Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice Justices
Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 5, 2004
WILLIAM C. DESSART, and
SHIELA A. DESSART,
Plaintiffs-Appellants,
v No. 122238
LYNN MARIE BURAK, and
BRYAN R. BURAK,
Defendants-Appellees.
_______________________________
MEMORANDUM OPINION
Plaintiff argued that he was entitled to mediation
sanctions under MCR 2.403 in his third-party negligence
action. His claim for sanctions under MCR 2.403 requires a
determination whether “assessable costs” include attorney
fees and whether assessable costs are calculated from the
filing of the complaint to the rendering of the verdict.
The Court of Appeals answered both questions in the
negative. We affirm.
I. Procedural Background
Plaintiff William Dessart and defendant Lynn Burak
were involved in an automobile collision. Plaintiff and
his wife filed a third-party negligence action for injuries
plaintiff sustained in that accident. Before trial, a
mediation panel1 evaluated the case at $120,000. Plaintiffs
accepted the evaluation, but defendants rejected it.
Following a jury trial, plaintiff was awarded $100,000 in
damages. The circuit court denied plaintiffs’ motion for
mediation sanctions under MCR 2.403, concluding that the
adjusted verdict was “more favorable” to the defendants as
defined in MCR 2.403. The circuit court also rejected
plaintiffs’ argument that “actual costs” under MCR 2.403
includes attorney fees. The Court of Appeals affirmed the
decision of the circuit court. 252 Mich App 490; 652 NW2d
669 (2002).
II. Analysis
The proper interpretation of a court rule is a
question of law and is subject to review de novo. CAM
Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640
NW2d 256 (2002).
1
The procedure under MCR 2.403 formerly known as
"mediation" was renamed "case evaluation" effective
August 1, 2000. This change did not effect any substantive
change in the rule.
2
At the time the parties mediated this case, MCR 2.403
provided, in part:
(O) Rejecting Party's Liability for Costs.
(1) If a party has rejected an evaluation
and the action proceeds to verdict, that party
must pay the opposing party's actual costs unless
the verdict is more favorable to the rejecting
party than the mediation evaluation . . . .
* * *
(3) For the purpose of subrule (O)(1), a
verdict must be adjusted by adding to it
assessable costs and interest on the amount of
the verdict from the filing of the complaint to
the date of the case evaluation . . . . After
this adjustment, the verdict is considered more
favorable to a defendant if it is more than 10
percent below the evaluation, and is considered
more favorable to the plaintiff if it is more
than 10 percent above the evaluation. . . .
* * *
(6) For the purpose of this rule, actual
costs are
(a) those costs taxable in any civil action,
and
(b) a reasonable attorney fee based on a
reasonable hourly or daily rate as determined by
the trial judge for services necessitated by the
rejection of the case evaluation. [Emphasis
added.]
In their motion for mediation sanctions under this rule,
plaintiffs argued that the adjusted verdict exceeded
$108,000 (which is “more than 10 percent below the
evaluation” of $120,000) and, accordingly, was not “more
3
favorable to defendants” under MCR 2.403(O)(3). As such,
plaintiffs contended that they were entitled to mediation
sanctions under MCR 2.403(O)(1). Defendants responded that
plaintiffs miscalculated the adjusted verdict in two ways:
first, by including “assessable costs” from the filing of
the complaint to the verdict rather than from the filing of
the complaint to the case evaluation and, second, by
including attorney fees in “assessable costs.” The circuit
court denied plaintiffs' motion for sanctions, agreeing
with defendants that "assessable costs" are limited to
taxable costs incurred from the date the complaint is filed
until the date of case evaluation and do not include
attorney fees.
In affirming the decision of the circuit court, the
Court of Appeals panel acknowledged that in Beach v State
Farm Mut Automobile Ins Co, 216 Mich App 612; 550 NW2d 580
(1996), and Grow v W A Thomas Co, 236 Mich App 696; 601
NW2d 426 (1999), the term "assessable costs" in the court
rule was interpreted broadly to include postmediation costs
and attorney fees. The panel held, however, that those
cases were not controlling because their discussions of
assessable costs were obiter dicta. The panel also noted
that Beach was distinguishable because it involved a
statute that allows attorney fees as an element of damages
under certain circumstances. The panel held that attorney
4
fees are included in the "actual costs" awarded as a
mediation sanction, but not in "assessable costs" used to
determine whether a sanction should be awarded.
The Court also explained that the assessable costs
that are added to a verdict under MCR 2.403(O)(3) are those
incurred from the filing of the complaint to the date of
the case evaluation. In so concluding, the Court of
Appeals declined to follow the Grow Court in applying the
“last antecedent” rule of construction in interpreting the
mediation rule. This rule of construction provides that
“'a modifying clause is confined to the last antecedent
unless something in the subject matter or dominant purpose
[of the statute] requires a different interpretation.’”
Haveman v Kent Co Rd Comm’rs, 356 Mich 11, 18; 96 NW2d 153
(1959), quoting Kales v Oak Park, 315 Mich 266, 271; 23
NW2d 658 (1946), quoting Hopkins v Hopkins, 287 Mass 542,
547; 192 NE 145 (1934). The Court of Appeals concluded
that the application of the last antecedent rule in this
case would mean that the phrase "from the filing of the
complaint to the date of the mediation evaluation" modified
only "interest on the amount of the verdict" and not
"assessable costs." MCR 2.403(0)(1). The panel concluded
that such an interpretation of the rule "skews its dominant
purpose." 252 Mich App 497. Therefore, the panel held
that the modifying phrase in MCR 2.403(O)(3) applied to
5
both “assessable costs” and “interest.” This construction
of the court rule, the Court concluded, was more in keeping
with the overall purposes of the mediation rule, which are
“to encourage settlement, deter protracted litigation, and
expedite and simplify the final settlement of cases.” 252
Mich App 498.
We agree with the Court of Appeals that attorney fees,
whether incurred before or after the mediation evaluation,
are not an element of "assessable costs" under MCR
2.403(O)(3). The general “American rule” is that “attorney
fees are not ordinarily recoverable unless a statute, court
rule, or common-law exception provides the contrary.”
Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 37-38; 567 NW2d
641 (1998). As such, the term “costs” ordinarily does not
encompass attorney fees unless the statute or court rule
specifically defines “costs” as including attorney fees.
For example, MCR 2.403(O)(6) provides that “actual costs”
include “(a) those costs taxable in any civil action, and
(b) a reasonable attorney fee . . . .” MCR 2.403(O)(6),
however, does not define “assessable costs” as including
attorney fees. We conclude, therefore, that attorney fees
are not included in “assessable costs” under MCR
2.403(O)(3).
We also agree that in adjusting a verdict under MCR
2.043(O)(3), assessable costs are limited to those incurred
6
between the filing of the complaint and the date of the
mediation evaluation or case evaluation.
Plaintiffs have urged upon us the position that
utilization of the “last antecedent” rule would support the
conclusion that the modifying phrase applies only to
“interest.” Here, however, the last antecedent rule
provides little guidance because there are no textual clues
indicating that “assessable costs” and “interest” are to be
treated separately. To the contrary, the fact that “and”
joins “assessable costs” and “interest on the amount of the
verdict from the filing of the complaint to the date of the
case evaluation” suggests that the phrase “assessable costs
and interest” is to be thought of as a single term, and, as
a unit, is modified by “from the filing of the complaint to
the date of the case evaluation.” MCR 2.403(0)(3).
Moreover, plaintiffs’ suggested reading produces conceptual
difficulties because it would provide no temporal limit at
all to “assessable costs” and would make it possible for a
party, remorseful over its failure to accept the mediation
award, to advantage itself between mediation and trial by
accruing unnecessary costs. This is an outcome that surely
could not have been intended by the Court in adopting these
rules. Indeed, the plain meaning of the rule and its
grammatical structure make it clear that the rule does set
the temporal limit as the date of case evaluation. On the
7
basis of the foregoing application of the principles of
construction, we affirm the judgment of the Court of
Appeals. MCR 7.302(G)(1).
Maura D. Corrigan
Michael F. Cavanagh
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
8
S T A T E O F M I C H I G A N
SUPREME COURT
WILLIAM C. DESSART, and
SHIELA A. DESSART,
Plaintiffs-Appellants,
v No. 122238
LYNN MARIE BURAK, and
BRYAN R. BURAK,
Defendants-Appellees.
_______________________________
WEAVER, J. (concurring in result).
I concur in the majority’s determination that the last
antecedent rule does not control the interpretation of the
court rule at issue in this case.
I agree with and adopt the Court of Appeals reasoning
that applying the last antecedent rule to MCR 2.403(O)(3)
“skews [the court rule’s] dominant purpose,” which is to
encourage settlement, deter protracted litigation, and
expedite and simplify the final settlement of cases. 252
Mich App 490, 497; 652 NW2d 669 (2002).
I write separately because in its efforts to avoid
applying the last antecedent rule, the majority
unnecessarily creates a new rule of interpretation—that
when two phrases are joined by “and,” they are to be
treated as one term for the purpose of the last antecedent
rule unless there is some textual clue indicating that they
are to be treated separately. This new rule of
interpretation conflicts with the last antecedent rule,
which provides that a limiting clause or phrase should
ordinarily be read as modifying only the noun or phrase
that it immediately follows, unless there is some
indication to the contrary.1
The majority’s creation of the new conflicting rule of
interpretation is unnecessary because, although the last
antecedent rule is a well-recognized rule of statutory
construction, its use is optional, not mandatory. As
Sutherland On Statutory Construction explains, the last
antecedent rule is “another aid to discovery of intent or
meaning and is not inflexible and uniformly binding. Where
the sense of the entire act requires that a qualifying word
or phrase apply to several preceding or even succeeding
1
Barnhart v Thomas, 540 US ___; 124 S Ct 376, 380; 157
L Ed 2d 333 (2003), citing 2A Singer, Sutherland on
Statutory Construction, § 47.33, p 369 (6th rev ed, 2000)
(“Referential and qualifying words and phrases, where no
contrary intention appears, refer solely to the last
antecedent.”)
2
sections, the word or phrase will not be restricted to its
immediate antecedent.”2
I concur in the result of the memorandum opinion.
Elizabeth A. Weaver
2
2A Singer, Sutherland on Statutory Construction, §
47.33, p 372 (6th rev ed 2000).
3