If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

NEW PRODUCTS CORPORATION,

Plaintiff-Appellant,

UNPUBLISHED

May 18, 2023

v No. 361412

Wayne Circuit Court

BUTZEL LONG, LC No. 21-003072-NM

Defendant-Appellee.

Before: GLEICHER, C.J., and HOOD and MALDONADO, JJ.

GLEICHER, C.J. (concurring).

This case exemplifies gotcha lawyering. 

Rather than honoring an agreement extending the time for filing New Products

Corporation’s legal malpractice claim, Butzel Long seeks to dodge its liability by exploiting an 

intervening and unforeseeable event – the passage of a statute of repose applicable to legal 

malpractice actions. Not only was the statute an unpredictable event, Butzel had specifically 

stipulated, in writing, to the precise timing of New Products’ lawsuit. The majority correctly 

rejects Butzel’s malign effort to abandon its commitment, holding that the contract controls. I 

write separately to suggest another reason that the majority opinion rests on legally solid ground.

In 2008, New Products hired Butzel to protect its interest in a valuable piece of real 

property. Butzel neglected to timely file an action to clear title and to enjoin the property’s hostile 

use. This Court subsequently held that New Products should have sued in September 2008, when 

construction on the land began, rather than in 2011. New Prods Corp v Harbor Shores BHBT 

Land Dev, LLC, 331 Mich App 614, 629 n 3; 953 NW2d 476 (2019).

Butzel understood that it might bear liability for its failure to protect New Products’ interest 

in the land. The parties entered into an agreement tolling the statute of limitations to permit New 

Products to retain other counsel to clean up the legal mess Butzel had made. As Butzel’s lawyer

admitted during oral argument, tolling agreements are common in legal malpractice cases. By 

forestalling a legal malpractice suit, such agreements afford an opportunity to remedy a lawyer’s 
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error, saving defense costs and face.1 As New Products’ 2011 lawsuit dragged on, the parties 

repeatedly extended their tolling agreement. 

The 2011 tolling agreement explained that “[a]ll applicable Statutes of Limitation as to the 

Claims are tolled, effective immediately. The Parties waive any Statute of Limitation or laches 

defense based upon the lapse of time under the applicable Statute of Limitations or laches for the 

time period covered by this Agreement.” The agreement was “in effect until 60 days after” a final 

adjudication of the land case. New Products filed this suit within the 60 days.

While the tolling agreement was in effect and the attorneys for New Products were toiling 

to undo the damage done by Butzel’s failure to file a timely action, the Legislature passed a statute 

of repose applicable to legal malpractice cases. MCL 600.5838b(1)(b), which took effect on 

January 2, 2013, bars a legal malpractice claim filed more than six years after the act or omission 

underlying the claim. Here, the omission occurred in 2008 when Butzel failed to act to protect 

New Products’ interests. When New Products filed its timely suit under the tolling agreement in 

2021, Butzel invoked the 2013 statute of repose. 

In the trial court, New Products unsuccessfully argued that the 2013 statute of repose is not 

retroactive, and that the contract’s plain language expressed the parties’ intent that a malpractice 

lawsuit could be filed after New Products’ efforts to right Butzel’s wrongs were exhausted. My 

colleagues find the latter argument meritorious and reverse. Guided by the Michigan Supreme 

Court’s opinion in Buhl v Oak Park, 507 Mich 236; 968 NW2d 348 (2021), I would reverse on a 

second ground as well: the 2013 statute of repose is not retroactive.

Butzel’s argument in favor of retroactivity rests on this Court’s 2017 opinion in Nortley v 

Hurst, 321 Mich App 566; 908 NW2d 919 (2017). In Nortley, the plaintiff’s legal malpractice 

claim accrued in 2009, but the complaint was not filed until 2016. Id. at 571. The plaintiff argued 

that the statute of repose did not bar the action because the claim had accrued before the statute

was enacted, and the Legislature did not intend it to apply retroactively. Id. After discussing a 

few general rules about retroactivity, this Court noted that there is an exception to the general rule 

of prospective application if the case involves “a statute that is remedial or procedural in nature 

and whose retroactive application will not deny vested rights.” Id.

Nortley did not hold that the 2013 statute of repose always applies retroactively. Rather,

the Court concluded that under the unusual circumstances presented in that case, retroactive 

application did not deny the plaintiff a vested right. Id. at 571-572. The Nortley Court also relied

on the “procedural” nature of statutes of repose. Citing Davis v State Employees’ Retirement Bd, 

272 Mich App 151; 725 NW2d 56 (2006), the Court gave the green light to retroactivity.2 Nortley, 

 

1 New Products sued Butzel in 2011, but voluntarily dismissed the case without prejudice when 

the parties entered into a second tolling agreement.

2 Davis explained: “There is an exception to the general rule that newly enacted statutes are 

presumed to apply prospectively, which exception provides that no such presumption exists where 

the statute is remedial or procedural in nature, as long as it does not deny vested rights.” Davis v 

State Employees’ Retirement Bd, 272 Mich App 151, 158; 725 NW2d 56 (2006).
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321 Mich App at 572. Nortley applied the statute of repose based on its conclusion that the plaintiff 

had two years to sue before the 2013 statute of repose would have barred her suit. Id.

The controlling distinction between Nortley and this case is the parties’ tolling agreement. 

No such agreement existed in Nortley. Here, the parties specifically agreed that suit could be 

brought 60 days after a final adjudication of the underlying claim. Whether or not the parties 

should have included the words “statute of repose” in the agreement, the majority correctly holds 

that they intended that New Products could withhold suit until the underlying case concluded. 

Viewed through a different legal lens, the tolling agreement endowed New Products with 

a “vested right” to bring suit 60 days after the conclusion of the underlying case. Because 

retroactive application of the statute of repose would impair that vested right, it is impermissible.

In Buhl, 507 Mich at 244, the Supreme Court highlighted that when assessing a statute’s 

retroactivity, a careful inquiry into legislative intent, is required – an inquiry that the Nortley Court 

never undertook. The “inquiry into the Legislature’s intent” mandated in Buhl requires the 

evaluation of four factors, also know called “the LaFontaine factors”:

“First, we consider whether there is specific language providing for retroactive 

application. Second, in some situations, a statute is not regarded as operating 

retroactively merely because it relates to an antecedent event. Third, in determining 

retroactivity, we must keep in mind that retroactive laws impair vested rights 

acquired under existing laws or create new obligations or duties with respect to 

transactions or considerations already past. Finally, a remedial or procedural act 

not affecting vested rights may be given retroactive effect where the injury or claim 

is antecedent to the enactment of the statute.” [Id. at 244, quoting LaFontaine 

Saline, Inc v Chrysler Group, LLC, 496 Mich 26, 38-39; 852 NW2d 78 (2014).]

Applying the pertinent LaFontaine factors here, as required by Buhl, leads to a determination that 

under the circumstances presented, MCL 600.5838b is not retroactive.3

In LaFontaine, the Supreme Court introduced its discussion of retroactivity with a caution: 

“Retroactive application of legislation presents problems of unfairness because it can deprive 

citizens of legitimate expectations and upset settled transactions.” Id. at 38 (cleaned up, emphasis 

added). The tolling agreement at issue here is one such “settled transaction.” LaFontaine

reinforced that “[w]e have . . . required that the Legislature make its intentions clear when it seeks 

to pass a law with retroactive effect.” Id. In other words, “In determining whether a statute should 

be applied retroactively or prospectively only, the primary and overriding rule is that legislative 

intent governs. All other rules of construction and operation are subservient to this principle.” 

 

3 The second factor is not relevant here, just as it was not in Buhl, because MCL 600.5838b “does 

not pertain to a specific antecedent event.” Buhl, 507 Mich at 244.
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Frank W Lynch & Co v Flex Techs, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001) (cleaned up).

4

 

Summarizing, LaFontaine’s four factors limit the retroactivity of remedial statutes, whether 

procedural or substantive, to those which were intended by the Legislature to be retroactive, and 

which do not impair settled rights or obligations.

Turning to this case, the Legislature did not signal that the statute of repose it engrafted on 

legal malpractice cases was intended to have retroactive effect. This legislative silence about

retroactivity counsels that the statute should be applied only prospectively. See LaFontaine, 496 

Mich at 40. 

The third LaFontaine factor instructs that a statute “may not be applied retroactively if 

doing so would take away or impair vested rights acquired under existing laws[.]” Buhl, 507 Mich

at 246 (cleaned up). Our Supreme Court has explained: 

In its application, as a shield of protection, the term “vested rights” is not used in 

any narrow or technical sense, or as importing a power of legal control merely, but 

rather as implying a vested interest which it is right and equitable that the 

government should recognize and protect, and of which the individual could not be 

deprived arbitrarily without injustice. [Leonard v Lans Corp, 379 Mich 147, 157; 

150 NW2d 746 (1967) (cleaned up).]

Necessarily, “vested rights” may include express contractual rights. Equally necessarily, a statute 

cannot be applied retroactively if it “abolishes an existing cause of action,” which is an interest 

worthy of protection:

The general rule against retrospective application has been applied in cases 

where a new statute abolishes an existing cause of action. It is clear that once a 

cause of action accrues,—i.e., all the facts become operative and are known—it 

becomes a “vested right”. A new statute which abolishes an existing cause of action 

brings the statute within the general proscription of rule three. [In re Certified 

Questions from US Court of Appeals for the Sixth Circuit, 416 Mich 558, 573; 331 

NW2d 456 (1982) (citations omitted).]

New Products had two types of vested rights: the right to sue within a specific time

conferred by the tolling agreement, and a viable cause of action for legal malpractice against 

Butzel. The first right vested in 2011, when the parties signed the last tolling agreement. The 

second right vested when Butzel committed legal malpractice in 2008. At that point, the “facts 

became operative” and were known to the parties. The parties affirmatively recognized the 

existence of the vested cause of action when New Products voluntarily withdrew its 2011 legal 

malpractice lawsuit in exchange for Butzel’s agreement that the suit would be timely if brought 60 

days after the final adjudication of the companion suit filed that same year. Under Buhl and 

 

4 The Legislature fully agrees with this legal principle. MCL 600.5869 provides: “All actions and 

rights shall be governed and determined according to the law under which the right accrued, in 

respect to the limitations of such actions or right of entry.”
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LaFontaine, it would be inequitable to deprive New Products of an opportunity to seek redress for 

Butzel’s negligence.

The fourth LaFontaine factor states, “[A] remedial or procedural act not affecting vested 

rights may be given retroactive effect where the injury or claim is antecedent to the enactment of 

the statute.” LaFontaine, 496 Mich at 39. In the recent opinion of McClain v Roman Catholic 

Diocese of Lansing, ___ Mich App___; ___ NW2d ___ (2023) (Docket Nos. 360163, 360173), 

slip op at 9, this Court explained:

In Davis, 272 Mich App at 160-161, this Court explained, “In the context of the 

‘procedural’ exception, statutes of limitations, while generally coined as 

procedural, necessarily affect substantive rights where causes of action can be lost 

entirely because the action is time-barred.” Davis went on to hold that “the general 

remedial-procedural exception to prospective application” does not apply to 

statutes of limitations that had completely run. Id. at 162.

The fourth LaFontaine factor does not apply in this case because retroactivity of the statute of 

repose affects a vested right.

Because New Products’ right to sue Butzel vested before the 2013 enactment of MCL

600.5838b(1)(b), the statute of repose may not be imposed retroactively. With these added 

observations, I join the majority.

/s/ Elizabeth L. Gleicher