Whether the plaintiff in a legal malpractice action would have prevailed on appeal in the underlying case is a matter of law to be decided by the court. See Romano v. Weiss, 26 Mass. App. Ct. 162, 170 n. 18 (1988), citing Stafford v. Garrett, 46 Or. App. 781 (1980). See also 4 R.E. Mallen J.M.
s in other jurisdictions that have considered this issue have consistently concluded that the determination of causation in an appellate legal malpractice case is a question of law. Cabot, Cabot Forbes Co. v. Brian, Simon, Peragine, Smith Redfearn, 568 F. Supp. 371, 374 (E.D.La. 1983) (applying Louisiana law), aff'd, 835 F.2d 286 (5th Cir. 1987); Phillips v. Clancy, 152 Ariz. 415, 421, 733 P.2d 300, 306 (Ariz.Ct.App. 1986); Croce v. Sanchez, 256 Cal.App.2d 680, 683, 64 Cal.Rptr. 448, 449-50 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1827, 20 L.Ed.2d 666 (1968); Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn.Ct.App. 1984); Katsaris v. Scelsi, 115 Misc.2d 115, 118, 453 N.Y.S.2d 994, 996-97 (1982); Jablonski v. Higgins, 6 Ohio Misc.2d 8, 10-11, 453 N.E.2d 1296, 1298-99 (Ohio C.P. 1983); Chocktoot v. Smith, 280 Or. 567, 575, 571 P.2d 1255, 1259 (1977); Jackson v. Olson, 77 Or. App. 41, 45, 712 P.2d 128, 130 (1985); Sola v. Clostermann, 67 Or. App. 468, 472, 679 P.2d 317, 319 (1984); Stafford v. Garrett, 6 Or. App. 781, 786, 613 P.2d 99, 101 (1980); Floyd v. Kosko, 285 S.C. 390, 394, 329 S.E.2d 459, 461 (S.C.Ct.App. 1985); Daugert v. Pappas, 104 Wn.2d 254, 258-59, 704 P.2d 600, 603-04 (1985); Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 127 n. 14, 362 N.W.2d 118, 135 n. 14 (1985); Lewandowski v. Continental Casualty Co., 88 Wis.2d 271, 279, 276 N.W.2d 284, 287 (1979); General Accident Fire Life Assurance Corp. v. Cosgrove, 257 Wis. 25, 27, 42 N.W.2d 155, 156 (1950). We likewise hold that in a case of appellate legal malpractice the determination of causation is a question of law.
Skinner v. Pistoria, 633 P.2d 672 (Mont. 1981); Stafford v. Garrett, 613 P.2d 99 (Or.App. 1980); Prosser, supra, at 777. The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.
In this case, as the parties acknowledge, because the alleged attorney negligence involves the failure to timely prosecute an appeal, it presents a legal question. Chocktoot, 280 Or. at 573, 571 P.2d 1255 (โThe legal consequences of an attorney's failure, in the earlier case, to present a timely pleading or motion or to take an appeal are matters for argument, not proof.โ); id. at 575, 571 P.2d 1255 (โThe question what decision should have followed in the earlier case if the defendant attorneys had taken proper legal steps is a question of law for the court.โ); Stafford v. Garrett, 46 Or.App. 781, 786, 613 P.2d 99 (1980) (โWhether or not the plaintiff would have prevailed on appeal is a question of law.โ). Specifically, the trial court was required to decide as a matter of law how an appellate court would have ruled on the merits of an appeal of the limited judgment absent Stoel Rives's negligenceโthat is, had a timely appeal been filed.
Although the courts in Texas have not previously addressed this issue, other jurisdictions have held that the decision must be made by the trial judge as an issue of law, based on a review of the transcript and the record of the underlying action. See, e.g., Cabot, Cabot Forbes Co. v. Brian, Simon, Peragine, Smith Redfearn, 568 F. Supp. 371, 374 (E.D.La. 1983), aff'd, 835 F.2d 286 (5th Cir. 1987); Molever v. Roush, 152 Ariz. 367, 732 P.2d 1105 (Ariz. App. 1987); Floyd v. Kosko, 285 S.C. 390, 329 S.E.2d 459 (S.C.App. 1985); Daugert v. Pappas, 104 Wn.2d 254, 704 P.2d 600, 604 (1985); Hyduke v. Grant, 351 N.W.2d 675 (Minn.App. 1984); Burk v. Burzynski, 672 P.2d 419 (Wyo. 1983); Stafford v. Garrett, 46 Or. App. 781, 613 P.2d 99 (1980); Dings v. Callahan, 4 Kan. App. 2d 36, 602 P.2d 542 (1979); Lewandowski v.Continental Casualty Co., 88 Wis.2d 271, 276 N.W.2d 284 (1979); Chicago Red Top Cab Assoc., Inc. v. Gaines, 49 Ill. App.3d 332, 7 Ill. Dec. 167, 364 N.E.2d 328 (1977); Croce v. Sanchez, 256 Cal.App.2d 680, 64 Cal.Rptr. 448 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1827, 20 L.Ed.2d 666 (1968); Katsaris v. Scelsi, 115 Misc.2d 115, 453 N.Y.S.2d 994 (N.Y.Sup.Ct. 1982). Millhouse attempts to distinguish these decisions of foreign jurisdictions by asserting that the State of Texas provides a constitutional right to trial by jury on every cause of action, Tex.Const. art. V, sec. 10, unlike many of the jurisdictions cited by Wiesenthal.
A sound argument can be made that even if the point is the subject of uncertainty, it should, if a pure question of law, be resolved by the court, not by the finder of fact, and be subject to appellate review like any other ruling. See Martin v. Hall, 20 Cal.App.3d 414 (1971) (where alleged malpractice concerned failure to raise legal defenses in criminal trial, judge should instruct jury as to how the court would have ruled on the defenses); Stafford v. Garrett, 46 Or. App. 781 (1980) (whether malpractice plaintiff would have prevailed on appeal on underlying case is a question of law to be decided by the court). See generally Mallen Levit, Legal Malpractice ยง 659 (2d ed. 1981).
Furthermore, we hold that the question of whether the appeal would have been successful had the appeal been heard is in this instance a question of law and may be decided on motion for summary judgment. Katsaris v. Scelsi, 115 Misc.2d 115, 453 N.Y.S.2d 994 (1982); Hyduke v. Grant, supra; Stafford v.Garrett, 46 Or. App. 781, 613 P.2d 99 (1980); Dings v.Callahan, supra; Croce v. Sanchez, 256 Cal.App.2d 680, 64 Cal.Rptr. 448 (1967). Finding no error in the granting of summary judgment, the order appealed is
Here, Hyduke must show that appeal from the verdict in his wrongful discharge action would have resulted either in outright reversal or in a new trial. If he shows that a new trial would have been ordered, he must show that the new trial would probably have been successful. The lawyers cite three out-of-state cases ( Stafford v. Garrett, 46 Or. App. 781, 613 P.2d 99 (1980); Dings v. Callahan, 4 Kan. App. 2d 36, 602 P.2d 542 (1979); and Croce v. Sanchez, 256 Cal.App.2d 680, 64 Cal.Rptr. 448 (1967)) for the proposition that whether an appeal would have been successful is a question of law and may thus be determined by the court on a summary judgment motion. The Minnesota Supreme Court has not ruled on the question, but such is the logical position. A court is qualified, in a way a jury is not, to determine the merits and the probable outcome of an appeal.