                         STATE OF MICHIGAN

                          COURT OF APPEALS



DONALD ANDREWS,                                                   UNPUBLISHED
                                                                  April 16, 2015
              Plaintiff-Appellant,

v                                                                 No. 319326
                                                                  Ingham Circuit Court
FIXEL LAW OFFICES, PLLC, and JULIE                                LC No. 12-001222-CZ
MCDONALD,

              Defendants-Appellees.


DONALD ANDREWS,

              Plaintiff-Appellant,

v                                                                 No. 320394
                                                                  Ingham Circuit Court
FIXEL LAW OFFICES, PLLC, and JULIE                                LC No. 12-001222-CZ
MCDONALD,

              Defendants-Appellees.


Before: OWENS, P.J., and JANSEN and MURRAY, JJ.

PER CURIAM.

       This case arises out of plaintiff’s allegations that defendants—a law firm he clerked for
while in law school and an attorney involved with that firm—defamed him and committed legal
malpractice. The trial court’s dismissal of both of these claims underlies plaintiff’s appeal in
Docket No. 319326. Its imposition of fees and costs underlies his appeal in Docket No. 320394.
Both appeals are by right and in both cases we affirm.

                                      I. BACKGROUND

       The specific acts triggering this lawsuit occurred in the fall of 2011, although the
background events underlying them stretch back nearly ten years. In the early 2000s, plaintiff
sustained several misdemeanor convictions in Virginia, which included failing to stop at the
scene of an accident, hit and run, unauthorized use of a motor vehicle, and an offense called
“nuisance animal.” As a result of these convictions, in 2004 plaintiff was discharged from the

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United States Navy under less than honorable conditions. By 2008, plaintiff faced another
misdemeanor charge, this time for failure to comply with housing regulations. That same year,
he was found guilty of improperly displaying tags on a vehicle. Plaintiff’s legal problems
climaxed in 2010 when he served 45 days in jail for civil contempt of court resulting from his
failure to pay child support. Although he later sued the Virginia state court judge who imposed
that penalty for personally violating his civil rights, the federal district court in Virginia
dismissed his lawsuit. Andrews v Paxson, unpublished opinion of the United States District
Court for the Eastern District of Virginia, issued February 16, 2012 (Docket No. 3:11-CV-518).
His appeals to the Fourth Circuit and United States Supreme Court were unsuccessful. See
Andrews v Paxson, 478 Fed Appx 781 (CA 4, 2012); Andrews v Paxson, ___ US ___; 133 S Ct
1270; 185 L Ed 2d 209 (2013).

        In the midst of these events, plaintiff applied to and was accepted by the Thomas M.
Cooley Law School (“Cooley”) in the fall of 2009. As part of the application process, Cooley
required applicants to disclose any misdemeanor convictions or other similar legal issues.
Plaintiff did not disclose any of his convictions, his less than honorable discharge, or his child
custody battle until well into his law school career, when he sent an email to Cooley’s dean on
June 17, 2011. Cooley responded by placing plaintiff on administrative probation and initiating
an investigation into these late disclosures.

        Three months later, plaintiff was hired as a law clerk for defendant Fixel Law Offices,
PLLC (the “law firm”) by the firm’s owner, Joni Fixel (“Fixel”). His pay was $10 an hour.
Plaintiff testified that during his employment, he occasionally discussed personal matters with
Fixel, including his custody dispute in which he was representing himself. Plaintiff claimed that
Fixel would offer advice about his “filing motions or whatever,” even going so far as to review
several of them. Apparently, her only suggested change to a document was to describe the
settlement amount as based “upon reasonable belief.” Defendant Julie McDonald, who formerly
had an “of counsel” relationship with the law firm, also spoke to plaintiff about his custody
dispute, encouraging him to disclose to the Virginia court that he was in law school. Plaintiff
admitted that he never had a written contract with defendants for legal services, nor did he ever
make any appointment with defendants regarding legal matters, let alone receive or pay any bills
or retainers.

        By November 2011, Fixel and McDonald developed concerns about plaintiff’s fitness to
practice law, and plaintiff was terminated. On November 10, 2011, following a phone call to
Cooley, McDonald wrote a letter to the dean of Cooley voicing her concerns. In it, McDonald
accused plaintiff of being a “male chauvinist,” detailing several examples of his alleged sexist
behavior. She elaborated the details of his custody dispute, including that he had “bragged” both
about hiding income to avoid child support payments and about failing to disclose his residence
in Michigan to the Virginia court or his ex-wife. Plaintiff also allegedly declined to disclose his
prior convictions to Cooley “so he could get into school, deal with it later after the school had
time ‘invested’ in him, and still graduate.” Perhaps most objectionable to plaintiff was
McDonalds’ assertion, “I honestly believe that he has sociopathic and/or delusional tendencies.”

        In response, Cooley launched a formal disciplinary investigation in November 2011.
Ultimately, Cooley dismissed that investigation in June 2012 since McDonald’s letter was
founded primarily on hearsay. However, two months later, Cooley launched a formal
disciplinary investigation regarding plaintiff’s late disclosures. This investigation—which was
                                                -2-
apparently separate from the investigation immediately ensuing his late disclosures—lasted from
August 2012 to December 2012 and resulted in plaintiff’s graduation being delayed until January
2013.

                                      II. PROCEEDINGS

        In the meantime, on November 13, 2012, plaintiff filed a two-count complaint against
defendants, alleging defamation (Count I) and legal malpractice (Count II). The former
consisted of McDonald’s statement that “I honestly believe that he [plaintiff] has sociopathic
and/or delusional tendencies.”1 The latter consisted of defendants’ alleged disclosures of
plaintiff’s confidential information. The Complaint alleged that defendants’ review of plaintiff’s
filings in the Virginia court and defendants’ instruction that plaintiff should “tell the Virginia
court the truth” established the attorney-client relationship underlying the accusations in Count
II. Defendants answered and following discovery moved for summary disposition under MCR
2.116(C)(10).

         Regarding defamation, defendants asserted that the statement was not actionable because
(1) it was true based on plaintiffs’ prior criminal history, incarcerations, and extensive civil
litigation; (2) it was McDonald’s honest opinion, which was not provable as false, and (3) the
statement was otherwise rhetorical hyperbole, which colorfully described plaintiff. Defendants
also added that the law firm was not liable since Fixel had nothing to do with the letter.
Defendants likewise contested the malpractice claim, since there was no attorney-client
relationship and plaintiff otherwise provided no expert. Plus, defendants maintained, McDonald
had a duty to disclose plaintiff’s lack of fitness to practice law.

       Plaintiff responded that McDonald had used specific medical terminology and that the
court as fact-finder must determine its veracity. Moreover, plaintiff argued that the statement
was not hyperbolic because, in context, McDonald’s letter accused plaintiff of many
wrongdoings. Plaintiff maintained that the law firm was also liable because Fixel and McDonald
discussed the contents of the letter, which was written on firm letterhead. Regarding the
attorney-client relationship, plaintiff argued that the legal advice he received was part of his
compensation package with the firm in the form of a quasi-contract, or alternatively, that he was
a potential client of the firm and entitled to privileged communication.

       A motion hearing ensued after which the trial court issued an opinion and order granting
defendants’ motion. Regarding defamation, the court held that McDonald provided only an
opinion, neither provable as false nor capable of being reasonably interpreted as actual fact. As
the court explained:

       Here, McDonald stated that she believes that Plaintiff has sociopathic and/or
       delusional tendencies. Consequently, McDonald does not state that Plaintiff has a
       diagnosable medical condition, but a subjective opinion that Plaintiff’s statements
       concerning his disclosures to Cooley and unwillingness to disclose facts of ethical


1
  Count I alleged that McDonald’s entire letter was defamatory; however, the trial court
dismissed all portions of Count I except the statement cited above.

                                               -3-
       concern tend to resemble characteristics of a medical condition. This is not
       definitively provable as false and cannot reasonably be interpreted as stating an
       actual fact. Therefore, this statement is not actionable as a defamation claim.
       [Emphasis in original.]

The court likewise rejected plaintiff’s claim that he sought legal advice from defendants or that
legal advice was offered in exchange for his employment. On this point, the court elaborated:

       Plaintiff establishes “one occasion” where he sought legal advice from Fixel to
       review four pleadings he planned to file in his Virginia custody dispute, but does
       not show that any confidential information was passed between the two outside of
       reviewing the documents and Plaintiff testified that this was “probably the last
       time” he discussed legal matters with Fixel. Thus, Plaintiff cannot establish any
       negligence or proximate cause stemming from Fixel reviewing Plaintiff’s
       pleadings. In result, Plaintiff’s legal malpractice claim fails as a matter of law.
       [Citation omitted.]

        Accordingly, plaintiffs’ claims were dismissed and he appealed that decision. In the
meantime, defendants moved for fees and costs under MCR 2.405. Plaintiff moved for a stay,
but the trial court proceeded to award fees and costs anyway, noting only that plaintiff had failed
to file a notice of hearing on his motion. Plaintiff then appealed the order imposing fees and
costs, which totaled $34,474, and moved this Court for a stay. Having denied that request,2 we
now turn to the substance of plaintiff’s appeal.

                                   III. DOCKET NO. 319326

        Plaintiff’s claims in Docket No. 319326 are essentially a recapitulation of his arguments
opposing summary disposition below. The trial court dismissed both of his claims under MCR
2.116(C)(10), hence our review is de novo. Lear Corp v Dep’t of Treasury, 299 Mich App 533,
536; 831 NW2d 255 (2013). “A motion for summary disposition pursuant to MCR 2.116(C)(10)
should be granted when there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.” Curry v Meijer, Inc, 286 Mich App 586, 590; 780 NW2d 603
(2009) (citation omitted). “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In
reviewing this issue, we consider all of the pleadings, affidavits, depositions, admissions and
other documentary evidence. Corely v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342
(2004). “Where the burden of proof rests with the nonmoving party, that party must respond
with documentary evidence to demonstrate the existence of a genuine issue of material fact for
trial.” Curry, 286 Mich App at 591 (citation omitted). The nonmoving party’s failure to respond
with such evidence results in judgment for the moving party. Id. at 591 (citation omitted).




2
 Andrews v Fixel Law Offices, PLLC, unpublished order of the Court of Appeals, entered June
11, 2014 (Docket No. 320394).

                                                -4-
          For the reasons stated below, we find no error in the dismissal of both of plaintiff’s
claims.

                                        A. DEFAMATION

        In challenging the dismissal of his defamation claim, plaintiff claims the trial court erred
in holding both that McDonald’s statement did not state a medical condition and that her
statement was not provable as false. “The elements of a defamation claim are: (1) a false and
defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third
party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either
actionability of the statement irrespective of special harm (slander per se) or the existence of
special harm caused by publication.” Mitan v Campbell, 474 Mich 21, 24; 706 NW2d 420
(2005) (citations omitted). To be actionable, a statement must be provable as false and state
actual facts about the plaintiff. Kevorkian v American Medical Ass’n, 237 Mich App 1, 5-6; 602
NW2d 233 (1999); Ireland v Edwards, 230 Mich App 607, 616-617; 584 NW2d 632 (1998).
Thus, if the statement “could not reasonably interpreted as stating actual facts about the
plaintiff,” the statement is not actionable. Kevorkian, 237 Mich App at 6. “Rhetorical
hyperbole” or “vigorous epithet” is not sufficient, id., even if such language would be “highly
offensive to the person criticized,” Ghanam v Does, 303 Mich App 522, 546; 845 NW2d 128
(2014).

       As they did below, the parties argue at length about whether McDonald’s statement was
provable as false or stated actual facts. To this point, the trial court was right to focus on the
word, “tendencies.” A tendency is “an inclination, bent, or predisposition to something.”
Random House College Dictionary (rev ed, 1988). Thus, in accusing defendant of having
“sociopathic and/or delusional tendencies,” McDonald was expressing her opinion that plaintiff
was inclined to behave in sociopathic or delusional ways. This can hardly be interpreted as a
medical diagnosis as plaintiff argues.

        Further, accusing someone of having “tendencies” in this context is hardly provable as
false. In this respect, our case is akin to Ghanam in which the plaintiff alleged defamation when
he was accused of, among other things, “probably” being a thief. Ghanam, 303 Mich App at
548. As this Court explained, “the use of the word ‘probably’ makes the purported asserted fact
hardly provable.” Id. Considering that “probably” means “likely to occur or prove true,”
Random House College Dictionary (rev ed, 1988), the non-actionable accusation in Ghanam was
even stronger than the one here.

        And while this conduct, if true, is certainly rude and untruthful, it does not show plaintiff
is sociopathic or delusional, let alone that he has those tendencies.3 To the contrary, his conduct
as to Cooley reveals a cunning and manipulative modus operandi without regard for social
decorum. There is nothing psychopathic or delusional about plaintiff allegedly wanting to avoid
unfavorable consequences that could result from honest disclosures (e.g., plaintiff allegedly


3
 Sociopath is defined as “a person, as a psychopathic personality, whose behavior is antisocial
or sexually deviant.” Random House College Dictionary (rev ed, 1988). Delusion is defined in
part as “a fixed, dominating, or persistent false mental conception resistant to reason.” Id.

                                                -5-
avoided disclosing his convictions to Cooley “so he could get into school”), as it instead reveals
that plaintiff was very much in touch with reality. In context, then, McDonald’s conclusion that
plaintiff had “sociopathic and/or delusional tendencies”—although undoubtedly insulting to
plaintiff—is a non sequitur in the context of McDonald’s letter. For this reason, “[a]reasonable
reader would not take the statement literally.”4 Ghanam, 303 Mich App at 548. It is not
actionable, and we may affirm on this alternate ground as well. See Detroit International Bridge
Co v Commodities Export Co, 279 Mich App 662, 668; 760 NW2d 565 (2008) (“we will not
reverse a trial court if it reached the right result for an alternate reason.”).5

                                   B. LEGAL MALPRACTICE

        Plaintiff next asserts the trial court erred in dismissing his malpractice claim. To
establish legal malpractice, a plaintiff must show: “(1) the existence of an attorney-client
relationship, (2) negligence in the legal representation of the plaintiff, (3) that the negligence was
the proximate cause of an injury, and (4) the fact and the extent of the injury alleged.” Kloian v
Schwartz, 272 Mich App 232, 240; 725 NW2d 671 (2006) (citation omitted).

        In dismissing plaintiff’s claim, the trial court ruled that no attorney-client relationship
existed. Defendants argue at length that we should affirm this ruling since the parties had no
formal contract. But the attorney-client relationship is not established by a formal contract.
Macomb Co Taxpayers Ass’n v L’Anse Creuse Pub Schs, 455 Mich 1, 11; 564 NW2d 457
(1997). Rather, the relationship is established “when it is shown that the advice and assistance of
the attorney are sought and received in matters pertinent to his profession.” Id., citing 7 Am Jur
2d, Attorneys at Law, § 118, pp 187-188.

        Plaintiff seizes on this, arguing that an attorney-client relationship was implied. He bases
this on (1) Fixel’s “personal” questioning into his custody dispute, (2) Fixel’s review of certain
filings in that dispute, (3) Fixel’s suggestions regarding discovery against his ex-wife, (4) and
McDonald’s suggestion that he disclose to the Virginia court that he was a law student.

        Most of this is too general to be considered legal advice. Indeed, regarding the personal
questioning, plaintiff simply recited Fixel’s generic questions asking him “have you tried this
and could you do this?” Fixel’s review of plaintiff’s filings offers nothing more, considering she
only told him, “They look good,” before offering a stylistic suggestion. No one could reasonably
construe such interaction—without more detail—as involving legal advice.


4
  In view of this, defendants’ assertion of truth as a defense is not helpful. Similarly, plaintiff’s
claim that he has not been diagnosed with any mental disorders makes no difference in this
context.
5
  Additionally, the law firm is not otherwise liable where plaintiff did not rebut defendants’
evidence that McDonald’s letter was not sent while in the discharge of her duties. See
Linebaugh v Sheraton Michigan Corp, 198 Mich App 335, 341; 497 NW2d 585
(1993) (dismissing defamation against a corporate defendant because the defamatory cartoon
was not drawn in the discharge of the agent’s duties or done in relation to a matter about which
the agent’s duties required him to act).


                                                 -6-
         This leaves us with the only specific “advice” plaintiff has cited, namely: Fixel’s
suggestion that in his discovery dispute with his ex-wife, he should “pull forward that she’s got
all this money and is simply taking you to court all the time to harass you,” and McDonald’s
urging him to “tell the Virginia court the truth.” As for the former, Fixel’s statement appears
more like supportive encouragement from a friend who has spent hours in the car with plaintiff
listening to “personal things” than formal advice from an attorney. Similarly, merely telling
someone to be truthful is hardly the legal advice unique to the attorney-client relationship.

        It bears further emphasis that the parties’ interaction is a far cry from Macomb Co
Taxpayers on which plaintiff relies to show an implied attorney-client relationship. In that case,
the Court found an implied attorney-client relationship where the individuals at issue were not
only involved in specific litigation, but they had also acted unambiguously upon the legal advice
of attorneys representing the organizations involved in that same litigation. Macomb Co
Taxpayers Ass’n, 455 Mich at 11. None of those circumstances is present here, however.
Rather, plaintiff obtained “legal advice”—more correctly denoted as simply “advice”—while
doing legal work as a law student for attorneys. The very nature of this job involves his learning
the legal system. His dealings with defendants in this context are far too attenuated to establish
the speculative attorney-client relationship he now claims.

        Even if an attorney-client relationship existed, however, plaintiff does not explain how
defendants breached his confidence. Instead, he offers only the conclusory assertion that
McDonald’s letter “reveal[ed] matters of privilege.” This is not enough to oppose summary
disposition. Rose v Nat’l Auction Group, Inc, 466 Mich 453, 470; 646 NW2d 455 (2002).
Regardless, to the extent the letter referenced information available in the public record (such as
his custody dispute and prior convictions), this argument would not help plaintiff establish a
breach. See Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 619-620; 576 NW2d
709 (1998) (“the attorney-client privilege is limited to communications between employee and
counsel, not facts” (emphasis in original)). Plaintiff’s claim that defendants violated MRPC 1.6
(regarding confidentiality) fares no better, especially where plaintiff otherwise presented no
expert testimony as is generally required to sustain a legal malpractice claim. See Beattie v
Firnschild, 152 Mich App 785, 792-793; 394 NW2d 107 (1986) (violation of the rules of
professional conduct are not negligence per se and do not relieve a plaintiff of the general
obligation to present expert testimony to establish legal malpractice).6 There is simply no legal
malpractice in this case.

                                   IV. DOCKET NO. 320394




6
  Although the Michigan Rules of Professional Conduct did not expressly impose a duty on
McDonald to reveal the information contained in the letter, McDonald’s belief that she had a
duty to disclose was not unfounded. See MRPC 5.3(b) (requiring supervisory lawyers to ensure
that the conduct of their nonlawyer assistants is compatible with a lawyer’s professional
obligations). On this score, MRPC 3.3 requires candor to a tribunal, and plaintiff’s refusal to
disclose his residence and education to the Virginia court is undisputed.

                                                -7-
        This brings us to the trial court’s award of fees and costs against plaintiff under MCR
2.405, as well as the court’s denial of plaintiff’s motion to stay the proceedings. We conclude
plaintiff’s challenges here are meritless as well.

                                     A. FEES AND COSTS

        The offer of judgment rule, MCR 2.405, allows a party to submit to an adverse party a
written offer to stipulate to the entry of a judgment in a sum certain. If the offer is rejected and
the adjusted verdict is more favorable to the offeree (here, defendants) than the average of the
offer and counteroffer, the offeror (here, plaintiff) must pay the offeree’s actual costs. JC Bldg
Corp II v Parkhurst Homes, Inc, 217 Mich App 421, 426; 552 NW2d 466 (1996), citing MCR
2.405(D). The adjusted verdict includes the verdict plus interest and costs from the date the
complaint was filed through the date of the offer. MCR 2.405(A)(5). “This Court reviews a trial
court’s decision to award sanctions under MCR 2.405 for an abuse of discretion.” JC Bldg, 217
Mich App at 426.7

       Here, plaintiff filed an offer of judgment in accordance with MCR 2.405(D) for $45,000.
Defendants’ counteroffer of $1,500 made the average offer $23,250. See MCR 2.405(A)(3).
Accordingly, because plaintiff ultimately received no award, defendants requested and received
costs and fees totaling $34,474. Plaintiff’s only challenge below—which he also raises on
appeal—was that the court’s ruling was premature since his appeal was pending at the time. But
“[u]nder MCR 7.208(I), a trial court has jurisdiction to award sanctions [under MCR 2.405]
despite the filing of a claim to appeal unless the Court of Appeals orders otherwise.” Edge v
Edge, 299 Mich App 121, 137; 829 NW2d 276 (2012). We did not order otherwise in this case,
and the trial court was right to reject plaintiff’s argument.

        Besides this, plaintiff also argues for the first time on appeal that the award was improper
because defendants’ counteroffer was insincere. See MCR 2.405(D)(3) (permitting the trial
court to refuse to award attorney fees in the interests of justice); see also Luidens v 63rd Dist
Court, 219 Mich App 24, 35; 555 NW2d 709 (1996) (an award of attorney fees may be
inappropriate where an offer is de minimis and made for “gamesmanship purposes rather than a
sincere effort at negotiation.”). However, we are hard-pressed to question defendants’ sincerity
where not only was plaintiff the first to invoke MCR 2.405, but also where his claims are totally
meritless. Considering that plaintiff waited to raise this argument until his appeal, he is in no
position now to accuse defendants of gamesmanship.

                                     B. MOTION TO STAY

       Finally, plaintiff claims the trial court erred in failing to stay the proceedings during the
pendency of this appeal. However, this Court also declined to stay the proceedings, and, more
importantly, plaintiff’s claims are otherwise meritless for the reasons already explained. His
request is therefore moot. Attorney General v Pub Serv Comm, 269 Mich App 473, 485; 713



7
  Plaintiff incorrectly recites the standard of review applicable to summary disposition as
applicable here.

                                                -8-
NW2d 290 (2005) (“An issue is moot if an event has occurred that renders it impossible for the
court to grant relief.”).

       Affirmed.

       Defendants may tax costs, having prevailed in full. MCR 7.219(A).



                                                         /s/ Donald S. Owens
                                                         /s/ Kathleen Jansen
                                                         /s/ Christopher M. Murray




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