Pantely v. Garris, Garris & Garris, P.C., Docket No. 100477

• Citation: 180 Mich.App. 768,447 N.W.2d 864
• Decision Date: 21 November 1989
• Docket Number: Docket No. 100477
• Parties: , 58 USLW 2403 Eugenia PANTELY, Plaintiff-Appellant, Cross-Appellee, v. GARRIS, GARRIS & GARRIS, P.C., Jack J. Garris, and Steven E. Garris, Defendants-Appellees, Cross-Appellants, and Erwin A. Salisbury, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 864

447 N.W.2d 864

180 Mich.App. 768, 58 USLW 2403

Eugenia PANTELY, Plaintiff-Appellant, Cross-Appellee, v. GARRIS, GARRIS & GARRIS, P.C., Jack J. Garris, and Steven E Garris, Defendants-Appellees, Cross-Appellants and Erwin A. Salisbury, Defendant-Appellee.

Docket No. 100477.

Court of Appeals of Michigan.

Submitted Oct. 6, 1988.

Decided Nov. 6, 1989.

Released for Publication Nov. 21, 1989.

Blaske & Blaske by E. Robert Blaske, Battle Creek, for plaintiff-appellant, cross-appellee.

Plunkett & Cooney, P.C. by Patrick M. Barrett and Christine D. Oldani, Detroit, for defendants-appellees, cross-appellants Garris.

Miller, Canfield, Paddock & Stone by Edmond F. Devine, Ann Arbor, for defendant-appellee Salisbury.

Before McDONALD, P.J., and WAHLS and TAHVONEN, ^* JJ.

TAHVONEN, Judge.

Can a client who perjures herself recover damages caused by the failed deceit from the lawyer who counselled the lie? No, said the trial court. We agree and affirm.

Eugenia Pantely and Thomas Stamadianos were granted a consent default judgment of divorce by the Livingston Circuit Court in 1981. Ms. Pantely alleged in her divorce complaint and testified in court that she had lived in Livingston County for at least ten days before filing her complaint. About a year later, Mr. Stamadianos moved to modify the judgment or, in the alternative, to have it set aside because of fraud upon the court by Ms. Pantely, including a misrepresentation that she had lived in Livingston County for ten days immediately before filing the divorce action. Ms. Pantely eventually filed an affidavit admitting that she had not lived in Livingston County for the required ten days.

The Livingston Circuit Court concluded that it had lacked jurisdiction to grant the divorce, but set aside only the property settlement provisions because Ms. Pantely had remarried. On appeal, this Court reinstated the entire judgment, holding that the ten-day requirement was a venue provision only and not jurisdictional. Stamadianos v. Stamadianos, 133 Mich.App. 430, 434-436, 350 N.W.2d 268 (1984). The Michigan Supreme Court reversed and set aside the entire judgment, holding that the residency requirement was jurisdictional. Stamadianos v. Stamadianos, 425 Mich. 1, 385 N.W.2d 604 (1986).

In September of 1984, Ms. Pantely filed this legal malpractice action against defendants Garris and Salisbury in Washtenaw Circuit Court. In her complaint, she claimed that defendants Garris, who had originally represented both her and Mr. Stamadianos in a divorce action, had committed legal malpractice by, among other things, commencing the action in Livingston County, by alleging that Ms. Pantely was a resident of Livingston County, by counselling Ms. Pantely to testify falsely that she lived in Livingston County and by causing her to later employ incompetent counsel (Salisbury). Ms. Pantely further alleged that Salisbury, who had become her attorney after defendants Garris withdrew, had committed legal malpractice by insisting that the Livingston Circuit Court set aside the entire judgment and by advising Ms. Pantely's second husband, whom she had married after the original ill-fated judgment was entered, to move out of the marital home. Ms. Pantely asserted that as a result of defendants' malpractice she had suffered emotional distress, humiliation, embarrassment, and damage to her reputation and had incurred unnecessary legal expenses and had lost the society and companionship of her second husband.

Defendants Garris and Salisbury moved separately for summary disposition pursuant to MCR 2.116(C)(10). Defendants Garris argued that the undisputed facts showed that Ms. Pantely admitted committing perjury before the Livingston Circuit Court in order to obtain a divorce, therefore, Ms. Pantely was in pari delicto with defendants Garris and should not be allowed to profit from her own unsuccessful fraud. Salisbury argued that the undisputed facts showed that he did not represent Ms. Pantely when she perpetrated fraud upon the Livingston Circuit Court, therefore, the divorce court's lack of jurisdiction and her subsequent legal and emotional difficulties were not attributable to him. Defendants Garris also moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that Ms. Pantely's complaint was barred by the statute of limitations.

In an order entered on January 15, 1987, the Washtenaw Circuit Court granted the motion by defendants Garris for summary disposition pursuant to MCR 2.116(C)(10). The trial court concluded that, by perpetrating a fraud on the Livingston Circuit Court in a failed attempt to obtain a divorce, Ms. Pantely was in pari delicto with defendants Garris and that the Washtenaw Circuit Court would not aid a party who founded a cause of action upon an immoral or illegal act. The court denied the motion by defendants Garris for summary disposition based on the statute of limitations, finding that a factual dispute existed as to when defendants Garris had ceased performing legal services for Ms. Pantely. The trial court granted Salisbury's motion for summary disposition pursuant to MCR 2.116(C)(10). Ms. Pantely filed a claim of appeal and this Court granted the motion by defendants Garris for leave to file a delayed cross appeal on the statute of limitations question.

The central issue presented is whether the trial court erred in concluding that Ms Pantely's claim of legal malpractice against defendants Garris is barred by the doctrine of in pari delicto. Ms. Pantely argues that the court did err because material issues of fact remained concerning the relationship between the parties and their respective roles in the divorce proceedings.

A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions and other documentary evidence and must give the benefit of any reasonable doubt to the nonmoving party, drawing any reasonable inferences in favor of that party. The nonmoving party has the burden of establishing that a genuine issue of material fact exists in response to a properly filed and supported motion for summary disposition. A grant of summary disposition under subsection (C)(10) is proper only if the court is satisfied that no possible factual development could justify recovery by the nonmoving party. This Court is liberal in finding that a genuine issue of material fact exists. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988); Loftis v. G.T. Products, Inc., 167 Mich.App. 787, 790-791, 423 N.W.2d 358 (1988).

The trial court's decision rests squarely on the fact that Ms. Pantely admittedly perjured herself and the court's assumption, for purposes of the motion only, that she did so on the advice of her lawyers. Given the admitted and assumed facts, the trial court found that the lawyers were entitled to judgment as a matter of law because the client was in pari delicto. Of course, this Court also makes no finding that the defendants counselled perjury; we merely assume so for purposes of this opinion.

The maxim, in pari delicto potior est conditio defendentis (in cases of equal fault, the position of the defendant is stronger), like all maxims, can both confound and inform our analysis. Confound if courts substitute phrases, even venerated Latin phrases, for an understanding of the principles they embody. Inform if courts instead view the maxim as a helpful distillation of legal rules applied in hundreds of specific cases over centuries of common-law decision making.

In pari delicto, as a common law doctrine, expresses the principle that wrongdoers ought each to bear the untoward consequences of their wrongdoing without legal recompense or recourse. As noted by the trial judge, courts should not lend their aid to one who founds a cause of action on an immoral or illegal act. In the familiar economic language of the Chicago School, among wrongdoers equally at fault the law ought not to redistribute losses caused by the wrong itself, but rather should leave the parties where it finds them. Suit is barred not because the defendant is right, but rather because the plaintiff, being equally wrong, has forfeited any claim to the aid of the court. See, for example, Jones v. Chennault, 323 Mich. 261, 35 N.W.2d 256 (1948).

These general principles, all encompassed by the maxim in pari delicto, find voice in the law of contracts, 2 Restatement Contracts, Sec. 598, p 1109; 2 Restatement Contracts, 2d, Secs. 197-198, pp 71-74, and, most recurrently, in the law of equity with respect to the doctrine of "clean hands." Appellate courts in other states have held that in pari delicto may bar a claim of legal malpractice. Robins v. Lasky, 123 Ill.App.3d 194, 201, 78 Ill.Dec. 655, 462 N.E.2d 774 (1984); Feld & Sons, Inc. v. Pechner, Dorfman, Wolfee, Rounick & Cabot, 312 Pa.Super. 125, 130, 458 A.2d 545 (1983); Evans v. Cameron, 121 Wis.2d 421, 427, 360 N.W.2d 25 (1985).

In this case, Ms. Pantely admits her own wrongdoing but relies on two exceptions to the bar of in pari delicto both drawn from Justice Story:

And indeed in cases where both parties are in delicto concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offense. And besides, there may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be. [1 Story, Equity Jurisprudence (14th ed), Sec. 423, pp 399-400.]

First, Ms. Pantely denies she is equally at fault or, more precisely for purposes of the motion, asserts that there exists a genuine...