ALFRED JONES V IRVING F KEENE
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STATE OF MICHIGAN
COURT OF APPEALS
ALFRED JONES,
UNPUBLISHED
July 9, 2002
Plaintiff-Appellant,
v
IRVING F. KEENE, LAW OFFICES OF IRVING
F. KEENE, INDEPENDENCE ASSOCIATES,
EMANUEL RAVET, and LEO SKLAR,
No. 229281
Oakland Circuit Court
LC No. 97-548255-NM
Defendants-Appellees.
Before: Markey, P.J., and Talbot and Zahra, JJ.
PER CURIAM.
Plaintiff appeals by right from an order granting summary disposition in favor of
defendants. Plaintiff brought claims of fraud and unjust enrichment against all defendants and a
claim of legal malpractice against defendants Keene and Law Offices of Irving F. Keene. We
affirm.
Plaintiff first asserts that the trial court erred when in response to defendants’ motions for
summary disposition, it granted him only eight days to respond to defendants’ motion briefs. We
disagree. The court rules permit the trial court to modify its pretrial scheduling orders. MCR
2.401(B). In scheduling the motion for summary disposition, the court may issue a new
scheduling order. MCR 2.116(G)(1). The court also is expressly given discretion in handling
motion matters by MCR 2.119(E). The court rules permit a motion brought under MCR
2.116(C)(10) to be brought at any time. MCR 2.116(D)(3). We review a trial court’s procedural
decisions for an abuse of discretion. Fast Air, Inc v Knight, 235 Mich App 541, 550; 599 NW2d
489 (1999).
The scheduling order clearly gave plaintiff thirteen days to respond. Because the case
had been on the court’s docket for almost three years, the court was familiar with the facts and
theories and did not need substantial briefing on any of the issues. Although he claimed the short
time prevented him from filing numerous documents in support of his case, plaintiff presented no
documents containing new information. The only information that appears new is a price
calculation that purportedly shows plaintiff received far less for his land than defendants assert.
Close examination of all the evidence, however, indicates that the new calculation includes the
entire thirty-five feet of land from the road edge to the center, which is the amount the township
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had to acquire. However, the documents are erroneous to the extent that they imply plaintiff
owned all that land; other documents prove that defendants owned the centermost thirty feet.
Plaintiff does not present anything more than conjecture that the trial court, contrary to its
own statement, did not have sufficient time to consider the entire record. Likewise, he does not
identify what material testimony he would have elicited from defendants’ expert had he more
time to depose him. Given the history of the case and the court’s apparent familiarity with the
issues, the court did not abuse its discretion in giving plaintiff thirteen days to submit his brief
opposing the motion. Id.
Plaintiff next claims that Keene is liable to him for legal malpractice when his
representation of plaintiff did not achieve the result plaintiff desired. We disagree. In order to
state an action for legal malpractice, the plaintiff has the burden of adequately alleging the
following elements: (1) the existence of an attorney-client relationship; (2) negligence in the
legal representation of the plaintiff; (3) that the negligence was a proximate cause of an injury;
and (4) the fact and extent of the injury alleged. Simko v Blake, 448 Mich 648, 655; 532 NW2d
842 (1995). The causation element requires the plaintiff to show that but for the negligence, the
outcome of the case would have been favorable to the plaintiff. Radtke v Miller, Canfield,
Paddock & Stone, 453 Mich 413, 424; 551 NW2d 698 (1996).
In this case, there is little dispute that Keene represented plaintiff in the condemnation
suit and that an attorney-client relationship existed between them. Although plaintiff’s expert
stated that Keene violated the rules of professional conduct, the trial court did not explore this
contention. However, plaintiff incorrectly asserts that Keene could have contested the road
improvements or prevented the township from taking his property. Once the township had a
valid petition and held hearings, it could choose to act on that petition. Plaintiff attended the
hearings but did not appeal the township’s decision within thirty days as required by MCL
41.725 and MCL 41.726. The statute that plaintiff claims Keene could have invoked, MCL
213.56, would only permit Keene to object to the necessity of taking plaintiff’s strip of land.
Even if Keene could succeed in this argument (and plaintiff does not provide any evidence to
support this presumption) and plaintiff could keep his property, it would still be adjacent to the
road, and he would still be liable for the assessments. Because plaintiff complained about the
assessments and not the actual taking, he would not have gained even if Keene could
successfully argue on his behalf. Because Keene could not stop the road from being built, the
only thing he could do was to try to get a good price for plaintiff’s land. In this respect, his own
interests and those of plaintiff were, indeed, the same. Plaintiff presented no evidence that he
could have obtained a better price for the land or that he objected in any way to the proposed
settlement. Plaintiff failed to prove that but for Keene’s negligence, he would have had a more
favorable outcome in his litigation. Likewise, he did not prove any damages; his damages from
the condemnation proceedings would be limited to what resulted from that suit. Thus, the trial
court did not err in granting defendants’ motion because at least two of the four elements were
not met.
Finally, plaintiff’s argument that Keene breached his duty of representation by failing to
complete the purchase of plaintiff’s land is nonsensical. Keene’s duty in representing plaintiff in
the condemnation suit did not create in him an obligation to complete the purchase. Keene did
not represent plaintiff in negotiating that deal, and the attorney-client relationship that existed on
one specific matter did not create an obligation for Keene to act in plaintiff’s interest in all of
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their dealings together. As this is plaintiff’s sole argument for the causation element of his
malpractice claim, he cannot meet his burden.
Plaintiff’s fraud count likewise fails. Actionable fraud consists of the following
elements: (1) the defendant made a material representation; (2) the representation was false; (3)
when the defendant made the representation, the defendant knew that it was false, or made it
recklessly, without knowledge of its truth as a positive assertion; (4) the defendant made the
representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in
reliance upon it; and (6) the plaintiff suffered damage. M&D, Inc v McConkey, 231 Mich App
22, 27; 585 NW2d 33 (1998). Where no affirmative representation has been made, the
suppression of a material fact, which a party in good faith is duty-bound to disclose, is equivalent
to a false representation. Id. at 28-29.
None of the statements plaintiff identified were false representations, with the possible
exception of expressing a wish to purchase his property. However, the parties had their purchase
agreement in place to cover their dealings. That contract, by its own terms, contemplated the
possibility that the purchase would not be consummated. Indeed, the agreement expired in July
1996 with plaintiff retaining defendants’ $10,000 earnest money. That sum represented what the
parties considered an equitable amount for defendants’ failure to complete the agreement and for
plaintiff’s acceptance of the risk that the sale would not occur. Similarly, defendants did not
have a duty to disclose any material facts that were not disclosed. Their purpose in negotiating
the land deal, and the ultimate purchaser, were not things that had to be disclosed to plaintiff.
See Zaschak v Traverse Corp, 123 Mich App 126, 130; 333 NW2d 191 (1983). The trial court
thus did not err in granting defendants’ motion on this count.
We likewise do not find any merit to plaintiff’s claim that defendants were unjustly
enriched. Plaintiff apparently believed that by refusing to dedicate property for the road, he
could prevent it from being constructed. This was not true; the township could act on the
petition without plaintiff’s cooperation. Any increase in the value of defendants’ property was
the result of their own work to encourage the township to approve the road, something they were
well within their rights to do. See Barber v SMH (US), Inc, 202 Mich App 366, 375; 509 NW2d
791 (1993). Therefore, the trial court did not err in granting defendants’ motion on the counts of
fraud and unjust enrichment.
Finally, plaintiff asserts that the trial court erroneously based its decision on several
statements in defendants’ briefs that were hearsay, and thus should not have been considered.
Plaintiff raised the issue of hearsay in defendants’ brief during the hearing before the trial court,
but only regarding one of the statements described in his brief on appeal; the issue is therefore
preserved regarding that statement. Reed v St Clair Rubber Co, 118 Mich App 1, 7; 324 NW2d
512 (1982). We review the trial court’s decision regarding admissibility of evidence for an abuse
of discretion. Dep’t of Transportation v VanElslander, 460 Mich 127, 129; 594 NW2d 841
(1999). We review unpreserved error and reverse only if it is a plain error and the substantial
rights of a party are affected. Wischmeyer v Schanz, 449 Mich 469, 483; 536 NW2d 760 (1995).
When considering a motion for summary disposition brought pursuant to MCR
2.116(C)(10), the trial court must consider the pleadings, depositions, admissions, and
documentary evidence then filed in the action or submitted by the parties to the extent that the
content or substance would be admissible as evidence to establish or deny the grounds stated in
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the motion. MCR 2.116(G)(5); MCR 2.116(G)(6). MCR 2.119(B)(1) further requires that an
affidavit filed in support of or in opposition to a motion must: (a) be made on personal
knowledge; (b) state with particularity facts admissible as evidence establishing or denying the
grounds stated in the motion; and (c) show affirmatively that the affiant, if sworn as a witness,
can testify competently to the facts stated in the affidavit. The affidavit does not serve to resolve
issues of fact; its purpose is to help the court determine whether a genuine issue of material fact
exists. SSC Associates Ltd Partnership v Gen’l Retirement System of the City of Detroit, 192
Mich App 360, 364; 480 NW2d 275 (1991). Opinions, conclusionary denials, unsworn
averments, and inadmissible hearsay do not satisfy the court rule. Id. However, unlike a jury, a
judge is presumed to possess an understanding of the law, which allows him to understand the
difference between admissible and inadmissible evidence or statements of counsel. Thus,
resultant error may be harmless. People v Wofford, 196 Mich App 275, 282; 492 NW2d 747
(1992).
Plaintiff does not point to any actual evidence that the trial court was affected by any of
the statements. For the most part, the statements are mere hyperbole and do not concern any
material facts. The court’s summary of events includes the fact that defendants petitioned the
township to improve the road; the court succinctly described the connection between that and the
condemnation suit. Plaintiff offers no more than conjecture that the court relied on or was
influenced by the disputed statements. Nothing in the conclusions and reasoning of the court
reveals any such reliance. Also, there is ample documentary evidence, uncontested by plaintiff,
to support defendants’ motions. Therefore, the court did not commit plain error affecting
plaintiff’s substantive rights.
We affirm.
/s/ Jane E. Markey
/s/ Michael J. Talbot
/s/ Brian K. Zahra
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