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STATE OF MICHIGAN 

COURT OF APPEALS 

WILLIAM E. BECKWITH, 

 Plaintiff-Appellant, 

and 

SHALING BECKWITH, 

 Plaintiff, 

UNPUBLISHED 

December 30, 2014 

v No. 317549 

Kent Circuit Court 

DAMIAN D. NUNZIO, DAMIAN D. NUNZIO, 

P.C., and UNKNOWN INSURER, 

LC No. 11-007474-NM 

 Defendants-Appellees. 

Before: M.J. KELLY, P.J., and SAWYER and HOEKSTRA, JJ. 

PER CURIAM. 

 The trial court granted summary disposition to defendant on the grounds of MCR 

2.116(C)(10) (no genuine issue of material fact). We affirm. 

 Following plaintiff’s convictions in a criminal matter, he brought this suit against 

defendant, his criminal defense attorney. Plaintiff’s complaint in essence alleged that defendant 

should have done more in terms of plaintiff’s defense at trial and on appeal. The trial court 

granted summary disposition in favor of defendants. Plaintiff now appeals and we affirm. 

 Plaintiff first argues that the trial court erred in denying his motion for leave to file an 

amended complaint. We review the trial court’s decision denying leave to amend under the 

abuse of discretion standard. Boylan v Fifty Eight LLC, 289 Mich App 709, 727; 808 NW2d 277 

(2010). An abuse of discretion occurs when the trial court’s decision is outside the range of 

reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 

NW2d 809 (2006). A trial court does not abuse its discretion in denying leave to amend when 

amendment would be futile. MCR 2.116(I)(5). Plaintiff argues that his amended complaint is 

vastly improved over his original complaint; however, realistically, the complaint is almost 

identical in true substantive matter. The amended complaint, while possibly better organized and 

clearer, does nothing to actually change the claims from the original complaint. Accordingly, 

allowing the amendment would be futile. The trial court summarized the issue well: 
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 Beckwith’s response simply does not raise any genuine issue of material 

fact and it is clear that Nunzio is entitled to summary disposition of the current 

operative complaint. At issue then is whether the Court should allow amendment 

of the pleadings. MCR 2.116(1)(5) provides that parties should be given the 

opportunity to amend their pleadings when granting a (C)(10) motion for 

summary disposition “unless the evidence then before the court shows that 

amendment would not be justified.” Respectfully, amendment is not justified in 

this case. The proposed second amended complaint contains many vague 

allegations similar to those in the prior complaints. There is still no evidence to 

support these claims. All indications are that if amendment were allowed, there 

would just be another summary disposition motion and the result would be the 

same. It is approaching two years since this action was filed, and Beckwith was 

already given the opportunity to amend his complaint in response to the last 

summary disposition motion. He has also been given an opportunity to provide 

evidentiary support showing an issue of fact regarding the five issues that 

survived the last summary disposition motion. He did not provide any such 

support and instead he attempts to rephrase some of the claims with the assistance 

of a new ‘‘jailhouse lawyer”. There has been undue delay and amendment appears 

futile at this time. The Court also believes that under these circumstances it would 

unduly prejudice defendants to allow Beckwith to start over with a new complaint 

at this late stage. 

The trial court did not abuse its discretion in denying the motion to amend the complaint. 

 Next, plaintiff argues that the trial court erred in granting summary disposition before the 

completion of discovery. While summary disposition under MCR 2.116(C)(10) should not 

ordinarily be granted before the close of discovery, it is not premature when, as here, there is no 

fair likelihood that further discovery will yield support for the nonmoving party’s position. 

Liparoto Constr, Inc v General Shale Brick, Inc, 284 Mich App 25; 772 NW2d 801 (2009). 

Simply put, plaintiff did not identify what additional evidence would have been discovered that 

would have prevented the granting of summary disposition, particularly given that he had already 

had two years in which to discover that additional evidence. 

 We next turn to plaintiff’s argument that the trial court erred in failing to award sanctions 

based upon an inaccurate statement in an affidavit relied upon by defendant. Specifically, 

counsel had made reference to a statement in the affidavit that was, in fact, omitted from the 

affidavit. When this omission was pointed out, counsel offered to remedy the problem. MCR 

2.114(E) clearly indicates that such sanctions are to recompense the injured party for any 

expenses, including attorney fees, occasioned by the filing of the erroneous documents and that 

sanctions are not to be punitive. There is no indication here that plaintiff suffered any financial 

harm as a result of the omission in the affidavit. 

 As for plaintiff’s remaining two issues, neither have anything to do with this case. 

Plaintiff argues that the Michigan Department of Corrections has impeded plaintiff’s access to 

the courts and should regulate jailhouse lawyers. Even if true, this is a claim to be brought 

against the MDOC, not against defendants. Plaintiff also argues that the circuit court has the 

authority to issue a writ of habeas corpus if a convicted person demonstrates that he has received 
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ineffective assistance of counsel. That, however, does not present an issue in plaintiff’s legal 

malpractice claim. 

 Affirmed. Defendants may tax costs. 

/s/ Michael J. Kelly 

/s/ David H. Sawyer 

/s/ Joel P. Hoekstra