Mino v. McCarthy, Docket No. 145508

Citation530 N.W.2d 779,209 Mich.App. 302
Decision Date07 March 1995
Docket NumberDocket No. 145508
PartiesOrville E. MINO, Plaintiff-Appellant, v. Michael J. McCARTHY, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Orville E. Mino, in pro. per.

Michael J. McCarthy, Redford, for defendant.

Before MICHAEL J. KELLY, P.J., and BRENNAN and FULLERTON, * JJ.

PER CURIAM.

This appeal arises out of a legal malpractice action. Plaintiff Orville Mino appeals as of right from an order granting defendant Michael McCarthy's motion for summary disposition. We affirm.

Defendant represented plaintiff in a criminal matter that resulted in plaintiff pleading guilty of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), and of being an habitual offender, third offense, M.C.L. § 769.11; M.S.A. § 28.1083. Plaintiff received a sentence of seventeen to fifty years' imprisonment. Plaintiff pleaded guilty of the offenses on February 8, 1988, and was sentenced on March 1, 1988.

Shortly after sentencing, on September 6, 1988, plaintiff's newly appointed appellate counsel filed a motion for withdrawal of the guilty plea or resentencing. Along with this motion, defendant signed an affidavit stating that he pleaded guilty because his attorney told him he would receive a sentence of five to eight years' imprisonment and that he was not mentally competent when he pleaded guilty because of his medical condition of diabetes. On May 15, 1989, Oakland Circuit Judge Richard D. Kuhn denied defendant's motion. On June 22, 1990, this Court affirmed the judgment of the trial court in an unpublished opinion per curiam. This Court found that there was no merit to defendant's claims. The Michigan Supreme Court denied leave on April 29, 1991.

On May 17, 1991, plaintiff filed the instant case. He claimed malpractice by defendant. Defendant moved for summary disposition based on the statute of limitations and collateral estoppel. Plaintiff filed a motion for summary disposition claiming that defendant had failed to present a valid defense. On October 4, 1991, the trial court entered an opinion and order granting defendant's motion for summary disposition, finding that plaintiff's claim was barred by the statute of limitations. The trial court found that the complaint should have been filed no later than March 11, 1990.

On appeal, plaintiff's sole claim is that the trial court erred in finding that the statute of limitations barred him from filing his complaint. Plaintiff argues that a person's incarceration in a county jail following sentencing and before being transferred to a state prison constitutes imprisonment for purposes of the statute of limitations. We disagree.

M.C.L. § 600.5851(3); M.S.A. § 27A.5851(3) states:

To be considered a disability, the infancy, insanity, or imprisonment must exist at the time the claim accrues. If the disability comes into existence after the claim has accrued, a court shall not recognize the disability under this section for the purpose of modifying the period of limitations.

The primary goal of statutory construction is to give effect to the Legislature's intent. Joy Management Co. v. Detroit, 176 Mich.App. 722, 730, 440 N.W.2d 654 (1989). Where a statute is clear and unambiguous, judicial construction or interpretation is precluded. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992); Glazer v. Lamkin, 201 Mich.App. 432, 435-436, 506 N.W.2d 570 (1993). If judicial construction or interpretation is necessary, the court must ascertain and give effect to the intent of the Legislature, assigning words their ordinary, normally accepted meanings. Glazer, supra at 436, 506 N.W.2d 570. In determining legislative intent, courts should give statutory language a reasonable construction that best accomplishes the purpose of the statute. Id.

In Evans v. Hebert, 203 Mich.App. 392, 513 N.W.2d 164 (1994), this Court thoroughly reviewed the law regarding the statutory provision at issue in this case and determined that pretrial detention does not constitute imprisonment for purposes of M.C.L. § 600.5851; M.S.A. § 27A.5851. Evans, at 403, 513 N.W.2d 164. This Court expressly held that nothing in the legislative history indicated that the Legislature intended...

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    ...528 N.W.2d 707 (1995)). "Where a statute is clear and unambiguous, judicial construction is precluded." Id. (Mino v. McCarthy, 209 Mich.App. 302, 304, 530 N.W.2d 779 (1995)). The statute, as originally enacted, precluded certain claims against architects and engineers only. However, in 1985......
  • McCready v. Hoffius, Docket Nos. 185152
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    ...of the Legislature. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993); Mino v. McCarthy, 209 Mich.App. 302, 304-305, 530 N.W.2d 779 (1995). The Legislature is presumed to intend the meaning that the statute plainly expresses. In re Austin Estate, 218 Mich.......
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    ...should give statutory language a reasonable construction that best accomplishes the purpose of the statute. Mino v. McCarthy, 209 Mich.App. 302, 304-305, 530 N.W.2d 779 (1995). As a general rule, the remedies provided by statute for violation of a right having no common-law counterpart are ......
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    • May 29, 2003
    ...(2001) ("[P]resent tense" means "being, existing, or occurring at this time or now...."), M.C.L. § 8.3a, and Mino v. McCarthy, 209 Mich.App. 302, 304-305, 530 N.W.2d 779 (1995) (the words of a statute must be given their ordinary, normally accepted meanings). We conclude that the distinctio......
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