reasoning that because "the interest involved in a claim for damages arising out of a fraudulent misrepresentation differs from the interest involved in a case alleging that a professional breached the applicable standard of care[,]” "when a complaint alleges not only malpractice but also all the necessary elements of fraud, the statute of limitations governing fraud actions will apply to the fraud count”
How later courts described this case
- reasoning that because "the interest involved in a claim for damages arising out of a fraudulent misrepresentation differs from the interest involved in a case alleging that a professional breached the applicable standard of care[,]” "when a complaint alleges not only malpractice but also all the necessary elements of fraud, the statute of limitations governing fraud actions will apply to the fraud count”
- holding that a “trial court did not err in concluding that [a client]’s attempts to plead a contract action should be considered duplicative of the malpractice claim” where “the ‘contractual’ duties allegedly breached by defendant are indistinguishable from the duty to render legal services in accordance with the applicable standard of care.”
- holding that a breach-of-contract action alleging that the attorney had failed to provide services with “ ‘appropriate legal skill’ ” was “duplicative of the malpractice claim,” but contrasting that with a “special agreement” to provide services “above the level required by the standard of care”
- finding that a breach of contract claim was duplicative of a legal malpractice claim when the breach asserted was the failure to “exercise appropriate legal skill in providing representation”
Written by the judges who cited it.
The opinion
Gribbs, J.
(dissenting). I dissent from that part of the majority opinion that reverses the decision of the trial court. The instant case is virtually identical to Seebacher v Fitzgerald, Hodgman, Cawthorne & King PC, 181 Mich App 642 ; 449 NW2d 673 (1989). In both Seebacher and the instant case, an attorney was retained to provide general legal representation with an emphasis on tax advice. In each case, the plaintiff clearly failed to file his complaint before the period of the applicable statute of limitations for legal malpractice had run. In each case the plaintiff sought to circumvent the statute of limitations by alleging that the defendant failed to notify the plaintiff of the possible grounds for malpractice, thus, fraudulently concealing the claim of malpractice and justifying the application of the special limitation period of MCL 600.5855; MSA 27A.5855. Furthermore, in each case, the plaintiff alleged that there existed a special arrangement, over and above the general retention for legal services, to provide special services for tax advice.
In Seebacher , this Court held that it is the type of interest harmed, rather than the label given the *536 claim, that determines what limitation period controls. This Court concluded that the statute of limitations for legal malpractice applies to a legal malpractice action even when the action is denominated as one for breach of a contract to render competent legal services. In affirming the dismissal of the claims, this Court in Seebacher, supra, p 648 , also held that "[i]n order to exist, the fraud must be manifested by some affirmative act or misrepresentation. Mere silence of the defendant is not enough.”
If this Court accepts the position advocated by plaintiff, every attorney who commits a legal error, which may later be deemed malpractice, and who bills his client for such services, will also have to defend against claims of fraudulent concealment and common-law fraud, unless the attorney immediately discloses the possibility that legal malpractice occurred.
I agree with the trial court that all three counts in this case sound in legal malpractice. Plaintiff failed to plead fraud with the requisite specificity, and I would decline to give him another opportunity to pursue the matter.
I would affirm the decision of the trial court.