SABRINA J HAMMOND V SHERWIN L PRIOR
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STATE OF MICHIGAN
COURT OF APPEALS
SABRINA J. HAMMOND,
UNPUBLISHED
June 2, 2009
Plaintiff-Appellant,
and
LYNDA S. MAYS,
Appellant,
v
No. 285087
Oakland Circuit Court
LC No. 2007-086210-CK
SHERWIN L. PRIOR,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for
costs for a frivolous action. We affirm. This appeal has been decided without oral argument
pursuant to MCR 7.214(E).
Plaintiff and defendant cohabitated for some time and had a child in common. When
they separated, a custody battle ensued. While that action was pending, plaintiff sued defendant
for promissory estoppel (Count I), intentional infliction of emotional distress (Count II), and
breach of contract (Count III), alleging that during the course of their relationship defendant
promised to provide for her financially, buy her a house, and provide for her and any child they
had for the rest of their lives. Plaintiff asserted that in reliance on defendant’s promises she quit
her job, cared for the home on a full-time basis, and “agreed to become pregnant and have a child
for Defendant.” Her allegations regarding the second and third counts were conclusory; the only
terms of the apparently oral contract were defendant’s alleged agreement to provide for plaintiff
if she conceived a child and resigned from her job to care for their home. Shortly after filing the
complaint, plaintiff filed interrogatories and noticed defendant’s deposition.
After transferring the action to the same court that was hearing the custody matter,
defendant moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim) and
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(C)(10) (no genuine issue of material fact). He argued that this was a standard “palimony” case
which is prohibited by Michigan law, specifically, Featherston v Steinhoff, 226 Mich App 584;
575 NW2d 6 (1998), and Carnes v Sheldon, 109 Mich App 204; 311 NW2d 747 (1981).
Plaintiff responded that claims like hers are allowed by Michigan law where there is additional
consideration, and domestic services have been found to be adequate, independent consideration.
Tyranski v Piggins, 44 Mich App 570, 574; 205 NW2d 595 (1973).
The trial court, after hearing argument, granted defendant’s motion, noting that this was a
meretricious relationship and so plaintiff’s services were presumed to be gratuitous. The court
found that plaintiff’s pleadings failed to overcome that presumption and that the contract she
alleged was barred by the statute of frauds. The pleadings did not establish a question of fact
regarding the parties’ expectations of giving and receiving payment. The order granting
defendant’s motion for summary disposition entered January 16, 2008 and was not appealed.
Defendant moved for costs totaling over $10,000, including attorney fees under MCR
2.114(E) and MCL 600.2591, arguing that the suit was frivolous. Defendant argued that the case
as pleaded was squarely precluded under Michigan case law, and plaintiff made no argument for
expanding the law. Rather, the entire suit was simply plaintiff’s attempt to obtain discovery for
the custody action, in which no further discovery was available. Plaintiff’s counsel1 asserted that
it was plaintiff’s intent to expand the law set forth in Featherston. Just because the court ruled in
defendant’s favor on the summary disposition motion did not mean the complaint was frivolous.
The suit was not intended to harass and was based on facts plaintiff believed were true.
Defendant responded that the complaint made no attempt to expand the law or to distinguish the
facts from Featherston. The trial court agreed and entered an order against both plaintiff and
attorney Mays in the amount of $10,283.
We will not disturb a trial court’s finding that a defense was frivolous unless the finding
is clearly erroneous. Szymanski v Brown, 221 Mich App 423, 436; 562 NW2d 212 (1997). A
decision is clearly erroneous if we are left with a definite and firm conviction that a mistake has
been made. Id.
MCR 2.114(D) states:
The signature of an attorney or party, whether or not the party is represented by an
attorney, constitutes a certification by the signer that
(1) he or she has read the document;
(2) to the best of his or her knowledge, information, and belief formed after
reasonable inquiry, the document is well grounded in fact and is warranted by
existing law or a good-faith argument for the extension, modification, or reversal
of existing law; and
1
The attorney present had been asked to “step in” for attorney Mays.
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(3) the document is not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of litigation.
The sanctions for violating the rule are set forth in MCR 2.114(E) as follows:
If a document is signed in violation of this rule, the court, on the motion of a party
or on its own initiative, shall impose upon the person who signed it, a represented
party, or both, an appropriate sanction, which may include an order to pay to the
other party or parties the amount of the reasonable expenses incurred because of
the filing of the document, including reasonable attorney fees. The court may not
assess punitive damages.
MCL 600.2591 states:
(1) Upon motion of any party, if a court finds that a civil action or defense to a
civil action was frivolous, the court that conducts the civil action shall award to
the prevailing party the costs and fees incurred by that party in connection with
the civil action by assessing the costs and fees against the nonprevailing party and
their attorney.
***
(3) As used in this section:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the defense
was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying that
party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
The court reviewing an order of sanctions evaluates the claims or defenses at issue at the time
they were made. See In re Attorney Fees and Costs, 233 Mich App 694, 702; 593 NW2d 589
(1999).
In Carnes, we stated that since the enactment of MCL 551.2, “the property rights
afforded a legally married couple have not been extended to those engaged in meretricious
relationships. Michigan has also abolished the civil cause of action for breach of contract to
marry. MCL 551.301.” Carnes, supra at 211.
Looking at the claims alleged in the complaint, we are not left with “a definite and firm
conviction that a mistake has been made.” Szymanski, supra. The count for intentional infliction
of emotional distress lacked any factual support at all, and none were ever asserted. Thus, that
count was frivolous based on MCL 600.2591(3)(a)(ii). The estoppel and contract counts were
based entirely on plaintiff’s theory of implied contract or express oral contract. The facts
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supporting these claims are no different from those in Carnes and Featherston. Plaintiff made
no attempt to argue why the law should now be expanded when this Court has declined such an
opportunity numerous times in the past. Plaintiff provided no allegations that the parties had
ever discussed her being paid for her services or that at the time she rendered the services she
expected some independent consideration for them. While there is little record support for
defendant’s assertions that the entire suit was intended to provide further discovery for the
custody matter, the trial court, who adjudicated both cases, was familiar with that issue and with
the parties. Plaintiff’s vague and unspecific assertions that her case is somehow different from
Carnes and Featherston do not make it so. There is nothing in the complaint to lead us to
conclude that the trial court erred in finding that plaintiff’s complaint had no legal merit.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
/s/ Douglas B. Shapiro
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