            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



FRED ST. ONGE and KAREN ROSS,                                        UNPUBLISHED
                                                                     July 30, 2019
               Plaintiffs-Appellants/Cross-
               Appellees,


v                                                                    No. 341953
                                                                     Marquette Circuit Court
BRAY, CAMERON, LARRABEE & CLARK,                                     LC No. 17-055772-NM
PC, doing business as UPPER MICHIGAN LAW,

               Defendant-Appellee/Cross-
               Appellant.


Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        In this legal malpractice case, plaintiffs appeal by leave granted the trial court’s order
denying their motion for partial summary disposition pursuant to MCR 2.116(I) (opposing party
entitled to judgment). Defendant cross-appeals, arguing the trial court erred in denying its
motion for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material
fact). We affirm the trial court’s denial of defendant’s motion for summary disposition and
reverse its denial of plaintiffs’ partial motion for summary disposition.

        Plaintiffs were injured in an automobile accident with an employee of the Michigan
Department of Licensing and Regulatory Affairs. They hired Richard Clark, an attorney with
defendant Bray, Cameron, Larrabee & Clark, P.C., to pursue legal remedies. Clark filed a notice
of intent to file a claim against the state within six months of the accident in an effort to comply
with MCL 600.6431. Although plaintiffs did not sign the notice, their attorney signed it on their
behalf. Clark later filed a complaint in the Court of Claims seeking compensation for plaintiffs’
injuries resulting from the car accident. The state filed a motion for summary disposition,
arguing that the notice was defective because plaintiffs had failed to sign it as required by MCL
600.6431(1). The Court of Claims denied the state’s motion, concluding that notice was
sufficient because attorneys were permitted to sign documents on behalf of their clients. A panel
of this Court reversed on appeal and remanded to the Court of Claims, concluding that the notice


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was deficient because plaintiffs themselves were required to sign pursuant to MCL 600.6431(1).
Fred St. Onge and Karen Ross v State of Michigan, unpublished per curiam opinion of the Court
of Appeals, issued June 11, 2015 (Docket No. 320800).

        Plaintiffs then filed the instant action against defendant alleging legal malpractice.
Defendant filed a motion for summary disposition, asserting that Clark’s performance was
competent. Defendant argued that the law governing what constitutes compliance with the
notice requirements of the statute had changed in August of 2012 (after Clark had already filed
the notice) when the Michigan Supreme Court held that deficient notices were not permissible in
cases of statutory waiver of governmental immunity, and that a strict reading of notice statutes
such as MCL 600.6431 was required. See McCahan v Brennan, 492 Mich 730; 822 NW2d 747
(2012) (McCahan II). The trial court denied defendant’s motion and plaintiffs’ request for
summary disposition, concluding that prior to our Supreme Court’s decision in Fairley v Dep’t of
Corrections, 497 Mich 290; 871 NW2d 129 (2015), “substantial compliance” with the signature
requirement of MCL 600.6431(1) was sufficient for notice to be effective, but that there were
genuine issues of material fact as to whether the notice filed by Clark had substantially complied
with the statute. We disagree that substantial compliance was the proper interpretation of the
statute prior to Fairley.

                                        I. MCL 600.6431(1)

        MCL 600.6431 sets forth the requirements for parties who wish to file a claim against the
state as an exception to the general principle of governmental immunity:

               (1) No claim may be maintained against the state unless the claimant,
       within 1 year after such claim has accrued, files in the office of the clerk of the
       court of claims either a written claim or a written notice of intention to file a claim
       against the state or any of its departments, commissions, boards, institutions, arms
       or agencies, stating the time when and the place where such claim arose and in
       detail the nature of the same and of the items of damage alleged or claimed to
       have been sustained, which claim or notice shall be signed and verified by the
       claimant before an officer authorized to administer oaths.

                                                ***

               (3) In all actions for property damage or personal injuries, claimant shall
       file with the clerk of the court of claims a notice of intention to file a claim or the
       claim itself within 6 months following the happening of the event giving rise to
       the cause of action.

         In McCahan, the plaintiff was injured in a car accident with a student on the campus of
the University of Michigan while the student was driving a university-owned vehicle on
university business. See McCahan v Brennan, 291 Mich App 430, 432; 804 NW2d 906 (2011)
(McCahan I). Approximately five months after the accident, the plaintiff sent the university a
letter informing it of her intent to file a lawsuit arising out of the accident. Id. More than 10
months after the accident, plaintiff filed a notice of intent to file a claim against the university in
the Court of Claims, which was signed by both plaintiff and her counsel. Id. The trial court

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granted the university’s motion for summary disposition on the basis of plaintiff’s failure to
comply with MCL 600.6431(3) by filing a notice of intent in the Court of Claims within six
months of the accident. Id. On appeal, this Court affirmed, and rejected plaintiff’s assertion that
notice was effective because she had “substantially complied” with the statute: “substantial
compliance does not satisfy MCL 600.6431(3). Subsection (3) clearly states that a ‘claimant
shall file with the clerk of the court of claims . . . within 6 months following the happening of the
event . . . .’ ” The word ‘shall’ designates a mandatory provision with which the plaintiff had not
complied, as “[t]he facts show[ed] that [she] filed a notice of intention to file a claim with the
Court of Claims months past the six-month statutory requirement.” McCahan I, 291 Mich App
at 433-434.

        Here, the trial court rejected plaintiffs’ argument that McCahan was applicable to the
notice provision of subsection (1) of MCL 600.6431, concluding that it was distinguishable from
the instant case because McCahan dealt only with the timeliness requirement of the statute in
subsection (3). However, nowhere did the Court indicate in McCahan that the two subsections
of the statute should be interpreted using different standards. Subsection (1), like subsection (3),
uses mandatory language, stating that the notice of intent “shall be signed and verified by the
claimant before an officer authorized to administer oaths.” MCL 600.6431(1) (emphasis added).
It would be incongruous to interpret subsection (3) as containing a mandatory requirement that
the notice must be filed within six months based on the language of the statute, but that the
verified signature requirement in subsection (1) only required “substantial compliance.”
“[W]hen construing a statute, a court must read it as a whole,” and “identical language should
certainly receive identical construction when found in the same act.” Liberty Hill Housing Corp
v Livonia, 480 Mich 44, 69; 746 NW2d 282 (2008) (citations and internal quotation marks
omitted). We agree with plaintiffs that defendant should have been aware of the relevant law
regarding full or strict compliance with the statute at the time notice was filed in the underlying
case.

        We also note that, contrary to the court’s assertion, Fairley did not change the law
regarding compliance with MCL 600.6431(1). In Fairley, the plaintiff was injured in an
automobile accident caused by an employee of the defendant government agency. Fairley, 497
Mich at 293. Although notice of intent to file a claim was timely filed, the plaintiff did not sign
the notice; rather, her attorney signed it. Id. at 294. The defendant filed a motion for summary
disposition, asserting that the notice was defective for failing to meet the standards set forth in
MCL 600.6431(1). Id. The Court of Claims denied the motion on the basis that a defendant
waives an issue of noncompliance with MCL 600.6431 if it is not pleaded as an affirmative
defense. Fairley, 497 Mich at 294-295. Our Supreme Court reversed, stating that “[i]t is well
established that governmental immunity is not an affirmative defense, but is instead a
characteristic of government.” Fairley, 497 Mich at 298. A party who seeks to sue the
government bears the responsibility of demonstrating “that its case falls within one of the
exceptions [to governmental immunity].” Id. (internal quotation marks and citation omitted).
The Court noted that in MCL 600.6431(1), “the Legislature has qualified a claimant’s ability to
bring a claim against the state by requiring that the ‘claim or notice shall be signed and verified
by the claimant before an officer authorized to administer oaths.’ ” Id. The Court further stated
that



                                                -3-
               [i]f a notice . . . fails to show that it was signed and verified before an
       officer authorized to administer oaths, how would a governmental entity be
       assured that the notice, which seeks to impose liability, was actually verified? It
       is for this very reason that MCL 600.6431 requires more than the mere act of
       verification and instead requires some proof of that verification[.] [Id. at 299.]

The Court did not indicate in Fairley that it was announcing a new rule regarding interpretation
of the statute. Rather, the Court affirmed that in MCL 600.6431, the Legislature provided
potential claimants with an exception to the rule of governmental immunity provided that they
comply with the requirements of the statute. The signature requirement of the statute is no
different than the timeliness provision; all parts of the statute must be complied with in order for
notice to be effective.

        Similarly, the decision by a panel of this Court in the underlying case, stating that notice
was not effective pursuant to Fairley, does not indicate that substantial compliance was the law
before Fairley. See Fred St. Onge and Karen Ross, unpub op at 2. When the underlying case
was before this Court, the Court stated that “neither St. Onge nor Ross signed the notice of
intent. Instead, counsel signed and filed the notice. We conclude that Fairley mandates reversal
in this case.” Id. Defendant argues that this conclusion shows that substantial compliance was
required prior to Fairley. The Court’s opinion does not support this conclusion. Rather, Fairley
is properly cited as authority for the Court’s conclusion that notice was deficient, without
commentary regarding whether notice would have been effective prior to the Supreme Court’s
decision in Fairley. In this case the notice, as filed, did not comply with the statutory
requirements of MCL 600.6431(1) and the trial court erred in finding that at the time Clark filed
the notice, the law only required substantial compliance with that provision.

                                  II. SUMMARY DISPOSITION

        Plaintiffs argue that the court erred by denying their motion for summary disposition
pursuant to MCR 2.116(I)(2). According to plaintiffs, they were entitled to partial summary
disposition regarding the negligence issue of their legal malpractice claim because Clark’s
conduct was clearly negligent. The elements of legal malpractice 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.
Bowden v Gannaway, 310 Mich App 499, 503; 871 NW2d 893 (2015). In this case, the question
before the court was whether Clark’s failure to comply with the signature requirement in the
notice provision of MCL 600.6431(1) constituted negligence amounting to legal malpractice.

       Our Supreme Court noted, in Coleman v Gurwin, 443 Mich 59, 63 n5; 503 NW2d 435
(1993) that:

       The standard of care for an attorney was established in Eggleston v Boardman, 37
       Mich 14, 16 (1877):

       “Whenever an attorney or solicitor is retained in a cause, it becomes his implied
       duty to use and exercise reasonable skill, care, discretion and judgment in the
       conduct and management thereof.”

                                                 -4-
It has thus been long and well-recognized that “an attorney is obligated to use reasonable skill,
care, discretion and judgment in representing a client.” Simko v Blake, 448 Mich 648, 656; 532
NW2d 842 (1995) (citations omitted). Further, “all attorneys have a duty to behave as would an
attorney of ordinary learning, judgment or skill . . . under the same or similar circumstances . . .
.” Id.

        Under circumstances similar to those in the instant case, “an attorney of ordinary
learning, judgment or skill” would have fully complied with the statutory notice requirements in
MCL 600.6431(1). Defendant thus breached the applicable standard of care by failing to comply
with the statute. The trial court thus properly denied defendant’s summary disposition motion,
but erred in denying plaintiffs’ motion for partial summary disposition. The first two elements of
a legal malpractice claim having been established (attorney-client relationship, negligence), the
only remaining issues for resolution in the trial court are whether defendant’s negligence was a
proximate cause of an injury and the fact and extent of the injury alleged. Bowden, 310 Mich
App at 503.

       Affirmed in part, reversed in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.



                                                             /s/ Jonathan Tukel
                                                             /s/ Deborah A. Servitto
                                                             /s/ Michael J. Riordan




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