STATE OF MICHIGAN
COURT OF APPEALS
PATRICIA ANN D’ITRI, UNPUBLISHED
January 27, 2015
Plaintiff-Appellant,
v Nos. 315869 and 319038
Ingham Circuit Court
SHARON HOBBS, PH.D., LINDA L. WIDENER, LC No. 11-000779-CZ
and FARHAT & STORY, PC,
Defendants-Appellees.
Before: MURPHY, P.J., and METER and SERVITTO, JJ.
PER CURIAM.
In Docket No. 315869, plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of defendants Sharon Hobbs, Ph.D. (Hobbs), Linda L. Widener,
and Farhat & Story, PC,1 as well as the trial court’s order awarding Hobbs attorney fees and
costs. The case concerns alleged negligence and malpractice relative to psychological
evaluations performed by Hobbs and her associated custody recommendation, along with
defendant attorneys’ representation of plaintiff, in an underlying custody dispute between
plaintiff and her former live-in boyfriend. In Docket No. 319038, plaintiff appeals by delayed
leave granted the trial court’s subsequent order awarding taxable costs to defendant attorneys,
primarily expenses incurred for their expert witness. In Docket No. 315869, we affirm the
summary dismissal of all of plaintiff’s claims against all defendants, along with the award of
attorney fees and costs to Hobbs, given the frivolous nature of the claims against Hobbs. In
Docket No. 319038, we reverse the award of taxable costs for expert witness fees and remand for
a recalculation of those costs as guided by this opinion.
In D’Irti v Bollinger, unpublished opinion per curiam of the Court of Appeals, issued
November 22, 2011 (Docket No. 303472), slip op at 1, this Court provided some background
information that is relevant here:
1
Plaintiff’s suit against defendant Widener was essentially for legal malpractice, and the action
against defendant Farhat & Story, PC, Widener’s employer, was based exclusively on vicarious
liability. Hereafter, we shall collectively refer to these parties as “defendant attorneys.”
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[Plaintiff and her former boyfriend], who were never married, are the
parents of SB, born December 2, 2002. After the parties separated, a stipulated
order was entered awarding joint legal custody of the minor child to both parties,
but granting primary physical custody of the minor child to . . . [the] father.
Less than a year later, plaintiff-mother moved for a change of custody,
citing the minor child's desire to live with her and alleging that . . . [the] father
and his wife had a contentious marriage. [F]ather's response to the motion denied
that his marital relationship was acrimonious. The matter was referred to a
conciliator, who recommended [that] . . . [the] father retain primary physical
custody, noting that plaintiff-mother had failed to provide any evidence to support
her allegations.[2]
The actions at issue in this case regard those that occurred before plaintiff moved for a
change of custody, at which point she was acting pro se, and concern plaintiff’s original
stipulation to joint legal custody and sole physical custody with the father. Prior to that
particular settlement, the parents stipulated to having Hobbs perform psychological evaluations
of the family and prepare a report on her findings. The stipulated order directed that the report
be “confidential and only shared with counsel for the parties” apart from the summary. Hobbs
recommended that the father receive sole physical custody. Plaintiff then entered into the
settlement awarding her and the father joint legal custody, but granting primary physical custody
to the father.
Four months after her subsequent motion to change custody was dismissed and while her
appeal of that order was still pending in this Court, plaintiff filed the present action in the trial
court. As to Hobbs, plaintiff alleged negligence, breach of contract, and fraud. With respect to
defendant attorneys, in an amended complaint, plaintiff raised claims of legal malpractice,
breach of contract, and malicious and intentional breach of fiduciary duty. After review, the trial
court granted summary disposition in defendants’ favor on all claims, awarded Hobbs attorney
fees and costs for having to defend against a frivolous action, and ordered plaintiff to pay taxable
costs to defendant attorneys, primarily to cover expert witness fees.
Plaintiff first argues that the trial court erred when it found that Hobbs was entitled to
absolute immunity for any negligence in conducting her evaluations and preparing her report that
recommended father be awarded sole physical custody.
We review a trial court’s grant or denial of summary disposition de novo.
When reviewing a motion for summary disposition under MCR 2.116(C)(7), the
court must accept the nonmoving party’s well-pleaded allegations as true and
construe the allegations in the nonmovant’s favor to determine whether any
factual development could provide a basis for recovery. The court must consider
any pleadings, affidavits, depositions, admissions, or other documentary evidence
2
Eventually, plaintiff’s motion to change custody was dismissed for failure to establish a change
of circumstances or proper cause, and this Court affirmed. D’itri, slip op at 1.
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that have been submitted by the parties, however, the moving party is not required
to file supportive material. If there are no facts in dispute, whether the claim is
statutorily barred by immunity is a question of law. [Diehl v Danuloff, 242 Mich
App 120, 122-123; 618 NW2d 83 (2000) (citations omitted).3]
In addition, we review questions of law de novo. Spectrum Health Hosps v Farm Bureau Mut
Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117 (2012).
In Diehl, 242 Mich App at 135, this Court addressed the very issue posed to us in this
case, ruling as follows:
[W]e hold that the doctrine of quasi-judicial immunity extends to court-
appointed psychologists ordered to conduct evaluations and make
recommendations to the trial court in custody disputes. Because defendant's
evaluation and recommendation aided the trial court in determining child custody,
a function integral to the judicial process, and because his services were
performed pursuant to a court order, defendant was entitled to quasi-judicial
immunity from plaintiff's suit.
In the context of this issue, the Diehl panel stated that “court-appointed psychologists may not be
held civilly liable for the consequences of their alleged negligent acts[.]” Id. at 134.
Plaintiff acknowledges the general rule, but maintains that a psychologist is only immune
from suit while acting within the scope of a judicial appointment. She admits that this limitation
was not set out in Diehl, but maintains that many of the cases upon which Diehl relied do contain
such a limitation. Plaintiff then further argues that, although almost all of Hobbs’s written report
is within the scope of her appointment, Hobbs’s ultimate recommendation that the child’s father
have sole physical custody exceeded the scope of her appointment.
The quoted-passage above from Diehl specifically states that the immunity extends to an
evaluation and recommendation. Accepting that immunity only arises when a psychologist is
acting within the scope of his or her judicial appointment, we find no basis to conclude that
Hobbs was acting outside the scope of her judicial appointment. Plaintiff is effectively claiming
that the stipulated order appointing Hobbs needed to expressly state that she was authorized to
make a recommendation and the failure to include such language meant that the recommendation
fell outside the scope of the judicial appointment. The stipulated order here specified that “the
parties and the minor children shall take part in psychological evaluations to be conducted by Dr.
Sharon Hobbs.” The order also provided that the report was to be confidential, that it could only
be shared with counsel for the parties, and that Hobbs and the attorneys were prohibited from
providing the report, except the summary, to the parties themselves. None of the language in the
3
The trial court stated that it was granting Hobbs’s motion for summary disposition pursuant to
MCR 2.116(C)(8) and (10). However, given the nature of the argument and the analysis used,
MCR 2.116(C)(7) would be the more appropriate court rule, as (C)(7) specifically deals with
immunity.
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order suggested any limitation on Hobbs’s evaluation, report, or summary, such that she was
precluded from making a custody recommendation. Plaintiff has presented no authority to
indicate that the broad instruction in the stipulated order prevented Hobbs from providing an
ultimate recommendation. Indeed, reports of these kinds typically include a recommendation, as
reflected in MCR 3.219, which provides:
If there is a dispute involving custody, visitation, or change of domicile,
and the court uses a community resource to assist its determination, the court must
assure that copies of the written findings and recommendations of the resource are
provided to the friend of the court and to the attorneys of record for the parties, or
the parties if they are not represented by counsel. [Emphasis added.]
Accordingly, pursuant to Diehl, Hobbs is immune from suit. The trial court did not err
when it granted Hobbs’s motion for summary disposition. In light of this conclusion, it is
unnecessary to address plaintiff’s additional issues concerning an alleged requirement in MCL
552.505(1)(g) that Hobbs’s written report be specially based on the custody best-interest factors,
MCL 722.23, and whether Hobbs’s negligence, if any, would be more properly characterized as
sounding in medical malpractice or ordinary negligence. Nor do we find the trial court’s refusal
to grant plaintiff reconsideration of her earlier claims against Hobbs erroneous under the
circumstances.
Plaintiff also argues that the trial court erred when it granted Hobbs’s motion for $2,800
in attorney fees pursuant to MCL 600.2591. With respect to a request for attorney fees under
MCL 600.2591, we review for an abuse of discretion the trial court’s ruling on the request. Edge
v Edge, 299 Mich App 121, 127; 829 NW2d 276 (2012). However, the court’s underlying
factual findings, including a finding of frivolousness, are reviewed for clear error. Kitchen v
Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002); Edge, 299 Mich App at 127. Issues
regarding the interpretation of MCL 600.2591 are reviewed de novo on appeal. Id.
“Upon motion of any party, if a court finds that a civil action . . . was frivolous, the court
that conducts the civil action shall award to the prevailing party the costs and fees incurred by
that party in connection with the civil action by assessing the costs and fees against the
nonprevailing party . . . .” MCL 600.2591(1). The sanctions include “court costs and reasonable
attorney fees.” MCL 600.2591(2). The plain and unambiguous language of MCL 600.2591
mandates an award of attorney fees and costs if a suit was frivolous. A suit is frivolous when a
“party’s legal position was devoid of arguable legal merit.” MCL 600.2591(3)(a)(iii).
Hobbs was properly granted summary disposition and was thus a prevailing party.
Moreover, the trial court apparently found, as argued by Hobbs, that plaintiff’s position was
“devoid of arguable legal merit.” Given our discussion of the immunity issue and this Court’s
ruling in Diehl, we agree. Plaintiff’s assertion that Hobbs was not acting within the scope of her
judicial appointment in making a custody recommendation had no legal merit, arguable or
otherwise. It is evident that plaintiff’s mere unhappiness and disagreement with Hobbs’s report
and recommendation drove the lawsuit. The trial court’s finding of frivolousness was not clearly
erroneous.
Plaintiff next argues that the trial court erred when it granted defendant attorneys’ motion
for summary disposition under MCR 2.116(C)(10). With respect to the well-established
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principles governing the analysis of a motion for summary disposition brought pursuant to MCR
2.116(C)(10), this Court in Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377; 836
NW2d 257 (2013), stated:
In general, MCR 2.116(C)(10) provides for summary disposition when
there is no genuine issue regarding any material fact and the moving party is
entitled to judgment or partial judgment as a matter of law. A motion brought
under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court
may grant a motion for summary disposition under MCR 2.116(C)(10) if the
pleadings, affidavits, and other documentary evidence, when viewed in a light
most favorable to the nonmovant, show that there is no genuine issue with respect
to any material fact. 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. The trial court is not permitted to
assess credibility, weigh the evidence, or resolve factual disputes, and if material
evidence conflicts, it is not appropriate to grant a motion for summary disposition
under MCR 2.116(C)(10). A court may only consider substantively admissible
evidence actually proffered relative to a motion for summary disposition under
MCR 2.116(C)(10). [Citations and quotation marks omitted.]
In a legal malpractice action, the plaintiff has the burden of proving: (1) the existence of
an attorney-client relationship; (2) negligent representation by the attorney; (3) that the attorney’s
negligence was a proximate cause of an injury; and (4) the fact and extent of the alleged injury.
Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995). With respect to the causation
element, this Court in Manzo v Petrella and Petrella & Assoc, PC, 261 Mich App 705, 712; 683
NW2d 699 (2004), observed:
In order to establish proximate cause, a plaintiff must show that a
defendant's action was a cause in fact of the claimed injury. Hence, a plaintiff
must show that but for an attorney's alleged malpractice, the plaintiff would have
been successful in the underlying suit. This is the “suit within a suit” requirement
in legal malpractice cases.
Plaintiff’s claims attack myriad aspects of defendant attorneys’ representation in regard
to: the stipulation to engage Hobbs’s services; preliminary observations made by Hobbs;
Hobbs’s report and recommendation; the settlement agreement providing sole physical custody
for the father; a referee hearing covering the settlement; related court proceedings; imparting
information on and employing custody principles, such as those concerning the established
custodial environment; and other actions or inactions tied to the original custody dispute. Upon
consideration of plaintiff’s arguments and all of the documentary evidence,4 we hold that
plaintiff failed to establish a genuine issue of material fact showing that, but for the assumed
malpractice of defendant attorneys, plaintiff would have been successful in the underlying
4
Contrary to plaintiff’s claim, defendant attorneys did present documentary evidence in support
of summary disposition.
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custody battle. We reach this conclusion in light of the following: the information in Dr.
Hobbs’s report, including plaintiff’s description of her former boyfriend as a good and wonderful
father; statements made or agreed to by plaintiff at the settlement hearing, including in
relationship to the child’s expressed wishes to reside with her father; an alcohol-related incident
at an airport involving plaintiff and the child; plaintiff’s affair with a married man; evidence and
information of events and conduct that were explored in the subsequent motion to change
custody and touched on by this Court in the related appeal; the general speculative nature of
plaintiff’s claims; the totality of the circumstances; and the law of child custody. In sum, the
trial court did not err in granting defendant attorneys’ motion for summary disposition. On
contemplation of all of plaintiff’s arguments, reversal of the summary disposition ruling is
unwarranted.
Next, plaintiff argues that the trial court erred when it awarded defendant attorneys all of
their requested expert witness fees pursuant to MCR 2.625. A trial court’s ruling on a motion for
costs pursuant to MCR 2.625 is reviewed for an abuse of discretion, but the trial court’s
determination of whether a given expense is a taxable cost is reviewed de novo as a question of
law. Guerrero v Smith, 280 Mich App 647, 670; 761 NW2d 723 (2008). The trial court does not
abuse its discretion when it chooses an outcome within the range of reasonable and principled
outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). In
Guerrero, 280 Mich App at 670-671, this Court observed:
“Costs will be allowed to the prevailing party in an action, unless
prohibited by statute or by these rules or unless the court directs otherwise, for
reasons stated in writing and filed in the action.” MCR 2.625(A)(1). The power to
tax costs is purely statutory, and the prevailing party cannot recover such
expenses absent statutory authority. [Citations omitted.]
“MCL 600.2164(1) authorizes a trial court to award expert witness fees as an element of
taxable costs.” Guerrero, 280 Mich App at 672 (citation and internal quotation marks omitted).
MCL 600.2164(1) provides:
No expert witness shall be paid, or receive as compensation in any given
case for his services as such, a sum in excess of the ordinary witness fees
provided by law, unless the court before whom such witness is to appear, or has
appeared, awards a larger sum, which sum may be taxed as a part of the taxable
costs in the case. Any such witness who shall directly or indirectly receive a
larger amount than such award, and any person who shall pay such witness a
larger sum than such award, shall be guilty of contempt of court, and on
conviction thereof be punished accordingly.
Notably, this provision “shall not be applicable to witnesses testifying to the established
facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to
matters of opinion.” MCL 600.2164(3).
In Van Elslander v Thomas Sebold & Assoc, Inc, 297 Mich App 204, 218; 823 NW2d
843 (2012), which was a case concerning an alleged breach of an escrow schedule and related
costs and sanctions, this Court discussed expert witness fees:
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An expert is not automatically entitled to compensation for all services
rendered. Conferences with counsel for purposes such as educating counsel about
expert appraisals, strategy sessions, and critical assessment of the opposing
party’s position are not regarded as properly compensable as expert witness fees.
Experts are properly compensated for court time and the time required preparing
for their testimony. In addition, the traveling expenses of witnesses may be taxed
as costs[.] [Citations, internal quotation marks, and alteration brackets omitted.]
Van Elslander is controlling, although we note that, as to the preceding passage, the panel
relied on this Court’s opinions in Hartland Twp v Kucykowicz, 189 Mich App 591; 474 NW2d
306 (1991), and Detroit v Lufran Co, 159 Mich App 62; 406 NW2d 235 (1987). Van Elslander,
297 Mich App at 218 nn 28-30. And both Hartland Twp and Lufran addressed expert witness
fees under a specific statutory provision governing fees in condemnation actions, MCL 213.66,
whereas Van Elslander was not a condemnation action. However, the Lufran panel compared
MCL 213.66 to MCL 600.2164, and noted that “the only difference between amounts properly
paid experts under § 2164 . . . and . . . the Uniform Condemnation Procedures Act is that the
award of expert witness fees for trial preparation time is discretionary under § 2164.” Lufran,
159 Mich App at 66. The Hartland Twp opinion simply cited and relied on Lufran. Hartland
Twp, 189 Mich App at 599. We assume that the Van Elslander panel decided to extend Lufran
to a non-condemnation case in light of Lufran’s indication that the two statutes were similar.
Here, the trial court simply awarded defendant attorneys all of the requested expert
witness fees, yet some of the billings appear to fall within the categories alluded to in Van
Elslander as not being properly compensable. Accordingly, we reverse the trial court’s order
reimbursing defendant attorneys for all of the expert’s time spent on the case and remand for
findings and a reassessment consistent with Van Elslander. With respect to any other related
arguments posed by plaintiff associated with the award of costs, they are rejected for lack of
merit.
Finally, plaintiff presents some various arguments, including a claim of entitlement to
punitive damages, that are entirely lacking in merit, unsupported by relevant legal authorities, not
properly preserved, and/or inadequately briefed, and we therefore reject those arguments
outright. See Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. Hobbs, having fully prevailed on appeal, is awarded
taxable costs pursuant to MCR 7.219. As between plaintiff and defendant attorneys, neither side
having fully prevailed on appeal, we decline to award taxable costs under MCR 7.219.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
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