STATE OF MICHIGAN

COURT OF APPEALS



					

					
					

					
SCHMIDT BAGEL CREATIONS, INC., and           UNPUBLISHED
ELIOT CHARLIP,                               September 21, 1999

          Plaintiffs-Appellants,

v                                            No. 206602
                                             Oakland Circuit Court
MICHAEL ALAN SCHWARTZ and FIEGER,            LC No. 97-544829 NM
FIEGER & SCHWARTZ, P.C.,

          Defendants-Appellees.
_______________________________________________

Before: Doctoroff, P.J., and Markman and J.B. Sullivan*, JJ.

PER CURIAM.

     Plaintiffs  appeal as of right from the trial court's  order  granting
defendants'  motion for summary disposition pursuant to MCR 2.116(C)(8)  in
this legal malpractice action. We affirm.

     Plaintiffs  argue  that  the  trial court erred  in  granting  summary
disposition  in  favor  of  defendants  pursuant  to  MCR  2.116(C)(8).  We
disagree. A motion for summary disposition under MCR 2.116(C)(8) tests  the
legal sufficiency of a claim by the pleadings alone.1 Smith v Stolberg, 231
Mich  App 256, 258; 586 NW2d 103 (1998). This Court reviews de novo a trial
court's decision under MCR 2.116(C)(8) to determine whether the claim is so
clearly unenforceable as a matter of law that no factual development  could
establish  the  claim and justify recovery. Id. All factual allegations  in
support  of  the  claim  are accepted as true, as well  as  any  reasonable
inferences or conclusions that can be drawn from the facts. Id.

     A plaintiff in a legal malpractice action has the burden of proving 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.  Charles Reinhart Co v Winiemko, 444 Mich 579, 585-586;  513  NW2d
773  (1994).  In  some  cases, a plaintiff must  show  that,  but  for  the
attorney's  negligence, the client would have completely prevailed  in  the
underlying lawsuit. Id. at 586. However, where the allegation is  that  the
verdict  against  the  plaintiff was greater  than  what  would  have  been
returned absent the defendant's negligence, a plaintiff need only show that
he  would have obtained a better result but for the defendant's negligence.
Schlumm v O'Hagan, 173 Mich App 345, 359-360; 433 NW2d

________________________

* Former Court of Appeals judge, sitting on the Court of Appeals by
assignment.



_______________________________
839  (1988); Basic Food Industries, Inc v Grant, 107 Mich App 685, 693-694;
310 NW2d 26 (1981).

     Here,  plaintiffs  claimed  that, but for  defendants'  negligence  in
failing  to  advise  them  that they could avoid  arbitration  and  instead
litigate the underlying claim in circuit court, they would have pursued the
litigation in circuit court and would have prevailed or at least obtained a
more  favorable  result.  However, the decision of  the  arbitration  panel
against Charlip is binding under the doctrine of collateral estoppel,  Cole
v West Side Auto Employees Federal Credit Union, 229 Mich App 639, 647; 583
NW2d  226  (1998), and precludes plaintiffs from relitigating the issue  of
Charlip's  liability  on  the underlying claim, see  Alterman  v  Provizer,
Eisenberg,  Lichtenstein & Pearlman, PC, 195 Mich App  422;  491  NW2d  868
(1992).  Therefore, plaintiffs are unable to show either  that  they  would
have  completely  prevailed  if the underlying  claims  were  litigated  in
circuit  court, or that at least a more favorable verdict would  have  been
obtained  in  circuit  court.  Accordingly,  plaintiffs  cannot  show  that
defendants' negligence was the proximate cause of their injury.  Thus,  the
trial  court  properly granted summary disposition in favor  of  defendants
pursuant to MCR 2.116(C)(8).2

     Affirmed.

                                             /s/ Martin M. Doctoroff
                                             /s/ Stephen J. Markman

1  We  note  that  the trial court incorrectly stated that plaintiffs  were
required  to  present  evidence to defeat defendants'  motion  for  summary
disposition  pursuant  to MCR 2.116(C)(8). Despite  the  court's  erroneous
statement, it correctly determined that summary disposition was appropriate
under  MCR  2.116(C)(8). We will not reverse where the trial court  reached
the  right result for the wrong reason. Lane v KinderCare Learning Centers,
Inc, 231 Mich App 689, 697; 588 NW2d 715 (1998).

2 Summary disposition was also properly granted in favor of defendants with
respect  to plaintiff Schmidt Bagel Creations, Inc., because Schmidt  Bagel
was  not a party to the underlying arbitration proceeding and did not incur
any  legally  enforceable  liability as a  result  of  defendants'  alleged
malpractice.

                                    -2-
                                     
                             STATE OF MICHIGAN
                                     
                             COURT OF APPEALS
______________________________________________

SCHMIDT BAGEL CREATIONS, INC., and           UNPUBLISHED
ELIOT CHARLIP,                               September 21, 1999

          Plaintiff-Appellants,

v                                            No. 206602
                                             Oakland Circuit Court
MICHAEL ALAN SCHWARTZ and FIEGER,            LC No. 97-544829 NM
FIEGER & SCHWARTZ, P.C.,

          Defendant-Appellees.
_______________________________________________

Before: Doctoroff, P.J., and Markman and J.B. Sullivan*, JJ.

SULLIVAN, J. (Concurring in part and dissenting in part.)

     While  I agree with footnote 2, in which the majority determines  that
Schmidt  Bagel was not a party to the underlying arbitration proceeding,  I
dissent  from  the majority's conclusion that plaintiff Charlip  failed  to
state a claim for legal malpractice.

     Collateral   estoppel  precludes  relitigation  of  an  issue   in   a
subsequent, different cause of action "between the same parties"  when  the
prior  proceeding culminated in a valid final judgment and  the  issue  was
actually  and necessarily determined in the prior proceeding. Cole  v  West
Side Auto Credit Union, 229 Mich App 639, 647; 583 NW2d 226 (1998), quoting
from  Porter  v  Royal  Oak, 214 Mich App 478, 485;  542  NW2d  905  (1995)
(emphasis  in  Cole, supra). The "factual findings made  by  an  arbitrator
after a proper arbitration proceeding are conclusive in a later-filed civil
suit between the same parties. . ." Cole, supra (emphasis added).

     A  legal malpractice action and the litigation from which it arose are
distinct.  Coleman v Gurwin, 443 Mich 59, 66; 503 NW2d 435 (1993).  In  the
instant  suit for legal malpractice, Charlip is suing Schwartz and his  law
firm.  In  the  underlying suit, Charlip was being sued  by  then-plaintiff
Ehrmann  in a suit involving a business transaction. Since the parties  are
not the same, collateral estoppel does not apply.

     The  issue in the instant malpractice case is whether plaintiff  would
have  fared  better had he had the opportunity to have a jury trial  rather
than the arbitration, i.e., whether he can "establish that, absent the  ...
omission complained of [here, the failure of counsel to advise him that the
common law arbitration agreement could have been revoked by either party at
any time

                                    -1-
                                     
prior  to  the  issuance of the arbitration award],  the  .  .  .  judgment
suffered  [would  have  been] avoided." Coleman, supra,  at  64  (citations
omitted). I disagree with the majority's finding that plaintiff cannot show
whether  he  would have fared better, and whether therefore the defendants'
negligence was the proximate cause of his injury.

     In  his  "suit within a suit," id., plaintiff can present evidence  to
the jury, including Ehrmann's testimony, and the jury will be instructed to
determine  what  damages  they  would have  awarded  and  to  whom  in  the
underlying lawsuit. That amount will then be compared to the result of  the
arbitration, which was an award of $165,000 against plaintiff. If the  jury
determines  that  they would have awarded less against plaintiff  than  the
result  of  the  arbitration, the difference is the amount  of  plaintiff's
damages  in the instant malpractice case. If, on the other hand,  the  jury
determines  that  they would have awarded more against plaintiff  than  the
amount of the arbitration, then plaintiff has no damages, and cannot  prove
either element three, proximate cause, or element four, the fact and extent
of the injury. Coleman, supra, at 63.

     Alterman v Provizer, Eisenberg, Lichtenstein & Pearlman, PC, 195  Mich
App  422;  491 NW2d 868 (1992), and the cases cited therein, cited  by  the
majority, are factually distinguishable from the instant case, and  do  not
compel a different result.

     I would reverse.

                                             /s/ Joseph B. Sullivan

                                    -2-