(concurring specially).
This Court entered an order denying a motion to affirm which was made pursuant to the provisions of SDCL 15-26A-87.1. This is commonly referred to as our expedited appeal rule.
The case is now before us on full briefing and is the second legal malpractice decision handed down by this Court in approximately two months.
In Nemec v. Deering, 350 N.W.2d 53 (S.D. 1984), this Court reversed a summary judgment in favor of attorney and against client holding that there were material issues of fact relative to the issue of legal malpractice. Those factual issues were fully detailed in our opinion.
Here, we affirm a summary judgment granted in favor of attorney and against client holding there are no material issues of fact. In specially joining this opinion, I elaborate on my belief that the trial court was correct in summarily dismissing the client’s lawsuit. The gravamen of the client’s complaint is that her attorney violated the attorney-client relationship and his contract for services by entering into an unauthorized option agreement with a third party and delivering a warranty deed without express authorization.
A review of the long history of this litigation reveals that the client ratified the executory contract, of which she complains attorney malpraeticed within and upon, by letters and phone calls. We have previously so held, as the majority opinion points out. Therefore, how can client complain? Client must not only establish negligence but her opportunity for obtaining a favorable judgment. Taylor Oil Co. v. Weisensee, 334 N.W.2d 27 (S.D.1983). Three previous appeals to her disadvantage, and the *467law of the case springing therefrom, ably demonstrate that the facts are not supportive of a separate cause of action in her favor and against the attorney. In this regard, as does the majority opinion, I do not hinge my vote upon collateral estoppel; for, indeed, collateral estoppel is not applicable here. Certainly, the doctrine of res judicata does not apply as it applies only to issues which have actually been litigated. Golden v. Oahe Enterprises, Inc., 90 S.D. 268, 276, 240 N.W.2d 102, 109 (1976). The contract between Staab and Skoglund has been litigated, but the contractual relationship with client and attorney has not, heretofore, been litigated.
Without sacrificing my dissent in Cook v. Rezek, cited in the majority opinion, for collateral estoppel was used as a basis in the Court’s decision in said case though not pleaded, whereas in this case the majority opinion concedes collateral estoppel should not have been used by the trial court, I would anchor the decision on language employed by this Court in Uken v. Sloat, 296 N.W.2d 540, 542 (S.D.1980). We stated: “In reviewing [a] trial court’s order granting summary judgment, we premise our decision on the principle that affirmance of such a judgment is proper if there exists any basis which would support the trial court’s ruling.” Ordinarily, summary judgment should not be employed in negligence actions; this is a negligence action. Also, summary judgment is an extreme remedy and should be awarded only when the truth is clear, and all reasonable doubt touching upon the existence of a genuine issue as to a material fact should be resolved against the movant. Although there might well be some factual dispute between this attorney and client, there does not appear to be a genuine issue as to a material fact. Therefore, the attorney is entitled to judgment as a matter of law and under the precedent of Uken, 296 N.W.2d 540.