Dawson

A personal injury plaintiff, himself an attorney, was sanctioned for prosecuting a frivolous appeal. He immediately filed a malpractice action against the attorney who had represented him in the appeal, contending an attorney who prosecutes a frivolous appeal thereby commits malpractice per se. The trial court agreed, and entered summary judgment against the appellate practitioner.

The appellate practitioner appeals. He argues the trial court erred in applying res judicata and collateral estoppel principles so as to preclude him from asserting that the appeal was not frivolous and that he did not commit malpractice. We agree with the appellate practitioner, and reverse and remand. When a client is sanctioned for the filing of a frivolous appeal, it does not mean that his or her attorney has committed malpractice as a matter of law and has no right to a trial on the merits.

I

Facts

A. Snow Summit Litigation

Attorney Jeffrey S. Dawson (Dawson) was injured while skiing when he fell and slid into a wooden fence. Dawson filed a personal injury action against Snow Summit, Inc., the operator of the ski area (Dawson v. Snow Summit, Inc. (Super. Ct. San Bernardino County,…