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Kokx v. Bylenga9/15/2000
FOR PUBLICATION
July 11, 2000
9:10 a.m.
Updated Copy
Defendants/third-party plaintiffs, attorney Dan E. Bylenga, Jr., and the law firm of Schenk, Boncher & Prasher (collectively, defendants), appeal by leave granted the circuit court's order granting summary disposition to third-party defendant Miller, Canfield, Paddock & Stone (Miller Canfield) of defendants' contribution claim. We affirm.
Following termination of Jerome Kokx' employment with Gainey Transportation Services (Gainey) in November 1991, Kokx and his wife, Mary Kokx (plaintiffs), retained defendants to, among other things, assist them in exercising their Gainey stock options. Gainey refused to honor plaintiffs' attempted exercise of stock options and plaintiffs filed suit against Gainey for breach of contract. In August 1992, plaintiffs substituted Miller Canfield in place of defendants as counsel in their breach of contract action. On May 26, 1993, the circuit court dismissed plaintiffs' action.
In January 1996, plaintiffs filed a legal malpractice suit against defendants only. In July 1996, defendants filed a motion for leave to file a third-party complaint against Miller Canfield. No hearing was ever held regarding this motion and the court never ruled on the motion. In November 1996, the case was dismissed without prejudice by stipulation of the parties. In January 1997, plaintiffs filed their second malpractice suit against defendants, and in May 1997, defendants filed a third-party complaint against Miller Canfield for indemnification and contribution. The parties subsequently agreed to dismiss the indemnity claim.
In January 1998, Miller Canfield filed a motion for summary disposition pursuant to MCR 2.116(C)(8), arguing, in pertinent part, that the contribution claim should be dismissed because the 1995 tort reform legislation eliminated joint liability in actions seeking damages for personal injury , property damage, or wrongful death and, consequently, abolished contribution claims in such cases. The circuit court denied Miller Canfield's motion. However, the court subsequently granted Miller Canfield's motion for reconsideration, limiting its reconsideration to the issue "whether, in light of the applicability of 1995 PA 161 and 249 to the present litigation, Defendants . . . may continue to pursue their third-party action against [Miller Canfield]." Following a hearing regarding the motion, the circuit court reiterated that the 1995 tort reform legislation governs this case and concluded that a contribution claim such as defendants' is not viable in light of that legislation. Accordingly, the court reversed its earlier order and granted the motion for summary disposition of the contribution claim.
Defendants first argue on appeal that the circuit court erred in reconsidering its decision to deny summary disposition. Defendants contend that because Miller Canfield's motion for reconsideration offered no new evidence or argument, but merely revisited the same issue presented in the motion for summary disposition, the court's reconsideration of its decision was contrary to MCR 2.119(F)(3). Defendants maintain that the court further erred in limiting its reconsideration to one issue only and failing to reconsider whether the 1995 tort reform legislation applies in this case.
A court's decision to grant a motion for reconsideration is an exercise of discretion. MCR 2.119(F)(3); Michigan Nat'l Bank v Mudgett, 178 Mich App 677, 681; 444 NW2d 534 (1989). Thus, " f a trial court wants to give a 'second chance' to a motion it has previously denied, it has every right to do so, and this court rule [MCR 2.119(F)(3)] does no
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