Scott Hoek v. Jason S Schnelker ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SCOTT HOEK and AMY HOEK, UNPUBLISHED
December 22, 2022
Plaintiffs-Appellants,
v No. 358807
Kent Circuit Court
JASON S. SCHNELKER and SCHNELKER, RASSI LC No. 20-002858-NM
& MCCONNELL, PLC,
Defendants-Appellees.
Before: PATEL, P.J., and CAMERON and LETICA, JJ.
PER CURIAM.
In this legal malpractice action, plaintiffs1 appeal as of right the trial court order granting
defendants’ motion for summary disposition under MCR 2.116(C)(7), premised on a release. We
affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
On April 6, 2020, plaintiffs filed a complaint alleging legal malpractice against defendants.
They asserted that defendants provided legal advice regarding the sale of the assets of plaintiff’s
company, Fixture Finders, LLC or “OldCo.” Plaintiff submitted that he founded OldCo in 2005
and worked at the company for more than 10 years. In 2015, defendants represented plaintiff in
the sale of OldCo’s assets to Fixture Finders (DE), LLC or “NewCo” through an asset purchase
agreement effective April 3, 2015. Defendant gave advice and negotiated and aided in the
preparation of the terms of NewCo’s operating agreement. Plaintiff purchased 20% of NewCo
1
Although Scott Hoek and Amy Hoek are the named plaintiffs, the cause of action arose from the
legal representation involving the interpretation of the documents addressing the sale of Scott
Hoek’s business. Accordingly, the singular “plaintiff” refers to Scott Hoek only. Plaintiff was
represented by defendants, attorney Jason S. Schnelker and his law firm, Schnelker, Rassi &
McConnell, PLC. The singular “defendant” refers to Schnelker only.
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through his investment company known as Hoek Investments, LLC (Hoek Investments). The
remaining 80% equity interest of NewCo was owned by Hilco Merchant Resources, LLC (Hilco).
According to the NewCo operating agreement, a management investor member could sell
his interest in NewCo at any time during the first three fiscal years and the value was computed as
“fair market value” of the company and a multiplier “mutually agreed upon by the Members acting
reasonably and in good faith.” After three years, the operating agreement provided that the
management investor purchase price would be determined by the company’s “average net
operating income,” calculated by using the three-year period preceding the event triggering the
purchase. According to the operating agreement terms, plaintiff had until December 31, 2017, to
voluntarily quit and be bought out of NewCo with his assets calculated at fair market value instead
of net operating income for the three preceding years.
Plaintiff alleged that he expressed his intentions to quit and his concern about his recovery
of his investment to defendant in January 2016. However, it was asserted that defendant gave
inaccurate advice regarding the terms of the buyout agreement and the timeframe to recover
plaintiff’s investment computed as fair market value. Although plaintiff allegedly followed
defendant’s advice to remain with the company to recoup his investment, NewCo terminated
plaintiff on March 22, 2018 purportedly for cause, contending that plaintiff violated the non-
competition provision of his employment agreement. It was further alleged that the company’s
net operating income was negative, and therefore, plaintiff’s redemption value for his interest was
zero. Plaintiff asserted that he lost nearly $1,000,000 by adhering to defendant’s direction.
Plaintiff entered into settlement negotiations with Hilco. Hilco representatives objected to
defendant’s participation in the settlement talks because defendants represented Hilco in real estate
and other matters. Consequently, plaintiff retained attorney Sean Fitzgerald to resolve the dispute
with Hilco. In the fall of 2018, plaintiff expressed his concerns to Fitzgerald about defendant’s
legal interpretation and advice pertaining to the terms of NewCo’s operating agreement as well as
the charged attorney fees. Plaintiff met “face to face” with defendant, and they discussed
defendant’s legal representation. Defendant advised that he would notify his insurance carrier of
plaintiff’s claim. Despite plaintiff’s knowledge of the suspect legal advice given by defendant, in
February 2019, he entered into a settlement agreement with Hilco that contained a release covering
all the company’s current and former attorneys.
Over a year after the entry of the settlement, plaintiffs filed their legal malpractice action
against defendants. Defendants moved for summary disposition, alleging that the legal
malpractice claim was barred by the release that was governed by Illinois law. It was also claimed
that the action was not brought by the real party in interest, specifically plaintiff’s corporate entity
Hoek Investments, this failure did not constitute a misnomer, and any attempted amendment was
now time-barred. Plaintiffs opposed the dispositive motion, claiming that defendant violated the
Michigan Rules of Professional Conduct (MRPC) that gave rise to a rebuttable presumption of
negligence, and it was not the intention of the parties to release any legal malpractice claim. It
was further alleged that defendants were not intended beneficiaries of the release, paid no
consideration for the release, and the defense representation of notice to their insurance carrier
may rise to the level of fraud.
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After hearing oral argument on the motion, the trial court granted summary disposition in
favor of defendants, citing the breadth of the plain language of the release as governed by Illinois
law. Specifically, the settlement agreement executed by plaintiff fully and unconditionally
released the current and former attorneys of Hilco. The trial court noted that defendant was a
former attorney of Hilco and Hilco representatives expressly objected to defendant’s continued
representation of plaintiff, causing him to hire Fitzgerald. It was observed that plaintiff had the
benefit of Fitzgerald’s counsel during the negotiation and execution of the release when they were
aware of the potential legal malpractice case against defendants. The trial court concluded that
Hilco’s purpose in executing the expansive release was to ensure finality and protect its employees
from having to participate in litigation, and it accounted for this purpose in its consideration. And,
there was a “carve-out” provision of the release that expressly listed claims that were not part of
the release, such as employee pension and welfare plans. Although plaintiff was represented by
counsel Fitzgerald, the malpractice action against defendants was not included in the carveout
provision exempting such claims from the release. The trial court did not find a violation of the
MRPC in light of plaintiff’s representation by independent counsel and that the nature of the
allegations, whether characterized as negligence or professional malpractice, were encompassed
within the release.
The trial court inquired of the status of plaintiff Amy Hoek’s claim of legal malpractice
because she was not a party to the release. Plaintiffs’ counsel agreed that her claim should also be
dismissed because it was derivative of plaintiff’s claim. The trial court indicated that it would not
address the real party in interest argument in light of its ruling on the release issue. Plaintiffs’
counsel did not request a ruling on the issue, stating that it was a “sensible approach.” From the
trial court’s ruling, plaintiffs appeal.
II. STANDARDS OF REVIEW
A trial court’s ruling on a motion for summary disposition is reviewed de novo. Houston
v Mint Group, LLC, 335 Mich App 545, 557; 968 NW2d 9 (2021). When a valid release of liability
between the parties exists, summary disposition of a plaintiff’s complaint is proper under
MCR 2.116(C)(7). Wyrembelski v City of St Clair Shores, 218 Mich App 125, 127; 553 NW2d
651 (1996). When reviewing a motion brought under MCR 2.116(C)(7), this Court must consider
the affidavits, pleadings, and other documentary evidence submitted by the parties and construe
the pleadings and evidence in favor of the nonmoving party. Anzaldua v Neogen Corp, 292 Mich
App 626, 629; 808 NW2d 804 (2011).
Summary disposition is appropriate pursuant to MCR 2.116(C)(10) where there is “no
genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” MCR 2.116(C)(10). When reviewing a motion for summary
disposition challenged under MCR 2.116(C)(10), the court considers the affidavits, pleadings,
depositions, admissions, and other admissible documentary evidence then filed in the action or
submitted by the parties in the light most favorable to the nonmoving party. MCR 2.116(G)(4),
(G)(5); Buhl v City of Oak Park, 507 Mich 236, 242; 968 NW2d 348 (2021).
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III. ANALYSIS
Plaintiffs contend2 that the trial court erred in granting defendants’ motion for summary
disposition premised on the release. We disagree.
On February 21, 2019, a settlement agreement was entered between plaintiff (delineated as
“Employee”) and Hilco. The agreement provided, in pertinent part:
4. Releases.
a. As of the Effective Date, Employee (and anyone claiming through
him or on his behalf, including heirs and assigns), fully and unconditionally releases
Hilco together with their current and former subsidiaries, parents, affiliates,
predecessors, successors, members, agents, employees, officers, directors,
attorneys, insurers, and representatives (collectively, the “Hilco Released Parties”),
jointly and severally, from any and all liability, claims, causes of action, charges,
complaints, obligations, costs, losses, damages, injuries, attorneys’ fees, and other
2
As an initial matter, we note that plaintiffs’ brief on appeal does not comport with MCR
7.212(C)(6) and (C)(7). MCR 7.212(C)(6) requires that the statement of facts “be a clear, concise,
and chronological narrative.” Additionally, “[a]ll material facts, both favorable and unfavorable,
must be fairly stated without argument or bias.” Id. Further, the statement of facts must refer to
“specific page references to the transcript, the pleadings, or other document or paper filed with the
trial court” to identify the nature of the action and the rulings of the trial court. MCR
7.212(C)(6)(a), (e). MCR 7.212(C)(7) sets forth that “[f]acts stated must be supported by specific
page references to the transcript, the pleadings, or other document or paper filed with the trial
court.” “Page references to the transcript, the pleadings, or other document or paper filed with the
trial court must also be given to show whether the issue was preserved for appeal by appropriate
objection or by other means.” Id. Also, this Court’s review is limited to the record filed in the
lower court, and a party may not expand the record on appeal. Meisner Law Group PC v Weston
Downs Condo Ass’n, 321 Mich App 702, 724-725; 909 NW2d 890 (2017). MCR 7.216(A)(4)
allows the Court of Appeals to permit “amendments, corrections, or additions to the transcript or
record.”
Plaintiffs’ brief on appeal refers to documentation that does not appear to be filed in the
lower court record, including the deposition testimony of plaintiff Amy Hoek. Additionally,
although plaintiffs refer to e-mail exchanges between plaintiff, defendant Schnelker, and
Fitzgerald, those emails were not located in the record. Moreover, the statement of facts contains
narrative paragraphs without any reference to the lower court record or pleadings and is not written
without argument or bias. Defendants also submitted documentary evidence that was not
presented in the trial court, specifically, the affidavit of Ian Fredericks of Hilco addressing his
intent in negotiating the release. We do not consider documentary evidence that the parties failed
to submit in the lower court record but limit our review to the language of the release and the
documentary evidence submitted in the trial court as the parties did not seek expansion of the
record on appeal, see MCR 7.216(A)(4).
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legal responsibilities of any kind, nature, or type, whether known or unknown,
matured or unmatured, whatsoever existing through the Effective Date.
b. The claims Employee releases includes, without limitation, the
claims as defined in this Agreement, and all other claims existing through the
Effective Date arising under any act, statute, constitution, regulation, executive
order, ordinance, or the common law, including any claims for attorneys’ fees and
costs. Without limiting the foregoing, Employee releases claims for:
i. any breach of or issues relating to the LLC Agreement, the
First Promissory Note, the Second Promissory Note, and/or the Employment
Agreement;
ii. violation of any written or oral contract, agreement, policy,
benefit plan, retirement or pension plan, option plan, severance plan, insurance
coverage, or covenant of any kind, or failure to pay wages, bonuses, employee
benefits, other compensation, attorneys’ fees, damages, or any other remuneration
(including any equity, ownership interest, management fee, carried interest,
partnership interest, distributions, dividends, or participation or ownership in any
business venture related to the Hilco Released Parties);
iii. discrimination, harassment, or retaliation on the basis of any
characteristic protected under law, including but not limited to race, color, national
origin, sex, pregnancy, sexual orientation, religion, disability, marital or parental
status, age, union activity, or other protected activity;
iv. denial of protection or benefits under any statute, ordinance,
execution order, or regulation, including but not limited to claims under Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights Act
of 1866, the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Americans with Disabilities Act, the Fair Labor Standards Act,
the Family and Medical Leave Act, the Workers’ Adjustment and Retraining
Notification, the Employee Retirement Income Security Act of 1974, the Illinois
Wage Payment and Collection Act, the Illinois Human Rights Act, the Michigan
Elliott-Larsen Civil Rights Act, Michigan Persons with Disabilities Civil Rights
Act, Payment of Wages and Fringe Benefits Act, Michigan Whistleblowers’
Protection Act, Bullard-Plawecki Employee Right to Know Act, the Michigan
Occupational Safety and Health Act, the Michigan Social Security Number Privacy
Act, and the Michigan Internet Privacy Protection Act, or any other federal, state,
or local statute, ordinance, or regulation regarding employment, termination of
employment, or discrimination in employment, retaliation, or wage and hour issues;
and/or
v. violation of any public policy or common law of any state
relating to employment or personal injury, including but not limited to claims for
wrongful discharge, defamation, invasion of privacy, infliction of emotional
distress, negligence, fraud, and interference with contract.
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The release does not waive rights provided by this Agreement or benefits (if any)
that are accrued and vested under Hilco’s tax-qualified employee pension and
welfare plans, nor any rights, if any, he may have to unemployment insurance
benefits or workers’ compensation benefits. It also does not waive claims or rights
that as a matter of law cannot be waived by this Agreement, including filing a
charge with, testifying, or participating in an investigation conducted by certain
government agencies. It does, however, waive Employee’s right to monetary
recovery if any agency (such as the U.S. Equal Employment Opportunity
Commission) pursues any claim on his behalf.
c. Effective upon the transmittal of HMR [Hilco Merchants Resources,
LLC] of the HMR Payment, Hilco releases and forever discharges Employee and
his representatives, agents, assigns, insurers, attorneys, predecessors and successors
in interest, heirs and assigns, from any and all liability, claims, causes of action,
charges, complaints, obligations, costs, losses, damages, injuries, attorneys’ fees,
and other legal responsibilities of any form whatsoever, whether known or
unknown, existing through the Effective Date.
d. Effective upon the transmittal by HMR of the HMR Payment, Hilco,
on one hand, and Hoek Investments, on the other hand, release and forever
discharge each other, and all of their current and former subsidiaries, parents,
affiliates, predecessors, successors, members, agents, employees, officers,
directors, attorneys, insurers, and representatives, from any and all liability, claims,
causes of action, charges, complaints, obligations, costs, losses, damages, injuries,
attorneys’ fees, and other legal responsibilities of any form whatsoever, whether
known or unknown, existing through the Effective Date.
e. Nothing contained herein shall prevent the Parties from enforcing
the terms of this Agreement, including, but not limited to, filing suit to enforce the
terms of this Agreement.
* * *
13. Successors and Assigns. This Agreement governs the rights of,
binds, and inures to the benefit of each Party, as well as their respective
predecessors, successors, assigns, affiliates, parent companies, subsidiaries,
officers, employees, directors, agents, attorneys, heirs, and spouses.
* * *
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois without regard for
choice of law principles. Any litigation between the Parties arising out of or
relating to this Agreement shall be filed solely in federal or state courts located
within the boundaries of the United States District Court for the Northern District
of Illinois, and the Parties consent to jurisdiction and venue in the federal and state
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courts located within the boundaries of the United States District Court for the
Northern District of Illinois.
The trial court applied Illinois law to this dispute as set forth in the settlement agreement.
Indeed, when determining the law applicable to litigation, the parties’ expectations must be
balanced against state interests. Vanalstine v Land O’Lakes Purina Feeds, LLC, 326 Mich App
641, 648; 929 NW2d 789 (2018). The parties’ choice-of-law provision should be applied if the
issue is one that could have been resolved by an express contractual provision. Id. at 648-649.
The parties choice-of-law provision will not be given deference if: (1) the chosen state has no
substantial correlation to the parties or the transaction; (2) there is no reasonable basis for the
selection of the chosen state’s law; or (3) the application of the chosen state law would be contrary
to the policy of the state with a materially greater interest and whose law would apply in the
absence of a choice-of-law selection. Id. at 649. The parties do not dispute that Illinois has a
substantial correlation to the transaction because it is the principal location of business for Hilco.
Moreover, the parties to the settlement agreement, plaintiff and Hilco, expressly negotiated this
contractual provision. And, it appears that general rules of contract construction applicable to
releases is substantially similar between Michigan and Illinois law. Therefore, the trial court
appropriately honored the parties’ choice-of-law provision.
Questions of contract interpretation are reviewed de novo. Pepper Constr Co v Palmolive
Tower Condos, LLC, ___ Ill App 1st ___, ___; 194 NE3d 991, ___ (2021). When construing a
contract, the primary goal is to give effect to the intent of the parties. Id. When the language is
clear and unambiguous, the court must determine the parties’ intent premised solely on the plain
language of the contract. Id.“A release is a contract whereby a party abandons a claim to a person against whom that
claim exists.” Whitehead v Fleet Towing Co, 110 Ill App 3d 759, 762; 442 NE2d 1362 (1982);
see also Fuller Family Holdings, LLC v Northern Trust Co, 371 Ill App 3d 605, 614; 863 NW2d
743 (2007). The scope and effect of a release is controlled by the intent of the parties. In re Estate
of Gallagher, 383 Ill App 3d 901, 905; 890 NE2d 1249 (2008). The intent can be determined from
the express language of the release in addition to the circumstances surrounding the transaction.
Id. Although a release only operates to eliminate the claims contemplated by the parties when the
release is executed, unknown claims are not defeated by general words of release. Id. But, general
words in the release “are restrained in effect by the specific recitals contained in the document.”
Id. quoting Fuller, 371 Ill App 3d at 614.
Paragraph 4a of the settlement agreement expressly provided that plaintiff, as employee,
fully and unconditionally released “Hilco together with their current and former . . . attorneys,
insurers, and representatives . . . jointly and severally from any and all liability claims, causes of
action, charges, complaints, obligations, costs, losses, damages, injuries, attorneys’ fees, and other
legal responsibilities of any kind, nature or type, whether known or unknown, matured or
unmatured, whatsoever existing through the Effective Date.” According to the settlement, plaintiff
released Hilco’s current and former attorneys, and defendants formerly provided legal
representation to Hilco. Indeed, it was proffered that defendants previously advised Hilco
regarding real estate and other matters. In light of that prior representation, Hilco objected to
defendants continued representation of plaintiff. Furthermore, a review of the plain language of
the settlement agreement revealed a lack of an ambiguity in the terms and a lack of a dispute that
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defendants previously represented Hilco. Accordingly, the trial court properly concluded that
defendants were included in the release and the broad language of the release expressly stated it
applied to all claims, which covered the legal malpractice action.
Consideration of parol evidence regarding plaintiff’s personal review of the settlement
agreement and his exchanges with successor counsel Fitzgerald further support that plaintiff was
aware of the terms of the release and its application to defendants. Specifically, in his deposition,
plaintiff testified to being satisfied with defendant’s representation until October 2017, when it
became apparent that counsel did not have a comprehensive understanding of the NewCo
documents. In effect, plaintiff introduced Fredericks of Hilco to defendant because of defendants’
preparation of the merger documents for NewCo. A relationship was forged between Fredericks
and defendant such that defendant represented Hilco with regard to a non-compete agreement and
real estate transactions in Grand Rapids. However, when the relationship between plaintiff and
Hilco deteriorated, Hilco objected to defendant’s continued representation of plaintiff as a conflict
of interest. Consequently, plaintiff retained Fitzgerald to handle the settlement agreement.
In light of this testimony, plaintiff understood that he retained defendants to handle his
purchase of the interest in NewCo and that this work introduced defendants to Hilco for which
they performed other legal services. Plaintiff also was aware that when his relationship with Hilco
deteriorated, and they attempted to resolve their dispute, Hilco’s representatives objected to
defendant playing a role in the negotiations. Therefore, plaintiff retained Fitzgerald. Under the
circumstances, it is apparent that defendants were former attorneys of Hilco, and they were
included as parties covered by the release despite not being expressly identified by name.
Further, plaintiff testified that he read the settlement agreement, and he understood it.
Plaintiff admitted that Fitzgerald, his counsel, also read the agreement and was available to answer
any questions about the agreement. When asked, “And when you agreed to settle this with Hilco,
you understood you were fully apprised of the terms of the settlement?” plaintiff responded, “Yes.”
It is further apparent from the documentation submitted by plaintiff that he was aware of
the existence of the legal malpractice action against defendants (i.e., a known claim) prior to the
execution of the settlement agreement on February 21, 2019. On November 30, 2018, plaintiff
wrote Fitzgerald and expressed that he received “bad advice” from defendant addressing whether
he had to wait for his anniversary date to resign. Later that same day, plaintiff indicated that he
wanted to meet with defendant to discuss the representation and potential waiver of attorney fees.
Fitzgerald advised plaintiff that if he intended to pursue a claim against defendant, insurance
proceeds would cover plaintiff’s losses incurred from the advice regarding the resignation date.
On December 4, 2018, plaintiff sent Fitzgerald an e-mail advising that he had lunch with defendant,
and they discussed the “possible insurance claim.” Defendant advised plaintiff that he would reach
out to Fitzgerald and meet with his business partners. Later that day, plaintiff e-mailed additional
details of the conversation to Fitzgerald, specifically that defendant provided plaintiff with the
“wrong dates” for determining the valuation. On December 7, 2018, plaintiff e-mailed Fitzgerald
to advise that defendant formally gave his malpractice carrier notice of a possible claim.
Although the language of the release is plain and expansive, consideration of the parol
evidence via plaintiff’s deposition testimony and emails exchanged with Fitzgerald revealed that
the legal malpractice action was known to plaintiff and Fitzgerald months before the settlement
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agreement with Hilco was executed. Plaintiff testified that he read and understood the settlement
agreement and had the opportunity to question Fitzgerald about it. Nonetheless, there was no
attempt to ensure that the release would not preclude the filing of this legal malpractice action. At
the conclusion of paragraph 4b of the settlement agreement, it was expressly noted that the release
did not prevent plaintiff from filing claims pertaining to “benefits (if any) that are accrued and
vested under Hilco’s tax-qualified employee pension and welfare plans, nor any rights, if any, he
may have to unemployment insurance benefits or workers’ compensation benefits.” Thus, as the
trial court noted, there were exceptions to the release expressly “carved-out.” Despite the
exceptions, plaintiff and Fitzgerald did not request that the known legal malpractice action be
included with the exceptions. The deposition testimony of the attorneys that prepared and
participated in the drafting of the settlement agreement was not submitted in the trial court.
Therefore, it is unknown whether Fitzgerald and plaintiff discussed the import of the release on
the legal malpractice claim. But it is apparent that Hilco sought to prevent any and all future
litigation that bore a correlation to plaintiff’s employment relationship and its agents and attorneys.
Despite the plain language of the agreement, plaintiffs submit that defendants cannot take
advantage of the terms of the release because defendant violated multiple provisions of the MRPC.
But the MRPC provides:
Rule 1.0. Scope and Applicability of Rules and Commentary
(a) These are the Michigan Rules of Professional Conduct. The form of citation for
this rule is MRPC 1.0.
(b) Failure to comply with an obligation or prohibition imposed by a rule is a basis
for invoking the disciplinary process. The rules do not, however, give rise to a
cause of action for enforcement of a rule or for damages caused by failure to comply
with an obligation or prohibition imposed by a rule. In a civil or criminal action,
the admissibility of the Rules of Professional Conduct is governed by the Michigan
Rules of Evidence and other provisions of law.
The MRPC expressly provides that the violation of the rules does not give rise to a cause
of action. Additionally, the trial court declined to find that the MRPC was violated in light of the
facts that plaintiff was aware of the bad advice given by defendants and was represented by
Fitzgerald. Indeed, a cause of action does not arise from a violation of the MRPC when the plaintiff
is a sophisticated businessman who retains independent counsel to review his agreement. See
Tinsley v Yatooma, 333 Mich App 257, 265-266; 964 NW2d 45 (2020).3
Plaintiffs contend that defendants’ failure to provide consideration prevents them from
relying on the release. They also submit that it was not the intention of the drafting attorney
“Duffy” to include the legal malpractice claim in the release. As noted, plaintiffs failed to submit
3
Although plaintiffs did not dispute that Illinois law governed this transaction, they failed to cite
whether the MRPC had a commensurate counterpart and similar obligations governing licensed
attorneys in Illinois.
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legal authority in support of the consideration claim. The appellants may not merely announce a
position and leave it to this Court to discover and rationalize the basis of the claims. Bill & Dena
Brown Trust v Garcia, 312 Mich App 684, 695; 880 NW2d 269 (2015). An issue is deemed
abandoned when a party fails to cite legal authority in support of a position. Id.4 Moreover, as the
trial court noted, Hilco had an incentive to include indirect but related actors involved in plaintiff’s
employment in the release. Indeed, the goal of resolving the litigation would not be achieved if
the release only covered immediate actors to the employment dispute. Consequently, Hilco and
plaintiff, through his counsel Fitzgerald, presumably considered the number of individuals to be
governed by the release in relationship to the settlement award. Under the circumstances, the trial
court properly granted defendants’ motion for summary disposition.
Affirmed.
/s/ Sima G. Patel
/s/ Thomas C. Cameron
/s/ Anica Letica
4
Although the parties submitted that the attorneys that prepared the settlement did not intend to
release this legal malpractice action, documentary evidence supported those assertions was not
submitted in the lower court record. Additionally, the parties did not move to expand the record
on appeal. See MCR 7.216(A)(4). Accordingly, plaintiffs’ assertion is without record support.
Finally, in light of our disposition of the release issue, we do not address the issue addressing the
real party in interest. The trial court determined it was unnecessary to rule on the issue, and
plaintiffs assented to that decision. See In re Bazakis, ___ Mich App ___, ___; ___ NW2d ___
(2022) (Docket No. 358276), slip op at 10, lv pending; Nexteer Auto Corp v Mando America Corp,
314 Mich App 391, 395; 886 NW2d 906 (2016).
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