STATE OF MICHIGAN
COURT OF APPEALS
VALERIA HALIW and ILKO HALIW,
FOR PUBLICATION
August 5, 2003
9:10 a.m.
Plaintiffs-Appellees/CrossAppellants,
No. 237269
Macomb Circuit Court
LC No. 97-000036-NO
v
CITY OF STERLING HEIGHTS,
Defendant-Appellant/CrossAppellee.
Updated Copy
September 12, 2003
Before: Markey, P.J., and White and Zahra, JJ.
WHITE, J. (dissenting).
I respectfully dissent. MCR 2.403 consistently has been interpreted as providing for
attorney fees incurred at the trial level only, and as not providing for attorney fees incurred on
appeal. Leavitt v Monaco Coach Corp, 241 Mich App 288, 312 n 4; 616 NW2d 175 (2000);
Giannetti Bros Constr Co, Inc v City of Pontiac, 175 Mich App 442, 447; 438 NW2d 313
(1989); American Cas Co v Costello, 174 Mich App 1, 13; 435 NW2d 760 (1989). See also
Dean & Longhofer, Michigan Court Rules Practice, § 2403.22, p 533. None of these cases relied
on MCR 2.403's then-requirement that the case proceed to trial in order for mediation sanctions
to be invoked.1
1
I observe that Keiser v Allstate Ins Co, 195 Mich App 369; 491 NW2d 581 (1992), which the
majority notes held that the ultimate "verdict" after appellate review controls whether sanctions
are appropriate under MCR 2.403(O), recognized a distinction between the inquiry before it and
two issues previously decided in the negative in other cases—whether sanctions could be based
on a pretrial motion, rather than a trial verdict, and whether costs and expenses on appeal are
recoverable under MCR 2.403(O). While the instant issue was not before the Keiser Court, the
Court, having acknowledged the changes in the mediation rule that permitted an award of
sanctions following a pretrial grant of summary disposition, then distinguished the cases that
held that appellate costs and fees are not recoverable, explaining that "sanctions for appellate
expenses are expressly set forth in MCR 7.216(C), which does not provide for mediation
sanctions." Keiser, supra at 374.
-1-
The changes in the court rule relied upon by the majority were not intended to address the
issue whether appellate fees and costs are assessable as mediation sanctions. Rather, the changes
were addressed at making mediation sanctions available where a party prevails on motion, rather
than at trial. I would not read the changes as evidencing an intent by the Supreme Court to
modify the construction previously given the rule with respect to whether appellate attorney fees
are appropriately included as an element of mediation sanctions.
/s/ Helene N. White
-2-
