Opinion
Case No. 1:02-CV-122
April 8, 2003
John H. Vetne/Lois Jewell, for plaintiff(s).
Joel E. Krissoff/Michelene Bernice Pattee, for defendant(s).
OPINION
Plaintiff, Crystal Tapia (f/k/a Crystal Heltzel) ("Plaintiff"), brought this action against her former attorney, Joseph Haas ("Haas") and his law firm, Dresser, Dresser, Gilbert Haas, P.C. (the "Law Firm") (collectively "Defendants"), for, inter alia, intentional infliction of emotional distress and two counts of legal malpractice, stemming from a custody agreement that Haas drafted concerning Plaintiff's daughter. On August 14, 2002, the Court granted summary judgment in favor of Defendants on all of Plaintiff's claims, except for Plaintiff's intentional infliction of emotional distress claim (Count 3) and legal malpractice claims (Counts 5 and 6). The parties subsequently engaged in discovery. Before the Court is Defendants' renewed motion for summary judgment on Plaintiff's remaining claims. The Court will grant Defendants' motion because Plaintiff's claims are barred by the applicable statutes of limitations.
Factual Background
Plaintiff married Charles Heltzel ("Heltzel") on July 1, 1995, and they had one child, Katelynn Heltzel ("Katelynn"), born on May 2, 1996. (Plaintiff Dep. at 3, 12.) In May 1997, Plaintiff filed for divorce from Heltzel and moved in with her parents, John and Robin Yonkers (the "Yonkers"), in Elkhart, Indiana. (Robin Yonkers Dep. at 35.) On or about May 5, 1997, Plaintiff hired Haas, as a member of the Law Firm, to represent her in the divorce proceeding in Cass County, Michigan. (Compl. ¶ 9, Defs.' Br. Supp. First Mot. Summ. J. Ex. 3 at 13.) Haas' $2,000.00 retainer fee was paid by the Yonkers. (Compl. ¶ 9.)
In October 1997, Plaintiff and Heltzel, through their attorneys, presented to the Cass County Court a stipulated divorce judgment. (Compl. at ¶ 10.) In the divorce judgment, Plaintiff and Heltzel agreed to share joint custody of Katelynn and that Katelynn would live with Plaintiff. (Compl. ¶ 10.) At that time, Plaintiff and her daughter were residing with the Yonkers. (Compl. ¶¶ 8, 11.) While the divorce judgment was still pending, Plaintiff moved out of the Yonkers' house to live with her then-boyfriend and current husband, Oscar Tapia ("Tapia"), in Plymouth, Indiana. (Plaintiff Dep at 17-19; Robin Yonkers Dep at 36.) Katelynn continued to live with the Yonkers.
The reasons for, and intended length of, the child's stay with her grandparents are disputed, but that dispute is irrelevant to the issues presently before the Court.
At Plaintiff's request, Haas subsequently drafted a proposed custody modification order to the divorce judgment, titled "Order Modifying Divorce Judgment," under which the Yonkers would retain physical custody of Katelynn until Plaintiff notified the Cass County Friend of Court in writing that she was prepared to assume physical custody of Katelynn. (Order Modifying Divorce Judgment, Defs.' Br. Supp. Renewed Mot. Summ. J., Ex. 4; Plaintiff Dep. at 29, 33-34; Haas Dep. at 18.) Haas states that he was contacted by Heltzel's attorney, Jeffrey Slocombe ("Slocombe"), who informed Haas that Heltzel did not approve of the proposed custody modification due to Heltzel's concerns regarding past molestation charges brought against Tapia. (Haas Dep. at 18, 22-23, 26-28.) Slocombe stated that Heltzel would only sign the proposed custody modification if it was revised to require the approval of the Yonkers in order for Plaintiff to regain physical custody of Katelynn. (Id.) Both Haas and the Yonkers state that the "veto" provision was added only at the insistence of Heltzel, and not the Yonkers. (Haas Dep. at 22-23; Robin Yonkers Dep. at 40-41.)
Plaintiff, in her Complaint, suggests that the Yonkers were the impetus for the "veto" provision based on their alleged racial animus toward Tapia's Hispanic ethnicity. (Compl. ¶¶ 16-17.) Neither the molestation charges pending against Tapia, nor Heltzel or the Yonkers' alleged knowledge thereof, were mentioned in the Complaint.
Robin Yonkers picked up a copy of the proposed custody modification, including the "veto" language from Haas to deliver to Plaintiff, since Haas did not have Plaintiff's new address and telephone number. (Haas Dep. at 42-44.) Haas states that he discussed the addition of the "veto" provision with Plaintiff via telephone, and that Plaintiff understood and agreed to the addition of the language requiring the Yonkers' consent to regain custody. (Haas Dep. at 52-53.) Before the proposed custody modification was entered with the Cass County Circuit Court, Plaintiff and Heltzel signed and stipulated to the contents, as did their attorneys. (Order Modifying Divorce Judgment, Defs.' Renewed Mot. Summ. J., Ex. 5; Haas Dep. at 52; Compl. ¶ 10.) The Order Modifying Divorce Judgment was entered on November 20, 1997, and the stipulated Divorce Judgment was entered the next day.
In contrast to the allegations in the Complaint, Plaintiff contends in her deposition that she did not knowingly sign the custody modification order that was entered by the court. (Plaintiff Dep. at 34-36, 69.) Rather, Plaintiff alleges that the Yonkers tricked her into signing it by representing to her that the document she was signing was actually the original custody modification order, which did not contain the "veto" provision. (Id.)
Approximately one month later, Plaintiff sought to have her daughter move to Indiana to be with her, but the Yonkers refused to provide their consent. (Robin Yonkers Dep. at 24, 44-45, 51.) Plaintiff contacted Haas in March 1998 to inquire about Haas representing Plaintiff in the custodial proceedings to regain custody of Katelynn, and Haas told Plaintiff that he would not represent her until she paid her outstanding legal expenses from the divorce. (Plaintiff Dep. at 48-50; Haas Dep. at 60-61.) Haas states that he provided no further legal services to Plaintiff concerning custodial issues after that telephone conversation, and the last legal service of any kind that Haas provided to Plaintiff was a June 4, 1998, telephone conference regarding Heltzel's default on an automobile loan. (Haas Aff. ¶ 6; Haas Billing Invoices, Defs.' Br. Supp. Mot. Summ. J., Ex. 3.) Plaintiff did not hire new legal counsel for approximately two years. Plaintiff hired her current attorney, Lois Jewell ("Jewell") in approximately February 2000, and in March 2000, Plaintiff filed a petition with the Cass County Circuit Court seeking custody of Katelynn. (Plaintiff Dep. at 63-65, Compl. ¶¶ 26-28.)
On July 25, 2001, the Law Firm initiated a small claims action against Plaintiff for unpaid legal fees. (Haas Aff. ¶ 8.) A process server filed an affidavit of service indicating that he personally served Plaintiff with the affidavit and claim on September 5, 2001. (Defs.' Br. Ex. 9 at 2.) Plaintiff denies that she was personally served. On October 1, 2001, a non-appearance default judgment was entered against Plaintiff in the amount of $2,179.28. (Defs.' Br. Ex. 8.)
Plaintiff lost her custody action at the circuit court level when the court applied the "established custodial environment" standard fromRummelt v. Anderson, 196 Mich. App. 491, 493 N.W.2d 434 (1992), to hold for the Yonkers. (Circuit Ct. Family Div. Order of July 3, 2002, Defs.' Renewed Mot. Summ. J. Ex. 6.) The Michigan Court of Appeals reversed and remanded, holding that the application of the Rummelt standard was not appropriate. (Id.) The court of appeals ordered the circuit court to apply a standard where custody would be granted to a third party upon a showing, by clear and convincing evidence, that the change in custody would be in the best interest of the child. (Id.) Following a six-day trial on remand, the circuit court determined on July 3, 2002, that it would be in Katelynn's best interests to remain in the Yonkers' custody. (Id.)
Standard of Review
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
A motion for summary judgment is properly supported if the moving party shows that there is no evidence to support the non-moving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54 (1986). If the moving party makes its showing, the non-moving party must demonstrate with "concrete evidence" that there is a genuine issue of material fact for trial. Id.; Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party when evaluating a summary judgement motion.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 578-88, 106 S.Ct. 1348, 1352-58 (1986). It may, however, grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356).
A party cannot resist a motion for summary judgment with conclusory statements and affidavits. Williams v. Ford Motor Co., 187 F.3d 533, 544 (6th Cir. 1999); McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). "Plaintiffs cannot challenge [a] motion for summary judgment by relying on allegations contained in their complaint or on affidavits that merely state conclusory allegations." Williams, 187 F.3d at 544. Chief Judge Bell recently addressed this issue in Varnado v. Dawson Manufacturing Co., No. 00CV60, 2001 WL 1798477, at *6 (W.D.Mich. July 10, 2001), and stated: "Conclusory allegations or subjective beliefs set forth in an affidavit fail to create a genuine issue of fact for trial."
Discussion
Subsequent to the Court's August 14, 2002, decision, the parties engaged in discovery, including taking the depositions of Plaintiff, Haas, and Robin Yonkers.
I. Plaintiff's Intentional Infliction of Emotional Distress Claim
Plaintiff filed her intentional infliction of emotional distress claim on February 22, 2002. In Michigan, an intentional infliction of emotional distress claim must be filed within three years of the time that all four elements of the tort have occurred. Mays v. Three Rivers Rubber Co., 135 Mich. App., 42, 49, 352 N.W.2d 339, 342 (1984). The four elements of the tort of intentional infliction of emotional distress are: "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) sever emotional distress." Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602, 374 N.W.2d 905, 908 (1985).
The issue before the Court is when Haas began experiencing severe emotional distress. In the Court's August 14, 2002, Memorandum Order, the Court concluded that "Plaintiff asserts that her severe emotional distress (as opposed to lesser distress) began in July of 2000, when she realized for the first time that she might never regain custody of her daughter." (Mem. Order of 8/14/02.) However, in her deposition, taken after the Court's Memorandum Order was issued, Plaintiff was asked when the distress that she contends constituted "intentional infliction of emotional distress" began. Specifically Plaintiff was asked:
Q. What facts are you aware of that you think that Mr. Haas did or didn't do that constitute intentional infliction of emotional distress?
. . .
A. The fact that next time I seen [the custody modification order] it was a totally different one than the one that I seen that I signed that my parents brought to me. And it was because I drove up here to get a copy of it myself and then was in tears from Michigan back to Plymouth because I didn't know that it was that bad or was going to be that difficult to get her moved back in with.
And the fact that just because I didn't have money to pay them they couldn't tell me that that's how difficult it was going to be to get her back, or they didn't have enough common sense or, you know, basic courtesy to say, "Okay. You understand that this is what you're going to have to do and it's going to be, you know, pretty much approved and signed by your mom and dad. And, you know, you're going to have to get your parent's permission to have your daughter back. If that's the case, I never would have done it, if I knew that I was going to have to get their permission to have her back.
Q. So anything else?
A. No.
Q. If I could summarize what you're saying is, Mr. Haas allowed you to enter into this order modifying judgment of divorce, Exhibit 2, is the conduct that you believe, all the circumstances surrounding that, are the conduct that constitutes infliction [of] emotional distress, in your view?
A. Yes.
Q. And that distress started within a couple of months after the entry of the order when you saw it and at the same time your parents wouldn't give Katelynn's custody back?
A. Yes.
(Plaintiff Dep. at 69-70 (emphasis added).) Thus, Plaintiff concedes that she was suffering from emotional distress as soon as she read the custody modification order "within a couple of months after the entry of the order." While Plaintiff arguably did not fully comprehend the intricacies of Rummelt or its ramifications until the Cass County referee issued his recommendation that the Yonkers retain custody of Katelynn, Plaintiff was aware sometime in early 1998 that she could not easily retain custody of Katelynn. Thus, according to Plaintiff's own statements, she began to suffer from the emotional distress upon which she bases her claim almost four years before she filed the instant action. Accordingly, Plaintiff's claim is barred by the three-year statute of limitations.
The Court thus does not need to reexamine the issue of whether Plaintiff has sufficiently alleged that Haas acted with intent or recklessness, or that the claimed omissions on Haas' part constituted "extreme and outrageous" conduct. Therefore, the Court will grant Defendants' motion for summary judgment on Plaintiff's intentional infliction of emotional distress claim.
II. Plaintiff's Legal Malpractice Claims
Plaintiff filed her legal malpractice claims against Defendants on February 22, 2002. In Michigan, a legal malpractice action must be filed within two years of the date that the attorney discontinued serving the plaintiff, M.C.L. § 600.5805(5), or within six months after plaintiff discovers or should have discovered her claim, which ever is later, M.C.L. § 600.5838.
A. The Two-Year Statute of Limitations
In Michigan, the statute of limitations for a legal malpractice action is two years. M.C.L. § 600.5805(5). Accrual commences "at the time [the professional] discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." M.C.L. § 600.5838(1). An attorney is considered by the courts to have been discharged when the client hires another attorney to take over the litigation. Estate of Mitchell v. Dougherty, 249 Mich. App. 668, 684, 644 N.W.2d 391, 400 (2002) (per curiam) (stating that "no formal discharge by the client is required, and the termination of an attorney-client relationship can be implied by the actions or inactions of the client").
The issue before the Court is when Haas discontinued serving Plaintiff. In the Court's August 14, 2002, Memorandum Order, the Court was not presented with evidence, beyond the pleadings, regarding when Plaintiff discharged Haas. The only evidence before the Court at that time was that following the entry of the Divorce Judgment, Defendants twice rebuffed Plaintiff's requests for additional representation due to Plaintiff's outstanding legal bills. Thus, because there was no evidence of precisely when Haas ceased representing Plaintiff, the Court concluded that Haas stopped representing Plaintiff when Jewell entered an appearance on Plaintiff's behalf for custody proceedings in March 2000. As this date was within two years of the date that Plaintiff filed her malpractice suit, the Court held that the suit was not barred by the statute of limitations.
Defendants contend that Haas' representation of Plaintiff in her custody dispute ceased in November 1997 upon the filing of the Divorce Judgment, because Haas rebuffed Plaintiff's subsequent requests for representation. The Court, however, need not reach this question, because Plaintiff has admitted that she hired other representation over two years prior to the time she filed suit. In her deposition, Plaintiff was presented with a copy of a letter dated February 23, 2000, that Jewell wrote to the Yonkers on Plaintiff's behalf. (Jewell letter to Yonkers of Feb. 23, 2002, Defs.' Renewed Mot. Summ. J. Ex. 8.) In that letter, written one day before the statue of limitations would have run, Jewell referred to Plaintiff as "[m]y client." (Id. at 1.) Plaintiff was then asked the following:
Q. Do you know how long before this letter you first met with Ms. Jewell?
A. I think it was only a couple of weeks. Maybe two or three weeks.
Q. Did you have the files when you met with Ms. Jewell or did she have to get the files?
A. What file?
Q. The divorce file.
A. Like, my divorce papers and stuff like that?
Q. Yes.
A. Yes, I did.
. . .
Q. So you had most of the necessary documents?
A. Yes.
Q. Did you hire Ms. Jewell at the time that you first met with her?
A. Yes.
Q. She agreed to take on the case and represent you?
A. Yes.
Q. So at that point in time or the time you first met with Ms. Jewell you certainly didn't consider Mr. Haas representing you?
A. No.
(Plaintiff Dep. at 63-65.) Thus, if Plaintiff hired Jewell to represent her two to three weeks before Jewell wrote the February 23, 2000, letter, Jewell's representation of Plaintiff began between February 2 and February 9, 2000. Accordingly, Haas' representation ceased at that time. Since even the latest date in that time frame is beyond two years from the date that Plaintiff filed her malpractice claim, Plaintiff's claim is barred by the two-year malpractice statute of limitations.
B. The Six-Month Discovery Rule
Under the six-month discovery rule, a plaintiff's claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered: (1) an injury; and (2) the causal connection between the plaintiff's injury and the defendant's breach.Moll v. Abbott Labs., 444 Mich. 1, 16, 506 N.W.2d 816, 824 (1993). A plaintiff is aware of a possible cause of action when the plaintiff becomes aware of an injury and its possible cause. M.C.L. § 600.5805(4); M.C.L. § 600.5838; see also Gebhardt v. O'Rourke, 444 Mich. 535, 544-45, 510 N.W.2d 900, 904 (1994).
Plaintiff concedes that she discovered the " Rummelt component of her claim more than six months before the complaint was filed." (Pl.'s Opp'n Defs.' Renewed Mot. Summ. J. Br. Opp'n at 7.) However, Plaintiff contends that she only discovered between January and May 2002, that "her ex-husband (and parents) knew about the charges against Oscar Tapia, attorney Haas knew that they knew, attorney Haas knew that this was the main reason for the Yonkers' veto power in the document, yet Hass [sic] told plaintiff none of this." (Id.) Thus, Plaintiff contends that Haas did not take steps to ensure that Plaintiff entered into the custody modification with requisite informed consent. (Id.)
Plaintiff has essentially alleged new facts to support her malpractice claim against Haas, namely that Haas knew or was aware of the Yonkers' intentions not to return Katelynn to Plaintiff as long as Plaintiff was involved with Tapia. However, Plaintiff has not presented any new evidence that supports her allegations. Plaintiff thus cannot rely on this evidence to overcome Defendants' motion for summary judgment.
Additionally, both Plaintiff's original theory of malpractice — that Plaintiff would not have signed the custody modification if she was aware of Rummelt — and Plaintiff's new ground — that Haas withheld information regarding the Yonkers' intent to retain custody — arise from the same alleged injury. The injury alleged in both instances is that Plaintiff was denied the ability to retain custody of Katelynn due her uninformed signing of the custody modification. Under Gebhardt, a plaintiff must merely discover a "possible" cause of action for the discovery rule to begin accruing. Gebhardt, 444 Mich. at 544-45, 510 N.W.2d at 904. Thus, as Plaintiff concedes that she discovered a possible cause of her alleged malpractice injury no later than the summer of 2000, (Plaintiff Dep. at 92; Plaintiff Aff. ¶ 22), Plaintiff cannot rely on her new theory to avail herself of the six-month discovery rule.
C. Fraudulent Concealment
Finally, Plaintiff asserts that even if her malpractice claim is barred by both the two-year statute of limitations and the six-month discovery rule, her suit is still timely based on Haas' fraudulent concealment of his awareness of the Yonkers' intentions not to return custody of Katelynn to Plaintiff while she was involved with Tapia. Essentially, Plaintiff contends that at the time Haas drafted the custody modification order giving "veto" power to the Yonkers, Haas was aware that Heltzel and the Yonkers were conspiring to make it legally impossible for Plaintiff to regain custody of Katelynn. Under M.C.L. § 600.5855:
an action may be commenced within two years after the plaintiff discovers or should have discovered the cause of action. Brownell v. Garber, 199 Mich. App. 519, 523-24, 503 N.W.2d 81 (1993). The fraud must have been manifested by an affirmative act or misrepresentation, unless the defendant owed an affirmative duty to disclose information because of a fiduciary relationship with the plaintiff. Id. at 527, 503 N.W.2d 81. The plaintiff has the burden of establishing the alleged fraud. Id. at 531, 503 N.W.2d 81.Crowder v. Roether, No. 232509, 2002 WL 31929277, at *2 (Mich.Ct.App. Nov. 15, 2002) (per curiam) (emphasis added).
Plaintiff's argument again fails because Plaintiff has not supported her allegations with any evidence to overcome Defendants' motion for summary judgment. It is uncontested that Heltzel was aware of the molestation charges against Tapia, and that Heltzel's attorney communicated to Haas that Heltzel was unwilling to agree to the custody modification without some check on Plaintiff's ability to gain custody of Katelynn. However, Plaintiff has provided no evidence, other than her own contentions, that the Yonkers were aware of Tapia's molestation charges, or that the Yonkers sought the "veto" provision in order to permanently deprive Plaintiff of custody of Katelynn. Additionally, Plaintiff has provided no evidence that Haas knew that the Yonkers were aware of Tapia's molestation charges or the Yonkers' alleged intentions to retain custody of Katelynn at the time Haas advised Plaintiff as her attorney. This lack of factual support is fatal to Plaintiff's alternative theory, because "[p]laintiffs cannot challenge [a] motion for summary judgment by relying on allegations contained in their complaint or on affidavits that merely state conclusory allegations." Williams, 187 F.3d at 544. Accordingly, the Court will grant Defendants' motion for summary judgment on Plaintiff's malpractice claims.
Conclusion
For the foregoing reasons, the Court will grant Defendants' renewed motion for summary judgment (docket no. 31).
An Order consistent with this Opinion shall be entered.