Preview:

STATE OF MICHIGAN
COURT OF APPEALS


STEVEN DALE MAURO, Plaintiff-Appellant, v GARY R. HOSBEIN, Defendant-Appellee.

UNPUBLISHED May 15, 2008

No. 277277 Cass Circuit Court LC No. 07-000034-NM

Before: Jansen, P.J., and Zahra and Gleicher, JJ. PER CURIAM. In this legal malpractice case, plaintiff appeals as of right a circuit court order granting defendant summary disposition pursuant to MCR 2.116(C)(7) (expiration of the statute of limitations). Plaintiff also challenges a judgment awarding defendant costs and attorney fees as a sanction for plaintiff's selection of an improper venue. We affirm in part and reverse in part. I. Facts and Proceedings In July 1994, the Cass County prosecuting attorney filed a fourth-degree criminal sexual conduct charge against plaintiff, who then worked for Berrien County as a court psychologist. Because the complainant was also a Berrien County court employee, the Berrien County prosecutor's office disqualified itself from pursuing the charge. The Cass County prosecutor's office assumed the responsibility of prosecuting plaintiff. In October or November 1994, the Cass County prosecutor filed additional charges against plaintiff alleging two counts of misdemeanor assault and battery involving other complainants. Plaintiff retained defendant, a Berrien County attorney, to defend the criminal charges. On September 15, 1994, the Berrien Circuit Court judge assigned to defendant's case filed a notice of disqualification, and the case was reassigned to the Kalamazoo Circuit Court in October 1994. In January 1995, however, a Kalamazoo Circuit Court judge transferred the case back to the Berrien District Court, where plaintiff pleaded nolo contendere to a misdemeanor charge. The prosecution subsequently dismissed the remaining charges pursuant to a plea agreement. In the interim, plaintiff filed for divorce in Tuscola County, and one of the alleged victims sued plaintiff and several Berrien Circuit Court employees in Berrien County.

-1-


Defendant represented plaintiff in the criminal matters until October 1995. In 1997, defendant briefly represented plaintiff in the divorce action, which had been transferred to Berrien County. The parties agree that defendant has not provided plaintiff with any legal services for approximately 11 years, since 1997. On January 23, 2007, plaintiff filed a "verified complaint" against defendant in the Cass Circuit Court. The complaint alleged that defendant "pressured" plaintiff into ultimately entering the nolo contendere plea agreement by advising him that he "would not get a fair trial in Berrien County because the judges were extremely angry with Plaintiff, as well as with Defendant for representing Plaintiff." Plaintiff further alleged that defendant inaccurately counseled that the plea agreement would not endanger his psychology and teaching licenses, and that plaintiff's name would not have to appear on the Michigan Sex Offender Registry.1 In addition to these factual allegations, plaintiff's verified complaint set forth the following three alleged breaches of defendant's duty of care, together with a single paragraph addressing causation: 2. Defendant breached his duty to Plaintiff by not conducting a reasonable factual investigation of the charges against Plaintiff. 3. Defendant breached his duty to Plaintiff by failing to conduct a reasonable legal investigation of the legal issues surrounding the charges against Plaintiff. 4. Defendant was negligent in failing to adequately advise Plaintiff of the legal ramifications of pleading nolo contendere to the charges. 5. Defendant's deficient performance at the time of the plea agreement prejudiced Plaintiff's case resulting in an involuntary plea agreement. The "relief" sought included a "[j]udgment against Defendant for all fees paid to Defendant," for "all moneys paid by Plaintiff to defend his psychology license and teaching certificate," and for plaintiff's loss of income since July 1994. In February 2007, defendant filed a motion for summary disposition in lieu of an answer, pursuant to MCR 2.116(C)(7) and MCR 2.111(F)(2)(a). Alternatively, defendant sought a change of venue, proposing in his supporting brief that "should the Court not dismiss the complaint with prejudice, Plaintiff [sic] requests change of improper venue pursuant to MCR 2.223 and MCL[] 600.1653 to Berrien County, Michigan, with imposition of appropriate costs, attorney fees and sanctions."

In September 1996, the Michigan Board of Psychology suspended plaintiff's psychologist license for six months. The Michigan Department of Education suspended plaintiff's teaching certificate in March 1996, and revoked it in January 2001.

1

-2-


In response to defendant's motions, plaintiff asserted that "[u]p until August 4, 2006, Dr. Mauro believed Mr. Hosbein was a very good attorney, and it was the prosecution and court personnel who were the cause of his injury." According to a January 2007 affidavit of plaintiff, he discovered defendant's malpractice on August 4, 2006, when "I requested my present attorney ... to review my files and advise me regarding a reversal of my plea agreement." Plaintiff's response also contained his February 2007 affidavit insisting that he did not know that his felony prosecution had been transferred from Berrien to Kalamazoo County until he read it in defendant's summary disposition pleadings. On March 12, 2007, the circuit court heard defendant's motions for summary disposition and change of venue and granted both of them, ruling from the bench, in relevant part as follows: First of all, let's take up the venue issue, MCR 2.223(B)(1) provides for sanctions in the event you file in the wrong court, and I think this action was clearly filed in the wrong court. ... So [venue in] this action was improperly laid in Cass County. According[ly], you're entitled to those expenses you have itemized for attending the wrong court under the authority of that court rule, 2.223. Now, we also have a summary disposition argued by the defendant pursuant to MCR 2.116(C)(7), and that's for failing to satisfy the Statute of Limitations. The Court finds that the Statute of Limitations has clearly run in this case. Certainly the plaintiff could have or should have known at the very latest back in about 1997 that he had a claim for alleged malpractice; that he discovered or should have discovered it back that far. The circuit court awarded defendant costs ($52.98), and a "reasonable" attorney fee ($1,000). II. Issues Presented and Analysis Plaintiff challenges on appeal both the circuit court's grant of summary disposition and its award of sanctions for improper venue. We review de novo a circuit court's summary disposition ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). A motion for summary disposition brought under subrule (C)(7) does not test the merits of a claim, but rather certain defenses that may eliminate the need for a trial. DMI Design & Mfg, Inc v ADAC Plastics, Inc, 165 Mich App 205, 208; 418 NW2d 386 (1987). When reviewing a grant of summary disposition under subrule (C)(7), this Court accepts as true the plaintiff's well-pleaded allegations, and construes them in the light most favorable to the plaintiff. Id. at 208-209. We consider all materials submitted in support of and in opposition to the plaintiff's claim. Linton v Arenac Co Rd Comm, 273 Mich App 107, 111; 729 NW2d 883 (2006). "If the pleadings demonstrate that a party is entitled to judgment as a matter of law, or if affidavits or other documentary evidence show that there is no genuine issue of material fact, the trial court must render judgment without delay." Harris v Allen Park, 193 Mich App 103, 106; 483 NW2d 434 (1992). We review for clear error a circuit court's decision to grant or deny a motion for change of venue. Coleman v Gurwin, 195 Mich App 8, 10; 489 NW2d 118 (1992), rev'd on other -3-


grounds 443 Mich 59; 503 NW2d 435 (1993). We also review for clear error a circuit court's decision to impose sanctions. Schadewald v Brul

Download STEVEN DALE MAURO V GARY R HOSBEIN.pdf

Michigan Law