Samir Warda v. Howard T Linden

STATE OF MICHIGAN
COURT OF APPEALS
SAMIR WARDA and SUNDUS WARDA, UNPUBLISHED
May 15, 2018
Plaintiffs-Appellants,
v No. 336918
Oakland Circuit Court
HOWARD T. LINDEN, and HOWARD T. LC No. 2016-154887-NM
LINDEN, PC,
Defendants-Appellees.
SAMIR WARDA,
Plaintiff-Appellant,
and
DAVID FINDLING, as receiver to SAMIR
WARDA,
Appellant,
v No. 338074
Oakland Circuit Court
FIEGER & FIEGER, PC (also known as FIEGER LC No. 2016-152174-NM
LAW and FIEGER FIEGER KENNEY &
HARRINGTON, PC) and JAMES J.
HARRINGTON, IV,
Defendants-Appellees.
CAROL A MORRIS, as special fiduciary for
SAMIR WARDA ESTATE, SAMIR WARDA,
SUNDUS WARDA,
Plaintiffs-Appellants,
v No. 338075
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Oakland Circuit Court
FIEGER & FIEGER, PC (also known as FIEGER LC No. 2016-156579-NM
LAW and FIEGER FIEGER KENNEY &
HARRINGTON, PC) and JAMES J.
HARRINGTON, IV, HOWARD T. LINDEN, and
HOWARD T. LINDEN, PC,
Defendants-Appellees.
Before: O’CONNELL, P.J., and HOEKSTRA and K. F. KELLY, JJ.
PER CURIAM.
In Docket No. 336918, plaintiffs, Samir Warda (“Samir”) and Sundus Warda (“Sundus”),
appeal as of right a January 5, 2017 order entered by Oakland Circuit Court Judge Martha D.
Anderson, which granted summary disposition in favor of defendants, Howard T. Linden and
Howard T. Linden, PC (collectively “Linden defendants”), in plaintiffs’ legal malpractice action.
In Docket No. 338074, Samir appeals of right an April 24, 2017 order entered by
Oakland Circuit Court Judge Shalina D. Kumar, which granted summary disposition in favor of
defendants, James J. Harrington IV, Fieger & Fieger PC (a/k/a Fieger Law and Fieger Fieger
Kenney & Harrington PC) (collectively “Fieger defendants”), in Samir’s legal malpractice
action.
Finally, in Docket No. 338075, Carol Morris, as special fiduciary of Samir’s estate,
Samir, and Sundus, appeals the April 24, 2017 order, which also granted summary disposition in
favor of the Fieger and the Linden defendants.
Finding no errors warranting reversal, we affirm.
I. BASIC FACTS
Samir was injured when he was struck by a vehicle in September 2012. He hired the
Fieger defendants to sue his insurer, QBE Insurance Company, in a first-party no-fault action.
While that action was pending, his sister, Sundus was appointed his conservator and was
substituted as the named plaintiff in the action. The Linden defendants handled the probate
matter. The first-party claim settled for $490,000, which included a waiver of future no-fault
benefits. The Fieger defendants warned Sundus that she needed to handle the settlement
proceeds with care and make sure to pay Samir’s medical expenses.
The Fieger defendants also pursued a third-party no-fault action against the driver, with
Sundus named as conservator. The Fieger defendants obtained a default against the driver but
withdrew from representation after the attorney-client relationship broke down.
Sundus did not properly manage the settlement proceeds and was suspended as
conservator. The probate court ordered both Sundus and Samir to pay a $300,000 judgment in
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favor of the case management company and, when they failed to do so, ordered them jailed for
contempt.
A. THE FIRST MALPRACTICE SUIT
On March 24, 2016, Samir, individually, filed a malpractice lawsuit against the Fieger
defendants, claiming that Fieger: (1) improperly advised Samir to settle the first-party action; (2)
failed to timely pursue the at-fault driver; (3) failed to investigate the extent of Samir’s injuries;
(4) recommended a case management services company that over-charged; (5) recommended the
Linden defendants who also over-charged; and (6) failed to ensure that Sundus would properly
distribute the settlement money to ensure that outstanding financial obligations were fully
satisfied.
Citing Maki v Coen, 318 Mich. App. 532; 899 NW2d 111 (2017), Judge Kumar concluded
that dismissal was appropriate because there was no attorney-client relationship between Samir
and the Fieger defendants and, as a result, Samir was not the real party in interest. Judge Kumar
also concluded that any attempt to amend the complaint to include a claim as a third-party
beneficiary would have been futile because Samir was not the sole beneficiary of the legal
services provided.
B. THE SECOND MALPRACTICE ACTION
On September 2, 2016, Samir (individually and by his next friend Sundus) and Sundus,
filed a legal malpractice lawsuit against the Linden defendants arising out of the first-party no-
fault case. The allegations against the Linden defendants were similar to those alleged against
the Fieger defendants in the first suit. The complaint alleged that the Linden defendants: (1)
failed to advise plaintiffs not to resolve the first-party claim that included a waiver of future
benefits; (2) failed to fully investigate Samir’s injuries; (3) overcharged for its services; and (4)
failed to ensure that the settlement funds were properly distributed.
And, while the complaint referenced the pending action before Judge Kumar, it was
nevertheless assigned to Judge Anderson. Judge Anderson denied plaintiffs’ motion to re-assign
the case and, instead, ordered that the parties bring the matter before Judge Kumar.
In the meantime, the Linden defendants filed a motion for summary disposition pursuant
to MCR 2.116(C)(8). They argued that representation in the probate matter was with Sundus in
her capacity as conservator and that Samir’s claims had to be dismissed because Linden owed no
duty to Samir. The Linden defendants further argued that Sundus failed to plead facts to support
a claim for professional malpractice and provided only conclusory allegations in the complaint.
A December 16, 2016 scheduling order set a motion hearing for January 18, 2017, and
required plaintiffs’ response to be filed on or before December 29, 2016.
On January 5, 2017, Judge Anderson issued an order granting Linden’s motion for
summary disposition. In a footnote, Judge Anderson noted: “Plaintiffs failed to file a Response
in Opposition to Defendants’ Motion for Summary Disposition, despite the Court Order
requiring Plaintiffs to do so on or before December 29, 2016. See Order dated December 15,
2016.” After setting forth the elements for stating a valid cause of action for legal malpractice,
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Judge Anderson concluded: “having reviewed Defendants’ motion, brief in support and
documentation attached thereto, as well as Plaintiffs’ Complaint . . . Plaintiffs failed to state a
claim upon which relief can be granted for legal malpractice pursuant to Simko [v Blake, 448
Mich. 648; 532 NW2d 842 (1995)] and Coleman [v Gurwin, 443 Mich. 59, 63; 503 NW2d 435
(1993)].
On January 6, 2017, plaintiffs filed a motion to strike the opinion and order granting
defendants’ motion for summary disposition and/or relief from judgment and/or reconsideration.
Plaintiffs explained that Judge Kumar granted the motion to re-assign the case before Judge
Anderson ruled on the motion for summary disposition. Plaintiffs claimed that they contacted
Judge Anderson’s staff to advise that a responsive brief would not be filed and that there was
never any indication that Judge Anderson would proceed with the motion.
Judge Anderson denied plaintiffs’ motion “for lack of merit on the grounds presented.”
C. THE THIRD MALPRACTICE SUIT
On December 28, 2016, while the above cases were pending, Morris, as special fiduciary
for Samir’s estate, Samir, and Sundus, filed a legal malpractice action against both the Fieger
defendants and the Linden defendants. Although the case was originally assigned to Judge Leo
Bowman, he re-assigned it to Judge Kumar. The allegations in the complaint were essentially
identical to those made in the first and second malpractice actions.
In an April 24, 2017 opinion and order, Judge Kumar granted defendants summary
disposition on all of the claims in the first and third lawsuits. She agreed that the complaint had
to be dismissed as to the Linden defendants pursuant to MCR 2.116(C)(6) because the parties
and allegations in the third action were substantially the same as in the second action. As with
the first lawsuit, she concluded that neither Samir nor his estate had an attorney-client
relationship with the Linden defendants or the Fieger defendants and, therefore, neither Samir
nor the estate could state a claim for legal malpractice. Judge Kumar added that, even if
Sundus’s claim against the Linden defendants was not barred by the second action, her claims
were barred under MCR 2.116(C)(7) because the statute of limitations had expired.
Judge Kumar noted that the only viable claim was Sundus’s allegations against the Fieger
defendants in the third malpractice action. Although the Fieger defendants had argued that
summary disposition was appropriate under (C)(8), Judge Kumar concluded that the motion,
which included documentary evidence, was also properly analyzed pursuant to (C)(10). She
concluded that Sundus failed to state a valid claim because, although Sundus had an attorney-
client relationship with the Fieger Defendants, she did not allege (nor could she prove) how the
Fieger Defendants breached any duty owed to her or how the alleged breaches were the
proximate cause of her injuries.
II. JUDGE ANDERSON’S FAILURE TO RE-ASSIGN THE CASE
In Docket No. 336918, Samir and Sundus argue that Judge Anderson erred when she
denied their motion to transfer the case to Judge Kumar. We disagree.
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A trial court’s decision refusing to re-assign a case to a different judge is reviewed for an
abuse of discretion. Salvadore v Connor, 87 Mich. App. 664, 671; 276 NW2d 458 (1978). The
abuse of discretion standard “acknowledges that there will be circumstances in which there will
be no single correct outcome; rather, there will be more than one reasonable and principled
outcome.” Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d (2006). An abuse of
discretion “occurs only when the trial court’s decision is outside the range of reasonable and
principled outcomes.” Augustine v Allstate Ins Co, 292 Mich. App. 408, 419; 807 NW2d 77
(2011).
While Judge Kumar agreed that it made sense that both cases should be before her, she
did not immediately enter an order to that effect because of controversy over the extent of the
transfer and consolidation. The Linden defendants’ attorney believed the transfer and
consolidation was for discovery purposes, only. The parties could not agree on an order and,
while the matter was still being resolved, Judge Anderson granted summary disposition in the
second suit.
“The rule is well established that courts speak through their judgments and decrees, not
their oral statements or written opinions.” Tiedman v Tiedman, 400 Mich. 571, 576; 255 NW2d
632 (1977). The “harm” to plaintiffs was not the result of Judge Anderson’s perfectly acceptable
decision to defer to the receiving judge; instead, plaintiffs take issue with the consequence of
failing to enter an order prior to Judge Anderson’s summary disposition decision. The fault
cannot lie with Judge Anderson, as she did not abuse her discretion in denying the motion to re-
assign without prejudice in order to allow Judge Kumar to consider and decide the motion.
That Judge Bowman immediately granted the motion to transfer when the third action
was initially assigned to him is of no moment. Again, the abuse of discretion standard
“acknowledges that there will be circumstances in which there will be no single correct outcome;
rather, there will be more than one reasonable and principled outcome.” Maldonado, 476 Mich.
at 388.
III. JUDGE ANDERSON’S DENIAL OF RELIEF FROM JUDGMENT
In Docket No. 336918, Samir and Sundus argue that Judge Anderson erred in granting
summary disposition and further erred in failing to set aside the judgment in light of the unique
procedural posture of the case. We disagree.
An appellate court “reviews the grant or denial of summary disposition de novo to
determine if the moving party is entitled to judgment as a matter of law. In making this
determination, the Court reviews the entire record to determine whether defendant was entitled to
summary disposition.” Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). Judge
Anderson granted the Linden defendants’ motion for summary disposition pursuant to MCR
2.116(C)(8).
Summary disposition is proper under MCR 2.116(C)(8) if the opposing party has
failed to state a claim on which relief can be granted. A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint
and allows consideration of only the pleadings. For purposes of reviewing a
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motion for summary disposition under MCR 2.116(C)(8), all well-pleaded factual
allegations are accepted as true and construed in a light most favorable to the
nonmovant. A motion under MCR 2.116(C)(8) may only be granted where the
claims alleged are so clearly unenforceable as a matter of law that no factual
development could possibly justify recovery. [Mays v Snyder, ___ Mich App
___; ___ NW2d ___; (Docket No. 335555, issued January 25, 2018), slip op, pp
23-24 (citations and quotation marks omitted).]
To the extent plaintiffs’ argue that the trial court committed error by adhering to the
scheduling order, the trial court has discretion with regard to the enforcement of scheduling
orders. Edi Holdings LLC v Lear Corp, 469 Mich. 1021; 678 NW2d 440 (2004). As such, an
appellate court reviews for an abuse of discretion a trial court’s decision to decline to accept
motions, pleadings and documents filed after the deadline set forth in its scheduling order.
Kemerko Clawson LLC v RXIV Inc, 269 Mich. App. 347, 349; 711 NW2d 801 (2005).
Likewise, Judge Anderson’s decision denying plaintiffs’ motion for reconsideration is
reviewed for an abuse of discretion. Ensink v Mecosta Co Gen Hosp, 262 Mich. App. 518, 540;
687 NW2d 143 (2004). The moving party seeking reconsideration “must demonstrate a palpable
error by which the court and the parties have been misled and show that a different disposition of
the motion must result from correction of the error.” MCR. 2.119(F)(3).
Plaintiffs argue that “[c]learly, there was a mistake, inadvertence and excusable neglect
by Plaintiffs’ counsel and perhaps the court staff in expecting that Judge Anderson would not
rule on a pending motion for summary disposition in light of the granting of the motion to
transfer the case to Judge Kumar.” Their primary argument is that Judge Anderson abused her
discretion when she denied their motion for reconsideration.
However, MCR 2.119(F)(3) provides that the party seeking reconsideration “must
demonstrate a palpable error by which the court and the parties have been misled and show that
a different disposition of the motion must result from correction of the error.” MCR.
2.119(F)(3). “‘Palpable’ is defined as ‘[e]asily perceptible, plain, obvious, readily visible,
noticeable, patent, distinct, manifest.’ ” Luckow v Luckow, 291 Mich. App. 417, 426; 805 NW2d
453 (2011). Under the court rule, the trial court has “considerable discretion in granting
reconsideration to correct mistakes, to preserve judicial economy, and to minimize costs to the
parties.” Sanders v McLaren-Macomb, ___ Mich App ___; ___ NW2d ___ (Docket No. 336409,
issued February 27, 2018), slip op, p 5. The court rule does not speak of counsel’s inadvertence
or excusable neglect; it speaks of error.
The fact remains that Judge Kumar never entered an order transferring the case because
the parties could not agree on an order. Again, a court speaks through its written orders.
Tiedman, 400 Mich. at 576. Because an order to reassign the case to Judge Kumar had not been
entered, Judge Anderson retained the case and there was no justification for ignoring her briefing
schedule. Pursuant to MCR 2.401(B)(2)(a)(ii), a trial court may establish times for events the
court deems appropriate, including the filing of motions. MCR 2.401(D) further provides that a
“court may direct the attorneys to furnish trial briefs as to any or all of the issues involved in the
action.” The trial court has discretion regarding enforcement of its scheduling orders and is
justified in refusing to consider pleadings or actions beyond the set time frame. Edi Holdings,
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469 Mich. 1021; Prussing v Gen Motors Corp, 403 Mich. 366, 370; 269 NW2d 181 (1978);
Flanagin v Kalkaska Co Rd Comm, 319 Mich. App. 633, 640; 904 NW2d 427 (2017). Otherwise,
“scheduling orders would quickly become meaningless.” People v Grove, 455 Mich. 439, 469;
566 NW2d 547, 560 (1997) superseded by statute as stated in People v Franklin, 491 Mich. 916;
813 NW2d 285 (2012); see also Kemerko, 269 Mich. App. at 350-351. Moreover, a trial court
does not abuse its discretion by failing to consider the availability of alternative remedies. Edi
Holdings, 469 Mich. at 1021.
Having concluded that Judge Anderson did not err in denying the motion for
reconsideration, the issue becomes whether she erred in granting summary disposition in the first
place.
It is true that Judge Anderson’s opinion lacks any real discussion or application of the
facts to the law. It is necessary, then, to examine the two bases for the Linden defendants’
request for summary disposition. The first was that there was no duty owed to Samir. The
second was that Sundus’s allegations were too conclusory to state a claim for professional
malpractice.
Our Supreme Court has held that:
In order to state an action for legal malpractice, the plaintiff has the burden
of adequately alleging the following elements:
(1) the existence of an attorney-client relationship;
(2) negligence in the legal representation of the plaintiff;
(3) that the negligence was a proximate cause of an injury; and
(4) the fact and extent of the injury alleged. [Simko v Blake, 448 Mich. 648, 655;
532 NW2d 842, 846 (1995), quoting Coleman v Gurwin, 443 Mich. 59, 63, 503
NW2d 435 (1993).]
As to the first element, “[i]n legal malpractice actions, a duty exists, as a matter of law, if there is
an attorney-client relationship.” Simko, 448 Mich. at 655. Judge Anderson issued her opinion
and order just days before this Court’s decision in Maki. The Maki decision confirms that
summary disposition was appropriate as to Samir because there was no attorney-client
relationship between Samir and the Linden defendants and, therefore, no duty owed.
In Maki, the family of a child born with a congenital heart defect brought a malpractice
action against certain medical care providers that resulted in settlement. The settlement provided
for an immediate cash payment as well as regular payments from a structured annuity. The
child’s mother was the conservator. The mother failed to account for the annual funds during the
conservatorship, allegedly on the advice of her attorney. The child’s father sued the attorney and
others, alleging that the attorneys owed the child a duty of care as their client and that they
violated that duty in connection with the legal services afforded the mother during the
conservatorship. Maki, 318 Mich. App. at 535-536. The trial court concluded that only the
mother, as conservator, had standing to sue the former attorneys and granted summary
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disposition in favor of the defendants. Id. at 537. On appeal, this Court rejected the argument
that the estate was the real party in interest either as the actual client or as a third-party
beneficiary. Id. at 539.
Citing § 700.5423(2)(z) of the Estates and Protected Individuals Code (EPIC), MCL
700.1101 et seq., and MCR 5.117(A), this Court held that “an attorney hired to perform legal
services for a conservator represents the conservator and does not have an attorney-client
relationship with the estate.” Maki, 318 Mich. App. at 540. Under MCL 700.5423(2)(z), a
conservator may:
[e]mploy an attorney to perform necessary legal services or to advise or assist the
conservator in the performance of the conservator’s administrative duties, even if
the attorney is associated with the conservator, and act without independent
investigation upon the attorney’s recommendation. An attorney employed under
this subdivision shall receive reasonable compensation for his or her employment.
The Court noted that “[t]he statute clarifies that the attorney performs legal services for the
conservator and that the attorney advises or assists the conservator in the performance of his or
her duties. This language focuses solely on the services and assistance provided to the
conservator, which establishes that the attorney represents the conservator in the performance of
his or her duties.” Maki, 318 Mich. App. at 541. The Court repeated: “the plain language of the
statute establishes that an attorney hired by a conservator represents the conservator, and the
attorney does not have an attorney-client relationship with the estate. Id.
MCR 5.117(A) provides that “[a]n attorney filing an appearance on behalf of a fiduciary
shall represent the fiduciary.” The Maki Court concluded that “[t]he plain language of this court
rule is clear that an attorney appearing in the probate court on behalf of a conservator represents
the conservator rather than the estate.” Maki, 318 Mich. App. at 541. For a third time, this Court
concluded: “that the plain language of the relevant statute and court rule establishes that an
attorney employed by the conservator represents the conservator and not the estate.” Id. at 541-
542.
This Court acknowledged that there is an exception to the general rule that an attorney is
only liable to his client. For example, “beneficiaries named in a will may bring a tort-based
cause of action against the attorney who drafted the will for negligent breach of the standard of
care owed to the beneficiary by nature of the beneficiary’s third-party beneficiary status.” Maki,
318 Mich. App. at 543, quoting Mieras v DeBona, 452 Mich. 278; 550 NW2d 202 (1996).
However, the Court added that the duty owed to named beneficiaries for wills and other estate
planning documents was “narrow” and that the plaintiff “cites no caselaw extending this third-
party beneficiary exception to anyone other than the named beneficiaries of a testamentary
instrument that does not effectuate the intent of the testator.” Maki, 318 Mich. App. at 543.
Moreover, any benefit to a third-party beneficiation had to be direct, and not incidental or
indirect. Id. In fact, even “knowledge of a benefit to a third party is not enough” and the
plaintiff’s failure to plead status as a third-party beneficiary of a contract between the attorney
and the mother “is fatal to its third-party beneficiary theory of malpractice liability.” Id. 544.
Because Samir was not a named beneficiary of a testamentary instrument, the exception does not
apply.
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In light of the Maki decision, Samir was not a real party in interest and summary
disposition for failure to state a claim was appropriate.
In contrast, Sundus had an established attorney-client relationship with the Linden
defendants and Maki was not an impediment to her claims. However, the Linden defendants had
argued that the allegations in her complaint were so conclusory that they failed to state a claim
for which relief may be granted.
In their brief on appeal, plaintiffs write: “As stated within Plaintiff’s [sic] response to
these defendants [sic] motion filed in the Special Fiduciary case (#2016-156579-NM) and in the
Receiver’s motion for relief there are sufficient factual developments that justify relief on behalf
of the Wardas.” They also complain “nor was there an opportunity to amend pursuant to MCR
2.118(A)(2).” These cursory statements do not adequately brief the subject and we would be
justified in declining to consider the issue. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich. App.
379, 406; 651 NW2d 756 (2002) (“Generally, where a party fails to brief the merits of an
allegation of error, the issue is deemed abandoned by this Court.”)
In any event, plaintiffs’ allegations failed to state a valid claim. In Kloian v Schwartz,
272 Mich. App. 232, 240; 725 NW2d 671 (2006), this Court addressed a similar issue. The
plaintiff sued her attorneys for their representation in a legal malpractice suit and a separate
contract fee dispute. One of the issues on appeal was whether the trial court erred in granting
summary disposition for failure to state a claim. This Court concluded that it did not, even
though the plaintiff’s complaint adequately stated allegations setting forth negligence in the
representation. “Although some of plaintiff’s factual allegations are conclusory, they identify
several specific instances of alleged negligence, including allegations that defendants failed to
notify plaintiff of a motion to appoint a guardian ad litem, refused to file a motion to determine
the balance due on a land contract, refused to argue a motion to add necessary parties, and
refused to file a motion to eliminate claims of exemplary damages.” Id. at 240. But the Court
added that the complaint was deficient in establishing how the negligence was the proximate
cause of the plaintiff’s injury as well as the extent of her injury. Id. The Kloian Court explained:
With respect to the third and fourth elements of a legal malpractice claim,
however, plaintiff’s conclusory allegations are insufficient to state a cause of
action. Plaintiff was required to allege that defendants’ negligence proximately
caused an injury, as well as to state the extent of that injury. With respect to these
elements, plaintiff’s complaint states:
As a result of the violation of the standard of care described above
in [the Washtenaw County case] and [the Wayne County case], Plaintiff
Kloian has been damaged directly and proximately in his peace of mind,
property, standing in the community, standing in the Courts and
impairment of choses in action. He has incurred the following items of
damage:
(a) Damage to his property and his ability to generate income.
(b) Attorneys’ fees.
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(c) Lost income.
(d) Mental anguish and emotional distress.
(e) Humiliation, mortification, shock and fright.
This conclusory paragraph, unsupported by factual allegations, is insufficient to
satisfy the proximate-cause or injury elements of a legal malpractice action.
Plaintiff failed to include factual allegations regarding how the specific instances
of alleged malpractice caused the alleged injuries. Plaintiff’s complaint is silent
regarding the effect, if any, of the alleged instances of negligence on the outcome
or resolution of the underlying Washtenaw County case. A mere statement of a
pleader’s conclusions, unsupported by allegations of fact, will not suffice to state
a cause of action. Summary disposition was properly granted under MCR
2.116(C)(8). [Kloian, 272 Mich. App. at 240-241 (quotation marks and citation
omitted).]
Sundus failed to plead facts to support a claim for professional malpractice and provided
only conclusory allegations in the complaint. For example, she claimed that she was
overcharged, but does not claim that she paid more than was owed. She also alleged that the
Linden defendants caused her to be jailed for contempt of court, but failed to allege any facts
suggesting how Linden caused the incarceration. Instead of asking for an opportunity to amend
and instead of filing a responsive brief to the Linden defendants’ motion for summary
disposition, plaintiffs relied on their inadequate complaint, which was deficient in asserting a
valid claim for professional malpractice.
IV. JUDGE KUMAR’S ORDER GRANTING SUMMARY DISPOSITION
In Docket Nos. 338074 and 338075, the various plaintiffs argue that Judge Kumar erred
in granting summary disposition. Judge Kumar dismissed Samir’s claims and those of his estate
in the first and third malpractice suits because neither Samir nor the estate was the real party in
interest. Our Court has recently stated:
We review de novo a motion for summary disposition. A motion for
summary disposition asserting a real-party-in-interest argument falls under either
MCR 2.116(C)(8) or (10) , depending on the pleadings and other circumstances of
the case. This case presented the legal issue of whether an attorney hired by a
conservator represents the conservator or the estate. Accordingly, summary
disposition was properly considered under MCR 2.116(C)(8). MCR 2.116(C)(8)
tests the legal sufficiency of the claim on the pleadings alone to determine
whether the plaintiff has stated a claim on which relief may be granted. A motion
under MCR 2.116(C)(8) may be granted only where the claims alleged are so
clearly unenforceable as a matter of law that no factual development could
possibly justify recovery. All well-pleaded factual allegations are accepted as true
and construed in a light most favorable to the nonmovant. However, it is
insufficient to allege unsupported legal conclusions. [Maki, 318 Mich. App. at 538
(internal quotation marks and citations omitted).]
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After discussing Maki, Judge Kumar noted:
[N]either Samir Warda nor his estate had an attorney-client relationship
with the Linden Defendants or with the Fieger Defendants at the time of the
alleged malpractice. Plaintiffs’ allegations of malpractice, which relate to
settlement of the no fault action, distribution of those proceeds, representation in
the probate proceedings. and prosecution of the third-party negligence action, all
occurred after Sundus Warda was appointed as conservator for Samir Warda.
Thus, neither Samir Warda nor his estate is the real party in interest in the First
Malpractice Action or in the Third Malpractice Action and neither can state a
claim for legal malpractice against the Linden Defendants or the Fieger
Defendants.
Moreover, it would be futile to allow Plaintiffs to amend their complaint
in either action to allege a third-party beneficiary exception because there is no
precedent extending this exception to anyone other than the named beneficiaries
of a testamentary instrument. Maki, slip op at 6. The Linden Defendants and the
Fieger Defendants’ ”mere knowledge” that their services might benefit Samir
Warda is not enough to make him a third-party beneficiary. Id. As in Beaty, 456
Mich. at 259-260, Samir Warda was not the sole and direct beneficiary of legal
services provided by the Linden Defendants and the Fieger Defendants to Sundus
Warda because there were creditors who also stood to benefit from the settlement
proceeds in the no fault action.
Samir Warda and his estate’s claims against the Linden Defendants and
the Fieger Defendants in both the First Malpractice Action and in the Third
Malpractice Action are dismissed because they had no attorney-client relationship
with the Linden Defendants or the Fieger Defendants at the time of the alleged
malpractice and, thus, they are not the real parties in interest. The only proper
plaintiff is Sundus Warda in the Third Malpractice Action. Sundus Warda asserts
her claims through Carol A. Morris.
Judge Kumar correctly concluded that neither Samir nor his estate enjoyed an attorney-
client relationship with the Fieger or Linden defendants. As discussed above, Maki clearly
provides that “an attorney hired to perform legal services for a conservator represents the
conservator and does not have an attorney-client relationship with the estate.” Maki, 318 Mich
App at 540.
Having fully disposed of the second malpractice suit and most of the remaining claims in
the first and third lawsuits, Judge Kumar concluded that the only remaining claim was Sundus’s
against the Fieger defendants in the third malpractice action. Treating the Fieger defendants’
motion as being brought pursuant to MCR 2.116(C)(10). A (C)(10) motion tests the factual
sufficiency of a claim. Maiden, 461 Mich. at 120. An appellate court reviews such a motion “by
considering the pleadings, admissions, and other evidence submitted by the parties in the light
most favorable to the nonmoving party. Summary disposition is appropriate if there is no
genuine issue regarding any material fact and the moving party is entitled to judgment as a
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matter of law.” Latham v Barton Malow Co, 480 Mich. 105, 111; 746 NW2d 868 (2008)
(footnotes omitted).
Judge Kumar concluded:
Sundus Warda has not stated a claim for legal malpractice against the
Fieger Defendants and, even if she had, she could not prove such a claim because
there are no genuine issue of material fact. Although Sundus Warda had an
attorney-client relationship with the Fieger Defendants, she does not allege (nor
could she prove) how the Fieger Defendants breached any duty owed to her.
There is no dispute that Sundus Warda was present at the facilitation sessions in
the no fault action and that she agreed to settle that case by executing the
settlement agreement, which clearly stated seven times that it included a waiver of
future no fault benefits. Sundus Warda does not allege that the Fieger Defendants
threatened or coerced her into settling her claims or left her with no other
reasonable choice but to settle. Instead, Sundus Warda alleges that the settlement
amount was “deficient.” While Sundus Warda may have buyer’s remorse about
the amount of her settlement, that cannot be the basis for this Court finding that
the Fieger Defendants failed to use reasonable skill, care, discretion and judgment
in representing Sundus Warda. Moreover, once the case was settled, the Fieger
Defendants provided Sundus Warda with a letter stating how the settlement funds
would be distributed and that the funds should be used to pay Samir Warda’s
outstanding and future medical bills. Sundus Warda acknowledged receipt of this
letter and received the settlement funds, yet she failed to use the settlement funds
for their stated purpose. Instead, she dissipated those funds for personal use,
including making a down payment on a house.
Additionally, although Sundus Warda alleges that the Fieger Defendants
did not “timely pursue” the at fault driver and owner of the vehicle, the
documents attached to the parties’ briefs and public records reflect that the Fieger
Defendants filed the third-party negligence action well within the statute of
limitations and secured a default against the defendant. The fact that the Fieger
Defendants did not obtain a default judgment and begin collection actions before
withdrawing from the case does not mean they failed to timely pursue the claims;
they clearly did timely pursue the claims. Sundus Warda also makes the
conclusory allegation that the Fieger Defendants failed to pursue “applicable
insurance coverage.” While unclear, to the extent Sundus Warda is referring to
claim for uninsured or underinsured benefits in the no fault action or in the third-
party negligence action, Sundus Warda does not dispute that Samir Warda was
not entitled to such benefits under the terms of the applicable insurance policy.
Finally, other than her conclusory and unsupported allegations that the
Fieger Defendants “engage[d]” the Linden Defendants and the case management
company or that they were “agents” of the Fieger Defendants, Sundus Warda does
not allege how the Fieger Defendants could control or otherwise be responsible
for the Linden Defendants and the case management company allegedly
overcharging Sundus Warda for their services.
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Even if Sundus Warda had properly alleged that the Fieger Defendants
breached a duty owed to her, she cannot allege (or prove) proximate cause in this
case. Sundus Warda contends that the Fieger Defendants caused her to be unable
to pay Samir Warda’s medical bills, to be overcharged for case management and
probate services, to be subject to a judgment in probate court, and to be
incarcerated in jail. However, nothing in the complaint explain[s] how any action
by the Fieger Defendants resulted in Sundus Warda being sued, being
incarcerated, or being held in contempt. As set forth above, Sundus Warda agreed
to a settlement and to distribution of those funds to pay for Samir Warda’s
medical bills and other litigation -related expenses. She does not dispute that she
received the funds, but failed to use them for their intended purpose. Her own
decision to squander the settlement proceeds on personal expense and failure to
pay creditors resulted in the judgment in probate court and her incarceration.
For these reasons, this Court finds that Sundus Warda’s claim for legal
malpractice against the Fieger Defendants should be dismissed.
While an attorney is “obligated to use reasonable skill, care, discretion and judgment in
representing a client,” “mere errors in judgment by a lawyer are generally not grounds for a
malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and
diligence.” Id. at 656, 658. Therefore, “[w]here an attorney acts in good faith and in honest
belief that his acts and omissions are well founded in law and are in the best interest of his client,
he is not answerable for mere errors in judgment.” Id. at 658.
Once again, plaintiffs’ brief is woefully inadequate and we would be justified in declining
to address this particular claim of error. Yee, 251 Mich. App. at 406; Plaintiffs devote a
substantial amount of their brief to the “real party in interest” issue to the exclusion of the
remainder of Judge Kumar’s opinion. Plaintiffs argue only that “[i]t is not an error of judgment
to inform clients that first party benefits have a policy limit of $500,000. That’s just pure
malpractice.” and “Defendants were not knowledgeable regarding the lack of caps on policy
limits on first party benefits associated with injuries from a motor vehicle accident, or merely
intentionally deceived the clients to accomplish a settlement and a fee.” Plaintiffs fail to address
the Fieger defendants’ claim that the settlement was recommended based on the insurance
company’s threat to file suit and rescind the policy due to allegations of fraud. Additionally,
although plaintiffs argue that summary disposition was premature, they do nothing to indicate
how additional discovery could have assisted their case.
Finally, regarding plaintiffs’ claim that the trial court erred by refusing to substitute the
special fiduciary as the plaintiff prior to entering summary disposition in defendants’ favor, we
decline to consider the issue as insufficiently briefed. See Yee, 251 Mich. App. at 406.
In conclusion, Judge Kumar did not err in dismissing Samir’s and his estate’s claims
against the Linden and Fieger defendants in both the first and third malpractice actions because
there was no attorney-client relationship at the time of the alleged malpractice and neither Samir
nor his estate was the real party in interest. As to Sundus’s claims against the Fieger defendants
in the third action, Judge Kumar did not err in concluding that Sundus failed to state a claim for
legal malpractice against the Fieger defendants as the allegations in her complaint were
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conclusory and did not satisfy her obligation of demonstrating that the alleged instances of
negligence were the proximate cause of her injuries.
V. JUDGE KUMAR’S FINDING REGARDING THE STATUTE OF LIMITATIONS
In Docket Nos. 338074 and 338075, plaintiffs argue that Judge Kumar erred in
concluding that the statute of limitations had expired as to the Linden defendants.
As it relates to the Linden defendants, plaintiffs’ brief focuses entirely on Judge Kumar’s
finding that plaintiffs’ claim was barred by the two-year limitations period. Plaintiffs barely
acknowledge that the primary reason Judge Kumar dismissed their claims against the Linden
defendants in the third suit was because of the second lawsuit between the same parties and
raising the same allegations.
This Court finds that the Plaintiffs in the Third Malpractice Action are
substantially the same as the Plaintiffs in the Second Malpractice Action, and they
have alleged an identical claim of legal malpractice against the Linden
Defendants in both actions. Plaintiffs appealed the Court’s final order in the
Second Malpractice Action and, therefore, Plaintiffs’ allegations and request for
relief against the Linden Defendants must be addressed by the Court of Appeals
in that pending appeal and not by this Court in a subsequent suit. Thus, summary
disposition under MCR 2.116(C)(6) is proper, and Plaintiffs’ claims against the
Linden Defendants in the Third Malpractice Action are dismissed.
Only later did Judge Kumar provide an alternative basis for granting summary disposition
based on the statute of limitations. Judge Kumar explained:
Even if Sundus Warda’s claims against the Linden Defendants in the Third
Malpractice Action were not barred by MCR 2.116(C)(6), they would be barred
by MCR 2.116(C)(7) because she filed her complaint after expiration of the
applicable statute of limitations. Sundus Warda retained the Linden Defendants to
represent her as conservator of Samir Warda’s Estate in the probate proceedings.
The Linden Defendants served Sundus Warda in a professional capacity until she
terminated the professional relationship in a letter dated September 3, 2014. Thus,
Sundus Warda had until September 3, 2016 to file a complaint for legal
malpractice against the Linden Defendants. Sundus Warda filed her complaint in
the Third Malpractice Action on December 28, 2016, after expiration of the
statute of limitations.
Plaintiffs allege that the statute of limitations was tolled because Samir
Warda was insane at the time of injury under MCL 600.5851 and because of
various procedural matters in the probate proceedings. However, at the time of the
alleged malpractice, the Linden Defendants had an attorney-client relationship
with Sundus Warda, and not Samir Warda or his estate. There are no allegations
that Sundus Warda was ever insane or otherwise mentally incompetent and,
therefore, the statute of Limitations for her legal malpractice claim was never
tolled. Thus, Sundus Warda’s claims against the Linden Defendants in the Third
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Malpractice Action are barred by the statute of limitations and dismissed.
[Emphasis added.]
“A legal malpractice claim must be brought within two years of the date the claim
accrues, or within six months after the plaintiff discovers or should have discovered the existence
of the claim, whichever is later.” Kloian, 272 Mich. App. at 237. MCL 600.5838(1) provides:
[A] claim based on the malpractice of a person who is, or holds himself or herself
out to be, a member of a state licensed profession accrues at the time that person
discontinues serving the plaintiff in a professional or pseudoprofessional capacity
as to the matters out of which the claim for malpractice arose, regardless of the
time the plaintiff discovers or otherwise has knowledge of the claim.
A lawyer discontinues servicing a client when he is relieved of the obligation by the client or the
court, or when he completes a specific legal service he was retained to perform. Balcom v
Zambon, 254 Mich. App. 470, 484; 658 NW2d 156 (2002).
Plaintiffs claim that the statute of limitations was tolled under MCL 600.5851(1), which
provides, in relevant part:
if the person first entitled to make an entry or bring an action under this act is
under 18 years of age or insane at the time the claim accrues, the person or those
claiming under the person shall have 1 year after the disability is removed through
death or otherwise, to make the entry or bring the action although the period of
limitations has run.
However, as previously discussed and in keeping with Maki, the Linden defendants only had a
legal relationship with Sundus. Because she was the one with the right to bring the action and
never claimed that she lacked mental capacity to bring the claim, the statute of limitations did not
toll. The “disability, the infancy or insanity must exist at the time the claim accrues.” MCL
600.5851(3). The claim accrued on September 3, 2014 when Sundus fired the Linden defendants
and expired two years later on September 3, 2016.
Affirmed. Having fully prevailed on appeal, taxable costs are awarded to all appellees
under MCR 7.219.
/s/ Peter D. O'Connell
/s/ Joel P. Hoekstra
/s/ Kirsten Frank Kelly
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