No Issue Preclusion from Fact Assumed for Sake of Argument
The plaintiff sued the defendant for legal malpractice in connection to his representation of it in a construction dispute, and the defendant counterclaimed for attorney fees. The construction dispute lawsuit had been dismissed as a sanction for spoliation of evidence. In the legal malpractice suit, the defendant moved for summary judgment on the grounds that because the plaintiff participated in the spoliation activities it should not be allowed to recover, under the doctrine of in pari delicto (a plaintiff who participatesin wrongdoing cannot recover damages resulting from that wrongdoing). The circuit court granted the defendant’s summary judgment, and the plaintiff appealed to the court of appeals which affirmed the circuit court.
When the matter came back to the circuit court for litigation on the defendant’s counterclaim for attorney fees, the plaintiff moved for summary judgment on the doctrine of in pari delicto, arguing that the defendant had admitted he was involved in the spoliation of evidence because he had argued in his prior summary judgment motion that “even assuming that [the plaintiff’s] theory of the case is true” (i.e. that the defendant was negligent), the plaintiff’s claim was still barred. The defendant countered that he only made the argument as a hypothetical for purposes of the summary judgment motion, that he was not admitting anything, and that the issue of his professional negligence had not yet been litigated. The circuit court ruled in favor of the plaintiff and dismissed the attorney fee claim, and the defendant appealed.
The court of appeals reversed, holding that when a party argues in a summary judgment motion that “assuming I was negligent, the plaintiff still cannot recover,” it is not an admission of negligence that operates to bar his recovery in a counterclaim under the doctrine of in pari delicto. The court further held that assuming facts that have not been litigated does not give rise to issue preclusion.
Harborview Office Center v. Nash, 2011 WI App 109 (2010AP1802) Court of Appeals opinion
