Sam v. Balardo

• Decision Date: 13 July 1981
• Docket Number: Docket No. 61954,No. 3,3
• Citation: 411 Mich. 405,308 N.W.2d 142
• Parties: Willie James SAM, Plaintiff-Appellant, v. Marilynn J. BALARDO, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 142

308 N.W.2d 142

411 Mich. 405

Willie James SAM, Plaintiff-Appellant, v. Marilynn J. BALARDO, Defendant-Appellee.

Docket No. 61954.

Calendar No. 3.

Supreme Court of Michigan.

Argued March 6, 1980.

Decided July 13, 1981.

Myron F. Poe, Royal Oak, for plaintiff-appellant.

Marilynn J. Balardo, pro se.

Eugene D. Mossner, Saginaw, for amicus curiae, State Bar of Michigan.

RYAN, Justice.

This Court granted leave to appeal to address the issue, "(W)hether the applicable statute of limitations in actions alleging legal malpractice is two years or three years".

We hold that a legal malpractice suit is subject to the two-year statute of limitations pursuant to M.C.L. § 600.5805(3); M.S.A. § 27A.5805(3). ¹

I

On July 18, 1973, Willie James Sam filed a complaint in the Third Judicial Circuit Court charging attorney Marilynn J. Balardo with legal malpractice. The complaint alleged that plaintiff had consulted the defendant during March or April, 1970 concerning a lawsuit which had been filed against him in the Detroit Common Pleas Court. Ms. Balardo agreed to represent the plaintiff and filed an answer in his behalf in the matter. Plaintiff claims the defendant then advised him of two adjournments of the date set for trial. On September 10, 1970, a default judgment was entered against plaintiff in Common Pleas Court. He contends that he was not notified of that proceeding.

Plaintiff acknowledged that some time after September, 1970 he contacted the defendant regarding his case and was advised by the defendant that he should pick up all his papers from her office since defendant would no longer represent plaintiff. Defendant contends that a written "release" was executed between the parties on October 13, 1970 which purported to absolve and release defendant from all responsibility with respect to this matter.

Plaintiff alleges that he did not learn of the judgment entered against him until December 23, 1972, at which time he was refused renewal of his motor vehicle operator's license because of the outstanding judgment. He was unsuccessful in attempting to have the default judgment set aside and thereafter instituted the present action.

Defendant filed a motion for accelerated judgment alleging that plaintiff's claim is barred by the running of the two-year statute of limitations. The motion was supported by an affidavit which alleged that the last service defendant rendered for plaintiff was on June 30, 1970 when she had the trial of the Common Pleas action adjourned and that, in any event, her last contact with plaintiff was on October 13, 1970 when plaintiff picked up his papers from defendant and signed a release.

The trial court denied the motion. It ruled that the question of whether plaintiff should have discovered the defendant's alleged malpractice between September 10, 1970 and December 23, 1972 was one of fact for the jury. ² The jury returned a verdict of no cause of action. Plaintiff appealed, claiming that the three-year statute of limitations controlled. ³ A divided Court of Appeals affirmed, finding that the two-year limitation period contained in M.C.L. § 600.5805(3); M.S.A. § 27A.5805(3), ⁴ applies to legal, medical, and other recently created malpractice actions. Judge Cavanagh dissented. ⁵ This Court granted plaintiff's application for leave to appeal by an order dated October 1, 1979.

II

The statutory provisions governing the periods of limitation for tort actions form part of the Revised Judicature Act of 1961. M.C.L. § 600.5805; M.S.A. § 27A.5805 provided in pertinent part:

"No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

"(3) The period of limitations is 2 years for actions charging malpractice.

"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property."

Plaintiff argues that the two-year period of limitation applies only to actions charging malpractice against physicians, surgeons and dentists and that a malpractice action brought against an attorney falls within the general three-year period of limitation for recovery of damages for injuries to persons or property. ⁶

Defendant, supported by amicus curiae, the State Bar of Michigan, counters that the two-year limitation applies to actions charging malpractice of any member of a state-licensed profession.

In concluding that the period of limitations within which an action charging legal malpractice must be brought is two years, we need not and do not decide whether actions against any professional groups, other than attorneys, are subject to the two-year period of limitations.

Judge Cavanagh, who wrote the dissenting opinion in the Court of Appeals in this case, presented a thorough analysis of the legislative history of M.C.L. § 600.5805; M.S.A. § 27A.5805:

"The legislative history of malpractice actions also lends some support to the conclusion that the two-year limitations period applies.

"The common law permitted actions for legal malpractice as well as for medical malpractice. The Legislature very early provided that these actions could be initiated by civil arrest on the writ of capias ad respondendum. The statute of limitations on these actions was six years.

"These limitation periods were modified by the Judicature Act of 1915. That act provided a three-year period for '(a)ctions to recover damages for injuries to person or property'. 1915 C.L. 12323(2). A shorter, two-year period was provided for malpractice, but it was limited to the 'malpractice of physicians, surgeons or dentists'. 1915 C.L. 12323(3).

"These provisions remained unchanged until passage of the Revised Judicature Act in 1961. That act, quoted at the outset of this opinion (see M.C.L. 600.5805(3); M.S.A. 27A.5805(3) quoted above) dropped the language limiting the malpractice statute to physicians, surgeons or dentists. The general three-year statute for injuries to persons or property remained unchanged.

"The act, and parallel court rule revisions, also rewrote the procedures for initiation of malpractice suits. The writ of capias ad respondendum was abolished, all suits were to be commenced by filing a complaint, and summons succeeded capias as the process to be served on the defendant. The statute authorizing use of capias for initiation of a malpractice suit was repealed with abolition of the writ, leaving the common law as the exclusive source for rights of action for legal and medical malpractice.

"Viewing these several revisions as an interrelated whole, it might reasonably be inferred that the abolition of the special procedures for malpractice suits, and the apparent broadening of the medical malpractice statute of limitations, were parts of a general plan for simplification and consolidation of the laws relating to the malpractice of both professions. This interpretation is strengthened by the simultaneous revision of the statute authorizing malpractice actions against charlatans, which was extended to include actions 'against any person professing or holding himself out to be a member of a state licensed profession'." (Footnotes omitted.) 85 Mich.App. 20, 25-27, 270 N.W.2d 522 (1978).

We agree that the legislative history of the provision in question, particularly including the omission of the language of limitation "of physicians, surgeons or dentists" from the two-year limitation period for actions sounding in malpractice, is strong support for the proposition that the two-year limit of M.C.L. § 600.5805(3); M.S.A. § 27A.5805(3) applies to both medical and legal malpractice.

More importantly, however, settled rules of statutory construction unmistakably confirm the fact that actions charging attorney malpractice are subject to the two-year period of limitation.

In Jones v. Grand Ledge Public Schools, 349 Mich. 1, 9, 84 N.W.2d 327 (1957), this Court, in quoting Justice Cooley from the early case of People ex rel. Twitchell v. Blodgett, 13 Mich. 127 (1865), reiterated the foremost rule of statutory construction:

" 'There are certain well-settled rules for the construction of statutes, which no court can safely disregard. Where the statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it. They may give a sensible and reasonable interpretation to legislative expressions which are obscure, but they have no right to distort those which are clear and intelligible. The fair and natural import of the terms employed, in view of the subject matter of the law, is what should govern.' "

It is clear that we are dealing with a statute whose language is plain and unambiguous on its face. M.C.L. § 600.5805(3); M.S.A. § 27A.5805(3) states that actions charging malpractice shall be brought within two years. Undoubtedly relying on that plain language, several Court of Appeals decisions ⁷ and a legal commentator ⁸ have concluded that the two-year statutory provision is applicable to actions charging legal malpractice. We reach the same conclusion. Once a statute has been declared unambiguous on its face, there is no room for further construction; legislative intent must be gleaned from the clear and explicit words of the statute. ⁹

We observe, however, that the word malpractice, as it is used in M.C.L. § 600.5805(3); M.S.A. § 27A.5805(3), although clear and explicit, is nowhere defined in the Revised Judicature Act. Plaintiff urges this Court to adopt the definition of malpractice used in Kambas v. St. Joseph's Mercy Hospital of Detroit, 389 Mich. 249, 205 N.W.2d 431 (1973). In Kambas, the Court held that the two-year period of limitation for malpractice actions did not apply to a suit charging negligence of registered nurses in the performance of their professional duties. Instead, nurses were subject to the three-year...