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finding that defendant's "last day of professional service, and the date of accrual of a legal malpractice claim, was on October 21, 2004" - the date the court granted on the record defendant's motion to withdraw - and explaining that "[a]lthough plaintiff correctly contends that MCR2.602 requires all court orders to be in writing, signed, and dated, he has cited no authority for the proposition that failure to reduce an oral ruling made on the record regarding a motion to withdraw renders that ruling ineffective"
Summary of this case from Glowacki v. BadaluccoOpinion
No. 340514
07-24-2018
TOD K HOUTHOOFD, Plaintiff-Appellant, v. LAW OFFICE OF MATTHEW REYES, Defendant-Appellee.
UNPUBLISHED Bay Circuit Court
LC No. 16-003745-NM Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ. PER CURIAM.
In this legal malpractice action, plaintiff appeals as of right the trial court's opinion and order denying plaintiff's motion for summary disposition and granting defendant's motion for summary disposition under MCR 2.116(C)(7) on the ground that the claim was barred by the statute of limitations. We affirm.
I. FACTS
On November 25, 2001, plaintiff was placed in custody and questioned regarding his suspected involvement in a shooting incident. Without obtaining a warrant, the Michigan State Police also impounded plaintiff's vehicle for further investigation and searched his residence in Standish, Michigan, to collect all of his firearms. When law enforcement officers searched plaintiff's vehicle the following day, they discovered a driver's license in the name of Colin Francis. In April 1998, a report had been filed with the Saginaw County Sheriff Department alleging the theft of a tractor by a suspect who had presented a driver's license in the name of Colin Francis. According to plaintiff, an officer who performed the search of plaintiff's residence on November 25 observed a tractor in plaintiff's shed. In reliance on this evidence, the police obtained a warrant on November 29, 2001, issued by the Bay County District Court and permitting a search of plaintiff's residence for the stolen tractor. During this search, the police discovered a tractor in plaintiff's shed bearing the same serial number as the tractor reported stolen.
On January 30, 2002, plaintiff was charged in Saginaw Circuit Court with False Pretenses Over $100, MCL 750.218, in Case Number 02-021097-FH-3. The parties agree that this case was tried on February 25, 2004, but resulted in a mistrial, as the jury was unable to reach a verdict. A retrial was scheduled for October 21, 2004. Additionally, plaintiff was charged on June 24, 2004, with Witness Intimidation, MCL 750.122(7)(c), and Obstruction of Justice, MCL 750.505, in Case Number 04-024765-FH-3. Defendant admits that attorney Matthew Reyes served as defense counsel for plaintiff in both of these cases but argues that the trial court granted his motion to withdraw as counsel on October 21, 2004, the day trial was scheduled to begin.
On October 22, 2004, the Saginaw Circuit Court entered an order appointing substitute counsel in both cases, and on November 22, 2004, the court entered a stipulated order permitting another substitution of defense counsel. The cases proceeded to trial, and plaintiff was convicted and sentenced on March 21, 2006, to 5 to 10 years in prison on the False Pretenses charge and to 10 to 15 years in prison on the Witness Intimidation charge. Plaintiff was later sentenced on December 6, 2017, to 30 to 50 years in prison for Solicitation of Murder, MCL 750.157. Plaintiff does not allege in his amended complaint that Mr. Reyes represented him with respect to this charge; however he does make this argument in his brief on appeal.
Plaintiff initiated the present legal malpractice action in Bay Circuit Court on November 21, 2016, alleging that Mr. Reyes negligently failed to seek suppression of the evidence collected by law enforcement officers during their initial warrantless searches of his vehicle and home in violation of the Fourth Amendment. Plaintiff contends that this illegally obtained evidence served as the sole basis for the Bay County District Court's issuance of the search warrant on November 29, 2001, leading to discovery of the tractor. Moreover, plaintiff alleges that Mr. Reyes fraudulently concealed his negligence and conspired with the prosecution and that, absent this negligence, he would not have been convicted.
Plaintiff filed a motion for summary disposition under MCR 2.116(I)(1) (party entitled to judgment as a matter of law), as well as a motion to deny defendant's amended answer. Through these motions, plaintiff sought to strike defendant's amended answer alleging that Mr. Reyes' representation of plaintiff ended in October 2004, thereby binding defendant to a scrivener's error in the originally filed answer stating that Mr. Reyes' representation ended "on or about November 21, 2016." Accordingly, plaintiff argued, the statute of limitations defense pleaded by defendant was unavailing. Defendant also filed a motion for summary disposition under MCR 2.116(C)(1), (C)(8), and (C)(10), arguing that plaintiff's claim was barred by the statute of limitations and that plaintiff was unable to demonstrate either legal negligence or a causal connection to his alleged injuries.
In an opinion and order dated September 8, 2017, the trial court granted defendant's motion for summary disposition and denied plaintiff's motion for summary disposition. Regarding plaintiff's motion, the trial court held that defendant's amended answer was properly filed and that judgment under MCR 2.116(I)(1) was inappropriate, as the matter of Mr. Reyes' negligence was a disputed question of fact. With respect to defendant's motion for summary disposition, the trial court determined that the action was not filed within the statutory period of limitations. The trial court reasoned that Mr. Reyes' alleged negligence must have occurred before his representation of plaintiff ended on October 21, 2004, or, at the latest, before plaintiff's conviction and sentencing on March 21, 2006. Thus, the six-year limitations period under MCL 600.5838b(1) would have expired on March 21, 2012, at the latest. The trial court acknowledged that, alternatively, the statute of limitations expires six months after a plaintiff discovers or should have discovered a cause of action through the exercise of reasonable diligence. However, documentary evidence contradicted plaintiff's claim that he was unaware of a potential claim until October 2016. Specifically, plaintiff initiated a civil action in 2004, alleging that the search of his vehicle on November 26, 2001, was constitutionally unlawful. See Houthoofd v VanHorn, unpublished report and recommendation of the United States District Court for the Eastern District of Michigan, issued September 1, 2005 (Case No. 05-CV-10003-BC), p 2. Accordingly, the trial court concluded that plaintiff should have discovered this claim at least by 2006, and the present claim was untimely.
As will be clarified in this Court's discussion of the issue, MCL 600.5838b is a statute of repose, as distinguished from the statute of limitations set forth by MCL 600.5805(8) and MCL 600.5838.
II. DISCUSSION
A. DEFENDANT'S AMENDED ANSWER
Plaintiff first argues that the trial court erred by declining to strike defendant's amended answer under MCR 5.113(A)(2), as this pleading misidentified the assigned judge and therefore was not filed in accordance with MCR 2.113(C)(3). Consequently, plaintiff maintains defendant failed to timely file its amended answer with the correct court within the allotted 14-day period set forth by MCR 2.118(A). "This Court reviews a trial court's decision regarding a motion to strike a pleading pursuant to MCR 2.115 for an abuse of discretion." Belle Isle Grill Corp v City of Detroit, 256 Mich App 463, 469; 666 NW2d 271 (2003). The trial court abuses its discretion when it "chooses an outcome falling outside the range of principled outcomes." Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). MCR 2.115(B) grants discretion to the trial court regarding whether to strike a nonconforming pleading.
Under MCR 2.118(A)(1), "[a] party may amend a pleading once as a matter of course . . . within 14 days after serving [a] pleading if it does not require a responsive pleading." Here, plaintiff filed an amended complaint on May 12, 2017. Defendant filed its answer on June 1, 2017, and subsequently filed an amended answer 12 days later on June 13, 2017. Thus, the amended answer was timely filed under MCR 2.118(A)(1) without need for leave of the trial court.
In accordance with MCR 2.113(C)(3), the name of the judge to whom a case has been assigned must be included in the caption of a pleading. Plaintiff correctly contends that both defendant's originally filed answer and its amended answer erroneously identify the Honorable Harry P. Gill as the assigned judge. The case was originally assigned to Judge Gill, who disqualified himself from hearing the case on January 18, 2018, along with all other judges on the Bay Circuit Court. The parties were notified on February 22, 2017, that the case was reassigned to the Honorable Paul H. Chamberlain of the Isabella Circuit Court. Following the reassignment, defendant made only one other filing before submitting its answer and amended answer. Defendant's pleadings, filed shortly after the reassignment to Judge Chamberlain had taken place, erroneously identified the judge who originally presided over the case. MCR 2.115(B) grants discretion over whether to strike a nonconforming pleading. Defendant's error amounted to nothing more than a minor oversight that was not prejudicial to plaintiff, and we conclude that the trial court did not abuse its discretion in denying plaintiff's motion to strike the amended answer.
B. STATUTE OF LIMITATIONS
Plaintiff next contends that the trial court erred in granting defendant's motion for summary disposition on the ground that the action was barred by the statute of limitations. First, plaintiff argues that defendant failed to bring its motion under MCR 2.116(C)(7). Second, plaintiff maintains that the trial court incorrectly determined that Mr. Reyes' representation ended on October 21, 2004; rather, Mr. Reyes remained plaintiff's counsel until November 21, 2016. Third, plaintiff contends that Mr. Reyes fraudulently concealed the present cause of action, thereby precluding plaintiff's discovery of his cause of action until October 2016. We reject each of plaintiff's arguments.
This Court reviews a trial court's summary disposition ruling under MCR 2.116(C)(7) de novo. Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543, 553; 837 NW2d 244 (2013). A party may seek summary disposition under MCR 2.116(C)(7) on the ground that the claims asserted against it are barred by the statute of limitations. A motion brought under MCR 2.116(C)(7) does not require supportive material, Fisher Sand & Gravel Co, 494 Mich at 553, though the court may consider the affidavits, pleadings, and other documentary evidence presented by the parties, The Reserve at Heritage Village Ass'n v Warren Fin Acquisition, LLC, 305 Mich App 92, 111; 850 NW2d 649 (2014). Further, "the contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant." Fisher Sand & Gravel Co, 494 Mich at 553. In the absence of disputed facts, whether the statute of limitations bars an action is a question of law to be determined by the court. Moll v Abbott Laboratories, 444 Mich 1, 5-6; 506 NW2d 816 (1993).
Initially, we turn to plaintiff's assertion that defendant's failure to file its motion for summary disposition under MCR 2.116(C)(7) rendered improper the trial court's decision to grant summary disposition on statute of limitations grounds. This Court has previously rejected the argument that a trial court erred when it granted a defendant's motion for summary disposition brought under MCR 2.116(C)(8) when the proper authority was MCR 2.116(C)(7), as "[t]he mislabeling of a motion does not preclude review where the lower court record otherwise permits it." Ellsworth v Highland Lakes Dev Assoc, 198 Mich App 55, 57-58; 498 NW2d 5 (1993); see also Detroit News, Inc v Policement & Firemen Retirement Sys of City of Detroit, 252 Mich App 59, 66; 651 NW2d 127 (2002) ("If summary disposition is granted under one subpart of the court rule when it was actually appropriate under another, the defect is not fatal and does not preclude appellate review as long as the record permits review under the correct subpart." (quotation marks and citation omitted)). Because defendant's motion and supporting arguments made it clear that it was asserting a statute of limitations defense, and the trial court granted summary disposition on these grounds, we reject plaintiff's argument.
A legal malpractice claim accrues at the time an attorney discontinues serving the plaintiff in a professional capacity on the matters giving rise to the claim. MCL 600.5838(1). In accordance with the applicable statute of limitations, a plaintiff must bring a legal malpractice action within the later of (1) two years of the time a claim first accrues, MCL 600.5805(8), or (2) six months after the plaintiff discovered or should have discovered the existence of the claim, MCL 600.5838(2). Additionally, a statute of repose provides that a legal malpractice action shall not be commenced after the earlier of (1) the applicable period of limitations or (2) six years after the date of the act or omission that is the basis for the claim. MCL 600.5838b(1). "Unlike a statute of limitations, a statute of repose bars a claim after a fixed period of time from the defendant's act or omission," without regard to whether or not the plaintiff has discovered the claim. Nortley v Hurst, 321 Mich App 566, 572; 908 NW2d 919 (2017).
Though the statute of repose would uncategorically cut off plaintiff's right to initiate the present action six years after the alleged negligence occurred, the statute was enacted on January 2, 2013, after plaintiff's cause of action accrued. Michigan courts have not definitively resolved whether the Legislature "clearly and unequivocally" intended the statute of repose to apply retroactively. See Nortley, 321 Mich App at 571-572 (applying the statute of repose retroactively, without analyzing Legislative intent, based on an exception for statutes that are remedial or procedural in nature and that would not deny a vested right). However, because the present action is barred by the statute of limitations, we need not confront this issue.
However, in instances when the existence of a cause of action has been fraudulently concealed, operation of the statute of limitations is postponed as provided under MCL 600.5855:
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.In order for this provision to apply, the plaintiff must have no knowledge of the cause of action. Eschenbacher v Hier, 363 Mich 676, 681; 110 NW2d 731 (1961). However, a plaintiff will be held to know what he ought to have discovered through the exercise of ordinary diligence. Id. at 682. Further, "to be sufficiently apprised of a cause of action, a plaintiff need only be aware of a 'possible cause of action.' " Doe v Roman Catholic Archbishop of Archdiocese of Detroit, 264 Mich App 632, 643; 692 NW2d 398 (2004), quoting Moll, 444 Mich at 23-24.
The parties disagree on the date plaintiff's claim accrued, as they dispute when Mr. Reyes' professional representation of plaintiff ended. Defendant maintains that Mr. Reyes' representation ended when the Saginaw Circuit Court granted his motion to withdraw as counsel on the record on October 21, 2004, or when the court appointed substitute counsel on October 22, 2004. Plaintiff argues that, because the Saginaw Circuit Court issued no written order granting Mr. Reyes' motion to withdraw as required by MCR 2.602(A)(1), he continued to represent plaintiff until November 21, 2016, when he filed the present action. Further, plaintiff contends that Mr. Reyes also represented him on the Solicitation of Murder charge. Plaintiff's position is contradicted by the documentary evidence.
Generally, a legal malpractice claim accrues "on the attorney's 'last day of professional service' in the matter out of which the claim for malpractice arose." Kloian v Schwartz, 272 Mich App 232, 238; 725 NW2d 671 (2006), quoting Gebhardt v O'Rourke, 444 Mich 535, 543; 510 NW2d 900 (1994). Moreover, "[r]etention of an alternate attorney effectively terminates the attorney-client relationship." Mitchell v Dougherty, 249 Mich App 668, 683; 644 NW2d 391 (2002). Here, the record reveals that on October 21, 2004, the Saginaw Circuit Court granted on the record Mr. Reyes' motion to withdraw and that on October 22, 2004, the court appointed substitute counsel.
Although plaintiff correctly contends that MCR2.602(A)(1) requires all court orders to be in writing, signed, and dated, he has cited no authority for the proposition that failure to reduce an oral ruling made on the record regarding a motion to withdraw renders that ruling ineffective. Plaintiff first relies on People v Vincent, 455 Mich 110, 126; 565 NW2d 629 (1997), in which our Supreme Court held that "in order to qualify as a directed verdict of acquittal there must be either a clear statement in the record or a signed order of judgment . . . so that it is evident that there has been a final resolution of some or all the factual elements of the offense charged." (Emphasis added). Next, plaintiff relies on Coble v Green, 271 Mich App 382, 386-387; 722 NW2d 898 (2006), citing MCR 2.117(C)(2), in which this Court held that the nonpayment of attorney fees did not authorize an attorney to cease representation, as an attorney of record may not withdraw from an action except upon court order. Finally, plaintiff cites to Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977), which held that a final judgment of divorce did not become effective until it was reduced to writing and signed. In the present case, the Saginaw Circuit Court made a clear statement on the record expressly granting Mr. Reyes' motion to withdraw as counsel. The order at issue here is not a final disposition on the merits, such as a final order of divorce or a directed verdict of acquittal. Thus, the record of the previous case establishes that Mr. Reyes' last day of professional service, and the date of accrual of a legal malpractice claim, was on October 21, 2004.
In his appeal, plaintiff argues that Mr. Reyes' withdrawal on the very day trial was scheduled to begin amounts to malpractice. However, plaintiff's amended complaint does not allege this conduct to be the negligent act or omission underlying his claim. Further, any such act or omission would be barred under the statute of limitations for the same reasons that apply to plaintiff's claim stemming from the alleged failure to file a motion to suppress.
Even if the trial court's oral rulings had been ineffective, Mr. Reyes' representation would not extend indefinitely, as plaintiff maintains. Rather, this Court has held that "in cases in which counsel is not dismissed by the court or the client, in which no substitute counsel is retained, and in which the attorney fails to send affirmative notification of withdrawal from service, MCR 2.117(C)(1) likely extends the attorney's service in the matter until 'the time for appeal of right has passed.' " Kloian, 272 Mich App at 238 n 2. An appeal of right generally must be filed within 21 days after entry of the judgment, order, or decision appealed. MCR 7.104(A). Given that plaintiff's sentencing for the False Pretenses and Witness Intimidation charges took place on March 21, 2006, the time to file an appeal of right would have expired on April 11, 2006. Consequently, Mr. Reyes' representation likewise would have ended no later than April 11, 2006. Under an accrual date of either October 21, 2004, or April 11, 2006, the two-year period under MCL 600.5805(8) expired either on October 21, 2006, or on April 11, 2008.
Presumably in an effort to demonstrate that Mr. Reyes continued to represent him beyond the dates discussed above, plaintiff contends that various documents demonstrate that Mr. Reyes represented him on both the Witness Intimidation and Solicitation of Murder charges. Mr. Reyes admits in his affidavit that he represented plaintiff on the Witness Intimidation charge (Case Number 04-024765-FH), along with the False Pretenses charge (Case Number 02-021097), until October 21, 2004. However, Mr. Reyes denies representing plaintiff with respect to the Solicitation of Murder charge (Case Number 05-025865). Plaintiff, in turn, first relies on a hearing transcript dated February 4, 2004, regarding a Waiver of Arraignment. Although the case caption of the document references the docket numbers for all three charges, it does not indicate that Mr. Reyes made an appearance on behalf of plaintiff with respect to the Solicitation of Murder charge. Next, plaintiff references a Felony Complaint charging plaintiff with Witness Intimidation. As discussed, Mr. Reyes admits that he represented plaintiff on this charge until October 21, 2004, though this document is unsigned by Reyes. Finally, plaintiff provides the October 21, 2004 transcript in which the Saginaw Circuit Court granted on the record Mr. Reyes' motion to withdraw as counsel. None of these documents supports plaintiff's claim that Mr. Reyes provided representation regarding the Solicitation of Murder charge or that Mr. Reyes provided representation for the other two charges beyond October 21, 2004.
Plaintiff also argues that Mr. Reyes failed to challenge the Saginaw Circuit Court's alleged lack of jurisdiction over the Solicitation of Murder charge. As the record does not demonstrate that Mr. Reyes represented plaintiff on this charge, plaintiff's argument is unavailing. Moreover, plaintiff's amended complaint does not set forth any allegations regarding defective jurisdiction, and plaintiff may not assert an entirely new claim not pleaded in his complaint. See MCR 2.111(B)(1) (providing that a complaint must contain "[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend."). --------
Next, the parties dispute when plaintiff discovered or should have discovered the present claim pursuant to MCL 600.5838(2) and MCL 600.5855. Plaintiff maintains that he discovered the existence of the present claim in October 2016, when Mr. Reyes supplied to plaintiff the November 29, 2001 search warrant issued by the Bay County District Court. In contrast, defendant contends that the trial court correctly determined that, in light of the civil action filed by plaintiff in federal court, "[p]laintiff should have discovered this claim in 2006 at the latest." Again, plaintiff's position is contradicted by the documentary evidence.
On October 22, 2004, plaintiff executed a retainer agreement with Kevin Rieman, a law partner of Mr. Reyes, authorizing Mr. Rieman to file suit on his behalf against the Michigan State Police and General Motors Corporation. Though plaintiff contends that Mr. Reyes signed this agreement and continued to represent him, the agreement is signed only by Mr. Rieman. The action was initially filed in state court in December 2004 and was removed to federal court in January 2005. See Houthoofd, unpublished report and recommendation at 2. The action challenged the allegedly warrantless and unconstitutional searches, arrest, and detainment that occurred on November 25 and 26, 2001. Id. Those very allegations form the basis of the present action in which plaintiff claims that Mr. Reyes negligently failed to file a motion to suppress evidence collected during those allegedly unconstitutional searches. Thus, plaintiff cannot demonstrate that in late 2004 or early 2005, he would have been unable to discover the present claim through the exercise of reasonable diligence. To the contrary, plaintiff affirmatively signed an agreement retaining Mr. Rieman to file a complaint related to the searches.
Under any calculation of the statute of limitations, the present action is untimely. As concluded above, the two-year period beginning at the time of accrual under MCL 600.5805(8) expired on October 21, 2006 or, at the latest, on April 11, 2008. Given that plaintiff should have become aware of a possible claim in late 2004 or early 2005, the six-month period set forth by MCL 600.5838(2) would have expired in 2005, while the two-year period set forth by MCL 600.5855 would have expired in late 2006 or early 2007. Plaintiff did not initiate this action until November 21, 2016, long after the statute of limitations expired. We thus conclude that the trial court properly granted defendant's motion for summary disposition.
C. QUESTIONS OF FACT REGARDING THE MERITS
Finally, plaintiff maintains that the trial court erred by granting defendant's motion for summary disposition when questions of fact remained regarding Mr. Reyes' negligence and the merits of his claim. Again, we disagree.
We review a trial court's summary disposition ruling under MCR 2.116(C)(7) de novo. Fisher Sand & Gravel Co, 494 Mich at 553. As acknowledged by the trial court in denying plaintiff's own motion for summary disposition, "[t]here clearly remains a question of fact regarding whether defendant was negligent." However, in the absence of disputed facts regarding the limitations period, whether a cause of action is barred by the statute of limitations is a question of law to be determined by the court. Moll, 444 Mich at 5-6. As discussed above, the documentary evidence conclusively establishes that the statute of limitations expired long before plaintiff filed the present action. Accordingly, any questions of fact relating to the merits of the legal malpractice claim are immaterial to the trial court's decision to grant summary disposition under MCR 2.116(C)(7).
Plaintiff also contends that the trial court inappropriately resolved a question of fact by concluding that defendant "actively represented" him. However, plaintiff mischaracterizes the trial court's statement. In determining when Mr. Reyes' representation of plaintiff ended, the trial court stated, "Defendant actively represented plaintiff in that criminal case until October 21, 2004." It is clear that the trial court was not resolving a question of fact regarding Mr. Reyes' negligence but rather was determining Mr. Reyes' last date of professional service, which was established by documentary evidence.
Next, plaintiff maintains that he was denied the opportunity to conduct further discovery and that defendant failed to respond to his discovery requests. Specifically, plaintiff states that he sought discovery on the following matters: (1) phone calls and letters requesting the $22,700 that was paid to defendant; (2) the absence of a motion to suppress; (3) no written order to withdraw; and (4) that the malpractice had already occurred before the oral ruling by the trial court on October 21, 2004. With the exception of the written order to withdraw, these matters relate to the merits of plaintiff's claim and not to the trial court's basis for granting summary disposition. For the reasons articulated above, discovery into whether a written order granting Mr. Reyes' motion to withdraw was entered would not alter the outcome of the statute of limitations issue. Thus, plaintiff has failed to demonstrate that there was a " 'fair likelihood that further discovery [would] yield support for [his] position.' " See Anzaldua v Neogen Corp, 292 Mich App 626, 636; 808 NW2d 804 (2011), quoting Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33-34; 772 NW2d 801 (2009) (holding that the plaintiff failed to demonstrate a fair likelihood that further discovery would refute the trial court's conclusion that the action was time-barred).
Finally, there is no merit to plaintiff's contention that the trial court failed to consider his claim that defendant fraudulently concealed his alleged negligence. Although the trial court never directly discussed fraudulent concealment in its opinion, it considered and rejected plaintiff's allegation that he was unable to discover the cause of action before October 2016:
Plaintiff argues that he discovered that the 2001 search occurred illegally without a warrant when relatives obtained a copy of the search warrant in October 2016. However, documentary evidence supplied to this court by plaintiff contradicts the claim that plaintiff was unaware of this issue until October 2016. Plaintiff provided this court with a deposition from a 2005 civil case in which he was the plaintiff. This civil case . . . concerned the actions of law enforcement during the investigation of the criminal case in which defendant represented plaintiff, including plaintiff's claim that officers violated his rights with the November 2001 search.Irrespective of any alleged fraudulent concealment, the trial court concluded that, with the exercise of due diligence, plaintiff should have been aware of his cause of action "in 2006 at the latest," (Id. at p 5). Accordingly, plaintiff's arguments are unavailing, and we conclude that the trial court's decision to grant summary disposition under MCR 2.116(C)(7) was appropriate.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola