Chow v. O'KEEFE

Neff, P.J. Plaintiff appeals as of right from an order of the circuit court granting summary disposition to defendants pursuant to MCR 2.116(C)(7) on the basis that the period of limitation applicable to his malpractice action against the defendants had expired. We affirm. i The facts of this case are not in dispute. Defendants, an attorney and his law firm, represented plaintiff in a criminal matter. On June 4, 1990, after conviction,* 1 but before sentencing, plaintiff discharged defendants and obtained new counsel. Plaintiff sought, and was granted, a new trial on the basis of ineffective assistance of counsel. Ultimately, plaintiff’s conviction was overturned, not directly because of defendants’ representation, however, but because an essential item of evidence was lost by the police. Eventually, this Court affirmed the circuit court’s order reversing plaintiff’s conviction. Van Buren Twp v Chow, unpublished opinion per curiam of the Court of Appeals, issued June 1, 1993 (Docket No. 138761). Plaintiff instituted this cause of action on January 18, 1994. In granting defendants’ motion for summary disposition in this case, the trial court relied on a case both parties agree is factually similar to this one, Gebhardt v O’Rourke, 444 Mich 535; 510 NW2d 900 (1994). *104 Although plaintiff recognizes that under normal circumstances Gebhardt would control the outcome of this case, he argued below, and now on appeal, that the Court’s opinion in Gebhardt, which was released after plaintiff instituted this cause of action, should not be applied retroactively because it set forth a new rule of law. The trial court disagreed and granted defendants’ motion. H As stated, plaintiff does not argue that the trial court improperly analyzed the statute of limitations question under our Supreme Court’s ruling in Gebhardt, supra. Accordingly, that question is not before us. The only question raised by plaintiff, and thus properly before us, is whether the Court’s ruling in Gebhardt may be applied retroactively to this case. We conclude that it may. As a general rule, decisions of Michigan appellate courts are given full retroactivity unless limited retro-activity is preferred where justified by (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice. See Buckeye Marketers, Inc v Finishing Services, Inc, 213 Mich App 615, 617-618; 540 NW2d 757 (1995); People v West, 159 Mich App 424, 425-426; 407 NW2d 19 (1987). Here, we conclude that full retroactive application of Gebhardt, supra, is warranted. First, the Supreme Court’s opinion in Gebhardt did not establish a new rule of law, see West, supra at 426; rather, it is readily apparent that the Court was merely enforcing an *105 unambiguous statute and clarifying existing case law. Gebhardt, supra at 541-544. Next, although plaintiff argues that he relied to his detriment on this Court’s opinion in Gebhardt, 2 which concededly would have provided him more time in which to file this cause of action, we conclude that the record does not support this argument. Plaintiff could have relied on that opinion as an old rule of law only had that case been published before the statutory period expired. Under the statute, 3 which the Supreme Court found to be clear, plaintiff’s cause of action accrued on the last date of defendants’ representation, June 4, 1990, and therefore the limitation period expired on June 4, 1992. This Court’s opinion in Gebhardt was released in August 1992. Accordingly, plaintiff could not have relied to his detriment on that opinion because the period of limitation had already expired on his claim before this Court released its opinion in Gebhardt. Finally, in considering whether the administration of justice would be adversely affected by full retroactive application of the Supreme Court’s opinion in Gebhardt, supra, we note “that a putpose of clarifying existing law is sufficient for the retroactive application of a rule of law.” West, supra at 427. Accordingly, we hold that the Supreme Court’s opinion in Gebhardt, supra, is to be applied retroactively and that the trial court in this case properly relied on that opinion in granting summary disposition to defendants. Affirmed. Footnotes [1] Plaintiff was convicted of larceny under $100. Van Burén Township Ordinance § 6.03. [2] 195 Mich App 506; 491 NW2d 249 (1992). [3] MCL 600.5838; MSA 27A.5838.