JOHN BARBER V WILLIAM J DRILLOCK
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN BARBER,
UNPUBLISHED
February 7, 1997
Plaintiff-Appellant,
and
DENNIS BARBER, d/b/a/ BARBER FARMS, and
HAROLD BARBER,
Plaintiffs,
v
No. 179974
Huron Circuit Court
LC No. 93-8404-NM
WILLIAM J. DRILLOCK and LAW OFFICES OF
WILLIAM J. DRILLOCK,
Defendant-Appellees.
Before: Reilly, P.J., and White, and P.D. Schaefer,* JJ.
PER CURIAM.
Plaintiff John Barber1 appeals as of right a circuit court order granting defendant’s motion for
summary disposition and awarding defendants sanctions in this legal malpractice action. We affirm.
The underlying action in this case, Sanilac County Circuit Court file no. 88-17096-NP, filed in
June 1988, was brought by plaintiffs against Keys Refrigeration, Inc., (Keys) DeLaval Agricultural
Division of Alfa-Laval (DeLaval), and Peter Kavanagh. Plaintiffs alleged that a milking system
purchased from Keys, and manufactured or distributed by DeLaval caused mastitis in plaintiffs’ cows.
Keys was a duly authorized dealer for DeLaval Products. Kavanagh was the president of Keys.
According to the complaint, the system was originally installed in 1977, and was extended in February,
1981. Plaintiffs alleged that the system as originally installed and as extended was not installed properly,
that in the spring of 1986, the herd began experiencing high somatic cell counts and mastitis, and in June,
* Circuit judge, sitting on the Court of Appeals by assignment.
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1986, a veterinarian discovered the problems with the milkline of the system. Plaintiffs alleged that the
defendants breached the “express warranties and implied warranties of merchantibility and implied
warranties of fitness for a particular purpose.” Plaintiffs further alleged, in Count II, that Keys and
DeLaval “negligently designed, laid out and installed the milking system . . . .” Following a motion for
summary disposition by the defense, the case was dismissed as barred by the statute of limitations. The
court found the four-year “U.C.C. statute of limitations” applicable. Plaintiffs did not appeal the
dismissal.
In the present action, Huron County Circuit Court file no. 93-008404, the complaint alleged
that plaintiffs were represented by defendants, Drillock and his firm, in the lawsuit involving the milking
system. Plaintiffs alleged professional negligence that
“consisted of but is not limited to: failing to file the action of John Barber and Dennis
Barber, d/b/a Barber Farms and Harold Barber v Keys Refrigeration, Inc.; DeLaval
Agricultural Division of Alfa-Laval, Inc. a Missouri Corporation, and Peter Kavanagh,
Jointly and Severally, Sanilac County Circuit Court File No. 88-17096-NP, within the
statute of limitations, which action was subsequently dismissed as being not filed within
the statute of limitation period.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(10) and for sanctions
pursuant to MCR 2.625 and 2.114. According to defendants, plaintiffs’ depositions indicated that they
first went to see attorney Drillock in August, 1986, which was five and a half years after the last
installation occurred and eighteen months after the four-year statute of limitations had expired.
Defendants asserted that the action was frivolous, that the action was signed in violation of MCR 2.114,
and that the allegations in paragraph six of plaintiffs’ complaint were false. (This paragraph alleged that
consultation between Drillock and plaintiffs occurred “within four years of the date of the last
installation.”)
Plaintiffs filed a response asserting that when plaintiffs hired defendants to represent them, they
had “a viable claim for improper installation and fraud against [Keys]”, because the U.C.C. did not
apply to these claims. In addition to legal authority, plaintiffs attached an affidavit of a veterinarian
stating that in his opinion the milking system was not properly installed.2
At oral argument, defense counsel first explained that improper installation was subject to the
four-year statute of limitations, and that res judicata precluded plaintiffs from litigating that issue again.
With respect to the fraud or misrepresentation, defense counsel argued that the complaint against
Drillock did not allege that he missed a fraud and misrepresentation claim.
The court concluded that Drillock could not be held liable for failing to file a lawsuit that was
untimely when plaintiffs first consulted Drillock. The court also agreed with defense counsel that
plaintiffs’ contention that Drillock failed to bring a fraud claim was not alleged in the complaint and was
“a red herring” raised to salvage the case from summary disposition. The court granted sanctions on the
basis of the untrue statement in paragraph six of the complaint.
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We agree with the trial court that defendants were entitled to summary disposition. The
complaint against defendants alleged that the negligence consisted of failing to timely file “Sanilac County
Circuit Court File No. 88-17096-NP.” On appeal, plaintiff does not challenge the trial court’s
determination that the improper installation and warranty claims asserted in No. 88 17096-NP were
already barred by the statute of limitations when plaintiffs consulted with Drillock. Rather, plaintiff
contends that there are genuine issues of material fact regarding what types of claims were viable in
1986 and should have been pursued by Drillock. Although plaintiffs attempted to avoid summary
disposition by asserting that a fraud claim could have been asserted against Keys, the complaint against
defendants did not allege negligence on this basis. The types of claims that could have been brought are
not material to the allegation in the complaint against Drillock and his firm that the complaint in the
underlying action was not timely. Because there was no genuine issue of material fact concerning the
legal malpractice as alleged in the complaint, the court properly granted defendants’ motion for summary
disposition.3
Plaintiff also argues that the trial court erroneously granted sanctions pursuant to MCR 2.625
and MCR 2.114. The trial court’s reasons for granting sanctions are as follows:
In addition the question of sanctions, I think that there’s a legitimate claim for sanctions
in this case because the plaintiff has – as pointed out by the defendant, has stated that
the – where is that, is that paragraph – which paragraph is it, Mr. Rinn [defense
counsel], where the time of contact was asserted, Paragraph Number 6?
MR. RINN: Paragraph Number 6 in the complaint.
THE COURT: Within four years from the date of the last installation, plaintiffs entered
the law offices of the defendants. That is clearly an untrue statement by everyone,
everyone agrees with that. The plaintiffs entered the law offices of the defendant five
and a half years after the last installation, everyone agrees with that, even the – even the
plaintiff can’t – isn’t asserting otherwise.
And that’s basically what the basis of this case was, that the defendant had an
opportunity to file this lawsuit within the statute of limitations because it had not run.
And the truth of the matter was, and the plaintiff—plaintiff’s counsel would have to be
charged with notice of the fact that that was not true, and that’s the whole basis for this
lawsuit. For that reason I will grant the sanctions.
The court’s comments suggest that the court was relying on a violation of MCR 2.114(D)(2) as the
basis for imposing sanctions under MCR 2.114(E). Plaintiff contends that his attorney had a reasonable
basis for believing that the statement was true because, in his deposition, plaintiff used the word
“installation” in reference to changes to the milk system made in 1984-5 and 1986. Thus, plaintiff
argues, “At the time of the pleadings, it was not at all clear what the date of the final ‘installation’ was
for the purposes of the milking system lawsuit.” This argument does not persuade us that the trial
court’s findings were clearly erroneous. When it dismissed the underlying action, the court determined
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that the claims arose from the original installation in 1977 and subsequent extension in 1981. Plaintiff
has not asserted that there were later “installation[s]” to the milking system that were relevant to the
allegations against Keys, DeLaval, and Kavanagh. At most, plaintiff’s argument shows that his attorney
failed to make a reasonable inquiry about the date of the last installation that was pertinent to the
allegations in the complaint. We are not left with a definite and firm conviction that the trial court made a
mistake in finding that the complaint was signed in violation of MCR 2.114. Contel Systems Corp v
Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990).
Finally, plaintiff argues that defendant “Law Offices of William J. Drillock” is not entitled to
attorney fees for work performed by Mr. Rinn while he was a member of the Drillock firm. At issue is
$2,377.95 (calculated at the rate of $85 per hour) of the bill submitted by Rinn for time spent on the
case while he was employed by the Drillock firm. Plaintiff contends that no fees were paid by the firm
for Rinn’s services on this case while he was an employee, and therefore, plaintiff and his attorney
should not be required to pay $2,377.95 as a sanction. We disagree. Under MCR 2.114(E), the court
was required to impose “an appropriate sanction, which may include an order to pay to the other party
or parties the amount of the reasonable e
xpenses incurred because of the filing of the document,
including reasonable attorney fees.” Rinn could have been working on other files had he not been
working on the case against the law firm. Regardless of whether the expense of Rinn’s services while he
was an employee should be treated as attorney fees, the cost of his service was an expense to the law
firm, which the court could consider when determining the amount of the sanction.
We have considered the argument made by defendants with respect to sanctions under MCR
7.216(C), and we are not persuaded that this case warrants the sanctions requested.
Affirmed.
/s/ Maureen Pulte Reilly
/s/ Philip D. Schaefer
1
The judgment from which John Barber appeals dismissed Dennis Barber and Barber Farms from the
action and stated that John Barber was “the only proper party Plaintiff as to the action.” The propriety
of the dismissal of Dennis Barber and Barber Farms is not challenged on appeal. Before the judgment
was entered, plaintiff Harold Barber assigned his rights to John Barber. “Plaintiff” in the singular form
will refer to John Barber, and in the plural, will refer to John Barber, Dennis Barber, Harold Barber and
Barber Farms.
2
Plaintiffs also attached an affidavit of John Barber that addressed an argument made by defendants in a
separate motion for summary disposition that suit was not properly brought in the name of the Barber
Farms partnership because a certificate of partnership had not been filed. This affidavit does not
concern the matters that are at issue in this appeal, and therefore, we will not discuss it further.
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3
In the discussion of this issue, plaintiff asserts that the court should have allowed the complaint to have
been amended. This issue is not identified as an issue in the statement of questions presented, and
therefore, is not properly presented for review. MCR 7.212(C)(5); People v Yarbrough, 183 Mich
App 163, 165; 454 NW2d 419 (1990). Furthermore, the evidence that plaintiff contends would have
supported a fraud claim suggests that Kavanagh, representing Keys, failed to recognize the source of
the problem when he examined the milking system. There is no indication that Kavanagh recognized the
problem and fraudulently concealed it. Therefore, the amendment of the complaint against Drillock to
allege that he should have asserted a fraud claim against Keys would have been futile.
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