DIVERSIFIED MEAL SERVICES INC V DEBORAH CROWNOVER
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STATE OF MICHIGAN
COURT OF APPEALS
DIVERSIFIED MEAL SERVICES, INC.,
UNPUBLISHED
June 2, 2009
Plaintiff/Counter-DefendantAppellant,
v
No. 284633
Jackson Circuit Court
LC No. 07-001666-CZ
DEBORAH CROWNOVER, d/b/a RE/MAX
MID-MICHIGAN,
Defendant-Appellee,
and
FILLMORE’S, INC.,
Defendant-Counter-Plaintiff.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
SHAPIRO, J. (dissenting).
I respectfully dissent from the majority’s decision to affirm, as I conclude that the trial
court erred in its conclusion that plaintiff’s claim was frivolous.
This Court reviews a trial court’s finding that an action was devoid of arguable legal
merit and, therefore, frivolous under MCL 600.2591(3)(iii), for clear error. Meagher v Wayne
States University, 222 Mich App 700, 727; 565 NW2d 401 (1997). “The circumstances existing
at the time a case is commenced is of critical importance in determining if a lawsuit has a basis
in fact or law.” Id.
Although plaintiff’s complaint may not have been artfully drafted, it is clear that plaintiff
was attempting to bring Re/Max under the jurisdiction of the trial court such that Re/Max would
be required to obey whatever disposition of the money the trial court ordered. This was
permissible under MCR 2.206(A)(2)(b), which provides that “[a]ll persons may be joined in one
action as defendants . . . if their presence in the action will promote the convenient
administration of justice.” Indeed, six months after litigation was instituted, a stipulation was
entered into among the three parties providing for Re/Max to relinquish the $6,000 and place it
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into an escrow account for the court. Accordingly, plaintiff’s inclusion of Re/Max as a
defendant had the desired result—it brought the $6,000 within the purview of the trial court.
The trial court apparently relied on the fact that “ReMax never suggested that they would
not release the money to [plaintiff] if Fillmore’s provided written consent.” This is irrelevant.
At the time plaintiff filed suit, Re/Max had refused to refund the money, concluding that
litigation was imminent. Further, given that Re/Max was the agent for Fillmore’s, plaintiff could
reasonably believe that Re/Max might be hesitant to refund the money based on Re/Max’s
business relationship with Fillmore’s. Plaintiff erred on the side of caution and included Re/Max
based on its status as the holder of the escrow funds. This was permissible under the court rules.
Accordingly, I conclude that the trial court clearly erred in concluding that plaintiff’s claim was
frivolous. And, because plaintiff’s claim was not frivolous, Re/Max was not entitled to costs
pursuant to MCL 600.2591. Accordingly, I would reverse and remand.
/s/ Douglas B. Shapiro
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