STATE OF MICHIGAN

COURT OF APPEALS



					

					
					

					
JOHN B. SASSAMAN, CAROL SASSAMAN,            UNPUBLISHED
and JOHN B. SAS SAMAN, INC.,                 July 16, 1999

          Plaintiffs/Counter-
          Defendants-Appellants,

v                                            No. 205552
                                             Oakland Circuit Court
LEE ESTES and LAW OFFICES OF LEE             LC No. 96-513181 NM
ESTES, a/k/a ESTES & SCHWEICKERT,

          Defendants/Counter
          Plaintiffs-Appellees.

Before: Gage, P.J., and Smolenski and Zahra, JJ.

PER CURIAM.

     Plaintiffs  appeal  as  of  right from an order  granting  defendants'
motion  for  summary  disposition of plaintiffs'  legal  malpractice  claim
pursuant  to MCR 2.116(C)(10), and awarding defendants $1,864.99  on  their
counterclaim  for  attorney  fees. The trial  court  also  determined  that
amendment  of plaintiffs' complaint would be futile and, therefore,  denied
plaintiffs' motion for reconsideration. We affirm.

     Plaintiffs  filed this action against defendants, attorney  Lee  Estes
(hereafter Estes) and his current and former law firm, seeking damages  for
alleged  legal  malpractice committed by Estes when rendering  services  in
connection  with  plaintiffs' purchase of commercial property  in  1986.  A
corporate  entity,  John  B. Sassaman, Inc., was established  to  make  the
purchase,  but  the  two  individual plaintiffs, John  Sassaman  and  Carol
Sassaman, also claimed damages in connection with the transaction.

     Plaintiffs' complaint alleged that Estes breached the standard of care
for  an  attorney  representing  land  contract  purchasers  of  commercial
property.  The  complaint,   10, alleged legal malpractice  based  on  the
theory  that  Estes  failed, neglected or refused  to  perform  a  property
history  or  environmental assessment of the property to be purchased.  The
trial  court  granted summary disposition in favor of  defendants  on  this
theory  because  plaintiffs failed to establish that the standard  of  care
required  Estes  to conduct a property history or obtain  an  environmental
assessment. In their first two issues on appeal, plaintiffs challenge  this
decision, asserting that










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their  proposed expert witnesses sufficiently established that the standard
of care applicable in 1986 required Estes to perform a property history and
environmental assessment.

     Initially,  we note that plaintiffs have not provided this Court  with
the  transcript of the hearing on the motion for summary disposition. Thus,
we  could  find that this issue is not properly before the Court. Waterford
Sand  &  Gravel Co v Oakland Disposal, Inc, 194 Mich App 571; 487 NW2d  511
(1992);  Admiral Ins Co v Columbia Casualty Ins Co, 194 Mich App 300,  305;
486  NW2d  351  (1992). However, because we have the benefit of  the  trial
court's  written opinion on the motion and the available record is adequate
for  our review, we have chosen to review plaintiffs' first two issues. Cf.
Admiral Ins Co, supra at 305.

     Our  review  of the trial court's grant of summary disposition  is  de
novo.  Spiek  v  Dept of Transportation, 456 Mich 331, 337;  572  NW2d  201
(1998).  A  motion under MCR 2.116(C)(10) tests the factual support  for  a
claim.  Id. at 337. This Court must consider the proofs filed or  submitted
by  the  parties  to  the trial court, MCR 2.116(G)(5),  in  a  light  most
favorable to the nonmoving party, Quinto v Cross & Peters Co, 451 Mich 358,
362; 547 NW2d 314 (1996), and grant the benefit of all reasonable doubt  to
the  nonmoving party, Bourne v Farmers Ins Exchange, 449 Mich 193, 197; 534
NW2d  491  (1995).  The initial burden of factually supporting  the  motion
rests  with the moving party. The burden then shifts to the opposing  party
to  establish  a genuine issue of material fact. Quinto, supra  at  362.  A
genuine  issue of material fact must be established by admissible evidence.
SSC  Associates Ltd Partnership v General Retirement System of Detroit, 192
Mich App 3 60, 3 64; 480 NW2d 275 (1991).

     The  standard  of  care  element for a  legal  malpractice  action  is
discussed in Eggleston v Boardman, 37 Mich 14, 16 (1877). Coleman v Gurwin,
443  Mich 59, 63 n 5; 503 NW2d 435 (1993). See also Simko v Blake, 448 Mich
648, 655; 532 NW2d 842 (1995). In Eggleston, supra at 16, our Supreme Court
stated:

          Whenever an attorney or solicitor is retained in a cause, it
     becomes his implied duty to use and exercise reasonable skill, care,
     discretion and judgment in the conduct and management thereof.

     Expert  testimony  is  usually required to  establish  the  applicable
standard  of care. Law Offices of Lawrence J Stockler, PC v Rose, 174  Mich
App  14,  48;  436 NW2d 70 (1989). In general, ''[i]f the court  determines
that  ... specialized knowledge will assist the trier of fact to understand
the  evidence  or to determine a fact in issue, a witness qualified  as  an
expert by knowledge, skill, experience, training, or education, may testify
thereto  in  the form of an opinion or otherwise." MRE 702. Counsel  should
elicit  testimony  from the expert as to the applicable  standard  and  its
substance.  Birmingham v Vance, 204 Mich App 418, 422; 516 NW2d 95  (1994).
In  order for a witness to be declared an expert, it must be shown that the
witness  had  knowledge  of  the  applicable  standard  of  care.  Bahr   v
Harper-Grace  Hosps,  448  Mich  135, 141; 528  NW2d  170  (1995).  "Expert
testimony  in  a  malpractice case should be  based  on  how  a  reasonable
similarly-situated practitioner would act, not on how the  witness  himself
would  act."  Francisco v Manson, Jackson &Kane, Inc,  145  Mich  App  255,
259-260; 377 NW2d 313 (1985).

                                    -2-
                                     
     On appeal, plaintiffs correctly argue that it is not necessary that an
expert use the phrase standard of care" in his or her opinion. However, the
substance  of  the  opinion must establish the requisite knowledge  of  the
applicable  standard of care. In the case at bar, viewed in  a  light  most
favorable to plaintiffs and resolving all reasonable doubt in their  favor,
plaintiffs did not establish that their expert, David Tripp, was  qualified
to  give  an expert opinion on the applicable standard of care (i.e.,  that
Tripp was familiar with the reasonable skill, care, discretion and judgment
that  an attorney for a purchaser of commercial property would use in  1986
in  the conduct and management thereof). Plaintiffs' other proposed expert,
Wilfred Steiner, Jr., was qualified, but his deposition testimony does  not
establish  factual  support for plaintiffs' position  that  the  applicable
standard  of  care  required  Estes  to  perform  a  property  history  and
environmental  assessment. Viewed in a light most favorable  to  plaintiffs
and  resolving  all  reasonable doubt in their favor, Steiner's  deposition
testimony  established that the standard of care required an  attorney  for
the   purchaser  of  commercial  property  to  inform  the   client   about
environmental laws (e.g., the potential liability risks that  exist  for  a
purchaser  of  property)  and  to  make  recommendations  (e.g.,  that   an
environmental  assessment should be done). The standard  of  care  did  not
require  that  the  attorney take action on environmental  matters  without
consulting  with  the  client. Because Steiner did  not  testify  that  the
standard  of  care required a property history or environmental assessment,
and  because  Tripp  was  not qualified to give  expert  testimony  on  the
applicable  standard of care in this context, we hold that the trial  court
correctly granted summary disposition in favor of defendants on this theory
of liability.

     Next,  relying  on Steiner's deposition testimony, plaintiffs  contend
that  they established that the standard of care in 1986 required Estes  to
address  environmental issues in the purchase agreement.  However,  as  the
trial court correctly determined, Steiner did not testify that the standard
of care required Estes to obtain concessions on environmental issues for  a
client.  Steiner testified that, "[i]f the purchase agreement  didn't  deal
with  the  environmental issue, then Mr. Estes should  have  discussed  the
matter  with  his client to advise him of the consequences  of  not  having
environmental protection." Steiner also testified that:

       A.    I don't know what the average attorney was doing in 1986.  All
       I  can  say  is that I believe that -- it's my  opinion that  anyone
       practicing  real estate law in the State of Michigan in a commercial
       transaction would have advised his client as to the consequences  of
       the  environmental laws of the state and have, depending on what his
       client's  reactions  [sic], put something in the purchase  agreement
       to protect his client if he was buying property.

     Q.                           You say would have, you mean should have.

      A.    Yeah,  he  should  have. He should have  told  his  client,  no
question. [ Emphasis added.]

     Viewed  in  a light most favorable to plaintiffs and giving  them  the
benefit of all reasonable doubt, Steiner's testimony cannot be construed as
requiring  that  the purchase agreement address environmental  issues.  The
bottom  line for Steiner was that the client be informed and advised  about
environmental  laws. We therefore conclude that plaintiffs have  not  shown
any  error  on  the part of the trial court when ruling on  this  potential
theory of liability.

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     Plaintiffs   next  challenge  the  trial  court's  grant  of   summary
disposition  on  their theory involving the personal guarantees  that  were
executed  in  conjunction with the purchase of the commercial property.  We
decline to address this issue because it is given only cursory treatment in
plaintiffs'  briefs,  and  lacks citation to  supporting  evidence  in  the
record. See People v Norman, 184 Mich App 255, 260; 457 NW2d 136 (1990)  (a
party  may  not  leave it to this Court to search for a  factual  basis  to
sustain  or reject a position); Community Nat'l Bank of Pontiac v  Michigan
Basic  Property  Ins Ass'n, 159 Mich App 510, 520-521; 407 NW2d  31  (1987)
(this  Court  may decline to consider an issue that is given  only  cursory
treatment in a brief, with little or no citation of supporting authority).

     Plaintiffs  next  contend  that  the  trial  court  reached  incorrect
conclusions with regard to the issue whether Estes' failure to apprise them
of  the  environmental  risks associated with the  purchase  of  commercial
property, or to recommend an environmental assessment, was a cause in  fact
of  their  damages.  As with the prior issue, this issue  is  not  properly
before  us because plaintiffs do not set forth citations to record evidence
in  support  of  their argument. Norman, supra at 260. We  also  note  that
plaintiffs'  argument  fails  to address the basis  of  the  trial  court's
decision. Although the trial court examined evidence on causation,  it  did
so  for  the purpose of determining whether plaintiffs should be  given  an
opportunity to amend their complaint to allege that Estes was negligent  in
failing  to  apprise  them of the environmental risks associated  with  the
purchase   of   commercial  property  and  in  failing  to   recommend   an
environmental  assessment. We hold that plaintiffs' failure to  brief  this
necessary issue precludes appellate relief. Roberts & Son Contracting,  Inc
v  North  Oakland  Development Corp, 163 Mich App 109, 113;  413  NW2d  744
(1987).

     Because plaintiffs have not demonstrated any basis for disturbing  the
judgment, we find it unnecessary to address defendants' argument  that  the
trial  court  could  have granted their motion for summary  disposition  on
grounds other than those relied upon in its written opinion.

     Affirmed.

                                             /s/ Hilda R. Gage
                                             /s/ Michael R. Smolenski
                                             /s/ Brian K. Zahra

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