Hockett v. Breunig ( 1988 )

BUCHANAN, Judge.

CASE SUMMARY

Plaintiff-appellant Ralph S. Hockett, II (Hockett) seeks reversal of the trial court's grant of summary judgment on his legal malpractice claim in favor of defendants-appellees Preston T. Breunig (Breunig) and Richard Gilroy (Gilroy).

We affirm.

FACTS

In 1980, Hockett was charged with murder,¹ burglary,² robbery,³ and arson.⁴ The State requested the death penalty. On August 25, 1981, before a scheduled suppression hearing, Hockett's court-appointed public defenders, Breunig and Gilroy, advised him to plead guilty in exchange for the prosecutor's promise to forego seeking the death penalty, The State also recommended that the sentence be thirty-five years on the murder charge and thirty years on each of the other charges, to be served concurrently. Hockett was sentenced on September 21, 1981, in accordance with the terms of the plea agreement. He had previously asserted his innocence and rejected an identical agreement.

By affidavit, Hockett asserted that Breu-nig and Gilroy told him they had viewed a pair of his tennis shoes in the State's possession with the victim's blood "all over them." Record at 248. Hockett claimed he told Breunig and Gilroy that it was impossible for any blood to be on any of his clothing unless the prosecutor put it there. Because Hockett became convinced he would be sentenced to death on the strength of this "manufactured" evidence, he decided to accept the plea agreement.

After entering the guilty plea, but before sentencing, Hockett learned his attorneys had a copy of a lab report prepared by the State of items of his clothing, including his shoes. Hockett repeatedly attempted to obtain a copy of this report from his attorneys, and even paid Breunig for a copy, but the report was withheld from him until after sentencing.

When Hockett finally obtained a copy of the lab report, the results revealed that "there was one small stain on the toe of the right tennis shoe that gave a positive preliminary test for blood; however, there was insufficient staining present to confirm the presence of blood and for further laboratory analysis." Record at 46. Hockett wrote Breunig and Gilroy inquiring about the blood. Breunig responded by letter on March 18, 1982; "With regards to your specific reference as to whether or not the blood found on your shoes was the same as the victim's blood type, I would have to review my entire file and notes, which I am not inclined to do at this time." Record at 247. Gilroy also wrote a letter to Hockett on March 16, 1982, which provided: "In response to your letter I want to verify to you that the blood on the shoes was the same blood type as the victim." Record at 249. Both attorneys advised Hockett against attempting to withdraw his guilty plea.

Hockett filed his petition for post-conviction relief on May 9, 1983, alleging that his guilty plea was not entered knowingly, intelligently, and voluntarily, and that he was denied effective assistance of counsel. He specifically asserted that his attorneys "fabricated the story of the blood as a means to induce him to accept the plea offer." Record at 387. In entering judgment for the State on December 18, 1985, the post-conviction relief court found:

"Mr. Breunig, Mr. Gilroy and Mr. Hill discussed with the petitioner the fact that a police laboratory report referred to a substance found on the petitioner's tennis shoes that tested positive for blood in a preliminary test, but could not be verified as blood in later testing because of an inadequate test sample."

Record at 429.

Pending Hockett's appeal of the denial of his claim for post-conviction relief, Hockett filed an action for legal malpractice against Breunig and Gilroy "based on claims that [they] negligently or recklessly misled [him] into pleading guilty to a crime he did not commit." Record at 219. When the trial court entered judgment for Breunig and Gilroy, Hockett appealed that adverse judgment to this court. While the malpractice action appeal was pending, a decision was rendered on Hockett's appeal of his post-conviction relief petition. In a memorandum decision,⁵ this court affirmed the post-conviction relief court's finding that (1) Hockett entered a knowing, voluntary, and intelligent guilty plea and (2) his counsel was not ineffective. Hockett v. State (1987), Ind.App., 507 N.E.2d 660.

In our opinion, we examined the issue of whether Hockett's attorneys misrepresented the results of the tests. This court found the evidence conflicting on this point, and sustained the post-conviction relief court's determination. We also concluded that even if Hockett's attorneys had misinformed him, the misinformation did not taint the voluntary and knowing entry of his plea in light of the other substantial incriminating evidence that Hockett knew existed against him.⁶

Before this court affirmed the denial of Hockett's petition for post-conviction relief, the trial court issued its order entering summary judgment for Breunig and Gilroy on February 18, 1986. The court's judgment provided as follows:

"Court grants defendants' Motion for Summary Judgment, the Plaintiff having failed to establish the required violation of the professional standard of care by a competent professional opinion. Therefore, the Court finds no genuine issue of material fact as to the element of negligence or 'conspiracy.' Judgment entered for Defendants and against Plaintiff. Cost vs. Plaintiff. All other motions denied."

Record at 452.

ISSUE

The only issue before us is whether the trial court properly granted summary judgment in favor of Breunig and Gilroy?⁷

DECISION

PARTIES' CONTENTIONS-Hockett maintains that because he established specific facts showing that Breunig and Gilroy violated their ethical obligation to be truthful during the course of their representation, the trial court improperly granted summary judgment.

Breunig and Gilroy respond that the trial court properly entered summary judgment in their favor because Hockett conceded at the summary judgment hearing that his legal malpractice claim would be barred if this court affirmed the denial of his petition for post-conviction relief.

CONCLUSION-The trial court properly granted summary judgment in favor of Breunig and Gilroy.

At the February 13, 1986, summary judgment hearing, Hockett's counsel made this statement:

"I think the more important issue is the uh, the motion for summary judgment based on the effect of the decision of the post conviction. On that I would brief uh, the Defendants, uh, the decision in the post conviction matter is probably binding on this Court ub, I think, I'm not sure that these standards for uh, negligence in a civil action are identical to the standards set out in Strickland, I think they're prob'ly close enough though, where uh, the distinction's no long [sic] all that relevant. I think the decision in the post conviction relief matter will probly bind this Court, which is why I have asked the Court to stay these proceedings until the uh, that, that judgment has been decided by uh, the Court of Appeals or the Indiana Supreme Court...."

Record at 497-98 (emphasis supplied).

"[Llawyers engaged in litigation on behalf of their clients are generally considered to be agents of their clients with respect to that litigation...." Solor Sources, Inc. v. Air Pollution Control Bd. (1980), Ind.App., 409 N.E.2d 1136, 1138; see also Campion v. State (1927), 199 Ind. 129, 154 N.E. 802; Blessing v. Dodds (1876), 53 Ind. 95.

An attorney can make an admission that is binding upon his client Lystarczyk v. Smits (1982), Ind.App., 435 N.E.2d 1011. Hockett's counsel concedes that the disposition of the post-conviction relief claim would bind the lower court and bar the legal malpractice action. In light of this concession, the judgment affirming the denial of his post-conviction relief claim bars his action for attorney malpractice.

We also reject Hockett's contention that the lower court should not have ruled on the motion for summary judgment regarding the attorney competence issues before this court decided his post-conviction relief appeal. In Nill v. Comparet (1861), 16 Ind. 107, our supreme court observed that "the only effect of an appeal to a Court of Error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects, the judgment, until annulled or reversed, stands binding upon the parties, as to every question directly decided." Id. at 109. Hock-ett's pending appeal of his post-conviction relief action did not alter the finality of that court's judgment. See id.; see also In Re Estate of Nye (1978), 157 Ind.App. 236, 299 N.E.2d 854, trans. denied (an Indiana judgment is clearly binding pending appeal). Hockett's allegation that it was improper for the trial court to grant summary judgment in the malpractice action prior to the disposition of the post-conviction appeal is without merit.

We also observe that even if Hockett did not make the concession, summary judgment was properly entered for Breunig and Gilroy because their conduct was not the proximate cause of Hockett's alleged damages. In attorney malpractice cases, negligence is actionable only when it is the proximate cause of the damages the plaintiff claims to have suffered. See Nave v. Baird (1859), 12 Ind. 318; Fiddler v. Hobbs (1985), Ind.App., 475 N.E.2d 1172, trans. denied.

Although Hockett contends that Breunig and Gilroy's advice caused his incarceration, the burden is on Hockett to prove that he would not have been incarcerated but for the allegedly negligent advice provided by his attorneys. See Palace Bar, Inc. v. Fearnot (1978), 269 Ind. 405, 881 N.E.2d 858; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d 886, trons. denied. The decision to plead guilty rests with the defendant. See Abraham v. State (1950), 228 Ind. 179, 91 N.E.2d 358; Lyles v. State (1978), 178 Ind.App. 398, 382 N.E.2d 991. Attorneys cannot enter guilty pleas for their clients and a defendant must satisfy the court that his plea was made knowingly, intelligently, and voluntarily. See IC 35-85-1-2, -8. Although we know of no relevant decided cases in Indiana, at least one jurisdiction has determined that summary judgment in favor of the attorney is proper if the criminal defendant-plaintiff acknowledges that his guilty plea was not induced or coerced. In Hughes v. Malone (8), 146 Ga. App. 341, 247 S.E.2d 107, the Georgia Court of Appeals reasoned that:

"Even assuming that Hughes was misinformed as to the severity of the potential sentence, the timing of the decision how to plead, and the ability to withdraw the plea once made if dissatisfied with the result, Hughes has not shown that except for the advice of Malone [the attorney] he would not have entered the plea of guilty. In fact, the record shows that Malone was insistent that the decision as to a plea be made by Hughes. When a defendant states on the record that his plea was not induced, he will not later be heard to claim the contrary."

Id. at 347, 247 S.E.2d at 112. As in Hughes, Hockett admitted at the guilty plea hearing that all facts contained in the information were true. Hockett acknowledged on the record that his plea was knowingly, intelligently, and voluntarily entered. Record at 391-92, 482. He is therefore precluded from asserting a contrary position in this malpractice action. See Gaboury v. Ireland Road Grace Brethren, Inc. (1983), Ind., 446 N.E.2d 1310 (contradictory testimony contained in an affidavit of the nonmovant may not be used by him to defeat a summary judgment motion when the only issue of fact raised by the affidavit is the affiant's credibility).

For all of the foregoing reasons, the trial court's grant of summary judgment in favor of Breunig and Gilroy is affirmed.

Judgment affirmed.

CONOVER, J., concurs. SHIELDS, P.J., concurs with separate opinion.

1 . Ind.Code 35-42-1-1(2) (Supp.1987).

2 . IC 35-43-2-1 (1982).

3 . IC 35-42-5-1 (Supp.1987).

4 . IC 35-43-1-1(a) (1982).

5 . The Indiana Supreme Court subsequently denied Hockett's Petition to Transfer.

6 . The other incriminating evidence indicative of Hockett's guilt included several witnesses who saw Hockett at the scene of the crime and blood-splattered pillow cases that were found in Hockett's house; also, several items taken from the burglarized home were found in Hockett's possession after Hockett admitted to police that he had stolen the property. Record of guilty plea hearing at 151-62, 444, 494, 559.

7 . Breunig and Gilroy were not parties to Hock-ett's post-conviction relief proceeding. We therefore need not reach the question of issue preclusion as discussed by the parties in their briefs. Even if we did so, we would be bound by a long line of Indiana Supreme Court and Court of Appeals decisions requiring mutuality of estoppel and identity of parties. See Tobin v. McClellan (1947), 225 Ind. 335, 73 N.E.2d 679; Hoosier Stone Co. v. Louisville, New Albany and Chicago Railway Co. (1891), 131 Ind. 575, 31 N.E. 365; Maple v. Beach (1873), 43 Ind. 51; State Farm Mut. Auto Ins. Co. v. Glasgow (1985), Ind.App., 478 NE2d 918; State v. Speidel (1979), 181 Ind.App. 448, 392 N.E.2d 1172, trans. denied.