Sada Yaldo v. Goldstein Bershad & Fried Pc

STATE OF MICHIGAN
COURT OF APPEALS
SADA YALDO, UNPUBLISHED
June 11, 2015
Plaintiff-Appellant,
v No. 319720
Oakland Circuit Court
GOLDSTEIN BERSHAD & FRIED, P.C., LC No. 2013-134679-NM
Defendant/Third-Party Plaintiff-
Appellee,
and
MARTIN L. FRIED,
Defendant-Appellee,
and
YALDO LAW, P.L.L.C., and SCOTT YALDO,
Third-Party Defendants.
Before: SAAD, P.J., and M. J. KELLY and SHAPIRO, JJ.
PER CURIAM.
In this dispute over legal representation, plaintiff, Sada Yaldo, appeals by right the trial
court’s order granting the motion for summary disposition by defendants Goldstein Bershad &
Fried, P.C., and Martin L. Fried (collectively, Goldstein Bershad). Because we conclude the trial
court did not err when it dismissed Yaldo’s remaining claims, we affirm.
Yaldo first argues that the trial court erred when it dismissed her malpractice claims
under MCR 2.116(C)(8), because she properly pleaded those claims. It appears from the record,
however, that the trial court actually granted the motion for summary disposition under MCR
2.116(C)(10). The trial court in this case considered a transcript from the underlying bankruptcy
proceeding, which Goldstein Bershad attached to its supplementary brief to the motion for
summary disposition. Where a trial court considers evidence outside the pleadings, this Court
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treats a summary disposition as falling under MCR 2.116(C)(10). Steward v Panek, 251 Mich
App 546, 555; 652 NW2d 232 (2002). Therefore, this claim of error is without merit.
In any event, Yaldo also argues that the trial court erred to the extent that it dismissed her
malpractice claims under MCR 2.116(C)(10). Specifically, she maintains that the trial court
should not have limited discovery to the single transcript and then dismissed her claims on the
basis of that evidence. This Court reviews de novo a trial court’s decision on a motion for
summary disposition. Hines v Volkswagen of Am, Inc, 265 Mich. App. 432, 437; 695 NW2d 84
(2005). We review a trial court’s decision to limit discovery for an abuse of discretion.
VanVorous v Burmeister, 262 Mich. App. 467, 477; 687 NW2d 132 (2004).
When reviewing a motion for summary disposition under MCR 2.116(C)(10), this Court
must consider the record in the same manner as the trial court. Hines, 265 Mich. App. at 437. We
must consider all the pleadings and the evidence in a light most favorable to the nonmoving
party. Id. “Summary disposition is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Brown v Brown, 478 Mich. 545,
552; 739 NW2d 313 (2007). This Court has also held that summary disposition prior to the
completion of discovery may be appropriate where “further discovery does not stand a fair
chance of finding factual support for the nonmoving party.” VanVorous, 262 Mich. App. at 477.
In this case, it was Yaldo’s position that, but for the mishandling of her motion for
summary judgment by Goldstein Bershad in the bankruptcy case, her guaranty of the debt at
issue would have been discharged in bankruptcy. She further argued that discovery outside the
transcript was necessary to show “what sort of work was done on the file, what efforts were
made, whether [Goldstein Bershad] complied with the particular rules governing the profession
and meeting the standard of care.” The trial court stated that these issues were irrelevant because
the court had already dismissed her claims of breach of contract, unjust enrichment, and breach
of the rules of professional conduct under MCR 2.116(C)(8).1 The court further explained that if
the transcript demonstrated that there was no causal link between the actions taken by Goldstein
Bershad in the bankruptcy hearing and the negative outcome of that hearing, no other evidence
would be necessary.
Causation is an essential element of every malpractice claim. Manzo v Petrella, 261
Mich. App. 705, 712; 683 NW2d 699 (2004). Yaldo alleged in her complaint that Goldstein
Bershad’s failure to properly support her motion for summary judgment led to the bankruptcy
court’s judgment in favor of the lender in that case. Goldstein Bershad noted that the bankruptcy
court entered judgment on its own initiative and without giving it notice or an opportunity to
respond; that is—it was Goldstein Bershad’s position that the bankruptcy court’s decision had
nothing to do with the evidentiary support for the motion. Given these contentions, we cannot
conclude that the trial court abused its discretion by limiting discovery to the transcripts. The
limitation was reasonably calculated to allow discovery of the evidence most likely to
demonstrate the basis for the bankruptcy court’s order, which was at the center of the parties’
dispute. VanVorous, 262 Mich. App. at 477.
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The trial court’s decision to dismiss those claims is not at issue on appeal.
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We also conclude that the trial court did not err when it dismissed Yaldo’s malpractice
claims under MCR 2.116(C)(10). The lender in the bankruptcy proceeding asked the bankruptcy
court to determine that Yaldo and her husband could not discharge the debt at issue because they
made fraudulent representations in connection with the loans. Acting on Yaldo’s behalf,
Goldstein Bershad moved for summary judgment on the grounds that neither Yaldo nor her
husband ever made any representations to the lender, let alone fraudulent representations. It
supported the motion with a statement under penalty of perjury by Yaldo’s husband in which he
stated that the facts provided in the motion were true. The lender eventually responded with
documentation, which established that Yaldo and her husband had signed documents with false
representations. The transcript revealed that, after reviewing the evidence submitted by the
lender, the bankruptcy court entered summary judgment in the lender’s favor despite the fact that
the lender did not file a cross-motion for summary judgment and apparently did so without
notice to Yaldo or her lawyers.
Because the transcript showed that the bankruptcy court acted on its own initiative to
grant summary judgment to the nonmoving party and did not provide Goldstein Bershad with the
required notice and opportunity to respond, see FR Civ P 56(f), the trial court in this case did not
err when it determined that there was no factual dispute that Goldstein Bershad’s handling of the
motion for summary judgment did not proximately cause the adverse ruling. Moreover,
assuming that there was evidence that permitted an inference that Yaldo did not participate in the
fraud, the bankruptcy court’s error could have been corrected by motion or appeal after
Goldstein Bershad withdrew from representing Yaldo. That is, even if Goldstein Bershad’s
substandard handling of the motion essentially invited the trial court to sua sponte grant
summary disposition in favor of the nonmoving party without notice, the adverse ruling was in
error and could have been timely corrected. Consequently, given the evidence, the trial court did
not err when it dismissed Yaldo’s claims of malpractice premised on Goldstein Bershad’s
handling of the motion for summary judgment in the bankruptcy case. Brown, 478 Mich. at 552.
Affirmed.
/s/ Henry William Saad
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
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