ANN COBLENTZ V CITY OF NOVI
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STATE OF MICHIGAN
COURT OF APPEALS
ANN COBLENTZ, LEE COBLENTZ, JOHN
LEWANDOWSKI and DEBORAH
LEWANDOWSKI,
UNPUBLISHED
April 15, 2010
Plaintiffs-Appellants,
v
No. 288764
Oakland Circuit Court
LC No. 2003-046760-CZ
CITY OF NOVI,
Defendant-Appellee.
Before: WHITBECK, P.J., and METER and FORT HOOD, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the trial court’s October 2008 opinion and order
concerning attorney fees, costs, and punitive damages. We affirm in part, vacate in part, and
remand this case to the trial court for a re-determination of the attorney-fee issue pursuant to
Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).
Plaintiffs claim that the trial court erred in failing to apply Smith to its attorney-fee
determination and awarding an hourly fee less than plaintiffs requested, and in failing to award
punitive damages. We agree that the trial court erred in failing to apply Smith, but we disagree
that the trial court erred in failing to award punitive damages.
This Court reviews for an abuse of discretion a trial court’s award of attorney fees and
costs. Smith, 481 Mich at 526. An abuse of discretion occurs when the trial court’s decision is
outside the range of reasonable and principled outcomes. Id.
In the trial court, plaintiffs moved for attorney fees, costs, and punitive damages pursuant
to a November 8, 2006, Supreme Court order.1 The Supreme Court order directs defendant to
1
This case has a complicated procedural history and has spawned multiple appeals to this Court
and the Michigan Supreme Court. See, e.g., Coblentz v City of Novi, 475 Mich 558, 562-566;
719 NW2d 73 (2006).
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pay plaintiffs their actual damages attributable to responding to a vexatious motion that
defendant had filed in the Supreme Court. Coblentz v City of Novi, 477 Mich 1218; 723 NW2d
206 (2006). Plaintiffs sought $5,928 in attorney fees (15.6 hours at $380 an hour), $59.48 in
costs, and $5,987.48 in punitive damages. The trial court held an evidentiary hearing on the
request, which took place on several days over the course of months. In its October 2008
opinion and order, the trial court awarded plaintiffs $2,574 in attorney fees (15.6 hours at $165
an hour) and $59.48 in costs, and it denied punitive damages. The trial court’s opinion and order
briefly addressed the parties’ arguments, but did not provide any analysis concerning its award.
Smith provides, in relevant part:
In determining a reasonable attorney fee, a trial court should first
determine the fee customarily charged in the locality for similar legal services. In
general, the court shall make this determination using reliable surveys or other
credible evidence. Then, the court should multiply that amount by the reasonable
number of hours expended in the case. The court may consider making
adjustments up or down to this base number in light of the other factors listed in
Wood [v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653
(1982), mod by Smith, supra,] and MRPC 1.5(a). In order to aid appellate review,
the court should briefly indicate its view of each of the factors. [Smith, 481 Mich
at 537.]
Smith invokes Wood, which lists the following six factors to be considered in determining a
reasonable attorney fee:
(1) the professional standing and experience of the attorney; (2) the skill, time and
labor involved; (3) the amount in question and the results achieved; (4) the
difficulty of the case; (5) the expenses incurred; and (6) the nature and length of
the professional relationship with the client. [Wood, 413 Mich at 588 (citations
and quotation marks omitted).]
Smith also refers to MRPC 1.5(a), which lists the following factors, many of which overlap with
the Wood factors:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
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(7) the experience, reputation, and ability of the lawyer performing the
services; and
(8) whether the fee is fixed or contingent.
The order appealed from makes no mention of any of these factors, nor does it reflect any
analysis.
When the Michigan Supreme Court reviewed the trial court’s April 2008 opinion and
order regarding a different award of attorney fees that is not at issue here and that involved the
Freedom of Information Act (FOIA), MCL 15.231 et seq., it concluded that the trial court erred
in its consideration of certain factors, including defendant’s level of culpability and whether the
requested attorney fee would bankrupt defendant, because those factors were not authorized by
the substantive statute at issue or by decisions of the Michigan Supreme Court. Coblentz v City
of Novi, 485 Mich 961, 961; 774 NW2d 526 (2009). It remanded the case to the trial court “for a
re-determination of the plaintiffs’ reasonable attorney fees pursuant to the factors set forth in
Smith . . . .” Id.
In the present appeal, there is no attorney-fee analysis at all, let alone a Smith-based
analysis, before this Court for review. Because our Supreme Court has indicated that attorneyfee issues should be decided pursuant to Smith, we remand this case for a re-determination of the
attorney-fee issue pursuant to Smith.2 Furthermore, the trial court on remand should bear in
mind that the Supreme Court’s November 2006 order limits defendant’s liability to the payment
of damages attributable to “responding to the motion in this Court.” Coblentz, 477 Mich at 1218.
Thus, the Supreme Court’s November 2006 order may not be used as authority for damages
extending beyond plaintiffs’ response in the Supreme Court
We next conclude that the trial court did not err in its denial of punitive damages. First,
the Supreme Court’s November 2006 order does not provide for an award of punitive damages.
The order notes that defendant filed a vexatious motion under MCR 7.316(D)(1), and it orders
defendant “to pay to the plaintiffs their actual damages attributable to responding to the motion
in this Court.” Coblentz, 477 Mich at 1218 (emphasis added). Even though MCR 7.316(D)(1)
refers to the possible assessment of “actual and punitive damages,” the Court’s order refers only
to actual damages.
Moreover, nothing in MCR 7.316 compels an award of punitive damages. MCR
7.316(D)(1) provides that the Supreme Court “may . . . assess actual and punitive damages . . .
when it determines that an appeal or any of the proceedings in an appeal was vexatious . . . .”
MCR 7.316(D)(2) goes on to state that “[d]amages may not exceed actual damages and expenses
incurred by the opposing party because of the vexatious appeal or proceeding, including
2
The Smith case had not been decided when the trial court issued its FOIA-based attorney-fee
ruling in April 2008, but it had been decided by the time the trial court issued the October 2008
order challenged here. If Smith is to be applied on remand to the FOIA attorney-fee issue, we
see no reason why it would not apply to the instant attorney-fee issue.
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reasonable attorney fees, and punitive damages in an added amount not exceeding the actual
damages.” Plaintiffs suggest that MCR 7.316(D)(2) requires an award of punitive damages, but
we disagree. This subsection merely explains that punitive damages, if they are awarded, must
not exceed actual damages.
Even assuming, for purposes of argument, that punitive damages under MCR 7.316(D)(2)
were an option here, despite the Supreme Court’s reference to only “actual damages” in the
pertinent order, it would not be an abuse of discretion to deny such damages. Indeed, given that
plaintiffs prevailed on only some of their claims in the Supreme Court, it was not exceedingly
egregious for defendant to contest the imposition of costs on the basis that plaintiffs were not
true prevailing parties.3 See MCR 7.318(B).
We vacate the trial court’s October 2008 opinion and order concerning attorney fees4 and
remand this case to the trial court for a re-evaluation of the attorney-fee issue pursuant to Smith
and consistent with this opinion.5 We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
3
We are not disputing the Supreme Court’s finding that defendant’s challenge to the imposition
of costs was vexatious, but merely pointing out that punitive damages were not a clear necessity
here.
4
We note that plaintiffs do not appeal the award of costs.
5
The trial court need not hold additional evidentiary hearings unless it believes them to be
necessary.
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