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STATE OF MICHIGAN
COURT OF APPEALS


MICHAEL L. BAUCHAN, Plaintiff-Appellant, v CHEATHAM & ACKER, P.C., LAWRENCE ACKER, GARY SHARP, FOWLER, TUTTLE, CLARK, COLEMAN & MANNON, LARRY FOWLER, and DAVID CLARK, Defendants-Appellees.

UNPUBLISHED July 21, 2000

No. 211981 Oakland Circuit Court LC No. 96-521083-NM

Before: Murphy, P.J., and Collins and Owens, JJ. PER CURIAM. In this legal malpractice case, plaintiff appeals as of right from the circuit court's order dismissing his case pursuant to MCR 2.116(C)(5). Plaintiff also challenges the court's order quashing service and vacating its earlier order extending summons with respect to certain defendants. We affirm. Plaintiff sued the law firm Cheatham & Acker, P.C., and certain of its members ("Cheatham & Acker"), and the law firm Fowler, Tuttle, Clark, Coleman & Mannon, and certain of its members ("Fowler"),1 over their representation of him in, respectively, a lawsuit seeking first-party personal protection insurance benefits for injuries sustained in a 1989 automobile accident, and a lawsuit seeking recovery for injuries that allegedly occurred during surgery in 1992 that was related to the injuries received in the automobile accident. Under the weight of liabilities and mediation sanctions arising from the underlying litigation, plaintiff filed for bankruptcy in 1995. The federal bankruptcy court ruled that plaintiff's legal malpractice cause of action was, contrary to plaintiff's assertions, a nonexempt asset that could be pursued only by the bankruptcy trustee, not by plaintiff. The bankruptcy trustee, in turn, indicated that
1

For convenience, this Court will refer to both the law firms and the individual defendants by the abbreviated names indicated above.

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the estate had no interest in pursuing the legal malpractice claims, but that he nonetheless had not abandoned those assets which accordingly remained the property of the bankruptcy estate. In September 1996, the trial court entered an order quashing service of process on Cheatham & Acker, and a separate order vacating the extended summons that had been issued and dismissing the case against Cheatham and Acker on the ground that plaintiff failed to serve the summons and complaint within the time allowed. In late 1997, Fowler moved for dismissal under MCR 2.116(C)(5), on the ground that plaintiff lacked the legal capacity to maintain the legal malpractice action, and Cheatham & Acker joined in that motion.2 The trial court granted the motion. After plaintiff filed his claim of appeal, we granted plaintiff's motion to supplement the record on appeal with additional documentation, including an order from the federal bankruptcy court compelling the trustee to abandon the malpractice claims to plaintiff. We conclude, after reviewing the record and the additional documentation, that the trial court correctly dismissed this case with regard to all defendants. As noted above, at the time plaintiff initially filed his complaint in this case, he was also involved in bankruptcy litigation. Under the rules governing bankruptcy actions, a claim of action (such as the malpractice claims plaintiff was endeavoring to litigate in the trial court) belongs to the trustee in bankruptcy, unless the trustee chooses, or is ordered, to abandon the claim. 11 USC 541 and 554. According to plaintiff, the trustee gave conflicting indications concerning whether he intended to abandon the malpractice claims; on the one hand, the trustee asserted that he would not abandon the claims, while on the other hand, the trustee stated that he had no interest in litigating the claims on behalf of the bankrupt. For example, the trustee wrote a letter, on March 19, 1996, that stated: This is to inform you that [plaintiff] may, on behalf of himself, continue on with any lawsuits that he has pending at this time. As you are aware, it is unclear at this time whether these lawsuits have any value to the estate. At some further time, we will decide upon the value and whether or not the estate has a claim to the equity. Due to the fact that the statute of limitations on the malpractice action would run on April 15, 1996, MCL 600.5805(4); MSA 27A.5805(4), plaintiff filed his malpractice complaint on that date, listing both himself and the trustee in bankruptcy as plaintiffs. This litigation apparently prompted counsel for the bankruptcy trustee to send the trial court a letter dated July 24, 1996, which stated in relevant part:

2

The order of dismissal with respect to Cheatham and Acker was stayed pending the disposition of plaintiff's appeal to the Court of Appeals and a motion for "tardy" reconsideration plaintiff filed in the trial court. This Court dismissed plaintiff's appeal on May 14, 1997 "for failure to pursue the case in conformity with the rules." (Bauchan v Cheatham & Acker, PC, Docket No. 198220). The trial court denied plaintiff's motion for "tardy" reconsideration in its May 8, 1998 order granting Fowler's motion to dismiss.

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It has come to our attention that Mr. Bauchan has filed suit in Oakland County Circuit Court, case no. 96-521083-NM, naming himself and the Trustee as party plaintiffs. Please be advised that the Trustee has not authorized such a suit on his behalf, nor has the Plaintiff been appointed by the U.S. Bankruptcy Court for the purposes of litigating this cause of action. This cause of action is currently the subject of hearings before the Hon. Arthur J. Spector, Bankruptcy Judge for the Eastern District of Michigan

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