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24895 - Lifschultz Fast Freight, Inc. v. Haynesworth, Marion, McKay & Guerard, etc. et al.

Davis Adv. Sh. No. 6
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Lifschultz Fast Freight, Petitioner,

Inc.,

v.

Haynsworth, Marion

McKay & Guérard, a

South Carolina

Partnership, William P.

Simpson, Jr., William M.

Grant, Jr., Julius

McKay, and John B.

McLeod, Jointly and

Severally, Respondents.





ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS

Appeal From Richland County

L. Casey Manning, Circuit Court Judge

Opinion No. 24895

Heard December 16, 1998 - Filed February 8, 1999

AFFIRMED AS MODIFIED IN PART;

VACATED IN PART

D. Dusty Rhoades, of Charleston, for petitioner.

p.7


LIFSCHULTZ FAST FREIGHT, INC. v. HAYNSWORTH, MARION,

MCKAY & GUItRARD, etc., et al.





Donald V. Richardson, III and Charles E. Carpenter,

Jr., both of Richardson, Plowden, Carpenter &

Robinson, of Columbia, for respondents.





PER CURIAM: We granted certiorari to review the Court of Appeals'

decision reported at 324 S.C. 645~ 486 S.E.2d 14 (Ct. App. 1997). We now

affirm in part as modified, and vacate Part III of that opinion which

discusses the foreseeability of damages.





Petitioner sued respondents for legal malpractice, breach of

contract, and breach of fiduciary duty. The circuit court granted respondents

summary judgment, and the Court of Appeals affirmed. Prior to initiating

this state action, petitioner had brought a federal anti-trust suit in which he

was initially represented by respondents.1 Over petitioner's vehement

objections, respondents were permitted to withdraw from representation.

Petitioner never appealed this withdrawal, and ultimately lost the anti-trust

suit at the summary judgment stage.





The crux of this current action is petitioner's contention that the

federal judge erred in permitting respondents to withdraw from the anti-

trust suit. The circuit court and the Court of Appeals held this issue could

not be relitigated in this forum, the Court of Appeals characterizing the

federal judge's ruling as "the law of the case." We agree that relitigation is

barred, but modify the Court of Appeals' decision to reflect that the issue is

precluded not by the law of the case doctrine, which applies only to

subsequent proceedings in the same litigation following an appellate

decision, but by the doctrine of res judicata. Since a federal judgment is

urged as the bar, federal law applies. Crestwood Golf Club, Inc., v. Potter,

328 S.C. 201, 493 S.E.2d 826 (1997). The federal view of res judicata

includes the concept of "issue preclusion," which "bars relitigation of

particular issues actually litigated and decided in the prior suit." Id. The

propriety of respondents' withdrawal was vigorously litigated and actually

decided in the anti-trust suit, and therefore is res judicata. Accordingly, we

affirm this part of the Court of Appeals' opinion as modified.


1 A fuller exposition of the facts is found in the Court of Appeals' opinion.

p.8


LIFSCHULTZ FAST FREIGHT, INC. v. HAYNSWORTH, MARION,

MCKAY & GURARD, etc., et al.





After correctly holding that petitioner's suit was procedurally

barred, the Court of Appeals went on to discuss the foreseeability of damages

in Part III of its opinion. This discussion is not necessary to the decision in

this case, and, therefore, we vacate Part Ill. Accordingly, the decision of the

Court of Appeals in this matter is



AFFIRMED AS MODIFIED IN PART; VACATED IN PART.



p.9