Mehelas v. Wayne County Community College

Maher, P.J.

(dissenting). I respectfully dissent from the majority’s conclusion that plaintiffs were not entitled to mediation sanctions as against defendants Wayne County Community College and Wayne County Community College Board of Trustees.

At the time the trial court denied plaintiffs’ motion for mediation sanctions, the court rule governing such provided:

If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favora*818Ble to that party than the mediation evaluation. [Emphasis added. MCR 2.403(0X1).]

The emphasized language of that court rule represents the sections at issue in the instant case.

When MCR 2.403(O)(l) first became effective, many parties who rejected mediation awards came to this Court arguing that sanctions were not appropriate unless the matter resulted in a verdict less favorable to their positions. A "verdict,” they argued, meant nothing short of its commonly accepted meaning — that is, a decision by a jury at the conclusion of a trial. But, those arguments were rejected by this Court in Wayne-Oakland Bank v Brown Valley Farms, Inc, 170 Mich App 16; 428 NW2d 13 (1988). In that case, this Court concluded, after considering the underlying purpose of MCR 2.403(0) (i.e., to place the burden of trial costs on the party who insists on a trial by rejecting mediation), that the rendering of a jury verdict is not a prerequisite for mediation sanctions. Id., p 21.

The majority in the case at bar, by paying deference to the doctrine of stare decisis, apparently does not disagree with the holding in Wayne-Oakland Bank. Thus, the critical issue in this case is, what does the court rule mean when it says the action must proceed to trial. As I interpret MCR 2.403(O)(l), an action proceeds to trial where it continues on after mediation in the direction of a trial (i.e., absent some intervening circumstance, the case would eventually reach a conclusion at a trial). This would include actions which have not settled out or which have not been dismissed after being placed on the "no progress” docket. Had the Supreme Court intended an actual trial, it could have used much clearer language to indicate such. For example, the court rule could have read, "If a *819party has rejected an evaluation and a trial in the matter has commenced, that party must pay . . .

My interpretation of MCR 2.403(0X1), as it existed at the time of the trial court’s ruling, finds support in, of all places, the most recent amendment to MCR 2.403(0). The court rule now reads:

(1) If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
(2) For the purpose of this rule 'verdict’ includes,
(a) a jury verdict,
(b) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a motion filed after mediation.

The significance of the new MCR 2.403(O)(l) and (2) is that it retains the old language that "the action proceeds to trial” while defining "verdict” to include, among other things, judgments entered as a result of pretrial motions (e.g., summary disposition motions). If, as the majority concludes, an action proceeds to trial only when an actual trial is held or commenced, the Supreme Court would have had to amend the language that "the action proceeds to trial” when it included pretrial dispositions in the court rule. As the majority interprets it, an action "proceeds to trial” under the former court rule in a manner different than an action "proceeds to trial” under the new court rule. In other words, identical language has different meanings.

By not amending the old language, I can only *820surmise that the Supreme Court did not intend that an actual trial be a prerequisite to the imposition of mediation sanctions. Rather, the Supreme Court must have meant that an action "proceeds to trial” when it continues after mediation in the direction of a trial. I would therefore hold that plaintiffs are entitled to mediation sanctions even though a trial had not commenced in the matter.