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Author Topic: Your Opinion Please  (Read 893 times)

RCD

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Your Opinion Please
« on: Sep 20, 2004, 01:51:22 PM »
Good Day Soc!

Basic Background

Plaintiff in case opined below retained the same attny for all three actions.

Defendant in case discussed below retained the same attny durring divorce action and subsequent fraud and conversion action.  New Counsel was retained to defend against the malicious prosecution action discussed below.  

Following is the OPINION OF THE COURT exactly as written

OPINION OF THE COURT
.
The Plaintiff filed a complaint alleging malicious prosecution against the defendant, his ex-wife, after her prior suit against him was dismissed upon the granting of his motion for summary disposition.
 
She filed suit against him, claiming that he fraudulently converted insurance proceeds which were obtained after his radio controlled cars and related equipment were stolen from his vehicle during the pendency of the divorce and so she was entitled to all of the insurance money.

At the time the plaintiff was attempting to obtain these insurance proceeds, the defendant wrote a letter claiming no knowledge or interest in the claim because she recognized that the stolen property belonged to him. The Court determined that she recognized that she had no claim to the insurance proceeds and, by her actions, authorized him to proceed with the claim on her behalf.

Trial was held and the defendant's attorney in the divorce and the first lawsuit to recover all the insurance proceeds was deposed. He testified that despite the fact that the plaintiff s attorney faxed him a copy of the letter written to the insurance company by his client, the defendant, he thought that she was entitled to one half of the insurance proceeds. He further advised her that she should file the lawsuit for conversion. Upon his advise, she directed him to file the lawsuit.

The Court has the impression that a lot of hostility existed between the parties during the pendency of the divorce and continued after it was final.

The Court is not clear but could reasonably speculate that the defendant's divorce counsel assisted in fanning the flames rather than providing any kind of moderating influence. Clearly, his advise to her about the "fraudulent" insurance claim entitling her to all of the proceeds was dead wrong and promoted erroneous dreams of her obtaining more money from her ex-husband. His erroneous advise cost both parties substantial attorney fees.

However, the law in Michigan is clear. If a party proceeds with a lawsuit upon the advise of his attorney after revealing or discussing all the relevant facts, this defeats one of the necessary elements to establish a malicious prosecution, lack of probable cause. Leeseberg v Builders Plumbing Co, .6 Mich App 321,328-9 (1967); Drouillard v Metropolitan Life, 107 Mich App 608,620 (1981).

Clearly, the defendant's attorney knew about her posture and attitude at the time the insurance claim was filed, but advised her to proceed with the unwarranted lawsuit anyway.

In view of the defendant's former attorney's testimony at his deposition, the Court concludes that the plaintiff has not shown by a preponderance of evidence that the defendant lacked probable cause to bring the conversion lawsuit even though the prior ruling indicated that she had no legal basis for filing the claim.

Therefore, a judgment of no cause for action must enter


ADDITIONAL INFORMATION

The court opined that Defendant waived attny client privilage when she advanced the advice of counsel defence and ordered that Plaintiff have the right to review all files regarding the divorce action and subsequent conversion suit.  

Durring trial and deposition, Defendant produced 13 documents into evidance which were not part of the files despite the fact that they were authored by the attny being deposed.  Further, correcpondance to the plaintiff's attny were also missing from the file suggesting that a purge took place.

The Judgement of divorce between the parties retained jurisdiction over property matters, yet defendant's first attny sought relief in circuit court.

When asked why that course of action was taken, he answered because he didn't think it was personal property.  Interestingly enough, durring the pendancy of the conversion trial, he sighted case law stating that a check is considered personal property of the desiginated payee(s)

Jurisdiction is MI

Questions

1) How do you interprate the language in the opinion regarding the defendant's first attorneys actions?

2) What actions do you suggest?


socrateaser

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RE: Your Opinion Please
« Reply #1 on: Sep 20, 2004, 05:00:11 PM »
>1) How do you interprate the language in the opinion regarding
>the defendant's first attorneys actions?

The court seems to be suggesting, when it states, that defendant's attorney was "fanning the flames...",  that a likely course of action by both parties to the divorce is probably a malpractice suit against the attorney who recommended the suit for conversion.

As for what you should do -- I'll withhold comment. I don't sue unless I'm absolutely sure I can destroy the other side, and I'm not certain from the facts presented, that this is possible.


 

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