Michigan Supreme Court Lansing, Michigan

Marilyn Kelly, Chief Justice

Michael F. Cavanag h

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathawa y A lton Thomas Davis, J ustices 

# Order

December 27, 2010

141355-59 & (125)

RICHARD DUMAS, LYNN MCBRIDE, EUGENE PASKO, HAROLD COUNTS, JOHN MAUS, KENNETH KWASNIK, RICHARD BENNETT, PATRICK CHAPMAN, CHARLES DAPPRICH, JAMES DZIADZIOLA, Estate of GERALD FITZGERALD, Estate of VERNON MANUS, Estate of GEORGE MASSAB, LAWRENCE MYLNAREK, Estate of ROBERT SINCLAIR, CH ARLES OSTERDALE, ROBERT J. SONGER, ROBERT DECKERS, ELIZABETH ZINNER, RICHARD STIMPSON, DONALD DURECKI, a nd RONALD RIEUS, Plaintiffs, and

WAYNE ALARIE and RICHARD MARTIN, Plaintiffs-Appellants/Cross-Appellees,
and

THEODORE S. ANDRIS, Appellant/Cross-Appellee,

v SC: 141355 COA: 279149 Wayne CC: 83-316603-CK SHELDON L. MILLER, Appellee/Cross-Appellant, and

AUTO CLUB INSURA NCE ASSOCIATION,
Defendant.

________________ _______________ ___________/

GERALD NYLUND, ANITA NYLUND, JOHN HOUSE, MARY ELLEN HOUSE, DAVID REMER, DONNA MARGARET REMER,2

LEONARD RAKOWICZ, RITA RAKOWICZ, STANLEY ELZINGA, MARILYN ELZINGA, JAMES HALLER, JOAN HALLER, JOHN JACKSON, WILLIE JOHNSON, EDWARD BARTZ, BETTY BARTZ, FRANK DOLINSHEK, MARY DOLINSHEK, MICHAEL DUNGEY, WINIFRED DUNGEY, FRANCES STOCKER, ARTHUR SHEWCHUK, PATRICIA SHEWCHUK, DAVID ALBRECHT, LINDA ALBRECHT, WILLIAM T MEDLIN, and SHIRLEY MEDLIN, Plaintiffs-Appellants/Cross-Appellees,

v SC: 141356 COA: 286342 Wayne CC: 94-420311-CZ LOPATIN, MILLER, FREEDMAN, BLUESTONE, ERLICH, ROSEN & BARTNICK, P.C., and SHELDON MILLER, Defendants-Appellees/Cross-Appellants.

________________ _______________ ___________/

WAYNE ALARIE and RICHARD MARTIN, Plaintiffs-Appellants/Cross-Appellees,

v SC: 141357 COA: 286343 Wayne CC: 92-215259-CZ LOPATIN, MILLER, FREEDMAN, BLUESTONE, ERLICH, ROSEN & BARTNICK, P.C., and SHELDON MILLER, Defendants-Appellees/Cross-Appellants.

________________ _______________ ___________/

ROBERT DECKERS, ELIZABETH ZINNER, RICHARD STIMPSON, a nd DONALD DURECKI, Plaintiffs-Appellants/Cross-Appellees,
and HAROLD COUNTS, RO BERT IVAN, and RICHARD ZICKEL, Plaintiffs,

v SC: 141358 COA: 286344 Wayne CC: 93-321648-NM3

SHELDON L. MILLER and LOPATIN, MILLER, FREEDMAN, BLUESTONE, ERLICH, ROSEN & BARTNICK, P.C., Defendants-Appellees/Cross-Appellants,
and

DAVID RAVID,
Defendant.

________________ _______________ ___________/

JAMES K. DZIADZIOLA, MARGARET DZIADZIOLA, LAWRENCE R. MLYNAREK, JOSEPHINE MLYNAREK, MARTHA CHAPMAN, Personal Representative of the Estate of PATRICK CHAPMAN, LYNETTE MASSAB, Personal Representative of the Estate of GEORGE MASSAB, Plaintiffs-Appellants/Cross-Appellees,

v SC: 141359 COA: 287143 Wayne CC: 04-418373-NM SHELDON L. MILLER, LOPATIN, MILLER, FREEDMAN, BLUESTONE, ERLICH, ROSEN & BARTNICK, P.C., and SHELDON L. MILLER & ASSOCIATES, P.C., Defendants-Appellees/Cross-Appellants.

________________ _______________ ____________/

On order of the Court, the applicati on for leave to appeal the March 30, 2010 judgment of the Court of Appeals and the application for leave to appeal as crossappellant are considered, and they are DENI ED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARKMAN

, J. ( dissenting ).

I would grant leave to appeal, and theref ore dissent. At issue is the point of accrual of the two-year statut e of limitations for professiona l malpractice cases. The applicable statute, MC L 600.5838(1), provides:

a claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving th e plaintiff in a professional orI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk December 27, 2010

s1221 4

pseudoprofessional capacity as to the matters out of which the claim for malpractice arose , regardless of the time the plaintiff discovers or otherwise has knowledge of th e claim. [Emphasis added.]

Here, defendant attorney repr esented plaintiffs insuranc e sales representatives in “wrongful termination” empl oyment litigation. Defendant continued work ing on a ppeals in this case, even after plain tiffs retained another attorney to pursue “age discrimination” claims that plaintiffs belie ve grew out of the same ci rcumstances as the “wrongful
termination” claims and that should have been joined with the latter claims. As a result of defendant’s failure to join these claims, plaintiffs also filed a professional malpractice suit against him for the handling of their origin al lawsuit. The centr al question is whether defendant’s representation of plaintiffs in th eir “wrongful termination” appeal can fairly
be said to have occurred in the course of representing plain tiffs in “matters out of which the claim for malpractice aros e,” where such malpractice claim concerned defendant’s failure to attach “age discrimination” claims to “wrongful termina tion” claims in the original lawsuit. Significantly, MCL 600.5838 (1) does not refer to the singular “matter,” but to the plural “matters,” a nd does not refer to the “case,” or the “claim,” but to “the matters,” as establishing the accrual poi nt of its statute of limitations.

Accordingly, if under MCL 600.5838(1 ) the claim accrues from the time that plaintiffs hired a new attorney to replace defendant to represent them in the “age discrimination” claim, the two-year limitati ons period would have elapsed before the legal malpractice suit was filed against defe ndant. On the other hand, if under MCL 600.5838(1) the claim accrues fro m the time that defendant concluded his representation of plaintiffs in the “wrongfu l termination” claim—the limite d scope of which eventually prompted plaintiffs’ malpractice action— the two-year limitations period would not have elapsed before the legal malpractice suit was filed against defendant.

The reading of MCL 600.5838(1) sustai ned by the majority may conceivably be correct, but it is hardly clear. The majority’s interpretation is pred icated upon a highly limited reading of the statute that would essentially equate a “case” or “claim” with
“matters.” Each side in th is case, in my judgment, has offered reasonable arguments in support of its position that the ma lpractice action here is, or is not, time-barred. Because this involves a significant issue of statutor y interpretation, with important practical consequences for access to the legal system , I would grant leave to appeal.

C ORRIGAN , J., joins the statement of M ARKMAN , J.

Y OUNG

, J., not participating.