In 2021, Sommers Schwartz attorneys Matthew Turner and David Black filed a legal malpractice lawsuit for a client whose land was wrongfully taken and incorporated into the 18th hole of Harbor Shores Golf Club, a championship golf course in Benton Harbor. The owner hired law firm Butzel Long to protect its interest in the land, but the property was lost because the attorneys did not do what was necessary to prove that the land was actually owned by their client and not Harbor Shores. After the trial court entered summary judgment in favor of the defendant law firm, Turner and Black prevailed on appeal, with the appellate court reversing the trial court’s ruling. The law firm then appealed to the Michigan Supreme Court, but on October 31, 2023, the Court let the appellate court’s ruling stand, preserving their client’s appellate court victory and allowing the claims to move forward.

Delayed Action, Incorrect Analysis

According to the complaint, the plaintiff, New Products Corporation, owned a 4.3 acre, 250-foot-wide piece of property adjacent to its Benton Harbor manufacturing facility since 1955 (the “Property”). After the plaintiff learned that Harbor Shores was planning to build a golf course that would include its property, it hired Butzel Long for representation and assistance with protecting its rights. The law firm confirmed its engagement in writing, and the plaintiff paid a $2,500 retainer and thousands of dollars in additional legal fees for its services.

As the golf course development was proceeding rapidly, including the imminent construction of the 18th hole on the plaintiff’s property, the plaintiff emphasized to its attorney the need for urgent and immediate litigation to halt the activity. Despite the plaintiff’s repeated pleas to the law firm to file a complaint to stop further construction, the law firm never filed the litigation necessary to protect the plaintiff’s rights, telling the plaintiff that the statute of limitations and other issues barred its claims. It provided this information after failing to file the requested lawsuit and after the construction on the 18th hole was essentially completed. 

Not only did the law firm bill the plaintiff almost $100,000 to announce it had no claim, but its analysis was incorrect. After hiring a new law firm to pursue litigation and vindicate its rights, the plaintiff prevailed on the legal issues that the defendant law firm contended barred their claims. The Michigan Court of Appeals determined that New Products Corporation did own the property; however, the plaintiff lost its case because the trial judge ruled that the delay in filing suit, entirely caused by the defendant’s legal malpractice, was unreasonable and barred under the legal principle called laches.    New Products instructed Butzel Long to file the lawsuit when it needed to be filed, but Butzel Long failed to do so.    

Tolling Agreement Superseded Subsequent Change In The Law

The current malpractice suit was filed in 2021 after the underlying case regarding the property was finally over. In order to preserve the statute of limitations, the plaintiff had initially sued the law firm in 2011, while the underlying lawsuit between the New Products Corporation and Harbor Shores was still pending. In January 2012, the plaintiff and the law firm executed an open-ended tolling agreement in which the parties agreed that the malpractice lawsuit would be dismissed without prejudice and the statute of limitations would be tolled while the plaintiff litigated its underlying claims.

In 2013, after the parties entered into the tolling agreement and after the dismissal of the malpractice suit, and while the underlying case was pending, the Michigan legislature enacted a new statute of repose that barred legal malpractice cases over claims more than six years old. After the plaintiff refiled its malpractice claim in 2021, the law firm argued that the new six-year statute of repose, which was not even in existence when the tolling agreement was agreed to by the parties, barred the plaintiff’s claim, as it was based on acts from 2008. The trial court agreed and granted summary judgment in favor of the law firm.

In reversing the trial court’s decision, the Michigan Court of Appeals held that the tolling agreement exempted the plaintiff’s claim from any statute of limitations or repose, especially one that did not exist when the parties entered into the agreement.

On October 31, 2023, the Michigan Supreme Court entered an order denying the law firm’s application for leave to appeal, stating it was “not persuaded that the questions presented should be reviewed by this court.” With the statute of repose issue definitively resolved in favor of New Products Corporation, Turner and Black will continue to pursue the client’s legal malpractice claim to remedy the loss of the property that is now part of the signature hole on this championship golf course without a nickel in compensation being paid.