EARL WOODS V LAWRENCE E GURSTENAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
EARL WOODS and MARIE R. WOODS,
December 15, 1998
Wayne Circuit Court
LC No. 94-417073 NM
LAWRENCE E. GURSTEN, KEVIN A.
MCNEELY, and GURSTEN, WIGOD,
KOLTONOW & FALZON, P.C.,
Before: Doctoroff, P.J., and Sawyer and Fitzgerald, JJ.
Plaintiffs appeal by delayed leave granted the trial court’s dismissal of their claims against
defendants in this legal malpractice action. We affirm.
Defendants were retained to represent Earl Woods in a personal injury action. After the action
was settled, Earl’s wife, Marie Woods, through separate counsel, sought to pursue a claim for loss of
consortium, but her claim was dismissed for failure to have joined it with her husband’s claims. Plaintiffs
then filed suit against defendants, claiming that defendants failed to provide reasonably prudent and
proper legal services and settled Mr. Woods’ personal injury lawsuit for an insufficient and inadequate
amount, and that defendants were responsible for the loss of Mrs. Woods’ separate loss of consortium
claim for failing to join it with Mr. Woods’ claims. Defendants moved for summary disposition, arguing
that plaintiffs should not be allowed to attack the adequacy of the settlement in a legal malpractice action
because defendants’ recommendation of settlement was made in good faith and was based upon their
informed judgment, and that no attorney-client relationship existed between defendants and Mrs.
Defendants moved for summary disposition pursuant to both MCR 2.116(C)(8) and (10). The
trial court did not specify the subrule under which it granted defendants’ motion. However, because
matters outside the pleadings were considered by the trial court, we will treat the motion as having been
granted under MCR 2.116(C)(10). See MCR 2.116(G)(5). This Court reviews de novo a grant of
summary disposition pursuant to MCR 2.116(C)(10), examining the entire record, including pleadings,
affidavits, depositions, admissions, and other documentary evidence, and construing all reasonable
inferences arising from the evidence in a light most favorable to the nonmoving party. Henderson v
State Farm Fire & Casualty Co, 225 Mich App 703, 708; 572 NW2d 216 (1997). A motion for
summary disposition pursuant to MCR 2.116(C)(10) may be granted when, except with regard to the
amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled
to judgment as a matter of law. The trial court must ask whether a record might be developed that
leaves open an issue upon which reasonable minds could differ. Id. The trial court may not make
factual findings or weigh credibility in deciding a motion for summary disposition, and this Court will
uphold the grant of summary disposition if it is satisfied that the claim cannot be proved at trial. Id. at
In order to sustain an action for legal malpractice, the plaintiff has the burden of proving four
elements: (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. Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995). The first element the
plaintiff must prove is “duty.” Id. “Duty” is any obligation the defendant has to the plaintiff to avoid
negligent conduct. Id. In negligence actions, the existence of duty is a question of law for the court. Id.
In legal malpractice actions, a duty exists, as a matter of law, if there is an attorney-client relationship.
Id. An attorney is obligated to use reasonable skill, care, discretion, and judgment in representing a
client. Id. at 656.
In granting defendants’ motion for summary disposition with regard to the claims of Mrs.
Woods, the trial court found that defendants owed no duty to Mrs. Woods because there was no
attorney-client relationship. In her deposition, Mrs. Woods acknowledged that she knew defendants
did not represent her, that she did not ask defendants to represent her, that she did not want defendants
to represent her, and that shortly after her husband’s suit was settled she consulted with another
attorney regarding filing a separate lawsuit seeking loss of consortium damages.
Generally, a legal malpractice action may be brought only by a client who has been damaged by
their counsel’s negligence. As in this case, however, a third party may claim that their relationship with
counsel is of a nature sufficient to justify the imposition of liability even in the absence of an attorney
client relationship. See e.g. Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253-254; 571 NW2d
716 (1997). Although “[t]here has been a reluctance to permit an attorney’s actions affecting a non
client to be a predicate to liability because of the potential for conflicts of interest that could seriously
undermine counsel’s duty of loyalty to the client,” the Supreme Court “has recognized that an attorney’s
negligence may expose him to liability to third parties under certain circumstances.” Id. at 254. See
also Mieras v DeBona, 452 Mich 278; 550 NW2d 202 (1996); Atlanta Int’l Ins Co v Bell, 438
Mich 512; 475 NW2d 294 (1991).
Mrs. Woods argues that defendants owed her a duty of care because she was foreseeably
affected by their conduct of advising her husband to have her wait to pursue a loss of consortium claim
until after his lawsuit was resolved. See Mieras, supra at 297-299. However, defendants’ advice may
have been legally correct. Compare Oliver v State Police Dep’t, 160 Mich App 107, 112; 408
NW2d 436 (1987) (“Michigan law does not require a consortium claim to be joined to the claims
raised by the principal plaintiff.”) with Oldani v Lieberman, 144 Mich App 642, 646; 375 NW2d 778
(1985) (“In general, a spouse seeking damages for loss of consortium should be joined in the principal
case brought by the other spouse.”). Because the issue has not been decided by the Supreme Court,
see Michigan Court Rules Practice (3rd ed), supp 1998, Rule 2.205, pp 17-18, defendants’ advice as
to whether Mrs. Woods’ loss of consortium claim should have been brought separately cannot support
a malpractice claim. “[M]ere errors in judgment by a lawyer are generally not grounds for a malpractice
action where the attorney acts in good faith and exercises reasonable care, skill and diligence.” Simko,
supra at 658. See also Boyle v Odette, 168 Mich App 737, 745-746 n 1; 425 NW2d 472 (1988).
Therefore, the trial court properly granted summary disposition in favor of defendants on the claims of
In granting defendants’ motion for summary disposition with regard to the claims of Mr. Woods,
the trial court relied on Simko, supra, and found there was no evidence that defendants felt that they
were weakened in their settlement negotiations because of a lack of preparation in the underlying
lawsuit. Although an attorney is obligated to use reasonable skill, care, discretion and judgment in
representing a client, an attorney does not have a duty to insure or guarantee the most favorable
outcome possible. Simko, supra at 656.
Plaintiffs argue that defendants failed to properly prepare for Mr. Woods’ personal injury
lawsuit. However, even if another attorney may have referred Mr. Woods to a different physician,
deposed another doctor, or evaluated the potential of proving a closed-head injury claim differently and
recommended that the settlement offer be rejected, these are legitimate areas of attorney judgment
which may not be second-guessed. Therefore, the trial court properly dismissed Mr. Woods’ claims
Although plaintiffs rely on Lowman v Karp, 190 Mich App 448; 476 NW2d 428 (1991), and
Espinoza v Thomas, 189 Mich App 110; 472 NW2d 16 (1991), in arguing that their claim of
malpractice against defendants is not barred by their settlement of the underlying litigation, this was not
the basis for the trial court’s decision. Lowman and Espinoza are distinguishable from the present case
in that Mr. Woods was not forced to compromise his claim because his attorneys refused to try the case
nor did he lose a piece of his claim. Rather, Mr. Woods was required to choose between proceeding
to trial knowing that he might receive less than the settlement offer or accepting the offer, and he simply
decided to accept his attorneys’ assessment of the value of his case. There are no allegations that
defendants were negligent with regard to a procedural matter or that their conduct left plaintiffs with no
viable option but to settle their case.
/s/ Martin M. Doctoroff
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald