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In re Brown5/5/1998
FOR PUBLICATION
Appellant Rosena Brown, personal representative of the estate of Ryan Terrell Brown, appeals by leave granted from the circuit court's denial of leave to appeal from the decision of the probate court assessing sanctions against the estate's attorney pursuant to MCR 2.114 in the amount of $1,584.12. The probate court ruled that the estate's attorney violated the court rules by obtaining discovery before a "civil action" was commenced in accordance with MCR 5.101(C). We disagree and reverse the probate court's decision.
I.
Appellant Rosena Brown's son, Ryan, was killed in an automobile accident on January 17, 1995. In addition to the decedent's vehicle, two others were involved in the accident, one of which was driven by appellee Loretta Townsend. Mrs. Brown retained attorney Marc Lipton to represent the decedent's estate. Lipton filed a petition in the probate court to have Mrs. Brown and her husband appointed as copersonal representatives, which petition the court granted. As a possible cause of action arising from the accident constituted the estate's principal asset, Lipton began to investigate the accident to determine whether any claims for wrongful death could be pursued. In a letter to Townsend, Lipton stated in part:
Please be advised that we represent the estate of Ryan Brown, deceased, who was injured and killed in an automobile accident with you and another vehicle in January of 1995.
Would you please either contact my office so that I can discuss this matter with you or turn this letter over to the insurance company which insured your vehicle at the time of the accident[?]
Townsend, in turn, gave the letter to her insurance company, Citizen's Insurance Company of America. Citizens disputed Townsend's liability.
Lipton sent another letter to Townsend requesting that she appear at his office to give a statement regarding her knowledge of the facts of the accident. A subpoena signed by Lipton was attached to the letter. Townsend appeared at Lipton's office as directed, and without benefit of an attorney gave a recorded statement that the probate court later characterized as a deposition. Timothy Van Dusen, an attorney who was eventually retained to represent Townsend, moved for the imposition of sanctions under MCR 2.114 on the ground that Lipton's conduct was in violation of the court rules. The probate court agreed and issued a written opinion stating, in relevant part:
he court finds that Mr. Lipton, as counsel for the estate, failed to comply with MCR 5.101. More particularly, the estate failed to file a verified petition within the parameters of MCR 5.101(C). Moreover, as there was no contested case or civil action instituted by the estate in the probate or circuit court, the issuance of a subpoena to Ms. Townsend was in violation of MCR 2.305.
The court subsequently ordered Lipton personally to pay Townsend's costs and attorney fees in the amount of $1,584.12. The circuit court denied Mrs. Brown's application for leave to appeal that decision; we granted leave to appeal.
II.
This controversy involves the relationship of (and apparent conflict between) the general rules contained in Chapter 2 of the Michigan Court Rules and the special rules applicable to the probate court contained in Chapter 5. The probate court's determination that the "deposition" undertaken by Lipton was unauthorized under the court rules turned on its Conclusion that the commencement of a probate "proceeding" was not the commencement of an "action" within the meaning of MCR 2.302(A)(1). Mrs. Brown argues that the probate erred in imposing sanctions against Lipto
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