BROWNELL
v.
GARBER
Docket No. 134602.
Michigan Court of Appeals.
Submitted August 12, 1992, at Detroit. Decided May 3, 1993, at 9:20 A.M.Maurer & Kalls (by Kenneth W. Kalls), for the plaintiff.
Law Offices of Sullivan and Leavitt, P.C. (by Martin J. Leavitt and Paul E. Robinson), for the defendant.
Before: NEFF, P.J., and GRIBBS and SHEPHERD, JJ.
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 division *522 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 The 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 entitled 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 Authority 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 U.S. 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 N.W. 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 plaintiff's 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.
The following allegations are set forth in count II of plaintiff's complaint:
*526 27. Plaintiff contracted with Defendant to have Defendant advise him, and represent him in connection with Plaintiff's then pending divorce action, for which Plaintiff agreed to pay Defendant at the rate of $125/hr.
28. Defendant agreed and contracted to represent Plaintiff's position and to follow Plaintiff's lawful instructions in the divorce litigation.
29. Defendant breached said contract by utterly failing to properly advise Plaintiff as to tax consequences of the proposed division of the marital estate, despite billing Plaintiff $5,500 for tax-related services.
In plaintiff's brief on appeal the contract is described as "a special agreement to render tax advice, and not just a general retention of [defendant] for representation in a divorce dispute." Elsewhere, plaintiff states that "what was specifically promised" was that defendant would "render competent tax advice."
The type of interest allegedly harmed is the focal point in determining which limitation period controls. Barnard, supra at 378. Plaintiff's contract with defendant for legal services was "one to exercise appropriate legal skill in providing representation." Id.; see also Aldred v O'Hara-Bruce, 184 Mich. App. 488; 458 NW2d 671 (1990), and Seebacher, supra at 646 (advice concerning the most favorable tax treatment of pension funds). The trial court did not err in concluding that plaintiff's attempts to plead a contract action should be considered duplicative of the malpractice claim.
II
Plaintiff next argues that the trial court erroneously dismissed his malpractice claim on the basis that it was barred by the statute of limitations. *527 We agree. Although summary disposition on this ground may eventually succeed, it was premature when granted.
The trial court rejected plaintiff's claim that the action was subject to the special period of limitation of the fraudulent concealment statute, MCL 600.5855; MSA 27A.5855. Citing Seebacher, supra, and Stroud v Ward, 169 Mich. App. 1; 425 NW2d 490 (1988), the trial court ruled that "[i]n order for fraudulent concealment to postpone the running of a limitations period, the fraud must be manifested by some affirmative act or misrepresentation; mere silence on the part of the defendant is not enough." The court then concluded that "plaintiff has not shown that defendant did anything to affirmatively conceal the discovery of the alleged wrongdoing."
We agree with plaintiff that the trial court overlooked an exception to the "affirmative act" rule. As this Court explained in Lumber Village, Inc v Siegler, 135 Mich. App. 685, 694-695; 355 NW2d 654 (1984):
As a general rule, for fraudulent concealment to postpone the running of the period of limitation, the fraud must be manifested by an affirmative act or misrepresentation. An exception to this rule is that there is an affirmative duty to disclose where the parties are in a fiduciary relationship. [Citations omitted.]
See also Carr v Wittingen, 182 Mich. App. 275, 281; 451 NW2d 584 (1990), rev'd in part 435 Mich. 856 (1990); Bradley v Gleason Works, 175 Mich. App. 459, 462-464; 438 NW2d 330 (1989); Eschenbacher v Hier, 363 Mich. 676, 680; 110 NW2d 731 (1961) (lamenting the fact that then-recent fraudulent concealment cases drew "no distinction ... between those who deal with one another at arm's *528 length and those whose relationship is confidential or fiduciary"; also suggesting that a higher standard than the arm's-length standard should be applied to doctors); McNaughton v Rockford State Bank, 261 Mich. 265, 268; 246 N.W. 84 (1933) ("regard must be had for the distinction between actions based on fraud or breach of trust ... and those where such misconduct does not taint the cause of action. As to the latter, mere silence on the part of the defendant is not fraudulent concealment of the cause of action.")
There can be no doubt that an attorney owes fiduciary duties to a client. See, e.g., Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler, PC, 107 Mich. App. 509, 515; 309 NW2d 645 (1981).
The legal malpractice cases cited by the trial court, Seebacher and Stroud, simply recite the rule that fraudulent concealment must consist of affirmative acts. These cases do not take note of the fiduciary relationship exception, and, to the extent they can be read to say that no such exception exists, they were wrongly decided. With respect to Stroud the failure to mention this exception is understandable in light of the fact that such exception was not dispositive in that case. In Stroud, this Court concluded that the suit was untimely because it was not filed until March 1985, even though the plaintiff knew of the existence of the claim in September 1978.
In Seebacher, it appears that the defendants simply rendered erroneous tax advice. There was no allegation that they failed to research the tax consequences or that they either failed to disclose that they had not done so or represented that they had done so. In other words, there is no allegation that the defendants in Seebacher were themselves aware of the existence of a cause of action. No fraudulent concealment can be said to occur where *529 an attorney is unaware of his malpractice. It would be illogical to hold that attorneys who fail to appreciate that they have breached the standard of care have a duty to disclose such a breach notwithstanding their ignorance thereof. See 2 Mallen & Smith, Legal Malpractice (3d ed), § 18.13, p 126.
In any event, in this case, plaintiff alleges more than mere silence. In deciding a motion for summary disposition under MCR 2.116(C)(7), a court must accept all the plaintiff's well-pleaded allegations as true and construe them most favorably to the plaintiff. Wade v Dep't of Corrections, 439 Mich. 158, 162-163; 483 NW2d 26 (1992).
In determining what period of limitation is applicable, we must recognize that there are three possible situations under which an action of legal malpractice may arise:
1. The case in which the malpractice is not fraudulently concealed and is apparent at the time it is committed. In such a case, the two-year period begins to run when the act of malpractice occurs. MCL 600.5805(4); MSA 27A.5805(4).
2. The case in which the act of malpractice is not fraudulently concealed, but the fact that the act constitutes malpractice is not apparent at the time it occurs. In such a case, if the two-year malpractice period of limitation has already run, the plaintiff has six months from the date the claim is discovered or should have been discovered within which to bring an action. MCL 600.5838(2); MSA 27A.5838(2).
3. The case in which an act of malpractice is fraudulently concealed. Under MCL 600.5855; MSA 27A.5855, the plaintiff has two years from the date the claim is discovered or should have been discovered within which to bring an action.
Accordingly, we must determine what type of *530 case is being alleged here. To the extent that plaintiff's complaint alleges that defendant researched the tax question but, for reasons unknown, concealed the true results of his research and consultation from plaintiff, plaintiff's claim of legal malpractice is time-barred because it falls into one of the first two situations.
However, plaintiff, in raising a separate cause of action for fraud, pleads a bar to the defense that the period of limitation had run with respect to his legal malpractice claim. On this fraudulent concealment theory, plaintiff's allegations may be read to say that defendant failed to do any tax research, while representing to plaintiff that he researched the question carefully, consulted with "income tax experts," and came to the conclusion that the property settlement would effectuate a 50/50 split after tax considerations. Specifically, the allegations of fraud are made in count III of plaintiff's complaint:
34. Defendant represented to Plaintiff not only that the proposed Judgment of Divorce provided for a "50-50" after-tax split of the spousal assets, but that such a conclusion was arrived at by Defendant only after hours of tax research and consultation with income tax experts.
37. The aforesaid representations by Defendant were false when made.
In addition, plaintiff alleges that defendant made similar representations by sending a bill that included itemizations for tax research and conferences with an accounting firm. Plaintiff's complaint must be read as alleging that no consultation with the accounting firm in fact took place. To the extent that plaintiff's complaint alleges an act of malpractice that was fraudulently concealed, plaintiff's legal malpractice claim is not *531 time-barred because it falls within the third situation outlined above.
Therefore, if plaintiff can prove that defendant fraudulently billed plaintiff for services not rendered and represented that the services were rendered, then a jury could conclude that such action was intended to fraudulently conceal plaintiff's cause of action for defendant's malpractice in failing to research the tax aspects of the divorce judgment and in failing to consult with tax experts while claiming to have done so. If, however, the proofs demonstrate that defendant did in fact research the question and consult with the accounting firm, but negligently rendered inaccurate advice, no fraudulent concealment within the meaning of MCL 600.5855; MSA 27A.5855 exists, and the claim is barred by MCL 600.5805(4); MSA 27A.5805(4) and MCL 600.5838(2); MSA 27A.5838(2) because plaintiff did not file his complaint within six months of discovery of the alleged malpractice. The essential point is that in order to be within the statutory period of limitation plaintiff must prove that defendant fraudulently concealed the existence of the cause of action by failing to disclose that he had either failed to research the tax questions or failed to consult with the accounting firm, thereby intentionally misleading plaintiff into accepting the divorce settlement. In the absence of fraudulent concealment, the complaint for malpractice does not survive. Thus, the continued viability of plaintiff's legal malpractice claim rises or falls on whether there was fraudulent concealment.
Because we are required to accept all well-pleaded allegations as true and to construe the allegations most favorably toward plaintiff, and because defendant has not challenged the factual sufficiency of plaintiff's claims regarding fraudulent *532 concealment, we are required to reverse the trial court's order dismissing the malpractice claim.
III
Plaintiff next argues that the trial court erred in dismissing the fraud claim or in treating it as merely a restatement of plaintiff's malpractice claim and applying the malpractice limitation period. We agree.
The trial court cited Barnard, supra, in support of its conclusion that "the breach of contract and fraud claims stated are for legal malpractice only and for reasons discussed above are barred by the statute of limitations." In Barnard, this Court held that where a client characterizes a claim against an attorney as a negligence claim and the duty element of the negligence claim is supplied by the existence of an attorney-client relationship, "the tort claim is one for malpractice and malpractice only." Barnard, supra at 378-379.
Barnard did not address a fraud claim. However, as noted, Barnard stated that "[t]he type of interest allegedly harmed is the focal point in determining which limitation period controls." Id. at 378. Applying this test, we conclude that the interest involved in a claim for damages arising out of a fraudulent misrepresentation differs from the interest involved in a case alleging that a professional breached the applicable standard of care. Simply put, fraud is distinct from malpractice. See 1 Mallen & Smith, supra, § 8.8, p 421.
Fraud is no less actionable because it is committed by an attorney with whom the plaintiff has an attorney-client relationship. Id. If a client attempts to characterize a malpractice claim as a fraud or other type of claim, a court will look through the *533 labels placed on the claim and will make its determination on the basis of the substance and not the form. However, when a complaint alleges not only malpractice but also all the necessary elements of fraud, the statute of limitations governing fraud actions will apply to the fraud count and, if such count is not barred, the plaintiff may proceed on that court to collect damages proximately caused by the alleged fraud. See Central Trust Co v Goldman, 70 AD2d 767; 417 NYS2d 359 (1979), app dis 47 NY2d 1008 (1979). An attorney's advice or opinion, if knowingly false, may constitute fraud. 1 Mallen & Smith, supra, pp 421-422.
The elements of a cause of action for fraud are:
"(1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery." [Scott v Harper Recreation, Inc, 192 Mich. App. 137, 144; 480 NW2d 270 (1991).]
Plaintiff has alleged facts supporting all the foregoing elements. In essence, plaintiff contends that defendant: (a) knew that the property settlement would have adverse tax consequences at the time he recommended it while representing otherwise, or (b) never looked into the tax aspects of the property settlement notwithstanding explicit representations to the contrary and implied representations in the form of billings leading plaintiff to believe that the tax consequences were either *534 researched or based upon allegedly nonexistent consultations with an accounting firm. Plaintiff alleges that he relied on the foregoing representations in agreeing to the divorce judgment. Injury has also been alleged.
Defendant argues that there is no factual support for plaintiff's claims. That question is not before us. Defendant's motion was brought solely under MCR 2.116(C)(7) (statute of limitations), and the trial court was thus required to accept all well-pleaded allegations as true. Wade, supra. Nothing in this opinion precludes defendant from testing the factual support of plaintiff's allegations of fraudulent concealment of the malpractice or of his fraud count in a motion for summary disposition under both MCR 2.116(C)(7) and (C)(10). Summary disposition of the fraud and malpractice claims may yet be appropriate if plaintiff cannot plead facts that raise a genuine issue of material fact with respect to the allegations in his fraud count and to his malpractice claim that is subject to the special statute of limitations applicable where there has been fraudulent concealment of a cause of action.
Contrary to the dissenting opinion, this case does not stand for the proposition that "every attorney who commits a legal error ... and who bills his client for such services, will also be liable for fraudulent concealment." For emphasis we wish to stress that if all plaintiff can prove is that defendant's research was inadequate or that after consulting with the accounting firm defendant rendered bad advice, this claim would be barred by the statute of limitations. If defendant can show that he did not rely on his general knowledge of tax law but conducted at least some research and that he did consult with the accounting firm, plaintiff's claim does not survive. This is because *535 plaintiff has alleged that defendant made specific representations about having researched the tax questions and about consulting with accountants and that such fraudulent representations induced him to accept the settlement. This opinion should not be read to hold that the mere failure to do research or engage in consultations tolls or extends the period of limitation.
Affirmed in part and reversed in part. Remanded for further proceedings. We do not retain jurisdiction.
NEFF, P.J., concurred.
GRIBBS, J. (dissenting).
I dissent from that part of the majority opinion that reverses the decision of the trial court. The instant case is virtually identical to Seebacher v Fitzgerald, Hodgman, Cawthorne & King PC, 181 Mich. App. 642; 449 NW2d 673 (1989). In both Seebacher and the instant case, an attorney was retained to provide general legal representation with an emphasis on tax advice. In each case, the plaintiff clearly failed to file his complaint before the period of the applicable statute of limitations for legal malpractice had run. In each case the plaintiff sought to circumvent the statute of limitations by alleging that the defendant failed to notify the plaintiff of the possible grounds for malpractice, thus, fraudulently concealing the claim of malpractice and justifying the application of the special limitation period of MCL 600.5855; MSA 27A.5855. Furthermore, in each case, the plaintiff alleged that there existed a special arrangement, over and above the general retention for legal services, to provide special services for tax advice.
In Seebacher, this Court held that it is the type of interest harmed, rather than the label given the *536 claim, that determines what limitation period controls. This Court concluded that the statute of limitations for legal malpractice applies to a legal malpractice action even when the action is denominated as one for breach of a contract to render competent legal services. In affirming the dismissal of the claims, this Court in Seebacher, supra, p 648, also held that "[i]n order to exist, the fraud must be manifested by some affirmative act or misrepresentation. Mere silence of the defendant is not enough."
If this Court accepts the position advocated by plaintiff, every attorney who commits a legal error, which may later be deemed malpractice, and who bills his client for such services, will also have to defend against claims of fraudulent concealment and common-law fraud, unless the attorney immediately discloses the possibility that legal malpractice occurred.
I agree with the trial court that all three counts in this case sound in legal malpractice. Plaintiff failed to plead fraud with the requisite specificity, and I would decline to give him another opportunity to pursue the matter.
I would affirm the decision of the trial court.