KATHERINE A WICKLUND V CHARLES N SIMKINSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
KATHERINE A. WICKLUND,
July 17, 1998
Wayne Circuit Court
LC No. 94-429140 NM
CHARLES N. SIMKINS and SIMKINS &
Before: Wahls, P.J., and Holbrook, Jr., and Fitzgerald, JJ.
Plaintiff appeals by leave granted from the circuit court’s order denying plaintiff’s motion for
reconsideration of an earlier order granting defendants’ motion for summary disposition. We affirm.
Defendants represented plaintiff in a civil case in which the court entered a judgment of no cause
of action and taxed costs and attorney’s fees against plaintiff totaling $55,873.76. Shortly thereafter,
plaintiff executed a general assignment and bill of sale conveying her major assets to KAW, L.L.C., a
limited liability corporation. Plaintiff signed the document both as the assignor and as manager of the
assignee corporation. The assets covered by the transaction included plaintiff’s interest in her then
envisioned legal malpractice suit against defendants.
More than a month after plaintiff executed the assignment of her assets to KAW, plaintiff
initiated her legal malpractice lawsuit against defendants. Her complaint made no mention of the
assignment. After the case proceeded through discovery, mediation, and the setting of a trial date,
defendants discovered the existence of the assignment. Subsequently, defendants brought a motion for
summary disposition on the ground that plaintiff was not the true party in interest. After a hearing, the
circuit court granted the motion.1
Immediately thereafter, plaintiff informed defendants that dispositive case law established that
one could not validly assign an interest in a legal malpractice case. Less than two weeks after the circuit
court granted defendants’ motion for summary disposition, the parties were back in court to argue
plaintiff’s motion for reconsideration on that ground. The circuit court accepted that it had committed
“palpable error” in ruling earlier that plaintiff was not the true party in interest in the malpractice suit, but
ultimately declined to reinstate the case, holding that plaintiff had waived recourse to asserting the
invalidity of the assignment.
In Joos v Drillock, 127 Mich App 99, 105; 338 NW2d 736 (1983), this Court concluded that
“[i]n view of the personal nature of the attorney-client relationship and the public policy considerations .
. . [that flow from that relationship], . . . a legal malpractice cause of action is not subject to assignment.”
Accord Moorhouse v Ambassador Ins Co, Inc, 147 Mich App 412, 417-418; 383 NW2d 219
(1985). Thus, plaintiff’s assignment of her interest in the legal malpractice case to KAW was null and
void, and plaintiff was the true party in interest throughout these proceedings. Anticipating a situation
such as the present one, in which the putative assignor has initiated a cause of action for legal
malpractice, this Court stated in Weston v Dowty, 163 Mich App 238, 243; 414 NW2d 165 (1987),
“that, even if there had been an invalid assignment, this would not warrant dismissal of the lawsuit.
Instead, the assignment would be void, but the underlying action would survive.”
The circuit court ruled that plaintiff “knew or should have known” that she would be taking the
position that her assignment of her legal malpractice claim to KAW was invalid, expressly finding that
plaintiff either willfully or negligently withheld the authority that governed that question. The court
stopped short, however, of issuing a specific factual finding that plaintiff knew about the prohibition
against assigning a legal malpractice cause of action, and had voluntarily and knowingly waived the right
to raise it before the trial court.
We review a trial court’s decision on a motion for reconsideration by an abuse of discretion
standard. Charbeneau v Wayne Co Hospital, 158 Mich App 730, 733; 405 NW2d 151 (1987). A
motion for reconsideration must demonstrate a “palpable error by which the court and the parties have
been misled.” MCR 2.119(F)(3). As the trial court observed, palpable error infected the motion for
summary disposition in the proceedings below, in that the impropriety of the validity of plaintiff’s
assignment of her interest in the legal malpractice litigation was never raised or addressed. However,
because the case law on which plaintiff belatedly came to rely was readily available, and because
plaintiff offers no reason beyond plain inadvertence for failing to present them in arguments on the
motion for summary disposition, we conclude that the circuit court did not abuse its discretion when
denying plaintiff’s motion for reconsideration. See Charbeneau, supra at 733 (finding that the trial
court did not abuse its discretion “in denying a motion [for reconsideration] resting on a legal theory and
facts which could have been pled or argued prior to the trial court’s original order”).
/s/ Myron H. Wahls
/s/ Donald E. Holbrook, Jr.
/s/ E. Thomas Fitzgerald
By this time, the applicable statute of limitations barred KAW from being substituted as plaintiff.