LN Land Company, Inc v Schwartz Law Firm, et al, unpublished per curiam opinion of the court of appeals, issued January 30, 2007 (Docket No. 262263)

Link:

http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20070130_C263363_61_263363.OPN.PDF

Underlying Case or Transaction: Real Estate Transaction

Key Concepts: (1) damages

In this case, a law firm represented a client in the acquisition of real estate ("Parcel A"). Parcel A was to be accessed by an easement over Parcel B. But the law firm failed to prepare and record a proper access easement over Parcel B. Thus, when the MDOT subsequently purchased Parcel B, Parcel A became inaccessible. Prior to trial, the law firm admitted that it was negligent, but disputed the client's claim for damages. The jury, by special verdict, determined that the client was entitled to over $400,000 in damages.

On appeal, the law firm challenged the trial court's denial of its motion for a directed verdict and post-trial motion for judgment not withstanding the verdict claiming that the evidence did not provide a reasonable basis for the damage award.

The court of appeals began by noting that the client was required to prove an actual injury caused by the law firm's failure to record an easement across Parcel B, not merely the potential for injury. Colbert v Conybeare Law Office, 239 Mich App 608, 620 (2000). The relevant time for assessing damages was the date that the MDOT purchased Parcel B. And the proper measure of damages was the dimunition in value of Parcel B caused by the loss of the easement.

Expert testimony was not required to establish the value of Parcel A. Michigan Mut Ins Co v CNA Ins Co, 181 Mich App 376, 385 (1989). In a tort action, value is generally determined based on the value of the market, rather than a personal value to the plaintiff. Newton Realty Co v Fileccia, 20 Mich App 674, 676-678 (1969). A regular market value for damages furnishes the redress that the law seeks to give for the injury. Bernhardt v Ingham Regional Med Ctr, 249 Mich App 274, 280 (2004). Where there is no regular market, another means of value may be used so long as it is susceptible to pecuniary measure. Berhardt, supra at 280.

Here, the evidence, viewed most favorably to the client, showed that after the MDOT purchased Parcel B, Parcel A became inaccessible and that there was no market for Parcel A. The lay opinion of the client's owner that Parcel A had no value was based on the lack of access. Even though the opinion was subjective, it provided a sufficient explanation to the jury to consider in determining damages.

In sum, the client (apparently relying solely on lay opinion testimony) presented sufficient evidence for the jury to conclude that the law firm's negligence caused Parcel A to become worthless to the client. The value to the client was a proper measure of damages because there was no market for Parcel A once it became inaccessible.