Brownell v. Garber

503 N.W.2d 81, 199 Mich. App. 519
CourtMichigan Court of Appeals
DecidedMay 3, 1993
DocketDocket 134602
StatusPublished
Cited by49 cases

This text of 503 N.W.2d 81 (Brownell v. Garber) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brownell v. Garber, 503 N.W.2d 81, 199 Mich. App. 519 (Mich. Ct. App. 1993).

Opinions

Shepherd, J.

This is a legal malpractice and fraud case. Plaintiff appeals as of right from the trial court’s October 12, 1990, opinion and order granting defendant’s motion for summary disposition on the ground that the period of limitation had run. We affirm in part and reverse in part.

Plaintiff initiated divorce proceedings in 1984. When his counsel moved out of state in mid-1984, plaintiff retained defendant to prosecute the divorce action and, plaintiff alleges, render tax advice. According to plaintiff, he agreed to the property settlement negotiated by defendant because of defendant’s "assurances” that "the agreed-to divi[522]*522sion of property represented an after-tax '50-50’ split of the property of the parties.” Plaintiff further alleges:

As part of Defendant’s representation of Plaintiff during those divorce proceedings, Defendant billed Plaintiff $5,500.00 for tax advice, research and conferences with Plante & Moran, a C.P.A. firm.

Plaintiff claims that defendant incorrectly advised him regarding the tax consequences of taking title pursuant to the property settlement of certain realty by purchasing his wife’s interest. Plaintiff alleges:

21. Defendant Garber failed to advise Plaintiff that cash payments made to Mrs. Brownell to buy out her share of that asset would not adjust Plaintiff Brownell’s basis in that realty upwards, nor did he advise that such payments could not be used to reduce his capital gains income tax liability upon any future sale of that realty.
22. In 1988, Plaintiff sold that realty in St. Clair. In connection with preparation of his 1988 income tax return in early April, 1989, Plaintiff was advised by his accountant that the funds paid to Mrs. Brownell would not serve to increase his basis in the property, and that his income tax liability would thus be some $23,000.00 higher than expected.

The complaint seeks damages in three counts: malpractice, breach of contract, and fraud. Plaintiff seeks $38,783 in damages, itemized as follows:

a) $5,500.00 in apparently unnecessary tax-related fees;
b) $23,500.00 in additional tax liabilities; and
c) $9781.00 in legal fees for nonexistent or inadequate legal representation.

[523]*523The divorce judgment was entered in February 1986 and amended in April and June, 1986. It is undisputed that defendant did not represent plaintiff after June 1986. As noted, plaintiff claims he first learned of the tax consequences of the property settlement in April 1989. This action was commenced on November 13, 1989.

The trial court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) on the ground that the period of limitation had run. On appeal, plaintiff argues that the trial court ignored his claims for fraud and breach of contract and disregarded his argument that defendant fraudulently concealed the cause of action, thus making it subject to the special two-year period of limitation running from the date the cause of action is discovered or should have been discovered.

Generally, a legal malpractice action must be brought within two years of the date the attorney discontinues serving the plaintiff or within six months after the plaintiff discovers or should have discovered the claim, whichever is later. MCL 600.5805(4); MSA 27A.5805(4); MSA 600.5838(2); MSA 27A.5838(2); Seebacher v Fitzgerald, Hodgman, Cawthorne & King, PC, 181 Mich App 642, 646; 449 NW2d 673 (1989). However, the fraudulent concealment of the existence of a cause of action makes the bringing of the action subject to the special two-year period of limitation of MCL 600.5855; MSA 27A.5855, which provides:

If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is [524]*524entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.

In his brief on appeal, plaintiff asserts that his complaint was filed seven months after his discovery of defendant’s alleged fraudulent concealment. Plaintiff "concedes that his Complaint was filed more than two years after [defendant] last performed legal services for [plaintiff] and more than six months after [plaintiff] learned of his additional tax liability. However, [plaintiff’s] Complaint herein was filed within two years of his discovery of the added tax burden.” It is plaintiff’s contention that MCL 600.5855; MSA 27A.5855 saves his malpractice claim.

i

The trial court ruled that plaintiff’s allegations sounded in malpractice and, on the authority of Barnard v Dilley, 134 Mich App 375; 350 NW2d 887 (1984), applied the statute of limitations applicable to claims of malpractice, instead of the statute applicable to claims of breach of contract. Defendant argues on appeal, as he did below, that he had a "special contract” of the type referred to in Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957). In that case, the defendant, a doctor, expressly agreed to perform a Caesarean section and then failed to do so, with the result that plaintiff’s vaginal delivery produced a stillborn child. The Court noted that a malpractice action is predicated upon the failure to exercise the requisite skill, whereas a contract action is based upon the professional’s failure to perform " 'a special agreement.’ ” Id. at 468.

[525]*525Authority does exist for holding an attorney liable under a contract theory. In Bessman v Weiss, 11 Mich App 528, 531; 161 NW2d 599 (1968), cert den 396 US 1008 (1970), this Court quoted a discussion of a "special contract” in the legal setting from Babbitt v Bumpus, 73 Mich 331, 337-338; 41 NW 417 (1889):

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. Nor can more than ordinary care and diligence be required of him, without a special contract is made requiring it.

A close reading of plaintiffs allegations in this case discloses no agreement by defendant that his services would be above the level required by the standard of care. Plaintiff argues that he informed defendant that he wanted defendant to negotiate a property settlement that would result in a 50/50 split after tax considerations. However, the fact that defendant undertook to represent plaintiff after the announcement of this objective does not constitute a warranty that the objective would be achieved. In other words, plaintiff has not alleged that defendant guaranteed a certain result. Rather, it appears from the allegations that the "contractual” duties allegedly breached by defendant are indistinguishable from the duty to render legal services in accordance with the applicable standard of care.

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Cite This Page — Counsel Stack

Bluebook (online)
503 N.W.2d 81, 199 Mich. App. 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brownell-v-garber-michctapp-1993.