CHARLES M SMILLIE III V HOWARD B YOUNGAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
CHARLES M. SMILLIE, III,
June 30, 1998
HOWARD B. YOUNG and WEISMAN, TROGAN,
YOUNG & SCHLOSS, P.C.,
Oakland Circuit Court
LC No. 95-507792 NI
Before: Griffin, P.J., and Gribbs and Talbot, JJ.
Plaintiff appeals as of right the circuit court order granting summary disposition pursuant to
MCR 2.116(C)(10), in favor of defendants in this legal malpractice action. We affirm.
This Court reviews a trial court’s grant or denial of summary disposition under MCR
2.116(C)(10) de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App
521, 525; 540 NW2d 748 (1995). Summary disposition may be granted when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. MCR
2.116(C)(10). A motion for summary disposition under MCR 2.116(C)(10) challenges whether there
is factual support for the claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). In
deciding this motion, a court must consider all the pleadings, affidavits, admissions, and other
documentary evidence available to it. Id.; MCR 2.116(G)(5). All reasonable doubts are decided in
favor of the nonmoving p
arty. Id. However, the court is not permitted to assess credibility or to
determine factual issues. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). The
party seeking summary disposition must identify the issues for which it claims there is no factual support.
Id. at 160. The nonmoving party must then respond with affidavits or other evidentiary materials that
establish the existence of a factual issue for trial. Id. If the opposing party cannot present documentary
evidence to establish that a material factual dispute exists, summary disposition is proper. Id.
In a legal malpractice action, the plaintiff must prove (1) the existence of an attorney-client
relationship, (2) the acts of the attorney that are alleged to have constituted negligence, (3) that the
negligence proximately caused the injury, and (4) the fact and the extent of the injury alleged.
Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995); Gebhardt v O’Rourke, 444 Mich 535,
544; 510 NW2d 900 (1994); Adell v Sommers Schwartz Silver & Schwartz, PC, 170 Mich App
196, 204; 428 NW2d 26 (1988). A plaintiff proves negligence by showing that his attorney failed to
exercise reasonable skill, care, discretion, and judgment in the conduct and management of his case.
Simko, supra at 655-656; Radtke v Miller Canfield Paddock & Stone, 209 Mich App 606, 612;
532 NW2d 547 (1995), rev’d on other grounds 453 Mich 413 (1996). As in other tort actions, the
plaintiff has the burden of proving all the essential elements of the suit in order to prevail. Charles
Reinhart Co v Winiemko, 444 Mich 579, 586; 513 NW2d 773 (1994).
On appeal, plaintiff raises numerous arguments in support of his position that the trial court erred
in granting summary disposition in favor of defendants. First, plaintiff argues that the trial court erred by
not realizing that defendants were hired to evaluate two separate offers, not just one. Specifically,
plaintiff alleges that defendants billed him for professional services, including meetings and telephone
conversations relating to outside investors involved in the refinancing agreement but did not inform him
of the offers made by the outside investors or of the negotiations that transpired. Plaintiff argues that
defendants’ failure to read the relevant documents, and their failure to inform him of the pending offers,
was a breach of the standard of care. In addition, plaintiff contends that defendants used undue
influence on him to force him to sign the documents in which he consented to the final agreement.
In finding that plaintiff’s argument is without merit, we note that the complaint does not allege
that defendants were retained to advise plaintiff in connection with competing offers for the sale of his
stock. To the contrary, the complaint and response specifically state that defendants were retained to
represent plaintiff in the restructuring of his business and to review the redemption agreement. Thus, the
issue regarding the validity of competing offers was never raised in the lower court prior to this appeal.
Nor was plaintiff’s undue influence argument raised below. Accordingly, these matters have not been
preserved for appeal. Brown v Michigan Bell Telephone, Inc, 225 Mich App 617, 626; 572 NW2d
33 (1997). Furthermore, plaintiff failed to support these assertions with documentary evidence or
supplemental facts necessary to successfully assert a claim and overcome a summary disposition motion.
Joerger v Gordon Food Service, Inc, 224 Mich App 167, 178; 568 NW2d 365 (1997). Indeed, a
party may not merely announce a position and leave it to this Court to discover and rationalize the basis
for the claim. Id.; Goolsby v Detroit, 419 Mich 651, 655, n 1; 358 NW2d 856 (1984). Therefore,
we decline to address the merits of this claim.
Second, plaintiff asserts that the trial court erred by not realizing that defendants’ malpractice
was a proximate cause of the damages he sustained. Defendants respond that plaintiff was unable to
show that he was offered a better proposal than that which was negotiated by them, or that he could
have avoided financial difficulties in the absence of the agreement.
Generally, proximate cause in attorney malpractice actions is a factual inquiry for the jury. Fiser
v Ann Arbor, 417 Mich 461, 474-475; 339 NW2d 413 (1983); Simko v Blake, 201 Mich App 191,
193; 506 NW2d 258 (1993), aff’d 448 Mich 648 (1995). In order to prove proximate cause, a
plaintiff must establish that the defendant’s action was a cause in fact of the claimed injury. Pontiac
School Dist v Miller Canfield Paddock & Stone, 221 Mich App 602, 613; 563 NW2d 693 (1997)
(citing Charles Reinhart Co, supra at 585-586). In other words, “[a] plaintiff must adequately
establish cause in fact in order for legal cause or ‘proximate cause’ to become a relevant issue.”
Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994).
After reviewing the lower court record, we hold that plaintiff failed to present substantive
evidence from which a jury could infer that defendants’ alleged legal malpractice was a cause in fact of
plaintiff’s financial losses. Plaintiff came to defendants in a financially distraught situation, when timing
was essential in order to prevent plaintiff and his company from bankruptcy. In addition, the
arrangement in which plaintiff was situated after the redemption agreement had taken effect placed him
in a substantially greater economic position than before. Plaintiff was relieved of significant debt and
afforded an opportunity to continue his livelihood and earn a salary. In light of these facts, we conclude
that plaintiff failed to satisfy his burden of presenting evidence that he sustained damages caused in fact
by defendants’ alleged malpractice.
Third, plaintiff contends that the trial court erred by concluding that there was no real issue of
fact because defendants admitted that they did not read all the relevant documents. Defendants
responded that they were not retained to represent plaintiff in the actual redemption matter, but only to
negotiate the redemption agreement. Because plaintiff has not submitted any documentary evidence to
rebut defendants’ claim that they were not retained to represent plaintiff in that capacity, but were only
responsible for consummating the contract, the issue whether defendants were negligent in connection
with the redemption matter is not relevant. Accordingly, plaintiff’s claim must fail.
Fourth, plaintiff argues that the trial court erred by denying his request for reconsideration on the
basis that he did not retain an expert witness to establish the legal standard of care. At the summary
disposition hearing, the trial court instructed plaintiff to obtain an expert witness to testify that defendants
breached the requisite standard of care in order to establish his claim. In fact, plaintiff was given a two
week extension in order to comply. Plaintiff failed to do so and the court dismissed the action. The
court subsequently denied plaintiff’s motion for reconsideration because he presented the same issue on
reconsideration that the court had already determined to be meritless.
This Court reviews a trial court’s decision to deny a motion for reconsideration for an abuse of
discretion. In re Beglinger Trust, 221 Mich App 273, 279; 561 NW2d 130 (1997). Because plaintiff
asserted identical facts and allegations in his motion for reconsideration and did not supplement the
record with additional evidence or claims that would affect the disposition of the case, we find that the
trial court did not abuse its discretion in denying the motion. Plaintiff did not show that a palpable error
occurred or that a different disposition of defendants’ motion would result from a rehearing.
Fifth, plaintiff claims that the trial court erred in granting summary disposition to defendants while
discovery was still pending. Plaintiff failed to raise this issue or argue this point to the trial court;
therefore, the issue has not been preserved for appeal. Brown, supra at 626. Moreover, plaintiff’s
brief on appeal gives only cursory treatment to this issue and omits any reference to supporting proofs
on the record or legal authority. Accordingly, we decline to address the issue. Meagher v Wayne
State Univ, 222 Mich App 700, 719; 565 NW2d 401 (1997).
Sixth, plaintiff argues that the trial court erred in granting summary disposition to defendants
before he had an opportunity to retain an expert witness. This argument is without merit because the
lower court record indicates that the court explicitly provided plaintiff with a two-week extension in
order to secure an expert before it would rule on the motion. Plaintiff did not request additional time
and, in fact, represented to the court that he had an expert, but he was not present at that time. Plaintiff
failed to comply with the court’s instructions, and we find no error in the trial court’s decision.
Seventh, plaintiff maintains that the court erred by failing to transmit a scheduling order to him
and by advancing the hearing date from the date scheduled on the docket. Again, plaintiff failed to
object to the scheduling order at the trial court and did not request a change in the hearing date.
Therefore, this issue was waived for purposes of this appeal. Brown, supra at 626. In addition,
plaintiff failed to argue the merits of this issue in his brief or cite to any legal authority in support of his
position. A mere statement of position is insufficient to bring an issue before this Court. Meagher,
supra at 718. Furthermore, a party may not leave it to this Court to search for authority to sustain or
reject the party’s position, and we decline to do so here. Webb v Smith (After Second Remand), 224
Mich App 203, 210; 568 NW2d 378 (1997).
The remaining arguments included in plaintiff’s brief on appeal were not raised in the trial court
and, therefore, were not preserved for appellate review. Accordingly, we decline to address them.
Brown, supra at 626. The trial court properly granted summary disposition in favor of defendants.
/s/ Richard Allen Griffin
/s/ Roman S. Gribbs
/s/ Michael J. Talbot