Peterson v. SIMASKO

579 N.W.2d 469 (1998) 228 Mich. App. 707

Laurie PETERSON, Plaintiff-Appellant,
v.
SIMASKO, SIMASKO & SIMASKO, PC, and Patrick M. Simasko, Defendants-Appellees.

Docket No. 194651.

Court of Appeals of Michigan.

Submitted October 14, 1997, at Lansing. Decided March 20, 1998, at 9:10 a.m. Released for Publication June 29, 1998.

Thomas A. Stotz, Roseville, for Plaintiff-Appellant.

John Perrin, St. Clair Shores, for Defendants-Appellees.

Before HOLBROOK, P.J., and MICHAEL J. KELLY and GRIBBS, JJ.

PER CURIAM.

In this appeal as of right, plaintiff seeks the reinstatement of her legal malpractice action after it was summarily dismissed on defendants' motion pursuant to MCR 2.116(C)(10). We reverse and remand for trial. This case is being decided without oral argument pursuant to MCR 7.214(E).

To establish the existence of legal malpractice, a plaintiff must show: "(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 N.W.2d 842 (1995).

Here, plaintiff's malpractice action is premised on a claim that defendants failed to act within the scope of the duty owed to her when they failed to place a lien on her former husband's worker's compensation claim before the claim was paid. Plaintiff asserts that such action was necessary to secure payment to her of that portion of the compensation award to which she was entitled under the terms of the property settlement provision of a judgment of divorce. In light of the nature of plaintiff's claim, the question before the trial court was whether an attorney of ordinary learning, judgment, or skill, under the circumstances presented in this case, would have placed a lien on the settlement before it was paid to plaintiff's former husband in October 1992. Simko, supra at 655-656, 532 N.W.2d 842.

The trial court erroneously concluded that Petrie v. Petrie, 41 Mich.App. 80, 199 N.W.2d 673 (1972), did not provide authority to include within the duty defendants owed plaintiff an obligation to impress a lien for payment of the property settlement against the worker's compensation award. Petrie expressly provides that financial obligations imposed on a party by a judgment of divorce are not debts for purposes of M.C.L. § 418.821; M.S.A. § 17.237(821) and, therefore, payment of such obligations may be enforced by impressment of a lien against any worker's compensation award paid to the obligated party. Petrie, supra at 82-84, 199 N.W.2d 673. Accordingly, an attorney of ordinary learning, judgment, or skill, under the circumstances presented in this case, would have placed a lien on the settlement before it was paid to plaintiff's former husband. Simko, supra at 655-656, 532 N.W.2d 842; see also Teodorescu v. Bushnell, Gage, Reizen & Byington (On Remand), 201 Mich.App. 260, 264-265, 506 N.W.2d 275 (1993).

Reversed and remanded. We do not retain jurisdiction.