COA 374686 GOLDEN GIBSON V THOMAS H BLASKE Opinion - Per Curiam - Unpublished 4/14/2026

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
GOLDEN GIBSON,
Plaintiff-Appellant,
UNPUBLISHED
April 14, 2026
10:30 AM
v No. 374686
Jackson Circuit Court
THOMAS H. BLASKE, JOHN F. TURCK IV, and
BLASKE & BLASKE, PLC,
LC No. 2024-002004-NM
Defendants-Appellees.
Before: O’BRIEN, P.J., and FEENEY and WALLACE, JJ.
PER CURIAM.
In this legal-malpractice action, plaintiff-appellant, Golden Gibson, appeals as of right the
trial court judgment granting summary disposition in favor of defendants-appellees, Thomas H.
Blaske, John F. Turck IV, and Blaske & Blaske, PLC. We affirm.
I. FACTS
This case involves a layered history. First, in 2015, plaintiff hired Gregory Wagoner of
Shumaker, Loop & Kendrick, LLP (Shumaker) to initiate a lawsuit against the parties that sold
plaintiff a scrapyard, alleging that the sellers failed to disclose drums of toxic matter buried on the
property. During those proceedings, plaintiff hired PM Environmental, LLC (PM), who performed
an above-ground survey using ground penetrating radar (GPR) and reported that its findings were
consistent with the presence of buried barrels. A jury rejected plaintiff’s fraud claims, and this
Court affirmed.1 Next, plaintiff hired defendants to initiate a legal malpractice action against
Wagoner and Shumaker, faulting Shumaker for not having PM dig for the presence of barrels.
During those proceedings, plaintiff authorized PM to dig for barrels, and PM found none. That
case settled. In the present case, plaintiff initiated a legal malpractice action against defendants,
faulting defendants for not suing PM before the statutory limitation period ran. The trial court
1 Gibson v Danilowicz Estate, unpublished per curiam opinion of the Court of Appeals, issued
February 14, 2019 (Docket No. 341579).

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granted defendants’ motion for summary disposition under MCR 2.116(C)(10), finding that
plaintiff’s claims failed for two reasons: (1) the parties’ retainer agreement limited defendants’
scope of representation to a legal malpractice claim and nothing more, and (2) plaintiff did not
have a claim against PM because he could not establish causation. Plaintiff now appeals.
II. SUMMARY DISPOSITION
On appeal, plaintiff argues that the trial court erred by granting summary disposition
because: (1) a material question of fact remained regarding defendants’ scope of legal
representation, and (2) plaintiff demonstrated a viable claim against PM. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
Because both issues were raised, addressed, and decided by the trial court through
defendants’ motion for summary disposition, they are preserved for appellate review.2 See George
v Allstate Ins Co, 329 Mich App 448, 453; 942 NW2d 628 (2019).
“We review de novo a trial court’s decision on a motion for summary disposition,
reviewing the record in the same manner as must the trial court to determine whether the movant
was entitled to judgment as a matter of law.” Bronson Methodist Hosp v Auto-Owners Ins Co, 295
Mich App 431, 440; 814 NW2d 670 (2012). Our review is limited to the evidence that was
presented to the trial court at the time the motion was decided. Innovative Adult Foster Care, Inc
v Ragin, 285 Mich App 466, 475-476; 776 NW2d 398 (2009). “To the extent this matter presents
questions concerning the proper interpretation of contractual or statutory language, our review is
2 On appeal, plaintiff briefly argues that defendants waived their limited-scope-of-representation
affirmative defense by failing to raise it in their responsive pleading, pursuant to MCR 2.111(F)(3).
This argument lacks merit.
MCR 2.111(F)(3) states that “[a]ffirmative defenses must be stated in a party’s responsive
pleading, either as originally filed or as amended in accordance with MCR 2.118.” MCR
2.111(F)(3) further states that the facts constituting an affirmative defense must be stated under a
“separate and distinct heading . . . .” In this case, defendants twice raised their limited-scope-of-
representation argument in their answer to plaintiff’s complaint—defendants admitted that “they
were retained with respect to a cause of action against Gregory Wagoner and Shumaker,” but they
denied “that any representation existed as to claims against P.M. . . .” Although this statement was
raised in defendants’ “answer” section, it was not raised in the separate and distinct “affirmative
defense section,” pursuant to MCR 2.111(F)(3). Nonetheless, MCR 2.118(C)(1) states that
“[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties,
they are treated as if they had been raised by the pleadings.” Accordingly, because the parties
addressed defendants’ limited-scope-of-representation defense in their filings concerning
defendants’ motion for summary disposition, that defense was clearly tried by the express or
implied consent of the parties, and we will treat it as if it had been properly raised in the pleadings.
See MCR 2.118(C)(1).

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also de novo.” Dobbelaere v Auto-Owners Ins Co, 275 Mich App 527, 529; 740 NW2d 503
(2007).
MCR 2.116(C)(10) provides that the trial court may grant summary disposition in favor of
the moving party when, “[e]xcept as to the amount of damages, there is no genuine issue as to any
material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.”
“In reviewing a motion brought under MCR 2.116(C)(10), we review the evidence submitted by
the parties in a light most favorable to the nonmoving party to determine whether there is a genuine
issue regarding any material fact.” Cuddington v United Health Servs, Inc, 298 Mich App 264,
270; 826 NW2d 519 (2012). “A genuine issue of material fact exists when the record leaves open
an issue on which reasonable minds could differ.” Id. at 270-271 (quotation marks and citation
omitted). “A trial court may not assess credibility, weigh the evidence, or resolve factual disputes,
and when material evidence conflicts, it is not appropriate for the court to grant the motion for
summary disposition.” Cetera v Mileto, 342 Mich App 441, 448; 995 NW2d 838 (2022).
B. GOVERNING LAW
“The plaintiff in a legal malpractice claim must prove four elements: (1) the existence of
an attorney-client relationship; (2) negligence in the legal representation of the plaintiff; (3) that
the negligence was the proximate cause of an injury; and (4) the fact and extent of the injury
alleged.” Patel v FisherBroyles, LLP, 344 Mich App 264, 272; 1 NW3d 308 (2022) (quotation
marks and citation omitted). “The first element correlates with the duty element of a traditional
negligence claim because the existence of the attorney-client relationship gives rise to a duty as a
matter of law.” Id. “The second element requires proof that the defendant breached a professional
standard of care.” Id. at 273. “[T]he third element requires the plaintiff to prove that the
defendant’s action was a cause in fact of the claimed injury.” Id. (quotation marks and citation
omitted). “To do so, the plaintiff must demonstrate that he or she would have been successful in
the underlying matter but for the attorney’s malpractice.” Id. “In other words, the client seeking
recovery from his attorney is faced with the difficult task of proving two cases within a single
proceeding.” Id. (quotation marks and citation omitted).
1. SCOPE OF REPRESENTATION
Plaintiff first challenges the trial court’s finding that defendants’ “scope of representation
was quite clearly limited to the pursuit of a legal malpractice claim against the Shumaker firm.”
Plaintiff argues that a material question of fact regarding defendants’ scope of legal representation
remained because there was no limitation set forth in the retainer agreement, and even if there
were, when defendants’ “advice and services exceeded the agreed scope of representation it created
an attorney-client relationship between Defendants and [plaintiff] for that purpose.” We disagree.
This Court has held that “when an attorney and a client expressly limit terms of the
attorney’s representation, the duty imposed on the attorney for purposes of a legal malpractice
action is limited to the agreed-upon scope of representation.” Id. at 276. “A fee [or retainer]
agreement between an attorney and a client is a contract. Therefore, a fee or retainer agreement
is . . . subject to the law of contracts.” Wasenko v Auto Club Group, 347 Mich App 635, 639-640;
16 NW3d 557 (2023) (quotation marks and citations omitted). “Accordingly, an attorney and a

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client are free to contract as they see fit, and courts must enforce contracts as written unless they
are in violation of law or public policy.” Id. at 640 (quotation marks and citation omitted).
In this case, the parties’ retainer agreement stated the following:
As written, this contract clearly limits defendants’ scope of representation to claims “arising out
of an incident, accident, or event of legal malpractice” in the first case. (Emphasis added.) “It is
a general rule of grammar . . . that a modifying word or clause is confined solely to the last
antecedent, unless a contrary intention appears.” Sun Valley Foods Co v Ward, 460 Mich 230,
238; 596 NW2d 119 (1999). Here, the parties modified a general retainer agreement to
purposefully limit defendants’ representation to claims of legal malpractice in the first case.
Therefore, the trial court did not err by finding that defendants’ “scope of representation was quite
clearly limited to the pursuit of a legal malpractice claim against the Shumaker firm.” See Patel,
344 Mich App at 276.
Plaintiff alternatively argues that even if the retainer agreement limited the scope of
defendants’ representation to legal malpractice claims, defendants expanded their scope of
representation by providing advice and services regarding PM. Plaintiff’s argument is premised
on the idea that defendants were aware that in the first case, Shumaker and PM colluded to ensure
that plaintiff pursued a meritless case so that Shumaker could obtain legal fees from plaintiff. This
argument lacks merit.
Plaintiff broadly asserts that “[d]efendants worked on the claim against PM, as evidenced
by their own notes.” The only notes that plaintiff expressly draws attention to on appeal are the
following excerpts from two of defendants’ personal meeting notes:
THB [presumably Thomas H. Blaske] explained how this is not a legal mal
case where the underlying case was meritorious and D [Shumaker] botched it, but
rather a case that never should have been brought in the first place, and the only
people who had anything to gain were Ds [Shumaker].
* * *
We talked about moving forward with the case as a “no-case scenario”
where Mr. Gibson paid $160k litigating a case that should never have been brought
in the first place. Mr. Gibson said that Mark Mercer, a senior partner at the
Defendant law firm, told him that he had PM “in his pocket” and that they will find
barrels. I searched Mark Mercer online, and found that he is an attorney at the
Defendant law firm, and is part of their environmental litigation department.

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The only assertion of PM’s alleged bad acts within these notes is plaintiff’s own statement.
Accordingly, there is no admissible evidence of the collusive scheme that plaintiff is alleging, and
there is no indication that defendants ever believed the collusion-scheme that plaintiff presented
to them. These notes simply stated that defendants’ strategy was to attack Shumaker’s decision to
pursue this case at all as it simply had no merit, as evidenced by the lack of barrels found under
the property.
Upon further investigation, defendants’ March 2019 notes—following a meeting with
plaintiff—clearly indicated that “the only potentially timely case we see here is against attorney
Wagoner for badly mishandling the case.” Defendants then outlined nine things that they “wanted
to explore,” including “whether there’s a lawsuit against the environmental firm, PM.” But PM’s
second survey—which concluded that there were no barrels buried under the property—was
conducted after this meeting, and defendants mentioned nothing further regarding any potential
claim against PM after that survey was completed.
None of defendants’ notes state that they: (1) believed that PM and Shumaker colluded, (2)
advised plaintiff that they had a viable claim against PM, or (3) intended to pursue a claim against
PM. Accordingly, plaintiff has failed to point out any portion of defendants’ notes showing that
defendants started to build a case against PM, expanding their limited scope of representation.
Therefore, the trial court did not err by granting defendants’ motion for summary disposition in
this regard.
2. CASE-WITHIN-A-CASE
Plaintiff also challenges the trial court’s finding that plaintiff failed to demonstrate a viable
claim against PM. Plaintiff argues that PM was either negligent or outright lying about the
presence of drums at the property. We disagree.
As previously stated, “the causation element of a malpractice claim typically requires the
plaintiff to prove a case-within-a-case.” Id. at 277. Although proving the case within the case
may not always be necessary, this Court has explained that the traditional case-within-a-case
requirement applies to cases “where an attorney’s negligence prevents the client from bringing a
cause of action (such as where he allows the statute of limitations to run), where the attorney’s
failure to appear causes judgment to be entered against his client or where the attorney’s negligence
prevents an appeal from being perfected.” Id. at 278-279 (quotation marks and citation omitted;
emphasis added). In this case, Gibson initiated a legal malpractice action against defendants,
faulting them for not suing PM before the statutory limitation period ran. Accordingly, plaintiff’s
claim falls squarely within the first category of cases that the case-within-a-case doctrine applies:
“where an attorney’s negligence prevents the client from bringing a cause of action (such as where
he allows the statute of limitations to run) . . . .” Id. (quotation marks and citation omitted;
emphasis added). Therefore, plaintiff is required to prove that he would have been successful in
the underlying matter with PM but for defendants’ malpractice. Id. at 273.
On appeal, plaintiff clarifies that his “tort theory was not that PM was negligent in not
digging up drums. Instead, [his] theory is that PM was negligent in claiming that 250-500 drums
were present on the property, when in fact, later investigation proved that there were no drums at

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all.” Accordingly, PM was either negligent or outright lying about the presence of drums at the
property. This argument also lacks merit.
As an initial matter, plaintiff claims that someone from PM testified that there were 250-
500 barrels present at the property; however, the record provides no support for that claim. In his
opposition to defendants’ motion for summary disposition, plaintiff claimed that “[d]uring the
deposition of Tom Dawda, the GPR technician, Mr. Dawda testified there were 250-500 barrels
on the property, and that it was the largest concentration he had ever seen.” But plaintiff did not
attach that deposition testimony in the trial court or on appeal. In fact, the only other place that
any such claim can be found is in defendants’ notes, where plaintiff himself reported that statement
being made. In reality, PM simply reported that: (1) “[n]umerous anomalies consistent with buried
materials were identified throughout the area of concern at depths between 1.5 and 4.0 feet below
ground surface”, and (2) “[t]he size and shape of the anomalies [were] consistent with potential
drums.” A PM employee subsequently testified “that the anomalies were also consistent with the
size of other things, such as an engine block.” Gibson v Danilowicz Estate, unpublished per curiam
opinion of the Court of Appeals, issued February 14, 2019 (Docket No. 341579), p 2.
It is important to note that PM performed every duty that it was instructed and paid to
perform in this case. Before PM conducted its first survey of the property, Shumaker warned
plaintiff of the risks associated with digging for the barrels. When PM submitted a bid to perform
a GPR survey, Shumaker advised plaintiff to accept the proposal, explaining that it was a practical
approach to this project involving “a step by step process beginning with the GPR survey, which
is a non-invasive (no digging or subsurface work) investigation method. The GPR should be able
to provide some immediate general information on potential anomalies.” Shumaker also advised
plaintiff of what the next steps could be depending on what the GPR survey reported. Plaintiff
accepted PM’s proposed survey, and in 2016, PM reported that numerous buried anomalies
“consistent with potential drums” were identified throughout the property. Plaintiff did not request
that PM take any additional steps at the time. Later, in 2019, PM conducted additional testing and
concluded that “[n]o anomalies consistent with potential orphan drums were encountered in
accessible areas . . . .”
As previously discussed, there is no record evidence showing that PM colluded with
Shumaker or purposefully perpetuated a lie about the presence of drums at the property. There is
also no evidence that PM negligently performed the first survey. In fact, the only record evidence
explaining the inconsistencies between PM’s reports was PM’s explanation that: (1) “due to the
presence of vehicles, debris and vegetation throughout the subject property, the [2016] survey was
limited and did not fully assess the area of concern”; and (2) “[l]imitations consisting of vehicles
and automotive debris remained present throughout the subject property [in 2019,] and the area of
concern was assessed to the extent possible.” Before plaintiff accepted PM’s initial proposal in
2016, Shumaker clearly advised him that “[t]he GPR equipment is about the size of a larger push
lawnmower that is wheeled over the area being investigated. Accordingly, the area should be
generally free of tall vegetation, heavy brush, and debris.” It appears that plaintiff did not follow
those instructions, and PM’s initial survey produced limited findings as a result. Plaintiff has failed
to explain how any limited findings were PM’s fault; instead, he generally asserts that PM outright
lied—a claim that simply has no record support.

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Plaintiff failed to establish a material question of fact as to whether he could have
successfully brought a claim against PM but for defendants’ alleged negligence. Therefore, the
trial court did not err by granting defendants’ motion for summary disposition in this regard.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Kathleen A. Feeney
/s/ Randy J. Wallace

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