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The Court of Appeals held that an attorney could not be sued for legal malpractice, even if the attorney missed the deadline for filing a Claim of Appeal.  The Court of Appeals in MacDowell v Houghtaling, unpublished per curiam opinion, issued August 23, 2016 (Docket No. 328902), reasoned that the plaintiff could not establish the element of proximate cause based on the Court of Appeals' prior denial on a delayed application "for lack of merits in the grounds presented."  In reaching this holding, the Court is giving attorneys who commit legal malpractice a free pass - so long as they file a delayed application. The malpracticing attorney could even intentionally tank the case in the application and the leave denied order would forever insulate the attorney from liability.

The Court of Appeals reached this holding even though:

•  85% of all applications are denied.
• The Court of Appeals employs standard language for leave denied "on the merits" of the grounds presented in all denials except those that arise from interlocutory appeals.
• Applicant undergo a different review process than appeals by right.
• Oral Argument is not permitted on Application, thus denying the attorney an opportunity to advocate for the case.
• The Court of Appeals does not have the trial court record when it decides an application, relying only on documents supplied by the Appellant.
• Applications are decided by 3 judges from single district while Appeals by right are decided by a random draw of 3 out of 27 judges of the Court.

Stay tuned to see if this case sparks the interest of the Michigan Supreme Court.

Labels: appeals, application for leave to appeal, Court of Appeals, Delayed Application, Lack of Merits, legal malpractice, michigan court of appeals, Muskegon County

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In re Green involved placement of children in a juvenile guardianship. What I found striking about the decision is that the COA held in this appeal by right that the issue was barred by the COA’s previous denial of a delayed application from a different order relating to the juvenile guardianship. In the delayed application, the parent challenged a Nov 2012 Order (following a dispositional review hearing and maintaining the juvenile guardianship placement) on the grounds that the guardianship violated the parent’s due process rights and resulted in a de facto termination absent clear and convincing evidence. There were other issues raised as well. The COA denied leave "on the merits." This is the standard language used in almost every order denying leave to the Court of Appeals. In the appeal by right, the parent challenged a July 2013 order, which formally established the juvenile guardianship. According to the COA, respondent raised the “very same arguments that she proffered in her application for leave, which were rejected on the merits by this Court.” Based on this, the COA applied the law of the case and affirmed the trial court’s decision. It seems that if the parent is appealing a different order, it should not matter that the parent is raising the same substantive issue, as it pertains to that new order. Indeed, in the Green case, there was more factual development, and other things had changed. The problem arises from giving res judicata effect to a leave denial when the COA does not give full consideration to the case in the first place.

Labels: appeal by right, application for leave to appeal, juvenile guardianship, law of the case, leave denied on the merits, Oakland County, res judicata

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