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No. 132174
| Traci Webber, Personal Representative of the |
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Thomas H. Blaske |
| Estate of Janie L. Webber, Deceased, |
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Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Oakland - Chabot, R.) |
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| George Hilborn and Hilborn & Hilborn, P.C., |
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Christine D. Oldani |
| Defendants-Appellants. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief in Opposition to Leave to Appeal>>
Plaintiff-Appellee's Supplemental Brief>>
Defendants-Appellants' Application for Leave to Appeal>>
Defendants-Appellants' Reply Brief>>
Defendants-Appellants' Supplemental Brief>>
Background
Seventeen-year-old Janie L. Webber was riding in a truck driven by her boyfriend, Robert Emiry, when the truck hit another vehicle head-on. Webber died, but Emiry, who was wearing his seat belt, was unhurt. Traci Webber, Janie’s mother, met with attorney George Hilborn to discuss filing a products liability lawsuit. Hilborn found Emiry’s truck at an auto parts facility and obtained a protective order to prevent its destruction. Hilborn and his law firm served a copy of the order on the owner of the auto parts facility by certified mail, only to later learn that the vehicle had been crushed. Hilborn then advised Webber in a letter that he did not believe the suit had any chance of success because “the police officers are convinced that [Janie] . . . was not wearing her seat belt” and there were no eyewitnesses who could testify that she was wearing it. He suggested that the lawsuit be dismissed, and sent Webber a stipulation allowing him and his firm to withdraw as counsel. Webber refused to sign the stipulation, so Hilborn and his firm filed a motion asking the trial court to permit them to withdraw from the lawsuit. The trial court granted the motion. Webber then sued Hilborn and his law firm for legal malpractice, alleging that the defendants negligently failed to secure the truck involved in the accident. The lawsuit added: “As a direct and proximate result of the breaches of the duties already listed, plaintiff and all the rest of kin of Janie Lynn Webber had been inured [sic] and damages in that they have lost available [sic] cause of action and they experienced mental anguish and emotional stress concerning Janie’s wrongful death and the inability of defendant[s] to provide them with justice, and they had lost the full value of the case defendant Hilborn had brought for them under the wrongful death act.” The defendants filed several motions for summary disposition, including one in which they argued that Webber failed to set forth a prima facie case of legal malpractice because she did not set forth facts alleging that, but for the defendants’ negligence, she would have prevailed in the underlying action. The defendants cited Charles Reinhart Co v Winiemko, 444 Mich 579, 585-586 (1994), in which the Michigan Supreme Court stated that “a plaintiff ‘must show that but for the attorney’s alleged malpractice, he would have been successful in the underlying suit.’ ” The trial court granted the defendants’ motion and concluded that any further amendment of the complaint would be futile. Webber appealed and, in an unpublished per curiam opinion, the Court of Appeals reversed and remanded. The appeals court concluded that the allegations in the complaint were sufficiently specific to inform the defendants of the nature of the claims against them. The defendants appeal.
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