Cook v. Connolly

353 N.W.2d 184

• Court: Court of Appeals of Minnesota
• Decided: November 8, 1984
• Docket: C6-83-2043
• Status: Published

Opinions

OPINION

PARKER, Judge.

This is a case of first impression, requiring this court to determine whether the appellant, who is now an adult, may bring an action for malpractice against an attorney who represented her interests in proceedings which resulted in a minor settlement.

ISSUE

Does the doctrine of collateral estoppel bar relitigation of the issue of the adequacy of a minor settlement in a subsequent malpractice action against the attorney for the guardian ad litem?

FACTS

At the age of four, plaintiff-appellant lost her arm as a result of an accident involving a wringer washing machine. Appellant’s mother retained the respondent-attorney, John S. Connolly, to represent appellant in a lawsuit against the washing machine company and others. The lawsuit was settled on the morning of trial for a sum of $15,000.

When the appellant came of age 14 years later, she brought this action against respondent for legal malpractice, alleging that his representation had been negligent in that he failed to assert a claim in strict liability against the Maytag Company, manufacturer of the machine by which she sustained injury, or to conduct discovery of officials or employees of the Maytag Company. She asserted further that all of this claimed negligence resulted in an inadequate settlement. No claim of fraud or misrepresentation was alleged. The respondent moved for summary judgment, claiming that appellant did not meet the privity requirements for a legal malpractice lawsuit and that, absent fraud, the court-approved settlement was final.

The trial court dismissed appellant’s complaint, determining as a matter of law that appellant had no cause of action unless she could demonstrate fraud. Appellant has appealed from that determination.

DISCUSSION

The trial court disallowed the present action because of its belief that court-approved settlements of claims on behalf of minors should be final. The court reasoned, “The allowance of collateral attacks on such settlements in proceedings such as this would undoubtedly create temporary chaos and long-range instability and uncertainty that may well make the entire procedure as presently structured an exercise in futility.” The court therefore concluded that because minor settlements should be viewed as final, a minor, upon reaching the age of majority, has no cause of action against an attorney who represented her interests in a personal injury action resulting in a minor settlement unless the minor demonstrates fraud.

The foregoing view of the finality of a court-approved minor settlement is based on hoary, yet vital, precedent. In Lathrop v. Schutte, 61 Minn. 196, 197, 63 N.W. 493, 494 (1895), the Supreme Court held that “[t]he judgment in [an action by a parent maintained on behalf of a minor child] is a bar to any subsequent action for the same cause prosecuted by the minor, by his guardian, general or ad litem, or by himself, when he reaches his majority.”

In more recent years, it has been recognized that, upon attaining majority, a minor may, on a limited number of grounds, seek to have a court-approved minor settlement set aside. In Eliseuson v. Frayseth, 290 Minn. 282, 187 N.W.2d 685 (1971), the Minnesota Supreme Court held that a minor settlement may be vacated either by an independent action or by a motion under Rule 60.02(6), Minn.R.Civ.P., which allows relief from a final order, judgment or proceeding for “any * * * reason justifying relief.” The Eliseuson court noted:

This court has repeatedly held that the trial court may, for good cause, review an order approving a minor’s settlement made pursuant to Minn.St. 540.08, and that if, upon such review, it appears that such settlement was based upon a mutual mistake of fact, it may vacate and set aside its order of approval.

290 Minn. at 284, 187 N.W.2d at 686 (citations omitted).

In the instant case, appellant is not seeking to have the judgment set aside but brings an independent action for malprac-. tice against her former attorney.

The trial court characterized this action as a collateral attack on a court-approved minor settlement, ruling that in the absence of fraud it could not be sanctioned on any theory of law. We agree that this purportedly independent action is barred by the doctrine of collateral estoppel.

The essential nature of this aspect of res judicata was recently stated with clarity in Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702 (Minn.1982). There, the Commission sought to bring a race discrimination charge against Ellis based on his behavior toward his tenant, a native American. Ellis contended that the ease was barred because the issue of race discrimination had been litigated in a prior action for unlawful detainer. The Supreme Court defined collateral estoppel as:

[precluding] the relitigation of issues which are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment. See 1B J. Moore & T. Currier, Moore’s Federal Practice ¶ 0.443[1] (2d ed. 1948). The application of collateral estoppel is appropriate where:

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Id. at 704, quoting Victory Highway Village, Inc. v. Weaver, 480 F.Supp. 71, 74 (D.Minn.1979).

In reversing on that basis, the Court found that the issue raised in the prior action was identical to that in the case at bar. Although the earlier verdict had not been reduced to a formal judgment, “where the parties have acquiesced in the verdict,” and “where, through the lapse of time or other cause, a motion for a new trial or arrest of judgment cannot be granted,” the Court said estoppel in the form of issue preclusion may still apply. Id. See also Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978); American Druggists Insurance v. Thompson Lumber Co., 349 N.W.2d 569, 572-573 (Minn.Ct.App.1984).

In a somewhat analogous case, Pangalos v. Halpern, 247 Minn. 80, 76 N.W.2d 702 (1956), an administratrix brought action against attorneys to recover money paid under a settlement agreement as fees for services rendered an estate in litigation. The Supreme Court held that the probate court order, made on an agreed statement of facts with the agreement of the parties and awarding the fees to the attorneys, was not subject to collateral attack by an independent action to recover the money. The court reasoned:

Since the order herein determining the reasonable value of the attorneys’ fees and directing their payment in the course of administration was in essence a final judgment binding and conclusive upon the parties, and res judicata as to the point adjudicated, it falls under the following general rule: In the absence of fraud, a valid judgment, decree, or as here an order which is the equivalent thereof, entered by agreement or consent, operates as res judicata to the same extent as if it had been rendered after contest and full hearing and is binding and conclusive upon the parties and those in privity with them.

247 Minn. at 85-86, 76 N.W.2d at 706 (footnote omitted).

It has been urged that the doctrine of collateral estoppel requires that all parties to the present action be identical with or in privity with the parties to the prior adjudication. This misconceives the modern rule. As explained by Professor James R. Piel-emeier:

Until recently, virtually all courts held that collateral estoppel could be applied only if “mutuality” existed. Under the “mutuality” rule, only those persons who would have been subject to preclusion had the issue been resolved against them could successfully invoke collateral es-toppel. Because collateral estoppel could be asserted only against those who had had their “day in court” on the issue, the mutuality requirement normally limited the application of collateral estoppel to cases in which both the party asserting and the party defending against preclusion were parties to the litigation that first determined the issue.

The leading case in the movement abolishing the mutuality requirement is Bernhard v. Bank of America [19 Cal.2d 807, 122 P.2d 892], decided in 1942 by the Supreme Court of California. Since Bernhard, many courts, including the United States Supreme Court, have abandoned the mutuality requirement. In Parklane Hosiery Co. v. Shore [439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)] the Supreme Court, noting that collateral estoppel furthers the dual purposes of protecting litigants from the burden of relitigating issues and promoting judicial economy, held that federal courts had broad discretion to determine when to apply collateral estoppel. The exercise of this discretion would be aided, in part, by determining whether the application of collateral estoppel would be “unfair” to the precluded party. Notwithstanding this flexible approach to the application of collateral estoppel by nonparties to earlier litigation, the Court repeated the general rule that it cannot be asserted against a person “who was not a party or a privy” in the suit in which the issue was determined. The Court noted that such an application would violate due process.

Pielemeier, Due Process Limitations on the Application of Collateral Estoppel Against Nonparties to Prior Litigation, 63 B.U.L.Rev. 383, 386-87 (1983) (footnotes omitted).

This has been applied as follows in Minnesota, as stated in Shimp v. Sederstrom, 305 Minn. 267, 233 N.W.2d 292, 294-95 (1975):

One of the requirements for the application of the doctrine of collateral estoppel, also known as estoppel by verdict, is that the issue sought to be litigated in the second action must have been litigated and determined in a prior action. Radmacher v. Cardinal, 264 Minn. 72, 117 N.W.2d 738 (1962). A number of our cases have applied this requirement to contribution suits. In Radmacher v. Cardinal, supra, an automobile passenger sued his host-driver, who brought a third-party action seeking contribution from the driver of the other automobile. In a previous adversary action, however, the third-party defendant had been found to be free from causal negligence and the third-party plaintiff had been found causally liable. We held that the prior verdict estopped the third-party plaintiff from asserting a right to contribution from the third-party defendant unless the claim was based on negligence unrelated to the negligence proximately causing the collision. No such unrelated negligence has been alleged in the case at bar.

An analogous holding was rendered by the Court of Appeals for the Eighth Circuit in National Farmers Union Property & Cas. Co. v. Fisher, 284 F.2d 421 (1960). There, two passengers sued two drivers, and the drivers cross-claimed against each other for their personal injuries. The jury found both drivers guilty of causal negligence. In a subsequent action, a third passenger brought an action against one of the drivers, who then sought contribution from the second driver. The court held that the prior action precluded the second driver from denying that the collision resulted from the concurrent negligence of both drivers.

(Footnotes omitted).

We conclude that this purported action is, at best, premature. The district court, in approving the minor settlement, specifically recited that it was “fair and reasonable,” after a hearing to determine that question. The record discloses that the minor's attorney candidly admitted that liability was not firm and that the amount of the settlement was not close to the damages. It is this very judgment of the court, that the settlement was, under the circumstances, provident, that must be set aside before appellant can establish damages upon which a malpractice case can be predicated.

Counsel have briefed and argued the question of whether the appellant is in privity with an attorney retained by her guardian ad litem to represent her interests, even though the trial court did not decide the summary judgment motion on this ground. We agree that it gives little trouble.

The relevant statute is Minn.Stat. § 540.-08, which states:

A parent may maintain an action for the injury of a minor son or daughter. A general guardian may maintain an action for an injury to the ward. A guardian of a dependent, neglected, or delinquent child, appointed by a court having jurisdiction, may maintain an action for the injury of the child. If no action is brought by the father or mother, an action for the injury may be brought by a guardian ad litem, either before or after the death of the parent. * * * No settlement or compromise of the action is valid unless it is approved by a judge of the court in which the action is pending.

The Minnesota Supreme Court has repeatedly held that the object and effect of this statute is to enable the parent to bring the action for the benefit of the child. Whatever is recovered belongs to the child. See Gardner v. Kellogg, 23 Minn. 463, 467 (1877); Buechner v. Columbia Shoe Co., 60 Minn. 477, 62 N.W. 817 (1895); Lathrop v. Schutte, 61 Minn. 196, 197, 63 N.W. 493, 494 (1895).

In Brunette v. Minneapolis, St. Paul and Sault Ste. Marie Railway Co., 118 Minn. 444, 137 N.W. 172 (1912), the Supreme Court reiterated its position on the question of a minor’s privity. The court said:

We have held in several cases that the judgment in an action brought by the father for the benefit of his minor child * * * is a bar to any subsequent action for the same cause prosecuted by the minor, by his guardian, general or ad litem, or by himself when he reaches his majority. The infant is a party to the action, through his father as his representative.

118 Minn. at 446, 137 N.W. 172 (emphasis added, citations omitted). See also Hess v. Adamant Mfg. Co. of America, 66 Minn. 79, 68 N.W. 774 (1896); Pielemeier, Due Process Limitations at 390-91.

It is clear from the statute and case law that a minor, represented by a guardian, is a party to the action through his or her guardian. Thus, appellant is in privity with respondent.

DECISION

The doctrine of collateral estoppel bars relitigation of the issue of the adequacy of this minor settlement. Therefore, the judgment of the district court is affirmed.

Affirmed.