Skindzelewski v. Smith

392 Wis.2d 117

944 N.W.2d 575

2020 WI 57

David SKINDZELEWSKI, Plaintiff-Appellant-Petitioner,

v.Joseph SMITH, Jr., Defendant-Respondent.

No. 2018AP623

Supreme Court of Wisconsin.

Oral Argument: February 10, 2020

Opinion Filed: June 18, 2020

For the plaintiff-appellant-petitioner, there were briefs filed by Craig S. Powell and Hart Powell, S.C., Milwaukee. There was an oral argument by Craig S. Powell.

For the defendant-respondent, there was a brief filed by Brian P. Keenan, assistant attorney general, with whom on the brief was Joshua L. Kaul , attorney general. There was an oral argument by Brian P. Kennan.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ., joined. HAGEDORN, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion.

REBECCA GRASSL BRADLEY, J.

¶1 David Skindzelewski committed a crime, pled guilty, and spent time in jail as a consequence for committing that crime until a circuit court vacated his conviction because the statute of limitations rendered the conviction erroneous. In this action, Skindzelewski sued his criminal defense attorney for legal malpractice because his attorney failed to raise the statute of limitations as an affirmative defense in his criminal case. Neither the circuit court nor the court of appeals permitted his suit to proceed to trial because Skindzelewski could not prove he was actually innocent of the crime of which he was convicted. Skindzelewski asks this court to reverse the unpublished court of appeals opinion¹ affirming the circuit court's² grant of summary judgment.

¶2 The actual innocence rule requires a criminal defendant who sues his defense attorney for legal malpractice to establish the defendant did not commit the crime of which he was convicted. Skindzelewski concedes his guilt but advocates the formulation of an exception to the actual innocence rule. We decline to create one under the facts presented by Skindzelewski's lawsuit. Nothing about Skindzelewski's case warrants developing an exception to the actual innocence rule; recognizing one under these circumstances would reward criminality. As a matter of law, Skindzelewski cannot succeed on his legal malpractice claim. We affirm the decision of the court of appeals.

I. BACKGROUND

¶3 In March 2014, the State charged Skindzelewski with theft by contractor in violation of Wis. Stat. § 779.02(5) (2009-10) after Skindzelewski failed to perform work for which he was paid in 2010.³ Because the amount taken was less than $2,500, the offense was a Class A misdemeanor under Wis. Stat. § 943.20(3)(a). The criminal complaint alleged Skindzelewski received $1,264 from a family to install roof vents on its home, but he failed to perform the work. The complaint also alleged that Skindzelewski admitted he did not do the work, spent the money on personal expenses, and owed the family for taking its money without performing the contracted-for work. The statute of limitations for a misdemeanor is three years. See Wis. Stat. § 939.74(1).

¶4 The State Public Defender's Office appointed attorney Joseph Smith to represent Skindzelewski. Smith never raised the three-year statute of limitations as a defense to the theft charge. Neither the prosecutor nor the presiding judge recognized that the statute of limitations barred conviction. Skindzelewski ultimately pled guilty in 2015 and was sentenced to eight months in jail. The circuit court imposed this sentence consecutive to time being served on a prior conviction. Skindzelewski began serving his theft-by-contractor sentence in mid-December 2015. While Skindzelewski was in jail, his new attorney filed a postconviction motion, contending his conviction should be vacated because the State charged him after the three-year statute of limitations expired. In April 2016, the circuit court granted the motion and vacated the conviction, and Skindzelewski was immediately released from jail. Before his release, Skindzelewski spent approximately four months incarcerated for his crime.

¶5 After being released, Skindzelewski sued Smith for legal malpractice, alleging Smith negligently failed to raise the statute of limitations as a defense in his criminal case, resulting in Skindzelewski's incarceration.

The State, on behalf of Smith,⁴ admitted Smith's negligence but pled several affirmative defenses, including the actual innocence rule set forth in Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809. Both parties moved for summary judgment.

¶6 Skindzelewski asked the circuit court to adopt an exception to the actual innocence rule, as applied by certain foreign jurisdictions in cases involving sentencing errors. Concluding that "[t]he law in Wisconsin is clear[,]" the circuit court declined to adopt a novel exception to prevailing law, applied the governing actual innocence rule, and granted the State's motion for summary judgment. Skindzelewski appealed. In an unpublished opinion, the court of appeals determined it had no power to modify Hicks and rejected Skindzelewski's argument for establishing an exception to the actual innocence rule. See Skindzelewski v. Smith, No. 2018AP623, unpublished slip op., ¶11, 2019 WL 2273540 (Wis. Ct. App. May 29, 2019) (per curiam). Skindzelewski filed a petition for review, which we granted.

II. STANDARD OF REVIEW

¶7 On appeal, "[w]e independently review a grant of summary judgment[.]" West Bend Mut. Ins. Co. v. Ixthus Med. Supply, Inc., 2019 WI 19, ¶9, 385 Wis. 2d 580, 923 N.W.2d 550 (quoting Water Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 2016 WI 54, ¶11, 369 Wis. 2d 607, 881 N.W.2d 285 ). We employ the same methodology as the circuit court and court of appeals. Id. "Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law." Id.; see also Wis. Stat. § 802.08(2) (2017-18).

III. ANALYSIS

A. General Principles of Negligence

¶8 A plaintiff must prove four elements to establish negligence: duty, breach, causation, and damages. Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531, 247 N.W.2d 132 (1976). In this legal malpractice case, Skindzelewski's claim involves only the third element—causation. In order to establish causation, the plaintiff must show that the negligent act was "a substantial factor in producing" the plaintiff's injury. Morden v. Continental AG, 2000 WI 51, ¶60, 235 Wis. 2d 325, 611 N.W.2d 659 (quoting Nieuwendorp v. American Family Ins. Co., 191 Wis. 2d 462, 475, 529 N.W.2d 594 (1995) ); see also Clark v. Leisure Vehicles, Inc., 96 Wis. 2d 607, 617, 292 N.W.2d 630 (1980) ("The test of cause in Wisconsin is whether the defendant's negligence was a substantial factor in producing the injury."). Even if a plaintiff proves the general elements of negligence, courts may preclude liability based on public policy considerations. See, e.g., Howard v. Mt. Sinai Hospital, Inc., 63 Wis. 2d 515, 517-20, 217 N.W.2d 383 (1974), aff'd on rehearing 63 Wis.2d 515, 219 N.W.2d 576.

¶9 The elements of a legal malpractice claim are substantially the same as the elements comprising a general negligence claim. The plaintiff must prove: (1) an attorney-client relationship existed; (2) the attorney's actions were negligent; (3) the attorney's negligent actions caused the client's injury; and (4) the client suffered an actual injury. See Lewandowski v. Continental Cas. Co., 88 Wis. 2d 271, 277, 276 N.W.2d 284 (1979) (quoted source omitted). In order to prove causation and injury, a plaintiff must show that "but for the negligence of the attorney, the client would have been successful in the prosecution or defense of an action." Glamann v. St. Paul Fire & Marine Ins. Co., 144 Wis. 2d 865, 870, 424 N.W.2d 924 (1988) (quoting Lewandowski, 88 Wis. 2d at 277, 276 N.W.2d 284 ). This burden has been characterized as requiring the plaintiff to prove a case within a case: the plaintiff must show that, but for his lawyer's negligence, the civil case would have succeeded. Id. When the legal malpractice arises from professional services rendered in a criminal case, the client must additionally prove that he was actually innocent of the criminal charge as a component of the causation element. See Hicks, 253 Wis. 2d 721, ¶34, 643 N.W.2d 809. This actual innocence rule arises out of public policy considerations. Id.

B. The Actual Innocence Rule

¶10 In Hicks v. Nunnery, the court of appeals adopted the actual innocence rule, citing cases from foreign jurisdictions. Hicks, 253 Wis. 2d 721, ¶¶34-49, 643 N.W.2d 809 ; see generally Wiley v. County of San Diego, 19 Cal.4th 532, 79 Cal.Rptr.2d 672, 966 P.2d 983 (1998) ; Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783 (1991). In applying the rule, our court of appeals held that, in a legal malpractice case arising from a criminal defense attorney's representation, the plaintiff must show something more than "but for" the attorney's negligence, the plaintiff would have been found not guilty. Hicks, 253 Wis. 2d 721, ¶46, 643 N.W.2d 809. In order to pursue a civil claim for damages against a negligent criminal defense attorney, the plaintiff must also show he was actually innocent of the crime of which he was convicted. Id.

¶11 The actual innocence rule has been part of Wisconsin's jurisprudence for nearly two decades. See id., 253 Wis. 2d 721, ¶34, 643 N.W.2d 809 ; Wis. Stat. § 752.41(2) (2017-18).⁵ Neither party asks us to overrule Hicks or challenges its rationale. Skindzelewski, however, asks us to adopt an exception to the actual innocence rule. He bears the burden of establishing an exception is warranted and should apply in his case. See State v. McFarren, 62 Wis. 2d 492, 499-500, 215 N.W.2d 459 (1974) (the burden of proof rests on the party "desiring change" and seeking "to change the present state of affairs" (quoted source omitted)). Skindzelewski has not satisfied his burden.

C. Application

¶12 Skindzelewski asks us to recognize what ...