Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.

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

Haynes v. McComb (11/17/2006) sp-6075, 147 P3d 700

     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,


) Supreme Court No. S- 11977
) Superior Court No.
v. ) 4FA-04-2454 CI
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
          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

     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

This site is possible because of the following site sponsors. Please support them with your business.
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights