Coleman v. Gurwin, Docket No. 132220

• Decision Date: 07 July 1992
• Docket Number: Docket No. 132220
• Parties: Carol D. COLEMAN, Plaintiff-Appellee, v. E. Donald GURWIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 118

489 N.W.2d 118

195 Mich.App. 8

Carol D. COLEMAN, Plaintiff-Appellee, v. E. Donald GURWIN, Defendant-Appellant.

Docket No. 132220.

Court of Appeals of Michigan.

Submitted June 10, 1992, at Detroit.

Decided July 7, 1992, at 9:05 a.m.

Released for Publication Oct. 5, 1992.

Blaske & Blaske, P.C. by Thomas H. Blaske, Ann Arbor, for plaintiff-appellee.

William E. Wade, Livonia, for defendant-appellant.

Before FITZGERALD, P.J., and CAVANAGH and NEFF, JJ.

PER CURIAM.

In this legal malpractice case, defendant appeals by leave granted from an order of the Wayne Circuit Court denying his motion to change venue improperly laid. We affirm.

FACTS

Plaintiff, who resides in Washtenaw County, was discharged from her employment with Detroit Public Schools in Wayne County. Plaintiff subsequently contacted defendant E. Donald Gurwin regarding a potential wrongful discharge action against the school system. Defendant had four meetings with plaintiff in his Oakland County office. By letter dated July 31, 1987, defendant informed plaintiff that he would not represent her because it was his opinion that there was no liability on the part of the school system. In declining the case, defendant allegedly gave incorrect advice to plaintiff regarding the applicable statute of limitations. ¹

On June 29, 1990, defendant filed a motion to change venue improperly laid, arguing that no part of the cause of action for legal malpractice arose in Wayne County. Defendant alleged that plaintiff's injuries arose in either Oakland County or Washtenaw County.

At a hearing on defendant's motion, plaintiff argued that a part of her legal malpractice action was to prove the underlying action, which occurred in Wayne County. The trial court agreed with plaintiff that her cause of action required adjudication of the underlying suit and denied the motion. Therefore, part of the cause of action arose in Wayne County, and venue was properly laid in Wayne County.

I

If venue is improperly laid, it must be changed upon a motion to do so. MCR 2.223(A)(1). An action for legal malpractice is a tort claim and its venue is controlled by MCL 600.1629; MSA 27A.1629. Under Sec. 1629(1)(a), venue is proper where all or part of a cause of action arises, not merely at the situs of an injury. ² Lorencz v. Ford Motor Co., 439 Mich. 370, 375, 483 N.W.2d 844 (1992). This Court reviews a trial court's decision regarding venue to determine whether the trial court clearly erred in ruling that venue was proper. Marsh v. Walter L. Couse & Co., 179 Mich.App. 204, 207, 445 N.W.2d 204 (1989).

II

In an action for legal malpractice, the plaintiff must establish (1) the existence of an attorney-client relationship, (2) the acts that are alleged to have constituted negligence, (3) that the negligence was a proximate cause of the injury, and (4) the fact and extent of the injury alleged. ³ Lowman v. Karp, 190 Mich.App. 448, 451, 476 N.W.2d 428 (1991); Basic Food Industries Inc. v. Grant, 107 Mich.App. 685, 690, 310 N.W.2d 26 (1981).

In cases such as this one, where an attorney's conduct prevents the client from bringing a contemplated action, we believe that an additional element is intertwined with the requirement of establishing proximate causation and damages. In Basic Food, supra, this Court discussed the "suit within a suit" requirement:

The factor which has occasioned most difficulty to clients attempting to charge attorneys with liability for negligence in connection with litigation has been the necessity of proving that the damages claimed resulted from the alleged misconduct. The recovery sought is usually the value of the claim in suit in the proceeding in which the negligent act occurred, if the client was a plaintiff in that action, or, if he was a defendant, the amount of the judgment imposed upon him, and, in accordance with general rules as to proximate cause, it is generally held that before such recovery can be had the client must establish that, absent the act or omission complained of, the claim lost would have been recovered or the judgment suffered avoided. Accordingly, the client seeking recovery from his attorney is faced with the difficult task of proving two cases within a single proceeding. [107 Mich.App. at 691, 310 N.W.2d 26, citing 45 A.L.R.2d 5, Sec. 2, p 10.]

In addition to proving negligence, plaintiff must show that but for her attorney's negligence she would have been successful in the original litigation; in effect, she must prevail in two distinct suits. This suit within a suit concept has vitality only in a limited number of situations, such as where an attorney's negligence prevents the client from bringing an action, where the attorney's failure to appear causes judgment to be entered against the client or where the attorney's negligence prevents an appeal from being perfected. In such cases, the underlying action constitutes at least a part of the cause of action for legal malpractice. Venue would therefore be proper in the county where the underlying action occurred, as well as in any jurisdiction where a part of the cause of action arose. ⁴ Lorencz, supra, 439 Mich. p. 375, 483 N.W.2d 844. The trial court did not err in denying defendant's motion to change venue.

Affirmed.

1 Plaintiff alleged that had she been properly...