WAYNE M SCHULTZ V ROBERT D SAROWAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
WAYNE M. SCHULTZ and SHARON M.
July 14, 2011
ROBERT D. SAROW and LEARMAN, SAROW,
BIRCHLER, FITZHUGH & PURTELL, P.L.C.,
Bay Circuit Court
LC No. 09-003909-NM
Before: SAAD, P.J., and JANSEN and DONOFRIO, JJ.
Plaintiffs appeal as of right from a circuit court order granting defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(7) on the basis that this legal malpractice action
was barred by the statute of limitations. Because plaintiffs brought this legal malpractice action
more than two years after defendants discontinued serving Walter Schultz, we affirm.
Plaintiffs brought this action against defendant Robert D. Sarow and his firm for legal
malpractice in the drafting of trusts and amendments for the parents of plaintiff Wayne Schultz.
Plaintiffs alleged that Sarow failed to properly draft the estate planning documents to effectuate
his parents’ intent, and thereby breached the standard of care owed to him, as a beneficiary of the
trusts. Wayne’s mother, Grace M. Schultz, died on May 30, 1999. Sarow last performed legal
services for Wayne’s father, Walter Schultz, on April 8, 2005. Sarow had no communication
with and performed no additional legal services for Walter after that date. Walter died on
February 7, 2007. After Walter’s death, Sarow performed legal services for Julie A. Schultz, in
her capacity as successor trustee of the trusts. Plaintiffs filed this action for legal malpractice on
November 25, 2009. The trial court determined that plaintiffs’ action was barred by the statute
This Court reviews de novo a trial court’s grant of summary disposition based on a
statute of limitations. Mayberry v Gen Orthopedics, PC, 474 Mich 1, 5; 704 NW2d 69 (2005).
Questions of statutory interpretation are also reviewed de novo. Id.
The parties agree that plaintiffs were required to file this action within two years of the
date the claim accrued.1 MCL 600.5805(6). They also agree that MCL 600.5838(1) governs the
accrual of the claim. That statute provides:
Except as otherwise provided in section 5838a, a claim based on the
malpractice of a person who is, or holds himself or herself out to be, a member of
a state licensed profession accrues at the time that person discontinues serving the
plaintiff in a professional or pseudoprofessional capacity as to the matters out of
which the claim for malpractice arose, regardless of the time the plaintiff
discovers or otherwise has knowledge of the claim. [Emphasis added.]
The parties disagree on the application of this statute to plaintiffs’ action, which is premised on
plaintiffs’ status as third-party beneficiaries. According to defendants, plaintiffs’ claim accrued
when defendants discontinued serving Walter Schultz. Defendants assert that this last service
was on April 8, 2005. In contrast, plaintiffs rely on Sarow’s representation of the successor
trustee to argue that they timely filed this action.
This Court’s decision in Ohio Farmers Ins Co v Shamie (On Remand), 243 Mich App
232, 240-241; 622 NW2d 85 (2000), addresses the accrual of a malpractice claim based on a
third-party beneficiary theory of liability. In that case, the defendants were accountants who
prepared financial reports for their client, Marcelli Construction Company. The plaintiff
allegedly relied on these reports in making the decision to provide performance and surety bonds
to Marcelli. Marcelli failed to meet its obligations and the plaintiff was required to make
payments to its creditors. The plaintiff sued the defendants for accounting malpractice and
asserted that it was a third-party beneficiary of the agreement between Marcelli and the
defendants. Id. at 234-235. This Court recognized that MCL 600.5838 governed the accrual of
the accounting malpractice claim. Id. at 240. The Court then explained the application of that
statute where the plaintiff was relying on its status as a third-party beneficiary of the accountantclient relationship, stating:
In the present case, the determination of when plaintiff’s claim accrued is
complicated by the fact that plaintiff’s claim is based on a third-party beneficiary
theory of liability. When a plaintiff sues on such a theory, he “has the same right
to enforce said promise that he would have had if the said promise had been made
directly to him as the promisee.” MCL 600.1405. Accordingly, plaintiff’s third-
Plaintiffs do not rely on the six-month discovery provision in MCL 600.5838(2). Defendants
submitted evidence that attorneys for plaintiffs presented defendants’ attorneys with a copy of a
proposed legal malpractice lawsuit on February 20, 2008, more than six months before this
action was filed.
party claim accrued at the same time that Marcelli’s claim would have accrued,
i.e., when defendants discontinued serving Marcelli in a professional capacity
with regard to the matters out of which the accounting malpractice claim arose.
[Id. at 241.]
In this case, plaintiffs acknowledge that their malpractice claim is premised on their
standing as third-party beneficiaries. They rely on Mieras v DeBona, 452 Mich 278; 550 NW2d
202 (1996), and Bullis v Downes, 240 Mich App 462; 612 NW2d 435 (2000). In Mieras, the
Court addressed the basis for allowing a beneficiary of a will to bring an action for malpractice
against the attorney who drafted it, stating:
An attorney’s primary duty in drafting a will is to draft a document that
legally accomplishes the testator’s intent regarding disposition of the testator’s
property. Drafting a document that fulfills the testator’s desire to transfer
property to named beneficiaries, however, creates a corresponding duty to the
named persons because of their third-party beneficiary status. This is a
contractual duty that gives rise only to contractual remedies.
If our inquiry were to end at this point, plaintiffs’ claims would fail
because neither count of the complaint was a claim in contract; both were
grounded solely in tort principles. But this conclusion overlooks the tort-based
liabilities that develop as a result of the contractual relationship when professional
services are the product contracted for.
Typically, in contracting with the testator to draft a will, an attorney
implicitly agrees to draft the will in accordance with the standard of care
applicable in that field.
By nature of the named beneficiaries’ status as third-party beneficiaries of
the contract between the attorney and the testator, the attorney also owes the
beneficiaries a tort-based duty to draft the documents with the requisite standard
of care. Thus, there can be an independent duty owed to the beneficiaries, the
breach of which is grounded in tort. [Mieras, 452 Mich at 299.]
In Bullis, 240 Mich App at 467-468, this Court explained that Mieras was not limited to
beneficiaries of a will. The Bullis Court stated:
After all, the contractual promise between an attorney and a decedent that
underlies a negligence action is the promise to establish a testamentary scheme by
which the decedent’s intended disposition of property will be accomplished. That
might entail the drafting of a single document, or it might require the
establishment of more complex testamentary design. [Id. at 468 (emphasis
The foregoing authorities support the trial court’s decision to grant defendants’ motion.
Ohio Farmers Ins Co, 243 Mich App at 241, indicates that a plaintiff’s malpractice claim that is
based on a third-party beneficiary theory of liability accrues at the same time that the
promisee/client’s claim would have accrued. i.e., when the defendants discontinued serving that
client in a professional capacity with regard to the matters out of which the malpractice claim
arose. Mieras and Bullis indicate that the malpractice action in circumstances such as these
arises from the promise between the attorney and the decedent. Thus, plaintiffs’ claim accrued
when defendants discontinued serving Walter Schultz with respect to the matters out of which
the claim for malpractice arose. MCL 600.5838(1). Contrary to plaintiffs’ argument,
defendants’ representation of the successor trustee after Schultz’s death has no effect on the
accrual of the claim.
With respect to when defendants discontinued serving the decedent, Walter Schultz, “[a]
lawyer discontinues serving a client when relieved of the obligation by the client or the court, or
upon completion of a specific legal service that the lawyer was retained to perform.” Balcom v
Zambon, 254 Mich App 470, 484; 658 NW2d 156 (2002) (citation omitted). Defendants
provided specific legal services for Walter Schultz and presented evidence that they did not
provide any legal services for Walter after April 8, 2005. Plaintiffs do not dispute this evidence,
but instead incorrectly rely on defendants’ services for the successor trustee. Because plaintiffs
do not contest that the last service provided to Walter was more than two years before they filed
the action, the trial court correctly granted defendants’ motion for summary disposition.
In any event, even if this Court were inclined to treat defendants’ representation of the
trust as part of defendants’ representation of the Schultzes, Ohio Farmers Inc Co, 243 Mich App
at 241-243, suggests that the claim would still be untimely because the “matters out of which the
claim for malpractice arose” involved the drafting of the trust documents, which were complete
in 2005. In Ohio Farmers Inc Co, at least one of the accountants continued to perform services
for Marcelli even up to the time that the plaintiff filed the complaint. Id. However, this Court
explained that the allegations of malpractice concerned the reports for the years 1991 through
1995, and concluded that the defendants “discontinued professional services ‘as to the matters
out of which the claim of malpractice arose’” at some point before March 28, 1996. Id. Thus,
the Court viewed “the matters out of which the claim of malpractice arose” as the allegedly
deficient reports. In the present case, plaintiffs’ action is premised on alleged deficiencies in the
trust documents and amendments. Those are “the matters out of which the claim of malpractice
arose,” not defendants’ representation of the successor trustee after Walter Schultz’s death. Id.
Plaintiffs’ second stated issue challenges the trial court’s denial of plaintiffs’ motion for
reconsideration. However, plaintiffs do not offer any additional argument on that point. They
simply incorporate their arguments with respect to the order granting summary disposition.
Because we have concluded that the trial court correctly granted defendants’ motion for
summary disposition, we likewise conclude that the trial court did not abuse its discretion when
it denied plaintiffs’ motion for reconsideration. Corporan v Henton, 282 Mich App 599, 605,
609; 766 NW2d 903 (2009).
Affirmed. Defendants, being the prevailing parties, may tax costs pursuant to MCR
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Pat M. Donofrio