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### STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF TYLER JACOB MAKI, by his Plenary Guardian MICHAEL PAUL MAKI,

Plaintiff-Appellant, FOR PUBLICATION January 19, 2017 9:00 a.m.

v No. 328704 Oakland Circuit Court VICTOR COEN, SOMMERS SCHWARTZ, PC, PHOEBE J. MOORE, P HOEBE J. MOORE, PC, and JOHN C. BURNS, LC No. 2015-146436-NM

Defendants-Appellees.

Before: T ALBOT , C.J., and J ANSEN and H OEKSTRA , JJ.

J ANSEN , J.

Plaintiff appeals as of right t he order granting defendants’ m otion for summary disposition. We affirm.

I. FACTS AND PROCEDURAL HISTORY

This case arises from the 1994 birth of Tyler Maki (Tyler), wh o was born with a congenital birth defect. Tyler ’s family filed a medical malpra ctice action on Tyler’s behalf against his medical care providers , and defendant Sommers Schwa rtz, PC, represented Tyler in the medical malpractice suit. The parties settled the lawsuit in 1998, and the medical providers agreed to pay an immediate cash settlement and provide Tyler wi th regular payments from a structured annuity.

Tyler’s mother, Mandy Maki-Childs, was his conservator from No vember 1998 until October 2006. Defendant Victor Coen represented Maki-Childs in connection with her duties as Tyler’s conservator. According to plaintiff, Coen did not incl ude the structured settlement income on the annual accounts he prepared in connection with th e conservatorship. Coen allegedly excluded the settlement income because the settlement had confidential terms and a letter from the probate judge did not, in his opinion, require an accounting of the funds. Plaintiff contends that problems develope d because of Maki-Childs’s failu re to account for the settlement funds, and she was removed as conservator.-2- Tyler’s new conservator, Heidi B rown, filed suit against Maki- Childs in 2009 for her failure to account for the settlement funds during her conserva torship. Defendant John C. Burns represented Brown in that lawsuit. In October 2011, the court entered a judgment against MakiChilds in the amount of $673,958.15, and Maki-Childs filed for bankruptcy. Defendant Phoebe J. Moore, founder of defendant Phoe be J. Moore, P.C. (collectiv ely, the Moore defendants), replaced Brown as Tyler’s c onservator in December 2011.

Tyler’s father, Michael Paul Maki, was appointed plenary guard ian over both Tyler’s estate and person. Maki sued def endants on behalf of Tyler’s e state, alleging that they “owed Tyler, as their client” a duty of care to provide services as w ould attorneys of ordinary learning and judgment. Plaintiff alleged that Coen and his employer, So mmers Schwartz, PC (collectively, the Coen defendant s), violated their duty of car e in connection with the legal services they provided to Maki-Childs during her conservatorshi p. The complaint specified that the Moore defendants did not tim ely pursue and preserve Tyler’s claims against the Coen defendants. The complaint similarly alleged that defendant Bur ns should have discovered any meritorious cause of action against the Coen defendants during his representation of conservator Heidi Brown.

The Coen defendants filed a motion for summary disposition und er MCR 2.116(C)(7) (claim barred by statute of repos e), (8) (failure to state clai m), and (10) (no genuine issue of material fact). First, they assert ed that Michigan’s six-year statute of repose for legal malpractice barred the claim and that the tolling provision of MCL 600.5851 (1) did not apply. Second, they asserted that plaintiff lacked s tanding as the real party in in terest because Coen’s client—the only person entitled to file a malpractice claim—was conservator Mak i-Childs. Burns filed a motion for summary disposition under MCR 2.116(C)(8) a nd (10), arguing that he had no attorney-client relationship with plaintiff and that plaintiff was not the real party in interest. The Moore defendants also moved for summary disposition under MCR 2.116(C )(8) and (10), arguing, in relevant part, that plaintiff lacked standing to file a lawsuit against the Coen defendants.

Plaintiff responded by contending that the suit against the Co en defendants was timely because the statute of limitations was tolled under MCL 600.585 1(1) by Tyler’s severe mental impairment. Further, plaintiff asserted that the statute of re pose did not apply ret roactively to bar plaintiff’s claim. Plaintiff fu rther argued that even if the c ourt believed that Tyler was not a client of the Coen defendants, they still owed him a duty as an intended and direct third-party beneficiary of the legal relati onship between Coen and Maki-Chi lds. According to plaintiff, all arguments made with respect to the Coen defendants applied equa lly to Burns and the Moore defendants with the exception th at Phoebe Moore was both a cons ervator and an attorney, so she owed a duty of care to Tyler by statute.

The court concluded that only Maki-Childs had standing to sue the Coen defendants, and the court declined to reach the statute of repose argument beca use the standing issue was dispositive. The court explained that concluding that the atto rney represented both the conservator and the estate would lead to a conflict of interest and that the caselaw cited by plaintiff was distinguishable. T herefore, the court granted su mmary disposition in favor of defendants.-3- II. STANDARD OF REVIEW

We review de novo a motion for summary disposition. Kyocera Corp v Hemlock Semiconductor, LLC , 313 Mich App 437, 445; 886 NW2d 445 (2015). A motion for sum mary disposition asserting a real-party-in-interest argument falls u nder either MCR 2.116(C)(8) or (10), depending on the pleadings and other circumstances of the case. Cannon Twp v Rockford Pub Sch , 311 Mich App 403, 411; 875 NW2d 242 (2015). This case presen ted the legal issue of whether an attorney hired by a conservator represents the conse rvator or the estate. Accordingly, summary disposition was properly considered under MCR 2.116(C)( 8). “ ‘MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted.’ ” Kyocera Corp , 313 Mich App at 445 (citation omitted). “ ‘A motion under MCR 2.116(C)(8) may be g ranted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.’ ” Id . (citation omitted). “ ‘All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant.’ ” Id . (citation omitted). However, it is insufficient to allege unsupported le gal conclusions. Id . We also review de novo issues of statut ory interpretation and the prope r interpretation of a court rule. Bank of America, NA v Fi rst American Title Ins Co , 499 Mich 74, 85; 878 NW2d 816 (2016); Magdich & Assoc, PC v Novi Dev Assoc, LLC , 305 Mich App 272, 275; 851 NW2d 585 (2014). Finally, we review de novo the issue whether a person is the re al party in interest. In re Beatrice Rottenberg Living Trust , 300 Mich App 339, 354; 833 NW2d 384 (2013).

III. REAL PARTY IN INTEREST

Plaintiff argues that the trial court erred by granting summar y disposition in favor of defendants on the basis that plaintiff was not the real party i n interest. Plaintiff contends that it was the real party in interest either because it was the client of the Coen defendants or because it was a third-party beneficiary of the contract between the Coen defendants and Maki-Childs. We disagree.

“An action must be prosecuted in the name of the real party in interest . . . .” MCR 2.201(B). 1 “ ‘A real party in interest is one who is vested with the rig ht of action on a given claim, although the beneficial interest may be in another.’ ” Beatrice Rottenberg Living Trust
, 300 Mich App at 356 (citation omitted). The rule “requir[es] t hat the claim be prosecuted by the party who by the substantive law in question owns the claim” th at is asserted in the complaint. Id . (citation and quotation marks omitted; alteration in original ). The crux of defendants’

1 We note that while the trial court and the parties referred to the issue as whether plaintiff had “standing” to file the lawsuit, the issue is more accurately ch aracterized as whether plaintiff was the real party in interest. “ [A]lthough the principle of statu tory standing overlaps significantly with the real-party-in-interest r ule, they are distinct concept s.” Beatrice Rottenberg Living Trust
, 300 Mich App at 355. Statutory s tanding is a jurisdictional pr inciple, while “the real-party-ininterest rule is essentially a prudential limitation on a litig ant’s ability to raise the legal rights of another.” Id

.-4- argument in the trial court was that plaintiff was not the real party in interest because the Coen defendants represented Maki-Childs, rather than the estate. “A bsent unique circumstances, an attorney is only liable in negligence to his client.” Mieras v DeBona , 452 Mich 278, 297; 550 NW2d 202 (1996) (opinion by B OYLE , J).

Resolution of this issue requires interpretation of the releva nt statute and court rule. The “goal in interpreting a statute is to give effect to the Legisl ature’s intent, focusing first on the statute’s plain language.” Bank of America, NA , 499 Mich at 85. “When a statute’s language is unambiguous, the Legislature must have intended the meaning cle arly expressed, and the statute must be enforced as written.” Id . In addition, we “ ‘must give effect to every word, phrase, a nd clause in a statute and avoid an interpretation that renders nu gatory or surplusage any part of a statute.’ ” Jesperson v Auto Club Ins Ass’n , 499 Mich 29, 34; 878 NW2d 799 (2016) (citation omitted). Finally, “[t]he interpretation and application of a court rule is governed by the principles of statutory constr uction, commencing with an examin ation of the plain language of the court rule.” Magdich & Assoc , 305 Mich App at 275. We determi ne the intent of the court rule by examining the court rule and its place in the structure of the Michigan Court Rules as a whole. Id

. The language of the relevant sta tute and court rule establish that an attorney hired to perform legal services for a conservator represents the conserv ator and does not have an attorney-client relationship w ith the estate. The Estates and Protected Individua ls Code (EPIC), MCL 700.1101 et seq ., governs the powers of conser vators. Under MCL 700.5423(2)(z ), a conservator may

[e]mploy an attorney to perform necessary legal services or to advise or assist the conservator in the performance of the conservator’s administrat ive duties, even if the attorney is associated with the conservator, and act withou t independent investigation upon the attorney’s recommendation. An attorney employed under this subdivision shall receive reasonable compensation for his or her employment. [MCL 700.5423(2)(z).]

The statute clarifies that the attorney performs legal services for the conservator, and advises or assists the conservator in the performance of his or her duties . This language focuses solely on the services and assistance provided to the conservator , which establishes that the attorney represents the conservator in the performance of his or her dut ies. The language in EPIC contrasts with the language of the former Revised Probate Code (RPC), MCL 700.101 et seq ., which provided, “Without obtaining a court order, a fiduciary o f an estate may employ counsel to perform necessary legal services in behalf of the estate and the counsel shall receive reasonable compensation for the legal services.” MCL 700.543 ( emphasis added). 2 The plain language of the RPC expressly established that the attorney ren dered assistance on behalf of the estate. The Legislature removed this language in EPIC and repl aced it with language indicating that the attorney provides legal services and assistance to the conservator. Therefore, we

2 The Legislature repealed the R PC and replaced it with EPIC. S ee 1998 PA 386.-5- conclude that the plain language o f the statute establishes tha t an attorney hired by a conservator represents the conservator, and the attorney does not have an a ttorney-client relationship with the
estate.

The Michigan Court Rules provide further clarification on this issue. MCR 5.117(A) provides, “An attorney filing an appearance on behalf of a fidu ciary shall represent the fiduciary.” The plain language o f this court rule is clear tha t an attorney appeari ng in the probate court on behalf a conservator represents the conservator, rathe r than the estate. Accordingly, we conclude that the plain language of the relevant statute and co urt rule establish that an attorney employed by the conservator repres ents the conservator and not the estate.

Plaintiff relies, in part, on this Court’s decision in Steinway v Bolden , 185 Mich App 234, 237-238; 460 NW2d 306 (1990), 3 for the proposition that “although the personal representative retains the attorney, the attorney’s client is the estate, rath er than the personal representative.” Although this Court concluded in t hat case that the attorney re presented the estate, this Court relied primarily on the repealed provision of the RPC. Id . This Court explained that the RPC “authorizes a fiduciary of the estate, such as the personal rep resentative, to ‘employ counsel to perform necessary legal services in behalf of the estate .’ ” Id . at 237 (citation omitted; emphasis added). Thus, this Court concluded that the RPC allowed a fidu ciary to hire an attorney to perform legal services on behalf of the estate , suggesting that the estate was the client. However, because EPIC did not retain the same language, we conclude that plaintiff’s reliance on Steinway is misplaced.

Plaintiff also argues that, even if this Court concludes that plaintiff was not Coen’s client, plaintiff was nevertheless able to bring a tort-based cause of action against the Coen defendants because it was third-party benefi ciary of the contract between Coen and Maki-Childs. Plaintiff’s argument fails because it did not plead facts demonstrating its status as a named beneficiary of the contract between Coen and Maki-Childs. Plaintiff relies on our Supreme Court’s decision in Mieras to argue that it was a third-part y beneficiary of a contract be tween Coen and MakiChilds. In Mieras , our Supreme Court outlined an exception to the general rule t hat an attorney is only liable in negligence to his client. Mieras , 452 Mich at 297 (opinion by B OYLE , J.). 4 The Court concluded that “beneficiaries named in a will may bring a tort-based cause of action against the attorney who drafte d the will for negligent breach of the standard of care owed to the beneficiary by nature of the bene ficiary’s third-party benefici ary status.” Id . at 308. The Court explained that “the duty owed to named beneficiaries is narrowl y circumscribed and only requires the attorney to draft a will that properly effectuates the distribution scheme set forth by the testator in the will.” Id . at 302. The Court further explained that recognizing a cause of action in this narrow instance would not create a conflict of i nterest between the attorney and the beneficiaries for two reasons. F irst, beneficiar ies have no ri ghts under a will until the testator’s

3 Because Steinway was published before November 1, 1990, it is not binding. See MCR 7.215(J)(1).

4 Justice B OYLE ’s opinion was joined by the majority of justices of the Michig an Supreme Court. Mieras , 452 Mich at 308 (opinion by B OYLE , J.).-6- death, and second, the only obligation owed to the beneficiarie s is to exercise the standard of care in fulfilling the intent of the testator as described in t he will. Id . at 301. This Court expanded the Mieras exception by concluding that it applied to beneficiaries named in estate planning documents aside from wills. Bullis v Downes , 240 Mich App 462, 467-468; 612 NW2d 435 (2000). However, plaintiff c ites no caselaw extending this third-party beneficiary exception to anyone other than the named beneficiaries of a testamentary instrument that does not effectuate the intent of the testator.

Plaintiff also cites Beaty v Hertzberg & Golden, PC , 456 Mich 247, 571 NW2d 716 (1997), in support of his third-par ty beneficiary argument. In Beaty , the plaintiff sued the defendant attorneys, who represen ted the bankruptcy trustee of her deceased husband’s corporation, because of their fa ilure to successf ully litigate a life insurance claim. Id . at 249-250. One of the plaintiff’s theories of malpractice was that she was a third-party beneficiary of the contract to prosecute the claim. Id . at 259. Citing Mieras , our Supreme Court explained that “[i]n a situation such as this, third-party beneficiary liabili ty is premised on the concept that the initial attorney-cli ent contract was so unquestionably for the benefit of the third party that that third party can maintain a suit for negligence by the attorney. ” Id . But the Court explained that the plaintiff’s theory was “flawed” because any benefit to a th ird-party beneficiary must be direct, and the benefit to her w as indirect because any funds r ecovered would pay off creditors of the bankruptcy estate. Id . at 259-260. The Beaty Court also held that the plaintiff’s claim was “fatally defective” because she “failed to plead facts demonstr ating her status as a named beneficiary of the contract” be tween the bankruptcy trustee and the law firm. Id . at 260.

The same conclusion applies to the instant case because plaint iff’s second amended complaint never pleaded that Tyler or his estate was a named be neficiary of any contract between the Coen defendants and conservator Maki-Childs. Plain tiff asserts that Coen and the other defendant attorneys knew th at their services were for Tyl er’s benefit. But mere knowledge of a benefit to a third party i s not enough. Thus, plaintiff’s failure to plead its status as a thirdparty beneficiary of a contract between Coen and Maki-Childs is fatal to its third-party beneficiary theory of m alpractice liability.

Because we conclude that the Coen defendants represented only Maki-Childs, plaintiff cannot assert malpractice against the Coen defendants in the in stant suit because it is not the real party in interest. See MCR 2.201(B). 5 Additionally, plaintiff’s cl aims against Burns and the Moore defendants fail. The Moore defendants and Burns could no t have sued the Coen

5 We acknowledge that the decision in this case raises policy co ncerns regarding the fact that a protected individual, t he party on whose behalf the conservator performs his or her duties, cannot bring a malpractice action against the attorney representing th e conservator. However, we cannot “ ‘substitute our own policy decisions for those already made by the Legislature.’ ” Maier v Gen Tel Co of Mich , 247 Mich App 655, 664; 637 NW2d 263 (2001) (citation omitted)

. This Court’s duty is to interpret the plain language of the sta tute, which in this case establishes that an attorney hired by a conservator represents the conserva tor. Therefore, this policy question is properly directed t oward the Legislature. See id

.-7- defendants because the estate was not the client of the Coen de fendants. Therefore, Burns and the Moore defendants could not have committed malpractice by fa iling to discover and prosecute a cause of action against the Coen defendants earlier. Because we conclude that the trial court properly determined that plainti ff was not the real party in in terest with regard to the legal malpractice claim, we need not r each the alternative issue of w hether plaintiff’s legal malpractice claim was barred by the statute of repose. For the same reason , we also decline to address plaintiff’s argument that there existed a genuine issue of mate rial fact regarding whether defendants held themselves out a s representing the estate.

Affirmed.

/s/ Kathleen Jansen /s/ Michael J. Talbot /s/ Joel P. Hoekstra