Barkovic v. Zemke
| Decision Date | 16 September 2021 |
| Docket Number | 355425 |
| Parties | TIMOTHY BARKOVIC, Plaintiff-Appellant, v. RYAN ZEMKE, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court LC No. 2019-004756-NM
Before: Cameron, P.J., and Jansen and Gleicher, JJ.
Plaintiff appeals by leave granted the trial court opinion and order granting defendant summary disposition under MCR 2.116(C)(7) and denying plaintiff's motion for leave to file an amended complaint, in this legal malpractice matter. Plaintiff argues on appeal that the trial court erred in granting defendant summary disposition of his claims for breach of fiduciary duty and civil conspiracy because these claims were not subsumed by his claim for legal malpractice and therefore not time-barred under the two-year statute of limitations, and that the trial court abused its discretion by denying plaintiff leave to file an amended complaint. We affirm.
On March 20, 2017, defendant was appointed as advisory counsel to plaintiff, who was representing himself in two criminal cases in the 41-B District Court before former Judge Linda Davis.[1] Defendant appeared in court the next day as advisory counsel for plaintiff's jury trial, and at that time, plaintiff had already been sentenced to 30 days incarceration for contempt of court. After repeated warnings, plaintiff was held in contempt again, and sentenced to another 30 days. After which, defendant was appointed plaintiff's attorney of record. It does not appear from the record that plaintiff's jury trial continued. Rather, on March 27, 2017, plaintiff pleaded guilty and was sentenced, thus disposing of both cases and ending defendant's appointment as counsel. Their attorney-client relationship did not resume. Defendant was a member of the board of directors for a Michigan nonprofit corporation, Families Against Narcotics (FAN), at the time of plaintiff's cases.
On November 22, 2019, plaintiff filed a complaint against defendant alleging legal malpractice in Count I, breach of fiduciary duty in Count II, and civil conspiracy in Count III. Plaintiff alleged that defendant, Judge Davis, and former Macomb County Prosecutor Eric Smith all sat on the board of directors of FAN at the time of plaintiff's criminal cases, and that Smith made contributions to FAN from illegally maintained bank accounts. Defendant's failure to disclose this information, as well as alleged conflicts of interest he had based on his associations with the 41-B District Court, Judge Davis, and Smith, were the bases of plaintiff's claims. In response, defendant moved for summary disposition under MCR 2.116(C)(7), alleging that plaintiff's claims for breach of fiduciary duty and civil conspiracy were subsumed by his claim for legal malpractice, and all counts were time-barred under the two-year statute of limitations applicable to legal malpractice. Defendant also moved for summary disposition under MCR 2.116(C)(8) for failure to state a claim for breach of fiduciary duty and civil conspiracy. Plaintiff moved to amend the complaint, conceding that his claim for legal malpractice was time-barred, and otherwise attempting to avoid summary disposition. The trial court granted defendant summary disposition under MCR 2.116(C)(7) because plaintiff's legal malpractice claim was time-barred under the statute of limitations, and his claims for breach of fiduciary duty and civil conspiracy were subsumed by his legal malpractice claim, and therefore also time-barred. The court denied defendant's motion for summary disposition under MCR 2.116(C)(8) as moot, and denied plaintiff's motion to amend the complaint because amendment would be futile. Plaintiff now appeals.[2]
Defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(8). This Court reviews a motion for summary disposition de novo, Gorman v American Honda Motor Co, Inc, 302 Mich.App. 113, 115; 839 N.W.2d 223 (2013), as well as the applicability of a statute of limitations, Dep't of Environmental Quality v Gomez, 318 Mich.App. 1, 21; 896 N.W.2d 39 (2016). If a claim is time-barred because of the applicable statute of limitations, summary disposition is appropriate under MCR 2.116(C)(7). The burden is on the defendant relying on a statute of limitations defense to prove facts that bring the case within the statute. Dep't of Environmental Quality, 318 Mich.App. at 21. This Court must accept all well-pleaded factual allegations as true, and construe them in favor of the plaintiff, unless other evidence contradicts them, when reviewing a motion under MCR 2.116(C)(7). Dextrom v Wexford Co, 287 Mich.App. 406, 428; 789 N.W.2d 211 (2010). Id. at 429 (footnotes omitted). If a question of fact does exist to the extent that development of the facts could provide a basis for recovery, dismissal is inappropriate. Id.
A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the pleadings alone. Lawrence v Burdi, 314 Mich.App. 203, 211; 886 N.W.2d 748 (2016). When deciding a motion under this subrule, all well-pleaded factual allegations are accepted as true, construed in the light most favorable to the nonmoving party. Dalley v Dykema Gossett, 287 Mich.App. 296, 304-305; 788 N.W.2d 679 (2010). Summary disposition under this subrule "should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery." Id. at 305 (quotation marks and citation omitted).
Plaintiff argues that the trial court erred in granting defendant summary disposition of his claim for breach of fiduciary duty because it was separate and distinct from his claim for legal malpractice, defendant's actions were outside and apart from the attorney-client relationship, and the complaint sufficiently pleaded that defendant had a more culpable state of mind than the negligence required for a legal malpractice claim. We disagree.
When determining whether a claim is duplicative in a legal malpractice action, the complaint must be read as a whole to determine the type of interest that is allegedly harmed, and how the claim occurred. Aldred v O'Hara-Bruce, 184 Mich.App. 488, 490; 458 N.W.2d 671 (1990). When a plaintiff alleges negligent legal representation, the claim is legal malpractice. Id. However, when the interest involved in a claim for damages is different from the interest involved in a legal malpractice claim, there may be separate claims. Brownell v Garber, 199 Mich.App. 519, 532; 503 N.W.2d 81 (1993).
The elements of a legal malpractice claim are (1) the existence of an attorney-client relationship, (2) negligent legal representation of the plaintiff, (3) the negligence proximately caused 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). Relief for breach of a fiduciary duty may be sought when a "position of influence has been acquired and abused, or when confidence has been reposed and betrayed." Vincencio v Ramirez, 211 Mich.App. 501, 508; 536 N.W.2d 280 (1995). A claim for breach of fiduciary duty differs from a claim for legal malpractice because "[t]he conduct required to constitute a breach of fiduciary duty requires a more culpable state of mind than the negligence required for malpractice." Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich.App. 39, 47; 698 N.W.2d 900 (2005). The breach of fiduciary duty claim must be viewed within the context of the entire complaint to ascertain the gravamen of the action. Aldred, 184 Mich.App. at 490-491.
The trial court did not err by concluding that plaintiff's claim for breach of fiduciary duty was subsumed by his claim for legal malpractice. The complaint included several pages of "Common Allegations," which plaintiff incorporated by reference under Count II. Moreover, the allegations supporting his claim for breach of fiduciary duty mirrored those for legal malpractice. Plaintiff alleged legal malpractice based on conflicts of interest, the failure to communicate, and the failure to act with competence, reasonable diligence, skill, and judgment. The conflicts of interest were defendant's representation of the Drug Court, Smith's donations to FAN while defendant was a director, defendant's pending application for magistrate, and defendant and Smith holding board positions on FAN at the same time. Plaintiff alleged that defendant failed to disclose these alleged conflicts of interest, as required by their attorney-client relationship.
For Count II, plaintiff stated that "[t]he existence of an attorney-client relationship establishes a per se rule that Defendant owed a fiduciary duty to Plaintiff herein." Plaintiff alleged that defendant had several conflicts of interests, and defendant's failure to disclose them was a breach of his fiduciary duty. These conflicts of interest were: defendant's failure to disclose the donations made by Smith to FAN; defendant's conflicting fiduciary duties to the 41-B District Court; defendant, Smith, and Judge Davis holding board positions on FAN at the same time; and defendant's pending application for magistrate.
Although one set of facts may give rise to more than one cause of action, Freiburger v State of Mich. Dep't of Mental Health, 161 Mich.App. 316,...
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