Stanley G Denhof v. Charles B Covello ( 2015 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    STANLEY G. DENHOF,                                                   UNPUBLISHED
    January 15, 2015
    Plaintiff-Appellant,
    v                                                                    No. 318331
    Kent Circuit Court
    CHARLES B. COVELLO,                                                  LC No. 318331
    Defendant-Appellee.
    Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.
    PER CURIAM.
    Plaintiff appeals by right the trial court’s grant of summary disposition to defendant.
    This case arises out of defendant’s legal representation of plaintiff on a petition to terminate his
    parental rights on the basis of sexual abuse of his daughter.1 Contemporaneous with the pending
    termination case, plaintiff was charged and convicted in Kent County Circuit Court of three
    counts of first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(a); he was sentenced on
    August 19, 2008 to 14 to 75 years imprisonment.2 Despite failing to discern any merit to
    plaintiff’s complaint, for the reasons discussed herein, we reverse and remand to the trial court.
    1
    The family court appointed defendant to represent plaintiff on March 21, 2008, and discharged
    him from that appointment by order dated August 22, 2008, when the petition to terminate
    parental rights was withdrawn.
    2
    Plaintiff’s convictions and sentences were affirmed on appeal. People v Denhof, unpublished
    opinion per curiam of the Court of Appeals, issued December 14, 2010 (Docket No. 287720), lv
    den 
    489 Mich. 899
    (2011). In post-conviction proceedings, the circuit court conducted an in
    camera review of certain confidential counseling records of the victim and her mother, which
    included the confidential reports plaintiff sought from defendant. See People v Stanaway, 
    446 Mich. 643
    , 675-680; 521 NW2d 557 (1994). In an order dated January 30, 2012, the circuit court
    ruled that the statements and conduct attributed to the victim in these reports was fully consistent
    with the victim’s testimony at defendant’s criminal trial. Accordingly, the court ruled “there is
    no basis for turning these records over to the parties in Defendant’s criminal case, and they will
    therefore be placed in the court file under seal[.]” This Court denied plaintiff’s application for
    leave to appeal this and other post-judgment trial court rulings “for lack of merit in the grounds
    -1-
    On the same day he was discharged from representing plaintiff in the termination case,
    August 22, 2008, defendant wrote to plaintiff advising that he had given plaintiff’s investigator
    his complete file with the exception of three confidential reports concerning the CSC victim and
    her mother that may be privileged under Michigan and federal law.3 The letter identifies the
    reports by date and source. Because of his transfer from the Kent County jail to prison, plaintiff
    asserts in his complaint that he did not receive this letter until June 2011 when his sister found it
    in his personal property at the jail. A series of letters between plaintiff or his representatives and
    defendant seeking production of the confidential reports ensued. Defendant maintained that he
    would not release the reports absent a court order. Finally, on December 12, 2012, defendant
    wrote to plaintiff that he had returned the copies of the confidential reports that were in his
    possession to the “agencies of origin.”
    On May 31, 2013, plaintiff filed a two-count complaint against defendant in Muskegon
    Circuit Court, the gravamen of which was defendant’s failure to produce two of the three
    confidential counseling reports.4 The first count alleges “obstruction of justice,” and cites MCL
    750.483a(5). The second count alleges a violation of MCL 600.901.5 Each count requests
    equitable relief and damages under MCL 600.5838b, which address the statute of limitations for
    legal malpractice actions. Consequently, defendant’s characterization of plaintiff’s complaint as
    one for legal malpractice is reasonable.
    In lieu of answering plaintiff’s complaint, defendant filed a motion for summary
    disposition on June 25, 2013, citing MCR 2.116(C)(7), (8), and (10). Defendant argued that
    there was no disputed material fact that the documents plaintiff sought were privileged and
    because of that fact, defendant could not disclose them to plaintiff. Defendant also argued that
    the gravamen of plaintiff’s complaint was one of legal malpractice and that both the two-year
    statute of limitations, MCL 600.5805(6), and the six-month discovery period, MCL 600.5805(2),
    had expired. See Dowker v Peacock, 
    152 Mich. App. 669
    , 671-672; 394 NW2d 65 (1986).
    Defendant also asserted that the proper venue for plaintiff’s claim was Kent County because that
    is where events occurred and where defendant resided and practiced law. On July 15, 2013,
    plaintiff filed an answer to defendant’s motion for summary disposition.
    The Muskegon Circuit Court conducted a hearing on defendant’s motion on July 30,
    2013, with plaintiff participating via a video connection. The court did not reach the merits of
    defendant’s motion for summary disposition but instead granted that part of the motion asserting
    that the proper venue for plaintiff’s complaint was Kent Circuit Court. An order transferring the
    case to Kent County was entered on July 30, 2013. The Kent Circuit Court received the entire
    Muskegon Circuit Court file in this matter on August 7, 2013.
    presented.” People v Denhof, unpublished order curiam of the Court of Appeals, entered
    October 11, 2013 (Docket No. 317418), lv den 
    495 Mich. 950
    (2014).
    3
    See e.g., MCL 600.2157a, and the Health Insurance Portability and Accountability Act
    (HIPAA), 42 USC 1320d et seq., and its regulations.
    4
    Plaintiff admits that he obtained a copy of one of the reports from another source.
    5
    This statute requires membership in state bar of Michigan for persons to designate themselves
    as “attorneys and counselors” and be licensed to practice law in this state.
    -2-
    After the file was transferred to Kent County, defendant filed various motions on August
    22, 2013, noticing them for hearing on September 6, 2013. Defendant, on August 30, 2013, re-
    noticed his motion for summary disposition for hearing on September 6, 2013. On the hearing
    date, plaintiff did not appear because he was incarcerated. Patricia Denhof, believed to be
    plaintiff’s sister, appeared and purported to act on plaintiff’s behalf through a power of attorney.
    The trial court, however, refused to allow Denhof to speak to the merits of the motion because
    she was not an attorney licensed to practice law in Michigan. The trial court ruled that MCR
    2.119(A)(2)6 requires a response to a motion, and “there is no reply in this case.” The trial court
    then stated that no reply was filed to defendant’s motion and that MCR 2.116(G)(1)7 applied.
    The court reasoned that these court rules combined to mean “that where a motion is filed and no
    response is given, then the motion that is brought is to be granted.” The trial court then ruled
    that it would not even permit defense counsel to argue his motion because it was properly filed,
    and no response was filed. On this basis, the trial court granted defendant’s motion for summary
    disposition and entered its order on September 6, 2013. Plaintiff appeals by right.
    It is apparent that the trial court did not review the file in this matter before granting the
    motion because the court mistakenly believed that plaintiff had not filed a response to
    defendant’s motion. Further, the trial court did not consider either the merits of plaintiff’s
    complaint or the merits of defendant’s motion for summary disposition. Under these
    circumstances, we reverse the trial court’s order granting defendant’s motion for summary
    disposition and remand for reconsideration on the merits. We do not retain jurisdiction.
    /s/ Michael J. Riordan
    /s/ Jane E. Markey
    /s/ Kurtis T. Wilder
    6
    This court rule does not require that an answer be filed to a motion but rather that “[a] motion
    or response to a motion that presents an issue of law must be accompanied by a brief citing the
    authority on which it is based.”
    7
    This court rule establishes a timeframe for the service and hearing of a motion for summary
    disposition and a timeframe for the filing and service of a response to the motion.
    -3-
    

Document Info

Docket Number: 318331

Filed Date: 1/15/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021