SHELLY BERMAN V DEBORAH N RIBITWER & ASSOC PC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
SHELLY BERMAN,
UNPUBLISHED
August 17, 2004
Plaintiff-Appellant,
v
DEBORAH N. RIBITWER & ASSOCIATES,
P.C. and DEBORAH N. RIBITWER, individually,
No. 246870
Oakland Circuit Court
LC No. 2001-029561-NM
Defendants-Appellees.
Before: Jansen, P.J., and Meter and Cooper, JJ.
PER CURIAM.
Plaintiff Shelly Berman appeals as of right the trial court’s grant of defendants Deborah
N. Ribitwer & Associates, P.C., and Deborah N. Ribitwer’s motion for summary disposition
pursuant to MCR 2.116(C)(10) and dismissal of plaintiff’s complaint in this legal malpractice
action.1 We affirm.
I. Facts and Procedural History
In May of 1998, plaintiff retained defendant to represent her in a divorce proceeding
instituted by her then-husband Andrew Berman, an heir to the Lasky Furniture business. At the
time of the proceedings, the Bermans had been married eight years, had approximately $150,000
equity in their primary residence in Novi, and owned a condominium in Charlevoix which they
rented for income.2 The Bermans owned various stocks3 and several recreational vehicles. Mr.
Berman had recently opened a Furniture Express business with funds from the Berman Family
1
We will refer to Ms. Ribtiwer, rather than her firm, as the singular defendant throughout this
opinion.
2
The value of the condominium is not part of the record.
3
The value of the stocks is not part of the record. Mr. Berman asserted in his answers to
interrogatories that plaintiff took all stock records. However, plaintiff has alleged in other
litigation that Mr. Berman sold several stocks and transferred funds in an effort to conceal those
assets.
-1-
Trust, and his annual income from that business amounted to $60,000. Plaintiff was a stay-athome mother with a high school diploma and a real estate license who had never held a full-time
job. The Bermans had accumulated credit card debt and lived well above their means due to
cash infusions Mr. Berman’s mother authorized from the family trust.
On the day depositions were scheduled to be taken of plaintiff and Mr. Berman,
defendant asserts that the parties determined to enter into settlement negotiations. Plaintiff
alleges that upon defendant’s recommendation, she entered into a settlement agreement and
signed a Consent Judgment of Divorce. The parties entered into this settlement without knowing
their actual income for 1997 and 1998, as the preparation of the income tax returns for those
years was part of the settlement.
Plaintiff was awarded $200 per week for six months as alimony. The Bermans agreed to
joint physical and legal custody of their children, whose primary residence was to be with
plaintiff, and plaintiff was awarded approximately $11,000 a year in child support. In lieu of her
half interest in the marital home, plaintiff accepted a lump sum payment of $60,000, or forty
percent of the equity in the home. The parties agreed to an equitable division of their tangible
personal property and kept their individual IRAs and bank accounts. Mr. Berman was required
to provide plaintiff with an insured car, health insurance and absolve plaintiff from all credit card
debt. Mr. Berman received the primary residence, condominium and all interests in business
ventures and stocks. Mr. Berman’s interest in the family trust was excluded in the settlement as
defendant determined that Mr. Berman was only entitled to advances made at the discretion of
his mother, and therefore, was not a marital asset. As the parties entered into the settlement
without the benefit of complete discovery, defendant included a disclosure clause in the
Judgment of Divorce.4
Subsequent to the entry of the Judgment of Divorce, plaintiff retained substitute counsel,
Kurt Schnelz, to handle continuing custody and child support matters. From a review of the
income tax returns, Mr. Schnelz determined that Mr. Berman may have concealed assets during
the divorce proceedings, including income from the family trust and several business ventures
and stock dividends. As a result, plaintiff instituted both an action to modify the Judgment of
4
The clause is entitled “Disclosure of Assets” and provides:
The parties by their signatures hereon state and affirm that each has
disclosed all assets that each owns or has any interest in, whether held by him/her
individually, by both of them jointly, or with any other person or entity for
Plaintiff or Defendant or on his/her behalf or benefit. The property division set
forth in this Judgment of Divorce are [sic] intended to be a distribution and
allocation of all of the property of the parties. If either party has failed, either
intentionally or unintentionally, to disclose any of his or her assets, the issue of
property division may be reopened on the motion of either party to determine and
resolve the distribution of any previously undisclosed assets. [Consent Judgment
of Divorce, February 23, 1999, p 11.]
-2-
Divorce based upon Mr. Berman’s fraud and brought the current legal malpractice action against
defendant.
Plaintiff alleged that defendant failed to adequately engage in discovery in the divorce
proceedings by compelling answers to interrogatories regarding assets, deposing Mr. Berman
and consulting with experts resulting in defendant’s failure to discover that Mr. Berman had
concealed assets. Plaintiff also alleged that she assented to an inadequate settlement agreement
based on defendant’s representations that Mr. Berman had no money, that this was the best
settlement she could receive, and that, if the case went to trial, plaintiff would owe defendant an
exorbitant amount in attorney fees. In support of her assertion that she was coerced into settling,
plaintiff relied on a letter she sent to defendant regarding her concern with the settlement amount
and certain remarks she made before the trial court.5 Defendant claimed that plaintiff agreed to
the settlement to avoid the costs of trial and rushed to settle in order to marry her current
husband, with whom she had engaged in an extra-marital affair.
Defendant moved for summary disposition of plaintiff’s legal malpractice claim. The
trial court found that there existed a genuine issue of material fact whether defendant’s
negligence actually harmed plaintiff, as the action to modify the Judgment of Divorce based on
Mr. Berman’s fraud had yet to reach a conclusion. Whether defendant adhered to the standard of
care of a matrimonial attorney also presented a factual issue. However, the trial court granted
defendant’s motion, as plaintiff failed to establish that defendant’s conduct was the proximate
cause of her decision to sign the settlement agreement.6
II. Legal Analysis
This Court reviews a trial court’s determination regarding a motion for summary
disposition de novo.7 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s
5
On February 10, 1999, plaintiff stated before the trial court, “I do agree to the terms of the
settlement as far as the financials that are in this judgment,” and then expressed her concerns
regarding the custody of the couple’s two children. [Motion Transcript, February 10, 1999, pp
16-19.]
6
Specifically, the trial court found:
Plaintiff has failed to create a genuine issue of material fact that she was forced to
settle due to Defendant’s negligence. In fact, there’s no evidence the Defendant’s
conduct left her with no viable option but to settle her case, and based on her
testimony, she accepted the settlement agreement, in order to avoid facing the risk
and expenses of proceeding with trial. Thus, the Court finds that she does not
have a cause of action for legal malpractice under the rule in Lowman and
Espinoza, based on her failure to show proximate cause. [Motion for Summary
Disposition Transcript, January 22, 2003, p 18, citing Espinoza v Thomas, 189
Mich App 110; 472 NW2d 16 (1991); Lowman v Karp, 190 Mich App 448; 476
NW2d 428 (1991).]
7
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
-3-
claim.8 “In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we
consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence
submitted in the light most favorable to the nonmoving party to decide whether a genuine issue
of material fact exists.”9 Summary disposition is appropriate only if there are no genuine issues
of material fact, and the moving party is entitled to judgment as a matter of law.”10
In order to establish a claim of legal malpractice, a plaintiff must prove: (1) the existence
of an attorney-client relationship; (2) negligence in the legal representation of the plaintiff; (3)
that the negligence was the proximate cause of an injury; and (4) the fact and extent of the injury
alleged.11 To establish causation, a plaintiff must show that, but for the attorney’s alleged
malpractice, she would have been successful in the underlying suit.12 “However, an attorney
does not have a duty to insure or guarantee the most favorable outcome possible.”13 A plaintiff’s
settlement of her claims is not an absolute bar to a subsequent legal malpractice action against
her attorney in the underlying action.14 It is more difficult to establish legal malpractice where
the underlying action was settled. However, a plaintiff may show that her assent was compelled
by her attorney’s malpractice.15
It is true that defendant failed to conduct discovery into Mr. Berman’s assets resulting in
the gross under-estimation of his income. There is no record of the conversations between
plaintiff and defendant leading up to plaintiff signing the settlement agreement. Therefore, it
cannot be conclusively determined as a matter of law whether defendant convinced plaintiff to
settle or whether plaintiff rushed to settlement. Defendant protected herself from potential
liability, however, by including the disclosure clause in the Judgment of Divorce to allow for the
reopening of the property settlement. In fact, plaintiff has taken the opportunity to pursue
modification of the property settlement in other litigation.16
Furthermore, this was a marriage of short duration and plaintiff does not contend that
defendant’s negligence negatively affected the award of child support or custody. Plaintiff did
8
Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d
685 (1999).
9
Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001).
10
MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
11
Charles Reinhart Co v Winiemko, 444 Mich 579, 585-586; 513 NW2d 773 (1994).
12
Id. at 586.
13
Simko v Blake, 448 Mich 648, 656; 532 NW2d 842 (1995).
14
Espinoza, supra at 122-124; 472 NW2d 16 (1991); Lowman, supra at 452-453.
15
Espinoza, supra at 124, quoting Becker v Julien, Blitz & Schlesinger, PC, 95 Misc 2d 64, 66;
406 NYS2d 412 (1977), modified on other grounds 66 AD2d 674; 411 NYS2d 17 (1978).
16
There is conflicting evidence whether plaintiff has determined to cease her attempt to modify
the Judgment of Divorce. Plaintiff’s decision to actually pursue this available remedy does not
affect our disposition.
-4-
receive forty percent of the marital home. It is uncertain, especially in light of plaintiff’s fault,
that she would have received a larger amount had the divorce action proceeded to trial.
Accordingly, even if defendant were negligent in her representation, plaintiff cannot show that
she was actually harmed by entering into the settlement agreement or that she would be
unsuccessful in her attempt to modify the property settlement. Accordingly, the trial court
properly granted defendant’s motion for summary disposition, although on different grounds.
Affirmed.
/s/ Patrick M. Meter
/s/ Jessica R. Cooper
I concur in result only.
/s/ Kathleen Jansen
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
