Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Broz v. Plante & Moran, PLLC

Court of Appeals of Michigan

January 9, 2020

ROBERT F. BROZ and KIMBERLY BROZ, Plaintiffs-Appellants,
v.
PLANTE & MORAN, PLLC, Defendant-Appellee.

          Otsego Circuit Court LC No. 12-014346-NM

          Before: Boonstra, P.J., and Jansen and Gadola, JJ.

         ON REMAND

          GADOLA, J.

         This case involves alleged accounting malpractice. When this case was last before this Court, we affirmed the decision of the trial court granting summary disposition to defendant, Plante & Moran, PLLC, under MCL 2.116(C)(8) and (10). Broz v Plante & Moran, PLLC, 326 Mich.App. 528; 928 N.W.2d 292 (2018). Thereafter, our Supreme Court considered plaintiffs' application for leave to appeal to that Court and, in lieu of granting leave to appeal, vacated Part II.A. of our opinion and remanded the case to us for reconsideration of the issue of professional negligence (malpractice) in light of Cox v Flint Bd of Hosp Mgrs, 467 Mich. 1; 651 N.W.2d 356 (2002). We do so now, and again affirm.

         I. FACTS

         This case has a lengthy history and was previously before this Court in Broz v Plante & Moran, PLLC, unpublished per curiam opinion of the Court of Appeals, issued May 17, 2016 (Docket No. 325884). In that case, we summarized the underlying facts as follows:

Robert Broz operated several businesses that provide cellular telephone services, including RFB Cellular and Alpine PCS. He organized the businesses as S Corporations, which provided for pass through taxation. The IRS audited the Broz's tax returns and issued a notice of deficiency, or 90-day letter, to them. The IRS listed various deficiencies in the Broz's tax payments for tax years 1996, 1998, 1999, 2000, and 2001. Plante Moran prepared the Broz's tax returns for each of those years. The parties' professional relationship ended in February 2006.
After the end of the relationship, but before the IRS issued the notice of deficiency, the Broz filed amended tax returns for years 1998-2001, each one designated as a "protective filing" and showing a decrease in adjusted gross income of $35, 675, 453. Having claimed a large net operating loss for tax year 2002, they filed the amended returns in hopes of taking advantage of the 2002 enactment of the Job Creation and Worker Assistance Act, PL 107-147, § 102(a); 116 Stat 21, which allowed taxpayers to carry back net operating losses incurred in tax years 2001 and 2002 for five years instead of the normal two.
The Broz then sued the IRS in the United States Tax Court and disputed the deficiencies; they alleged in relevant part that all but a nominal amount of any tax deficiency assessed as a result of the audit would be eliminated by their 2002 net operating loss carryback. Despite raising the 2002 carryback as an issue in their petition to the Tax Court, the Broz chose not to press that matter as part of their case before that tribunal. Their trial lawyer explained at deposition that this was done for strategic reasons and with the knowledge and approval of Robert Broz.
The Broz sued Plante Moran for malpractice in 2008, but the parties entered into a series of tolling agreements pending the resolution of the case in the United States Tax Court. The Tax Court issued a decision in favor of the IRS on the deficiencies on September 1, 2011, Broz v Comm'r of Internal Revenue, 137 TC 46 (U.S. Tax Ct, 2011). The Broz then filed this action on January 19, 2012. They also appealed the decision of the Tax Court to the United States Court of Appeals for the Sixth Circuit. While that appeal was pending, the Broz's lawyer attempted to fight collection efforts by the IRS by asserting that the judgment could be reduced either by a favorable ruling from the Sixth Circuit, or by application of the Broz's 2002 net operating loss carryback, which they were still pursuing with the IRS. The federal appellate court affirmed the judgment of the Tax Court in August 2013. See Broz v Comm'r of Internal Revenue, 727 F.3d 621 (CA 6, 2013). On September 16, 2014, the IRS sent the Broz a letter disallowing the Broz's carryback claims. The Broz's lawyer responded with a letter stating their disagreement and requesting an appeals conference.
Plante Moran moved for summary disposition of this case on November 5, 2014. It argued that the case must be dismissed because it was not yet ripe; specifically, it stated that the IRS's review process could yet determine that no damages existed. It also argued that, by failing to assert the carryback argument in the United States Tax Court, the Broz caused their own losses. The trial court agreed that the cause of action was not ripe. Although the Broz had been assessed a tax liability, the court explained, they had not suffered any present injury because it was possible that that liability would be offset if they prevailed in their pending action with the IRS. On that basis, the trial court granted Plante Moran's motion for summary disposition under MCR 2.116(C)(4) and dismissed the case without prejudice. [Broz, unpub op at 1-2.]

         Plaintiffs, Robert F. and Kimberly Broz, appealed to this Court contending that the trial court erred in granting summary disposition to defendant on ripeness grounds. This Court reversed the decision of the trial court and remanded the case for further proceedings. Broz, unpub op at 4. On remand, defendant again sought summary disposition of plaintiffs' amended complaint, which alleged breach of contract, professional negligence (malpractice), negligent misrepresentation, breach of fiduciary duty, and "estoppel to mitigate and indemnity." The trial court granted defendant's motion, and dismissed plaintiffs' claim for professional negligence (malpractice) under MCR 2.116(C)(10), while dismissing all other counts of plaintiffs' complaint under MCR 2.116(C)(8) and (10). Plaintiffs appealed the trial court's order to this Court. We affirmed the decision of the trial court in Broz, 326 Mich.App. 528. Our Supreme Court has now remanded the matter to us for reconsideration of the issue of professional negligence (malpractice).

         II. DISCUSSION

         A. STANDARD OF CARE

         When previously before this Court, plaintiffs contended that the trial court erred in granting summary disposition of their claim for professional negligence (malpractice) under MCR 2.116(C)(10). We review de novo a trial court's decision to grant or deny summary disposition. Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5-6; 890 N.W.2d 344 (2016). In so doing, we review the entire record to determine whether the moving party was entitled to summary disposition. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). When reviewing an order granting summary disposition under MCR 2.116(C)(10), this Court considers all documentary evidence submitted by the parties in the light most favorable to the nonmoving party. Dawoud v State Farm Mut Auto Ins Co, 317 Mich.App. 517, 520; 895 N.W.2d 188 (2016). Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.