Barry a Seifman Pc v. Raymond Guzall III ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
BARRY A. SEIFMAN, P.C., f/k/a SEIFMAN & UNPUBLISHED
GUZALL, P.C., SEIFMAN & ASSOCIATES, January 17, 2017
P.C., and THE LAW ADVOCATE, and BARRY
A. SEIFMAN,
Plaintiffs/Counter-Defendants-
Appellees,
v No. 328643
Oakland Circuit Court
RAYMOND GUZALL, III and LAW OFFICES LC No. 2012-125053-CZ
OF RAYMOND GUZALL, III, P.C.,
Defendants-Appellants.
Before: TALBOT, C.J., and JANSEN and HOEKSTRA, JJ.
PER CURIAM.
In this appeal, defendants/counter-plaintiffs Raymond Guzall, III and his law firm, the
Law Offices of Raymond Guzall III, P.C., challenge the trial court’s appointment of a
“Discovery Master,” an independent attorney who provided services to the parties and the trial
court in an effort to resolve various disputes. Guzall also contends that the trial court lacked the
authority to enter a written order after the parties accepted a case evaluation award pursuant to
MCR 2.403. We affirm.
I. FACTS
Plaintiffs, Barry A. Seifman, and his law firm, Barry A. Seifman, P.C., f/k/a Seifman &
Guzall, P.C., Seifman & Associates, P.C., and the Law Advocate (Seifman), filed suit against
Guzall in February, 2012. Generally, Seifman alleged that Guzall, a former minority shareholder
of Seifman’s firm, had improperly taken clients and client files from Seifman’s firm when Guzall
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decided to leave the firm.1 Guzall filed a counter-complaint, alleging a variety of claims against
Seifman.2
From the outset, numerous motions were filed by the parties.3 On May 23, 2012, the trial
court entered an order appointing attorney William Booth as a “Discovery Master.” Booth was
to provide the court with recommendations regarding discovery disputes. Both parties were
ordered to deposit $2,500 into escrow, from which Booth’s fees would be paid.4 At a subsequent
hearing, the trial court asked the parties to submit several non-discovery motions to Booth before
bringing them before the court. On June 27, 2012, Guzall wrote a letter to Booth in which he
questioned whether the order appointing Booth to handle discovery matters provided Booth with
the authority to handle these non-discovery matters. But rather than ask that Booth not consider
the issues, Guzall asked Booth to seek an order from the court granting him the authority to
handle these non-discovery issues. Guzall also requested that all discovery issues be submitted
to Booth in writing.5
While no party raised an issue regarding the appointment with the trial court, the
Supreme Court Administrator’s Office was made aware of the May 23, 2012 order. On July 16,
2012, SCAO’s regional administrator sent a letter to the judge presiding over the matter
questioning whether the trial court had authority to appoint a discovery master or to require the
parties to pay Booth’s fees.6 Subsequently, the court entered an order appointing Booth as both
discovery master and facilitator.7 The trial court later entered an order vacating the May 23,
2012 order that originally appointed Booth solely as discovery master.8 Booth’s appointment as
facilitator was never rescinded by the trial court.
1
Complaint, February 17, 2012; LCF.
2
Counter-complaint, March 8, 2012; LCF.
3
Register of Actions, LCF.
4
Order, May 23, 2012; LCF.
5
June 27, 2012 Letter from Guzall to Booth; attached as Exhibit 8 to Guzall’s Motion to Recuse
Judge James Alexander, March 11, 2013, LCF; attached as Exhibit 10 to Guzall’s Brief on
Appeal.
6
SCAO Letter Dated July 16, 2012; attached as Exhibit B to Guzall’s Reply concerning Motion
to Recuse Judge Alexander, March 18, 2013, LCF; attached as Exhibit 14(B) to Guzall’s Brief
on Appeal.
7
Order, July 5, 2012; LCF.
8
Order, July 20, 2012; LCF (entered on July 24, 2012).
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Booth assisted the parties and the trial court from the date of his initial appointment until
July 18, 2012. He submitted a final bill for his services in late November, 2012.9 Shortly
thereafter, Guzall filed the first of several motions challenging Booth’s appointment as discovery
master and requesting the return of the money he paid into escrow for Booth’s services.10 The
trial court rejected the challenge, and ordered that Booth’s total fee of $4,080 be paid from the
escrow account.11 Guzall continued to seek a return of his money in various motions, all of
which were rejected by the trial court.12
In 2015, Seifman moved for summary disposition with respect to his claims against
Guzall. Within this motion, Seifman contended that Guzall wrongfully removed client files
when he left Seifman’s firm, and that Guzall admitted to this fact in his deposition.13 At a
motion hearing held in the morning of May 13, 2015, Guzall admitted to removing client files.14
At the conclusion of the hearing, the trial court denied Seifman’s motion “except to the extent of
the removing of the [client] files.” The trial court “grant[ed] summary disposition in [Seifman’s]
favor with respect to that.”15 That afternoon, the parties participated in case evaluation pursuant
to MCR 2.403.16 Within a week after the motion hearing, Seifman filed an order for entry under
the 7-day rule, MCR 2.602(B)(3).17 The proposed order stated that the motion was granted “as
to the allegations in [Seifman’s] Complaint that Raymond Guzall III improperly removed the
physical client files from the law offices of Barry A. Seifman P.C.”18 Within 7 days, Guzall
9
Professional Services Invoice, November 28, 2012; included within Exhibit 5 to Guzall’s
Motion to Quash Order, February 5, 2013, LCF; attached as Exhibit 11 to Guzall’s Brief on
Appeal.
10
Motion to Adjourn Case Evaluation and Trial, and for the Return of Escrowed Funds,
December 12, 2012; LCF.
11
Motion Hearing, December 19, 2012, p 7; Order, January 22, 2013; LCF (entered on January
23, 2013).
12
Order, February 1, 2013, LCF (entered February 14, 2013); Motion to Quash Order, February
5, 2013, LCF; Motion for Reconsideration, February 11, 2013, LCF; Motion for
Reconsideration, February 25, 2013, LCF; Opinion and Order, March 5, 2013, LCF; Motion to
Recuse Judge Alexander, March 11, 2013, LCF; Opinion and Order, March 20, 2013, LCF;
Motion for Reconsideration, April 9, 2013, LCF; Opinion and Order, April 18, 2013, LCF;
Opinion and Order, June 12, 2013, LCF.
13
Motion for Summary Disposition, March 2, 2015, LCF.
14
Motion Hearing, May 13, 2015, p 20.
15
Id. at 34-35.
16
Notice of Acceptance, June 11, 2015; attached as Exhibit 1 to Guzall’s Motion for Entry of
Order, June 24, 2015; attached as Exhibit 1 to Guzall’s Supplemental Brief on Appeal.
17
Notice of Entry of Order, May 19, 2015; LCF.
18
Id.
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objected to the order. While he did not contest having removed client files, Guzall challenged
whether the word “improperly” should be included in the court’s order.19
On June 11, 2015, the trial court’s case management office notified the parties that both
sides accepted the case evaluation award.20 On June 24, 2015, Guzall filed a motion requesting
that, in light of the fact that the award was mutually accepted, the trial court enter an order
closing the case.21 After holding a hearing,22 the trial court signed two orders on July 13, 2015.
The first stated that Seifman’s motion for summary disposition was granted “as to the allegations
in [Seifman’s] Complaint that Raymond Guzall III improperly removed the physical client files
from the law offices of Barry A. Seifman P.C.”23 The second closed the case for the reason that
the case evaluation award had been accepted.24
II. DISCOVERY MASTER
Guzall contends that the trial court lacked the authority to appoint Booth as a discovery
master and to require the parties to pay Booth’s fees. Guzall also contends that the trial court
should have made a determination regarding the reasonableness of Booth’s fees. We conclude
that once the parties accepted the case evaluation award, Guzall lost the ability to appeal this
earlier order.
In CAM Const v Lake Edgewood Condo Ass’n, the plaintiff filed a four-count
complaint.25 The trial court granted summary disposition in favor of the defendant with regard to
count IV of the complaint, and that decision was not appealed.26 The matter was submitted to
case evaluation.27 Both parties accepted the case evaluation award.28 After this acceptance, the
parties disputed whether the trial court should enter an order dismissing the entire case with
prejudice pursuant to MCR 2.403(M)(1), or whether the plaintiff could, despite having accepted
the case evaluation award, reserve the right to appeal the trial court’s decision granting summary
19
Objection to Proposed Order, May 26, 2015; LCF.
20
Notice of Acceptance, June 11, 2015.
21
Motion for Entry of Order, June 24, 2015; LCF.
22
Motion Hearing, July 1, 2015.
23
Order, July 13, 2015 (entered on July 14, 2015).
24
Order, July 13, 2015 (entered on July 14, 2015).
25
Cam Const v Lake Edgewood Condo Ass’n, 465 Mich. 549, 550-551; 640 NW2d 256 (2002).
26
Id. at 551.
27
Id. at 551-552.
28
Id.
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disposition with regard to count IV.29 The trial court ordered the parties to craft an order that
would reserve the plaintiff’s right to appeal the summary disposition ruling.30
The plaintiff then appealed the summary disposition ruling in this Court.31 This Court
dismissed the appeal, concluding that “a party cannot appeal an earlier order entered after a
subsequent acceptance of the mediation award.”32 Our Supreme Court affirmed, explaining:
The language of MCR 2.403(M)(1) could not be more clear that accepting
a case evaluation means that all claims in the action, even those summarily
disposed, are dismissed. Thus, allowing bifurcation of the claims within such
actions, as plaintiff suggests, would be directly contrary to the language of the
rule. We, therefore, reject plaintiff’s position because it is contrary to the court
rule’s unambiguous language that upon the parties’ acceptance of a case
evaluation all claims in the action be disposed.[33]
The Court went on to explain that “[i]f all parties accept the panel’s evaluation, the case is
over.”34 Because the evaluation award was paid within 28 days as contemplated by MCR
2.403(M)(1), the Court held that “the circuit court should have granted defendant’s motion to
dismiss, without condition or reservation.”35
In this matter, the parties likewise accepted the case evaluation award. By doing so, the
parties “dispose[d] of all claims in the action . . . .”36 We conclude that any claims arising from
the trial court’s appointment of a discovery master were likewise disposed of by the acceptance
of the case evaluation award. Under MCR 2.403(A)(1), the entire action was submitted to case
29
Id. at 552.
30
Id.
31
Id. at 553.
32
Id.
33
Id. at 555 (footnote omitted).
34
Id. at 557.
35
Id.
36
MCR 2.403(M)(1). We note that MCR 2.403(M)(2) permits only part of a case to be
submitted to case evaluation pursuant to MCR 2.403(A)(3). Pursuant to MCR 2.403(A)(3), a
“court may exempt claims seeking equitable relief from case evaluation for good cause shown on
motion or stipulation of the parties if the court finds that case evaluation of such claims would be
inappropriate.” These provisions are not implicated in the present matter.
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evaluation.37 And, by accepting case evaluation, the entire action was disposed of. As such,
Guzall cannot challenge the appointment or payment of the discovery master in this Court.38
In his appellate brief, Seifman makes a conclusory argument that Guzall’s appeal of this
issue is frivolous, and requests that this Court order Guzall to pay Seifman’s attorney fees. We
find that Seifman has waived the issue by failing to adequately address the merits of the
argument.39 Further, although we do not find Guzall’s argument compelling, that fact alone does
not merit the imposition of sanctions.40
III. SUMMARY DISPOSITION ORDER
Guzall also contends that once the parties accepted the case evaluation award, the trial
court could not enter any order other than one dismissing the case, and thus, its simultaneous
entry of an order granting summary disposition with regard to the removal of client files must be
vacated. We disagree.
While the order at issue was entered after the acceptance of the case evaluation award,
the trial court’s decision to grant summary disposition with regard to the issue of the removal of
client files was made before the parties accepted the case evaluation award. The only reason a
written order memorializing the trial court’s decision was not entered before the acceptance of
the case evaluation award was because Guzall disagreed with the wording of an order proposed
by Seifman. Thus, this was not the situation Guzall describes in his brief – a surreptitious
attempt by Seifman to have the trial court enter an order resolving an issue that was disposed of
by the acceptance of the case evaluation award.41 Rather, it was simply the written
memorialization of a decision made by the trial court before the matter was even submitted to
case evaluation. We find no error in what amounted to the ministerial entry of a written order
memorializing a ruling made well before the parties accepted case evaluation.
37
See id. at 555 n 6 (explaining that under MCR 2.403(A)(1), “it is the civil action, not the
claims within the civil action, that is submitted to case evaluation[.]”).
38
Even if Guzall could raise these challenges, we would find that he clearly waived them. A
party that acquiesces to a trial court’s decision waives any claim of error arising from that
decision. People v Carter, 462 Mich. 206, 219-220; 612 NW2d 144 (2000). The record
demonstrates that Guzall willfully engaged with Booth after his appointment, even requesting
that Booth’s authority be broadened to encompass additional issues. Guzall never raised any
contention of error with the trial court until certain rulings had gone against him and Booth had
submitted a bill for his services. Guzall clearly acquiesced to the appointment, and his belated
attempt to challenge it could not excuse that fact.
39
Ykimoff v Foote Mem Hosp, 285 Mich. App. 80, 106; 776 NW2d 114 (2009).
40
See Kitchen v Kitchen, 465 Mich. 654, 662; 641 NW2d 245 (2002) (that a party does not
ultimately prevail does not render that party’s position frivolous).
41
Guzall describes Seifman as only seeking the entry of the order after the mutual acceptance of
the case evaluation award. This is simply not what occurred.
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Seifman contends that this portion of the appeal is vexatious under MCL 7.216(C)(1)(a),
and seeks sanctions against Guzall. An appeal is vexatious under this rule if it was “taken for
purposes of hindrance or delay or without any reasonable basis for belief that there was a
meritorious issue to be determined on appeal[.]”42 With regard to his challenge to the summary
disposition order, Seifman contends that Guzall “filed this appeal solely as a means of hindering
the adjudication of other, separate cases.”43 From the record before us, we are unable to reach
that conclusion. It does appear that the order at issue may have some effect on another
proceeding. But while we disagree with Guzall’s argument, nothing indicates that he contested
the order in this Court solely to delay another proceeding. Accordingly, we decline to sanction
Guzall for appealing this particular order.
Affirmed.
/s/ Michael J. Talbot
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
42
MCR 7.216(C)(1)(a).
43
Seifman’s Supplemental Brief on Appeal, p 10.
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