KENT PATTENAUDE V HAROLD LANE
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STATE OF MICHIGAN
COURT OF APPEALS
KENT PATTENAUDE,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 187873
Monroe County
LC No. 93-001601
HAROLD LANE,
Defendant-Appellee.
Before: Hoekstra, P.J., and Sawyer and T.P. Pickard,* JJ.
PICKARD, J. (concurring).
I concur in the majority opinion finding that although this Court has previously concluded that
nothing in the language of MCR 2.403(O) requires a trial court to equate reasonable fees with actual
fees, Cleary v The Turning Point, 203 Mich App 208; 512 NW2d 9 (1994), that on the facts of this
case the trial court abused its discretion when it awarded attorney fees at a higher rate than actually
charged by the defendant’s attorney.
MCR 2.403(O)(1) states that 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 violation. Actual costs are defined by MCR 2.401(O)(6) as:
(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.
* Circuit judge, sitting on the Court of Appeals by assignment.
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This Court previously concluded that nothing in the language of MCR 2.403(O) requires a court
to equate reasonable fees with actual fees. Cleary, supra at 212. I agree. However, nothing in the
language of MCR 2.403(O) prevents a trial judge from doing so.
The Cleary Court correctly stated the rule, but failed to instruct trial judges how to apply it.
MCR 2.403(O)(6)(b) requires that the trial judge determines a reasonable attorney fee for services
necessitated by the rejection of the mediation evaluation. In Cleary, the Court awarded a reasonable
fee in excess of the actual fee charged. However, the Court failed to explain how that reasonable fee
was determined or what process trial judges should use to determine reasonable fees in such situations.
As evidenced by this present case, the trial judge appears to believe that Cleary set forth a
blanket rule for determining the reasonableness of attorney fees after a mediation evaluation has been
rejected. The rule in Cleary implies that any reasonable fee may be awarded without consideration of
the actual attorney fees charged. Such a rule is unfair and invites abuse. It provides the opportunity for
the prevailing plaintiff or defendant to inflate attorney fees. It also provides an opportunity for punitive
sanctions.
This Court should take this opportunity to explain how a reasonable attorney fee should be
determined under MCR 2.403(O)(6). This judge would suggest the following approach: (1) First, the
trial judge should determine if the actual attorney fee charged to the client was reasonable. If that fee is
reasonable, that amount should be awarded. (2) Second, if the actual fee charged to the client is
unreasonably high or unreasonably low for the services necessitated by the rejection of mediation, then
MCR 2.403(O)(6) allows the trial judge to determine a fee which would be reasonable under the
circumstances.1 This process would insure that reasonable fees are taxed to the appropriate party
without punishing that party.
/s/ Timothy P. Pickard
1
This rule should apply uniformly to plaintiffs and defendants. For example, in this case, the defendant
was charged $85 an hour for 118.45 hours by his attorney, totaling $10,068.25. The court should
determine if the $85 per hour rate was reasonable under the circumstances. If it is, the $10,068.25
should be awarded the defense. If that rate is unreasonably high or low, then the trial judge should
determine a reasonable hourly rate.
If, in this case, the plaintiff had agreed to a $20,000 mediation evaluation and the defendant had
rejected it, and $20,000 was awarded to plaintiff at trial, the defendant would have to pay the plaintiff’s
attorney fees pursuant to MCR 2.403(O). If, in this example, the plaintiff’s attorney had a one-third
contingency agreement, his attorney fees would be $6,600, or $55.72 per hour, using the same 118.45
hours billed by defense counsel in this case. The trial judge would need to determine if the $55.72 per
hour rate was reasonable under the circumstances. If it is reasonable, the $6,600 would be awarded to
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the plaintiff as attorney fees. However, if that rate is unreasonable, the judge would set a reasonable
hourly rate.
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