Order Michigan Supreme Court
Lansing, Michigan
June 23, 2009 Marilyn Kelly,
Chief Justice
136752-3 & (39) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
MARK CHABAN, P.C., Successor of Law Diane M. Hathaway,
Office of Mark Chaban, Justices
Plaintiff-Appellant,
v SC: 136752-3
COA: 282109; 282481
Wayne CC: 07-709097-AV
SHIRLEY GETSINGER, JOSEPH P.
BUTTIGLIERI, THEODORE P. PANARETOS,
and KEMP, KLEIN, UMPRHEY, ENDELMAN &
MAY, P.C.,
Defendants-Appellees.
_________________________________________/
On order of the Court, the motion to intervene as appellant is GRANTED. The
application for leave to appeal the May 14, 2008 orders of the Court of Appeals is
considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
REMAND this case to the Court of Appeals for reconsideration of its May 14, 2008
orders to afford Tindall & Company P.C. the opportunity to present arguments in support
of the portions of the probate court’s March 6, 2006 and March 8, 2006 orders awarding
sanctions that were vacated by the Court of Appeals’ May 14, 2008 order in No. 282481.
We do not retain jurisdiction.
CORRIGAN, J., I am not participating in this case because I retained defendant
Joseph P. Buttiglieri to represent my husband’s estate in probate court and on other
matters.
YOUNG, J. (concurring).
I concur in the order remanding this case to the Court of Appeals. I write
separately to commend to the Court of Appeals the following provisions, which may
cause the panel to reconsider its previous analysis. MCL 600.2591 provides in pertinent
part:
2
(1) Upon motion of any party, if a court finds that a civil action or
defense to a civil action was frivolous, the court that conducts the civil
action shall award to the prevailing party the costs and fees incurred by that
party in connection with the civil action by assessing the costs and fees
against the nonprevailing party and their attorney.
***
(3) As used in this section:
(a) “Frivolous” means that at least 1 of the following conditions is
met:
(i) The party’s primary purpose in initiating the action or asserting
the defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts
underlying that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
[Emphasis added.]
And MCR 2.114 provides in pertinent part:
(D) Effect of Signature. The signature of an attorney or party,
whether or not the party is represented by an attorney, constitutes a
certification by the signer that
(1) he or she has read the document;
(2) to the best of his or her knowledge, information, and belief
formed after reasonable inquiry, the document is well grounded in fact and
is warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law; and
(3) the document is not interposed for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase in the cost
of litigation.
3
(E) Sanctions for Violation. If a document is signed in violation of
this rule, the court, on the motion of a party or on its own initiative, shall
impose upon the person who signed it, a represented party, or both, an
appropriate sanction, which may include an order to pay to the other party
or parties the amount of the reasonable expenses incurred because of the
filing of the document, including reasonable attorney fees. The court may
not assess punitive damages. [Emphasis added.]
The probate court expressly determined that defendant acted “in a manner
specifically injected to prolong the proceedings” and “the reason [defendant] was
asserting that position was primarily to harass, embarrass or injure [plaintiff].” Thus, on
remand, the Court of Appeals may wish to reconsider its determination that the probate
court “had no basis upon which to assess sanctions under MCR 2.114 . . . or MCL
600.2591.”1
1
Mark A Chaban PC v Getsinger, unpublished order of the Court of Appeals, entered
May 14, 2008 (Docket No. 282481).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 23, 2009 _________________________________________
s0616 Clerk