PROTO-CAM INC V WARNER NORCROSS & JUDD LLP
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STATE OF MICHIGAN
COURT OF APPEALS
PROTO-CAM, INC.,
UNPUBLISHED
December 23, 2008
Plaintiff-Appellant,
v
No. 281689
Kent Circuit Court
LC No. 07-006218-NM
WARNER NORCROSS & JUDD, L.L.P.,
Defendant-Appellee.
Before: Murray, P.J., and Markey and Wilder, JJ.
MEMORANDUM.
Plaintiff appeals by right from an order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(7) based on the expiration of the statute of limitations in
this legal malpractice case. We affirm. This appeal has been decided without oral argument
pursuant to MCR 7.214(E).
We review a trial court’s decision on a motion for summary disposition de novo. Auto
Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
Plaintiff acknowledges that the two-year limitations period on legal malpractice lawsuits
had expired when this suit was filed, see MCL 600.5805(5), but argues that the suit was timely
under MCL 600.5838(2). This statute provides that a claim may be commenced within the
standard limitations period or “within 6 months after the plaintiff discovers or should have
discovered the existence of the claim, whichever is later.” A plaintiff need only be aware that a
possible cause of action exists, not that a likely cause of action exists. Gebhardt v O'Rourke, 444
Mich 535, 544; 510 NW2d 900 (1994).
Plaintiff first maintains that defendant committed malpractice in preparing a warranty
deed which allegedly failed to include a legal description of part of a property that plaintiff
acquired. Plaintiff further asserts that defendant knew plaintiff intended to sell the property to an
affiliate, but negotiated a title insurance policy with Transamerica Title Insurance Company that
did not provide coverage once plaintiff sold the property. Plaintiff sued Transamerica
challenging the denial of its claim. Plaintiff asserts that if Transamerica’s denial had been
improper, there would have been no malpractice and accordingly, there was no discovery of the
claim against defendant until a court ruled on December 15, 2006, that Transamerica’s denial
was proper. Since the present lawsuit was filed within six months of summary disposition to
Transamerica, plaintiff claims that this lawsuit was timely. But, in a December 8, 2005, letter,
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Transamerica explained the reasons for the denial. These reasons were ultimately the basis for
plaintiff’s legal malpractice case. At that point, plaintiff should have known that it was possible
the denial of its claim would be upheld. Thus, plaintiff’s claim was not filed within six months
of discovery, and was properly barred on statute of limitations grounds.
Plaintiff also argues that summary disposition should not have been granted on that
aspect of its legal malpractice claim that was based on a conflict of interest; however, plaintiff
has not made an allegation that negligence based on the conflict was the proximate cause of an
injury. See Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995). Moreover, defendant
established, by reference to a letter from plaintiff’s chief executive officer to defendant, that
defendant terminated the relationship in 1996 because of questions of a conflict of interest. It
follows that plaintiff should have been aware of a possible claim based on the conflict in 1996.
A legal malpractice claim based on this conflict is therefore barred.
We affirm.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
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