Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Legal malpractice; The two-year limitations period for a legal malpractice action; MCL 600.5805(8); Accrual; MCL 600.5838(1); Kloian v Schwartz; Mitchell v Dougherty; Termination of an attorney-client relationship; Maddox v Burlingame; United States Department of Veterans Affairs (VA)
The court held that the trial court did not err by dismissing plaintiff’s legal-malpractice action against defendants on statute of limitations grounds. She sued defendants alleging breach of contract, professional negligence, and common-law negligence in representing her in an underlying employment discrimination case against her former employer, the VA. The trial court dismissed her claim with prejudice as time barred, and denied her motion for reconsideration. On appeal, the court noted that, while it did “not agree with the entirety of the trial court’s reasoning,” it agreed with its ultimate conclusion that there was “no genuine factual dispute that plaintiff’s legal-malpractice claim accrued outside of the applicable limitations period, and therefore defendants” were entitled to summary disposition. Plaintiff filed her complaint on 10/19/23, meaning that if her claim accrued prior to 10/19/21, “the complaint was untimely.” Defendants’ professional service to plaintiff “ended, at the latest, when [she] made clear . . . that she would be proceeding pro se with her motion for reconsideration and appeal, thereby relieving [them] of their obligation to represent [her] and terminating the attorney-client relationship.” Because the “record makes clear that the attorney-client relationship ended prior to [10/19/21], plaintiff’s complaint was untimely and the trial court correctly granted defendants’ motion for summary disposition.” The record also made it clear that defendants’ 10/20/21 “email, along with their email the day prior regarding the close-out of her file, functioned only to formally memorialize a termination of representation that had, through plaintiff’s earlier conduct, already occurred.” Plaintiff’s decision “to proceed pro se and accompanying actions to that effect served to terminate the attorney-client relationship and ‘[n]o additional court action was necessary to effectuate that discharge.’” Because the attorney-client relationship terminated prior to 10/19/21, her “complaint was filed outside of the applicable two-year statute of limitations, and defendants were entitled to summary disposition.” Affirmed.
Trust administration dispute; Motion to set aside a settlement agreement & stipulated order; Validity of the order; Mutual mistake; Newton v Progressive Marathon Ins Co; Statute of frauds; MCR 2.507(G); Lack of consideration; “Meeting of the minds”; Validity of consent to the agreement; Duress; Undue influence; Unconscionability; Unclean hands; McFerren v B&B Inv Group; Sanctions; MCL 600.2591; “Frivolous”; MCR 1.109
Rejecting appellant-Nickel’s arguments that the settlement agreement and stipulated order in this trust administration dispute “were invalid or should be invalidated on several grounds,” the court affirmed the probate court’s denial of her motion to set aside the order. As to her mutual mistake argument, she asserted “the parties incorrectly believed that the stipulated order would not modify the terms of the trusts. It is doubtful that all of the parties and the probate court in fact believed this, but even if true, Nickel’s argument is that the parties were mistaken about the legal effect of the stipulated order rather than whether the stipulated order, as drafted, accurately recited [their] agreement, which is not grounds for challenging the validity of the agreement.” She also contended the stipulated order violated the statute of frauds. MCR 2.507(G) “is considered a functional equivalent of the statute of frauds.” While Nickel asserted she did not sign the order, “the court rule expressly does not require her own personal signature, and it is undisputed that the order was signed by her attorney.” She contended he “was not authorized to sign documents on her behalf when he signed the order. However, [he] remained her attorney of record until a month after the stipulated order was signed, so her attorney, at the very least, had the apparent authority to bind her to the” order. As to her lack of consideration claim, the settlement “insured that Nickel would have input into the selection of the successor trustee, and could prevent [appellee-]Greg from being named to that role by agreement of the remaining siblings—something she had clearly expressed that she did not want. She was, therefore, granted something valuable in the settlement agreement[.]” The court also rejected her claim there was no meeting of the minds. “Nickel affirmatively agreed to the settlement agreement, the terms of which were accurately reflected in the stipulated order. Accordingly, the settlement agreement was not invalid for lack of agreement on material terms.” Her alternative arguments that her consent was invalid due to “duress or undue influence, and that the resulting agreement is unconscionable[,]” likewise failed. Further, the court found that the probate court did not err in “finding that her motion to set aside the stipulated order was frivolous, and by failing to sanction the [appellees] for initially bringing this case as a civil action.”
Double jeopardy; Retrial after a mistrial; Distinguishing People v Benton & People v Beck; Information amendment; MCL 767.76; Prejudice; Comparing People v Stricklin; “Variance in the type of penetration” in a CSC case; Unanimity jury instruction; People v Chelmicki; People v Gadomski; Ineffective assistance of counsel; Failure to object & to request certain instructions; Futile objection or request; Trial strategy; Involuntary conduct while asleep instruction; Strict liability offense; MCL 750.520b(2)(b)(i) & (ii); Great weight of the evidence; Evidence of defendant’s suicide attempt & police standoff; MRE 403; Sentencing; Scoring of OVs 10 & 19; MCL 777.40(1)(a); MCL 777.49(c); PSIR errors
The court held that defendant’s double jeopardy rights were not violated when he was retried after a mistrial due to a deadlocked jury. Further, the trial court did not abuse its discretion in allowing an amendment to the information, or err in not giving a special unanimity jury instruction or an instruction on involuntary conduct. The court rejected defendant’s ineffective assistance of counsel and great weight of the evidence claims. His challenge to the admission of evidence of his suicide attempt and police standoff also failed. The court upheld the scoring of OV 10 at 15 points and OV 19 at 10 points, but remanded for correction of the PSIR. Defendant was convicted of CSC I under MCL 750.520b(1)(b)(ii). Relying on Benton and Beck, he argued on appeal “that his right of protection from double jeopardy was violated when he was retried after the mistrial.” However, neither of those cases involved “mistrials on grounds of deadlocked juries. They involved trial errors requiring analysis of whether a mistrial was a manifest necessity.” In this case, there was “no doubt that a deadlocked jury manifestly necessitated a mistrial.” Thus, there was no merit in this issue. He also argued that the trial court improperly granted the prosecution’s motion to amend the information and that it “should have given a unanimity instruction.” As to the information amendment, the court found that Stricklin was analogous to this case. It also involved an information amendment “‘to reflect a variance in the type of penetration’ rather than a new crime.” In addition, the timing of the prosecution’s motion to amend here presented “a more compelling case for approval of the amendment than the facts in Stricklin.” The motion here was made 34 days before the start of the second trial. As to an unanimity instruction, the prosecution did not present “evidence of multiple, distinct, alternative acts as evidence of the actus reus of the charged offense.” Rather, the prosecution argued that the victim “might have been confused about what she saw and felt during the charged instances, given that the incidents occurred in the dark, and that they began while she was asleep.” The court concluded that “defendant was not entitled to a special unanimity instruction.” As to an involuntary conduct instruction, “Michigan law has not recognized a sexsomnia defense.” The court affirmed his convictions and sentences.
Accounting malpractice; Damages; Motion for summary disposition under MCR 2.116(C)(10); Lowrey v LMPS & LMPJ, Inc; Burden of identifying the issues & evidentiary support; MCR 2.116(G)(4); Barnard Mfg Co, Inc v Gates Performance Eng’g, Inc; Attorney fees; The American rule; Motion for reconsideration; Merrifield Machinery Solutions (MMS)
The court held that the trial court erred in part in granting defendants’ motion for summary disposition under MCR 2.116(C)(10) in this accounting malpractice case. A motion “under MCR 2.116(C)(10) features a burden shifting framework.” Plaintiffs, in opposing defendant’s motion, provided the trial court with a CPA’s (S) “entire deposition testimony without directing the trial court to the relevant pages within the transcript. Rather, [they] generally referred to the 214-page deposition transcript as a whole.” The trial court granted defendants summary disposition “because plaintiffs ‘did not set forth specific facts showing that there was a genuine issue for trial.’” But the court concluded that “the trial court did not consider the individual grounds upon which defendants based their motion for summary disposition. In failing to do so, [it] did not expressly consider whether [they] carried their burden of production when bringing their motion . . . .” Further, despite focusing on S’s “deposition testimony, the trial court failed to consider whether [his] testimony was relevant to all of plaintiffs’ claims.” The court determined that “the trial court’s rationale resulted in erroneously granting a portion of defendants’ motion.” Among plaintiffs’ allegations, they asserted “that defendants’ malpractice caused them to incur” S’s fees and also those of a “turnaround expert” (L) due to having to review and revise plaintiff-MMS’s “financial records and certain tax returns.” In moving for summary disposition of this claim, “defendants argued that plaintiffs would be unable to establish causation because the accounting fees would have been incurred regardless of defendants’ alleged malpractice. However, [they] failed to cite evidence to support this argument. [They] also did not explain how the fees would have been incurred, even if defendants were not involved in MMS’s financial department. As a result, the burden did not shift to plaintiffs, and plaintiffs had no obligation to come forward with evidence establishing a question of fact on the issue of” these fees. Thus, the trial court erred in granting defendants summary disposition on this claim. The court added that their contention “the additional accounting fees would have been incurred, regardless of defendants’ purported malpractice, is unsupported by the record.” It affirmed summary disposition for defendants on plaintiffs’ claim for attorney fees. Affirmed in part, reversed in part, and remanded.
Termination under § 19b(3)(j); Jurisdiction & adjudication; MCL 712A.2(b)(1) & (2); Legally admissible evidence; MCR 3.977(E)(3); Plain error review; In re Mota; Reasonable reunification efforts; Exceptions; MCL 712A.19a(2); In re Simonetta; Failure to participate in the services that are offered
Holding that the trial court did not err when it found it could exercise jurisdiction, that § (j) was met, and that the DHHS made reasonable efforts to reunify the family, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of homelessness and the fact that conditions leading to prior terminations persisted. On appeal, the court rejected her arguments that the trial court erred by: (1) admitting legally inadmissible evidence to find jurisdiction; (2) finding that the DHHS made reasonable efforts to reunify the family; and (3) finding statutory grounds to terminate her parental rights. First, even “if the trial court committed procedural error pursuant to In re Mota, such error did not affect respondent’s substantial rights, as her testimony provided legally admissible evidence that established the grounds for the trial court’s exercise of jurisdiction under MCL 712A.2(b)(1)” and (2). Next, the trial court “was not required to order reasonable efforts towards reunification after the adjudication trial because” the trial “court was required, under MCR 3.977(E) to order that additional efforts for reunification of the child with respondent shall not be made.” In any event, “prior to the adjudication trial, reasonable efforts towards reunification were made, but respondent refused many of the services that were offered.” Finally, as to § (j), respondent’s “lack of insight and judgment prevented her from making choices that prevented her children’s homelessness and that met their medical and mental-health needs.” Her conduct “did not show the trial court that she had developed the capacity to make choices that would keep” the child safe and healthy if returned to her care.