Link: http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20070508_C265002_51_265002.OPN.PDF
Underlying case or transaction: Medical malpractice litigation
Key Concepts: (1) respondeat superior; (2) duplicative claims; (3) causation
On January 11, 2000, Fleischmann, an attorney employed by defendant Brookover, Fleischmann & Carr ("Brookover"), agreed to represent plaintiff is a medical malpractice action against Dr. R.S. Nair. Although Fleischmann sent Dr. Nair a notice of a claim pursuant to MCL 600.2912(b), Fleischmann never filed a malpractice complaint in court.
From January 2000 to September 2003, Fleischmann led plaintiff to believe that a lawsuit was pending in circuit court. In March 2002, Fleischmann joined defendant Secrest Wardle. While employed at Secrest Wardle, Fleischmann continued to mislead plaintiff. In October 2003, plaintiff discovered that no malpractice suit had ever been filed on his behalf. Plaintiff subsequently filed an action against Fleischmann, Brookover and Secrest Wardle for malpractice, breach of fiduciary duty, fraud, and intentional and negligent infliction of emotional distress. The claims against Fleischmann were dismissed because any debts that he may have owed to the plaintiff were discharged during Fleischmann's bankruptcy.
The lower court also dismissed plaintiff's claims against Brookover and Secrest Wardle. On appeal, the plaintiff argued that the lower court erred in dismissing the claims against Secrest Wardle. The court of appeals disagreed finding that Secrest Wardle could not be liable for Fleischmann's actions under the doctrine of respondeat superior.
Under that doctrine "an employer may be vicariously liable for the acts of an employee committed within the scope of his employment." Helsel v Morcom, 219 Mich App 14, 21 (1996). Conversely, an employer cannot be held liable for an act committed by the employee that is beyond the scope of his or her employment. Borsuk v Wheeler, 133 Mich App 403, 410 (1984). "Intentional and reckless torts are generally held to be beyond the scope of employment." Id. An employer may be held liable under the doctrine of respondeat superior where the employee was promoting or furthering the employer's business in some way, or if the employee committed a tort while involved in a service of benefit to the employer. Kester v Mattis, Inc, 44 Mich App 22, 24 (1972). But no vicarious liability exists if the employee steps aside from his employment in order to accomplish some purpose of his own or acts outside the scope of the employee's authority. Bryant v Brannen, 180 Mich App 87, 98-99 (1989).
Here, Secrest Wardle was not vicariously liable for Fleischmann's acts because (1) Fleischmann entered into an attorney-client relationship with plaintiff while he was employed by Brookover; (2) there was no evidence that Secrest Wardle was a party to the contingency fee agreement between plaintiff and Fleischmann; (3) Fleischmann never notified anyone at Secrest Wardle that he was representing plaintiff in a lawsuit; and (4) Secrest Wardle never gave Fleischmann authority to represent Fleischmann.
Next, plaintiff argued that the trial court erred in holding that his causes of action for intentional torts in this case were merely duplicative of his legal malpractice claims. The court of appeals agreed in part, but held that the error was harmless.
Plaintiff claimed that his claims for breach of fiduciary duty, fraud and intentional infliction of emotional distress should not fail because they merely reiterated his legal malpractice claim. Defendants argued otherwise relying on Aldred v O'Hara-Bruce, 184 Mich App 488 (1990) and Barnard v Dilly, 134 Mich App 375 (1984). The court of appeals explained that those case do not stand for the proposition that claims arising out of an attorney-client relationship can only sound in negligence. Rather, they merely provide that the applicable period of limitations depends on the theory actually pleaded where the same facts support either of two different causes of action.
Generally, when characterizing potentially duplicative claims in a legal malpractice context, a court should read a plaintiff's complaint as a whole and determine the type of interest allegedly harmed and how this is claimed to have occurred. Aldred at 490. When a plaintiff alleges negligent legal representation, the claim is one of legal malpractice. Id. But, when the interest involved in a claim for damages differs from the interest involved in a legal malpractice case, they may stand as separate claims. See e.g., Brownell v Garber, 199 Mich App 519, 532 (1993).
For example, the plaintiff claimed that Fleischmann breached his fiduciary duty to him. A breach of fiduciary duty claim differs from a legal malpractice claim because '[t]he conduct required to constitute a breach of fiduciary duty requires a more culpable state of mind than the negligence required for malpractice." Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 47 (2005). Here, plaintiff had alleged that Fleischmann had "intentionally misled . . . [plaintiff] into believing that he had a case pending against Dr. Nair." The allegation that Fleischmann misled him into believing he had a pending case "appears to satisfy the requirement of a culpable state of mind that is sufficient to support a cause of action for breach of fiduciary duty." Id. Under the facts in this case, the court held that plaintiff's claim for breach of fiduciary duty was not duplicative of his legal malpractice claim.
The court of appeals also held that the plaintiff stated a claim for intentional fraud and that "the interest involved in a claim for damages arising out of fraudulent misrepresentation differs from the interest involved in a case alleging that a professional breached the applicable standard of care." Brownell, supra at 532.
Similarly, the court of appeals held that plaintiff's claim for intentional infliction of emotional distress was not duplicative of his malpractice claim because the interest protected -- relief from a defendant's outrageous conduct -- appears to differ from the interest involved in a legal malpractice case. Therefore, the trial court erred in granting Brookover's motion on this ground.
Although the trial court had erred in holding that plaintiff's breach of fiduciary duty, fraud, and intentional infliction of emotional distress claims were duplicative of his malpractice claim, summary disposition was still proper because, as a matter of law, Brookover was not vicariously liable for Fleischmann's intentional torts.
As explained above, an employer is generally not liable for the intentional torts of its employees. Moreover, there was no evidence that Brookover benefited in any way from Fleischmann's actions.
Finally, the malpractice claims were appropriately dismissed because the plaintiff did not allege a valid underlying medical malpractice claim. Where the alleged malpractice results from the failure to diligently pursue or timely file a client's claim, a plaintiff seeking to establish proximate cause and injury in fact, must show that but for the attorney's alleged malpractice he would have been successful in the underlying suit. Estate of Mitchell v Doughtery, 249 Mich App 667, 676 (2002).
Monday, August 6, 2007
Thursday, August 2, 2007
Kandalaft v John M. Peters, PLC, unpublished per curiam opinion of the court of appeals, issued April 17, 2007 (Docket No. 267497)
Link: http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20070417_C267471_85_267471.OPN.PDF
Underlying Case or Transaction: Appellate litigation
Key Concepts: (1) causation; (2) attorney-judgment rule; (3) failure to present expert testimony
Plaintiff appealed the grant of summary disposition in favor of defendant Peters on plaintiff's malpractice claims. Those claims arose from a matter involving a property dispute between Plaintiff and Cvetko Zdravovski pertaining to an alleged encroachment of Plaintiff's building onto a property owned by Zdravovski (the "underlying litigation"). Peters filed a motion for summary disposition on plaintiff's behalf in the underlying litigation, which was granted. On appeal, the trial court's ruling was reversed.
In the subsequent malpractice action, Plaintiff claimed Peters committed malpractice by (1) failing to submit important documentary evidence to both the trial court and the court of appeals; (2) failing to present arguments that were successful in the trial court to the court of appeals; and (3) failing to ask the court of appeals for reconsideration.
The trial court granted summary disposition on these claims and the court of appeals affirmed. First, the court of appeals explained that a plaintiff in a legal malpractice action asserting negligence in an appeal must prove two aspects of causation in fact: "whether the attorney's negligence caused the loss or unfavorable result of the appeal, and whether the loss or unfavorable result of the appeal in turn caused a loss or unfavorable result in the underlying litigation." Charles Reinhart Co v Winiemko, 444 Mich 579, 588; 513 NW2d 773 (1994). The question of whether an underlying appeal would have been successful is reserved to the court "because whether an appeal would have been successful intrinsically involves issues of law with the exclusive province of the judiciary." Id. at 608.
Here, since there was no "magic bullet" argument or document that Peters could have presented on Plaintiff's behalf that would have changed the outcome on the appeal in the underlying litigation, it was logical to infer that Plaintiff's alleged injury -- the reversal of the grant of summary disposition -- was not based on Peters' negligence or malpractice, but rather on the legal insufficiency of Plaintiff's claims in the underlying litigation.
Next, the court of appeals found that Peters had presented all of the arguments to the court of appeals that had been presented to the trial court. Plaintiff failed to comprehend that all of the arguments, as set forth in the lower court record and the brief on appeal, were all before the court of appeals for consideration and review pursuant to MCR 7.210(A)(1). Moreover, an appellate attorney's decision pertaining to which issues to raise is a matter of judgment and generally does not comprise grounds for claiming malpractice if the attorney acts in good faith and exercises reasonable care. Simko v Blake, 448 Mich 648, 658; 532 NW2d 842 (1995). An appellate attorney is not required to raise every claim of arguable legal merit in order to be an effective counsel. People v Reed, 449 Mich 375, 382; 535 NW2d 496 (1995).
Similarly, Peters' decision to appeal the court of appeal's decision to the supreme court rather than seek reconsideration fell squarely within the attorney-judgment rule. That rule recognizes that decisions involving trial tactics or litigation strategy may avoid the issue of legal liability. An attorney is responsible for fashioning a strategy or representation that is consistent with the law, but does not have to insure the most favorable possible outcome.
Finally, Plaintiff contested the trial court's dismissal of his claims based on his failure to present expert testimony that malpractice was committed and the interplay of the attorney-judgment rule. However, a plaintiff's claim that a lawyer breached the standard of care must generally be supported by expert testimony. Law Offices of Lawrence J. Stockler, PC v Rose, 174 Mich App 14, 48; 436 NW2d 70 (1989). As such, the trial court did not err when it concluded that expert testimony would be required to establish a prima facie case of legal malpractice under the factual circumstances presented.
Underlying Case or Transaction: Appellate litigation
Key Concepts: (1) causation; (2) attorney-judgment rule; (3) failure to present expert testimony
Plaintiff appealed the grant of summary disposition in favor of defendant Peters on plaintiff's malpractice claims. Those claims arose from a matter involving a property dispute between Plaintiff and Cvetko Zdravovski pertaining to an alleged encroachment of Plaintiff's building onto a property owned by Zdravovski (the "underlying litigation"). Peters filed a motion for summary disposition on plaintiff's behalf in the underlying litigation, which was granted. On appeal, the trial court's ruling was reversed.
In the subsequent malpractice action, Plaintiff claimed Peters committed malpractice by (1) failing to submit important documentary evidence to both the trial court and the court of appeals; (2) failing to present arguments that were successful in the trial court to the court of appeals; and (3) failing to ask the court of appeals for reconsideration.
The trial court granted summary disposition on these claims and the court of appeals affirmed. First, the court of appeals explained that a plaintiff in a legal malpractice action asserting negligence in an appeal must prove two aspects of causation in fact: "whether the attorney's negligence caused the loss or unfavorable result of the appeal, and whether the loss or unfavorable result of the appeal in turn caused a loss or unfavorable result in the underlying litigation." Charles Reinhart Co v Winiemko, 444 Mich 579, 588; 513 NW2d 773 (1994). The question of whether an underlying appeal would have been successful is reserved to the court "because whether an appeal would have been successful intrinsically involves issues of law with the exclusive province of the judiciary." Id. at 608.
Here, since there was no "magic bullet" argument or document that Peters could have presented on Plaintiff's behalf that would have changed the outcome on the appeal in the underlying litigation, it was logical to infer that Plaintiff's alleged injury -- the reversal of the grant of summary disposition -- was not based on Peters' negligence or malpractice, but rather on the legal insufficiency of Plaintiff's claims in the underlying litigation.
Next, the court of appeals found that Peters had presented all of the arguments to the court of appeals that had been presented to the trial court. Plaintiff failed to comprehend that all of the arguments, as set forth in the lower court record and the brief on appeal, were all before the court of appeals for consideration and review pursuant to MCR 7.210(A)(1). Moreover, an appellate attorney's decision pertaining to which issues to raise is a matter of judgment and generally does not comprise grounds for claiming malpractice if the attorney acts in good faith and exercises reasonable care. Simko v Blake, 448 Mich 648, 658; 532 NW2d 842 (1995). An appellate attorney is not required to raise every claim of arguable legal merit in order to be an effective counsel. People v Reed, 449 Mich 375, 382; 535 NW2d 496 (1995).
Similarly, Peters' decision to appeal the court of appeal's decision to the supreme court rather than seek reconsideration fell squarely within the attorney-judgment rule. That rule recognizes that decisions involving trial tactics or litigation strategy may avoid the issue of legal liability. An attorney is responsible for fashioning a strategy or representation that is consistent with the law, but does not have to insure the most favorable possible outcome.
Finally, Plaintiff contested the trial court's dismissal of his claims based on his failure to present expert testimony that malpractice was committed and the interplay of the attorney-judgment rule. However, a plaintiff's claim that a lawyer breached the standard of care must generally be supported by expert testimony. Law Offices of Lawrence J. Stockler, PC v Rose, 174 Mich App 14, 48; 436 NW2d 70 (1989). As such, the trial court did not err when it concluded that expert testimony would be required to establish a prima facie case of legal malpractice under the factual circumstances presented.
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