Simko v. Blake, Docket No. 97579

• Decision Date: 23 May 1995
• Docket Number: Docket No. 97579,No. 8,8
• Citation: 532 N.W.2d 842,448 Mich. 648
• Parties: Arthur Louis SIMKO, Margaret A. Simko, and Tara Marie Simko, Plaintiffs-Appellants, v. Marvin BLAKE, Attorney at Law, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 842

532 N.W.2d 842

448 Mich. 648

Arthur Louis SIMKO, Margaret A. Simko, and Tara Marie SimkoPlaintiffs-Appellants, v.Marvin BLAKE, Attorney at Law, Defendant-Appellee.

Docket No. 97579.

Calendar No. 8.

Supreme Court of Michigan.

Argued Oct. 5, 1994.

Decided May 23, 1995.

E. Robert Blaske, Battle Creek, and Thomas H. Blaske, Ann Arbor, for plaintiffs.

Plunkett & Cooney, P.C. by Christine D. Oldani, Mary Massaron Ross, and Patrick M. Barrett, Detroit, for defendant.

Opinion

MALLETT, Justice.

This case presents the question whether an attorney's duty to his client extends beyond what is legally adequate to win a client's case.We hold that attorneys must only act as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances.

Defendant Blake raised a complete defense, did what was legally sufficient to fully vindicate his client's interest, and acted as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances.His alleged acts and omissions were trial tactics based on good faith and reasonable professional judgment.Further, no amount of factual development could reveal a case of malpractice.Thus, we affirm the decision of the Court of Appeals in favor of the defendant.

I

PlaintiffsArthur Louis Simko, Margaret Simko, and Tara Marie Simko filed suit against defendantMarvin Blake, an attorney, alleging that the defendant committed professional malpractice in failing to adequately represent Arthur Simko in a prosecution of possessing over 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(i);M.S.A. § 14.15(7401)(2)(a)(i), and possession of a firearm in the commission or attempt to commit a felony, M.C.L. § 750.227b;M.S.A. § 28.424(2).Although the defendant was convicted and the conviction eventually was reversed by the Court of Appeals, Mr. Simko spent more than two years in prison.

In the underlying criminal case, on the night of March 6, 1987, a state police officer observed a speeding car traveling with its lights flashing in an apparent effort to attract the officer's attention.The car exited the highway and stopped to wait for the police car.The driver of the vehicle alighted from his car and told the police that the passenger, Arthur Simko, needed medical attention.

Plaintiff appeared flushed, was perspiring, and his breathing was labored.The officer summoned an ambulance.While waiting for the ambulance to arrive, the officer discovered what appeared to be drug paraphernalia on the floor of the car.A further search of the car revealed a cup containing cocaine residue, a bullet in plaintiff's pocket, a pistol in the glove compartment, a pistol in the trunk, several rounds of ammunition, and 988 grams of a substance containing cocaine.

Arthur Simko was represented by Marvin Blake.At the close of the prosecution's case, and again at the close of defendant's case, Mr. Blake moved for a directed verdict on the ground that the evidence was insufficient to convict plaintiff.The trial judge denied both motions.Mr. Simko was ultimately found guilty by the jury and sentenced to mandatory sentences of life without parole plus two years.

Arthur Simko then retained another attorney and appealed his conviction.The Court of Appeals reversed; however, by that time, he had already served two years of his prison sentence.¹

At the time plaintiff filed his appeal, he also filed a legal malpractice action against defendant.Arthur Simko alleged that the defendant failed to properly investigate his case and failed to properly prepare to defend him.² Specifically, Mr. Simko alleged that Mr. Blake did not produce any witnesses in his defense besides Mr. Simko himself, failed to produce plaintiff's personal physician who had been treating him for a pinched nerve and who prescribed medication that would have offered an explanation of his medical condition at the time of arrest, and failed to provide Mr. Simko with the name and location of the hotel where Mr. Simko had spent the day before he was arrested that may have protected him from impeachment.

The malpractice action was dismissed by the trial court when it granted defendant's motion for summary disposition.The trial court stated:

The proximate cause of his conviction was the trial court's error in denying the motion for directed verdict in favor of the defendant in the underlying case.

The Court of Appeals, in holding that a directed verdict should have been granted indirectly not only stated that the trial court here erred but that the jury erred as well.

By holding that the standard was satisfied for the granting of a motion for directed verdict, in effect, the Court of Appeals held that a reasonable well-instructed jury could not convict based upon the evidence presented during the course of the trial.

The jury in the underlying case by virtue of the Court of Appeals decision acted unreasonably in light of evidence presented for the jury to consider.

As a result, the defendant Blake cannot possibly be held responsible for the acts of an unreasonable jury.

The Court of Appeals affirmed, ³ stating that

[b]y challenging the sufficiency of the evidence against Simko, Blake raised a complete and ultimately successful defense to both charges....Blake was not Simko's insurer against all possible misfortune....His duty was to raise an adequate defense to the criminal charges, not to protect Simko from judge and jury.[201 Mich.App. 191, 195, 506 N.W.2d 258(1993).]

We affirm the decision of the Court of Appeals and hold that Marvin Blake fulfilled his duty to Arthur Simko.

II

We hold that defendant's motion for summary disposition was properly granted by the trial court because the plaintiffs failed to state a claim upon which relief can be granted.Plaintiffs' complaint and pleadings failed to state a breach of duty.

Pursuant to MCR 2.116(C)(8), a motion for summary disposition is granted if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.A motion of summary disposition is tested on the pleadings alone, and all factual allegations contained in the complaint must be accepted as true.Beaudin v. Michigan Bell Telephone Co., 157 Mich.App. 185, 187, 403 N.W.2d 76(1986);Marcelletti v. Bathani, 198 Mich.App. 655, 500 N.W.2d 124(1993).

III

In order to state an action for legal malpractice, the plaintiff has the burden of adequately alleging the following elements:

(1) the existence of an attorney-client relationship;

(2) negligence in the legal representation of the plaintiff;

(3) that the negligence was a proximate cause of an injury; and

(4) the fact and extent of the injury alleged.[Coleman v. Gurwin, 443 Mich. 59, 63, 503 N.W.2d 435(1993).]

SeeEspinoza v. Thomas, 189 Mich.App. 110, 115, 472 N.W.2d 16(1991);McCluskey v. Womack, 188 Mich.App. 465, 473, 470 N.W.2d 443(1991);Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 778-779, 447 N.W.2d 864(1989).See alsoCharles Reinhart Co. v. Winiemko, 444 Mich. 579, 586, 513 N.W.2d 773(1994).

The first element the plaintiff must prove is "duty.""Duty" is any obligation the defendant has to the plaintiff to avoid negligent conduct.Moning v. Alfono, 400 Mich. 425, 432, 254 N.W.2d 759(1977).In negligence actions, the existence of duty is a question of law for the court.Antcliff v. State Employees Credit Union, 414 Mich. 624, 640, 327 N.W.2d 814(1982).See alsoMoning, supra.

In legal malpractice actions, a duty exists, as a matter of law, if there is an attorney-client relationship."Whenever an attorney or solicitor is retained in a cause, it becomes his implied duty to use and exercise reasonable skill, care, discretion and judgment in the conduct and management thereof."Eggleston v. Boardman, 37 Mich. 14, 16(1877)(emphasis added);Babbitt v. Bumpus, 73 Mich. 331, 41 N.W. 417(1889).See alsoMRPC 1.0 to 1.3.In the instant case, the parties admitted that an attorney-client relationship existed between Mr. Simko and Mr. Blake.Thus, the issue is not whether a duty existed, but rather the extent of that duty once invoked.

It is well established that "[a]n attorney is obligated to use reasonable skill, care, discretion and judgment in representing a client."Lipton v. Boesky, 110 Mich.App. 589, 594, 313 N.W.2d 163(1981), citingEggleston, supra at 16;Joos v. Auto-Owners Ins. Co., 94 Mich.App. 419, 422, 288 N.W.2d 443(1979).Further, according to SJI2d 30.01, all attorneys have a duty to behave as would an attorney "of ordinary learning, judgment or skill ... under the same or similar circumstances...."

An attorney has the duty to fashion such a strategy so that it is consistent with prevailing Michigan law.However, an attorney does not have a duty to insure or guarantee the most favorable outcome possible.An attorney is never bound to exercise extraordinary diligence, or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession.See7 Am.Jur.2d, Attorneys at Law, § 199, p. 249, n. 92, citingBabbitt, supra;Goodman & Mitchell v. Walker, 30 Ala. 482(1857);Glenn v. Haynes, 192 Va. 574, 66 S.E.2d 509, 26 A.L.R.2d 1334(1951);Ward v. Arnold, 52 Wash.2d 581, 328 P.2d 164(1958).

In Babbitt, supra at 337, 41 N.W. 417, this Court held that

[a] lawyer is not an insurer of the result in a case in which he is employed, unless he makes a special contract to that effect, and for that purpose.Neither is there any implied contract, when he is employed in a case, or any matter of legal business, that he will bring to bear learning, skill, or ability beyond that of the average of his profession.

See alsoBessman v. Weiss, 11 Mich.App. 528, 161 N.W.2d 599(1968).

Furthermore, in Joos, supra at 422, 288 N.W.2d 443, the Court of Appeals held that an attorney only must act with the skill, learning, and ability of the "average practitioner of law."See alsoBasic...