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Estate of Maki v. Coen

Court of Appeals of Michigan

January 19, 2017

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

         Oakland Circuit Court LC No. 2015-146436-NM

          Before: Talbot, C.J., and Jansen and Hoekstra, JJ.

          Jansen, J.

         Plaintiff appeals as of right the order granting defendants' motion for summary disposition. We affirm.


         This case arises from the 1994 birth of Tyler Maki (Tyler), who was born with a congenital birth defect. Tyler's family filed a medical malpractice action on Tyler's behalf against his medical care providers, and defendant Sommers Schwartz, 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 with regular payments from a structured annuity.

         Tyler's mother, Mandy Maki-Childs, was his conservator from November 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 include the structured settlement income on the annual accounts he prepared in connection with the 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 developed because of Maki-Childs's failure to account for the settlement funds, and she was removed as conservator.

          Tyler's new conservator, Heidi Brown, filed suit against Maki-Childs in 2009 for her failure to account for the settlement funds during her conservatorship. Defendant John C. Burns represented Brown in that lawsuit. In October 2011, the court entered a judgment against Maki-Childs in the amount of $673, 958.15, and Maki-Childs filed for bankruptcy. Defendant Phoebe J. Moore, founder of defendant Phoebe J. Moore, P.C. (collectively, the Moore defendants), replaced Brown as Tyler's conservator in December 2011.

         Tyler's father, Michael Paul Maki, was appointed plenary guardian over both Tyler's estate and person. Maki sued defendants on behalf of Tyler's estate, alleging that they "owed Tyler, as their client" a duty of care to provide services as would attorneys of ordinary learning and judgment. Plaintiff alleged that Coen and his employer, Sommers Schwartz, PC (collectively, the Coen defendants), violated their duty of care in connection with the legal services they provided to Maki-Childs during her conservatorship. The complaint specified that the Moore defendants did not timely pursue and preserve Tyler's claims against the Coen defendants. The complaint similarly alleged that defendant Burns 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 under MCR 2.116(C)(7) (claim barred by statute of repose), (8) (failure to state claim), and (10) (no genuine issue of material fact). First, they asserted 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 standing as the real party in interest because Coen's client-the only person entitled to file a malpractice claim-was conservator Maki-Childs. Burns filed a motion for summary disposition under MCR 2.116(C)(8) and (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 Coen defendants was timely because the statute of limitations was tolled under MCL 600.5851(1) by Tyler's severe mental impairment. Further, plaintiff asserted that the statute of repose did not apply retroactively to bar plaintiff's claim. Plaintiff further argued that even if the court 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 relationship between Coen and Maki-Childs. According to plaintiff, all arguments made with respect to the Coen defendants applied equally to Burns and the Moore defendants with the exception that Phoebe Moore was both a conservator 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 because the standing issue was dispositive. The court explained that concluding that the attorney represented both the conservator and the estate would lead to a conflict of interest and that the caselaw cited by plaintiff was distinguishable. Therefore, the court granted summary disposition in favor of defendants.


         We review de novo a motion for summary disposition. Kyocera Corp v Hemlock Semiconductor, LLC, 313 Mich.App. 437, 445; 886 N.W.2d 445 (2015). A motion for summary disposition asserting a real-party-in-interest argument falls under 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 N.W.2d 242 (2015). This case presented the legal issue of whether an attorney hired by a conservator represents the conservator 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 granted 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 legal conclusions. Id. We also review de novo issues of statutory interpretation and the proper interpretation of a court rule. Bank of America, ...

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