateral estoppel bars McNeeley from relitigating an issue in
this legal malpractice action that has already been found
adversely to him in the RCr 11.42 action, the granting of summary
judgment to Spencer was correct as a matter of law.
In Ray v. Stone,21 this Court discussed the
applicability of the doctrine of collateral estoppel to a case
where a convicted criminal defendant has sued his defense
attorney for legal malpractice:
Decisions addressing whether and under
what circumstances a convict may sue his
defense attorney for legal malpractice
illustrate the difficulty the courts have
encountered in resolving the issue in light
of competing policy considerations. Numerous
jurisdictions have held that a defendant who
pleads guilty may not thereafter maintain
such an action. In so holding, these
decisions have generally applied collateral
22
estoppel to preclude the action. For the
most part, the doctrine has been applied in
one or both of the following approaches
toward barring the claim: (1) the plaintiff,
who stands convicted, is precluded from
20
Stephens v. Denison Ky.App., 64 S.W.3d 297, 298-99
,
(2001).
21
Ky.App., 952 S.W.2d 220, 223 (1997).
22
See generally Gregory G. Sarno, Annotation, Legal
Malpractice in Defense of Criminal Prosecution 4 A.L.R.5th 273
,
(1992) for a comprehensive compilation and analysis of decisions
on this subject.
-7-
relitigating the issue of his admitted guilt
in a collateral civil case and is thereby
unable to establish his innocence a
C
prerequisite to proving causation or one of
the elements of the alleged negligence; (2)
postconviction denial of relief based on
ineffective assistance of counsel precludes a
civil action for legal malpractice [emphasis
added].
Although the case at bar is easily distinguishable from
Ray since
Ray pled guilty, the dicta contained in the last sentence in the
passage quoted above nonetheless represents a correct statement
of the law in most of the jurisdictions that have addressed this
issue.
Since this particular issue has not been decided by a
published case in Kentucky, we have reviewed the case law from
other jurisdictions for guidance.
InBarrow v. Pritchard 23 the
,
Court of Appeals of Michigan stated:
In order to establish a cause of action
for legal malpractice, the plaintiff has the
burden of establishing the following
elements: (1) the existence of an attorneyclient relationship (the duty); (2)
negligence in the legal representation of the
plaintiff (the breach); (3) that the
negligence was a proximate cause of an injury
(causation); and (4) the fact and extent of
the injury alleged (damage). Simko v[.]
Blake, 448 Mich. 648, 655[,] 532 N.W.2d 842
(1995). As previously indicated, in order
for a defendant in a criminal case to
establish that he did not receive the
effective assistance of counsel, he must show
(1) that counsel’s performance was deficient
and that, under an objective standard of
reasonableness, counsel made an error so
serious that counsel was not functioning as
an attorney as guaranteed under the Sixth
Amendment, and (2) that the deficiency was
23
235 Mich.App. 478, 597 N.W.2d 853, 857 (1999).
-8-
prejudicial to the defendant. Tommolino, 187
Mich.App. at 17, citing Strickland, supra.
There is ample authority in other
jurisdictions to support the conclusion that,
for purposes of collateral estoppel, the
standards for establishing ineffective
assistance of counsel in a criminal forum and
legal malpractice in a civil suit are
equivalent. See, e.g., Rowe v[.] Schreiber
,
725 So.2d 1245 (Fla[.]App[.], 1999);Kramer
v[.] Dirksen, 296 Ill.App.3d 819[,] 231
Ill.Dec. 169[,] 695 N.E.2d 1288 (1988);
Sanders v[.] Malik 711 A.2d 32 (Del[.],
,
1998); Ray v[.] Stone 952 S.W.2d 220
,
(Ky[.]App[.], 1997); Gill v[.] Blau 234
,
A.D.2d 506[,] 651 N.Y.S.2d 182 (1996);Younan
v[.] Caruso, 51 Cal.App.4th 401[,] 59
Cal.Rptr.2d 103 (1996); Zeidwig v. Ward 548
,
So.2d 209 (Fla[.] 1989); [and] Johnson v.
Raban, 702 S.W.2d 134 (Mo[.]App[.], 1985).
Although case-law discussion of the
requirements to establish ineffective
assistance of counsel and legal malpractice
may contain language disparity, we believe
the standards are sufficiently similar in
substance to support the application of the
defense of collateral estoppel. The first
step of the Strickland standard and the
breach element of a claim of legal
malpractice are the same, i.e., trial counsel
must act reasonably. Further, the second
step of the Strickland standard (prejudice)
and the causation element of a claim of legal
malpractice are also the same, i.e., a
defendant must show that trial counsel’s
alleged deficiency affected the outcome of a
criminal trial. Finally, although defendants
were not parties to plaintiff’s motion for a
new trial based on ineffective assistance of
counsel in the federal court, we agree with
this Court’s extensive analysis inKnoblauch
[v. Kenyon], 163 Mich.App. [712,] 719-725,
[415 N.W.2d 286 (1987),] that mutuality of
estoppel is not necessary before a defendant
in a legal malpractice action can use the
defense of collateral estoppel [footnote
omitted].
-9-
Similarly, in Johnson v. Raban 24 the Court of Appeals of
,
Missouri stated:
In the present case, the adequacy of
defendant's representation was determined by
the direct infusion of that point into
plaintiff's [ineffective assistance of
counsel] motion. The denial of that motion
met all the criteria for the effective
invocation of defensive collateral estoppel.
The hearing on the motion decided the same
issue of fact present in the malpractice
case; the hearing resulted in a judgment on
the merits; plaintiff was a party to both
cases; and plaintiff had a full and fair
opportunity to litigate the issue. The
collateral estoppel effect of the previous
decision in the [ineffective assistance of
counsel] motion therefore precludes plaintiff
from relitigating the issue of defendant's
negligence.
Accordingly, we adopt this general rule; and in
applying it to the case sub judice, we hold that since the issue
of whether Spencer provided competent assistance to McNeeley
during his representation of him on the murder charge has
previously been determined adversely to McNeeley in the denial of
his RCr 11.42 motion claiming ineffective assistance of counsel,
McNeeley is barred by the doctrine of collateral estoppel from
relitigating that same issue in this legal malpractice action.
For the foregoing reasons, the order of the Johnson
Circuit Court granting Spencer's motion for summary judgment is
affirmed.
ALL CONCUR.
24
702 S.W.2d 134, 138 (Mo.Ct.App. 1985).
-10-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William McNeeley, Pro Se
West Liberty, Kentucky
Lowell E. Spencer
Paintsville, Kentucky
-11-
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