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### STATE OF MICHIGAN

COURT OF APPEALS

WILLIAM J. BOTTESI, JR.,

Plaintiff-Appellant, UNPUBLISHED October 27, 2016

v No. 327906 Dickinson Circuit Court GRANT T. CARLSON, LC No. 14-018210-NM

Defendant-Appellee.

Before: M ARKEY , P.J., and M URPHY and R ONAYNE KRAUSE , JJ.

P ER C URIAM

. In this action alleging legal malpractice, plaintiff appeals b y right the trial court’s order granting defendant’s motion for summary disposition on the basi s of collateral and judicial estoppel. We affirm.

I. FACTS AND PROCEEDINGS

On October 2, 2012, plaintiff pleaded no contest to third-degr ee criminal sexual conduct (CSC), MCL 750.520d(1)(b), assault with intent to commit sexual penetration, MCL 750.520g(1), and operating a vehicle while impaired (OWI), MCL 257.625(3). Plaintiff was arrested on July 21, 2012 after he assaulted his ex-wife and wa s charged with first-degree CSC, MCL 750.520b(1)(f), first-degree home invasion, MCL 750.110a(2) , interfering with an electronic communication causi ng serious injury, MCL 750.540(5) (b), assaulting, resisting or obstructing a police officer, MCL 750.81d(1), and operating a v ehicle while intoxicated, MCL 257.625(1). Defendant was appointe d to represented plaintiff i n the criminal case.

Plaintiff entered his no contest plea pursuant to a plea barga in that included dismissal of the greater original charges, a greement on the scoring of certa in sentencing guidelines variables, and agreement on a minimum sentencing range of 36 to 60 months. Defendant explained the plea offer to plaintiff in a letter before the plea was tendere d. On October 2, 2012, plaintiff pleaded no contest according to the terms of plea agreement out lined in defendant’s letter. The plea transcript does not indicate any reservation on plaintiff’ s part regarding tendering the plea, or that it was anything other than his knowing and voluntary ch oice. Plaintiff, under oath, acknowledged that he understood the maximum penalties for each offense to which he pleaded no contest, and that he would be giving up his right to a trial , the presumption of innocence, the right to remain silent or to testify or present witnesses, and to require the prosecutor to prove his-2- guilt beyond a reasonable doubt. He affirmed that no one had p romised him anything in addition to the plea agreement and tha t no one had forced or coerced him to plead no contest.

The parties stipulated that the no contest plea was proper bas ed on intoxication and civil liability and also stipulated that the trial court could review a probable cause statement, marked as Exhibit 1, that supported issu ance of the complaint and warr ant regarding the original charges. After determining that plaintiff’s no contest plea was knowing and voluntary in accordance with the plea bargain, the trial court determined that the exhibit e stablished all the elements of the offenses to which plaintiff pleaded no contest. The trial court accepted plaintiff’s no contest plea, finding that “it was en tered here today freely, voluntari ly and accurately.”

On December 4, 2012, plaintiff was sentenced in accordance with the plea bargain to concurrent prison terms of 40 months to 15 years for the third- degree CSC, 18 months to ten years for the assault with intent to commit CSC involving penet ration, and 93 days jail for the OWI conviction. Plaintiff did not appeal his convictions and s entences.

At the sentencing hearing, plaint iff expressed great remorse a nd asked the court to “follow the guidelines and give me what you think I deserve.” Plaintiff also stated that the incident was not the victim’s fault and that “I did this.” Pla intiff further submitted a letter for the trial court’s consideration at s entencing. Plaintiff stated inthe letter that he had accepted the plea offer “to avoid putting [the victim] in a position of having to relive that hellish night in open court.” He also stated he wan ted to focus on repairing the dam age he had done.

In May 2014, plaintiff filed in the criminal case a motion for relief from the judgment, MCR 6.501 et seq ., alleging that defendant provi ded ineffective assistance of c ounsel. He filed an amended motion for relief from judgment in August 2014. Pla intiff’s claims included allegations that defendant provided inaccurate sentencing advic e, failed to file various motions, did not seek a psychological evaluation of plaintiff, and faile d to challenge the legality of plaintiff’s arrest and the search of his residence. Plaintiff also alleged defendant failed to conduct basic pre-trial investig ation, failed to object to cert ain statements at the sentencing hearing, failed to provide undivided loyalty, and coerced plaintiff into pleading no contest. Plaintiff further asserted that his no contest plea was defecti ve because the trial judge had not stated what part of Exhibit 1 it relied on to find the elements of each offense, he had not been informed of the plea agreement sentence range related to the mi nimum portion of his sentence, and he was not informed about res titution or of dr iving sanctio ns from his OWI conviction.

On September 12, 2014, the circuit court judge that had presid ed over the criminal proceedings issued an opinion and order denying plaintiff’s mot ion for relief from judgment. The circuit court determined that the exhibit submitted by the parties at the plea established the elements of the charges that were dismissed pursuant to the ple a: first-degree CSC and firstdegree home invasion. The court also found that plaintiff’s as sertion that defendant “was incompetent lacks merit in light of the significant plea agreem ent [defendant] was able to negotiate for [plaintiff] in light of the overwhelming evidence against him.” The circuit court also determined that none of the plea proceeding irregularities that plaintiff alleged, even if accurate, were “so offensive to the maintenance of a sound judi cial process that the conviction should not be allowed to withstand.” The circuit court rejecte d several of plaintiff’s specific allegations concerning defendant’s representation, such as fail ing to object to statements-3- concerning the medical expenses the victim incurred as a result of the offenses, failing to challenge plaintiff’s arrest and a search of plaintiff’s home, and stated that nothing during the course of the proceedings supporte d that plaintiff was sufferin g from any mental defect that might require a psychological evaluation. The court determined none of the instances of alleged ineffective assistance prejudiced plaintiff.

Plaintiff filed this lawsuit on October 28, 2014, asserting cl aims of legal malpractice, alleging fraudulent misrepresentation, concealment of facts to induce contract, interference with rights and perjury—all in connec tion with defendant’s represent ation of plaintiff in the criminal case. Plaintiff asserted damages based on his incarceration re lated to lost income, loss of liberty, and a lost opportunity to sue th e police for false arrest, and mental anguish.

Plaintiff filed an amended complaint on December 29, 2014, aga in alleging a claim of legal malpractice, and asserting fraudulent misrepresentation, fraudulent concealment of facts to induce a contract, interference with rights, obtaining money un der false pretenses, and perjury, all of which concerned defendant’s legal representation of plai ntiff in the criminal case. Plaintiff alleged that at the time of the criminal prosecution, his menta l state was not sharp due to a head injury, and that defendant restricted his access to information . Plaintiff alleged defendant had a conflict of interest because he was court-appointed; defendant failed to contest police actions, including his arrest, search of plaintiff’s home, and the takin g of plaintiff’s statement; defendant failed to properly investigate by not hiring a bite-mark expert , not seeking a psychological exam of plaintiff, not investigating the victim’s past, and not inte rviewing a potential witness; defendant failed to explain all the elements of the charged off enses, and all collateral consequences of his convictions, including restitution, driver’ s responsibility fees and court costs, and did not fully explain minimum and maximum sentences; and, defendant failed to raise a defense of selective prosecution and gender bias because the victim was not charged for entering his home. The allegations of fraudulent misrepresenta tion, fraudulent concealment of facts, obtaining money by false p retenses, and perjury, all rel ated to defendant’s alleged errors or omissions while representing plai ntiff during the criminal pros ecution.

On January 10, 2015, plaintiff filed a motion to stay proceedi ngs pending the outcome of his appeal in the criminal case. 1 On February 13, 2015, defendant filed a motion for summary disposition on the basis that he could not be held liable for t he honest exercise of professional judgment and that the doctrines of judicial estoppel and collat eral estoppel barred plaintiff’s claims of legal malpractice. Defendant also responded to plain tiff’s motion for stay arguing that it should be denied for the same reasons that defendant should be granted summary disposition.

1 Plaintiff filed a delayed application for leave to appeal the order denying relief from judgment in the criminal case on March 11, 2015. This Court denied the application “for failure to meet the burden of establishing entit lement to relief under MCR 6.50 8(D).” People v Bottesi
, unpublished order of the Court of Appeals, entered June 22, 201 5 (Docket No. 326369).-4- The trial court 2 heard the motions on April 17, 2015. Plaintiff appeared from prison via an audio-video connection but presented no oral argument.

The trial court issued an opinion on April 17, 2015, deciding the motions. The trial court reviewed the pleadings, the part ies’ briefs, the record in the criminal case, and the record concerning the motion for relief from judgment. Plaintiff had also submitted his own affidavit supporting his complaint. The trial court found that although plaintiff attached d iffering labels to his claims, all the claims concerned allegations that various a ctions or inactions of defendant while representing plaintiff during the criminal case amounted to malpractice. The trial court determined that judicial estoppe l would preclude plaintiff from asserting his innocence in this case for purposes of proceeding on a legal malpractice claim wh en he had acknowledged guilt through his no contest plea and accepted responsibility at sent encing in the criminal case. With respect to collateral estoppel, the trial court found that all plaintiff’s allegations concerned the adequacy defendant’s representation of plaintiff in the crimina l case and had previously been determined by the circuit court in denying plaintiff’s motion f or relief from judgment. The trial court therefore granted defendant’s motion for summary disposit ion.

On April 20, 2015, the court entered its order denying plainti ff’s motion for stay and plaintiff’s motion for summary disposition and granting defenda nt’s motion for summary disposition “pursuant to MCR 2.116(C)(8) and (C)(10) on the the ories of collateral and judicial estoppel.” The trial court denie d plaintiff’s motion for recon sideration by order entered May 21, 2015. Plaintiff now appeals by right.

II. STANDARD OF REVIEW

The trial court granted defendant’s motion for summary disposi tion “pursuant to MCR 2.116(C)(8) and (C)(10)” but otherwise did not state under whic h subrule it granted the motion. A motion under MCR 2.116(C)(8) tests the legal sufficiency of t he complaint; when deciding the motion a court may consider only the pleadings. Maiden v Rozwood , 461 Mich 109, 119-120; 597 NW2d 817 (1999); MCR 2.116(G)(5). Because the trial court granted defendant’s motion on the basis of having reviewed documentary material outside th e pleadings, we review the trial court’s decision as being grounded on MCR 2.116(C)(10). See Cuddington v United Health Servs
, Inc , 298 Mich App 264, 270; 826 NW2d 519 (2012).

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim; the trial court’s decision regarding the motion is reviewed de novo on appeal. Karbel v Comerica Bank , 247 Mich App 90, 95-96; 635 NW2d 69 (2001). The moving party has the burden of identifying and supporti ng with evidence the issues f or which there is no genuine issue of material fact, and which entitle it to judgment as a matter of law. MCR 2.116(C)(10), (G)(4); Barnard Mfg Co, Inc v Gates Performance Engineering, Inc , 285 Mich App 362, 369; 775 NW2d 618 (2009). The moving party may meet its burden either b y submitting affirmative evidence that negates an essential element of the nonmoving party’s claim or demonstrating that

2 Both circuit court judges of Dickinson Circuit Court recused t hemselves from presiding over plaintiff’s civil action, which w as assigned to Marquette Circu it Court Judge Jennifer Mazzuchi.-5- the nonmoving party’s evidence is insufficient to establish an essential element of that party’s claim. Quinto v Cross & Peters Co , 451 Mich 358, 361-362; 547 NW2d 314 (1996). If the moving party adequately supports its motion, “[t]he burden thenshifts to the opposing party to establish that a genuine issue of disputed fact exists.” Id . at 362. The nonmoving party must then present specific evidence, the content of which would be a dmissible at trial, showing that there is a genuine issue of dis puted material fact. MCR 2.116( G)(4)-(6); Maiden , 461 Mich at 121, 123 n 5; Barnard Mfg Co , 285 Mich App at 373. When deciding the motion, a trial court must consider the pleadings, a ffidavits, depositions, admission s and other documentary evidence submitted in the light most favorable to the nonmoving party. Quinto , 451 Mich at 362. Where the documentary evidence fails to establish a material issue of disputed fact and the moving party is entitled to judgment as a ma tter of law, summary dispositionis appropriate. Id

. The application of the doctrine of collateral estoppel is a qu estion of law reviewed de

novo. Barrow v Pritchard , 235 Mich App 478, 480; 597 NW2d 853 (1999). Any findings of fact regarding application of the doctrine are reviewed for cle ar error. MCR 2.613(C); Am Fed of State, Co & Muni Employees v Bank One , 267 Mich App 281, 293; 705 NW2d 355 (2005).

“Judicial estoppel is a n equitable doctrine.” Szyszlo v Akowitz , 296 Mich App 40, 46; 818 NW2d 424 (2012). On appeal, the trial court’s findings of fact underlying its decision are reviewed for clear error, and the court’s application of the do ctrine is reviewed de novo. Id . A finding is clearly erroneous when the reviewing court is left w ith the definite and firm c9nviction that a mistake has been made. Webb v Smith (After Remand) , 204 Mich App 564, 568; 516 NW2d 124 (1994).

III. ANALYSIS

A. COLLATERAL ESTOPPEL

We conclude that the trial court properly granted defendant summary disposition on the basis of collateral estoppel because all plaintiff’s claims in the present case are based on defendant’s alleged legal malpractice during his representationof plaintiff in the criminal proceeding and the same claims were the basis for plaintiff’s m otion for relief from judgment in the criminal case, which claims were decided against plaintiff after a full and fair opportunity to present them. See Schlumm v Terence J O’Hagan, PC , 173 Mich App 345, 356; 433 NW2d 839 (1988); Knoblauch v Kenyon , 163 Mich App 712, 725; 415 NW2d 286 (1987) (“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 defe nsively assert collateral es toppel as a bar”).

The legal doctrine of collatera l estoppel is a rule of issue p reclusion. Moses v Dep’t of Corrections , 274 Mich App 481, 503; 736 NW2d 269 (2007). It bars litigati ng the same issue in a new action between the same parties or their privies when an earlier proceeding resulted in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding. Id . The doctrine of collateral estoppel requires that “(1) a que stion of fact essential to the judgment was actually litig ated and determined by a vali d and final judgme nt, (2) the same parties had a full and fair opportunity to litigate the issue, and (3) there was mutuality of estoppel.” Estes v Titus , 481 Mich 573, 585; 751 NW2d 493 (2008). The requirement of-6- mutuality means that the party asserting the prior judgment as a bar must have been a party or a privy of a party to the prior case so as to be bound by the pri or judgment. Monat v State Farm Ins Co , 469 Mich 679, 684-685; 677 NW2d 843 (2004). But the Monat Court held that, “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 requir ed.” Id . at 680-681.

The Monat Court reasoned that “allowing th e defensive use of collateral estoppel [when a party has already had a full and fair opportunity to litigate the issue] would enhance the efficient administration of justice and ensure more consistent judicial d ecisions.” Id . at 688. The Court also cited with approval this Court’s decision in Knoblauch , 163 Mich App at 725, that collateral estoppel does not require mutuality where “(1) collateral estop pel was being asserted defensively and (2) the plaintiff had an opportunity to litigate the issue in a prior proceeding.” Monat , 469 Mich at 690-691. The Court was “[p]ersuaded by the reasoning o f Knoblauch . . . that the lack of mutuality of estoppel should not preclude the use of collate ral estoppel when it is asserted defensively to prevent a party from relitigating an issue that such party has already had a full and fair opportunity to litigate in a prior suit.” Id . at 691.

In this case, the issue of whether defendant provided ineffect ive assistance of counsel during the prior criminal case was a question of fact essential to the denial of plaintiff’s motion for relief from judgment that was actually litigated and determ ined adversely to plaintiff by a valid and final judgment. Plaintiff presents a specious argume nt that his claims of legal negligence in the present case, wrapped in words of other commo n-law torts such as fraud, are not the same as his claims of i neffective assistance of counsel in the criminal case. When applying legal doctrines, a court must look beyond mere procedu ral labels and review a complaint as a whole to determine its true nature. See Tenneco Inc v Amerisure Mut Ins Co , 281 Mich App 429, 457; 761 NW2d 846 (2008) (reading the complaint a s a whole to determine its true nature for purposes of applying the correct statute of lim itations); Manning v Amerman , 229 Mich App 608, 613; 582 NW2d 539 (1998) (determining jurisdictio n by looking beyond a plaintiff’s choice of labels to determine the true nature of th e plaintiff’s claim). In the present case, the trial court did not clearly err by finding that the a llegations on plaintiff’s complaint by whatever label attached, concerned allegations of negligent act s and omissions regarding defendant’s representation of the plaintiff in the prior crimin al case. Indeed, plaintiff’s claimed damages flow from his conviction and sentence in the criminal c ase. 3 Consequently, the trial

3 Although plaintiff asserts damages from losing an opportunity to bring a civil rights action, apparently against the police, it is patent from his pleadings that defendant was only appointed to represent plaintiff in the cri minal prosecution, not to advise or represent plaintiff in a possible civil action against third parties. Thus, while defendant owed plaintiff a duty to “exercise reasonable skill, care, discretion and judgment” in representin g plaintiff in the criminal proceeding, an attorney-client relationship is not alleged withrespect to any other matter. See Simko v Blake , 448 Mich 648, 655; 532 NW2d 842 (1995); Donigan v Finn , 95 Mich App 28, 31; 290 NW2d 80 (1980). To the extent plaintiff’s complaint as serts a legal malpractice claim beyond the scope of defendant’s representation of plaintiff in the criminal case, summary disposition is proper under MCR 2.116(C)(8) because plaintiff d id not allege an attorney-client relationship with plaintiff regard ing other potential legal act ions. Simko , 448 Mich at 654-655.-7- court did not err by finding that the claims of legal malpracti ce that plaintiff asserts in this case were in fact litigated in the cr iminal case, were necessary to the outcome, and were determined adversely to plaintiff by a valid final judgment.

Plaintiff was clearly a party to the prior criminal proceeding and had a full and fair opportunity to litigate the issue of defendant’s alleged neglig ence in representing plaintiff in the criminal case. The Monat Court noted that there is no precise formula for determining w hether a party has had a full and fair opportunity to litigate an issue, which often will “‘rest on the trial courts’ sense of justice and equity.’” Monat , 469 Mich at 683 n 2, quoting Blonder-Tongue Laboratories, Inc v Univ of Illinois Foundation , 402 US 313, 333-334; 91 SC 1434; 28 L Ed 2d 788 (1971). In this case, the fact that plaintiff had the oppo rtunity to appeal the denial of his motion for relief from judgment militates in favor of finding that he had full and fair opportunity to litigate the issue of defendant’s alleged ineffective assist ance/malpractice in the criminal case. See Monat , 469 Mich at 685 (“the ‘full and fair opportunity to litigate’ normally encompasses the opportunity to both litigate and appeal”). Moreover, while there was no evidentiary hearing, plaintiff was represented by c ounsel in his motion for relief f rom judgment; the entire record in the criminal case was available to support his claim, and he co uld submit “any affidavit[s], document[s], or evidence to support the relief requested.” MCR 6.502(E). These facts indicate that plaintiff had full and fair opportunity to litigate the is sue of whether defendant provided ineffective assistance or committed malpractice in plaintiff’s criminal case.

Plaintiff argues that he did not have a full and fair opportun ity to litigate the issue of defendant’s alleged malpractice in the criminal case because he faced a higher burden of proof in the criminal case where counsel is presumed to have rendered ef fective assistance. Plaintiff cites in support of this argument a dissenting statement of Justice L EVIN to an order denying reconsideration of an order de nying leave to appeal. See Kerkman v Varnum, Riddering, Schmidt & Howlet , 444 Mich 889; 519 NW2d 862 (1994). An order of our Supreme C ourt may be binding precedent when it contains a concise statement of fa cts and the reasons for the Court’s decision. Const 1963, art 6, § 6; People v Crall , 444 Mich 463, 464 n 8; 510 NW2d 182 (1993). But where a particular reason for a decision lacks the agreemen t of a majority of justices the decision is not binding precedent. See Negri v Slotkin , 397 Mich 105, 109; 244 NW2d 98 (1976). Clearly, Justice Levin’s lone dissenting statement in an order is not binding precedent. Moreover, this Court has held that while “the requirements to e stablish ineffective assistance of counsel and legal malpractice may contain language disparity, w e believe the standards are sufficiently similar in substance to support the application of the defense of collateral estoppel.” Barrow v Pritchard , 235 Mich App 478, 484-485; 597 NW 2d 853 (1999). The holding of Barrow is binding precedent, MCR 7.215(C)(2), and has been cited with approval by our Supreme Court in People v Trakhtenberg , 493 Mich 38, 48; 826 NW2d 136 (2012).

The Court in Trakhtenberg held that a civil judgment that the performance of a criminal defense attorney did not amount to malpractice could not be use d to collaterally estop the convicted criminal defendant from asserting a claim of ineffect ive assistance of counsel in the underlying criminal case. Id . at 42, 50-51. The Court reasoned that the defendant did not have a full and fair opportunity to litigate his claim of malpractice/ ineffective assistance in the civil

case. Id . Specifically, the Court determined that the defendant did no t have as strong an interest in pursuing his claims of alleged errors by counsel in the civi l case motivated only by monetary gain, “whereas in his criminal case he seeks protection of a co nstitutional right and his liberty.”-8- Id . at 51. Thus, the defendant did not have “full and fair opportunity to litigate his ineffectiveassistance-of-counsel claim” in the prior civil proceeding “bec ause defendant has a different and most likely stronger incentive to litigate counsel’s errors in the criminal proceeding . . . .” Id

. By analogy, plaintiff in this case did have a full and fair opp ortunity to litigate his allegation of defendant’s professional errors i n the criminal case where his liberty was at stake.

The final element of collateral estoppel is mutuality. But as noted already, “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 requir ed.” Monat , 469 Mich at 680-681. And, as previously discussed, the Monat Court found persuasive the reasoning of this Court in cases factually similar to the instant case holding that where effective assistance of counsel was fully and fairly litigated, and necessary to a final judgment i n a criminal case, the criminal case judgment could be used defensively to bar a subsequent legal ma lpractice claim against the defense counsel. Id . at 690-691, citing Knoblauch , 163 Mich App at 725; Alterman v Provizer
, 195 Mich App 422, 424-425; 491 NW2d 868 (1992), and Schlumm , 173 Mich App at 357. Consequently, “mutuality of est oppel is not necessary before a defendant in a legal malpractice action can use the defense of collateral estoppel.” Barrow , 235 Mich App at 485.

Whether defendant provided ine ffective assistance of counsel ( or committed errors amounting to legal malpractice) was a necessary factual issue f ully and fairly litigated by plaintiff in his motion for relief from judgment. The resultin g order denying the motion became a final judgment when this Court denied plaintiff’s application for leave to appeal. Thus, because a final judgment in the criminal case determined as an essential fact that defendant did not provide ineffective assistance of counsel to plaintiff in the criminal proceeding and because plaintiff had a full and fair opportunity to litigate his claim in the criminal case, defendant may assert the prior judgment as a bar to plaintiff’s claims of mal practice in this case. Schlumm , 173 Mich App at 356 (when the judicial system makes a full and fair determination that a plaintiff received effective assistance of c ounsel in a criminal proceedi ng, the plaintiff is collaterally estopped from again raising the same issue in a malpractice pro ceeding against the plaintiff’s defense counsel); Knoblauch , 163 Mich App at 725. Consequently, the trial court did not e rr by granting defendant summary disposition on the basis of collater al estoppel. Id .; Barrow , 235 Mich App at 484-485; Schlumm , 173 Mich App at 356.

B. JUDICIAL ESTOPPEL

The doctrine of judicial estoppel also supports the trial cour t’s ruling granting defendant summary disposition because plaintiff is estopped to assert, co ntrary to his testimony at the plea proceeding, that his no contest plea was somehow coerced by def endant and not his free, voluntary, and understanding choice. People v White , 307 Mich App 425, 431; 862 NW2d 1 (2014); Schlumm , 173 Mich App at 360. By voluntarily and unconditionally plea ding no contest to certain offenses pursuant to the plea bargain, plaintiff has waived all claims that the state would be unable to prove him guilty and similarly waived all re lated claims of ineffective assistance of counsel. New , 427 Mich at 493; Vonins , 203 Mich App at 175-176. Consequently, plaintiff cannot show that the damages he alleges based on his incarceration were proximately caused by defendant’s alleged legal malpractice. See Schlumm , 173 Mich App at 360-361. Therefore, the trial court prope rly granted defendant summary d isposition. Id

.-9- Our Supreme Court has describe d the doctrine of judicial estop pel as a “doctrine against the assertion of inconsistent pos itions,” which is applied “by the courts in impeding those litigants who would otherwise play ‘fast and loose’ with the le gal system.” Paschke v Retool Industries , 445 Mich 502, 509; 519 NW2d 441 (1994). Under the doctrine o f judicial estoppel, “a party who has successfully and unequivocally asserted a posi tion in a prior proceeding is estopped from asserting an incons istent position in a subsequen t proceeding.” Id . (Citation omitted). This “prior success” model requires more than “the m ere assertion of inconsistent positions” but instead requires “some indication that the court in the earlier proceeding accepted that party's position as true.” Id . at 510. For the doctrine of judicial estoppel to apply, a pa rty’s claims in the two cases “mu st be wholly inconsistent.” Id .; Szyszlo , 296 Mich App at 51.

In this case, defendant tendered a no contest plea to a 15-year felony, a 10-year felony, and 93-day misdemeanor. In return for his plea, plaintiff rece ived the benefit of the prosecutor dismissing four other felony charges with possible maximum pena lties, respectively, of life, 20 years, 4 years, and 2 years in prison. Plaintiff also received physiological benefits from his no contest plea that he explained in a letter before sentencing, n oting that he accepted the plea offer “to avoid putting [the victim] in a position of having to reliv e that hellish night in open court.” Further, plaintiff stated he wanted to “focus on how I can repa ir the damage I have done” and apparently, part of that healing process was asking the trial c ourt to “follow the guidelines and give me what you think I deserv e.” So, clearly, plaintiff bene fited from his no contest plea and to receive those benefits pla intiff “successfully and unequivoc ally” testified under oath that it was his knowing, free and voluntary choice to do so. Contrary to plaintiff’s claims of coercion asserted in the instant lawsuit , plaintiff testified at the ple a proceeding:

Court

. Has anyone promised you anything, Mr. Bottesi, in addition to the terms of this agreement to ge t you to plead no con test here tod ay?

Bottesi

. No.

Court

. Has anyone told you I would be easier with you if you pled no contest rather than going thr ough a trial in this matter?

Bottesi

. No, your Honor.

Court . Has anyone forced or coerced you in any way to get you to pl ead no contest?

Bottesi . No.

* * *

Court

. And is that what you wish to do?

Bottesi

. I do.

Court

. Are you entering into this no contest plea freely, voluntaril y, and of your own free choice, sir?-10- Bottesi . Yes.

In People v Serr , 73 Mich App 19; 250 NW2d 535 (1976), the defendant, after sen tence, moved to set aside his guilty pl ea that he had e ntered pursuant to a plea bargain. As in the present case, the plea was entered in compliance with the Court Rules with the defendant acknowledging that he understood th e plea agreement and that no other promises had been made to him. Id . at 22-23. The defendant claimed in his motion that there was an unstated promise that he be sentenced to county jail time and not sentenced to p rison. Id . at 23-24. This Court noted that when a plea is tendered pursuant to a plea bargain, it must be “stated on the record, reviewed with the defendant to assure voluntariness and underst anding, and confirmed by the defendant, his attorney and the prosecutor.” Id . at 27. The Court opined:

[W]here a defendant has been found guilty by reason of his own statements as to all of the elements required to be inquired into by [the Court Rules], and his attorney has also confirmed the agreement and the defendant has been sentenced, neither he nor his attorney will be permitted t hereafter to offer their own testimony to deny the truth of their statements made to induce the court to act. To do so would be to permit the use of its own process es to create what amounts to a fraud upon the court. This is based on public pol icy designed to protect the judicial process. [ Id . at 28.]

The Court noted that “estoppel” is rarely used in criminal case s, but it is similar to “waiver,” which “has long been recognized as valid even in the criminal f ield.” Id . at 29. The Court limited its holding to precluding the defendant or his attorneyfrom contradicting or denying statements previously made by the defendant or his attorney dur ing a plea process in open court after the trial court had accepte d the plea on the basis that i t was “understandingly and voluntarily made and is accurate and where, as a result of the acceptance of the plea, the defendant has been sentenced.” Id . at 30-31.

In White , the defendant tendered a guilty plea according to a bargain that including delaying sentence during which the defendant would make restitution payments and at the end of the delay be sentenced at the lo w end of the sentencing guideli nes. The defendant failed to pay restitution and the trial court declined to abide by the senten ce agreement 4 because the defendant had not fulfilled his part of the plea bargain. White , 307 Mich App at 428. The trial court denied the defendant’s motion to withdraw his plea on the basis of ine ffective assistance of counsel and that it was involuntary without conducting an evidentiary heari ng. Id . Similar to this case, the defendant had submitted his own affidavit asserting that his “c ounsel pressured defendant into entering a plea, that counsel was unprepared, and that counsel did not advise defendant of the charges against him or any possible defenses.” Id . at 429. And, like this case, the defendant testified at the plea proceedi ng “that it was his own choice to plead guilty and that there were no promises, threats, or inducements compelling him to tender the plea.” Id . The trial court and this Court relied on Serr , 73 Mich App at 25-28, to reject the defendant’s affidavit and testimony that were contrary to the de fendant’s own testimony during a pl ea hearing. White , 307 Mich App

4 See People v Cobbs , 443 Mich 276; 505 NW2d 208 (1993).-11- at 430-431. Further, the defendant could not use a claim of in effective assistance of counsel to contradict the record, which established that the defendant had knowingly and voluntarily accepted the plea agreement. Id . at 432.

In the present case, plaintiff alleges that he was somehow coe rced into tendering his no contest plea, but he testified under oath to the contrary at th e plea hearing in the criminal case. Further, to the extent there were any defects in the plea takin g proceedings, such claims were rejected by the circuit court in the criminal case when plainti ff’s motion for relief from judgment was denied. Collateral estoppel, for the reasons discussed in Part A, would preclude litigating again the issue of whether plaintiff’s plea was somehow defecti ve. The transcript of the plea proceeding shows that plaintiff’s no contest plea was his knowi ng and voluntary choice, and the trial court in the criminal case found a sufficient reason and factual basis to accept it. Plaintiff is now estopped to testify to the contrary. White , 307 Mich App at 431 (a defendant may not present his own affidavit, or te stify to contradict his own tes timony during a plea hearing); Serr
, 73 Mich App at 28-31. Consequently, plaintiff cannot establish that the damages he claims as result of his incarcer ation were proximately caused by defendan t’s legal malpractice.

To prove his claim of legal malpractice, plaintiff must establ ish: “(1) the existence of an attorney-client relationship; (2) negligence in the legal repre sentation of the plaintiff; (3) that the negligence was a proximate cause of an injury; and (4) the fact and extent of the injury alleged.” Coleman v Gurwin , 443 Mich 59, 63; 503 NW2d 435 (199 3). The element of proxima te cause includes both cause-in-fact, i.e., but for the attorney’s negli gence the plaintiff would not have sustained damages, and proximate or legal cause, i.e., “whether the defendant should be legally responsible for the plaintiff’s injury.” Charles Reinhart Co v Winiemko , 444 Mich 579, 586 n 13; 513 NW2d 773 (1994). The element of causation requires tha t a plaintiff “must present substantial evidence from which a jury may conclude that more l ikely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have oc curred.” Skinner v Square D Co
, 445 Mich 153, 164-165; 516 NW2d 475 (1994). Like other torts, a legal malpractice plaintiff may not recover contingent or speculative damages. Law Offices of Lawrence J Stockler
, PC v Rose , 174 Mich App 14, 33; 436 NW2d 70 (1989).

Except for claiming loss of an opportunity to bring a civil su it against the police not within the scope of the attorney-client relationship, 5 all plaintiff’s alleged damages flow from plaintiff’s claim that but for d efendant’s professional errors, the prosecution would not have been able to prove plaintiff guilty of the offenses to which he pled no contest. While plaintiff alleges that he was somehow coerced into tendering his no contest plea, his testimony under oath to the contrary at the plea hearing precludes such a claim. White , 307 Mich App at 431; Serr , 73 Mich App at 28-31. Further, to the extent there were any defects inthe plea taking proceedings, such claims were rejected by the criminal trial court’s denial of pl aintiff’s motion for relief from judgment. Collateral estoppel, for the reasons discussed in Pa rt A, precludes litigating again the issue of whether plaintiff’s plea was defective. The transcrip t of the plea proceeding shows that plaintiff’s no contest plea was his knowing and voluntary choic e, and the trial court in the

5 See note 6, supra

.-12- criminal case found a sufficient reason and factual basis to ac cept it. Plaintiff is now estopped to testify to the contrary.

In criminal prosecutions, “the general rule [is] that an uncon ditional plea, which is voluntary, knowing, and intelligent, waives claims that occurre d before the entry of the guilty plea.” Crall , 444 Mich at 464-465. Thus, a claim that relates solely to th e capacity of the state to prove the defendant’s factual guilt is subsumed by the defen dant’s guilty plea. New , 427 Mich at 491. A no contest plea is the functional equivalent of a gu ilty plea and has the same effect of waiving issues pertaining to the capacity of the state to prove the defendant’s guilt. Id . at 493. Where the alleged deficient action of defense counsel relates t o the state’s capacity to prove factual guilt, claims of ineff ective assistance of counsel relating to that action are also waived. Vonins , 203 Mich App at 176. As noted, plaintiff claims that but for defendant’s professional negligence, the state would not have been able to convict and i ncarcerate him. But plaintiff, by his voluntary, unconditional no contest plea has waived any cla im that the state would not be able to prove him guilty and has also waived all related claims of ineffective assistance of counsel. New , 427 Mich at 493; Vonins , 203 Mich App at 175-176. Thus, plaintiff’s claimed damages based on his incarceration were not proximately caused by defendant’s alleged negligence but by plaintiff’s voluntary, unconditional no conte st plea. See Schlumm , 173 Mich App at 360-361. Consequently, th e trial court properly granted summary disposition to defendant because plaintiff could not prove that his alleged da mages were proximately caused by defendant’s malpractice. Id .; Quinto , 451 Mich at 361-362 (summary disposition is properly granted to a party where the evi dence negates an essential elem ent of the other party’s claim).

We affirm. Defendant, as the prevailing may tax his costs pur suant to MCR 7.219.

/s/ Jane E. Markey /s/ William B. Murphy /s/ Amy Ronayne Krause