If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

STEVEN BRADLEY MACKENZIE,

Plaintiff-Appellant,

UNPUBLISHED

January 2, 2020

v No. 346331

Ingham Circuit Court

JONATHAN TOBY WHITE, LC No. 18-000291-NM

Defendant-Appellee.

STEVEN BRADLEY MACKENZIE,

Plaintiff-Appellant,

v No. 347826

Ingham Circuit Court

GREGORY J. CROCKETT, LC No. 18-000695-NM

Defendant-Appellee.

Before: SWARTZLE, P.J., and MARKEY and REDFORD, JJ.

PER CURIAM.

In these consolidated appeals, plaintiff Steven MacKenzie appeals by right the trial 

courts’ orders granting summary disposition in favor of defendants in these legal malpractice 

actions. The lawsuits stem from defendant Gregory Crockett’s representation of MacKenzie in a 

criminal trial that resulted in convictions, and defendant Jonathan White’s representation of 

MacKenzie in the appeal of those convictions, as well as in a divorce action, which action also 

involved tort claims. The issues on appeal primarily concern whether the malpractice actions 

were time-barred. We affirm in both cases.

In the midst of a bitter divorce case, MacKenzie attacked his now ex-wife, resulting in 

convictions of attempted murder and aggravated domestic assault, multiple appellate proceedings 

that ultimately affirmed the convictions, the addition of various intentional tort claims by 
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MacKenzie’s former wife in the divorce action predicated on the assault, and the settlement of 

those tort claims for $25,000.

With respect to the legal malpractice complaint against Crockett, MacKenzie alleged that 

Crockett committed “acts of artifice to fraudulently conceal his liability.” MacKenzie claimed 

that Crockett had falsely stated that he had prior experience in successfully representing clients 

against attempted murder charges and that there were no issues upon which to base an appeal. 

MacKenzie further contended that Crockett arranged for White to handle the criminal appeal so 

that White would not raise issues that would expose Crockett “to a claim of action.” MacKenzie 

accused Crockett of obtaining MacKenzie’s signature on a blank engagement letter, which 

Crockett then delivered to White so that White could gain authorization to represent MacKenzie 

in the appeal. MacKenzie asserted that as a result of Crockett’s legal malpractice, MacKenzie 

suffered psychological pain and distress, along with financial losses. MacKenzie requested 

judgment in the amount of at least $200,000, plus punitive damages.

With respect to the legal malpractice complaint against White, MacKenzie alleged that 

White failed to challenge or appeal a postjudgment divorce ruling, entered into the settlement of 

the tort claims without consultation with or permission by MacKenzie, and failed to properly 

preserve oral argument in the initial criminal appeal, which failure White did not disclose to 

MacKenzie. MacKenzie also complained that White had not timely mailed the prosecutor’s 

response brief on appeal to MacKenzie for review, that White failed to inform MacKenzie that 

he had the right to file a Standard 4 brief, and that White raised untenable arguments in the brief 

on appeal. MacKenzie further alleged that White and Crockett were law and/or office partners 

and that White violated the Michigan Rules of Professional Conduct (MRPC) by accepting a 

referral from Crockett to represent MacKenzie in the criminal appeal.1 According to 

MacKenzie, because of the relationship between the two attorneys, White did not diligently and 

properly pursue appellate arguments that were detrimental to Crockett and that could result in 

Crockett’s being disciplined or held civilly liable to MacKenzie. MacKenzie asserted that as a 

result of White’s legal malpractice, MacKenzie suffered both psychological pain and distress and

financial losses. MacKenzie requested judgment in the amount of at least $285,000.

The action against White was summarily dismissed on the basis that the suit was timebarred under the governing two-year statute of limitations. Subsequently, the action against 

Crockett was summarily dismissed on the basis of collateral estoppel tied to the dismissal of the 

case against White and because the statute of limitations had expired even accepting that 

Crockett fraudulently concealed the cause of action. 

“The question whether a cause of action is barred by the applicable statute of limitations 

is one of law, which this Court reviews de novo.” Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, 

PC v Bakshi, 483 Mich 345, 354; 771 NW2d 411 (2009). This Court also reviews de novo a trial 

 1 Documentary evidence established that Crockett and White each owned a 1/3 interest in an 

office condominium, sharing some common areas. But they were not law partners, and their 

offices and staff were independent of each other.
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court’s ruling on a motion for summary disposition. Id. Summary dismissal is appropriate under 

MCR 2.116(C)(7) when an action is barred because of the “statute of limitations.” In RDM 

Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d 529 (2008), this 

Court recited the principles pertaining to a motion for summary disposition brought pursuant to 

MCR 2.116(C)(7):

Under MCR 2.116(C)(7) . . ., this Court must consider not only the 

pleadings, but also any affidavits, depositions, admissions, or other documentary 

evidence filed or submitted by the parties. The contents of the complaint must be 

accepted as true unless contradicted by the documentary evidence. This Court 

must consider the documentary evidence in a light most favorable to the 

nonmoving party. If there is no factual dispute, whether a plaintiff's claim is 

barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the 

court to decide. If a factual dispute exists, however, summary disposition is not 

appropriate. [Citations omitted.] 

In general, a legal malpractice claim accrues at the time an attorney discontinues serving 

a party in a professional capacity on the matters giving rise to the claim regardless of the time the 

party discovers the claim. MCL 600.5838(1).2 In accordance with the governing statute of 

limitations, a plaintiff must bring a legal malpractice action within the later of (1) two years of 

the time a claim first accrues, MCL 600.5805(8), or (2) six months after the plaintiff discovered 

or should have discovered the existence of the claim, MCL 600.5838(2). Additionally, a statute 

of repose provides that a legal malpractice action shall not be commenced after the earlier of (1) 

the expiration of the period of limitations or (2) six years after the date of the act or omission that 

 2 “[T]his Court has stated that an attorney's representation of a client generally continues until the 

attorney is relieved of that obligation by the client or the court.” Kloian v Schwartz, 272 Mich 

App 232, 237; 725 NW2d 671 (2006). Additionally, retention of an alternate or substitute 

attorney effectively terminates an existing attorney-client relationship. Id. “These rules, 

however, are useful only to the extent that they actually serve to measure the accrual of a claim 

within the meaning of MCL 600. 5838(1).” Id. at 237-238. There are some factual situations 

that do not permit application of these rules; instead, certain circumstances mandate the 

application of the more general rule that a legal malpractice claim accrues on counsel’s last day 

of professional service or upon completion of a specific legal task that the attorney was retained 

to perform. Id. at 238. Ministerial or minor follow-up acts after discontinuation of 

representation, e.g., making a file available to a former client, will not work to extend the period 

of representation and create a new date of accrual. Bauer v Ferriby & Houston, PC, 235 Mich 

App 536, 539; 599 NW2d 493 (1999) (“To hold that . . . follow-up activities attendant to 

otherwise completed matters of representation necessarily extends the period of service to the 

client would give providers of legal services a powerful disincentive to cooperate with a former 

client who needs such attention. We conclude that the proper inquiry is whether the new activity 

occurs pursuant to a current, as opposed to a former, attorney-client relationship.”). 
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is the basis for the claim. MCL 600.5838b(1). “Unlike a statute of limitations, a statute of 

repose bars a claim after a fixed period of time from the defendant’s act or omission” absent 

consideration whether the plaintiff had discovered the claim. Nortley v Hurst, 321 Mich App 

566, 572; 908 NW2d 919 (2017). 

MCL 600.5855 provides:

If a person who is or may be liable for any claim fraudulently conceals the 

existence of the claim or the identity of any person who is liable for the claim 

from the knowledge of the person entitled to sue on the claim, the action may be 

commenced at any time within 2 years after the person who is entitled to bring the 

action discovers, or should have discovered, the existence of the claim or the 

identity of the person who is liable for the claim, although the action would 

otherwise be barred by the period of limitations.

MCL 600.5855 plainly does not constitute or create a cause of action. Rather, MCL

600.5855 operates to toll the applicable statute of limitations “when a party conceals the fact that 

the plaintiff has a cause of action.” Sills v Oakland Gen Hosp, 220 Mich App 303, 310; 559 

NW2d 348 (1997). “The plaintiff must plead in the complaint the acts or misrepresentations that 

comprised the fraudulent concealment.” Id. “The plaintiff must prove that the defendant 

committed affirmative acts or misrepresentations that were designed to prevent subsequent 

discovery. Mere silence is insufficient.” Id.

In sum, a party claiming legal malpractice must file suit within two years of accrual of a 

claim, within six months after the party discovered or should have discovered the existence of a 

claim, or, if there was fraudulent concealment of a claim, within two years after the party 

discovered or should have discovered the existence of a claim, unless, under the statute of 

repose, six years has passed since the date of the act or omission that served as the basis for the 

claim. Neither the six-month discovery provision nor the six-year period found in the statute of 

repose is relevant for purposes of these cases.

In regard to Crockett, we find he discontinued serving MacKenzie in a professional 

capacity relative to the criminal case in October 2014, and MacKenzie commenced the legal 

malpractice action against Crockett on October 4, 2018. Because the two-year statute of 

limitations had elapsed by the time MacKenzie sued Crockett, MacKenzie relied on tolling under 

the fraudulent concealment statute, MCL 600.5855. Initially, we do not believe that collateral 

estoppel had any application to the case against Crockett, considering that the statute of 

limitations analysis applicable to White would not be the same as the analysis applicable to 

Crockett because of different dates relative to the discontinuation of representation and to the 

filing of complaints, as well as the fact that MacKenzie only raised tolling under MCL 600.5855 

in relation to Crockett. See Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006) 

(“Collateral estoppel bars relitigation of an issue in a new action arising between the same parties 

or their privies when the earlier proceeding resulted in a valid final judgment and the issue in 

question was actually and necessarily determined in that prior proceeding.”). Regardless, 

MacKenzie cannot escape the application of the statute of limitations.
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The trial court stated that MacKenzie had until October 21, 2018, to file suit and failed to 

do so, even though MacKenzie commenced the action on October 4, 2018. MacKenzie seizes on 

this ostensible flaw in the court’s ruling. But the trial court plainly misspoke and clearly meant 

October 21, 2016, as the court had earlier mentioned that the claim accrued on October 21, 2014, 

which was the date that MacKenzie was sentenced and that White was retained to pursue the 

criminal appeal.

MacKenzie asserts that his complaint alleged a single cause of action—legal 

malpractice—and not an independent fraud tort. MacKenzie then argues that it was his belief 

that Crockett was well aware of numerous mistakes that he had made during the trial, which 

were now being presented by his current attorney in an MCR 6.500 motion, and that Crockett 

had this knowledge when he tricked MacKenzie into retaining White, who in turn effectively 

covered up the mistakes by not raising the issues on appeal. This, according to MacKenzie, 

constituted the fraudulent concealment. MacKenzie contends that he did not discover the 

trickery until June 2018 when he obtained information through discovery. MacKenzie also 

argues that he first learned that he had a cause of action against Crockett in November 2016 

when he retained current counsel, who made him aware of the issues that should have been 

raised on appeal.

MCL 600.5855 requires a focus on whether Crockett “fraudulently conceal[ed] the 

existence of [a] claim . . . from the knowledge of” MacKenzie. For MacKenzie’s theory to be 

viable, it must be shown that the reason Crockett allegedly used fraud to funnel the appeal to 

White was so that White would not raise issues on appeal as part of an effort to conceal the 

existence of a legal malpractice claim from MacKenzie. This proposition necessarily fails 

because White actually raised three alleged instances of ineffective assistance by Crockett in the 

appeal. 

Moreover, MCL 600.5855 provides that “the action may be commenced at any time 

within 2 years after the person who is entitled to bring the action discovers, or should have 

discovered, the existence of the claim . . . .” Again, White did in fact raise claims of ineffective 

assistance of counsel in his brief on appeal, which was filed in July 2015, and MacKenzie was 

aware of the issues that White raised in the appeal. Accordingly, while MacKenzie might not 

have been aware of all the prospective claims of malpractice that he conceivably had against 

Crockett, he did have knowledge of the existence of a claim, yet it was over three years later 

before he filed suit against Crockett. Also, or in the alternative, MacKenzie himself filed an 

appeal to the Supreme Court on June 2, 2016, raising ineffective assistance of counsel claims, so 

he would have been aware of a malpractice claim against Crockett almost two and a half years 

before filing the complaint. Therefore, fraudulent concealment, assuming it did occur, cannot 

save MacKenzie’s case from being time-barred.

With respect to White, we first hold that any claims of legal malpractice connected to 

settlement of the tort claims and failure to file an appeal of a postjudgment divorce ruling were 

barred by the statute of limitations. The tort claims and the divorce allegations were all part of a 

single court case and file under one lower court docket number. On January 11, 2016, a 

stipulated order, signed by MacKenzie, was entered in the divorce/tort action, indicating an 

agreement to pay MacKenzie’s ex-wife $25,000. The stipulated order further provided “that the 

obligation of the attorneys for the parties shall terminate upon the filing of this Stipulation.” The 
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stipulated order also stated that the parties were reaching “an agreement with regard to all 

outstanding issues pending in this matter . . . .” The stipulated order additionally provided that it 

“resolves the last pending claim and closes the case . . . .” We conclude that these quoted 

provisions are all-encompassing such that the stipulated order must be construed as precluding 

any further proceedings as to the tort claims and any further proceedings regarding the divorce 

case, including an appeal of the postjudgment divorce ruling. Accordingly, the stipulated order 

constituted an order terminating White’s representation of MacKenzie in the entire case. 

Therefore, the representation having been discontinued on January 11, 2016, the complaint 

against White filed on May 2, 2018, was untimely under the two-year statute of limitations. 

MacKenzie did not allege fraudulent concealment against White.

This leaves us with the alleged legal malpractice committed by White in association with 

his representation of MacKenzie in the appeal of the criminal convictions. The case against 

White was resolved solely on the basis of the statute of limitations, and the key question 

regarded the date on which White discontinued serving MacKenzie in a professional capacity 

with respect to the criminal appeal. This Court issued its original opinion affirming 

MacKenzie’s convictions and sentences on April 26, 2016. People v MacKenzie, unpublished 

per curiam opinion of the Court of Appeals, issued April 26, 2016 (Docket No. 324893). In an 

affidavit executed by White, he averred that “[s]oon after” the opinion was released, Bart Frith3

and MacKenzie’s father called White’s office and indicated that MacKenzie had decided to 

“terminate” White’s services as his attorney and wanted White to release the case file to 

MacKenzie’s father so MacKenzie could appeal to the Supreme Court on his own or with a new 

attorney. White also averred that on April 29, 2016, he sent MacKenzie a letter with the 

appellate opinion in it and an authorization form for MacKenzie to sign so that the file could be 

released to MacKenzie’s father. According to White, he directed his paralegal to prepare and 

arrange the file for pickup. White asserted in his affidavit that his “representation . . . in the 

criminal appeal ended by April 29, 2016.” 

In an affidavit executed by MacKenzie and attached to his response to White’s motion for 

summary disposition, MacKenzie averred that while he had requested return of his “personal 

property,” he “made no statements or requests to” his father or Frith to inform White that his 

legal services were no longer needed. MacKenzie further asserted that neither his father nor 

Frith “were instructed or authorized . . . to inform . . . White his services were no longer needed.” 

MacKenzie also claimed in his affidavit that his father and Frith would testify that White’s 

averment that the two men had called White’s office to terminate services on MacKenzie’s 

behalf was “false and misleading.”4 We note that this last averment entails hearsay, MRE 801, 

 3 Frith is an attorney, and MacKenzie had given Frith power of attorney to handle MacKenzie’s 

property and financial affairs during his incarceration. Frith also served as trustee of a trust 

established by MacKenzie.

4 In MacKenzie’s motion for reconsideration following the order of dismissal, he attached an 

affidavit executed by his father. In the affidavit, MacKenzie’s father averred that he had picked 

up MacKenzie’s “personal property” from White’s office and that in reviewing the 

documentation received, he “did not observe documents that were obviously of a legal nature.” 
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and would not be admissible through MacKenzie’s testimony, MRE 802, making it an improper 

consideration for purposes of summary disposition. Maiden v Rozwood, 461 Mich 109, 121; 597 

NW2d 817 (1999). 

The retainer agreement signed by MacKenzie provided that MacKenzie “may discharge 

[White] at any time on presentation of written notice.” There was no evidence of written notice 

of discharge. The retainer agreement also provided that “Client understands that until the court 

enters an order discharging the attorney/client relationship the Attorney is required to represent 

the Client.” In the retainer agreement, MacKenzie further agreed that White and Frith could 

“communicate openly with each other on all matters.” (Emphasis added.)

A billing statement by White indicated that on May 2, 2016, his paralegal prepared the 

case file for release to MacKenzie’s father. On May 4, 2016, MacKenzie’s father signed the 

release acknowledging that the file had been surrendered to him.5 On May 16, 2016, MacKenzie 

filed a grievance against White with the Attorney Grievance Commission (AGC). On June 2, 

2016, MacKenzie filed a pro per application for leave to appeal in the Michigan Supreme Court.

In the trial court, MacKenzie had argued that his malpractice claim regarding the criminal 

appeal accrued on May 16, 2016, which was the date on which he filed his grievance against 

White with the AGC. We conclude that the filing of the grievance has absolutely no relevance to 

identifying the date when White discontinued serving MacKenzie in a professional capacity. In 

the alternative, MacKenzie had argued that the malpractice claim accrued on May 4, 2016, when 

White’s office provided the case file to MacKenzie’s father. We view this act as a ministerial 

task taken by White’s office that did not operate as or mark the official discontinuation of legal 

services. See Bauer v Ferriby & Houston, PC, 235 Mich App 536, 539; 599 NW2d 493 (1999). 

In fact, giving the case file to MacKenzie’s father on May 4, 2016, could be considered evidence 

that professional services had been discontinued prior to May 4, 2016, as claimed by White. 

 

MacKenzie’s father asserted that he had not requested “the return or transfer of a case file.” 

Additionally, MacKenzie’s father averred that MacKenzie had not asked him to advise White 

that White’s services were being terminated and that he never told anyone at White’s office that 

services were no longer needed or that White was being terminated. A trial court has the 

discretion to consider or not consider new legal theories or evidence relative to a motion for 

reconsideration. Yachcik v Yachcik, 319 Mich App 24, 42; 900 NW2d 113 (2017). Here, the 

trial court simply stated that “no palpable error was established” and that MacKenzie “merely 

presents the same issues ruled on” earlier. See MCR 2.119(F)(3). There was no express 

indication whether the court considered the newly-submitted affidavit, but the court did state that 

it had reviewed the motion. We generally do not consider evidence provided for the first time in 

a motion for reconsideration. Quinto v Cross & Peters Co, 451 Mich 358, 366 n 5; 547 NW2d 

314 (1996). MacKenzie attached a comparable affidavit from his father to his motion for leave 

to amend his complaint, which was heard by the court and denied. 

5 The release also stated, “No copy has been retained by this office.” 
-8-

To the extent that MacKenzie argues on appeal that January 3, 2017, was the date of 

accrual because that was the date the circuit court finally ordered the withdrawal of White from 

the criminal case, we note that that argument was not preserved below. For purposes of civil 

litigation, we need not review issues raised for the first time on appeal. Smith v Foerster-Bolser 

Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006). This Court may, however, 

“overlook preservation requirements if the failure to consider the issue would result 

in manifest injustice, if consideration is necessary for a proper determination of the case, or if 

the issue involves a question of law and the facts necessary for its resolution have been 

presented.” Id. As noted earlier, the retainer agreement stated that White was required to 

represent MacKenzie “until the court enters an order discharging” White. We conclude that the 

language in the retainer agreement cannot extend a period of representation for purposes of 

accrual under MCL 600.5838 if there clearly were an earlier discontinuation of legal services. 

Otherwise, there could be instances when an attorney has had no involvement with a former 

client for decades but would remain subject to liability for malpractice if for whatever reason no 

court order was ever entered terminating the representation. To hold differently would offend 

the accrual language of MCL 600.5838(1).6

Additionally, although the retainer agreement provided that MacKenzie “may discharge” 

White “on presentation of written notice,” the provision does not preclude discharge by other 

means, especially in the context of determining the accrual date under MCL 600.5838(1). Next, 

on June 2, 2016, MacKenzie filed the pro per application for leave to appeal with the Supreme 

Court, signaling that he was now representing himself in the appellate process, and that date 

could be viewed as the accrual date unless of course there were an earlier date when services 

were discontinued. See Kloian v Schwartz, 272 Mich App 232, 237; 725 NW2d 671 (2006).

7

 

We are left to consider whether White discontinued serving MacKenzie in the waning 

days of April 2016, which, if answered in the affirmative, would render the May 2, 2018 

complaint time-barred. White’s affidavit did not give the specific date that Frith and 

MacKenzie’s father each purportedly phoned White’s office to terminate legal services and 

request the file. Since White, however, sent a letter to MacKenzie on April 29, 2016, that 

contained an authorization to release the case file, the phone calls would have been received on 

April 29th at the latest. 

Assuming that it is proper to consider the affidavit by MacKenzie’s father, the fact 

remains that according to White, Frith had also called White’s office in late April 2016 and 

indicated that MacKenzie had decided to “terminate” White’s services as his attorney and 

 6 We do not mean to say that the language of a retainer agreement is irrelevant in analyzing the 

question of accrual, as it certainly should be taken into consideration if the date of 

discontinuation of services is unclear and difficult to identify in a particular case.

7 MacKenzie did not argue below that June 2, 2016, was the date of accrual; therefore, to the 

extent that he makes that argument on appeal, it is unpreserved. The same is true relative to any 

argument that the “written notice” provision in the retainer agreement controlled the date of 

accrual.
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wanted White to release the case file. We note that there was no admissible evidence that Frith 

did not call White’s office or that he did not indicate that White’s services were being 

terminated. We cannot help but highlight the sequence of events, starting with Frith’s call to 

White’s office on or about April 29, 2016, then the release of the case file on May 4, 2016, 

followed by the filing of the grievance against White on May 16, 2016, and then ending with 

MacKenzie’s filing a pro per application for leave to appeal on June 2, 2016. This sequence of 

events demonstrates to us that White’s professional services were discontinued by the end of 

April 2016, likely because MacKenzie was upset about losing his appeal. We recognize, again,

that MacKenzie averred in his affidavit that he “made no statements or requests to” Frith to 

inform White that his legal services were no longer needed and that neither his father nor Frith 

“were instructed or authorized . . . to inform . . . White his services were no longer needed.” We 

first note that MacKenzie did not specifically assert that he wished to continue receiving 

professional services from White when his appeal was rejected, and nothing that transpired after 

this Court’s opinion affirming MacKenzie’s convictions was released suggested that MacKenzie 

planned to continue using White’s services. Moreover, as reflected in the retainer agreement, 

MacKenzie authorized Frith to communicate with White “on all matters,” which would 

necessarily include the termination of legal services. We are not prepared to find that 

MacKenzie’s self-serving affidavit was sufficient to create a factual dispute in regard to the 

running of the statute of limitations, and once again highlight the fact that Frith held a durable 

power of attorney which allowed him to handle these aspects of MacKenzie’s life during his 

incarceration. RDM Holdings, 281 Mich App at 687. Reversal is unwarranted.

We affirm. As the prevailing parties, defendants may tax costs under MCR 7.219.

/s/ Brock A. Swartzle

/s/ Jane E. Markey

/s/ James Robert Redford