Hammond v. Weiss , 46 Mich. App. 717 ( 1973 )

46 Mich. App. 717 (1973) 208 N.W.2d 578

HAMMOND
v.
WEISS

Docket No. 14886.

Michigan Court of Appeals.

Decided April 26, 1973.

Charfoos & Charfoos, for plaintiff.

Plunkett, Cooney, Rutt & Peacock (by John P. Jacobs), for defendant Weiss.

Winegarden & Winegarden, for defendant Damm.

Before: DANHOF, P.J., and HOLBROOK and BASHARA, JJ.

Leave to appeal denied, 390 Mich ___.

BASHARA, J.

Plaintiff contracted ringworm when he was eight years old. In the course of treatment for his condition, Dr. Frederick Hauser, M.D., negligently exposed plaintiff to an overdose of x-rays, which caused burns.

The immediate effect of the x-ray overdose was a large scar on plaintiff's scalp, and permanent loss of hair. In April, 1955, the Genesee County Probate Judge approved a settlement of $3,000 for plaintiff's injuries. He was represented at the settlement hearing by his father, as next friend, in propria persona, while Dr. Hauser was represented by counsel.

The attorney for Dr. Hauser represented to the court that he had conferred with a radiologist who had stated that no permanent damages could result, other than the loss of scalp hair. Approximately 8 years later, at the age of 16 or 17, cancer of the scalp developed. It was alleged that the cancer was proximately caused by the negligent x-ray treatment administered by Dr. Hauser. It was further alleged that plaintiff endured much pain, suffering, medical expense, and permanent physical damage.

In the summer of 1965, some two years after he contracted cancer, plaintiff, while still a minor, retained the defendant attorneys for the purpose of bringing suit against Dr. Hauser. Defendants eventually accepted a $250 retainer fee.

Plaintiff alleges that both Dr. Hauser and his attorney knew that the cancer was a forseeable consequence of the x-ray overdose, but failed to disclose the same to the probate judge.

On January 20, 1969, plaintiff reached the age of 22 years. At that time, defendant attorneys had failed to take any action against Dr. Hauser. By virtue of the statute of limitations, plaintiff is forever barred from recovering his damages against Dr. Hauser.

Plaintiff avers that due to defendant's negligence and breach of contract, he has lost his right of action. He therefore seeks to recover against the defendants for legal malpractice.

In February of 1971, the Genesee County Circuit Judge granted a motion by defendants for accelerated judgment. The Court of Appeals vacated the circuit judge's order, and remanded the matter to the trial court. Hammond v Weiss, 31 Mich. App. 717 (1971). The Genesee Circuit, sitting en banc, ordered a change of venue to Oakland County Circuit Court.

On July 26, 1972, at a hearing on defendant's motion for summary judgment of no cause for action, under GCR 1963 117.2(1), the trial judge not only granted defendant's motion, but determined that plaintiff's lawsuit was frivolous, and awarded actual attorney's fees to defendants in the total amount of $4,538.70.

At the outset it should be noted that trial court has granted judgment pursuant to the wrong court rule. GCR 117.2(1) allows summary judgment where "the opposing party has failed to state a claim upon which relief can be granted". The applicable court rule to be considered, if summary judgment were to be granted, is GCR 117.2(3) which states: "that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law". As was held in Burns v Cowan's Friendly Service, 45 Mich. App. 371-372 (1973):

"Defendant Mobil Oil Corporation sought summary judgment pursuant to GCR 1963, 117.2(1). From the record, it is obvious that the parties and the court proceeded as though the motion had been brought under GCR 1963, 117.2(3). The trial court's grant of defendant's motion must be reversed pursuant to Fecteau v Wolco Homes, Inc, 385 Mich. 763 (1971), reversing 32 Mich. App. 21 (1971)."

It is this Court's opinion, however, that summary judgment does not lie in the instant case. Once an attorney accepts a retainer to represent a client, he is obligated to exert his best efforts wholeheartedly to advance his client's legitimate interest with fidelity and diligence until he is relieved of that obligation either by his client or by a court. State Bar of Michigan v Daggs, 384 Mich. 729 (1971).

There should be no reluctance to recognize the validity of a claim for legal malpractice. Indeed, whatever may properly be the result of a private claim of legal malpractice, there is a responsibility resting squarely upon the courts to investigate such charges as and when they are made. White v Sadler, 350 Mich. 511 (1957).

We must now consider the (merits of) plaintiff's claim, based on the facts viewed most favorable to the plaintiff, to determine whether the trial court should be ordered to proceed with a trial on the merits.

A medical malpractice claim accrues when the alleged responsible person discontinues treating the plaintiff, RJA 5838.^[1] RJA 5805(3)^[2] provides a two-year statute of limitations. The plaintiff's cause of action arose in 1954 and would, therefore, be barred in 1956, but for the fact that plaintiff was an infant. Within one year after attaining his majority, an infant may bring an action, even though the limitations period has run. RJA 5851(1).^[3] Defendant attorneys could have brought suit against Dr. Hauser until January 20, 1969. They were retained by plaintiff in 1965, leaving them almost four years in which to prosecute the claim.

It is well to remember that in April of 1955, the Genesee County Probate Court authorized settlement of plaintiff's claim against Dr. Hauser. If the court approves a compromise of possible litigation, the judgment will be binding on the infant provided the court finds that the compromise is made in good faith, with full disclosure of all the facts, Metzner v Newman, 224 Mich. 324 (1923); Dudex v Sterling Brick Co, 237 Mich. 470, 477 (1927).

In light of the presumptive validity of the probate court's order, was it possible for the defendant attorneys to attack that order and have it set aside? If not, summary judgment under GCR 1963, 117.2(3) should properly enter for the defendants.

Orders of the probate court fraudulently obtained are not res judicata. King v Emmons, 283 Mich. 116 (1938); In re Estate of Rahn, 241 Mich. 29 (1927). In such cases where orders of the probate court are obtained by fraud, the order may be attacked by a bill in equity. Babcock v Babcock, 150 Mich. 558, 560 (1907); Ewing v Lamphere, 147 Mich. 659, 663 (1907).

Defendants argue that a court of equity may ignore a probate court order only where there is a showing of positive, as opposed to constructive fraud. However, in Hathaway v Hudson, 256 Mich. 694, 698-699 (1932), the Court stated:

"If the injured party's remedy is essentially an equitable one, we think it is immaterial whether it is based on active or constructive fraud."

In any event, Dr. Hauser's attorney's failure to disclose factual matters may have constituted positive fraud. On the facts alleged by plaintiff, it appears that justice may have required a revision of the probate court's order. The circuit court might well have allowed a delayed appeal. In re Gillespie Estate, 348 Mich. 256 (1957); In re Tonnelier's Estate, 306 Mich. 229 (1943).

The case of Centala v Navrude, 30 Mich. App. 30 (1971), provides an interesting example. There an infant, through her next friend, executed a release against one defendant, but the order in the probate court included a release as to all defendants. The circuit court granted summary judgment. On appeal this Court reversed, holding it to be the duty of the trial court to determine the best interests of the minor.

Defendants argue that as attorneys they performed all reasonable duties necessary to protect plaintiff's interest. Plaintiff argues against such a finding.

However, this then becomes a factual matter, and one which should be determined by allowing both parties to put in their proofs.

We therefore reverse the trial court's summary judgment of no cause for action, and remand for a trial on the merits of whether defendant attorneys were liable to plaintiff for malpractice. In view of our holding, it follows that we must also set aside the lower court's assessment of costs against plaintiff.

Reversed and remanded.

Costs to appellant.

All concurred.

NOTES

[1] MCLA 600.5838; MSA 27A.5838.

[2] MCLA 600.5805(3); MSA 27A.5805(3).

[3] MCLA 600.5851(1); MSA 27A.5851(1).