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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

SAAD AKRAM BAHODA,

Plaintiff-Appellant,

UNPUBLISHED

July 20, 2017

v No. 332313

Macomb Circuit Court

STEVEN M. KAPLAN, LC No. 2015-001714-CZ

Defendant-Appellee.

Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

In this action alleging legal malpractice, plaintiff Saad Akram Bahoda appeals as of right 

the trial court’s order granting summary disposition to defendant Steven M. Kaplan pursuant to 

MCR 2.116(C)(7)1 because plaintiff’s claim was precluded by the doctrine of collateral estoppel. 

We affirm.

This case arose out of defendant’s representation of plaintiff in a criminal matter in which 

plaintiff was charged with assault with intent to commit murder, MCL 750.83, and ultimately 

convicted after a jury trial of assault with intent to do great bodily harm less than murder, MCL 

750.84. Following his trial, plaintiff claimed that defendant provided ineffective assistance of 

counsel in multiple ways. The trial court denied plaintiff’s request for a new trial and declined to 

conduct an evidentiary hearing.

 1 Although the trial court set forth the legal standards for MCR 2.116(C)(7), MCR 2.116(C)(8), 

and MCR 2.116(C)(10) in its opinion and order and did not explicitly state that its grant of 

summary disposition was predicated specifically on MCR 2.116(C)(7), it is clear that its decision 

was in fact predicated on MCR 2.116(C)(7) because the trial court relied entirely on its 

conclusion that plaintiff’s action was barred by the prior judgment in his criminal case and the 

trial court did not employ any of the relevant language for a decision predicated on MCR 

2.116(C)(8) or MCR 2.116(C)(10) in reaching its decision. Moreover, summary disposition is 

properly granted under MCR 2.116(C)(7) when a claim is precluded by the doctrine of collateral 

estoppel. Minicuci v Scientific Data Mgt, Inc, 243 Mich App 28, 42; 620 NW2d 657 (2000).
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Meanwhile, as the post-conviction proceedings were occurring in plaintiff’s criminal 

matter, plaintiff filed this civil lawsuit, acting in propria persona, against defendant. The trial 

court in the civil action granted defendant’s motion for summary disposition and denied 

plaintiff’s motion for discovery. The trial court concluded that plaintiff’s legal malpractice claim 

was barred by the doctrine of collateral estoppel because the same issue was involved in 

plaintiff’s ineffective assistance motion in his criminal matter, and the trial court in the criminal 

matter had denied the motion by ruling that plaintiff did not receive ineffective assistance of 

counsel and that plaintiff’s arguments had no merit. Plaintiff now appeals this order.

While plaintiff’s appeal in the instant civil action was pending, this Court affirmed the 

rulings of the trial court in plaintiff’s criminal case.

2

 The Michigan Supreme Court denied 

plaintiff’s application for leave to appeal this Court’s judgment.3

On appeal, plaintiff first argues that the doctrine of collateral estoppel should not 

preclude his legal malpractice action. We disagree.

“This Court reviews the grant or denial of summary disposition de novo to determine if 

the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 

118; 597 NW2d 817 (1999). Additionally, “[t]his Court reviews de novo the application of a 

legal doctrine, including collateral estoppel.” People v Trakhtenberg, 493 Mich 38, 47; 826 

NW2d 136 (2012).

Where a claim is precluded by the doctrine of collateral estoppel, summary disposition is 

proper under MCR 2.116(C)(7).4 Minicuci v Scientific Data Mgt, Inc, 243 Mich App 28, 42; 620 

NW2d 657 (2000); see also Alcona Co v Wolverine Environmental Prod, Inc, 233 Mich App 

238, 246; 590 NW2d 586 (1998). “A party may support a motion under MCR 2.116(C)(7) by 

affidavits, depositions, admissions, or other documentary evidence,” and “[i]f such material is 

submitted, it must be considered. Rozwood, 461 Mich at 119. “[T]he substance or content of the 

supporting proofs must be admissible in evidence.” Id. However, “a movant under MCR 

2.116(C)(7) is not required to file supportive material, and the opposing party need not reply 

with supportive material. Id. “In reviewing whether a motion under MCR 2.116(C)(7) was 

properly decided, [this Court] consider[s] all documentary evidence and accept[s] the complaint 

as factually accurate unless affidavits or other appropriate documents specifically contradict it.” 

Kuznar v Raksha Corp, 481 Mich 169, 175-176; 750 NW2d 121 (2008).

 2 People v Bahoda (Bahoda I), unpublished opinion per curiam of the Court of Appeals, issued 

June 14, 2016 (Docket No. 316879).

3 People v Bahoda, 500 Mich 959; 892 NW2d 362 (2017).

4 MCR 2.116(C)(7) provides that a motion for summary disposition may be based on the ground 

that “[e]ntry of judgment, dismissal of the action, or other relief is appropriate because of release, 

payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an 

agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving 

party, or assignment or other disposition of the claim before commencement of the action.”
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“Collateral estoppel is a rule of issue preclusion.” Moses v Dep’t of Corrections, 274 

Mich App 481, 503; 736 NW2d 269 (2007). “Collateral estoppel precludes relitigation of an 

issue in a subsequent, different cause of action between the same parties when the prior 

proceeding culminated in a valid final judgment and the issue was actually and necessarily 

determined in the prior proceeding.” Barrow v Pritchard, 235 Mich App 478, 480; 597 NW2d 

853 (1999) (quotation marks and citation omitted). “The doctrine of collateral estoppel is 

intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial 

resources, and, by preventing inconsistent decisions, encourage reliance on adjudication . . . .” 

Monat v State Farm Ins Co, 469 Mich 679, 692-693; 677 NW2d 843 (2004) (quotation marks 

and citation omitted). “Generally, for collateral estoppel to apply three elements must be 

satisfied: (1) a question of fact essential to the judgment must have been actually litigated and 

determined by a valid and final judgment; (2) the same parties must have had a full [and fair] 

opportunity to litigate the issue; and (3) there must be mutuality of estoppel.” Id. at 682-684 

(quotation marks and citation omitted). “[M]utuality of estoppel requires that in order for a party 

to estop an adversary from relitigating an issue that party must have been a party, or in privy to a 

party, in the previous action,” and “[t]he estoppel is mutual if the one taking advantage of the 

earlier adjudication would have been bound by it, had it gone against him.” Id. at 684-685 

(quotation marks and citations omitted). However, “where collateral estoppel is being asserted 

defensively against a party who has already had a full and fair opportunity to litigate the issue, 

mutuality is not required.” Id. at 695.

“Crossover estoppel, which involves the preclusion of an issue in a civil proceeding after 

a criminal proceeding and vice versa, is permissible.” Barrow, 235 Mich App at 481. This 

Court has previously held that “where a full and fair determination has been made in a previous 

criminal action that the client received the effective assistance of counsel, the defendant-attorney 

in a subsequent civil malpractice action brought by the same client may defensively assert 

collateral estoppel as a bar.” Knoblauch v Kenyon, 163 Mich App 712, 725; 415 NW2d 286 

(1987). “[T]he legal standards for ineffective assistance of counsel in criminal proceedings and 

for legal malpractice in civil proceedings are equivalent for purposes of application of the

doctrine of collateral estoppel.” Id. at 719.

In Barrow, 235 Mich App at 483-485, this Court reaffirmed that the holding and 

reasoning of Knoblauch and its progeny “continue to represent the state of the law in Michigan.” 

The defendants in Barrow had represented the plaintiff in a criminal matter in federal court that 

resulted in the plaintiff being convicted on 11 of the 15 counts in his indictment and acquitted on 

the remaining counts. Id. at 479. The plaintiff subsequently moved the trial court for a new trial 

and argued in part that he had received ineffective assistance of counsel. Id. The motion was 

denied by the trial court, after which the plaintiff filed a complaint in state court alleging legal 

malpractice against the defendants based on their representation during the plaintiff’s criminal 

trial. Id. The defendants moved for summary disposition on the ground that the malpractice 

action was barred by collateral estoppel because the federal court had denied the plaintiff’s new 

trial motion that had been based on an ineffective assistance claim. Id. The trial court granted 

summary disposition to the defendants, and this Court affirmed. Id. In reaching its conclusion, 

the Barrow Court explained:

In order to establish a cause of action for legal malpractice, the plaintiff has the 

burden of establishing the following elements: (1) the existence of an attorney-
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client relationship (the duty); (2) negligence in the legal representation of the 

plaintiff (the breach); (3) that the negligence was a proximate cause of an injury 

(causation); and (4) the fact and extent of the injury alleged (damage). As 

previously indicated, in order for a defendant in a criminal case to establish that 

he did not receive the effective assistance of counsel, he must show (1) that 

counsel’s performance was deficient and that, under an objective standard of 

reasonableness, counsel made an error so serious that counsel was not functioning 

as an attorney as guaranteed under the Sixth Amendment, and (2) that the 

deficiency was prejudicial to the defendant.

* * *

Although case-law discussion of the requirements to establish ineffective 

assistance of counsel and legal malpractice may contain language disparity, we 

believe the standards are sufficiently similar in substance to support the 

application of the defense of collateral estoppel. The first step of the Strickland[5]

standard and the breach element of a claim of legal malpractice are the same, i.e., 

trial counsel must act reasonably. Further, the second step of the Strickland

standard (prejudice) and the causation element of a claim of legal malpractice are 

also the same, i.e., a defendant must show that trial counsel’s alleged deficiency 

affected the outcome of the criminal trial. Finally, although defendants were not 

parties to plaintiff’s motion for a new trial based on ineffective assistance of 

counsel in the federal court, we agree with this Court’s extensive analysis in 

Knoblauch, supra at 719-725, that mutuality of estoppel is not necessary before a 

defendant in a legal malpractice action can use the defense of collateral estoppel. 

[Id. at 483-485 (some citations omitted).]

Here, as an initial matter, the trial court determined “that the gravamen of [plaintiff’s] 

complaint against [defendant] is for legal malpractice” and that plaintiff’s claims of breach of 

fiduciary duty and fraud asserted against defendant could not be considered separate causes of 

action and were “subsumed by the legal malpractice claim.” Plaintiff does not contest this 

finding on appeal. Therefore, there is no civil claim to evaluate on appeal other than one of legal 

malpractice for purposes of determining whether the trial court erred by concluding that plaintiff 

was estopped from maintaining his lawsuit.

With respect to the first element of the collateral estoppel analysis, plaintiff moved the 

trial court in his criminal matter for a new trial or an evidentiary hearing and raised claims that 

defendant provided ineffective assistance of counsel based on allegations that defendant 

misadvised plaintiff of the laws and rules applicable to his case, failed to file motions on behalf 

of plaintiff, failed to make a mandatory disclosure of a conflict of interest, and failed to move for 

disqualification based on the alleged conflict of interest involving attorney Brian Legghio. More 

specifically regarding the conflict-of-interest allegation, plaintiff argued that defendant had a 

duty to inform the trial court that attorney Legghio’s representation of Natalie Allie, as an 

 5 Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
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adverse witness against plaintiff who was granted immunity, constituted a potential or actual 

conflict of interest because defendant had referred Legghio to meet with plaintiff and therefore 

knew about the prior relationship between Legghio and plaintiff. 

Plaintiff’s former appellate attorney in his criminal matter also moved for a new trial or 

evidentiary hearing based on defendant’s failure to raise the issue of self-defense during trial. 

The trial court rejected plaintiff’s claims, as did this Court in plaintiff’s appeal of his criminal 

matter, and the Michigan Supreme Court denied leave to appeal this Court’s judgment.

Similarly, in the instant civil matter claiming that defendant committed legal malpractice, 

plaintiff alleged that defendant provided constitutionally deficient performance, was ineffective, 

was negligent, breached his fiduciary duty, committed silent fraud, and committed common-law 

fraud. As previously noted, plaintiff’s complaint was simply asserting legal malpractice on 

multiple grounds. Specifically, plaintiff alleged that defendant failed to develop a proper defense 

strategy; failed to request a self-defense instruction; failed to assert a defense strategy of selfdefense; failed to generally test the prosecution’s case and impeach prosecution witnesses; failed 

to investigate; failed to inform the trial court of “a potential or actual conflict of interest” 

between plaintiff, attorney Legghio, Allie, and the prosecutor in plaintiff’s criminal case; 

wrongfully induced plaintiff to believe that there was no conflict of interest where Legghio 

represented Allie and secured an immunity deal, lied to plaintiff about calling a defense witness; 

wrongfully indicated to plaintiff that his only defense option was an intent defense; wrongfully 

allowed the prosecutor to “use a conflict of interest as a means to dictate plaintiff’s defense in his 

criminal case”; failed to act with reasonable competence in motion practice; and failed to comply 

with “the standard of practice and care, the cannons of ethics, the Michigan Rules of Professional 

Conduct, and ethical considerations applicable to attorneys in the State of Michigan.”

We conclude that all of plaintiff’s allegations in his malpractice complaint can properly 

be considered variations of the same claims made in his ineffective assistance action against 

defendant in plaintiff’s criminal proceedings6 because they all involve issues relating to how 

defendant represented plaintiff during the criminal matter and defendant’s alleged failure to 

properly advise plaintiff on applicable laws and rules, to file motions, to disclose an alleged 

conflict of interest involving Legghio and take certain actions based on that alleged conflict of 

interest, and to present plaintiff’s desired defense of self-defense. With respect to plaintiff’s 

various complaints related to the alleged conflict of interest involving attorney Legghio and 

Allie, this was explicitly raised as part of plaintiff’s ineffective assistance claim in the criminal 

proceedings. Plaintiff’s remaining legal malpractice claims essentially boil down to plaintiff’s 

disagreement with defendant’s choice of trial strategy, including the theory of defense he 

presented, how the defense theory was presented, and how defendant chose to conduct the trial. 

These claims may be understood as species of plaintiff’s previous claims in the criminal 

proceedings that defendant failed to raise the issue of self-defense during trial and misadvised 

 6 Indeed, plaintiff does not adequately contest this on appeal but instead emphasizes the lack of 

an evidentiary hearing and the allegedly different incentives in the criminal context versus the 

civil context.
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plaintiff of the laws and rules applicable to his case. Regardless of the precise choice of words 

used by plaintiff to articulate his claims in each forum, the first collateral estoppel element is 

satisfied because a question of fact essential to the judgment was actually litigated and 

determined by a valid and final judgment. Monat, 469 Mich at 682.

Next, plaintiff raised these issues in the trial court as part of his criminal matter, and the 

trial court rejected plaintiff’s arguments, denying his requests for a new trial and evidentiary 

hearing. The trial court also rejected plaintiff’s motion for reconsideration. While plaintiff 

contends that he did not have a full opportunity to litigate these issues because he was not 

granted a Ginther7 hearing, plaintiff does not cite any authority for the proposition that he was 

legally entitled to a Ginther hearing. “[A] trial court’s decision whether to hold an evidentiary 

hearing is reviewed for an abuse of discretion,” and a trial court abuses its discretion “when the 

court chooses an outcome that falls outside the range of reasonable and principled outcomes.” 

People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). As previously noted, this 

Court has affirmed the trial court’s rulings and the Michigan Supreme Court has denied 

plaintiff’s application for leave to appeal in his criminal matter.8 

While plaintiff argues that he has not had a full and fair opportunity to litigate his claims 

regarding defendant’s representation because his criminal appeal is still pending on appeal in this 

Court, plaintiff’s argument is now moot because plaintiff’s criminal appeal is no longer pending. 

“An issue is deemed moot when an event occurs that renders it impossible for a reviewing court 

to grant relief.” B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 

(1998). “As a general rule, an appellate court will not decide moot issues.” Id. 

Because a claim of ineffective assistance in criminal proceedings involves the same legal 

standards as a civil claim for legal malpractice, Knoblauch, 163 Mich App at 719, plaintiff has 

had a full and fair opportunity to litigate his claims, Monat, 469 Mich at 682-683.

Finally, mutuality is not required in this situation because “collateral estoppel is being 

asserted defensively against a party who has already had a full and fair opportunity to litigate the 

issue . . . .” Monat, 469 Mich at 695. Specifically, as this Court has previously held, “where a 

full and fair determination has been made in a previous criminal action that the client received 

the effective assistance of counsel, the defendant-attorney in a subsequent civil malpractice 

action brought by the same client may defensively assert collateral estoppel as a bar.” 

Knoblauch, 163 Mich App at 725. Therefore, defendant may assert collateral estoppel to 

preclude the instant malpractice action based on his representation of plaintiff in the previous 

criminal matter. Id.

Nonetheless, plaintiff relies on Trakhtenberg, 493 Mich 38, for the proposition that the 

doctrine of collateral estoppel does not bar his claim because the incentives to litigate the issue of 

 7 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

8 This Court specifically held that the trial court did not abuse its discretion in failing to hold a 

Ginther hearing. Bahoda I, unpub op at 7. 
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a defense attorney’s performance are different in the contexts of criminal cases involving 

ineffective assistance of counsel and civil claims of legal malpractice. Plaintiff’s reliance on 

Trakhtenberg is misplaced because that case is clearly distinguishable from the instant case. In 

Trakhtenberg, the issue was “whether collateral estoppel may be applied to preclude review of a 

criminal defendant’s claim of ineffective assistance of counsel when a prior civil judgment held 

that defense counsel’s performance did not amount to malpractice.” Id. at 42. In other words, 

the situation in that case was the inverse of the situation here: an attempt to use cross-over 

collateral estoppel going from the civil to criminal context rather than the criminal to civil 

context. The Trakhtenberg Court noted that “[s]everal Court of Appeals opinions have held that 

a criminal defense attorney may rely on the doctrine of collateral estoppel in order to avoid 

malpractice liability when a full and fair determination was made in a previous criminal action 

that the same client had received effective assistance of counsel” but that “we must hesitate to 

apply collateral estoppel in the reverse situation—when the government seeks to apply collateral 

estoppel to preclude a criminal defendant’s claim of ineffective assistance of counsel in light of a 

prior civil judgment that defense counsel did not commit malpractice.” Id. at 48. The Court 

concluded “that collateral estoppel cannot be applied to preclude the review of a criminal 

defendant’s claim of ineffective assistance of counsel simply because a previous civil proceeding 

determined that defense counsel had not committed malpractice.” Id. at 58. The Court explained 

its holding and reasoning as follows:

We hold that the Court of Appeals erred when it applied collateral 

estoppel to preclude its review of defendant’s ineffective-assistance-of-counsel 

claim because defendant did not have a full and fair opportunity to litigate his 

claim in the malpractice proceeding. Considering the nature of the forum in 

which defendant’s allegations concerning counsel’s errors were initially rejected, 

it is clear that defendant’s interest when pursuing his civil malpractice claim 

differed from his interest in asserting his constitutional right to effective counsel 

in the criminal proceeding. Indeed, defendant sought monetary gain in the 

malpractice case, whereas in his criminal case he seeks protection of a 

constitutional right and his liberty. Accordingly, because defendant has a 

different and most likely stronger incentive to litigate counsel’s errors in the 

criminal proceeding, the prior civil litigation concerning counsel’s alleged claims 

of error did not afford defendant a full and fair opportunity to litigate his 

ineffective-assistance-of-counsel claim. [Id. at 50-51 (emphasis added).]

Therefore, the Court’s opinion in Trakhtenberg did not disturb the well-established rule 

that collateral estoppel may be used defensively going from the criminal context to the civil 

context when the defendant had a full and fair opportunity to litigate an ineffective assistance 

claim. 

The trial court did not err by granting summary disposition under MCR 2.116(C)(7) 

based on the doctrine of collateral estoppel. Minicuci, 243 Mich App at 42. While the parties 

also advance arguments related to whether summary disposition would have been proper under 

MCR 2.116(C)(8) and MCR 2.116(C)(10), we decline to address these issues in light of our 

conclusion that summary disposition was properly granted pursuant to MCR 2.116(C)(7). 

Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 39 n 1; 772 NW2d 801 (2009).
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Next, plaintiff argues that summary disposition was premature without further discovery. 

We disagree.

Summary disposition “is generally premature if discovery has not been completed unless 

there is no fair likelihood that further discovery will yield support for the nonmoving party's 

position.” See id. at 33-34. In Liparoto Constr, we held that summary disposition was not 

premature where summary disposition had been granted to a defendant on the basis of a one-year 

contractual limitations period because the limitations period was “not a matter that requires 

further factual development” and “[a]ccordingly, there [was] no fair likelihood that further 

discovery would yield support for plaintiff's action against [the defendant].” Id. at 27, 33-34.

Here, summary disposition was granted to defendant on the ground of collateral estoppel. 

As previously discussed, plaintiff raised materially the same claims against defendant during the 

course of plaintiff’s ineffective-assistance litigation in the criminal matter, and plaintiff’s 

arguments were rejected both in the trial court and on appeal. There is no further factual 

development that is necessary to determine whether collateral estoppel barred plaintiff’s legal 

malpractice claim, and “there is no fair likelihood that further discovery would yield support for 

plaintiff’s action . . . .” Id. at 34. Moreover, plaintiff has not made any attempt to identify 

evidence that would have been revealed in discovery that would somehow demonstrate that 

collateral estoppel did not preclude this action. To have allowed this lawsuit to continue would 

have been contrary to the intended purposes of the collateral-estoppel doctrine, which is “to 

relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by 

preventing inconsistent decisions, encourage reliance on adjudication . . . .” Monat, 469 Mich at 

692-693 (quotation marks and citations omitted). Summary disposition was not premature.

Finally, plaintiff’s reliance on Gebhardt v O’Rourke, 444 Mich 535, 554; 510 NW2d 900 

(1994), for the proposition that “successful postconviction relief is not a prerequisite to the 

maintenance of a claim for legal malpractice arising out of negligent representation in a criminal 

matter” is misplaced. In Gebhardt, the issue before the Court was whether the plaintiff’s action 

for legal malpractice was barred by the statute of limitations—specifically, whether the cause of 

action accrued only upon the judgment of acquittal (obtained by a different attorney) in the 

underlying criminal case being upheld on appeal, or if it accrued before that time. Id. at 537-

538. The defendant attorney represented the plaintiff in a criminal trial that resulted in the 

plaintiff being convicted, but the plaintiff hired a different attorney for her post-conviction 

proceedings that ultimately resulted in a judgment of acquittal for the plaintiff. Id. at 537-538. 

The plaintiff filed her malpractice action against the defendant after the acquittal was upheld on 

appeal, and the trial court granted summary disposition to the defendant based on the applicable 

statute of limitations. Id. at 538-539. The Gebhardt Court held “that a criminal defendant’s 

legal malpractice action accrues on the last day of his attorney’s professional service in the 

underlying criminal matter out of which the negligence arose, after which time he has two years 

to file suit”; that “a criminal defendant’s malpractice suit will not be barred by the two-year 

provision if he files within six months of when he discovers, or should have discovered, his 

malpractice claim”; and that “successful postconviction relief is not a prerequisite to the 

maintenance of a claim for legal malpractice arising out of negligent representation in a criminal 

matter.” Id. at 554. The Court concluded that “[b]ecause the plaintiff filed her claim well past 

two years from [the defendant’s] last day of service, the suit [was] barred under the two-year 

limitation provision,” and it further concluded that the plaintiff’s “action [was] also barred under 
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the six-month discovery rule.” Id. at 544. Importantly, the Court “decline[d] to address today 

the question of when issue preclusion and collateral estoppel may be appropriately applied.” Id. 

at 549 n 15.

Here, the issue was not determining when plaintiff had to file his malpractice action in 

order to comply with the statute of limitations but rather whether the action could even be 

continued once filed. In other words, the fact that plaintiff could file his malpractice action 

before obtaining successful post-conviction relief in order to avoid being barred by the statute of 

limitations does not mean that the action cannot now be barred nonetheless by the doctrine of 

collateral estoppel. Plaintiff’s reliance on Gebhardt does not advance his argument here.

Affirmed.

/s/ Michael F. Gadola

/s/ Patrick M. Meter

/s/ Karen M. Fort Hood