Manzo v. Petrella & Petrella & Associates, PC

683 N.W.2d 699, 261 Mich. App. 705
CourtMichigan Court of Appeals
DecidedMay 4, 2004
DocketDocket No. 245735
StatusPublished
Cited by34 cases

This text of 683 N.W.2d 699 (Manzo v. Petrella & Petrella & Associates, PC) 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
Manzo v. Petrella & Petrella & Associates, PC, 683 N.W.2d 699, 261 Mich. App. 705 (Mich. Ct. App. 2004).

Opinion

DONOFRIO, J.

Defendants appeal by leave granted an order denying their motion for summary disposition. After this Court denied defendants’ initial application for leave to appeal, our Supreme Court remanded the case to this Court in lieu of reviewing this legal malpractice action. 467 Mich 930 (2002). Defendants argue that the trial court erred when it did not grant their summary disposition motion. Plaintiff is unable to meet his burden of proving causation in the legal malpractice claim because he cannot show a viable claim under the Whistleblowers’ Protection Act, MCL 15.361 et seq. We reverse and remand.

Defendant Petrella represented plaintiff in a suit filed against his former employer, Henry Ford Health System, and numerous individuals and related entities. Plaintiff began working for Henry Ford Health System (HFHS) in 1988 and is a board-certified ophthalmologist. In 1997 friction developed between plaintiff and his division head, Dr. Bogorad. Plaintiff accused Dr. Bogorad of using his position to make sure that he saw patients with particular problems and especially those who needed surgery, apparently because surgical procedures generate more revenue than routine eye care. Plaintiff claims that this made it increasingly difficult for plaintiff and other ophthalmologists to schedule and perform surgery, which not only meant that plaintiff [708]*708was losing the opportunity to keep his surgical skills current, but also meant that his patients had less or delayed access to surgical procedures. Plaintiff, at some point, also raised concerns regarding allegedly improper billing practices by Dr. Bogorad and others whom he supervised.

According to plaintiffs former employer and the others that he sued in the original action, plaintiff was a disruptive influence in Dr. Bogorad’s division, for example, plaintiff actively solicited other staff members at HFHS’s West Bloomfield and Troy facilities to support his campaign against Dr. Bogorad by signing letters in support. When plaintiff accused Dr. Bogorad of being “subversive, manipulative, and derelict” in his duties, Dr. Nussbaum, chairperson of the HFHS eye care services department, requested a six-month probationary period be imposed upon plaintiff in light of his behavior and bad judgment. The vice president of medical affairs agreed with the request.

In July 1997 plaintiff retained defendants to represent him in connection with the administrative actions being taken or contemplated against him. Plaintiff appealed to the HFHS Professional Standards and Conduct Committee (PSCC). Following a hearing held in December 1997, plaintiff and his attorney received a letter placing him on decision-making leave for one week. Plaintiff was expected to resign or face further action. When plaintiff refused to resign, his employment and staff membership with the hospital were terminated by letter to counsel dated February 10, 1998. Further administrative appeals upheld the termination.

Later that year, on September 9, 1998, defendant Marisa C. Petrella filed a complaint on plaintiffs behalf in the circuit court alleging breach of contract, promis[709]*709sory estoppel, defamation, violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361, et seq., retaliatory or constructive discharge, religious or ethnic origin discrimination, tortious interference ■ with advantageous business relationship, and misappropriation of name. Hfhs moved for summary disposition on all counts. In connection with the WPA claim, HFHS argued that it was untimely because it was filed more than ninety days after plaintiffs discharge. HFHS also argued in the alternative that plaintiff could not establish a prima facie whistleblower violation case. After a hearing, the trial court granted summary disposition on most of the counts of the complaint. In connection with the whistleblower’s action, the court agreed that it was untimely, and that plaintiffs attempt to state a separate cause of action under the Public Health Code, MCL 333.20180, was likewise time-barred. The trial court stated:

While arguably, plaintiff, would have the protection of the whistleblower’s protection act, plaintiff is still bound by the statute of limitations for such claims, and there is no dispute that the complaint was filed in excess of 90 days after the termination.
Plaintiffs argument that the statute must be told [sic], is without authority, and otherwise unpersuasive. The motion is granted as to count 4.
With regard to count 5, which alleges retaliation. The Public Health Code provides no separate right of action other than the referenced application to the whistleblower’s protection act. As such, this count is also dismissed as to the whistleblower’s claim is time-barred.

According to defendants, an order was entered on May 31, 2000. The order was not appealed, and the case was eventually resolved after all parties accepted the results of case evaluation.

[710]*710Plaintiff filed the instant action on September 13, 2000, alleging legal malpractice. Defendants moved for summary disposition, arguing that plaintiff cannot establish the proximate cause element of his cause of action, i.e., cannot prove the “case within a case,” necessary to prevail in a legal malpractice action. Defendants argued that plaintiffs WPA claim should have been dismissed even if it was not untimely because the hospital’s PSCC was not a “public body” within the meaning of the Whistleblowers’ Protection Act, MCL 15.361(d), and because plaintiff had not even alleged that he was discharged for having reported, or for being about to report, a violation or suspected violation of a law or regulation or rule to a public body. Plaintiff responded that the PSCC was a “public body” for purposes of the WPA, and even if it was not, MCL 333.20180 of the Public Health Code in effect made the PSCC a public body for purposes of the WPA.

After hearing argument, the court noted the elements of causes of action for legal malpractice and violation of the WPA, and then denied defendants’ motion for the following reasons:

The court finds that plaintiff has established a prima facie case of legal malpractice. Plaintiff has presented sufficient evidence that there was a factual basis for the Whistleblower’s Act claim, and that but for the statute of limitations problem, his cause of action would have survived the motion for summary disposition. Therefore, defendants’ motion for summary disposition is not appropriate.

An order was entered denying defendants’ motion for the reasons stated by the court on the record. Defendants applied for leave to appeal, arguing that the trial court erred in denying their motion for summary disposition. This Court denied defendants’ motion. Defen[711]*711dants appealed to our Supreme Court which, in lieu of granting leave, remanded the case for our consideration.

This Court reviews de novo the trial court’s decision concerning a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). If genuine issues of material fact do not exist and the moving party is entitled to judgment as a matter of law, summary disposition pursuant to MCR 2.116(0(10) is appropriate. West, supra at 183. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Id., citing

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Bluebook (online)
683 N.W.2d 699, 261 Mich. App. 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manzo-v-petrella-petrella-associates-pc-michctapp-2004.