Self-Represented Party’s Legal-Malpractice Lawsuit Dismissed For Being Untimely Filed
The trial court properly dismissed the plaintiff’s legal-malpractice claim against the defendants because she did not file her complaint within the applicable two-year statute of limitations, the Michigan Court of Appeals has ruled.
In Joseph v Oswald, et al. (Docket No. 369994), the defendants and their law firm represented the plaintiff in an employment discrimination case against the U.S. Department of Veterans Affairs (the VA). The U.S. District Court dismissed the plaintiff’s claims on September 23, 2021. At some point during the case, the plaintiff decided to proceed pro se (i.e., she represented herself in the proceedings).
On November 16, 2021, the defendants filed a motion for leave to withdraw their representation in U.S. District Court and the plaintiff, proceeding pro se, filed a notice of appeal to the U.S. 6th Circuit Court of Appeals. On May 2, 2022, the U.S. District Court denied the plaintiff’s motion for reconsideration and granted the defendants’ motion for leave to withdraw their representation. On December 27, 2022, the U.S. 6th Circuit Court of Appeals affirmed the U.S. District Court’s decision. The plaintiff appealed to the U.S. Supreme Court, which denied her petition on October 2, 2023.
The plaintiff, still continuing pro se, filed this legal-malpractice action in Genesee County Circuit Court on October 19, 2023. She alleged breach of contract, professional negligence and common-law negligence. The trial court dismissed the plaintiff’s complaint, ruling it was time barred under MCL 600.5805(8) and MCL 600.5838b(1)(a). The trial court found the defendants’ representation of the plaintiff ended on September 23, 2021, “because that was the date of the final judgment in the underlying case and because defendants did not represent plaintiff after that date.” The plaintiff appealed.
The Court of Appeals affirmed.
“While we do not agree with the entirety of the trial court’s reasoning, we agree with the court’s ultimate conclusion that there is no genuine factual dispute that plaintiff’s legal-malpractice claim accrued outside of the applicable limitations period, and therefore defendants are entitled to summary disposition under MCR 2.116(C)(7),” the Court of Appeals said.
Judge Thomas C. Cameron, Judge Kristina Robinson Garrett and Judge Philip P. Mariani were on the Court of Appeals panel that issued the unpublished opinion.
Communications
After the U.S. District Court dismissed the plaintiff’s claims, the defendant (TELG) scheduled an October 1, 2021, call with the plaintiff to discuss the U.S. District Court’s order. The day before the call, defendant Tom Harrington emailed the plaintiff and said, in relevant part: “I’m writing in anticipation of our call tomorrow. … For the reasons I’m going to review with you in a moment, Scott and I believe it is not in your best interest to appeal the judge’s [order]. … The magistrate judge determined that the evidence was insufficient to overcome summary judgment. While we disagreed then with the court and disagree now with the court’s adoption, it is our considered review that your chances on appeal are very low, maybe less than 10%. The reason for this is that courts of appeal routinely defer to district court determinations at summary judgment and we believe the U.S. Court of Appeals for the Sixth Circuit would do the same here. We do not believe it is a good investment of your money to proceed with something that is likely to be unavailing. I have prepared and attached a draft appeal notice for you to file, should you wish to proceed pro se. To the extent that you hire alternate counsel, we will cooperate with that counsel by sending your file to her/him and will do expeditiously. Your deadline to appeal is Monday, November 22, 2021. We can discuss tomorrow.”
On October 8, 2021, the defendant sent the plaintiff another email, stating in relevant part: “We have compiled most of the documents you requested and included additional ones that we thought would be helpful. The transcript is not available until Oct. 27th and we do not have a copy of your original EEO complaint because we did not file it. We will send the thumb drive with all the documents loaded onto it in the mail tomorrow but to give you access right away, we created a Sharefile link and included it below.”
The plaintiff then emailed Harrington on October 19, 2021, with questions about the evidence that had been presented to the U.S. District Court. Her email began as follows: “Tom, Please help me out by letting me know about some of the questions listed below that can help me if they were part of the evidence ….” This was followed by questions about whether the plaintiff could use certain pieces of evidence in a pro se briefing. Harrington emailed the plaintiff that same day and answered her questions, advising her what documents she could use and what arguments she could make. Harrington, at the close of that email, wrote: “As a reminder, your deadline to appeal is Monday, November 22, 2021. We understand that you will take the necessary actions to appeal, pro se, and we prepared and sent you a draft appeal notice for you to file. … Scott will shortly send a ‘close out’ email to you, ending our representation.”
The next day, on October 20, 2021, the defendant emailed the plaintiff and said: “As TELG has completed its work on your behalf, I write to let you know that I am closing your file at TELG. This will now end TELG’s … representation of you.” (Note: The next day, October 21, 2021, the plaintiff filed her pro se motion for reconsideration in the U.S. District Court, which was denied.)
The plaintiff filed this legal-malpractice suit against the defendants on October 19, 2023. The defendants filed a motion for summary disposition, arguing the claims were not brought within the applicable two-year statutory limitations period. The defendants asserted that, at the latest, the attorney-client relationship existed until October 8, 2021, but that the relationship “most likely terminated on September 23, 2021, or September 30, 2021.”
The Genesee County trial court found the defendants’ representation ended on September 23, 2021, because that was the date of the final judgment in the underlying case and because the defendants had “made it clear” they did not represent plaintiff after that date. As a result, the trial court dismissed the plaintiff’s claim as untimely. The plaintiff filed a motion for reconsideration, which was denied. The plaintiff appealed.
No ‘Formal Discharge’ Needed
The Court of Appeals began its analysis by noting the statute of limitations for legal-malpractice claims is two years.
“Plaintiff filed her complaint on October 19, 2023, meaning that if her claim accrued prior to October 19, 2021, the complaint was untimely,” the Court of Appeals wrote. “A malpractice claim against a state-licensed professional, such as an attorney, accrues ‘at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose.’”
The “general rule” is that 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,” the Court of Appeals observed. In this case, the defendants’ legal services ended “at the latest, when plaintiff made clear to defendants that she would be proceeding pro se with her motion for reconsideration and appeal, thereby relieving defendants of their obligation to represent plaintiff and terminating the attorney-client relationship,” the appeals court explained. “Contrary to plaintiff’s assertion, no formal discharge by a client is required to terminate the attorney-client relationship. … Instead, ‘termination of an attorney client relationship can be implied by the actions or inactions of the client.’ And here, plaintiff’s course of conduct served to terminate the attorney-client relationship prior to October 19, 2021.”
In the defendants’ September 30, 2021, email, “they advised plaintiff that pursuing an appeal would likely not be worth the cost and informed plaintiff of her options, including her ability to proceed pro se or with other retained counsel,” the Court of Appeals said. “Though neither party takes a position as to what specific date plaintiff communicated to defendants that she had made the decision to proceed pro se, it is clear from the record that the decision was made, and defendants were aware of plaintiff’s intent to proceed pro se, prior to October 19, 2021. Following defendants’ September 30, 2021, email and the parties’ call on October 1, 2021, plaintiff requested that defendants send her the summary judgment briefing and other documents, which defendants did on October 8, 2021. And it is evident from plaintiff’s October 19, 2021, email to defendants, in which she sent defendants several questions about what evidence she could rely on in her pro se briefing, that plaintiff had already communicated and begun moving forward with her decision to proceed pro se at some prior date. Because the record makes clear that the attorney-client relationship ended prior to October 19, 2021, plaintiff’s complaint was untimely and the trial court correctly granted defendants’ motion for summary disposition.”
The plaintiff, however, argued the statute of limitations did not start running until October 20, 2021, when the defendants sent their email notifying her that “[t]his will now end TELG’s … representation of you.” The Court of Appeals rejected this argument, noting “[t]his Court has held ‘that in the absence of an attorney’s dismissal by the court or the client, and in the event that an attorney sends notice of withdrawal as his or her final act of professional service, a legal malpractice claim with respect to a particular matter that has been finally dismissed by order of the trial court accrues at the time affirmative notification of withdrawal is sent.’ … Under this rule, assuming plaintiff took no preceding actions that expressly or impliedly terminated the attorney-client relationship, plaintiff’s argument has merit. But because … plaintiff took actions that served to terminate the attorney-client relationship prior to defendants’ October 20 email, this rule is not applicable to this case. Rather, the record as a whole makes clear that defendants’ October 20 email, along with their email the day prior regarding the close-out of her file, functioned only to formally memorialize a termination of representation that had, through plaintiff’s earlier conduct, already occurred.”
The plaintiff also emphasized that the defendants “did not discontinue their services to her” and, in support of this, “point[ed] to the fact that defendants continued to act relative to her case, such as by sending her documents and answering her legal questions.” Addressing this argument, the Court of Appeals said, “It is clear from the record that, in performing the activities raised by plaintiff, defendants were attempting to facilitate plaintiff’s post-termination transition to pro se status. … Plaintiff also points to the fact that defendants did not move to withdraw their appearance on her behalf in the district court until November 16, 2021, and that the district court did not grant the motion until May 2, 2022. But defendants’ formal withdrawal from the case, like their other post-termination actions such as closing out plaintiff’s file, was simply a ‘remedial effort concerning past representation.’ … Plaintiff’s decision to proceed pro se and accompanying actions to that effect served to terminate the attorney-client relationship and ‘[n]o additional court action was necessary to effectuate that discharge.’”
The underlying record “makes clear that the attorney-client relationship between plaintiff and defendants terminated prior to October 19, 2021,” the Court of Appeals concluded. “Accordingly, plaintiff’s complaint was filed outside of the applicable two-year statute of limitations, and defendants were entitled to summary disposition pursuant to MCR 2.116(C)(7). Because we conclude the trial court reached the corrected result, albeit for slightly different reasons, we affirm.”
