PAMELA R KINNEY V THOMAS GEIL
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STATE OF MICHIGAN
COURT OF APPEALS
PAMELA R. KINNEY, Personal Representative of
the Estate of JOSEPH TRATNIK, Deceased,
UNPUBLISHED
February 26, 2004
Plaintiff-Appellant,
v
No. 245025
Calhoun Circuit Court
LC No. 02-001036-NM
THOMAS GEIL and GEIL, SMIT & KRAGT,
Defendants-Appellees.
Before: Sawyer, P.J., and Saad and Bandstra, JJ.
PER CURIAM.
Plaintiff appeals from an order of the circuit court granting summary disposition to
defendants on plaintiff’s legal malpractice claim. We affirm in part, reverse in part and remand.
Plaintiff retained defendants to pursue a products liability claim arising out of the death
of her three-year-old son, Joseph. Joseph was killed while riding in a conversion van driven by
plaintiff when Joseph apparently engaged a toggle switch that activated a moveable seat that
folded down into a bed and was crushed against the seat in front.
Defendant Geil determined that there was a potential claim against the manufacturer of
the conversion van, Cobra Industries of Indiana. An action was filed against Cobra, as well as
the seller of the vehicle, Krenek Van & R.V. Center, a Michigan company.1 No claim was filed
against the component manufacturer of the moveable seat/bed, Veada, Inc., also an Indiana
Corporation.
After suit was filed, it was ascertained that Cobra was in bankruptcy and there was no
available insurance to pay plaintiff’s claim if successful. Geil informed plaintiff that, because it
seemed unlikely that a collectible judgment could be obtained, he and his firm were not in a
1
In his deposition, defendant Geil indicated that even at the time of the filing of the claim
against Krenek, he thought that that claim was “extremely thin” in view of the effects of the
adoption of tort reform in 1996 with respect to the seller’s liability. He indicated that he brought
the claim because it would prevent the matter from being removed to federal court.
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position to proceed with the matter. Accordingly, a voluntary dismissal without prejudice was
filed. Attorney Geil, however, did locate an Indiana attorney, David Woodward, who was
willing to take over the case and pursue it. Apparently, attorney Woodward had had some
success in dealing with claims against Cobra. Shortly before the expiration of the statute of
limitations, Woodward did file a claim on plaintiff’s behalf in federal court against Cobra.
Apparently that suit was eventually discontinued because of the absence of any assets or
insurance to attach even if the suit was successful.
Thereafter, plaintiff commenced the instant legal malpractice action.2 The focus of her
claim is that she lost any potential claim against the potentially collectible defendants of Krenek
and Veada because of the expiration of the period of limitations. Specifically, her complaint
alleges the attorneys had a duty to:
(a) Make certain that the Estate’s Personal Representative knew when the
Statute of Limitations ran with respect to the refiling of the action against Krenek
Motors Inc. and put that date in writing to the Personal Representative with
appropriate legal advice as to the ramifications legally of not examining the
vehicle in time to refile before the Statute ran and the legal ramifications of not
refiling before the Statute ran;
(b) Make certain that the Estate’s Personal Representative knew when the
Statute of Limitations ran with respect to filing an action against Veada, the fold
down seat manufacturer, and put that date in writing to the Personal
Representative with appropriate legal advice as to the ramifications legally of not
examining the vehicle in time to file before the Statute of Limitations ran and the
legal ramifications of not filing before the statute ran;
(c) Arrange for the expert (Larry Schneider, Ph.D.) to examine the vehicle
before the Statutes of Limitations ran vs. Krenek and Veada and not after the
Statute of Limitations ran, which they had by the time of his inspection of
2/12/2000.
Thereafter, defendants moved for summary disposition, arguing (1) that they had no
liability because they had ceased representing plaintiff, and substitute counsel had been
employed, before the period of limitations had expired, and (2) that under the attorney judgment
rule, they were not liable for their determination that the claims against Krenek and Veada were
not viable, even if that judgment proved to be erroneous. The trial court disagreed on the first
point, concluding that attorney Geil had continued his representation of plaintiff even after
Woodward took over primary responsibility for the matter. But the trial court agreed with
defendants on the second point, opining as follows:
2
Attorney Woodward and his firm were originally parties to this action, but are no longer
involved in this litigation.
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But the problem, it seems to me, is that Mr. Geil – I mean, excuse me –
yeah, Mr. Geil had concluded the case was a loser. I really don’t think that
there’s a disputed issue of fact about the fact that that was communicated to the
Defendant (sic). She didn’t want to invest any more money in the case. And so I
really think this case comes under – in the area of attorney judgment. I don’t
think that the Defendant breached his professional duty in that regard. And quite
honestly, I think the decision not to sue is entirely reasonable under the
circumstances presented in this case.
Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were
errors in judgment where the attorney made those judgments in good faith and in the honest
belief that the decisions were well founded in the law and made in the best interest of the client.
Mitchell v Dougherty, 249 Mich App 668, 677; 644 NW2d 391 (2002). In other words, while a
gross error in judgment may be actionable, a mere error in judgment made in good faith is not.
Id. at 679. Thus, an attorney is not obligated to pursue every claim for which there is some
scintilla of evidence even though, in the attorney’s good faith judgment, the claim is not worth
pursuing. Id.
The facts in Mitchell are illustrative of this point. The plaintiffs retained the defendants
to represent them in a medical malpractice action arising out of chemotherapy treatment
involving an allegation of administering the incorrect drug during a hospital admission. The
attorney determined that there was a viable claim against the physicians, but not against the
hospital and allowed the limitations period to expire without pursuing a claim against the
hospital. The plaintiffs then instituted a legal malpractice claim against the defendants for not
bringing suit against the hospital. This Court upheld the trial court’s grant of summary
disposition, concluding that the plaintiffs had not created a genuine issue of material fact that the
defendant’s failure to pursue a claim against the hospital was anything other than a good faith
exercise of their judgment regarding which claims were worth pursuing. Id.
We would have little difficulty in applying Mitchell to the case at bar and upholding the
grant of summary disposition if plaintiff’s claim in this case was based upon defendant’s failure
to pursue a claim against either Krenek or Veada.3 But, with the exception of the claim that
defendants failed to arrange for the expert witness to inspect the vehicle before the period of
limitations had expired, plaintiff’s claimed breach of duty is not the failure to pursue those
claims. Rather, plaintiff’s claim is based upon a failure to apprise her of when the period of
limitations would expire and the need to take action through other counsel, if she wished to
continue to pursue such a claim. In short, defendant’s argument, and the trial court’s decision,
simply misses the point with respect to the main part of plaintiff’s claim.
3
We note that Mitchell also involved an issue regarding the failure to advise the client regarding
when the period of limitations expired. But this issue was ultimately resolved on the basis that
the plaintiffs were advised, by their own admission, on the correct date when the period of
limitations expired. Mitchell, supra at 679-680.
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We do agree that summary disposition with respect to the claim of failure to have the
expert examine the vehicle before the period of limitations expired was appropriate. That matter
comes within the attorney judgment rule. There would be no obligation to have an expert
examine the vehicle where the attorney concluded that a claim against Krenek and Veada was
not viable under Michigan law. Therefore, to have a valid legal malpractice claim on this point,
plaintiff would have to create a genuine issue of material fact that defendants committed a gross
error in judgment in making such a determination. Mitchell, supra at 679. We are not persuaded
that plaintiff has done so.
But with respect to plaintiff’s claim that defendants breached a duty to advise her of
when the period of limitations would expire, and the ramifications of a failure to file suit before
that time, that issue is simply unaddressed by defendants or the trial court. It is not resolvable by
application of the attorney judgment rule. Therefore, summary disposition of those portions of
plaintiff’s claims was inappropriate.4
We do note that we are not expressing any opinion on the ultimate viability of plaintiff’s
claims or whether a failure to advise plaintiff regarding the period of limitations constituted
malpractice by defendants. We are merely holding that those claims are not resolvable under the
attorney judgment rule.
Affirmed in part, reversed in part and remanded to the trial court for further proceedings
consistent with this opinion. We do not retain jurisdiction. No costs, no party having prevailed
in full.
/s/ David H. Sawyer
/s/ Henry William Saad
/s/ Richard A. Bandstra
4
With respect to defendant’s argument that the trial court erred in concluding that their
representation of plaintiff ended, and plaintiff had retained new counsel, before the period of
limitations had expired, we are not persuaded that the trial court erred in concluding that there
was sufficient evidence to support the proposition that defendants had continued to represent
plaintiff.
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