Bass v. Combs, Docket No. 201367

• Decision Date: 25 January 2000
• Docket Number: Docket No. 201367,Docket No. 213889.
• Citation: 238 Mich. App. 16,604 N.W.2d 727
• Parties: Ann BASS, Plaintiff-Appellant, v. Scott E. COMBS and Woll, Crowley, Berman, Olsman & Nolan, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

604 N.W.2d 727

238 Mich. App. 16

Ann BASS, Plaintiff-Appellant, v. Scott E. COMBS and Woll, Crowley, Berman, Olsman & Nolan, P.C., Defendants-Appellees.

Docket Nos. 201367, 213889.

Court of Appeals of Michigan.

Submitted May 4, 1999, at Detroit.

Decided October 8, 1999, at 9:05 a.m.

Released for Publication January 25, 2000.

Sheldon Halpern, Detroit, for Ann Bass.

Plunkett & Cooney, P.C. (by Christine D. Oldani, Patrick M. Barrett, and Michael P. Ashcraft, Jr.), Detroit, for Scott E. Combs.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Dale J. McLellan, Barbara H. Goldman, and J. Mark Cooney), Southfield, for Woll, Crowley, Berman, Olsman & Nolan, P.C.

Before: GAGE, P.J., and SMOLENSKI and ZAHRA, JJ.

PER CURIAM.

In Docket No. 201367, plaintiff appeals by leave granted a Wayne Circuit Court order granting defendants' motions to change venue from Wayne County to Oakland County. In Docket No. 213889, plaintiff appeals as of right an Oakland Circuit Court order dismissing the case with prejudice on the basis of plaintiff's failure to comply with the court's discovery orders. The appeals were consolidated. We affirm.

On August 21, 1996, plaintiff filed the instant legal malpractice action in the Wayne Circuit Court against Scott E. Combs and Woll, Crowley, Berman, Olsman & Nolan, P.C. Plaintiff had retained defendants to represent her in a wrongful discharge action against Jostens, Incorporated, Jostens Learning Corporation, and James Dredge. In November 1992, defendants filed plaintiff's underlying wrongful discharge action in Wayne County. In December 1992, plaintiff's action was removed to the United States District Court, Eastern District of Michigan, Southern Division. According to plaintiff, Jostens, Inc., and Dredge were subsequently dismissed from the case because defendants failed to properly serve them, and defendants failed to inform her of these dismissals. Plaintiff also alleged that defendants failed to timely object to a United States magistrate's recommendation that plaintiff's case should be dismissed. Plaintiff further asserted that the United States District Court ultimately dismissed her case with prejudice because defendants failed to provide responses to interrogatories and requests to produce as ordered and because defendants failed to appear and failed to advise plaintiff to appear at a scheduled deposition. Defendants sought and obtained a change of venue transferring plaintiff's instant malpractice claim from Wayne County to Oakland County. The Oakland Circuit Court eventually dismissed plaintiff's claim with prejudice on the basis of plaintiff's repeated discovery violations.

I

Plaintiff first contends that the Wayne Circuit Court erred in transferring venue to Oakland County. We review a trial court's decision concerning a motion for a change of venue to determine whether it was clearly erroneous. Huhn v. DMI, Inc. (On Remand), 215 Mich.App. 17,18, 544 N.W.2d 719 (1996).

Plaintiff's action is one for legal malpractice, which is a tort. Coleman v. Gurwin, 443 Mich. 59, 62, 503 N.W.2d 435 (1993). In tort actions, venue is controlled by M.C.L. § 600.1629(1); MSA 27A.1629(1). This subsection provides in relevant part as follows:

(1) Subject to subsection (2), in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, all of the following apply:

(a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:

(i) The defendant resides, has a place of business, or conducts business in that county.

(ii) The corporate registered office of a defendant is located in that county.

(b) If a county does not satisfy the criteria under subdivision (a), the county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:

(i) The plaintiff resides, has a place of business, or conducts business in that county.

(ii) The corporate registered office of a plaintiff is located in that county. [Emphasis added.]

Where, as in this case, venue is established by statute, this Court's primary objective is to effectuate legislative intent without harming the plain wording of the act. Keuhn v. Michigan State Police, 225 Mich.App. 152,153, 570 N.W.2d 151 (1997).

The Supreme Court in Coleman addressed the proper venue for a legal malpractice action pursuant to M.C.L. § 600.1629(1)(a); MSA 27A.1629(1)(a). At the time of the Supreme Court's Coleman decision, M.C.L. § 600.1629(1)(a); MSA 27A.1629(1)(a) provided for tort action venue in "`[a] county in which all or a part of the cause of action arose....'" Coleman, supra at 62, 503 N.W.2d 435. Although the Court's interpretation of the venue statute therefore is not controlling in the instant case, the Court's analysis regarding the nature of legal malpractice claims remains instructive. The Court observed that while a plaintiff in a legal malpractice action must show that but for the attorney's alleged malpractice he would have been successful in the underlying suit, the "suit within a suit" is not a part of a legal malpractice action in and of itself. Id. at 63, 66, 503 N.W.2d 435. The Court explained that because legal malpractice is a separate, distinct cause of action, its venue is determined by the location of the primary suit, i.e., where the alleged legal negligence occurred. Id. at 66, 503 N.W.2d 435. Although the Coleman plaintiff's underlying wrongful discharge cause of action arose in Wayne County, the Court concluded that this venue was improper with respect to the plaintiff's legal malpractice action because the plaintiff's legal malpractice claim was premised solely on allegedly negligent advice given on soil beyond the boundaries of Wayne County. Id. at 66-67, 503 N.W.2d 435.

Wayne County constituted the proper venue for plaintiff's instant legal malpractice action because plaintiff's alleged injury occurred in Wayne County. Plaintiff's underlying wrongful discharge suit was initially filed in the Wayne Circuit Court and was then removed to the United States District Court. As the Coleman Court noted, this factor alone does not control the venue of plaintiff's legal malpractice action. Unlike the Coleman plaintiff, however, the instant plaintiff has set forth several instances of defendants' alleged legal negligence that likewise occurred in Wayne County. Plaintiff's legal malpractice complaint alleged that the United States District Court dismissed her wrongful discharge case with prejudice because defendants failed to comply with district court discovery orders, failed to appear and failed to advise plaintiff to appear at a scheduled deposition, failed to object to the magistrate's recommendation to dismiss plaintiff's case, and generally failed to "adequately and properly manage" plaintiff's case. Plaintiff also alleged that Jostens, Inc., and Dredge were dismissed from her lawsuit because defendants failed to serve them and that defendants failed to disclose that information to her. Because defendants' allegedly negligent omissions took place in Wayne County, Wayne County represents the situs of plaintiff's injury and the appropriate venue prescribed by M.C.L. § 600.1629(1); MSA 27A.1629(1).¹ Coleman, supra at 66, 503 N.W.2d 435. The Wayne Circuit Court erred to the extent that it equated the place of plaintiff's injury with the location where the parties initiated their attorney-client relationship. Therefore, we conclude that the Wayne Circuit Court improperly transferred venue to Oakland County.

Although venue in Oakland County was improper, the Michigan Legislature statutorily has provided that "[n]o order, judgment, or decree shall be void or voidable solely on the ground that there was improper venue." MCL 600.1645; MSA 27A.1645. Therefore, the Oakland Circuit Court's ultimate order dismissing plaintiff's case cannot be set aside merely on the basis that the Wayne Circuit Court improperly transferred venue, and we must proceed to address plaintiff's further allegations of error.

II

Plaintiff also argues that the Oakland Circuit Court lacked jurisdiction to enter its order dismissing her legal malpractice claim. A challenge to subjectmatter jurisdiction may be raised at any time, even if raised for the first time on appeal. Smith v. Smith, 218 Mich.App. 727, 729-730, 555 N.W.2d 271 (1996). Jurisdiction is a question of law that this Court reviews de novo. Jeffrey v. Rapid American Corp., 448 Mich. 178, 184, 529 N.W.2d 644 (1995).

Plaintiff argues that pursuant to MCR 7.205(D)(3) and MCR 7.203 this Court, from the time it granted leave regarding plaintiff's interlocutory application for leave to appeal the venue issue on April 22, 1997, possessed exclusive jurisdiction over the instant case. Therefore, according to plaintiff, the Oakland Circuit Court had no authority to subsequently order dismissal of plaintiff's case. Throughout her brief on appeal, plaintiff continually describes this Court's jurisdiction as "exclusive" and cites several cases for the proposition that the filing of a claim of appeal or this Court's granting of leave to appeal automatically precludes a lower court from proceeding in any respect whatsoever concerning any aspect of the action appealed from. Each case cited by plaintiff involved a trial court's attempt to impose costs or fees after a final judgment or order had been entered and after a claim of appeal had been filed, when the final judgment or order appealed from did not specifically contemplate a subsequent imposition of fees. See Co-Jo, Inc. v. Strand, 226 Mich.App. 108, 118-119, 572 N.W.2d 251 (1997); Admiral Ins. Co. v. Columbia Casualty Ins. Co., 194 Mich.App. 300, 314-315, 486 N.W.2d 351 (1992); Wilson v. General Motors Corp., 183 Mich.App. 21, 41, 454 N.W.2d 405 (1990); Vallance v. Brewbaker, 161 Mich.App. 642, 647-648, 411 N.W.2d 808 (1987). As these...