Lloyd v. Avadenka

• Decision Date: 23 June 1987
• Docket Number: 88491,Docket Nos. 88012
• Citation: 405 N.W.2d 141,158 Mich.App. 623
• Parties: Marjorie A. LLOYD, Plaintiff-Appellant, v. Frances R. AVADENKA; Keller and Avadenka, P.C., jointly and severally, Defendants-Appellees. 158 Mich.App. 623, 405 N.W.2d 141
• Court: Court of Appeal of Michigan — District of US

Page 141

405 N.W.2d 141

Marjorie A. LLOYD, Plaintiff-Appellant, v. Frances R. AVADENKA; Keller and Avadenka, P.C., jointly and severally, Defendants-Appellees.

Docket Nos. 88012, 88491.

158 Mich.App. 623, 405 N.W.2d 141

Court of Appeals of Michigan.

Submitted Nov. 19, 1986.

Decided Feb. 5, 1987.

Released for Publication May 14, 1987.

Leave to Appeal Denied June 23, 1987.

[158 MICHAPP 624] The Attorney Malpractice Group, P.C. by Dennis E. Moffett, Pontiac, for plaintiff-appellant.

Edward Avadenka, Bloomfield Hills, for defendants-appellees.

Before GRIBBS, P.J., and WAHLS and SULLIVAN, JJ.

PER CURIAM.

Plaintiff, Marjorie Lloyd, appeals as of right from an order of summary disposition [158 MICHAPP 625] dated August 16, 1985, granted in favor of the defendants, Frances R. Avadenka (defendant) and Keller and Avadenka, P.C., by Oakland Circuit Court Judge Alice L. Gilbert and the court's order of October 16, 1985, assessing costs and attorney fees against plaintiff and her trial counsel in the present suit, Dennis E. Moffett, pursuant to MCR 2.114(D) and (E).

The pleadings and affidavits filed in the instant case established that defendant represented the plaintiff in a divorce proceeding in the course of which a pretrial conference was held in the chambers of Oakland Circuit Court Judge Fred Mester. Attending the pretrial conference on April 1, 1983, were Judge Mester, the opposing lawyer in the divorce action (Rudolf Uhlar), and the defendant in the instant case. At the conference Judge Mester sua sponte appointed a receiver to administer the sale of the parties' marital home. Judge Mester entered an order of appointment on April 21, 1983, and on that same date plaintiff dismissed defendant as her counsel. After defendant was dismissed as counsel, plaintiff retained Paul Dufault and Robinson & Dufault, P.C., to represent her in the divorce proceedings. Dufault moved for a rehearing on the appointment of the receiver and moved for the termination of the receivership. Both motions were denied. Thereafter, the receiver sold the property at the best price obtainable.

Plaintiff then brought the present suit and claimed that defendants were professionally negligent in failing to obtain plaintiff's consent to the appointment of a receiver, which appointment resulted in the sale of the marital home for a value plaintiff alleges to be inadequate.

After hearing the arguments of counsel on May 22, 1985, and considering the pleadings and affidavits, Judge Alice L. Gilbert concluded that plaintiff's [158 MICHAPP 626] claims could not be sustained under any circumstances.

On appeal, plaintiff contends that Judge Gilbert improperly granted defendants' motion for summary disposition because further factual development should have been allowed.

A motion for summary disposition should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), formerly GCR 1963, 117.2(3).

A motion based on this court rule is designed to test the factual support for a claim or defense. Maccabees Mutual Life Ins. Co. v. Dep't of Treasury, 122 Mich.App. 660, 663, 332 N.W.2d 561 (1983), lv. den. 417 Mich. 1100.15 (1983); Detroit Edison Co. v. Richmond Twp., 150 Mich.App. 40, 45, 388 N.W.2d 296 (1986). The court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim or position asserted cannot be supported by the evidence at trial because of some deficiency which cannot be overcome. Maccabees Mutual Life, supra. The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. Id.

We hold that Judge Gilbert did not err in granting defendants' motion for summary judgment pursuant to MCR 2.116(C)(10) because plaintiff's claim could not be supported by the evidence at trial and, therefore, defendants were entitled to judgment as a matter of law.

Judge Gilbert concluded that the plaintiff's claim was factually flawed because defendant's actions were not a proximate cause of plaintiff's alleged injury: the sale of her house for less than $103,900. The record reveals that at a pretrial [158 MICHAPP 627] conference on April 1, 1983, which was not attended by plaintiff, Judge Mester sua sponte appointed the receiver over the vigorous objections of defendant. Judge Mester entered an order appointing the receiver on April 21, 1983, the same day plaintiff dismissed defendant as counsel. Plaintiff retained Dufault, who moved for a rehearing on the appointment of the receiver and for the termination of the receivership. Summaries of the pretrial conference are the domain of the presiding judge and not the responsibility of the attorneys. MCR 2.401(C)(1). Furthermore, circuit court judges have broad discretion and inherent equitable powers with respect to the appointment of receivers, and these equitable powers may be exercised in chambers. M.C.L. Sec. 600.2926; M.S.A. Sec. 27A.2926; Cohen v. Cohen, 125 Mich.App. 206, 214, 335 N.W.2d 661 (1983), lv. den. 417 Mich. 1100.35 (1983); Westgate v. Westgate, 294 Mich. 88, 292 N.W. 569 (1940). Thus, once a court has directed the preparation of an order, an attorney is acting under the direction of the court and has no duty to obtain a client's consent before carrying out the court-ordered duty. Consequently, even if the judge's ruling was erroneous, which it was not here, defendant was obligated to participate in the preparation of the order appointing a receiver. Once the order was entered, counsel then could seek to appeal from the order or take other and further actions with respect thereto.

In the instant case defendant was dismissed as counsel on April 21, 1983, the day the order was entered. Therefore, she had no opportunity to appeal the order. Moreover, substitute counsel challenged the validity of the order in two later motions. Hence, it is clear that defendant's actions were not a proximate cause of plaintiff's alleged injury because the marital home was sold notwithstanding [158 MICHAPP 628] objections and motions made first by defendant and then by defendant's successor.

Plaintiff's other contention is that the trial court erred in awarding attorney fees and costs to defendants.

After granting defendant's motion for summary disposition, the trial court awarded defendants costs and attorney fees of $1,570. It found that plaintiff's pleadings were not well-grounded in fact or warranted by existing law. The attorney fees and costs were to be assessed against plaintiff's counsel and plaintiff, jointly and severally.

On appeal, plaintiff contends that the court abused its discretion "in precipitously awarding attorney fees for plaintiff filing an attorney malpractice case against her friend's law firm." Plaintiff specifically contends that the court failed to determine what reasonable inquiries had been made by plaintiff and what improper purpose, if any, motivated plaintiff or plaintiff's counsel to file the complaint.

The signing of papers and the sanctions for unwarranted allegations or denials are covered by MCR 2.114. These provisions, which are based on the recent amendment of the Federal Rules of Civil Procedure, FR.Civ.P. 11, differ considerably from the corresponding provisions in the prior Michigan rules, GCR 1963, 114 and 111.6. See Note to MCR 2.114. MCR 2.114 provides in part:

"(D) Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that

"(1) he or she has read the pleading;

"(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the pleading is well grounded in fact and is warranted [158 MICHAPP 629] by existing law or a good faith argument for the extension, modification, or reversal of existing law; and

"(3) the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

"(E) Sanctions for Violation. If a pleading is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees." (Emphasis added.)

MCR 2.114(E) describes the effect of the signing of a pleading by a party or a party's attorney, but does not provide the elements necessary for a court to impose sanctions. It is clear from the language of the rule, however, that sanctions can be...