Boyle v. Odette, Docket No. 97256

Citation425 N.W.2d 472,168 Mich.App. 737
Decision Date07 July 1988
Docket NumberDocket No. 97256
PartiesCarolyn BOYLE, a/k/a Carolyn Wood, Plaintiff-Appellant, v. Christopher ODETTE, Defendant-Appellee, and Don Hippinsteel, Defendant.
CourtCourt of Appeal of Michigan (US)

Thurswell, Chayet & Weiner by Milton H. Greenman, Southfield, for plaintiff-appellant.

Robert P. Keil, Flint, for defendant-appellee.

Before HOLBROOK, P.J., and J.H. GILLIS and TAHVONEN, * JJ.


Plaintiff appeals as of right from the trial court's order granting defendant Odette's motion for summary disposition in this legal malpractice case, as well as from the trial court's order denying plaintiff's motion for rehearing. In particular, plaintiff claims that she should have been allowed to amend her complaint to allege that defendant Odette committed legal malpractice when he failed to timely file a suit on plaintiff's behalf against James W. McKay, on the basis that McKay knowingly furnished alcoholic beverages to then nineteen-year-old Kirk Gildner, who subsequent to the consumption of the intoxicants was involved in a traffic accident in which plaintiff was injured. The trial court held that plaintiff's legal malpractice claim based upon defendant Odette's failure to timely pursue a social-host claim against McKay was barred by the statute of limitations, that any damages plaintiff suffered were attributable to her present counsel's failure to file suit before the statutory period of limitation had expired and that, in any event, the amendment was futile because there was no viable social-host claim against McKay. We affirm.

On November 5, 1982, McKay hosted a wedding reception for his son at the Flint Association of the Deaf, Incorporated (FAD). McKay rented the hall from FAD and provided his own alcoholic beverages. FAD did not supervise the distribution of the alcoholic beverages, but there was a bar at the reception. Gildner was informally invited to the reception by one of his friends, who was apparently related to McKay's son. There were approximately 150 to 200 guests at the reception.

Gildner arrived at the reception at approximately 10 p.m. Gildner ate and talked with some of his friends, including twenty-year-old Donald Hippinsteel. Gildner did not attempt to obtain alcohol from the bar because he assumed that the bartenders were checking identification. The others sitting at the table were also apparently minors and did not have alcohol. Gildner claims that sometime thereafter a group of people sitting at a nearby table left the reception. These people left behind a partially full pitcher of beer. Gildner is "pretty sure" that Hippinsteel grabbed the pitcher from the other table after it had been sitting there for a couple of minutes. Hippinsteel poured himself a glass of beer and set the pitcher down on the table. Gildner then reached over and poured some beer into a cup from which he had previously been drinking non-alcoholic punch. Gildner drank two or three glasses of beer. Gildner could not recall any one else at his table drinking.

Hippinsteel recalled drinking one or two glasses of beer. He denied providing beer to Gildner. Hippinsteel could not recall how he obtained the beer or if anyone else was drinking; however, he thought that it was likely that he had obtained the beer from a pitcher on a table because it was not given to him by an adult.

At 11:30 or 11:45 p.m., Gildner left the reception. He admitted that he felt the effects of the alcohol, but stated that he was just happy and not drunk. As Gildner was driving home, he was attempting to repair the wires on his new car stereo when he crossed the center line and struck head-on the vehicle in which plaintiff was riding as a passenger. The accident occurred at 12:04 a.m., four miles from the FAD hall. Plaintiff was injured. Gildner did not recall crossing the center line and was not ticketed.

Plaintiff hired Odette to represent her. Odette obtained a settlement with Gildner and his no-fault insurer on February 11, 1984. Odette claims that, at the time the settlement was signed, he discussed its effect on plaintiff's further actions under the dramshop act, given the name-and-retain provision. Plaintiff denies that such a discussion took place.

On July 8, 1985, plaintiff hired her present counsel to pursue claims on her behalf arising out of the accident. Plaintiff then filed suit against FAD on July 11, 1985. Plaintiff claims that the suit was dismissed on October 21, 1985, because the statutory period of limitation had expired; however, the order dismissing plaintiff's suit against FAD provides that plaintiff's suit was dismissed because she failed to state a claim upon which relief could be granted.

On December 12, 1985, plaintiff sued Odette, alleging that he committed malpractice by failing to investigate and timely pursue plaintiff's dramshop claim against FAD and to inform plaintiff of the same. Plaintiff also sued Hippinsteel, alleging social-host liability.

On June 7, 1986, defendant Odette's attorney arranged for a deposition of Wally Jones, an officer of FAD. Jones was instructed to bring all records concerning the hall rental to McKay with him. At the deposition, it was learned that McKay provided the alcohol at the reception and FAD retained no control over the hall.

Thereafter, defendant Odette moved for summary disposition, claiming that there was no genuine issue of material fact concerning FAD's lack of responsibility for furnishing the intoxicating beverages. Plaintiff conceded that she no longer had a dramshop action against FAD; however, plaintiff then claimed that defendant Odette committed malpractice by failing to pursue a social-host claim against McKay, M.C.L. Sec. 436.33; M.S.A. Sec. 18.1004. Defendant Odette responded that plaintiff had not properly pled that theory and that the period of limitation on legal malpractice regarding that claim had expired. Moreover, defendant Odette noted that the three-year period of limitation on the social-host claim had not expired when plaintiff retained her present counsel. Finally, defendant Odette noted that, under the facts of this case, McKay did not "knowingly furnish" alcohol to Gildner. Plaintiff responded by asking that she be allowed to amend her complaint.

As noted above, the trial court held for defendant Odette, finding: (1) plaintiff conceded defendant was entitled to summary disposition regarding his failure to pursue a dramshop action against FAD; (2) plaintiff's complaint failed to state any other cause of action under the dramshop act; (3) plaintiff could not amend her complaint to allege a social-host theory because the statutory period of limitation for legal malpractice with respect to that claim had expired; (4) plaintiff's malpractice action was more properly directed against her present attorney, who was hired before the period of limitation on the social-host claim had expired; and (5) there was no merit to a social-host claim against McKay.

Plaintiff moved for a rehearing, alleging that the trial court had ignored her request to amend. The trial court denied plaintiff's motion, noting that it had not ignored plaintiff's request as evidenced by the last three reasons in its opinion. Thereafter, Hippinsteel was dismissed as a defendant.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Morganroth v. Whitall, 161 Mich.App. 785, 788, 411 N.W.2d 859 (1987). In ruling on such a motion the trial court must consider not only the pleadings, but also depositions, affidavits, admissions and other documentary evidence. Id. Summary disposition is appropriate under this subrule only if the court is satisfied that it is impossible for the nonmoving party's claim to be supported at trial because of a deficiency which cannot be overcome. Id. The trial court must give the benefit of any reasonable doubt to the nonmoving party. Id. This Court is liberal in finding a genuine issue of material fact. Id. Nonetheless, where the opposing party fails to come forward with evidence, beyond his allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted. Id.

On appeal, plaintiff claims that she should have been allowed to amend her complaint to allege malpractice arising out of defendant Odette's failure to pursue a social-host claim against McKay. MCR 2.118(A)(2). A motion to amend a complaint should be denied only for particularized reasons such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and the futility of the amendment. Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 213 N.W.2d 134 (1973); Davis v. Chrysler Corp., 151 Mich.App. 463, 473-474, 391 N.W.2d 376 (1986), lv. den. 428 Mich. 869 (1987). The mere expiration of a limitation period does not amount to prejudice where the amendment springs from the conduct, transaction, or occurrences set forth, or attempted to be set forth, in the original pleading because, under such circumstances, the amendment relates back to the date the original pleading was filed. MCR 2.118(D). Davis, supra, pp. 473-475, 391 N.W.2d 376; Pierson v. Pierson, 132 Mich.App. 667, 670-671, 347 N.W.2d 779 (1984). The trial court's decision to disallow the amendment will not be reversed absent an abuse of discretion. Id.

We first agree with defendant Odette and the trial court that plaintiff did not set forth in her original pleadings a malpractice claim based upon the failure to file a social-host claim. The trial court apparently ruled that plaintiff could not amend her complaint to allege defendant Odette's legal malpractice in failing to pursue a social-host claim, finding that defendant Odette would be...

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