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STATE OF MICHIGAN COURT OF APPEALS

HVW DISTRIBUTION, LLC, ALBERT SIMON, DON VIDOSH, JOSEPH WILSON, DANIEL FENWICK, CHARLES HELSEL and DENNISE VIDOSH, Plaintiffs-Appellants, v JOHN E. NEMAZI and BROOKS KUSHMAN, PC, Defendants-Appellees.

UNPUBLISHED November 10, 2009

No. 284261 Oakland Circuit Court LC No. 2007-086734-NM

Before: Stephens, P.J., and Jansen and Wilder, JJ. PER CURIAM. Plaintiffs appeal as of right the circuit court's order granting summary disposition to defendants. We affirm. I The individual plaintiffs designed a particular type of Christmas tree stand that they wished to patent, produce and sell. A company in Germany, Krinner, holds several patents for a similar product. Plaintiffs formed a limited liability corporation, HVW, in order to explore opportunities to sell their stand, and retained defendants in January 2003 to assess the patentability of their design. Defendants allegedly informed plaintiffs that their tree stand did not infringe on any Krinner patent, that the HVW stand was patentable, and that plaintiffs could manufacture their product without fear of infringement. Plaintiffs, through defendants, filed a patent application on July 11, 2003 and began production. Plaintiffs hired a sales force, negotiated to partner with another company, entered into a licensing agreement for sales, and began selling the product. Krinner then contacted plaintiffs, alleging a claim of infringement on Krinner patents, and plaintiffs thereafter halted advertising and sales. Defendant Nemazi was notified of Krinner's position, and wrote a letter to plaintiffs on November 7, 2003 stating that, in his opinion, the Krinner claim was invalid and plaintiffs had valid defenses against it. Nemazi recommended, however, that plaintiffs try to reach a settlement with Krinner rather than engage in costly litigation. -1-

On January 28, 2004, Nemazi faxed a letter to plaintiff Simon as a follow-up to a recent prior conversation. In the letter, Nemazi noted his disappointment that in that conversation, a telephone conference concerning plaintiffs' outstanding bill, Simon had stated his dissatisfaction "with the legal services our firm has provided" concerning the Christmas tree stand and a search regarding a driveway hockey backstop. (Emphasis added). Nemazi indicated that his review of the files showed that all of the work done was consistent with the legal services requested by plaintiffs. Nemazi also stated that "[s]ince you are no longer making payments on your outstanding bill and have retained new counsel," it was better for all concerned that defendants terminate representing plaintiffs at that time. (Emphasis added). Plaintiffs filed a complaint in the Oakland Circuit Court on October 28, 2005, alleging professional negligence against defendants. In order to facilitate the conduction of informal discovery and an attempt to resolve the dispute, the parties entered into a written tolling agreement on May 29, 2007, which states in relevant part: WHEREAS, the statute of limitations defense predicated on the dismissal of Plaintiff's Complaint should be tolled with respect to Plaintiffs' beginning on the Effective Date [May 29, 2007] and continuing until the termination of this Agreement under its terms; *** 1. 2. Plaintiffs and Defendants, by their counsel, stipulate to the dismissal of Plaintiffs' Complaint without prejudice against its refilling. The Parties agree that if Plaintiffs re-file their Complaint, Defendants will not raise the statute of limitations defense available to them as a result of the dismissal without prejudice of Plaintiffs' Complaint, with the exception that Defendant and any privy, successor or assign, preserves all defenses, including but not limited to the defense of statute of limitations which are asserted or which could have been asserted on the original filing date of Plaintiffs' Compliant in Case No. 05

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Michigan Law