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.