James Farris v. County of Antrim ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
JAMES FARRIS, UNPUBLISHED
January 10, 2017
Plaintiff-Appellant,
v No. 329816
Antrim Circuit Court
COUNTY OF ANTRIM and WILLIAM M. LC No. 14-008902-NM
HERRERAN,
Defendants-Appellees.
Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ.
PER CURIAM.
James Farris filed suit in an attempt to hold Antrim County and a circuit court
administrator financially responsible for the deficient performance of his court-appointed
attorneys in a child protective proceeding. Farris’s sole grievance lies against those attorneys.
Because no act, omission, or contractual duty of the current defendants caused Farris’s harm, we
affirm the circuit court’s dismissal of Farris’s claims.
I. BACKGROUND
The allegations underlying this case arose during a child protective proceeding initiated
in 2010. James Farris originally retained attorney Gerald Charland to represent him in that
matter. When Farris could no longer pay his attorney fees, Antrim Circuit Court Judge Norman
Hayes appointed Charland to continue representing Farris at the county’s expense. In 2011,
Charland withdrew as counsel of record and Judge Hayes appointed Ross Hickman. During the
child protective proceeding, Judge Hayes terminated Farris’s parental rights to his son, KF.
Following an appeal, the child protective proceeding was remanded to the circuit court for
reconsideration in light of In re Sanders, 495 Mich. 394; 852 NW2d 524 (2014). In re Farris,
497 Mich. 959; 858 NW2d 468 (2015). The Department of Health and Human Services
thereafter dismissed the petition against Farris and returned KF to Farris’s custody.
In 2013, Farris filed a malpractice suit against Charland and Hickman in Grand Traverse
Circuit Court. Farris accused his attorneys of various negligent acts causing the termination of
his parental rights. In connection with that lawsuit, Farris deposed Charland on March 27, 2014.
Charland admitted that he did not have malpractice insurance during the time he represented
Farris, and still does not carry such insurance. Farris’s counsel inquired:
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Q. In order to be appointed, which you were briefly in the NA case, did
you have to have malpractice coverage?
A. Well, that actually became - - I forgot to - - after they appointed me,
the person who runs the appointments, I can’t remember his name, but mentioned
to me that I could take other appointments and he said, “But you have to have
malpractice insurance.” And I went, “Oh, I don’t have any.” And that was also
part of the . . . so there was a separate reason, as well as my problems with my
client, was that I didn’t have it. And I had forgotten that also was part of the
reason I wanted to be off it. I didn’t want somebody to criticize me for that.
I got on it without them saying it, and then one day he - - whoever it was
that ran the contract, came up and asked me if I wanted more appointments. And
then I was thinking about it and he says, well, you’ve just gotta have malpractice
insurance and we’ll go from there, and I went, oh, okay, I don’t have it. [Ellipsis
in original.]
Charland did not know if the malpractice insurance requirement was in writing.
On April 30, 2014, Farris deposed Antrim County Family Division Court Administrator
William H. Hefferan. Farris asked “what rules, regulations, policies, protocols, whatever you
want to call them, were in place . . . in the Family Divisions in Antrim County for the
appointment of counsel for indigents?” Hefferan directed Farris to a local administrative order
effective January 1, 2004. Farris continued that he understood “that there was also a requirement
that lawyers have malpractice insurance[.]” Hefferan indicated that this was the court’s
“practice” but that it had not been reduced to writing and it was not included in the
administrative order. As far Hefferan remembered, the requirement “must have come from” a
“conversation” with Judge Hayes. Hefferan could not recall, however, why Judge Hayes wanted
to ensure that appointed attorneys possessed malpractice insurance. Ultimately, Hefferan
described the malpractice insurance requirement as a “practice” and not a “policy” because it
was orally communicated and not in writing. It was still “something you would hope and expect
to do every time[.]”
In regard to how this requirement was communicated to attorneys, Hefferan described,
“Generally speaking, if a new, quote, unquote, new attorney contacted me and asked to be placed
on our rotation, . . . I would ask for a letter of interest and a copy of their malpractice insurance.”
In relation to “lawyers who have been around for awhile [sic],” Hefferan asserted, “Well, it’s
become clear to me now that” neither he nor his staff asked them for proof of insurance.
In relation to attorney Charland, Hefferan possessed no evidence that Charland carried
malpractice insurance and no proof that the court asked Charland for his policy before appointing
him to represent Farris. When asked why Charland was not advised of the insurance requirement
immediately, Hefferan responded, “I don’t have an answer for that.” Judge Hayes appointed
Charland even though he was not previously on the appointment list because Charland had been
representing Farris as retained counsel until that date. As of the date of Hefferan’s deposition,
every attorney on the appointment list carried the requisite insurance. That list no longer
included attorney Hickman. “As of last Friday he asked to be removed from, I say the list, our
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court appointments.” Hefferan requested that Hickman provide proof of malpractice insurance
and Hickman initially expressed an intent to secure such insurance. However, Hickman chose
instead to be removed from the appointment rotation. When asked why Hefferan had not
advised Hickman of the malpractice insurance requirement when he was first added to the list,
Hefferan replied, “Again, I do not have an answer for that.” Hefferan now asks for proof of
insurance annually from attorneys on the appointment list.
Following these depositions, Farris filed suit against Antrim County and Hefferan in
Antrim Circuit Court. The vast majority of Farris’s 39-page complaint outlines the facts
underlying the child protective proceedings and the various deficiencies in his attorneys’
performances. Not until page 36 does Farris reach the subject of the current dispute:
262. More than 50 years ago, the United States Supreme Court, in Gideon v
Wainwright, recognized the “obvious truth” that lawyers in criminal cases are
“necessities, not luxuries.”
263. For a long time, Michigan has honored this constitutional obligation by
delegating to each county, including Antrim, responsibility for funding and
administering trial-level indigent defense services within its borders, including
adjudications which may result in loss of parental rights.
264. Mr. Charland and Mr. Hickman, were appointed successor trial court
counsel for Mr. Farris pursuant to delegation by contract.
265. The County should and did require that each lawyer appointed through this
process maintain adequate financial responsibility, including malpractice
insurance coverage.
266. Mr. Charland and Mr. Hickman, successively, in representing Mr. Farris as
aforesaid, was acting as the ostensible or actual agent of Antrim County in
fulfilling its delegated obligations, and thus the County is responsible for their
acts and omissions under respondeat superior principles.
267. The contract between Antrim County and Mr. Farris’s lawyers, entered
pursuant to their appointment as his counsel as aforesaid, was entered with the
intent to benefitting him.
268. The benefit was, of course, to satisfy a legal obligation and, made Mr. Farris
therefore, a third party beneficiary of the contract who acquires rights under that
contract.
269. Under MCL 600.1405 any person for whose benefit a promise is made has
the right to enforce it, even though he or she is not a party to the contract.
270. Mr. Farris as a citizen may sue as a third party beneficiary to the contract by
which Mr. Charland and Mr. Hickman were appointed as his counsel because, if
Antrim County had not fulfilled its obligation to provide indigent legal counsel, it
would have been subject to a direct claim for damages.
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271. Mr. Hefferan identified as Defen[d]ant, is the Antrim County Family
Division Court Administrator, a job he has held for nearly 17 years.
272. Pursuant to its own administrative order, Antrim County took on the
responsibility of managing indigent criminal defense attorney appointments,
which included, among others, appointments of attorneys in termination of
parental rights cases.
273. That policy was required by the Supreme Court to be effective January 1,
2004.
274. That policy was in effect during all the times relevant to the events
described in . . . this Complaint.
275. It was the practice of Antrim County to require malpractice insurance from
every lawyer as a condition of being on the list to receive such appointments.
276. In the case of Mr. Charland’s appointment to represent Mr. Farris, he was
never even required to apply to be on the list and he was not on the list.
277. In the case of Mr. Hickman’s appointment to represent Mr. Farris, he was on
the list although he had never provided proof of malpractice insurance.
278. It was a directive from the Judge of the Family Division of the Antrim
County Circuit Court that attorneys on the list prove their malpractice insurance
by providing a copy of their policy or other written proof that they were insured
directly to the Court Administrator.
279. Incidentally, that Judge who implemented that policy was the same Judge
Hayes who decided the underlying termination of parental rights case.
280. It was Judge Hayes’ directive to Mr. Hefferan that the policy and
expectation of the Antrim Court would be for all appointed attorneys to have and
maintain that malpractice insurance.
281. Even though Mr. Hefferan calls it a “practice” and not a “policy” of Antrim
County, all he means by the difference is that the former [practice], while
applicable every time the situation comes up, is not in writing, whereas the latter
[policy] is.
282. Over the years the policy/practice has been in effect, Mr. Hefferan did
nothing to confirm or assure that the lawyer who is being considered for
appointment had malpractice insurance in place.
283. His failure over many years to take any action whatever to implement the
policy/practice was and is grossly negligent.
284. Neither Mr. Charland nor Mr. Hickman has or had malpractice insurance.
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285. Neither Mr. Charland nor Mr. Hickman ever provided any documentation to
Mr. Hefferan in particular or to Antrim County in general asserting that they had
malpractice insurance.
286. And yet both Mr. Charland (who is not on the list) and Mr. Hickman (who
was on the list) received appointment to represent Mr. Farris all as aforesaid.
287. Mr. Hefferan has acknowledged that he never talked to Mr. Hickman or to
Mr. Charland about the requirement of malpractice insurance.
288. Mr. Hefferan has acknowledged that he never wrote to Mr. Charland or Mr.
Hickman about the requirement of malpractice insurance.
289. Mr. Charland’s and Mr. Hickman’s lack of financial responsibility has
diminished the value and prospects of Mr. Farris’ otherwise meritorious legal
malpractice case against them.
While this case was pending, a stipulated judgment for $1,482,000 entered against
Charland in the Grand Traverse malpractice action. The lower court docket sheet in the Grand
Traverse matter reveals that an arbitrator awarded Farris a $150,000 judgment against Hickman
after Farris filed his appellate brief in the 2014 case.
On January 2, 2015, defendants filed a motion for summary disposition in this case under
MCR 2.116(C)(7), (8), and (10). The county claimed governmental immunity pursuant to MCL
691.1407(1) as a governmental entity engaged in a governmental function. Moreover, the
county contended that it was not the employer or principal of the attorneys appointed by the
court, merely the provider of recompense as required by statute. Therefore, it could not be held
vicariously liable for the attorneys’ malpractice. Appointed counsel performed pursuant to
statute as well and no contract existed between the attorneys and the county or even the court.
Accordingly, Farris’s claim to relief as a third-party beneficiary of some contract lacked merit.
In relation to Hefferan, defendants contended that Farris could only overcome
governmental immunity if he established that Hefferan acted with gross negligence. “At best,”
defendants insisted, “Hefferan’s failure to require proof of malpractice insurance from Charland
and Hickman establishes only ordinary negligence[.]” Even if Hefferan was grossly negligent,
the failure to collect proof of malpractice insurance “was not the proximate cause” of Farris’s
injury, Charland’s and Hickman’s deficient representation was. As such, Hefferan could not be
held liable.
Farris retorted that Hefferan’s gross negligence could be established. This was not a case
of a job done poorly, the quality of which could be rated as ordinary or gross negligence. This
was a case where an employee admitted he did nothing to implement his government employer’s
policy or practice. Doing nothing under such circumstances “demonstrate[d] . . . a substantial
lack of concern for whether an injury will occur.” Farris cited a string of cases, which he
claimed stood for the proposition that gross negligence can be established when an actor
systemically fails to follow the rules.
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Farris did not respond to defendants’ challenge of his respondeat superior claim,
mistakenly asserting that defendants had not raised the issue. Farris merely repeated his
argument that appointed attorneys are at least ostensible agents of the county. And Farris made
no attempt to establish that a contract existed to support his third-party beneficiary claim.
Instead, he focused on why he would be deemed a beneficiary and assumed the existence of a
contract.
Defendants volleyed back. They disputed the existence of a policy requiring appointed
attorneys to possess malpractice insurance. To the extent there was any policy, it was Judge
Hayes’s policy, not the county’s. Judge Hayes created the requirement through a verbal
directive. Defendants further distinguished the cases cited by Farris, denying that they created a
gross negligence standard for employees who failed (even repeatedly) to follow a policy.
Defendants then noted Farris’s complete lack of evidence (or even argument) that any contract
existed between appointed counsel and the county (or even the court) and emphasized that the
duty to appoint attorneys is statutory only.
The court heard the parties’ arguments on October 19, 2015. The court began by
advising Farris, “I was having trouble figuring out what the contract is.” There is a duty on the
judge to appoint counsel by court rule, statute, and constitution, but “[t]hat’s not really a
contract,” the court explained. If any contract did exist, it would be between the court and the
attorneys; the county merely bears a statutory or court rule duty to foot the bill.
Farris replied that a contract arose between the county and the appointed counsel through
the promise to pay. “It is a contract between the county and the lawyer who’s going to do those
services. Because once the lawyer is appointed, he is paid according to the rates that the county
has agreed to pay in its program for appointed counsel.”
The county retorted by citing the appointment-of-counsel administrative order:
And that administrative order clearly, clearly states that the sole authority
for reviewing the performance of attorneys on the court-appointed list belongs to
the presiding judge. That the sole authority to remove an attorney from that
court-appointed list belongs to the judge, if the judge believes that the attorney’s
performance is not acceptable.
The administrative order also clearly states that it is the responsibility of
the presiding judge to - - to supervise the operation and to - - of the court-
appointed system within his or her court. Even the appointment itself is
determined - - only the presiding judge has discretionary authority over that . . .
[and] can steer away from that rotating appointment basis if the judge believes
that the attorney who’s up next does not have the necessary expe[r]ience that is
needed for the assignment.
The county’s only duty is to pay the attorneys, a duty imposed by MCL 775.16, not contract.
“[T]he county does not supervise these attorneys. The county has no role in their appointment.
The county does not even determine who goes on these lists.” And Farris’s respondeat superior
claim failed as well as it was based completely on his erroneous contract theory.
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In relation to the gross negligence claim, Farris asserted that Hefferan “intentionally . . .
did not do what his boss told him to do.” The court questioned this characterization of
Hefferan’s intent, noting that Hefferan failed to do a single task “as opposed to the hundreds of
other things he has to do, you know, running a court.” Defendants echoed the court, “[T]he
Court has hit the nail on the head. That, if anything, Mr. Hefferan made a mistake. . . .” In
relation to Charland, although Hefferan forgot to question him about malpractice insurance when
appointed, Hefferan remembered when he asked Charland if he would be interested in future
appointments. Moreover, even if Hefferan’s conduct was grossly negligent, Farris also had to
present evidence that Hefferan’s negligence was “the proximate cause” of his injury. The
proximate cause of Hefferan’s injury was the deficient performance of his counsel, not
Hefferan’s failure to ensure that the attorneys carried malpractice insurance, defendants insisted.
Ultimately, the court granted defendants’ summary disposition motion and dismissed
Farris’s claims in their entirety. The court determined that Farris had not created a triable
question of fact on his gross negligence claim against Hefferan. Hefferan could only be held
liable if his conduct was “so reckless . . . as to demonstrate a substantial lack of concern to
whether an injury results.” “All we have here,” the court reasoned, was a “fail[ure] to secure a
proof of malpractice insurance from these two lawyers.” This was insufficient to “demonstrate
that [Hefferan] actually contemplated that injury might result and I don’t care.” “At most, this is
a simple mistake,” possibly amounting to ordinary negligence.
The court also found no evidence of any contract between the county and the attorneys to
which Farris could have been a third-party beneficiary. The court found the statute cited by the
parties—MCL 775.16—inapplicable as it pertains to felony criminal cases, not child protective
proceedings. Even without the statute, the duty to appoint counsel falls on the court, not the
county. “The county doesn’t appoint the person.” The county did not have any contact with
Hickman and Charland beyond mailing them a check. It was even the court’s job to determine
the amount of that recompense. The county’s duty to pay is born of statute and court rule, not a
contract. As there was no contractual relationship regarding the representation, Farris could not
be a beneficiary.
Farris appeals.
II. GROSS NEGLIGENCE
Farris first challenges the circuit court’s dismissal of his tort claim against Hefferan. We
review de novo a lower court’s resolution of a summary disposition motion. Odom v Wayne Co,
482 Mich. 459, 466; 760 NW2d 217 (2008). The court did not cite the court rule provisions upon
which it relied in dismissing Farris’s complaint, but appears to have proceeded under MCR
2.116(C)(7) and (10).
Under MCR 2.116(C)(7), the moving party is entitled to summary disposition if
the plaintiff’s claims are “ ‘barred because of immunity granted by law . . . .’ ”
The moving party may support its motion for summary disposition under MCR
2.116(C)(7) with “affidavits, depositions, admissions, or other documentary
evidence,” the substance of which would be admissible at trial. “The contents of
the complaint are accepted as true unless contradicted” by the evidence provided.
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In relation to a motion under MCR 2.116(C)(10), we similarly review “the
pleadings, admissions, and other evidence submitted by the parties in the light
most favorable to the nonmoving party. Summary disposition is appropriate if
there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” [Odom, 482 Mich. at 466-467 (citations
omitted, alteration in original).]
Pursuant to MCL 691.1407(2), a governmental actor is immune from tort liability for
injuries caused in the course of employment while acting on behalf of his or her government
employer if:
(a) The [individual] is acting or reasonably believes he or she is acting
within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The [individual’s] conduct does not amount to gross negligence that is
the proximate cause of the injury or damage.
The statute defines “gross negligence” as “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a).1 To meet his or
her burden, a plaintiff must present evidence of more than mere ordinary negligence. Maiden v
Rozwood, 461 Mich. 109, 122; 597 NW2d 817 (1999).
[G]ross negligence . . . suggests . . . almost a willful disregard of precautions or
measures to attend to safety and a singular disregard for substantial risks. It is as
though, if an objective observer watched the actor, he could conclude, reasonably,
that the actor simply did not care about the safety or welfare of those in his
charge. [Tarlea v Crabtree, 263 Mich. App. 80, 90; 687 NW2d 333 (2004).]
Farris’s evidence did not rise to the level of gross negligence. Farris characterizes
Hefferan as completely failing to implement a policy or practice of his employer. The evidence
does not support this proposition. Hefferan admitted that he and his employees had omitted to
secure proof of malpractice insurance from attorneys who had been on the appointment list for
an extended period. However, they always asked for such proof from attorneys newly seeking
appointments from the Antrim Circuit Court. In this case, Hefferan did not request proof of
malpractice insurance from Charland when he was first appointed. Yet, Farris had previously
retained Charland signaling his own disregard for Charland’s financial responsibility. Hefferan
did inform Charland of the malpractice insurance requirement shortly thereafter and Charland
1
During argument before the circuit court, Farris implied that Hefferan acted intentionally in
disobeying Judge Hayes’ directive and therefore could not claim immunity. Governmental
immunity does not apply when a governmental actor commits an intentional tort. MCL
691.1407(3); Odom, 482 Mich. at 471-472. Farris does not reiterate this claim on appeal.
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agreed to withdraw, in part, because he did not carry the necessary insurance. It is true that
Hefferan did not confer with Hickman regarding his malpractice coverage until after this suit was
filed. But falling short in one aspect of his duties does not, standing alone, render Hefferan’s
conduct grossly negligent.
The record is even clearer that no evidence supports that Hefferan’s failure to secure
proof of Hickman’s and Charland’s malpractice insurance was the proximate cause of Farris’s
injuries. It is well established that “the” proximate cause of a plaintiff’s injury is “[t]he one most
immediate, efficient, and direct cause.” Robinson v Detroit, 462 Mich. 439, 462; 613 NW2d 307
(2000). The most immediate, efficient, and direct causes of Farris’s injuries were the
malpractice of his attorneys and their failure to carry malpractice insurance. Hefferan’s failure
to secure proof of malpractice insurance may impact Farris’s ability to collect the judgments
entered in that separate lawsuit, but it did not affect the performance of counsel in the course of
the representation and did not singularly cause Hefferan’s incollectibility. Accordingly, the
circuit court properly dismissed Farris’s tort claim against Hefferan.
III. THIRD-PARTY BENEFICIARY
Farris also contends that the circuit court improperly dismissed his claim to relief as a
third-party beneficiary of a contract between the attorneys and the county.2 In order to be a
third-party beneficiary, there must be a contract to benefit from. See MCL 600.1405. No such
contract existed in this case.
It is not unheard of for a circuit court, or even a county, to execute a contract with
attorneys seeking appointment to represent indigent clients. See, e.g., In re Osborne, 459 Mich.
360, 365; 589 NW2d 763 (1999) (“The Muskegon Count[y] Juvenile Court during this time
contracted with six attorneys at any one time to handle child delinquency and neglect matters.”);
In re Bennett, 403 Mich. 178, 186; 267 NW2d 914 (1978) (noting that the judge at the center of a
judicial tenure review terminated a contract with a law firm acting as public defenders and
appointed substitute counsel in the firm’s stead); In re Attorney Fees of Klevorn (People v
Koschiecha), 185 Mich. App. 672, 674-675; 463 NW2d 175 (1990) (in which an attorney entered
a contract with Charlevoix County to accept indigent criminal appointments for a specified
hourly rate). However, it is undisputed that no such express contract existed in this case.
Even if a contract between the county and appointed attorneys did exist or could be
implied, Farris’s third-party beneficiary claim would have no merit. MCL 600.1405 provides:
“Any person for whose benefit a promise is made by way of contract, as hereinafter defined, has
the same right to enforce said promise that he would have had if the said promise had been made
directly to him as the promisee.” The only promise between the county and appointed attorneys
is for the county to pay for services performed for indigent parties. There is no promise in return
for the attorneys to serve the county or to provide a certain level of services to the indigent
clients. The only promise that Farris could possibly enforce would be the county’s promise to
pay his appointed attorneys.
2
Farris has abandoned his separate respondeat superior claim.
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As noted by the county, only the circuit court supervises or guides the actual performance
of appointed counsel. Specifically, the presiding judge has the power to “remove any attorney
from the list who has not performed his or her duties at an acceptable level.” Antrim County
Circuit Court/Family Division Admin Order 2003-05J, § 1a. Even this “promise” is not made by
contract, it is made by administrative order. Accordingly, Farris could make no claim even
against the circuit court. Farris’s contractual claim has no contract at its base and therefore is
insupportable.
We affirm.
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
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