*1 BIBERSTINE v WOODWORTH Court of Malpractice—State Licensed Person— of Actions — Malpractice. Discovery of Last Treatment — must based on An action of time be within serving or discovers, of the time when within reasonable should of (MCLA 600.5805[3], is later whichever 27A.5838). 27A.5805[3], Malpractice—Bankruptcy—Attorney 2. Limitation to Debt —Accrual of Cause Client —Failure Schedule Action. attorney by against for his of action a client A cause arising from inaction or accrues for be at time when it can said statute of limitations attorney time to act but has failed to do has had a reasonable therefore, so; against action client in a attorney’s attorney a certain failure to schedule based on proceeding, alleged occur- in a debt attorney the debt within a red when the failed requested to do so client. Attorney Malpractice Bankruptcy— 3. — Jury Debt —Accrual of Action — Ques- Failure Schedule tion. certain failure to schedule a The issues of whether [1-4] [3] What statute of limitations When statute 1216. Am 7 Am Jur Jur 2d, Attorneys at 2d, Attorneys References malpractice. 18 ALR3d 978. of limitations performance at Law 184-187. governs Law § Points begins to run §§ professional damage in Headnotes action upon services. against 49 ALR2d Opinion of the Court debt in action constituted his client’s alleged malpractice which the are both fact be resolved *2 Malpractice— Bankruptcy —Failure to Schedule Debt —Accrual Cause of Action.
The statute of limitations for a suit based on an bankruptcy proceeding failure in his client’s requested by schedule a certain debt as the client should start bankruptcy, the time the client was because until then the could have bankruptcy plain- court to amend the and malpractice. tiff would have had a claim for not Appeal Huron, Mahinske, Paul R. J. Sub- (Docket 19, 1977, mitted October 31073.) at Detroit. No. appeal 7, Decided March 1978. Leave to applied for.
Complaint by Crane M. Biberstine damages malpractice. James F. Woodworth for judgment ap- Accelerated for defendant. Plaintiff peals. Reversed and remanded. Katkowsky, C.,
Keller & P.
Woodworth Woodworth, & for defendant. J., T. Before: M. P. Burns W. R. JJ. Brown,*
Per Curiam. This case involves a claim of attor- ney malpractice. granted The circuit court acceler- 116.1(5), judgment, 1963, ated after it found applicable that the statute of limitations had run. appeals, Plaintiff we reverse. judge, sitting Appeals by assignment.
* Circuit on the Court of Woodworth Opinion op the Court personal Plaintiff retained defendant to file a bankruptcy original petition in 1970. The was filed 17, in the court on March 1971, and 19, amended 1971. Neither sched- Michigan uled a debt owed to the Motor Vehicle Accident Claims Fund. Plaintiff attempted several times to have defendant sched- including filing debt, ule this for investi- gation with the State Bar Grievance Board on November 1971. Plaintiff received his 1972, which did Michigan not include the debt to the Motor Vehi- cle Accident Claims Fund. This suit was filed December parties agree
Both
statute of
years,
600.5805(3);
limitations is two
MCLA
27A.5805(3), and that
the accrual of the claim is
governed by
MCLA
MSA 27A.5838 be-
*3
fore its amendment
malpractice, whichever is later.”
Applying
standard,
this
the circuit court held
(when
the last
date of service to be
amended)
was
plaintiff’s knowledge
date of
of the asserted mal-
(the
practice
filing
be November
Bar).
request
investigation
with the State
necessary
only
We deem it
to discuss
the second
81 op
the Court
plaintiff discover, or in the
question;1
did
when
diligence should he have
malpractice?
discovered, the asserted
reaching
was
In
the conclusion
possible
more than two
aware
years
complaint
filed,
circuit
the
for investi-
before
portion
relied on a
court
making pay-
gation
stated, "I’m
in which
the state
the state that
ments to
eliminate, or I
told me
should be
to take
tice.”
figure
my attorney
it out
able, if
couldn’t
malprac-
attorney for
necessary to determine
it is
decide the issue
To
of. Plain-
consisted
the asserted
what
tiff claims
bankruptcy
to amend
it was failure
the debt before
to include
within the
This would be
25, 1972.
deciding
period
Without
of limitations.
the debt was
that failure
the amendment would
required
leave of
Order 11
effect
General
court under
plaintiff could
time,
hold that whether
at that
have discovered
we
before
period
year
a
is
the
fact
limitations
by to be decided
which
is not an action
The asserted
specific
rather,
date,
an omission
but
date. In Anno:
before a certain
to take an action
Upon
Begins to Run
of Limitations
Statute
When
Against Attorney
Malpractice,
Action
possible
pp 1002-1003,
rules for
ALR3d
analyzed.
handling
type
Un-
of situation are
begins first,
the statute of limitations
der
*4
in in-
results
when the asserted
run
service,
of last
recent cases
with
For
Warren,
Travis,
Nayer
Industries,
and Bur
Inc v
Food
see Basic
Zisman,
(1975),
492;
Berry
goyne,
App
v
We think the other choice a better balancing of the involved, interests of all however. holdWe that where the inaction,
consists of a client’s cause of action accrues for the of the statute of limitations at the time when it can be said that has had a reasonable time to act but has failed to so. do malprac words,
In other we conclude that tice, if it was occurred when defend ant failed to schedule the debt within a reasonable requested to do so client.2 Whether this was and the date which it occurred are both of fact Tumey to be See, resolved Detroit, 400; ruling
1963, 116.3. The trial court erred in plaintiff’s claim was barred the statute of limi present tations on the basis of the record. proceedings Reversed and remanded not in- opinion. consistent with this Costs to result). (concurring I concur in by my the results brothers, reached but write separately my opinion because in the statute of limitations plaintiff should start the time bankruptcy. Until then the defendant could have the bank- ruptcy plaintiff court to amend the malpraqtice. would not have had claim for investigation, stated, In his want also "I Mr. job Woodworth to either file the amendments and do me—or paid $335 return the I have him and let me obtain other counsel.” This willing seems to indicate that was still have defend act if ant for him he did so within a reasonable time.