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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Haynes v. McComb (11/17/2006) sp-6075
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JAMES HAYNES, | ) |
| ) Supreme Court No. S- 11977 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-04-2454 CI |
| ) | |
| MICHELLE MCCOMB and ALASKA | ) O P I N I O N |
| PUBLIC DEFENDER AGENCY, | ) |
| ) | |
| Appellees. | ) No. 6075 - November 17, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: James Haynes, pro se, Florence,
Arizona. James E. Cantor, Assistant Attorney
General, Anchorage, David W. M rquez,
Attorney General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
In this legal malpractice case, James Haynes sued his
former criminal defense attorney, Michelle McComb, and her
employer, the Alaska Public Defender Agency (collectively
referred to here as McComb). McComb was awarded summary judgment
based on the affirmative defense of actual guilt.1 McComb based
her showing on the opinion of the court of appeals affirming
Hayness conviction.2 But the conviction had been vacated by
stipulation on Hayness petition for post-conviction relief.
If the conviction had remained in effect, McComb could
have relied on the court of appeals opinion. A civil litigant is
collaterally estopped from relitigating any element of a criminal
charge of which he stands convicted.3 The recitation of facts in
the court of appeals opinion would be useable under this
principle to show the necessary elements of the crime of which
Haynes was convicted. But Hayness conviction did not remain in
effect. Therefore, the court of appeals opinion could not be
used as a collateral estoppel bar. Nor did the opinion have an
evidentiary use because in order to use a conviction as evidence
of conduct underlying the conviction, it must also remain in
effect.4
McComb argues that Haynes failed to raise any issues of
material fact indicating his innocence. While this is arguably
incorrect because Hayness verified complaint asserts his
innocence, albeit in a conclusory fashion, it is also irrelevant
given the current posture of this case. A summary judgment
movant has the burden of presenting evidence that would be
admissible if presented at trial that, if unrefuted, shows that
there are no genuine issues of material fact and that the movant
is entitled to judgment as a matter of law.5 Here, as already
noted, McComb did not rely on evidence that would be admissible
if presented at trial, and therefore she did not make a prima
facie showing of actual guilt. Without such a showing, Haynes,
as the opponent to a summary judgment motion, had no obligation
to present evidence showing that genuine issues existed.6
Likewise, since collateral estoppel was unavailable to her,
McComb did not demonstrate that she was entitled to judgment as a
matter of law.
For these reasons, we REVERSE the judgment of the
superior court and REMAND this case for further proceedings
consistent with this opinion.
_______________________________
1 A former criminal defendant who sues his defense
attorney for malpractice must, if he has been convicted, obtain
post-conviction relief in order to maintain the malpractice
action. Shaw v. State, Dept of Admin., Pub. Defender Agency, 816
P.2d 1358, 1359 (Alaska 1991). When post-conviction relief has
been obtained, actual guilt is nonetheless an affirmative defense
to the malpractice action. Shaw v. State, Dept of Admin., 861
P.2d 566, 570-72 (Alaska 1993). Actual guilt refers to a
determination in a civil trial, by a preponderance of the
evidence, that the defendant engaged in the conduct he was
accused of in the prior criminal proceeding. Id. at 570 n.3.
2 Haynes v. State, 15 P.3d 1088 (Alaska App. 2001).
3 Burcina v. City of Ketchikan, 902 P.2d 817, 822 (Alaska
1995).
4 See Scott v. Robertson, 583 P.2d 188, 192 (Alaska 1978)
(reasoning that a prior conviction may not be used as evidence
where there is a substantial question as to its validity).
5 E.g., Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d
966, 971 (Alaska 2005). Guerrero states:
To prevail on a motion for summary
judgment, the moving party must offer
admissible evidence demonstrating that there
are no disputed issues of material fact and
the moving party is entitled to judgment as a
matter of law. Once the moving party has
made a prima facie showing that there is no
genuine issue of material fact, the burden
shifts to the nonmoving party to demonstrate
that a genuine issue of fact exists to be
litigated by showing that it can produce
admissible evidence reasonably tending to
dispute the movants evidence.
Id. (citations omitted).
6 E.g., Hymes v. Deramus, 119 P.3d 963, 968 n.22 (Alaska
2005) (The non-moving party need not demonstrate the existence of
a genuine issue until the moving party makes a prima facie
showing of its entitlement to judgment on established facts.
(internal quotations omitted) (quoting Alaska Travel Specialists
v. First Natl Bank of Anchorage, 919 P.2d 759, 762 (Alaska
1996))).
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