Corley v. Logan, Docket No. 9589
| Decision Date | 26 July 1971 |
| Docket Number | No. 1,Docket No. 9589,1 |
| Citation | 35 Mich.App. 199,192 N.W.2d 319 |
| Parties | Henry CORLEY, Plaintiff-Appellant, v. James F. LOGAN and Shelden L. Miller, Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
Leonard E. Bellinson, Bellinson & Doctoroff, Detroit, for plaintiff-appellant.
Charles T. McGorisk, Plunkett, Cooney, Rutt & Peacock, Detroit, for Logan.
John M. Heaphy, Vandeveer, Doelle, Garzia, Tonkin & Kerr, Detroit, for Miller.
Before V. J. BRENNAN, P.J., and GILLIS and T. M. BURNS, JJ.
One 1963 automobile accident has fostered 3 lawsuits with 3 appeals and now 3 opinions involving well over a dozen attorneys to say nothing of time and expense. Still, Henry Corley, plaintiff here, alleges injury and damages, yet uncompensated, on which claim he deserves to be heard. This present action is one for malpractice against 2 of his attorneys.
Plaintiff's initial cause in Wayne county circuit court, against the driver of an automobile which he claimed struck and injured him, was listed on the no-progress docket on September 30, 1966, after a year of inaction. On October 10, 1966, James F. Logan, the attorney for plaintiff at that time and a defendant here, filed a 'ready for pre-trial certificate' thereby preventing dismissal of the action. However, a motion to strike said 'certificate' and to dismiss said cause for lack of progress was made by counsel representing the driver in that litigation. Prior to any ruling on the motion, on March 28, 1967, Sheldon L. Miller, attorney and defendant here, filed an appearance in the matter on behalf of plaintiff. A substitution of attorneys for plaintiff was then executed and entered on the record at a later date. On August 25, 1967, the lower court invalidation the 'ready for pre-trial certificate' after determining it to be a forgery and ordered dismissal of the cause for no progress.
A motion to reinstate, filed on September 1, 1967, by attorney Miller, was finally denied on November 10, 1967, after numerous adjournments and apparent failures by Miller to appear on plaintiff's behalf. That dismissal and denial to reinstate was affirmed by this Court in Corley v. Krawczak (1969), 16 Mich.App. 176, 167 N.W.2d 783.
Plaintiff's attempts to reinstitute his action against the driver failed when the lower court granted summary judgment to the driver on the grounds that the first dismissal was an adjudication on the merits barring any subsequent action. We approved that judgment in Corley v. Krawczak (1971), 34 Mich.App. 472, 191 N.W.2d 514.
Having lost any opportunity to obtain relief from the allegedly negligent driver, plaintiff commenced this litigation against attorneys Logan and Miller claiming that their conduct amounted to malpractice which prevented the possibility of his recovery for the injuries and damages sustained in the accident. From a circuit court grant of summary judgment in favor of defendants, this appeal ensues.
M.C.L.A. § 600.2912 (Stat.Ann.1962 Rev. § 27A.2912) provides for a civil action for malpractice against persons holding themselves out to be a member of a state-licensed profession. M.C.L.A. § 600.5805(3) (Stat.Ann.1962 Rev. § 27A.5805(3)) limits the period for beginning such action to 2 years. M.C.L.A. § 600.5838 (Stat.Ann.1962 Rev. § 27A.5838) governs when the action begins to run by specifying that:
'A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose.'
In addition, however, M.C.L.A. § 600.5855 (Stat.Ann.1962 Rev. § 27A.5855) provides:
'If a person who is or my be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.'
In this action, plaintiff alleged that defendants were guilty of malpractice in failing property to represent his interest. Defendant Logan answered and...
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