KAMLESH CHOPRA V ASHLEY GORMAN
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STATE OF MICHIGAN
COURT OF APPEALS
KAMLESH CHOPRA,
UNPUBLISHED
May 25, 2010
Plaintiff-Appellant,
v
ASHLEY GORMAN and ASHLEY GORMAN &
ASSOCIATES, PLC,
No. 289275
Oakland Circuit Court
LC No. 2008-088796-NM
Defendants-Appellees.
Before: METER, P.J., and MURRAY and BECKERING, JJ.
PER CURIAM.
In this legal malpractice action, plaintiff appeals as of right from the trial court’s grant of
summary disposition to defendant. We affirm.
Plaintiff filed a complaint on January 23, 2008, in which she alleged that she had claims
against All-Tech Investment Group, Inc., and another defendant and that these claims were
arbitrated and “decided against her interest.” She hired defendant Ashley Gorman1 to appeal the
award under MCR 3.602(J). MCR 3.602(J)(1) states that “[a] complaint to vacate an arbitration
award must be filed no later than 21 days after the date of the arbitration award.” Plaintiff stated
that the award was mailed to her on June 1, 2004, and that she received it approximately one
week later. She stated that approximately 14 days after receiving it, she took it to defendant and
requested that he file an appeal. Plaintiff alleged:
22. GORMAN, realizing that the initial filing could have been considered
by the court to be past the 21 day appeal period, sought to avoid the potential
tardiness by indicating that he was following the Complaint service rules
contained in Section 12 of the Federal Arbitration Act, which states a court may
vacate an arbitration award so long as its time line were [sic] followed, to wit:
“[n]otice of a motion to vacate, modify, or correct an award must be served upon
an adverse party or his attorney within three months after the award is filed or
delivered.” [Emphasis removed.]
1
For ease of reference, we will refer to the singular “defendant” in this opinion.
-1-
23.
The award was filed on the 1st of June, 2004 and, arguably,
delivered in mid-June of 2004, so three months from that date would be the 1st of
September, 2004 to, potentially, some time in mid-September, 2004.
24.
GORMAN did not serve the Summon[s] and Complaint on the
attorney for All-Tech until the 27th of September, 2004 – after the time for service
which was specified in Section 12 of the Federal Arbitration Act.
Plaintiff alleged that defendant committed malpractice and caused her various damages because
she lost her opportunity to have the arbitration award vacated when the trial court reviewing the
action dismissed it.
On July 15, 2008, defendant moved for summary disposition under MCR 2.116(C)(8)
and (10), stating:
Summary Disposition is appropriate because Plaintiff cannot establish
proximate cause against Defendants for her claims, as Plaintiff’s likelihood for
success in her NASD [National Association of Securities Dealers] appeal was
non-existent, and as such, Plaintiff cannot establish a claim for legal malpractice.
In a supporting brief, defendant indicated that plaintiff did not bring the arbitration award to him
within the timeline specified in the Michigan Court Rules. However, defendant stated that
this motion does not ask the [c]ourt to consider these timing issues . . . . This
motion is instead premised upon the fact that Mr. Gorman cannot be held liable
for Chopra’s failure to prevail, as the claim to set aside the arbitration award had
no merit. [Emphasis in original.]
Defendant argued:
Overturning an arbitration award on appeal is difficult under Michigan
law. This fact was well known to the litigious Chopra, as she had attempted,
unsuccessfully, to do so before. In 2005, Chopra sought to vacate an arbitration
award issued by the NASD under facts nearly identical to those in the underlying
case in this matter. . . . Chopra was unsuccessful at the trial court level, whose
decision was affirmed by the Court of Appeals without oral argument.
***
In her Motion to Set Aside the Arbitration Award, Chopra argued that the
panel did not properly and fully review the information presented to it when
rendering their Opinion. She offers no support, however, for this accusation,
merely calling their decision “irrational.” The fact that the panel had to sanction
Chopra personally for her conduct at the proceedings speaks directly to her
disillusion with the process itself and her inappropriate actions therein.
Chopra’s unhappiness with the result of the arbitration is simply not
grounds to set aside the award. Michigan courts may not entertain her
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unsupported claim in the underlying action and cannot review the arbitrators’
factual findings on the merits. . . . Chopra can offer no proofs that the arbitrators
made any error of law. Therefore, she cannot overcome the high burden
established by Michigan precedent to set aside an arbitration award . . . .
Plaintiff later, on July 30, 2008, filed with the trial court an affidavit from Edward
Goodman, a certified public accountant, who stated that All-Tech acted fraudulently in the
underlying action. On that same day plaintiff also filed an affidavit from Terrence Hall, an
attorney, who stated that defendant breached the prevailing standard of care in failing to have the
complaint to vacate the arbitration award timely served upon All-Tech. Plaintiff simply filed
these affidavits with the court; they did not accompany a motion or brief.
The motion hearing took place on August 6, 2008. The trial court granted the motion,
stating only that it was relying on the reasons vocalized by defense counsel. Defense counsel
had argued that “there is no way she was going to get the arbitration award set aside . . . .”
Counsel had stated:
This [c]ourt cannot substitute the judgment [sic] for the arbitrator’s
findings of fact or their decision, and that’s basically all she wants for this [c]ourt
to do and that’s all she wanted the underlying court to do.
So there’s no way she can establish the proximate connection, that is, that
the alleged delay in serving the underlying complaint caused her any harm.
On August 20, 2008, plaintiff filed a motion for reconsideration, alleging that defendant
had filed improper documents with its motion for summary disposition and had “failed to file
any affidavit or deposition testimony to support” the motion. She also argued that “Plaintiff has
properly demonstrated that Defendant’s burden of proof was not met in his Motion for Summary
Disposition . . . .” The trial court denied plaintiff’s motion, stating that plaintiff “now seeks to
address the merits of Defendant’s causation argument, despite the fact that she utterly failed to
do so in response to the original motion.” The court indicated that plaintiff was not allowed, by
way of her motion for reconsideration, to reargue her position using evidence or authority that
should have been presented initially.
Plaintiff now argues that the trial court erred in granting defendant’s motion for summary
disposition. We review de novo a trial court’s ruling concerning a motion for summary
disposition. Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165
(2003). Defendant moved for summary disposition under MCR 2.116(C)(8) and (10), and the
trial court did not specify the subrule on which it relied in granting the motion. In evaluating a
summary disposition motion under MCR 2.116(C)(10), a court considers the “affidavits,
pleadings, depositions, admissions, and other evidence submitted by the parties” in the light most
favorable to the party opposing the motion. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681
NW2d 342 (2004). “Where the proffered evidence fails to establish a genuine issue regarding
any material fact, the moving party is entitled to judgment as a matter of law.” Id.
A motion for summary disposition brought under MCR 2.116(C)(8) tests
the legal sufficiency of a claim by the pleadings alone. . . . This Court reviews the
trial court's decision on a motion brought under this rule . . . to determine if the
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claim is so clearly unenforceable as a matter of law that no factual development
could establish the claim and justify recovery. [Smith v Kowalski, 223 Mich App
610, 612-613; 567 NW2d 463 (1997).]
In a legal malpractice action, the plaintiff has the burden of establishing:
(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. [Coleman v Gurwin, 443 Mich 59, 63; 503
NW2d 435 (1993).]
“Hence, a plaintiff in a legal malpractice action must show that but for the attorney's alleged
malpractice, he would have been successful in the underlying suit.” Id.
Plaintiff contends that she established a genuine issue of material of fact by submitting
the affidavit of attorney Hall.2 In this affidavit, Hall stated, in part:
12. Defendant Gorman’s Complaint, in paragraphs 21 and 22, stated
numerous irregularities with the Arbitration process which were the basis for the
Appeal.
13. Defendant Gorman, in subsequent conversations with [plaintiff], and
in my presence, stated that he felt that these irregularities in the arbitration were
of sufficient importance to have a reasonable chance of permitting her to obtain a
new arbitration, and justified her continued pursuit of her appeal.
14.
Plaintiff Chopra, in reliance upon Defendant Gorman’s
representations as to the viability of her case, continued to pay thousands of
dollars to him until it was discovered, and admitted, that he had failed to have the
Complaint filed in time.
15. It is inconsistent and inappropriate for Defendant Gorman, after
extracting many thousands of dollars from [plaintiff], based [on] irregularities in
the first arbitration, to now claim that such a case had no merit.
16. Defendant Gorman had a duty to properly serve Defendant All-Tech
with the Complaint which was timely filed . . ., but he breached that duty by
failing to have it timely served upon Defendant All-Tech.
2
Plaintiff assumes that the trial court granted the summary disposition motion under MCR
2.116(C)(10).
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17. It is my professional opinion that such a breach of duty was the result
of Defendant Gorman’s failure to live up to the standard of care expected of like
attorneys who practice law in Oakland County, Michigan.
18. Plaintiff Kamlesh Chopra, as a proximate cause of Defendant
Gorman’s breaches of duty and standard of care, suffered a dismissal of her
appeal from the Arbitration Award which was rendered against her, and in favor
of Defendant All-Tech, and a loss of whatever recovery she could reasonably
have expected as a result of a more proper arbitration (and/or litigation) of her
claim.
Plaintiff contends that this affidavit established an issue of fact because of paragraph 18.
Plaintiff argues that this paragraph established that defendant’s malpractice caused plaintiff to
incur damages. We disagree that this paragraph established an issue of fact. In paragraph 18,
Hall simply stated that plaintiff suffered a loss “of whatever recovery she could reasonably have
expected as a result of a more proper arbitration (and/or litigation) of her claim” (emphasis
added). Hall did not opine that a particular recovery was likely to occur or set forth any facts
establishing a probable recovery. Because we conclude that the affidavit, even if properly
considered, did not establish an issue of fact, we need not address defendant’s argument that the
affidavit did not constitute a proper response to the motion for summary disposition.
Plaintiff argues that defendant was not entitled to summary disposition because he failed
to support his motion with documentary evidence but instead merely argued that it is difficult to
set aside an arbitration award. Plaintiff cites the following from Berkeypile v Westfield Ins Co,
280 Mich App 172, 177; 760 NW2d 624 (2008), rev’d on other grnds ___ Mich ___; 779 NW2d
793 (2010): “Initially, the moving party has the burden of supporting its position with
documentary evidence, and, if the moving party does so, the burden then shifts to the opposing
party to establish the existence of a genuine issue of disputed fact.”
Plaintiff’s argument is without merit. Defendant did indeed support his motion with
documentary evidence. Most significantly, defendant attached to his summary disposition brief
the arbitration award itself, as well as plaintiff’s complaint for malpractice. Also, defendant
moved for summary disposition under MCR 2.116(C)(10) and (C)(8), and this requirement of
filing supporting evidence is not automatically applicable to motions filed under MCR
2.116(C)(8).3 See MCR 2.116(G)(3). Moreover, contrary to plaintiff’s assertion, defendant did
not merely argue that it is difficult to set aside arbitration awards; defendant specifically argued
that the award in this particular case was not subject to being vacated and that plaintiff thus could
not establish causation in her malpractice lawsuit.
Plaintiff next cites cases indicating that arbitration awards are indeed sometimes set
aside. This recitation of cases is misplaced. It is not in serious dispute that there might be some
3
Supporting evidence is required for a motion filed under MCR 2.116(C)(10) and for any
summary disposition motion “when the grounds asserted do not appear on the face of the
pleadings.” MCR 2.116(G)(3).
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cases in which an arbitration award is set aside. The key issue is whether the arbitration award
at issue here would have been set aside. The trial court concluded that either the pleadings alone
or the pleadings plus the evidence failed to sufficiently allege or indicate that it would have been.
Plaintiff next argues that defendant attached improper documents to his brief in support
of summary disposition. We decline to address this argument because it was not properly
presented in the trial court. Fast Air, Inc. v Knight, 235 Mich App 541, 549; 599 NW2d 489
(1999). Plaintiff only raised this issue as part of her motion for reconsideration, and this was
insufficient to preserve the issue. Farmers Ins Exchange v Farm Bureau Ins Co, 272 Mich App
106, 117; 724 NW2d 485 (2006). At any rate, we note that plaintiff argues that defendant
attached a document purporting to be a brief filed with the arbitration panel but that this
document was not in fact considered by the panel. Plaintiff also argues that defendant attached a
“petition to vacate the arbitration judgment and arbitration award” that was never in fact filed.4
Yet plaintiff makes no reasoned argument regarding how the trial court was materially misled by
the substance of these documents. An appellant may not leave it to this Court to discover and
rationalize the basis for his claims. Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184,
220; 761 NW2d 293 (2008).
Plaintiff next mentions a motion to adjourn that she filed and makes a general complaint
that the trial court had a pattern of ruling against her. She does not request any specific relief in
connection with this argument, beyond stating that “[a]t a minimum, the trial court should have
allowed Plaintiff additional time to marshal the documents necessary to support her cause of
action.” However, plaintiff provides no reasoned argument and cites no pertinent authority for
this requested relief. “This Court is not required to search for authority to sustain or reject a
position raised by a party without citation of authority.” Id. The argument has been abandoned
for purposes of appeal. Id.
Plaintiff next argues that paragraph 13 of Hall’s affidavit was sufficient to create an issue
of fact. This paragraph states:
5
13. Defendant Gorman, in subsequent conversations with [plaintiff], and
in my presence, stated that he felt that these irregularities in the arbitration were
of sufficient importance to have a reasonable chance of permitting her to obtain a
new arbitration, and justified her continued pursuit of her appeal.
We disagree that this paragraph created a question of fact. A causation theory must be based on
established facts. Pontiac School District v Miller, Canfield, Paddock & Stone, 221 Mich App
4
Defendant admits that this latter document was wrongly attached to the brief but argues that it
did not materially affect the substance of his arguments.
5
In her appellate brief, plaintiff also sets forth statements allegedly made by defendant to two
other attorneys. We decline to consider these statements because (1) they were not presented to
the court before the ruling on the motion for summary disposition and (2) they were not
presented as legally admissible evidence but were simply set forth by plaintiff in the argument
portion of her motion for reconsideration.
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602, 614; 563 NW2d 693 (1997). Moreover, a mere possibility of causation is not sufficient to
establish a plaintiff’s legal malpractice claim. Id. at 615. There must be evidence from which a
finder of fact could conclude that more likely than not, the defendant’s conduct caused the
plaintiff injury. Id. at 614. Defendant’s statements regarding “a reasonable chance of . . . a new
arbitration” were simply not sufficient to create a genuine issue of material fact regarding
causation.
Plaintiff argues as follows with regard to the alleged irregularities[6] in the arbitration
proceedings:
If, in fact, the record revealed that the arbitrators recorded the
overwhelming majority of the proceedings, then perhaps Defendant was overconfident in claiming that the arbitration should be vacated. But if a significant
portion of the proceedings were not recorded, then perhaps Defendant was correct
in stating that this rule violation provided a reasonable basis to vacate the
arbitration award.
Evidently, plaintiff makes this argument to supplement her earlier claim that the trial court
should have allowed plaintiff more time to respond to the summary disposition motion.
However, she utterly fails to indicate how the additional records would have benefited her case.
Plaintiff does cite a pertinent case, Davis v Detroit, 269 Mich App 376; 711 NW2d 462 (2005),
in making this supplemental argument. In Davis, id. at 379, the Court stated that “summary
disposition is generally premature if granted before completing discovery regarding a disputed
issue . . . .” However, the Court also stated that “[m]ere conjecture does not entitle a party to
discovery, because such discovery would be no more than a fishing expedition.” Id. at 380.
Despite the fact that plaintiff has presumably now had the time to obtain the pertinent records,
she fails to indicate how those records would have benefited her case. Appellate relief is
unwarranted.
Without dedicating a particular portion of her appellate brief to the issue, plaintiff also
makes the statement that “the trial court erred in . . . denying Plaintiff’s motion for
reconsideration.” We disagree. The motion for reconsideration merely attempted to present
issues that could have been raised as part of the summary disposition proceedings. Therefore,
the trial court did not abuse its discretion in denying the motion. Charbeneau v Wayne Co Gen
Hosp, 158 Mich App 730, 733; 405 NW2d 151 (1987).
Affirmed.
/s/ Patrick M. Meter
/s/ Christopher M. Murray
/s/ Jane M. Beckering
6
There was a question regarding whether the arbitrators adequately recorded the proceedings.
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