JESSE LEE CODDINGTON V GERALD M LORENCE PC
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STATE OF MICHIGAN
COURT OF APPEALS
JESSE LEE CODDINGTON,
UNPUBLISHED
April 21, 1998
Plaintiff-Appellant,
v
No. 191608
Wayne Circuit Court
LC No. 94-436461-NM
GERALD M. LORENCE, P.C.,
Defendant-Appellee.
Before: Hood, P.J., and Markman and Talbot, JJ.
PER CURIAM.
Summary disposition was granted pursuant to MCR 2.116(C)(10) for defendant on plaintiff's
claims of fraudulent misrepresentation and legal malpractice. Plaintiff's motions for summary disposition
and sanctions were subsequently dismissed as moot. Plaintiff appeals as of right. We affirm in part,
reverse in part and remand for further proceedings consistent with this opinion.
Plaintiff was convicted of first-degree murder, MCL 750.316; MSA 28.548; second-degree
murder, MCL 750.317; MSA 28.549; felonious assault, MCL 750.82; MSA 28.277, and three counts
of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). See
People v Coddington, 188 Mich App 584; 470 NW2d 478 (1991). The convictions arose from the
shooting deaths of Jean Coddington (plaintiff's sister-in-law) and Julie Mendoza (Jean's sister), and the
assault of Mary Coddington (plaintiff's mother).
After plaintiff's conviction, but prior to sentencing, a fellow inmate suggested that plaintiff retain
attorney James Lawrence as his appellate attorney. Subsequently, plaintiff and his sister engaged in
several conversations with Lawrence on the telephone, and it was decided that Lawrence would handle
the appeal. At some later time in 1988 (the dates are disputed by the parties) defendant was in a
position to retain attorney Lawrence. He therefore asked his mother to contact Lawrence. Mary had
lost Lawrence's business card and mistakenly called defendant, Gerald Lorence, after finding his number
in the telephone book. Plaintiff alleges that Mary told defendant that she was contacting him pursuant to
previous conversations and wished to retain him. Plaintiff further alleges that defendant failed to advise
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Mary that he had never spoken to plaintiff, his sister or anyone else on plaintiff's behalf and that
defendant, knowing he was not the attorney plaintiff wanted to retain, deceitfully agreed to represent
him.
Plaintiff and defendant communicated by telephone and through letters after defendant was
retained to handle the criminal appeal. They first met in 1989 during the three-day Ginther1 hearing,
which took place on September 7, September 15, and October 10. In fact, plaintiff and defendant sat
together during the three days of evidentiary testimony. At no time did plaintiff express that defendant
was not the attorney he sought to hire. He claims that due to his "devastated mental state after
conviction", he was unable to realize that defendant was not James Lawrence, with whom he had
previously spoken. Plaintiff allegedly first discovered the mistake in the identity of the attorneys after this
Court affirmed all of his convictions, except the second-degree murder conviction, which was reduced
to voluntary manslaughter. Coddington, supra at 608-609. After the Supreme Court denied leave to
appeal, 439 Mich 970; 483 NW2d 364 (1992), plaintiff hired James Lawrence to file a motion for
rehearing on the application for leave, which was also denied. Plaintiff then sued defendant herein for
fraudulent misrepresentation and legal malpractice.
First, plaintiff argues that the trial court erred in granting summary disposition to defendant
pursuant to MCR 2.116(C)(10) regarding his fraudulent misrepresentation claim. We review de novo
the trial court’s grant of summary disposition, Stevens v Inland Waters, Inc, 220 Mich App 212, 214;
559 NW2d 61 (1996), and conclude that plaintiff failed to raise a genuine issue of material fact that
would support a fraudulent misrepresentation claim.
Fraud and misrepresentation are similar and require proof that
(1) defendants made a material representation; (2) it was false; (3) when
defendants made it, defendants knew that it was false or made recklessly without
knowledge of its truth or falsity; (4) defendants made it with the intent that plaintiffs
would act upon it; (5) plaintiffs acted in reliance upon it; and (6) plaintiffs suffered
damage. [Mitchell v Dahlberg, 215 Mich App 718, 723; 547 NW2d 74 (1996),
quoting Arim v General Motors Corp, 206 Mich App 178, 195; 520 NW2d 695
(1994).]
In this case, plaintiff provided no evidence that defendant falsely represented himself as James
Lawrence. Plaintiff does not, and cannot, point to any false representations made by defendant.
Instead, plaintiff claims that defendant committed fraud when he failed to inform plaintiff's mother that
she had reached the wrong attorney when she called to retain defendant to handle plaintiff’s criminal
appeal.
In a silent fraud case, "[t]he false material representation needed to establish fraud may be
satisfied by the failure to divulge a fact or facts that defendant has a duty to disclose." Clement-Rowe v
Michigan Health Care Corp, 212 Mich App 503, 508; 538 NW2d 20 (1995); Lorenzo v Noel, 206
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Mich App 682, 684-685; 522 NW2d 724 (1994). A claim of silent fraud therefore requires the
plaintiff to allege that the defendant intended to induce plaintiff to rely on his nondisclosure and that
defendant had an affirmative duty to disclose. Clement-Rowe, supra. Even if we were to conclude
that defendant failed to correct a material misapprehension, plaintiff has not alleged that defendant owed
him or his mother any affirmative duty to disclose that defendant had never before spoken to plaintiff
regarding his appeal. Further, at the time plaintiff complains defendant should have informed Mary
about his identity, defendant owed plaintiff no duty to disclose. He had not entered into a contractual
relationship with plaintiff, nor did defendant stand in any other fiduciary relationship with plaintiff that
would have required him to disclose information to plaintiff. Summary disposition was appropriate on
the fraudulent misrepresentation claim where plaintiff failed to allege that defendant had a duty to
disclose and failed to offer evidence, testimony, or facts that could support a finding that there is a
genuine issue of material fact as to the fraudulent misrepresentation claim.
We also note that the fact that a mediation panel awarded a sum in plaintiff's favor is not
indicative that there is a genuine issue of material fact sufficient to allow a trial to proceed. Plaintiff's
claim that his case must have merit because the mediators awarded a sum in his favor illustrates plaintiff's
fundamental lack of understanding of the purpose and effect of the mediation process. We conclude
that the trial court properly granted defendant summary disposition pursuant to MCR 2.116(C)(10).
Next, plaintiff argues that his legal malpractice claim should not have been dismissed. Again, we
disagree.
In an action for legal malpractice, the plaintiff has the burden of proving 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) (footnotes and citation omitted).
"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 claims that defendant’s failure to cite federal case law in his appellate brief in the
underlying criminal case constituted legal malpractice. However, plaintiff presents only this general
argument, and has failed to specify which issues defendant failed to "federalize". Because there is no
indication as to what specific issues defendant allegedly mishandled, there can be no genuine issue of
material fact as to whether there was negligence in the representation with respect to those issues.
Therefore, we conclude that the trial court did not err by granting defendant summary disposition
pursuant to MCR 2.116(C)(10) regarding plaintiff’s legal malpractice claim that defendant failed to
federalize important issues.
Plaintiff also claims that defendant committed legal malpractice when he failed to challenge out
of-court statements, which plaintiff maintains were erroneously admitted in his underlying criminal trial,
and the jury instructions pertaining to those statements. Our review of the record indicates that prior to
the granting of summary disposition, plaintiff never identified the precise statements that defendant
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negligently failed to challenge. In fact, he failed to provide the trial court with any information other than
complaining that taped or prior statements were admitted and allowed to be considered as substantive
evidence and should not have been. Therefore, the trial court did not err when it granted defendant
summary disposition pursuant to MCR 2.116(C)(10) regarding plaintiff’s claim that defendant
negligently failed to challenge the admission of out-of-court statements in plaintiff’s criminal appeal.
There were simply no questions of material fact presented as to those statements2.
Plaintiff also claims that defendant unnecessarily and negligently requested that this Court
remand his criminal case for an evidentiary (Ginther) hearing. While this allegation has merit with regard
to the need for a remand to determine if a manslaughter instruction had been requested by the trial
attorney3, defendant was in no way injured or prejudiced by defendant's request for an evidentiary
hearing. In fact, the information garnered at the evidentiary hearing enabled defendant to raise before
this Court the ineffective assistance of counsel issues with regard to trial counsel's failure to object to
juror misconduct and with regard to a "spat" between defendant and trial counsel, which was apparently
witnessed by the jury. Coddington, supra at 607-608. Moreover, plaintiff received a favorable ruling
from this Court regarding the criminal trial court’s improper denial of trial counsel’s request for a
manslaughter instruction. Id. at 604-606, 608-609. Thus, the evidentiary hearing was not a proximate
cause of any injury to plaintiff. We conclude that the trial court did not err by granting defendant
summary disposition as to plaintiff’s claim that defendant negligently requested an evidentiary hearing.
There was no question of material fact as to whether plaintiff suffered any injury by defendant's request
for a Ginther hearing.
Plaintiff next claims that when the trial court granted defendant’s motion for summary
disposition, it erroneously dismissed as moot plaintiff’s motion for sanctions against defendant for
allegedly filing a frivolous, prior motion for summary disposition. We agree. “An issue is moot when
the occurrence of an event renders it impossible for the court to fashion a remedy.” Crawford Co v
Secretary of State, 160 Mich App 88, 93; 408 NW2d 112 (1987). The trial court’s grant of
summary disposition to defendant regarding plaintiff’s fraud and legal malpractice claims did not render
it impossible for the trial court to consider the merits of plaintiff’s unrelated motion for sanctions
regarding a separate, prior motion for summary disposition by defendant. Therefore, the trial court’s
grant of summary disposition to defendant did not render moot plaintiff’s motion for sanctions. We
remand to the trial court for a determination as to whether defendant signed a frivolous pleading under
MCR 2.114(D) that entitles plaintiff to sanctions under MCR 2.114(E) and (F), and whether
defendant's failure to appear at the August 25, 1995 summary disposition hearing subjects him to an
assessment of costs and penalties under MCR 2.119(E)(4)(b). We note, however, that plaintiff's
motion for costs pursuant to MCL 600.2591; MSA 27A.2591 need not be considered by the trial
court because plaintiff was not a prevailing party.
Finally, plaintiff argues that when the trial court granted defendant’s motion for summary
disposition, it erroneously dismissed as moot plaintiff’s own motion for summary disposition. We
disagree. Plaintiff and defendant both sought summary disposition on plaintiff's complaint. Because the
trial court’s proper grant of summary disposition to defendant “renders it impossible for the court to
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fashion a remedy” to plaintiff’s request for summary disposition, Crawford, supra, we conclude that
the trial court properly dismissed plaintiff’s summary disposition motion as moot.
Affirmed regarding the trial court’s grant of summary disposition to defendant on all counts of
plaintiff’s complaint, and remanded for a determination on the merits of plaintiff’s motion for sanctions.
We do not retain jurisdiction.
/s/ Harold Hood
/s/ Stephen J. Markman
/s/ Michael J. Talbot
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
After the trial court granted summary disposition, plaintiff filed objections to the order. Attached to his
objections was a copy of the brief in support of reconsideration, which was filed with the Supreme
Court by James Lawrence after that Court denied leave on the underlying criminal appeal. In that
document, references are made to the criminal trial transcript and to some statements, which allegedly
should not have been admitted. However, without being provided with the transcripts and without
knowing the relevant information: including the entire contents of the statements, when and why they
were made, why they were actually admitted at trial, and for what purposes they were admitted, the trial
court could not review the evidence to determine whether there was an issue of material fact as to
whether it was malpractice to fail to challenge the statements. Similarly, this Court cannot, based on the
record, determine whether there was any issue of material fact as to whether defendant should have
challenged out-of-court statements that were admitted at trial.
3
Defendant moved for a remand, arguing that plaintiff’s criminal trial counsel had rendered ineffective
assistance because he had argued with plaintiff before the jury and had neglected to request
manslaughter instructions on the record. He also claimed that an evidentiary hearing was necessary to
determine whether jurors in plaintiff’s criminal trial read trial-related publicity during the trial. Defendant
was incorrect that trial counsel had neglected to request manslaughter instructions on the record. His
request for such instructions is noted in the trial transcript. Thus, it was unnecessary to remand for a
hearing on that issue. When reviewing the trial transcript, defendant should have found trial counsel’s
request for the manslaughter instruction.
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