                          STATE OF MICHIGAN

                            COURT OF APPEALS



JANELL BOWDEN and GARY BOWDEN,                                       UNPUBLISHED
                                                                     March 24, 2015
               Plaintiffs-Appellants,

v                                                                    No. 319047
                                                                     Ingham Circuit Court
CHARLES P. GANNAWAY, STEVEN J.                                       LC No. 11-000302-NM
POLLOK, and RAPAPORT POLLOK FARRELL
& WALDRON, PC,

               Defendants-Appellees.


Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

        In this attorney malpractice claim, plaintiffs appeal as of right from an order of the trial
court granting defendants’ motion for summary disposition. The court found as a matter of law
that defendants’ alleged professional negligence was not a proximate cause of plaintiffs’ alleged
injuries. We affirm.

        Plaintiff Janell Bowden worked for the State of Michigan from 1980 until 2007. For
most of that time she worked in the motor pool, cleaning and preparing vehicles for use by State
employees. She began to have problems with her upper torso in the 1990s, especially her right
shoulder, arm, and hand, and underwent several surgeries to fuse her spine and remove bone
spurs. In 2001, she began working at the state motor pool as a “storekeeper,” signing cars in and
out of the motor pool, preparing paperwork to terminate leased cars, and preparing work orders.
The job was created for her in order to accommodate the physical restrictions recommended by
her physicians.

       In May 2008, she filed an application with Michigan’s Office of Retirement Services
(ORS) for non-duty disability retirement benefits, alleging that constant cervical pain resulting
from these surgeries had limited her ability to use her right arm and hand. The physician
designated by the State to examine her application and medical records, including numerous
assessments by her physicians stating that she was disabled, concluded that she was not totally
and permanently disabled, and that she “should be able to return to her past job.” In a letter
dated August 1, 2008, the ORS denied her application and informed her that she had 60 days
from the date of the letter to appeal the decision. Plaintiff engaged attorney Charles Gannaway
(codefendant) to represent her on appeal. However, the appeal was not filed timely.



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        In a November 2008 request to the ORS, codefendant Gannaway asked for an appeal
hearing, explaining that his request was untimely due to a misfiling of the ORS’s decision, but
stating that he was making the request anyway “due to just cause.” On December 1, 2008, the
ORS denied the untimely request for a hearing. Codefendant Gannaway then filed an
unsuccessful petition with the circuit court, asking it to reverse the denial and award plaintiff
Janell Bowden’s non-duty disability retirement. In March 2009, he informed plaintiffs by letter
that he had missed the deadline for filing the appeal, that the ORS had denied his request for a
hearing, and that he had filed a petition with the circuit court.

        Plaintiffs filed a professional negligence suit against defendants in which they sued for
both economic and non-economic damages.1 The claim was based upon the failure to file a
timely appeal of the ORS denial of the non-duty retirement. Defendants moved for summary
disposition pursuant to MCR 2.116(C)(8) and (C)(10). They argued that the failure to file the
appeal with ORS was not a proximate cause of any damage to plaintiffs. They cited Polania v
State Employees’ Retirement Sys, 299 Mich App 322; 830 NW2d 773 (2013), to support their
argument that even if the appeal had been filed in a timely manner, plaintiffs would have been
unsuccessful because no medical advisor had certified in writing that plaintiff Janell Bowden
was totally and permanently disabled. Plaintiffs argued that a retroactive application of Polania
was erroneous, contending that prior to Polania, the hearing officer would have looked beyond
an independent medical examiner’s disability statement and considered all the evidence,
including assessments offered by plaintiff Janell Bowden’s physicians stating that she was
disabled.

        The trial court concluded that Polania did not establish new law; rather, it discerned the
intent of the Legislature through analysis of the plain language of the disability statute, which
had remained the same from its 2002 enactment. Because plaintiff Janell Bowden did not meet
the requirements of the disability statute, the court concluded, she would not have prevailed on
her underlying claim, and therefore, could not prevail on her legal malpractice claim. The trial
court granted defendants’ motion, and plaintiffs argue the court erred in doing so. We review a
trial court’s decision on a motion for summary disposition de novo. Auto Club Group Ins Co v
Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2002).

        The elements of a legal malpractice action are: “(1) the existence of an attorney-client
relationship; (2) negligence in the legal representation of the plaintiff; (3) that the negligence was
a proximate cause of an injury; and (4) the fact and extent of the injury alleged.” Charles
Reinhard Co v Winiemko, 444 Mich 579, 585-586; 513 NW2d 773 (1994) (citation omitted). To
prove proximate cause, a plaintiff “must show that but for the attorney’s alleged malpractice, he
would have been successful in the underlying suit.” Id. at 586 (internal quotation marks and
citation omitted). This “suit within a suit” concept is applicable where “the alleged negligent
conduct involves the failure of an attorney to properly pursue an appeal.” Id. at 587. In such

1
  Plaintiffs’ claim against codefendant Steven Pollok arose from his handling of plaintiff Janell
Bowden’s workers’ compensation claim. Their claim against Rapaport Pollok Farrell & Waldon,
P.C., was based on a theory of respondeat superior. Plaintiffs stipulated to the dismissal of the
claim with prejudice.



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cases, a plaintiff must prove that “the attorney’s negligence caused the loss or unfavorable result
of the appeal,” and that “the loss or unfavorable result of the appeal in turn caused a loss or
unfavorable result in the underlying litigation.” Id. at 588. Whether a plaintiff would have
prevailed in the underlying appeal is a question of law. Id. at 589.

        In order to prevail in their legal malpractice claim, plaintiffs had to show that, but for the
failure to timely appeal the denial of plaintiff Janell Bowden’s application for non-duty disability
retirement benefits, she would have been awarded the benefits. MCL 38.24 governs the award of
such benefits to qualifying state employees, and states in relevant part as follows:

              (1) a member who becomes totally incapacitated for duty because of a
       personal injury or disease that is not the natural and proximate result of the
       member’s performance of duty may be retired if all of the following apply:

               (a) The member . . . files an application . . . with the retirement board no
       later than 1 year after termination of the member’s state employment.

               (b) A medical advisor conducts a medical examination of the member and
       certifies in writing that the member is mentally or physically totally incapacitated
       for further performance of duty, that the incapacitation is likely to be permanent,
       and that the member should be retired.

               (c) The member has been a state employee for at least 10 years.

        Plaintiffs argue that, prior to Polania, an appeal of the Retirement System’s denial of
plaintiff Janell Bowden’s application would have been governed by Gordon v City of Bloomfield
Hills, 207 Mich App 231; 523 NW2d 806 (1994), which requires a reviewing court to “consider
all the evidence on the record, not just that supporting the agency’s decision.” Id. at 232. Had
defendants filed a timely appeal, plaintiffs argue, a review of the “whole record” would have
resulted in reversal of the denial because assessments from several independent physicians
clearly established the disability.

        Contrary to plaintiffs’ insistence, this matter does not involve the question of the
retroactive application of a new rule or principle. We would note preliminarily that the statue
which was interpreted by the Polania Court was a predecessor statute. The 2002 iteration
inserted the unambiguous word “all” when setting forth the conditions which must be met before
the Board may consider a member for non-duty disability retirement. As the trial court pointed
out, Polania did not establish a new rule or principle. Rather, it discerned the Legislature’s
intent from the plain language of MCL 38.24, which had been in effect for five years prior to the
time when plaintiff Janell Bowden should have appealed the ORS denial of her disability
application. From the time of its enactment in 2002, MCL 38.24 had always meant that in order
to be eligible to receive a non-duty disability retirement, a medical advisor had to certify the
applicant as totally and likely permanently disabled. MCL 38.24(1)(b). Polania clarified, not
introduced, this requirement.

        It is undisputed that the medical advisor had not certified plaintiff Janell Bowden as
totally and permanently disabled, and that without such certification, she was ineligible for
benefits under the plain language of MCL 38.24(1)(b). Therefore, because plaintiffs cannot


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establish that plaintiff Janell Bowden would have prevailed had defendants filed a timely appeal
of the initial denial of her application for benefits, plaintiffs cannot show that defendants’
negligence was a proximate cause of their alleged damages, and, consequently, the trial court did
not err in dismissing their claim.

       Affirmed.

                                                           /s/ Kurtis T. Wilder
                                                           /s/ Deborah A. Servitto
                                                           /s/ Cynthia Diane Stephens




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