Order Michigan Supreme Court
Lansing, Michigan
December 27, 2010 Marilyn Kelly,
Chief Justice
141355-59 & (125) Michael F. Cavanagh
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
RICHARD DUMAS, LYNN MCBRIDE, Diane M. Hathaway
EUGENE PASKO, HAROLD COUNTS, JOHN Alton Thomas Davis,
Justices
MAUS, KENNETH KWASNIK, RICHARD
BENNETT, PATRICK CHAPMAN, CHARLES
DAPPRICH, JAMES DZIADZIOLA, Estate of
GERALD FITZGERALD, Estate of VERNON
MANUS, Estate of GEORGE MASSAB,
LAWRENCE MYLNAREK, Estate of
ROBERT SINCLAIR, CHARLES OSTERDALE,
ROBERT J. SONGER, ROBERT DECKERS,
ELIZABETH ZINNER, RICHARD STIMPSON,
DONALD DURECKI, and RONALD RIEUS,
Plaintiffs,
and
WAYNE ALARIE and RICHARD MARTIN,
Plaintiffs-Appellants/Cross-Appellees,
and
THEODORE S. ANDRIS,
Appellant/Cross-Appellee,
v SC: 141355
COA: 279149
Wayne CC: 83-316603-CK
SHELDON L. MILLER,
Appellee/Cross-Appellant,
and
AUTO CLUB INSURANCE ASSOCIATION,
Defendant.
__________________________________________/
GERALD NYLUND, ANITA NYLUND, JOHN
HOUSE, MARY ELLEN HOUSE, DAVID
REMER, DONNA MARGARET REMER,
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LEONARD RAKOWICZ, RITA RAKOWICZ,
STANLEY ELZINGA, MARILYN ELZINGA,
JAMES HALLER, JOAN HALLER, JOHN
JACKSON, WILLIE JOHNSON, EDWARD
BARTZ, BETTY BARTZ, FRANK
DOLINSHEK, MARY DOLINSHEK, MICHAEL
DUNGEY, WINIFRED DUNGEY, FRANCES
STOCKER, ARTHUR SHEWCHUK, PATRICIA
SHEWCHUK, DAVID ALBRECHT, LINDA
ALBRECHT, WILLIAM T MEDLIN, and
SHIRLEY MEDLIN,
Plaintiffs-Appellants/Cross-Appellees,
v SC: 141356
COA: 286342
Wayne CC: 94-420311-CZ
LOPATIN, MILLER, FREEDMAN,
BLUESTONE, ERLICH, ROSEN & BARTNICK,
P.C., and SHELDON MILLER,
Defendants-Appellees/Cross-Appellants.
__________________________________________/
WAYNE ALARIE and RICHARD MARTIN,
Plaintiffs-Appellants/Cross-Appellees,
v SC: 141357
COA: 286343
Wayne CC: 92-215259-CZ
LOPATIN, MILLER, FREEDMAN,
BLUESTONE, ERLICH, ROSEN & BARTNICK,
P.C., and SHELDON MILLER,
Defendants-Appellees/Cross-Appellants.
__________________________________________/
ROBERT DECKERS, ELIZABETH ZINNER,
RICHARD STIMPSON, and DONALD DURECKI,
Plaintiffs-Appellants/Cross-Appellees,
and
HAROLD COUNTS, ROBERT IVAN, and
RICHARD ZICKEL,
Plaintiffs,
v SC: 141358
COA: 286344
Wayne CC: 93-321648-NM
3
SHELDON L. MILLER and LOPATIN,
MILLER, FREEDMAN, BLUESTONE,
ERLICH, ROSEN & BARTNICK, P.C.,
Defendants-Appellees/Cross-Appellants,
and
DAVID RAVID,
Defendant.
__________________________________________/
JAMES K. DZIADZIOLA, MARGARET
DZIADZIOLA, LAWRENCE R. MLYNAREK,
JOSEPHINE MLYNAREK, MARTHA
CHAPMAN, Personal Representative of the
Estate of PATRICK CHAPMAN, LYNETTE
MASSAB, Personal Representative of the
Estate of GEORGE MASSAB,
Plaintiffs-Appellants/Cross-Appellees,
v SC: 141359
COA: 287143
Wayne CC: 04-418373-NM
SHELDON L. MILLER, LOPATIN, MILLER,
FREEDMAN, BLUESTONE, ERLICH, ROSEN
& BARTNICK, P.C., and SHELDON L. MILLER
& ASSOCIATES, P.C.,
Defendants-Appellees/Cross-Appellants.
___________________________________________/
On order of the Court, the application for leave to appeal the March 30, 2010
judgment of the Court of Appeals and the application for leave to appeal as cross-
appellant are considered, and they are DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
I would grant leave to appeal, and therefore dissent. At issue is the point of
accrual of the two-year statute of limitations for professional malpractice cases. The
applicable statute, MCL 600.5838(1), provides:
a claim based on the malpractice of a person who is, or holds himself or
herself out to be, a member of a state licensed profession accrues at the time
that person discontinues serving the plaintiff in a professional or
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pseudoprofessional capacity as to the matters out of which the claim for
malpractice arose, regardless of the time the plaintiff discovers or
otherwise has knowledge of the claim. [Emphasis added.]
Here, defendant attorney represented plaintiffs insurance sales representatives in
“wrongful termination” employment litigation. Defendant continued working on appeals
in this case, even after plaintiffs retained another attorney to pursue “age discrimination”
claims that plaintiffs believe grew out of the same circumstances as the “wrongful
termination” claims and that should have been joined with the latter claims. As a result
of defendant’s failure to join these claims, plaintiffs also filed a professional malpractice
suit against him for the handling of their original lawsuit. The central question is whether
defendant’s representation of plaintiffs in their “wrongful termination” appeal can fairly
be said to have occurred in the course of representing plaintiffs in “matters out of which
the claim for malpractice arose,” where such malpractice claim concerned defendant’s
failure to attach “age discrimination” claims to “wrongful termination” claims in the
original lawsuit. Significantly, MCL 600.5838(1) does not refer to the singular “matter,”
but to the plural “matters,” and does not refer to the “case,” or the “claim,” but to “the
matters,” as establishing the accrual point of its statute of limitations.
Accordingly, if under MCL 600.5838(1) the claim accrues from the time that
plaintiffs hired a new attorney to replace defendant to represent them in the “age
discrimination” claim, the two-year limitations period would have elapsed before the
legal malpractice suit was filed against defendant. On the other hand, if under MCL
600.5838(1) the claim accrues from the time that defendant concluded his representation
of plaintiffs in the “wrongful termination” claim—the limited scope of which eventually
prompted plaintiffs’ malpractice action—the two-year limitations period would not have
elapsed before the legal malpractice suit was filed against defendant.
The reading of MCL 600.5838(1) sustained by the majority may conceivably be
correct, but it is hardly clear. The majority’s interpretation is predicated upon a highly
limited reading of the statute that would essentially equate a “case” or “claim” with
“matters.” Each side in this case, in my judgment, has offered reasonable arguments in
support of its position that the malpractice action here is, or is not, time-barred. Because
this involves a significant issue of statutory interpretation, with important practical
consequences for access to the legal system, I would grant leave to appeal.
CORRIGAN, J., joins the statement of MARKMAN, J.
YOUNG, J., not participating.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 27, 2010 _________________________________________
s1221 Clerk