Legal malpractice; Barrow v. Pritchard; Proximate cause; Charles Reinhart Co. v. Winiemko; Basic Food Indus., Inc. v. Grant; Entitlement to equitable relief; McDonald v. Farm Bureau Ins. Co.; Attorney fees for an attorney representing herself & her firm in the case; Omdahl v. West Iron Cnty. Bd. of Educ.; Fraser Trebilcock Davis & Dunlap PC v. Boyce Trust

In Docket No. 349331, the court reversed the trial court’s order granting summary disposition to third-party defendant-Silverman and plaintiff-law firm on defendant-Korn’s legal malpractice counterclaim and remanded. In Docket No. 350830, it vacated the trial court’s order awarding attorney fees of $78,653.95 where the firm was not entitled to recover attorney fees for Silverman’s representation of herself or the firm. The case arose from Korn’s dissatisfaction with his divorce. As to his legal malpractice counterclaim, he “was only required to show by a preponderance of the evidence that he would have received a more favorable outcome in his underlying divorce case but for the alleged legal malpractice of Silverman and the firm.” However, the fact that the “suit within a suit” concept did not apply in this case did not relieve him “of the requirement that he prove that Silverman’s alleged shortcomings were the proximate cause of any alleged damages.” As to causation and damages, Korn relied primarily on the testimony of an experienced lawyer whom he offered as a standard-of-care expert (K) “that he believed Korn may have done better in the divorce case but for Silverman’s conduct.” The question was whether K’s testimony was sufficient to create a genuine issue of material fact. The court held that it was. In its view, “the trial court’s comments during the hearing on the motion for summary disposition do not reflect that it viewed the evidence before it, including [K’s] expert testimony, in the light most favorable to Korn as it was required to for purposes of MCR 2.116(C)(10)." Because Korn presented sufficient evidence to create a genuine issue of material fact as to “whether Silverman’s alleged breaches of the relevant standard of care caused damages,” the court reversed the trial court’s dismissal of the counterclaim and third-party claim. As to attorney fees, it saw no reason to depart from the reasoning in Omdahl and Fraser Trebilcock, and agreed with Korn that the trial court erred by awarding attorney fees to Silverman for representing the firm and herself in this case.