Sifers v. Horen, Docket No. 7115

• Decision Date: 27 February 1970
• Docket Number: Docket No. 7115,No. 2,2
• Citation: 177 N.W.2d 189,22 Mich.App. 351
• Parties: Letha SIFERS, Administratrix of the Estate of Roger W. Sifers, Deceased, Plaintiff-Appellee and Cross-Appellant, v. H. Solomon HOREN, Defendant-Appellant and Cross-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 189

177 N.W.2d 189

22 Mich.App. 351

Letha SIFERS, Administratrix of the Estate of Roger W.

Sifers, Deceased, Plaintiff-Appellee and Cross-Appellant, v. H. Solomon HOREN, Defendant-Appellant and Cross-Appellee.

Docket No. 7115.

Court of Appeals of Michigan, Division No. 2.

Feb. 27, 1970.

Released for Publication June 5, 1970.

George E. Potter, Anderson, Patch, Potter & Patch, Jackson, for defendant-appellant and cross-appellee.

Phillip C. Kelly, Kelly, Kelly & Kelly, Jackson, for plaintiff-appellee and cross-appellant.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

HOLBROOK, Judge.

Plaintiff herein is a resident of Jackson county and administratrix of the estate of her deceased son who was a resident of Michigan at the time of his death the result of being fatally injured in an automobile accident occurring in the state of Kentucky. An agreed statement of facts has been filed which is restated in part as follows:

'Defendant is a resident of and a duly licensed attorney-at-law in the State of Kentucky, who, in May, 1963, appeared at a Seminar of Lawyers at Saginaw, holding himself out to be a specialist in personal injury and negligence law and practice, and lectured to Michigan Lawyers on the subject, said Seminar continuing for some three days.

'The attorney for plaintiff in this cause, who had been retained by plaintiff in the original case, which was required to be filed in Kentucky, conferred with defendant at Saginaw as to the claim for death of plaintiff's son and, upon defendant's representations that he was fully qualified and competent to represent plaintiff in the Courts of Kentucky in such action, retained defendant for such purpose, by letter agreement dated November 7, 1963, a copy of which is hereto attached and marked Exhibit E.

'After said defendant had filed the action in the Kentucky Court, he again appeared in Michigan at a Seminar of Michigan lawyers on personal injury law, this time at Detroit and, at his request, the attorney for plaintiff went to Detroit with plaintiff and her husband, where they met with defendant, who discussed the pending case with them, preparing their testimony, and advising them concerning their case, as attorney for plaintiffs, in preparation for the trial thereof.

'The case was tried at Louisville, Kentucky in December, 1965, in the course of which trial, plaintiff claims defendant in the case offered to pay plaintiff the sum of $27,500.00 in settlement of the claim for death of her son, which offer defendant Horen advised plaintiff should not be accepted and, acting upon such advice, the settlement offer was rejected and a verdict was thereafter returned for defendant in said action and judgment entered thereon.

'Defendant filed an appeal from said judgment, but thereafter failed to take the necessary steps in prosecuting said appeal in accordance with the rules and laws of the State of Kentucky governing such appeals, which failure was concealed from the attorney for plaintiff by the rufusal of defendant to answer written inquires made to defendant in June, July, September, October and December, 1966, during which time defendant, by his inaction and refusal to inform plaintiff's attorney thereof, allowed the rights of plaintiff in said appeal to lapse and plaintiff's attorney learned, from the Kentucky Court of Appeals, in February, 1967, that said appeal had been dismissed on October 11, 1966.

'On April 14, 1967, plaintiff filed suit against defendant in the Circuit Court for the County of Jackson, Michigan to recover damages claimed to have been sustained by decedent's estate as the result of defendant's handling of said lawsuit in Kentucky. In her Complaint, plaintiff alleges defendant 'was guilty of negligence, gross negligence and fraudulent conduct in failing in the performance of his duties in the representation of said Estate and in the prosecution of said appeal, as a direct and proximate result of which said appeal was dismissed on motion of defendant without hearing on the merits.' A summons and a copy of the Complaint were served upon defendant by registered mail on December 11, 1967, this service being made by order of Court under GCR 1963, 105.8.'

Defendant filed a motion for accelerated judgment based upon the claim that the Michigan court did not have a general or limited personal jurisdiction over him. It was plaintiff's claim at the hearing on the motion that the Jackson county circuit court had limited personal jurisdiction over defendant under the provisions of C.L.S.1961 § 600.705(1), (2) (Stat.Ann.1962 Rev. § 27A.705(1), (2)) which reads:

'The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts to record of this state to exercise limited personal jurisdiction over such individual and to enable such courts to render personal judgments against such individual or his representative arising out of the act or acts which create any of the following relationships:

'(1) The transaction of any business within the state.

'(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.'

The trial court ruled that the defendant's motion for an accelerated judgment would be denied because plaintiff had shown a sufficient basis for limited personal jurisdiction over defendant under C.L.S.1961 § 600.705(2), but ruled that there was no basis for limited personal jurisdiction under C.L.S.1961 § 600.705(1).

The defendant claiming error in the denial of the motion for accelerated judgment has appealed and the plaintiff has cross-appealed claiming error by the trial court in its ruling that the act or acts of the defendant in the state of Michigan did not constitute the transaction of any business within the state.

We will first consider the cross-appeal of plaintiff which asserts that defendant is subject to the limited personal jurisdiction of the circuit court for Jackson county because of the relationship of the defendant and the state, under C.L.S.1961 § 600.705(1):

'The transaction of Any business within the state.' (Emphasis supplied.)

The plaintiff and her attorney, Mr. Kelly, were residents of Michigan; the defendant was a licensed attorney at law and resident of...