ESTATE OF TYLER JACOB MAKI, by his Plenary Guardian MICHAEL PAUL MAKI, Plaintiff-Appellant,
VICTOR COEN, SOMMERS SCHWARTZ, PC, PHOEBE J. MOORE, PHOEBE J. MOORE, PC, and JOHN C. BURNS, Defendants-Appellees.
Circuit Court LC No. 2015-146436-NM
Before: Talbot, C.J., and Jansen and Hoekstra, JJ.
appeals as of right the order granting defendants' motion
for summary disposition. We affirm.
FACTS AND PROCEDURAL HISTORY
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
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.
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.
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
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.
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.
STANDARD OF REVIEW
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, ...