Peterson v. SIMASKO

Michigan Court of Appeals

Peterson v. SIMASKO

579 N.W.2d 469, 228 Mich. App. 707

CourtMichigan Court of Appeals

DecidedJune 29, 1998

DocketDocket 194651

StatusPublished

This text of 579 N.W.2d 469 (Peterson v. SIMASKO) 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.

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Peterson v. SIMASKO, 579 N.W.2d 469, 228 Mich. App. 707 (Mich. Ct. App. 1998).

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Opinion

Per Curiam.

In this appeal as of right, plaintiff seeks the reinstatement of her legal malpractice action after it was summarily dismissed on defendants’ motion pursuant to MCR 2.116(C)(10). We reverse and remand for trial. This case is being decided without oral argument pursuant to MCR 7.214(E).

*708 To establish the existence of legal malpractice, a plaintiff must show: “(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.” Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995).

Here, plaintiff’s malpractice action is premised on a claim that defendants failed to act within the scope of the duty owed to her when they failed to place a lien on her former husband’s worker’s compensation claim before the claim was paid. Plaintiff asserts that such action was necessary to secure payment to her of that portion of the compensation award to which she was entitled under the terms of the property settlement provision of a judgment of divorce. In light of the nature of plaintiff’s claim, the question before the trial court was whether an attorney of ordinary learning, judgment, or skill, under the circumstances presented in this case, would have placed a lien on the settlement before it was paid to plaintiff’s former husband in October 1992. Simko, supra at 655-656.

The trial court erroneously concluded that Petrie v Petrie, 41 Mich App 80; 199 NW2d 673 (1972), did not provide authority to include within the duty defendants owed plaintiff an obligation to impress a hen for payment of the property settlement against the worker’s compensation award. Petrie expressly provides that financial obligations imposed on a party by a judgment of divorce are not debts for purposes of MCL 418.821; MSA 17.237(821) and, therefore, payment of such obligations may be enforced by impressment of a lien against any worker’s compensation award paid to the obligated party. Petrie, supra at 82- *709 84. Accordingly, an attorney of ordinary learning, judgment, or skill, under the circumstances presented in this case, would have placed a lien on the settlement before it was paid to plaintiffs former husband. Simko, supra at 655-656; see also Teodorescu v Bushnell, Gage, Reizen & Byington (On Remand), 201 Mich App 260, 264-265; 506 NW2d 275 (1993).

Reversed and remanded. We do not retain jurisdiction.

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Per Curiam.

In this appeal as of right, plaintiff seeks the reinstatement of her legal malpractice action after it was summarily dismissed on defendants’ motion pursuant to MCR 2.116(C)(10). We reverse and remand for trial. This case is being decided without oral argument pursuant to MCR 7.214(E).

*708 To establish the existence of legal malpractice, a plaintiff must show: “(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.” Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995).

Here, plaintiff’s malpractice action is premised on a claim that defendants failed to act within the scope of the duty owed to her when they failed to place a lien on her former husband’s worker’s compensation claim before the claim was paid. Plaintiff asserts that such action was necessary to secure payment to her of that portion of the compensation award to which she was entitled under the terms of the property settlement provision of a judgment of divorce. In light of the nature of plaintiff’s claim, the question before the trial court was whether an attorney of ordinary learning, judgment, or skill, under the circumstances presented in this case, would have placed a lien on the settlement before it was paid to plaintiff’s former husband in October 1992. Simko, supra at 655-656.

The trial court erroneously concluded that Petrie v Petrie, 41 Mich App 80; 199 NW2d 673 (1972), did not provide authority to include within the duty defendants owed plaintiff an obligation to impress a hen for payment of the property settlement against the worker’s compensation award. Petrie expressly provides that financial obligations imposed on a party by a judgment of divorce are not debts for purposes of MCL 418.821; MSA 17.237(821) and, therefore, payment of such obligations may be enforced by impressment of a lien against any worker’s compensation award paid to the obligated party. Petrie, supra at 82- *709 84. Accordingly, an attorney of ordinary learning, judgment, or skill, under the circumstances presented in this case, would have placed a lien on the settlement before it was paid to plaintiffs former husband. Simko, supra at 655-656; see also Teodorescu v Bushnell, Gage, Reizen & Byington (On Remand), 201 Mich App 260, 264-265; 506 NW2d 275 (1993).

Reversed and remanded. We do not retain jurisdiction.

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579 N.W.2d 469, 228 Mich. App. 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peterson-v-simasko-michctapp-1998.

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