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### STATE OF MICHIGAN

COURT OF APPEALS

MICHAEL WALLACE,

Plaintiff-Appellant, UNPUBLISHED December 17, 2015

v No. 322599 Livingston Circuit Court DAVID A. MONROE and DAVID A. MONROE, PLLC, LC No. 13-027549-NM

Defendants,
and

WILLIAM J. OLIVER, DAVID S. HAMMOND, HAMMOND & OLIVER, PC, HAMMOND LAW FIRM, PLLC, and OLIVER & ASSOCIATES, PLLC,

Defendants-Appellees.

Before: M ETER , P.J., and B ORRELLO and B ECKERING , JJ.

P ER C URIAM

.
Plaintiff appeals as of right from the trial court’s orders gr anting defendants-appellees (hereinafter “defendants”) summ ary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). 1 We affirm.

At some point in 2008, plainti ff called Hammond & Oliver, PC, in relation to a real estate lawsuit filed against him. This was the second time that plain tiff had called Hammond & Oliver, PC, seeking legal representation. 2 Plaintiff was allegedly prompted by a telephone-book advertisement, and on both occasions the firm’s receptionist al legedly “assigned” plaintiff’s case to David A. Monroe. The full-page advertisement included the H ammond & Oliver firm’s name,

1 Claims against David A. Monroe a nd David A. Monroe, PLLC, were dismissed for failure to be served. MCR 2.102(E).

2 In 2004, plaintiff contacted the fir m with respect to a child- support dispute.-2- practice areas, and contact information. On the left side of t he advertisement, there were three portrait photographs: one of David S. Hammond, one of William J . Oliver, and one of Monroe.
Monroe was identified as “Of Couns el.” With respect to the rea l estate lawsuit, plaintiff signed a retainer agreement with Monroe. Specifically, the retainer agr eement, on the signature page, referred to “DAVID A. MONROE, P.L.L.C.,” and was signed by plai ntiff and Monroe. The first page stated that “[t]he unde rsigned client retains the law firm of DAVID A. MONROE, P.L.L.C., as client’s attorneys to represent the client in an action agai nst Craig Padlo . . . .” (Emphasis added.)

The real estate case eventually ended in a binding arbitration decision and judgment against plaintiff in the amount of $196,971.86. Thereafter, pl aintiff filed the instant action, asserting claims of legal malpr actice and breach of contract ar ising out of Monroe’s handling of the real estate lawsuit. Defendants moved for summary disposit ion, arguing, in part, that they did not have an attorney-client relationship with plaintiff. T he trial court agreed and granted their motions pursuant to MCR 2.116(C)(10). “I just don’t see that a question of fact exists that Hammond or Oliver, either individually or through their law fir ms, ought to be involved in this case,” the court explained. Expressly choosing not “to reach t he issue of whether or not the underlying case . . . would have been successful,” the trial co urt concluded that “the Retainer Agreement [was] clear and unambiguous on its face” and “ma[de] it clear that plaintiff in this case retained David A. Monroe, PLLC . . . as counsel here and M onroe signed it on behalf of his own firm.” Accordingly, the cour t dismissed plaintiff’s case.

Plaintiff contends that the trial court’s decision was erroneo us because a question of fact existed regarding whether an attorney-client relationship exist ed between himself and the
Hammond & Oliver firm. A trial court’s decision on a motion fo r summary disposition is
reviewed de novo. Sholberg v Truman , 496 Mich 1, 6; 852 NW2d 89 (2014). Summary disposition is appropriate pursu ant to MCR 2.116(C)(10) when “t here is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” “A motion for summary d isposition under MCR 2.116(C)(10) tests the factua l support of a claim. The reviewing court considers affidavits, pleadings, de positions, admissions, and documentary evidence filed in the action or submitted by the pa rties in the light most favorable to the nonmoving party.” Estate of Mitchell v Dougherty , 249 Mich App 668, 675-676; 644 NW2d 391 (2002) (citation omitted).

“The elements of a legal malpractice action are: (1) the exist ence of an attorney-client relationship; (2) negligence in t he 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.” Charles
Reinhard Co v Winiemko , 444 Mich 579, 585-586; 513 NW2d 773 (1994 ) (citation and quot ation marks omitted). “If there is an attorney-client relationship, a duty to use and exercise reasonable care, skill, discretion, and judgm ent with regard to the repres entation of the client exists as a
matter of law.” Persinger v Holt , 248 Mich App 499, 502; 639 NW2d 594 (2001). The only element implicated in this appeal is the first—the existence of an attorney-client relationship.

“The rendering of legal advice an d legal services by the attor ney and the client’s reliance
on that advice or those services is the benchmark of an attorne y-client relationship.” Macomb Co Taxpayers Ass’n v L’Anse Creuse Pub Schs , 455 Mich 1, 11; 564 NW2d 457 (1997). A formal contract and the payment o f a fee is not necessary. Id . “Generally, a client’s employment-3- of one member of a law firm is deemed to be the employment of t he firm itself.” Plunkett & Cooney

, PC v Capitol Bancorp

, Ltd , 212 Mich App 325, 329; 536 NW2d 886 (1995).

Plaintiff concedes “that he hired David A. Monroe on his case and that he knew Monroe was his lawyer.” He contends, however, that he thought Monroe was part of the Hammond &
Oliver law firm because of the advertisement discussed above an d because of the shared office space and receptionist. This argum ent is unavailing. The use of shared office sp ace and a shared receptionist is not an unusual or unexpected arrangement, and M onroe is specifically listed as “of
counsel” in the advertisem ent and in the letterhead 3 to which plaintiff refers. While plaintiff contends that he did not understand the meaning of the phrase “ of counsel,” this failure to understand cannot be used to impose an attorney-client relation ship on defendants when there was not an employee-employer relationship between Monroe and an y defendant and particularly where the retainer agreement clearly and unambiguously stated t hat plaintiff was hiring “the law firm of DAVID A. MONROE, P.L.L.C.,” as his attorney and where d efendants were not mentioned anywhere in the retainer agreement. 4

Plaintiff relies on Hart v Comerica Bank , 957 F Supp 958 (ED Mich, 1997), in support of his argument. In Hart , 957 F Supp at 978-979, the court found a question of fact reg arding whether an “of counsel” attorney h ad an agency relationship wit h a law firm. First, that federal case is nonbinding in t he present appeal. Abela v General Motors Corp , 469 Mich 603, 606-607; 677 NW2d 325 (2004). Second, there were factors in Hart (such as the firm’s lawyers working for the “of counsel” attorney and the “of counsel” attorney’s b eing covered by the firm’s malpractice insurance) that have not been raised in the present appeal. See Hart , 957 F Supp at
979. 5

3 Although plaintiff mentions this letterhead on appeal, at his deposition, plainti ff stated that he could not recall seeing letterhead from the Hammond & Oliver fi rm but had seen letterhead from Monroe specifically.

4 One paragraph of the retainer agreement stated that “there may be times when the principal attorney may not be available for a court hearing. In such eve nt, it is agreed that other members of the law firm may appear on behalf of the client for the hear ing.” However, the paragraph did not specify the name of this “law firm,” and again, the first p age of the agreement referred to “the law firm of DAVID A. MONROE, P.L.L.C.,” and the signature page referred to plaintiff and “DAVID A. MONROE, P.L.L.C.”

5 Defendants raise the concept of “ostensible agency,” arguing t hat no such agency existed here. Ostensible agency arises when, among other things, the plaintif f has a reasonable belief that the defendant is acting as an agent for another. See Chapa v St Mary’s Hosp of Saginaw , 192 Mich App 29, 33-34; 480 NW2d 590 (1991). The retainer agreement her e precludes a finding of the “reasonable” belief necessary for ostensible agency. At any ra te, we note that no party cites a binding Michigan case extending the concept of ostensible agenc y to a legal malpractice claim.-4- Affirmed.

/s/ Patrick M. Meter /s/ Stephen L. Borrello