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Bakshi v. Gold8/10/2001
UNPUBLISHED
Plaintiffs appeal as of right, challenging several orders dismissing their various claims on summary disposition in this legal malpractice action. Defendants have filed a cross appeal. We affirm.
This Court reviews a decision on a motion for summary disposition de novo to determine whether the moving party was entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
In reviewing a motion brought pursuant to MCR 2.116(C)(10), the court must consider the affidavits, pleadings, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. Id. Summary disposition is appropriate if the affidavits and other documentary evidence show that there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law. Id.
Plaintiffs first argue that the trial court erred in dismissing count II of their malpractice complaint, relating to defendants' alleged failure to properly establish personal jurisdiction over several defendants in an underlying lawsuit. In order to prevail on a legal malpractice claim, a plaintiff has the burden of showing that the defendant was negligent in its legal representation of the plaintiff, and that the negligence was a proximate cause of an injury. Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995). On cross-appeal, defendants argue that they were entitled to summary disposition based on the attorney judgment rule of Simko, supra.
The underlying action was dismissed in October 1991, based on a determination that the court lacked jurisdiction over the defendants, who were located in India . Plaintiffs argue that had defendants presented all of the evidence available to them, the underlying action would not have been dismissed for lack of personal jurisdiction. We disagree. A review of the record reveals that in opposing summary disposition in the underlying suit, defendants did raise and present most of the facts that plaintiffs now argue should have been presented. Defendants were only required to act as an attorney of ordinary learning, judgment, or skill would act under the same or similar circumstances. Simko, supra at 650. The evidence fails to establish a genuine issue of material fact with regard to whether defendants failed to adequately oppose the motion for summary disposition on jurisdictional grounds.
We reject plaintiffs' contention that the law of the case doctrine applies to this issue. Under the law of the case doctrine, "if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same." Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d 120 (2000). The appellate court's decision likewise binds lower tribunals because the tribunal may not take action on remand that is inconsistent with the judgment of the appellate court. Id. at 260. Here, however, the instant legal malpractice action involves an entirely separate legal proceeding from the underlying action that was dismissed. Accordingly, the law of the case doctrine does not apply.
Plaintiffs also argue that the trial court's decision dismissing the malpractice claim involving Minicomp Private Limited is inconsistent with its observation that "if such evidence existed and was available to defendants at the time, then defendants' failure to utilize such evidence in opposition to the motion for summary disposition could const
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