TORIANO JACOE TISDALE V LAURA KATHLEEN SUTTON
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STATE OF MICHIGAN
COURT OF APPEALS
TORIANO JACOE TISDALE,
UNPUBLISHED
July 30, 2009
Plaintiff-Appellant,
v
No. 285267
Wayne Circuit Court
LC No. 07-707476-NM
LAURA KATHLEEN SUTTON,
Defendant-Appellee.
Before: Saad, C.J., and Sawyer and Borrello, JJ.
PER CURIAM.
This legal malpractice dispute arises out of defendant’s legal representation during an
MCR 6.502 motion for relief from judgment. Plaintiff appeals the trial court’s decision to grant
defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
Plaintiff was seeking relief from judgment for a 1996 second-degree murder conviction
where his post-arrest confession was critical evidence. Defendant entered into an agreement to
represent plaintiff in the matter, and plaintiff’s motion for relief from judgment was filed in
Wayne Circuit Court on August 9, 2004. The court denied the motion, and a subsequent motion
for reconsideration. While the reconsideration motion was pending, plaintiff asked defendant to
supplement the pleadings with claims of perjurious testimony and Fourth Amendment violations.
Defendant declined, and plaintiff ended the representation soon after.
In November 2006, plaintiff filed a request for investigation with the Attorney Grievance
Commission (AGC), which was denied. On March 20 2007, plaintiff filed the malpractice
complaint in Wayne Circuit Court. Plaintiff alleged that he would have prevailed on his motion
for relief from judgment if defendant had raised the issues of illegal search and seizure, Brady1
violations, and perjurious testimony. The Brady violations and perjurious testimony centered on
the ninth floor log-in sheet2 from the night of plaintiff’s confession, which allegedly proves the
1
Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963) (holding a criminal
defendant has a due process right of access to certain information possessed by the prosecution).
2
The police officer testified that on the day he obtained plaintiff’s confession, interrogation
ended prior to 5:30 p.m. He further testified that plaintiff was taken to the ninth floor lockup
(continued…)
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police officer who obtained the confession gave false testimony. On April 16, 2008, the trial
court granted defendant’s motion for summary disposition.
Plaintiff first argues that the trial court erred as a matter of law when it granted
defendant’s motion for summary disposition. We disagree. This Court reviews a circuit court’s
decision on a motion for summary disposition de novo. Latham v Barton Marlow Co, 480 Mich
105, 111; 746 NW2d 868 (2008). Pursuant to MCR 2.116(C)(10), summary disposition is proper
if “there is no genuine issue as to any material fact, and the moving party is entitled to
judgment . . . as a matter of law.” A genuine issue of material fact exists when the record, viewed
in the light most favorable to the non-moving party, leaves open an issue upon which reasonable
minds could differ. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
The party opposing the motion has the burden of showing by evidentiary materials that a genuine
issue of disputed fact exists. MCR 2.116(G)(4); Coblentz v Novi, 475 Mich 558, 569; 719 NW2d
73 (2006). The disputed factual issue must be material to the dispositive legal claims. Auto Club
Ins Ass’n v State Automobile Mut Ins Co, 258 Mich App 328, 333; 671 NW2d 132 (2003). A
mere possibility that the claim might be supported by evidence at trial is insufficient. Bennett v
Detroit Police Chief, 274 Mich App 307, 317; 732 NW2d 164 (2006).
The elements necessary for a legal malpractice claim in Michigan are: (1) the existence of
an attorney-client relationship; (2) negligence in the legal representation of the plaintiff; (3)
proof that the negligence was a proximate cause of an injury; and (4) the fact and extent of the
injury alleged. Coleman v Gurwin, 443 Mich 59, 63; 503 NW2d 435 (1993). The allegations of
illegal search and seizure, Brady violations, and perjurious testimony by the police officer do not
allege breaches of reasonable care or proximate cause. To prove proximate cause in a legal
malpractice action, a plaintiff “must show that but for the attorney’s alleged malpractice, he
would have been successful in the underlying suit.” Id.
Counsel may not raise grounds for relief absent a reasonable belief they will succeed.
MCR 2.114(D)(2)(3). As a matter of law, MCR 6.508(D)(2) bars litigation of previously raised
issues on a motion for relief from judgment. MCR 6.508(D)(3)(a) requires a showing of good
cause and actual prejudice from failing to raise issues that could have been raised. Therefore,
even if the illegal search and seizure was not decided against plaintiff in a prior appeal or
proceeding, he has not demonstrated good cause for not raising the issue on appeal and actual
prejudice as a result. There were no grounds for the defendant to raise the Brady violation
because there was no reasonable probability that admission of the ninth floor log-in sheet as
evidence would have resulted in a different outcome. People v Lester, 232 Mich App 262, 281;
591 NW2d 267 (1998). Further, even if the police officer’s testimony were false, the evidence of
the perjury would not have caused a different result. People v Mechura, 205 Mich App 481; 517
NW2d 797 (1994). Because plaintiff can show no genuine issue of material fact that a
malpractice claim exists, the trial court’s decision to grant defendant’s motion for summary
disposition should be affirmed.
(…continued)
before dinner; however, the ninth floor log-in sheet showed that plaintiff was placed on or signed
out of the ninth floor at 10 p.m.
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Plaintiff next argues that the trial court abused its discretion when it decided to disallow
plaintiff an opportunity to amend his pleadings. We disagree. This Court reviews a trial court’s
decision to deny leave to amend pleadings for an abuse of discretion. Ormsby v Capital Welding,
Inc, 471 Mich 45, 53; 684 NW2d 320 (2004). Upon the grant of summary disposition, leave to
amend pleadings should be freely given to the non-prevailing party unless the amendment would
be futile or otherwise unjustified. Id. at 52-53. An amendment to a pleading would be futile if:
(1) ignoring the substantive merits of the claim, it is legally insufficient on its face; (2) it merely
restates allegations already made; or (3) it adds a claim over which the court lacks jurisdiction.
PT Today, Inc v Comm’r of the Office of Financial & Ins Services, 270 Mich App 110, 143; 715
NW2d 398 (2006). Plaintiff’s amended complaint would have been futile for the first two
reasons because it was legally insufficient on its face and merely restated allegations already
made. Thus, the trial court did not abuse its discretion when it refused to allow an opportunity to
amend the complaint.
Plaintiff also argues that the trial court violated plaintiff’s due process and equal
protection rights under state and federal law when it abused its discretion in denying pre-trial
discovery motions. We disagree. This Court reviews a trial court’s decision in limiting discovery
for an abuse of discretion. In re Hammond Estate, 215 Mich App 379, 387; 547 NW2d 36
(1996). “While Michigan is strongly committed to open and far reaching discovery, a trial court
must also protect the interests of the party opposing discovery so as not to subject that party to
excessive, abusive, or irrelevant discovery requests.” Id. at 386. A trial court’s decision to grant
summary disposition before discovery is complete is not necessarily untimely or otherwise
inappropriate. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283
Mich App 264, 292; ___ NW2d ___ (2009). The determining factor is whether there is a fair
chance that further discovery could uncover factual support for the opposing party’s position. Id.
The party opposing summary disposition cannot simply state summary disposition is premature,
but must identify a disputed issue and offer the required affidavits under MCR 2.116(H), with
the probable testimony to support their contentions. Id. In addition, the equal protection
guarantee is a measure of our constitution’s tolerance of government classification schemes, not
a source of substantive rights or liberties. Doe v Dep’t of Social Services, 439 Mich 650, 661;
487 NW2d 166 (1992). There is no evidence that defendant was being treated differently based
on any government classification. Therefore, there is no equal protection claim.
Plaintiff contends that his initial request for admissions should have been deemed
admitted because defendant failed to respond. He further contends that the sufficiency of
defendant’s answers on the second request should have been determined because defendant gave
unsigned, evasive, and incomplete answers. As the trial court held, plaintiff did not specify
which alleged admissions support denial of the motion for summary disposition, and failed to
explain how or why the alleged admissions support his position. To show summary disposition
is premature, plaintiff must at least identify which admissions support denial of summary
disposition. Plaintiff failed to do so. Plaintiff also has failed to offer the necessary evidence
pursuant to MCR 2.116(H) to justify keeping discovery open to prove defendant committed legal
malpractice. Because plaintiff has not shown any evidence there was a fair chance that further
discovery would have proved legal malpractice, the trial court did not abuse its discretion in
denying pre-trial discovery motions and granting defendant’s motion for summary disposition
was proper and not premature.
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Finally, plaintiff lacks factual support for his various claims of Michigan Rules of
Professional Conduct (MRPC) violations on the part of defendant. Further, the alleged MRPC
violations are insufficient to support a claim for legal malpractice because they would not have
led to a different outcome in the underlying suit.
Affirmed. Defendant may tax costs.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Stephen L. Borrello
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