Barnard v. Dilley

134 Mich. App. 375 (1984) 350 N.W.2d 887

BARNARD
v.
DILLEY

Docket No. 67219.

Michigan Court of Appeals.

Decided May 1, 1984.

Story & Stafford, P.C. (by Vittorio E. Porco), for plaintiff.

Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendants on appeal.

Before: MacKENZIE, P.J., and J.H. GILLIS and T.C. MEGARGLE,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from a grant of an accelerated judgment on her claims against defendants. Plaintiff claims that the trial judge improperly applied the statute of limitations for legal malpractice, MCL 600.5805(4); MSA 27A.5805(4), to her claims rather than statutes governing complaints alleging breach of contract or general negligence.

Plaintiff hired defendant Dilley and the law firm of which he was a member to act as her attorney in a lawsuit brought against her by Ethel and Dorothy Hartman. At a scheduled deposition, plaintiff and defendant Dilley had a serious disagreement which resulted in Dilley's withdrawing as plaintiff's attorney a few days later. The suit against plaintiff was ultimately dismissed.

In her first complaint, plaintiff alleged legal malpractice. In her first amended complaint, plaintiff alleged that she contacted defendant Dilley and "requested that he defend her" against the claim brought by the Hartmans. She and defendant Dilley then "entered into a contractual agreement in which [he] agreed to represent [her] in the aforementioned lawsuit". Defendant Dilley and the attorney for the Hartmans signed a stipulation providing that the discovery depositions of the Hartmans and of plaintiff would be taken on April 19, 1978. When she arrived at the deposition, defendant Dilley insisted that plaintiff sign a letter authorizing the release of a tape to the Hartmans in connection with the lawsuit. Plaintiff refused to sign the letter. Plaintiff claimed that defendant Dilley "breached his contract with plaintiff on April 19, 1978, when he refused to take the depositions in pursuance with the contractual agreement with his client, Martha Barnard, contrary to his signed stipulation, and in defiance of the order of Judge Simhauser".

The trial judge (in this case) determined that plaintiff's claim was one sounding in malpractice and not in contract. The type of interest allegedly harmed is the focal point in determining which limitation period controls. Adkins v Annapolis Hospital, 116 Mich. App. 558, 563; 323 NW2d 482 (1982). The applicable period of limitation depends upon the theory actually pled when the same set of facts can support either of two distinct causes of action. Wilkerson v Carlo, 101 Mich. App. 629, 631-632; 300 NW2d 658 (1980).

In her first amended complaint, plaintiff alleged only that a contract to represent her in a specific action was made between her and defendant Dilley. This contract was not a "special agreement" as that term was used in Stewart v Rudner, 349 Mich. 459, 468; 84 NW2d 816 (1957). It was not a contract to perform a specific act, but one to exercise appropriate legal skill in providing representation in a lawsuit. Her claim is that damages flowed not from his failure to represent her, but from his failure to represent her adequately. This is a claim grounded on malpractice and malpractice only.

Plaintiff also claimed that defendant Dilley was liable to her based on a general theory of negligence. This claim was properly rejected by the trial court. To establish a tort, one must first establish a duty to the claimant imposed on the alleged tortfeasor. The only claim of duty contained in plaintiff's first amended complaint arises out of the attorney-client relationship between plaintiff and defendant Dilley. Where the alleged duty arises out of such a relationship, the tort claim is one for malpractice and malpractice only.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.