KOHL HARRIS NOLAN & MCCARTHY V NEILL T PETERS
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STATE OF MICHIGAN
COURT OF APPEALS
KOHL, HARRIS, NOLAN & MCCARTHY, P.C.,
UNPUBLISHED
January 22, 2008
Plaintiff-Appellee,
v
No. 275377
Lapeer Circuit Court
LC No. 05-036487-CZ
NEILL T. PETERS,
Defendant-Appellant,
and
LAW OFFICE OF NEILL T. PETERS, P.C.,
Defendant.
Before: Saad, P.J., and Jansen and Beckering, JJ.
JANSEN, J. (concurring in part and dissenting in part).
I concur in the majority’s conclusion that the trial court properly denied defendant
Peters’s motion for summary disposition. However, because a question of fact remained
concerning the precise amount to which Kohl was entitled for his work on the Werthman case, I
respectfully dissent from the majority’s decision to affirm the grant of summary disposition in
favor of plaintiff. It is axiomatic that summary disposition may not be granted when there
remains a genuine issue of material fact for trial.1 MCR 2.116(C)(10); see also Quinto v Cross &
Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). A genuine issue of material fact exists
when the record leaves open an issue upon which reasonable minds could differ. West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
1
Although plaintiff moved for summary disposition pursuant to MCR 2.116(C)(8) alone, it set
forth factual arguments in the text of its summary disposition motion and relied on facts outside
the pleadings during the proceedings below. Therefore, I construe plaintiff’s motion for
summary disposition as having been granted pursuant to MCR 2.116(C)(10). See Driver v
Hanley (After Remand), 226 Mich App 558, 562; 575 NW2d 31 (1997).
-1-
As evidenced by the competing allegations raised in this case, the oral fee-splitting
agreement between Kohl and the law firm, taken together with the Memorandum of Buy-Sell
Agreement and Shareholder Employment Agreement, was subject to two differing
interpretations. On the one hand, the combined effect of the agreements could be interpreted as
entitling Kohl to 50 percent of the total attorney fee earned with respect to the Werthman case.
However, just as reasonably, the combined effect of the agreements could be interpreted as
entitling Kohl to only 50 percent of that portion of the attorney fee ultimately paid to the law
firm by Peters. When read in conjunction, the agreements between the various parties were
unclear concerning the total amount to which Kohl was entitled for his work on the Werthman
case. Accordingly, a jury-submissible question of fact remained with respect to the agreements’
meaning, and plaintiff’s motion for summary disposition should have been denied. I would
reverse and remand for further proceedings.
/s/ Kathleen Jansen
-2-
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