Ignotov v. Reiter
| Decision Date | 22 July 1986 |
| Docket Number | Docket No. 73095 |
| Citation | 425 Mich. 391,390 N.W.2d 614 |
| Parties | Daniel T. IGNOTOV, Plaintiff-Appellant, v. Samuel S. REITER, Defendant-Appellee. 425 Mich. 391, 390 N.W.2d 614 |
| Court | Michigan Supreme Court |
Dunnings & Canady, P.C. by Stuart J. Dunnings, III, Lansing, for plaintiff-appellant.
Buck & Mangapora by Douglas I. Buck and Douglas I. Buck, II, Flint, for defendant-appellee.
The issue presented in this legal malpractice action is whether the trial judge clearly erred in finding that a lawyer's negligence was a cause of the termination of his client's parental rights. We conclude that the judge did not err, and would reverse the judgment of the Court of Appeals which set aside a money judgment in favor of the client.
Samuel S. Reiter was retained by Daniel T. Ignotov to represent Ignotov in proceedings concerning his daughter, Dana Sue. These proceedings were initiated by Ignotov's ex-wife, Janice Everest, as the first step in having Dana Sue adopted by Janice Everest's husband. Ignotov had not communicated with his daughter nor paid child support for two years, thereby providing statutory authority to terminate his parental rights. 1
Ignotov spoke to Reiter on the telephone and sent him a retainer and a letter expressing his thoughts. 2 Discussions ensued between Reiter and Everest's lawyer. Her lawyer made an offer in settlement that would have required Ignotov to pay back child support and increased future support. In return, Everest would agree to suspend the proceedings for two years. Ignotov rejected the offer.
Reiter testified that Ignotov was unwilling to pay child support and that he had advised Ignotov that unless he modified his stance he would lose his parental rights. 3 Ignotov testified he knew he had to pay child support, but rejected the settlement offer because it did not provide for visitation rights and contained other provisions he found objectionable, such as requiring counseling and having Dana Sue change her last name to Everest.
Shortly after Ignotov rejected the settlement offer, Reiter wrote to Ignotov stating: "I believe that the conclusion of our conversation was that you did not wish to make any such [counter] offer and that under the circumstances you would not contest the Adoption Petition." The letter also stated: "As soon as I receive Notice of the Hearing date on the Petition I will notify you of it and will consult with you as to further actions." 4
Ignotov's parental rights were terminated following a hearing. Although Reiter was notified of the hearing, he neither notified Ignotov of the date of the hearing nor appeared on his behalf. 5 Reiter's failure to appear was not inadvertent. When Reiter failed to appear, the probate judge telephoned him. Nevertheless, Reiter did not appear.
Ignotov commenced this action alleging legal malpractice. After a bench trial, the judge found that Ignotov's damages were $25,000, and that he was twenty-five percent comparatively negligent. A judgment against Reiter for $18,750 was entered. The Court of Appeals reversed. 6
Ignotov established that he had retained Reiter to represent him and that Reiter had breached his obligation to exercise due care when he failed to notify Ignotov of the date of the hearing or to appear on that date. Reiter argues that Ignotov nevertheless may not recover damages because he did not show that had Reiter appeared at the hearing he would have been able to prevent the termination of Ignotov's parental rights. The Court of Appeals agreed with Reiter, stating that Ignotov had presented no evidence that he would have appeared at the hearing prepared to settle.
When it has been established that a lawyer failed to represent his client properly, it then becomes necessary to determine whether, if the client had been properly represented, a more favorable result would have been achieved. In the instant case, a more favorable result might have been achieved either by a successful defense or by a settlement on terms more favorable than the result that ensued.
The result adverse to Ignotov in the proceedings in which Reiter failed to appear was not inevitable. If Reiter had appeared and had represented Ignotov at the hearing, Ignotov's parental rights might not have been terminated. While the evidence of nonpayment and noncommunication for two years permitted the probate judge to terminate Ignotov's parental rights, consideration of the best interests of the child might have led the judge to conclude that termination was not warranted. Reiter did not show that Ignotov could not have avoided the termination of his parental rights.
While Ignotov did not show that had he been properly represented he would have prevailed and his parental rights would not have been terminated, the trial judge properly considered whether a more favorable result might have been achieved through a settlement. The judge's finding that Ignotov might have achieved a more favorable result through settlement, and his determination of the amount of damages to be awarded for depriving Ignotov of the opportunity to achieve a more favorable result through settlement, are not clearly erroneous.
The judge acknowledged that without some recognition by Ignotov of his support obligation it was not likely that he could have avoided the termination of his parental rights. The judge reasoned, however, that had Ignotov continued to be properly represented he might have realized the weakness in his position and settled by agreeing to some acceptable payment before the termination of his parental rights.
Ignotov's ex-wife had made a settlement offer that required Ignotov to pay back and future child support, but did not require termination of Ignotov's parental rights. She thus might have agreed to a counter proposal not involving termination of his parental rights.
Ignotov's letter to Reiter stating in effect that if he were forced to pay child support he would demand visitation rights does not compel the conclusion that he would have allowed his parental rights to be terminated if he could thereby have avoided paying child support. It appears that Ignotov sought to retain the ability to regain custody of his daughter because he was apprehensive about her fate should anything happen to her mother.
While Ignotov might have insisted on maintaining a weak, if not indefensible, bargaining position he might indeed, as the judge found, after receipt of notice of the hearing date, have developed, at or shortly before the hearing, a negotiating stance more likely to bring about a settlement and made a counter proposal acceptable to his ex-wife or a payment that would have satisfied the judge that his parental rights should not be terminated. 7
Even stubborn clients are entitled to continued representation. A lawyer may seek permission from the court to withdraw from further representation of a client. A lawyer may not, however, simply abandon his client.
We have considered, but do not address, the suit within a suit doctrine adverted to in the opinion of the Court of Appeals and the briefs of counsel. 8 In the instant case, damages were awarded because the lawyer had deprived the client of the opportunity to resolve the controversy by settlement, not on the basis that the client would have prevailed had the matter gone to judgment. 9
In the instant case, both the breach and the loss were clearly established. Reiter breached his duty to exercise due care and Ignotov lost his parental rights. The disputed factual issue was whether the breach caused the loss.
The Court of Appeals ruled as a matter of law that Ignotov was required to show that if he had been notified of the hearing, he would have appeared prepared to settle. The judge, who sat as trier of fact, found that had Reiter notified Ignotov of the date of the hearing as he had promised the matter might well have been settled before the hearing with a result more favorable to Ignotov than the result that ensued.
Reiter undertook to represent Ignotov and failed to do so. Ignotov lost his parental rights. Damages were properly awarded for the lost opportunity to resolve the matter by settlement. The settlement value of a matter in controversy is determinable without regard to, and does not depend on, whether the parties are willing to settle on that basis. Ignotov was not required to show that "but for" Reiter's failure to exercise due care a more favorable or acceptable settlement would assuredly have been achieved. It was for the trier of fact to assess the likelihood that Ignotov would have achieved a result through settlement more favorable than the result that ensued.
ARCHER, J., not participating.
I concur in the result reached by Justice Levin.
The Court of Appeals in the case at bar clearly erred when it required the plaintiff to establish that "the proximate cause of his injury was defendant's failure to appear at the termination hearing." Ignotov v. Reiter, 130 Mich.App. 409, 412, 343 N.W.2d 574 (1983) (emphasis added). It is well-established that in Michigan the burden is on the plaintiff to establish only that the defendant's negligence is a proximate cause of the plaintiff's damages. Kirby v. Larson, 400 Mich. 585, 605, 256 N.W.2d 400 (1977); Sedorchuk v. Weeder, 311 Mich. 6, 10-11, 18 N.W.2d 397 (1945); Barringer v. Arnold, 358 Mich. 594, 599-600, 101 N.W.2d 365 (1960); SJI2d 30.03.
This Court has defined proximate cause as "a cause as operates to produce particular consequences without the intervention of any independent, unforeseen cause, without which the injuries would not have occurred." Nielsen v. Henry H. Stevens, Inc., 368 Mich. 216, 220, 118 N.W.2d 397 (1962). Moreover,
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