Robert F Broz v. Plante & Moran Pllc

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
ROBERT F. BROZ and KIMBERLY BROZ, FOR PUBLICATION
January 9, 2020
Plaintiffs-Appellants, 9:00 a.m.
No. 340381
Otsego Circuit Court
LC No. 12-014346-NM
v
PLANTE & MORAN, PLLC,
Defendant-Appellee.
ON REMAND
Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.
GADOLA, J.
This case involves alleged accounting malpractice. When this case was last before this
Court, we affirmed the decision of the trial court granting summary disposition to defendant,
Plante & Moran, PLLC, under MCL 2.116(C)(8) and (10). Broz v Plante & Moran, PLLC, 326
Mich. App. 528; 928 NW2d 292 (2018). Thereafter, our Supreme Court considered plaintiffs’
application for leave to appeal to that Court and, in lieu of granting leave to appeal, vacated Part
II.A. of our opinion and remanded the case to us for reconsideration of the issue of professional
negligence (malpractice) in light of Cox v Flint Bd of Hosp Mgrs, 467 Mich. 1; 651 NW2d 356
(2002). We do so now, and again affirm.
I. FACTS
This case has a lengthy history and was previously before this Court in Broz v Plante &
Moran, PLLC, unpublished per curiam opinion of the Court of Appeals, issued May 17, 2016
(Docket No. 325884). In that case, we summarized the underlying facts as follows:
Robert Broz operated several businesses that provide cellular telephone
services, including RFB Cellular and Alpine PCS. He organized the businesses as
S Corporations, which provided for pass through taxation. The IRS audited the
Broz’s tax returns and issued a notice of deficiency, or 90-day letter, to them. The
IRS listed various deficiencies in the Broz’s tax payments for tax years 1996,
1998, 1999, 2000, and 2001. Plante Moran prepared the Broz’s tax returns for
each of those years. The parties’ professional relationship ended in February
2006.
After the end of the relationship, but before the IRS issued the notice of
deficiency, the Broz filed amended tax returns for years 1998-2001, each one
designated as a “protective filing” and showing a decrease in adjusted gross
income of $35,675,453. Having claimed a large net operating loss for tax year
2002, they filed the amended returns in hopes of taking advantage of the 2002
enactment of the Job Creation and Worker Assistance Act, PL 107-147, § 102(a);
116 Stat 21, which allowed taxpayers to carry back net operating losses incurred
in tax years 2001 and 2002 for five years instead of the normal two.
The Broz then sued the IRS in the United States Tax Court and disputed
the deficiencies; they alleged in relevant part that all but a nominal amount of any
tax deficiency assessed as a result of the audit would be eliminated by their 2002
net operating loss carryback. Despite raising the 2002 carryback as an issue in
their petition to the Tax Court, the Broz chose not to press that matter as part of
their case before that tribunal. Their trial lawyer explained at deposition that this
was done for strategic reasons and with the knowledge and approval of Robert
Broz.
The Broz sued Plante Moran for malpractice in 2008, but the parties
entered into a series of tolling agreements pending the resolution of the case in the
United States Tax Court. The Tax Court issued a decision in favor of the IRS on
the deficiencies on September 1, 2011, Broz v Comm’r of Internal Revenue, 137
TC 46 (U.S. Tax Ct, 2011). The Broz then filed this action on January 19, 2012.
They also appealed the decision of the Tax Court to the United States Court of
Appeals for the Sixth Circuit. While that appeal was pending, the Broz’s lawyer
attempted to fight collection efforts by the IRS by asserting that the judgment
could be reduced either by a favorable ruling from the Sixth Circuit, or by
application of the Broz’s 2002 net operating loss carryback, which they were still
pursuing with the IRS. The federal appellate court affirmed the judgment of the
Tax Court in August 2013. See Broz v Comm’r of Internal Revenue, 727 F3d 621
(CA 6, 2013). On September 16, 2014, the IRS sent the Broz a letter disallowing
the Broz’s carryback claims. The Broz’s lawyer responded with a letter stating
their disagreement and requesting an appeals conference.
Plante Moran moved for summary disposition of this case on November 5,
2014. It argued that the case must be dismissed because it was not yet ripe;
specifically, it stated that the IRS’s review process could yet determine that no
damages existed. It also argued that, by failing to assert the carryback argument
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in the United States Tax Court, the Broz caused their own losses. The trial court
agreed that the cause of action was not ripe. Although the Broz had been assessed
a tax liability, the court explained, they had not suffered any present injury
because it was possible that that liability would be offset if they prevailed in their
pending action with the IRS. On that basis, the trial court granted Plante Moran’s
motion for summary disposition under MCR 2.116(C)(4) and dismissed the case
without prejudice. [Broz, unpub op at 1-2.]
Plaintiffs, Robert F. and Kimberly Broz, appealed to this Court contending that the trial
court erred in granting summary disposition to defendant on ripeness grounds. This Court
reversed the decision of the trial court and remanded the case for further proceedings. Broz,
unpub op at 4. On remand, defendant again sought summary disposition of plaintiffs’ amended
complaint, which alleged breach of contract, professional negligence (malpractice), negligent
misrepresentation, breach of fiduciary duty, and “estoppel to mitigate and indemnity.” The trial
court granted defendant’s motion, and dismissed plaintiffs’ claim for professional negligence
(malpractice) under MCR 2.116(C)(10), while dismissing all other counts of plaintiffs’
complaint under MCR 2.116(C)(8) and (10). Plaintiffs appealed the trial court’s order to this
Court. We affirmed the decision of the trial court in Broz, 326 Mich. App. 528. Our Supreme
Court has now remanded the matter to us for reconsideration of the issue of professional
negligence (malpractice).
II. DISCUSSION
A. STANDARD OF CARE
When previously before this Court, plaintiffs contended that the trial court erred in
granting summary disposition of their claim for professional negligence (malpractice) under
MCR 2.116(C)(10). We review de novo a trial court’s decision to grant or deny summary
disposition. Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5-6; 890 NW2d 344 (2016). In so
doing, we review the entire record to determine whether the moving party was entitled to
summary disposition. Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). When
reviewing an order granting summary disposition under MCR 2.116(C)(10), this Court considers
all documentary evidence submitted by the parties in the light most favorable to the nonmoving
party. Dawoud v State Farm Mut Auto Ins Co, 317 Mich. App. 517, 520; 895 NW2d 188 (2016).
Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law. Id. We also
review de novo issues of statutory construction. Trentadue v Buckler Automatic Lawn Sprinkler
Co, 479 Mich. 378, 386; 738 NW2d 664 (2007).
In this case, the trial court found that with regard to their malpractice claim plaintiffs had
failed to present proof of the standard of care and proof that defendant had breached the standard
of care. Specifically, the trial court found that plaintiffs’ expert, Peter Oettinger, did not directly
testify or report regarding the standard of care. The trial court concluded that defendant was
therefore entitled to summary disposition of plaintiffs’ claim of accounting malpractice. On
appeal to this Court, plaintiffs contended that the trial court erroneously imposed upon them the
duty to establish the standard of care. Plaintiffs argued that accounting malpractice claims are
governed exclusively by MCL 600.2962, and that that statute does not require a plaintiff alleging
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accounting malpractice to present proof of the standard of care nor that the defendant breached
that standard. Plaintiffs further argued that although MCL 600.2912a applies to “many
professional malpractice claims,” it did not apply to accounting malpractice claims.
MCL 600.2912a provides:
(1) Subject to subsection (2), in an action alleging malpractice, the
plaintiff has the burden of proving that in light of the state of the art existing at the
time of the alleged malpractice:
(a) The defendant, if a general practitioner, failed to provide the plaintiff
the recognized standard of acceptable professional practice or care in the
community in which the defendant practices or in a similar community, and that
as a proximate result of the defendant failing to provide that standard, the plaintiff
suffered an injury.
(b) The defendant, if a specialist, failed to provide the recognized
standard of practice or care within that specialty as reasonably applied in light of
the facilities available in the community or other facilities reasonably available
under the circumstances, and as a proximate result of the defendant failing to
provide that standard, the plaintiff suffered an injury.
(2) In an action alleging medical malpractice, the plaintiff has the burden
of proving that he or she suffered an injury that more probably than not was
proximately caused by the negligence of the defendant or defendants. In an action
alleging medical malpractice, the plaintiff cannot recover for loss of an
opportunity to survive or an opportunity to achieve a better result unless the
opportunity was greater than 50%.
In Broz, 326 Mich. App. at 540, we noted that the language of MCL 600.2912a(1) does not
specifically state that it applies to accounting malpractice, but provides that “in an action alleging
malpractice, the plaintiff has the burden of proving” that the defendant “failed to provide the
plaintiff the recognized standard of acceptable professional practice or care.” Giving this
language its plain and ordinary meaning, we observed that the statute indicates that the
Legislature meant it to apply to an action alleging malpractice “without exception.” Broz, 326
Mich. App. at 540. We therefore concluded that MCL 600.2912a imposed upon plaintiffs in this
case the burden of proving that defendant failed to provide plaintiffs with the recognized
standard of acceptable professional practice or care.1 Broz, 326 Mich. App. at 540. We
1
This conclusion is in accord with earlier unpublished opinions of this Court, see e.g. Banker &
Brisebois Co v Maddox, unpublished per curiam opinion of the Court of Appeals, issued April
29, 2014 (Docket No. 310993), p 8-9 (both MCL 600.2912a and MCL 600.2962 apply in an
accounting malpractice case); Ruby & Assoc, PC v George W. Smith & Co, unpublished per
curiam opinion of the Court of Appeals, issued October 4, 2011 (Docket No. 297266), p 8, lv app
den 493 Mich. 854 (2012) (to establish accounting malpractice the plaintiff must prove in
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further observed that “[m]embers of a state-licensed profession, such as accountants, are subject
to liability for malpractice under the rules of the common law as articulated by MCL 600.2912.”
Id. at 536.
In remanding this case to us, our Supreme Court has reminded us of Cox, 467 Mich. 1, in
which the Court held that MCL 600.2912a does not apply to a malpractice action brought against
nurses. In Cox, the Court explained that the Legislature’s use in the statute of the terms “general
practitioner” and “specialist,” as those terms are ordinarily defined, refer to persons engaged in
the practice of medicine and that therefore, for MCL 600.2912a to apply, a person must either be
a medical practitioner or engaged in the practice of medicine. Cox, 467 Mich. at 19. The Court
concluded that because nurses do not engage in the practice of medicine, a malpractice action
against a nurse does not fall within MCL 600.2912a. Cox, 467 Mich. at 20. Applying the
analysis set forth in Cox, we conclude in this case that because accountants, like nurses, are not
engaged in the practice of medicine, MCL 600.2912a does not apply to accountant malpractice.
In Cox, our Supreme Court concluded that because MCL 600.2912a does not apply to
nurses, the common law standard of care applied, stating that “[a]bsent a statutory standard, the
common law standard of care applies.” Cox, 467 Mich. at 5. In Cox, the Court observed that
there was no action for malpractice against nurses at common law. Id. at 20. The Court further
observed that although the Legislature had created a malpractice cause of action against nurses
by enacting MCL 600.5838a, in doing so the Legislature had not enacted an applicable standard
of care. Id. Absent a mandated standard of care for nurses in the statute applicable to nursing
malpractice, the Court concluded that the common law standard of care applies in malpractice
actions against nurses. Id. The Court then surveyed cases discussing the standard of care at
common law and concluded that under the common law the applicable standard of care for
nurses is “the skill and care ordinarily possessed and exercised by practitioners of the profession
in the same or similar localities.” Id. at 20-22. Thus, although neither the statute nor the
common law identifies a standard of care for nurses, our Supreme Court did not conclude, as
urged by plaintiffs in this case with regard to accountant malpractice, that breach of the standard
of care was not a requirement of demonstrating nursing malpractice. Rather, our Supreme Court
concluded that the standard of care applicable in other professions at common law also applied to
nurses. See Cox, 467 Mich. at 20-22.
We therefore likewise turn to the common law to ascertain the standard of care applicable
to accountants. Accounting is a profession traditionally subject to common-law malpractice
liability. Local 1064, RWDSU AFL-CIO v Ernst & Young, 449 Mich. 322, 333; 535 NW2d 187
(1995). As such, accountants are subject to the common-law principles articulated in
malpractice actions generally. See id. In addition, as we observed in our previous opinion, as
accordance with MCL 600.2912a that the defendant breached the standard of care). Unpublished
decisions of this Court are not precedentially binding, MCR 7.215(C)(1), but may be considered
instructive or persuasive. Sau-Tuk Indus, Inc v Allegan Co, 316 Mich. App. 122, 137; 892 NW2d
33 (2016).
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members of a state-licensed profession, accountants are subject to liability for malpractice under
common law in accordance with MCL 600.2912. Broz, 326 Mich. App. at 536. However, we
find no published Michigan case identifying the standard of care for accountants at common law.
We therefore adopt the conclusion reached by our Supreme Court in Cox after examining the
standard of care applied in other cases at common law, and adopt the conclusion reached by the
Court in Cox that at common law the standard of care is “the skill and care ordinarily possessed
and exercised by practitioners of the profession in the same or similar localities.” 2 Cox, 467
Mich. at 21-22. Compare Simko v Blake, 448 Mich. 648, 656; 5321 NW2d 842 (1995) (discussing
attorney’s common-law standard of care).
Having determined the applicable standard of care, we return to plaintiffs’ contention that
the trial court erroneously imposed upon them the duty to establish the standard of care in
asserting their malpractice claim and to establish that defendant did not meet that standard of
care. Plaintiffs contend that accounting malpractice claims are governed exclusively by MCL
600.2962, which does not articulate that proof of the standard of care is required. Plaintiffs
argue on remand that therefore, under MCL 600.2962, the only proof required “against an
accountant for malpractice is a negligent act.” We disagree.
Professional malpractice arises from the breach of a duty owed by one rendering
professional services to a person who has contracted for those services. Saur v Probes, 190 Mich
App 636, 638; 476 NW2d 496 (1991). A professional malpractice claim is a tort claim
predicated on the failure of the defendant to exercise the requisite professional skill. Stewart v
Rudner, 349 Mich. 459, 468; 84 NW2d 816 (1957). As noted, accounting is a profession
traditionally subject to common-law malpractice liability. Local 1064, 449 Mich. at 333. In
addition, MCL 600.2912 provides that members of a state-licensed profession, such as
accountants, are subject to liability for malpractice under the rules of the common law as
articulated by that statute. See Sam v Balardo, 411 Mich. 405, 425-426; 308 NW2d 142 (1981).
(“[L]iability for malpractice of members of state-licensed professions is to be determined by
resort to the common law. Accordingly, the provisions of the RJA do not purport to create or
limit the cause of action of malpractice to something other than what was recognized at common
law.” Id. (footnotes omitted)). MCL 600.2912 provides:
(1) A civil action for malpractice may be maintained against any person
professing or holding himself out to be a member of a state licensed profession.
The rules of the common law applicable to actions against members of a state
2
In accord Midwest Memorial Group LLC v Citigroup Global Markets Inc, unpublished per
curiam opinion of the Court of Appeals, issued September 17, 2015 ) (Docket No 322338), p 4,
lv app den 500 Mich. 876 (2016), reconsideration den 500 Mich. 948 (2017) (a plaintiff alleging
accounting malpractice must demonstrate that the accountant failed to satisfy the common law
requisite standard of care, which is that an accountant must act with “the same degree of
diligence and skill as would an accountant of ordinary learning, judgment or skill, in the same or
similar community, under the same or similar circumstances.”)
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licensed profession, for malpractice, are applicable against any person who holds
himself out to be a member of a state licensed profession.
(2) Malpractice may be given in evidence in defense to any action for
services rendered by the member of a state licensed profession, or person holding
himself out to be a member of a state licensed profession.
MCL 600.2962(1) further clarifies the boundaries of liability for accounting malpractice.
At the times relevant to this action,3 that statute provided in pertinent part:
(1) This section applies to an action for professional malpractice against a
certified public accountant. A certified public accountant is liable for civil
damages in connection with public accounting services performed by the certified
public accountant only in 1 of the following situations:
(a) A negligent act, omission, decision, or other conduct [of] the certified public
accountant if the claimant is the certified public accountant’s client.
(b) An act, omission, decision, or conduct of the certified public accountant that
constitutes fraud or an intentional misrepresentation.
(c) A negligent act, omission, decision, or other conduct of the certified public
accountant if the certified public accountant was informed in writing by the client
at the time of engagement that a primary intent of the client was for the
professional public accounting services to benefit or influence the person bringing
the action for civil damages. For purposes of this subdivision, the certified public
accountant shall identify in writing to the client each person, generic group, or
class description that the certified public accountant intends to have rely on the
services. The certified public accountant may be held liable only to each
identified person, generic group, or class description. The certified public
accountant’s written identification shall include each person, generic group, or
class description identified by the client as being benefited or influenced.
Neither MCL 600.2912 nor MCL 600.2962 identify a standard of care applicable to
accountants in an action alleging malpractice. As discussed, MCL 600.5838a, which created a
cause of action for nursing malpractice, similarly does not identify a standard of care applicable
to nurses. That being the case, we are guided by our Supreme Court’s conclusion in Cox that
“[a]bsent a statutory standard, the common law standard of care applies.” Cox, 467 Mich. at 5.
See also, Saur, 190 Mich. App. at 638 (the standard of care owed to a client in a professional
relationship may be imposed by statute, common law, or in accordance with a professional code
of responsibility). We therefore hold that plaintiffs were required to demonstrate the standard of
3
MCL 600.2962 has since been amended by 2012 PA 268, effective July 3, 2012. The
malpractice alleged in this case occurred not later than 2006.
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care and that defendant breached that standard of care to survive summary disposition of their
claim of professional negligence (malpractice).
B. PLAINTIFFS’ EXPERT TESTIMONY
Having concluded that plaintiffs were required to demonstrate the standard of care and
that defendant breached that standard of care to demonstrate accounting malpractice, we again
conclude that plaintiffs failed to do so in this case. Generally, to state a claim for malpractice, a
plaintiff must allege (1) the existence of a professional relationship, (2) negligence in the
performance of the duties within that relationship, (3) proximate cause, and (4) the fact and
extent of the client’s injury. See Simko, 448 Mich. at 655 (defining legal malpractice). This
Court has also stated that “[a] malpractice claim requires proof of simple negligence based on a
breach of a professional standard of care.” Phillips v Mazda Motor Mfg (USA) Corp, 204 Mich
App 401, 409; 516 NW2d 502 (1994), abrogated on other grounds Ormsby v Capital Welding,
Inc, 471 Mich. 45; 684 NW2d 320 (2004). Thus, the element of negligence encompasses breach
of the standard of care. See Moning v Alfono, 400 Mich. 425, 437-438; 254 NW2d 759 (1977).
To establish the applicable standard of care and that the professional breached the
standard of care, the plaintiff usually is required to introduce expert testimony unless the lack of
professional care is so obvious as to be within the common knowledge and experience of an
ordinary layman. Elher v Misra, 499 Mich. 11, 21; 878 NW2d 790 (2016). “Expert testimony is
necessary to establish the standard of care because the ordinary layperson is not equipped by
common knowledge and experience to judge the skill and competence of the service and
determine whether it meets the standard of practice in the community.” Decker v Rochowiak,
287 Mich. App. 666, 686; 791 NW2d 507 (2010) (quotation marks and citation omitted). When a
plaintiff fails to present expert testimony regarding the standard of care, a malpractice claim is
subject to dismissal. See Locke v Pachtman, 446 Mich. 216, 225-226; 521 NW2d 786 (1994)
(discussing medical malpractice). We therefore again conclude that the trial court did not err in
its finding that expert testimony was required in this case to meet that burden, given the complex
accounting transactions involved. See Elher, 499 Mich. at 21.
Having so concluded, we also again conclude that the trial court did not err in finding that
plaintiffs in this case failed to do so. Plaintiffs’ expert, Peter Oettinger, prepared an extensive
report detailing the structure of plaintiffs’ businesses, how that structure established by defendant
resulted in plaintiffs incurring tax obligations, and how the businesses could have been structured
differently to avoid the tax liability. Oettinger’s report, however, does not set forth the standard
of care nor demonstrate that defendant breached that standard.
In determining whether Oettinger’s report and deposition testimony adequately
established the standard of care, the trial court looked for guidance to our Supreme Court’s
decision in Locke, 446 Mich. 216, involving alleged medical malpractice. There, our Supreme
Court upheld the trial court’s determination that the plaintiff’s expert witness had failed to
establish a standard of care, and therefore had failed to establish a prima facie case of
malpractice. In this case, the trial court similarly determined that plaintiffs’ expert failed to state
an opinion regarding the standard of care and whether defendant had breached that standard.
Relying upon Locke, the trial court in this case reasoned:
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Mr. Oettinger’s report does state what “typically” occurs, arguably setting
some basis for what other accountants might have done that Defendant did not.
Further, Mr. Oettinger characterizes the Defendant’s actions as “highly
questionable.” However, like the Locke case, these statements do not rise to the
level of clearly identifying a standard of care. It is true that Mr. Oettinger stated
what typically is done in a timing sense of accounting actions, but he failed to
specifically identify what is standard practice or whether the actions and advice
the Defendant gave actually breached those professional standards. . . . It is clear
from Mr. Oettinger’s report that because of Defendant’s advice the tax returns
resulted in expensive deficiencies. According to Mr. Oettinger the business
structure was overly complex and could have been more simple. However,
pointing to damages resulting from Defendant’s advice does not specifically show
the Defendant committed malpractice. Advice from attorneys, doctors, and
accountants can be unsatisfactory in that it does not produce the desired results,
yet still be within the standard of care. Regardless of Mr. Oettinger’s lack of
specific language detailing negligence or malpractice, his report does not clearly
identify what exactly Defendant should have done based on accounting standards
of care or how the Defendant’s advice breached the standard.
Again, we agree that Oettinger’s report does not identify the standard of care nor
specifically state that defendant violated the standard of care. And although Oettinger stated in
his deposition that he had applied the standard of care articulated by the AICPA in preparing his
report, he did not state what that standard is nor whether defendant breached that standard. We
also again conclude that Oettinger’s affidavit does not supply the necessary information
regarding the standard of care. In our prior opinion, we discussed that after defendant moved for
summary disposition, plaintiffs submitted to the trial court an affidavit entitled “Declaration of
Peter Oettinger, CPA,” attempting to clarify Oettinger’s testimony regarding the standard of
care. In the affidavit, Oettinger states, in pertinent part:
5. This declaration is made in response to Defendant’s suggestion that Defendant
has not violated “a duty or standard of care.” That statement is false. Defendant
has clearly violated their duty to Plaintiffs and did provide bad accounting advice.
6. The tax planning and tax advice provided by Defendant to the Broz’ and their
companies were wrong. Their bad advice directly resulted in the IRS disallowing
millions of dollars of deductions that the Broz’ took on their personal returns.
***
12. To be crystal clear, my report and my testimony is that Defendant committed
accounting malpractice and violated its duties to the Broz’. Whether or not my
report used some particular “buzzword,” 1 the net effect is the same. Plante &
Moran clearly and unequivocally violated its duty of care to Robert and Kimberly
Broz.
1
Notwithstanding Defendant’s suggestion to the contrary, my report indicates that
I used the standard of care as issued by the AICPA. Subsequent research
confirms that Michigan has adopted the AICPA standard. (Michigan Department
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of Licensing and Regulatory Affairs Accountant Rule 338.5102 which states “(1)
The following standards are adopted by reference: (a) The standards issued by
the American Institute of CPAs (AICPA), 220 Leigh Farm Road, Durham, North
Carolina, 27707, set forth in the publication ‘AICPA Professional Standards.’)
The trial court declined to consider the affidavit, finding it a contradiction of Oettinger’s
prior testimony. On appeal to this Court, plaintiffs contended that Oettinger’s affidavit was
sufficient to clarify his testimony on the standard of care, and that the trial court erred in
declining to consider the affidavit. In our previous opinion, we observed that “a witness is bound
by his or her deposition testimony, and that testimony cannot be contradicted by affidavit in an
attempt to defeat a motion for summary disposition.” Broz, 326 Mich. App. at 303, quoting Casey
v Auto Owners Ins Co, 273 Mich. App. 388, 396; 729 NW2d 277 (2007). We also observed that
although a witness is bound by his or her deposition testimony, an affidavit that clarifies or
expands upon previous testimony is not prohibited from consideration. See Wallad v Access
BIDCO, Inc, 236 Mich. App. 303, 312-313; 600 NW2d 664 (1999).
In this case, we again conclude that a review of Oettinger’s report and deposition
testimony demonstrates that the affidavit is consistent with his testimony, and in fact, the trial
court noted in its opinion that the affidavit clarified Oettinger’s testimony. The trial court
therefore was obligated to consider the affidavit. MCR 2.116(G)(5). We also again conclude,
however, that the affidavit in this case did not establish the standard of care nor the alleged
breach of that standard. Stating generally that defendant provided bad accounting advice and
that the tax advice was wrong, as Oettinger did in his affidavit, neither states a standard of care
nor explains how defendant breached that standard. Likewise, citing generally to a set of
standards for accounting adopted by the State of Michigan does nothing to delineate what
particular standard defendant might have breached or how defendant might have breached it.
Although all documentary evidence must be considered in the light most favorable to plaintiffs
as the nonmoving party, Dawoud, 317 Mich. App. at 520, here, plaintiffs failed to establish a
question of material fact regarding whether defendant breached the standard of care because they
failed to present expert testimony on the standard of care and whether defendant breached that
standard. The trial court therefore did not err in granting defendant summary disposition of
plaintiffs’ claim for accounting malpractice.
Affirmed.
/s/ Michael F. Gadola
/s/ Mark T. Boonstra
/s/ Kathleen Jansen
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