Haliw v. City of Sterling Heights

                                                                Michigan Supreme Court
                                                                      Lansing, Michigan
                                         Chief Justice:	          Justices:



Opinion                                  Clifford W. Taylor 	     Michael F. Cavanagh
                                                                  Elizabeth A. Weaver
                                                                  Marilyn Kelly
                                                                  Maura D. Corrigan
                                                                  Robert P. Young, Jr.
                                                                  Stephen J. Markman




                                               FILED JANUARY 25, 2005



  VALERIA HALIW and ILKO HALIW,

        Plaintiffs-Appellants,

  v                                                                No. 125022

  CITY OF STERLING HEIGHTS,

        Defendant-Appellee.

  _______________________________

  BEFORE THE ENTIRE BENCH

  CAVANAGH, J.

        At issue in this case is whether appellate attorney

  fees and costs are recoverable as case evaluation sanctions

  under MCR 2.403(O).     We hold that “actual costs” pursuant

  to MCR 2.403(O) do not include appellate attorney fees and

  costs.   Because the Court of Appeals held to the contrary,

  we reverse its decision, reinstate the trial court’s award,

  and   remand   the   case   to   the    Court            of   Appeals       for

  consideration of plaintiffs’ cross-appeal.
                            I. FACTS AND PROCEEDINGS 


        Plaintiff Valeria Haliw was walking on a snow-covered

sidewalk when she slipped and fell on a patch of ice that

formed       in    a    depressed       area        where   two   sections   of    the

sidewalk met.            Mrs. Haliw and her husband, plaintiff Ilko

Haliw,       brought      suit    under        MCL     691.1402,    alleging      that

defendant city of Sterling Heights breached its duty to

maintain the sidewalk so that it was reasonably safe and

convenient for public travel.                       Defendant moved for summary

disposition under MCR 2.116(C)(7) and (10), asserting that

plaintiffs’ claim was barred by the natural accumulation

doctrine.           Before the trial court ruled on the motion,

however,          the   matter        was   submitted        to   case   evaluation

pursuant to MCR 2.403.1

        On       September       8,     1997,        the    trial    court   denied

defendant’s motion for summary disposition.                         On October 13,

1997, both parties rejected the unanimous case evaluation

award       of    $55,000    in   plaintiffs’           favor.      Defendant     then

appealed by leave granted the trial court’s denial of its

motion for summary disposition, and the Court of Appeals


        1
       When this action commenced, MCR 2.403(O) used the
term “mediation.”   In 2000, this Court amended the court
rule   and,  among   other   things,   changed  the rule’s
terminology. The term “mediation” was replaced by the term
“case evaluation.”   Thus, for simplicity, we will use the
current terminology when discussing MCR 2.403(O).


                                               2

affirmed.2         This Court granted defendant’s application for

leave to appeal and reversed, determining that the natural

accumulation             doctrine     precluded        plaintiffs’       claim.3

Consequently, this Court remanded the case to the trial

court       for    entry     of     summary     disposition     in    favor   of

defendant.

        In addition to moving on remand for entry of an order

granting it summary disposition, defendant also requested

case evaluation sanctions under MCR 2.403(O).                          Defendant

sought $31,618 in sanctions; included in this amount were

defendant’s appellate costs and attorney fees.                        Consistent

with this Court’s decision, the trial court entered summary

disposition         in     defendant’s        favor.     The    trial     court,

however,          rejected     defendant’s        request      for     appellate

attorney fees and costs.               Defendant subsequently moved to

recover $5,335 in case evaluation sanctions for its trial

court       fees    and     costs.       After    considering        defendant’s




        2
        Unpublished opinion per curiam of the Court                           of
Appeals, issued October 5, 1999 (Docket No. 206886).
        3
       Haliw v Sterling Hts, 464 Mich 297; 627 NW2d 581
(2001) (Haliw I).    In Haliw I, I joined Justice KELLY’S
dissent and would have affirmed the trial court’s ruling.
I remain committed to the view that plaintiffs presented
genuine issues of material fact sufficient to withstand
defendant’s summary disposition motion.


                                         3

supplemental       motion,       the       trial    court     awarded    defendant

$1,500 in case evaluation sanctions.

     Defendant          appealed,         asserting    that    the   trial      court

impermissibly          excluded       its    appellate      attorney     fees    and

costs.     Plaintiffs cross-appealed the trial court’s award,

arguing    that        the    trial       court    abused   its   discretion      by

failing to apply the “interest of justice” exception, MCR

2.403(O)(11), to deny defendant any of its attorney fees

and costs.

     In    a     published        two-to-one        decision,     the    Court     of

Appeals reversed, holding that appellate attorney fees may

be awarded under MCR 2.403(O) because (1) such fees are not

expressly excluded, (2) a trial is not necessary to trigger

sanctions,       and    (3)    the    applicable       verdict    for    assessing

sanctions is the verdict rendered after appellate review.4

Because the Court of Appeals majority held that the trial

court erred by refusing to consider defendant’s appellate

attorney     fees       and    costs,       the    panel    did   not    determine

whether the trial court abused its discretion in failing to

invoke     the    “interest          of     justice”    exception       under    MCR

2.403(O)(11).          We granted plaintiffs’ application for leave

to appeal, limited to the issue whether appellate attorney



     4
         257 Mich App 689; 669 NW2d 563 (2003).


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fees and costs are recoverable as case evaluation sanctions

under MCR 2.403(O).5

                          II. STANDARD OF REVIEW

        The proper interpretation and application of a court

rule is a question of law, which this Court reviews de

novo.        Bauroth v Hammoud, 465 Mich 375, 378; 632 NW2d 496

(2001); CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich

549, 553; 640 NW2d 256 (2002).

                                III. ANALYSIS

        When called upon to interpret and apply a court rule,

this        Court   applies   the   principles   that   govern   statutory

interpretation.          Grievance Administrator v Underwood, 462

Mich 188, 193; 612 NW2d 116 (2000).                     Accordingly, this

Court begins with the language of the court rule.                  Id. at

194.        At the time both parties rejected the case evaluation

award, MCR 2.403(O) provided in pertinent part:

             (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. 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,


        5
            470 Mich 869 (2004).


                                       5

             (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 after                rejection of the
       mediation 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 mediation evaluation.

            For the purpose of determining taxable costs
       under this subrule and under MCR 2.625, the party
       entitled to recover actual costs under this rule
       shall be considered the prevailing party.

                                    * * *

            (8) A request for costs under this subrule
       must be filed and served within 28 days after the
       entry of the judgment or entry of an order
       denying a timely motion for a new trial or to set
       aside the judgment.

                                    * * *

            (11) If the “verdict” is the result of a
       motion as provided by subrule (O)(2)(c), the
       court may, in the interest of justice, refuse to
       award actual costs.

       The intent of the rule must be determined from an

examination of the court rule itself and its place within

the    structure   of   the   Michigan     Court      Rules    as   a   whole.

When   interpreting     a   court   rule      or   statute,    we   must   be


                                    6

mindful of “the surrounding body of law into which the

provision must be integrated . . . .”                    Green v Bock Laundry

Machine Co, 490 US 504, 528; 109 S Ct 1981; 104 L Ed 2d 557

(1989)       (Scalia,     J.,     concurring).           Here,    neither      the

language of MCR 2.403(O) nor the entire structure of our

court       rules    supports   the    Court    of    Appeals    construction.

Accordingly, we conclude that appellate attorney fees and

costs are not recoverable as case evaluation sanctions.

        MCR 1.103 provides that specific court rules control

over general court rules.               The court rule governing case

evaluation          sanctions     appears       in    chapter      two,     which

addresses civil procedure.               Appellate fees and costs are

addressed       under    chapter      seven,    the    chapter    specifically

controlling appellate procedure.                     Thus, the lack of any

reference       to    appellate    attorney      fees     and    costs    in   MCR

2.403(O) is understandable because they are covered under

an entirely separate section of the court rules.6                    The Court

of Appeals failure to appreciate this organization of the

court rules led it to incorrectly conclude that because MCR

2.403(O) did not specifically                  exclude    appellate attorney

fees and costs, the court rule necessarily included them as

a case evaluation sanction.


        6
       See, e.g., MCR 7.213(A)(6), MCR 7.216(C), and MCR
7.316(D).


                                         7

       We note that Michigan follows the “American rule” with

respect to the payment of attorney fees and costs.                          Dessart

v Burak, 470 Mich 37, 42; 678 NW2d 615 (2004).                            Under the

American rule, attorney fees generally are not recoverable

from   the    losing     party       as   costs      in    the    absence    of     an

exception set forth in a statute or court rule expressly

authorizing    such      an    award.          Id.    The    American       rule    is

codified at MCL 600.2405(6), which provides that among the

items that may be taxed and awarded as costs are “[a]ny

attorney fees authorized by statute or by court rule.”                             The

American rule stands in stark contrast to what is commonly

referred to as the “English rule,” whereby the losing party

pays    the   prevailing         party’s        costs      absent    an     express

exception.      MCR 2.403(O)(6) exemplifies the American rule

by expressly authorizing the recovery of attorney fees and

costs as case evaluation sanctions.

       While MCR 2.403(O)(6) expressly authorizes recovery of

“a reasonable attorney fee” and “costs,” and the court rule

does not distinguish between trial and appellate attorney

fees and costs, the Court of Appeals erred in concluding

that    because    MCR        2.403(O)      does     not    expressly       exclude

appellate     attorney        fees    and       costs,     such     expenses       are

recoverable.      That conclusion runs contrary to the American

rule governing the payment of attorney fees.                        As noted, the


                                          8

American      rule    permits          recovery       of    fees        and    costs       where

expressly authorized.              As such, the fact that MCR 2.403(O)

does not expressly exclude appellate fees and costs is not

determinative.             Therefore,          we     do    not    believe        that       the

failure      of    MCR     2.403(O)       to        expressly      exclude        appellate

attorney fees and costs is necessarily dispositive under

these limited circumstances.

       Our    conclusion          is    supported          by     the    fact     that       MCR

2.403(O) is trial-oriented.                     For example, at the time of

this   action,       MCR    2.403(O)(1)             provided,       “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.”              MCR     2.403(O)(2)             then

defines “verdict” as follows:

              (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 after                            rejection of the
       mediation evaluation.

The    most       natural     reading          of     MCR       2.403(O)(1)          and     (2)

contemplates a trial-oriented court rule.                                 Notably absent

from   the     definition         of     “verdict,”          or    any        part    of    MCR

2.403(O) for that matter, is any mention of the appellate

process.


                                               9

      In 1997, this Court amended MCR 2.403(O) and changed

the phrase in MCR 2.403(O)(1) from “the action proceeds to

trial” to “the action proceeds to verdict.”                            In support of

its   conclusion          that     appellate         fees        and     costs     are

recoverable, the Court of Appeals relied on this amendment.

The Court of Appeals reasoned that because this Court “de-

emphasiz[ed]” a trial as the “determinative proceeding,”

this Court somehow intended that appellate attorney fees

and   costs   should      now     be    recoverable         as   case     evaluation

sanctions.     Haliw, supra at 698.                  However, the purpose of

the 1997 amendment was narrower than that assumed by the

Court of Appeals and, thus, the amendment does not support

the Court of Appeals rationale.

      Until this Court amended MCR 2.403(O) in 1997, it was

sufficiently unclear whether a judgment that entered as a

result of a dispositive motion instead of a trial would

engender sanctions.         By amending the court rule, this Court

clarified     that   case        evaluation        sanctions      may     indeed    be

available when a case is resolved after case evaluation by

a   dispositive      motion.           As    such,    the    Court       of   Appeals

analysis went beyond the intent of the 1997 amendment and

the actual language used in the amendment.

      Moreover,      we     believe         that     the    Court        of   Appeals

mistakenly relied on Keiser v Allstate Ins Co, 195 Mich App


                                            10

369; 491 NW2d 581 (1992), and Hyde v Univ of Michigan Bd of

Regents, 226 Mich App 511; 575 NW2d 36 (1997), to support

its ultimate conclusion that appellate attorney fees and

costs are recoverable.             In Keiser, the plaintiff brought an

action for no-fault benefits against the defendant.                             The

case evaluation resulted in an award of $12,000 in the

plaintiff’s favor.           The plaintiff rejected the award, and

the defendant accepted.                As such, the case proceeded to

trial, the defendant unsuccessfully moved for a directed

verdict, and the jury awarded the plaintiff an amount in

excess    of     the      case   evaluation          award.      The    defendant

appealed, and the Court of Appeals held that the trial

court    erred      by   denying      the     defendant’s      directed   verdict

motion.     Keiser v Allstate Ins Co, unpublished opinion per

curiam    of   the       Court   of    Appeals,       issued    March    23,    1989

(Docket No. 101312).

        The Keiser defendant then moved for case evaluation

sanctions under MCR 2.403(O).                     The trial court ordered the

plaintiff      to    pay   the   defendant’s          trial    costs    and    fees.

Notably, “[n]o costs or fees were awarded for any appellate

or   posttrial       activity.”             Keiser,    supra    at     371.      The

plaintiff challenged the imposition of sanctions for the

defendant’s trial costs and fees, and the Court of Appeals

affirmed.      The Keiser Court noted:


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             The only issue on appeal is whether, after a
        party rejects a [case] evaluation [award] and,
        following a trial, a verdict more favorable to
        the rejecting party is returned, MCR 2.403(O)
        allows the imposition of sanctions on the
        rejecting party following appellate reversal of
        the verdict where the final result is no longer
        favorable to that party. [Id.]

        Accordingly, the Court of Appeals in Keiser concluded

“that it is the ultimate verdict that the parties are left

with    after    appellate        review    is    complete       that   should    be

measured against the [case] evaluation [award] to determine

whether sanctions should be imposed on a rejecting party

pursuant to MCR 2.403(O).”                  Id. at 374-375.             The Keiser

panel, however, clearly did not see itself deciding the

question       presented     in    this    case—i.e.,        whether     appellate

attorney fees and costs are recoverable under the court

rule.        In fact, Keiser deliberately noted the decisions in

American Cas Co v Costello, 174 Mich App 1; 435 NW2d 760

(1989), and Giannetti Bros Constr Co v City of Pontiac, 175

Mich     App    442;   438    NW2d        313    (1989),     which      held    that

appellate       fees   and   costs       are     not   recoverable      under    MCR

2.403(O).          Further,        the     Keiser        panel    observed      that

“sanctions for appellate expenses are expressly set forth

in     MCR     7.216(C),     which        does     not     provide      for    [case

evaluation] sanctions.”            Keiser, supra at 374.




                                          12

     As such, Keiser and its progeny merely stand for the

proposition    that    the   instant    defendant    may    seek    case

evaluation sanctions for its trial attorney fees and costs

because the result following appeal governs for purposes of

MCR 2.403(O).        However, Keiser cannot be interpreted as

concluding    that    appellate   attorney    fees   and    costs    are

recoverable under the court rule.            Thus, we believe that

the Court of Appeals misread the Keiser decision to support

its ultimate holding.7

     In   sum,   we    disagree    with   the   Court      of   Appeals

rationale because none of the bases that the panel relied

on necessitates the conclusion that appellate attorney fees

and costs are recoverable under MCR 2.403(O).              Rather, our

reading of MCR 2.403(O) compels us to conclude that the

court rule is trial-oriented.8




     7
       In Marketos v American Employers Ins Co, 465 Mich
407, 414 n 9; 633 NW2d 371 (2001), this Court expressed no
opinion regarding the validity of Keiser, supra, because
the issue raised in Keiser was not then before us. In this
case, however, the issue is squarely before this Court.
Accordingly, we take this opportunity to approve of
Keiser’s narrow application of MCR 2.403(O) under the facts
presented in that case.
     8
       Moreover, in support of our conclusion that MCR
2.403(O) is trial-oriented, we note that a request for case
evaluation sanctions must be made within twenty-eight days
after entry of the judgment, MCR 2.403(O)(8), generally a
time before the bulk of appellate fees and costs have been
incurred.  In addition, MCR 2.403(O)(6)(b) allows recovery


                                  13

                              IV. CONCLUSION

     We hold that appellate attorney fees and costs are not

recoverable    as   case     evaluation       sanctions    under     MCR

2.403(O).     Accordingly,    we    reverse    the   decision   of   the

Court of Appeals and reinstate the trial court’s award.

Because the Court of Appeals did not determine whether the

trial court abused its discretion in failing to invoke the

“interest of justice” exception under MCR 2.403(O)(11), we

remand   to   the   Court    of    Appeals    for    consideration    of

plaintiffs’ cross-appeal.

                                    Michael F. Cavanagh
                                    Clifford W. Taylor
                                    Elizabeth A. Weaver
                                    Marilyn Kelly
                                    Maura D. Corrigan
                                    Robert P. Young, Jr.
                                    Stephen J. Markman




of attorney fees “necessitated by” the rejection of the
case evaluation.     While a causal nexus plainly exists
between rejection and trial fees and costs, the same cannot
be said with respect to rejection and the decision to bring
an appeal.    Rather, appellate attorney fees and costs are
arguably “necessitated by” a perceived erroneous trial
court ruling.

     We are cognizant of prior decisions of the Court of
Appeals that have construed the phrase “necessitated by the
rejection” as a mere temporal demarcation.       See, e.g.,
Michigan   Basic  Prop   Ins  Ass’n   v  Hackert   Furniture
Distributing Co, Inc, 194 Mich App 230, 235; 486 NW2d 68
(1992).   On the basis of the language of MCR 2.403(O),
however, we believe the better-reasoned approach goes
beyond a temporal demarcation and requires a causal nexus
between rejection and incurred expenses.


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