46TH CIRCUIT TRIAL COURT V CRAWFORD COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
CRAWFORD COUNTY and KALKASKA
COUNTY,
FOR PUBLICATION
March 27, 2007
9:20 a.m.
Plaintiffs-Appellants,
v
No. 254180
Otsego Circuit Court
LC No. 02-010014-CZ
OTSEGO COUNTY,
Defendant-Appellee.
ON REMAND
46TH CIRCUIT TRIAL COURT,
Plaintiff-Appellee,
v
Nos. 256129; 257234
Crawford Circuit Court
LC No. 02-005951-CZ
CRAWFORD COUNTY,
Defendant-Appellant,
CRAWFORD COUNTY BOARD OF
COMMISSIONERS,
Official Reported Version
Defendant/Counter-Plaintiff/ThirdParty-Plaintiff-Appellant,
KALKASKA COUNTY,
Third-Party-Plaintiff/CounterDefendant-Appellant,
and
OTSEGO COUNTY,
Third-Party-Defendant-Appellee.
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Before: Zahra, P.J., and Neff and Cooper, JJ.
PER CURIAM.
This matter originally involved six consolidated cases involving the same parties.1 On
remand, we address three of the six consolidated cases. We affirm as to Docket Nos. 256129
and 257234, reverse as to Docket No. 254180, and remand for further proceedings consistent
with this opinion.
I. Background
We issued one opinion in the consolidated cases on May 3, 2005, 46th Circuit Trial
Court v Crawford Co, 266 Mich App 150, 702 NW2d 588 (2005).2 The Michigan Supreme
Court
1
Collectively, Docket Nos. 254179, 254180, 254181, 254182, 256129, and 257234. Docket
Nos. 254180, 256129, and 257234 are addressed in this opinion; the others are disposed of as
follows:
Docket Number 254179: In an order dated November 1, 2006, specific to
Docket Number 254179, the Supreme Court granted a motion for review of
taxation of costs. On December 5, 2006, this Court issued an order stating "A
public question being involved, and in light of the relationships between the
parties, no costs are awarded."
Docket Number 254181: In an order dated November 1, 2006, specific to
Docket Number 254181, the Supreme Court vacated in part the judgment of this
Court and remanded the case. However, in an order dated January 29, 2007, the
Supreme Court reversed itself, stating it "vacate[d] that part of our November 1,
2006 order that vacated the Court of Appeals opinion in part and remanded this
case to the Court of Appeals." On reconsideration the Supreme Court denied the
application for leave to appeal. 477 Mich 1002 (2007).
Docket Number 254182: In an order dated November 1, 2006, specific to
Docket Number 254182, the Supreme Court denied defendant's application for
leave to appeal. In an order dated January 29, 2007, the Supreme Court denied
the motion for reconsideration. 477 Mich 1002 (2007).
2
Because 261 Mich App 477; 682 NW2d 519 (2004) has been identified as "46th Circuit Court
I," and 476 Mich 131; 719 NW2d 553 (2006) identified as "46th Circuit Court II" in this Court's
related opinion at 273 Mich App 342; 729 NW2d 914 (2006), for ease of reference, our opinion
in 266 Mich App 150, 702 NW2d 588 (2005), which was appealed in 46th Circuit Court II, shall
(continued…)
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granted the defendant counties' application for leave to appeal, limited to the
questions: (1) whether the appropriations sought for the enhanced benefits plan
were "reasonable and necessary to achieve the court's constitutional and statutory
responsibilities"; (2) whether the defendant counties were contractually obligated
to fund the enhanced benefits plan at the level requested by the Trial Court; and
(3) whether there was evidence to support the conclusion that the level of funding
offered by the counties was insufficient to allow the court to fulfill its essential
functions. [46th Circuit Trial Court v Crawford Co, 476 Mich 131, 139; 719
NW2d 553 (2006) ("46th Circuit Court II")].
On appeal, the Supreme Court reversed the judgment of this Court with respect to those limited
questions.
In addition, this matter significantly overlaps with another action involving the same
parties in this Court, 46th Circuit Court v Crawford Co, 261 Mich App 477; 682 NW2d 519
(2004) ("46th Circuit Court I"). We note that this Court affirmed its prior ruling in 46th Circuit
Court I, finding there was "nothing in 46th Circuit Court II that would undermine [the] analysis
or result [in the earlier opinion]." 46th Circuit Court I (On Remand), 273 Mich App 342, 345;
729 NW2d 914 (2006).
II. Docket No. 254180
In an order dated November 1, 2006, specific to Docket No. 254180, the Supreme Court
vacated in part the judgment of this Court and directed this Court to
hold this case in abeyance pending its decision on remand in 46th Circuit Trial
Court v Crawford Co (Court of Appeals Docket Nos. 246823, 248593, and
251390) [46th Circuit Court I]. After 46th Circuit Trial Court v Crawford Co is
decided on remand, the Court of Appeals shall reconsider whether Otsego County
is entitled to reimbursement for any attorney fees paid on behalf of the 46th
Circuit Trial Court. [477 Mich 921 (2006).]
At issue here is Otsego County's claim for reimbursement for attorney fees it had paid on
behalf of the 46th Circuit Trial Court. In our prior opinion, this issue was stated in this way:
The Counties also challenge the lower court's order relieving Otsego
County of its responsibility to fund the Trial Court's attorney fees and
reapportioning its duty among the other two counties. Although Otsego County
sought to be indemnified by the Counties for its share of the attorney fees, the
lower court instead determined that it was entitled to relief based on equitable
principles. [46th Circuit Court II, 266 Mich App at 169].
(…continued)
be referred to as 46th Circuit Court II, but shall also include a citation to the Michigan Appeals
Reports to distinguish it.
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We agreed with the circuit court that "Otsego County was brought into this litigation with 'clean
hands,'" and found that Otsego County "was entitled to the equitable relief granted by the lower
court." Id. at 170.
"When reviewing equitable actions, this Court employs review de novo of the decision
and review for clear error of the findings of fact in support of the equitable decision rendered."
LaFond v Rumler, 226 Mich App 447, 450; 574 NW2d 40 (1997).
The reasoning in our prior opinion rested on the fact that Crawford County and Kalkaska
County had caused the 46th Circuit Court to incur legal fees in its campaign for additional
funding, because at that time we believed the Trial Court's position was meritorious. However,
Crawford County and Kalkaska County were ultimately vindicated on the merits, 46th Circuit
Court II, supra at 149, so although the counties did trigger the underlying litigation, having
prevailed in the Supreme Court those counties' hands are as "clean" as Otsego County's.
In 46th Circuit Court I (On Remand), supra at 345-346, this Court made it clear that a
funding unit meritoriously opposing a court's good-faith attempt to compel additional funding
through its inherent powers must nonetheless pay that court's attorney fees. Having defended
their public funds against a good-faith yet ultimately unsuccessful attack from the Trial Court, in
the process engendering important developments in the law of such controversies, Crawford
County and Kalkaska County performed a valuable public service.
Because maintaining the correct position in a funding controversy predicated on a court's
inherent powers is no defense to the court's inherent right to recover its attorney fees, neither
should maintaining the wrong position provide any such defense. Fee shifting in such instances
is a function of the separation of powers, not of who takes what position below. See 46th Circuit
Court I (On Remand), supra. Accordingly, Judge Kolenda erred in relieving Otsego County of
its share of that burden.
We therefore reverse the opinion and order3 entered by the lower court relieving Otsego
County of its share of the obligation to pay the Trial Court's attorney fees.
III. Docket Nos. 256129 and 257234
In an order dated November 1, 2006, specific to Docket Nos. 256129 and 257234, the
Supreme Court vacated in part the judgment of this Court and stated:
. . . we remand this case to the Court of Appeals, which shall hold this
case in abeyance pending its decision on remand in 46th Circuit Trial Court v
Crawford Co (Court of Appeals Docket Nos. 246823, 248593 and 251390) ["46th
3
Entered May 30, 2003 by Judge Dennis C. Kolenda.
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Circuit Court I"]. After 46th Circuit Trial Court v Crawford Co is decided on
remand, the Court of Appeals shall reconsider this case. [477 Mich 922
(2006).]
The multiple issues presented in the two docket numbers at issue here all relate to the
lower court's ruling that the 46th Circuit Trial Court's funding units, the three counties, could be
held responsible for the Court's attorney fees. These issues were included in the first appeal filed
in this matter, 46th Circuit Court I, and were decided by that Court. In our prior opinion on the
issues presented here, we stated:
Even if we were to agree with the Counties' challenges, we would be
unable to provide any relief. We are bound by the previous published opinion of
this Court.[34] We are further bound by the law of the case doctrine.
"The law of the case doctrine holds that a ruling by an appellate court on a
particular issue binds the appellate court and all lower tribunals with respect to
that issue. Thus, a question of law decided by an appellate court will not be
decided differently on remand or in a subsequent appeal in the same case." [46th
Circuit Court II, supra, 266 Mich App at 168-169, quoting Ashker v Ford Motor
Co, 245 Mich App 9, 13; 627 NW2d 1 (2001) (footnote omitted).]
__________________________________________________________________
34
MCR 7.215(C)(2); Catalina Marketing Sales Corp v Dep't of Treasury, 470
Mich 13, 23; 678 NW2d 619 (2004). The fact that the Counties appealed this
decision to the Michigan Supreme Court, which held the application in abeyance
pending the resolution of these consolidated appeals, has no effect on the prior
opinion's precedential value. MCR 7.215(C)(2); Johnson v White, 261 Mich App
332, 347; 682 NW2d 505 (2004).
__________________________________________________________________
We agree with this Court's reasoning in 46th Circuit Court I (On Remand), supra at 345346:
A rule allowing reimbursement of attorney fees only if inherent-power
litigation is successful would have an onerous chilling effect. The judiciary, only
contemplating litigation because of a perceived budget shortfall, would be hardpressed to employ outside counsel whose unreimbursed fees might exacerbate
that shortfall.1
__________________________________________________________________
1
. . . The judicial branch, which has no independent financial means to undertake
litigation concerning funding, must be empowered to undertake that litigation
when necessary to protect the judicial function.
_________________________________________________________________
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We find nothing in 46th Circuit Court II or in the decision on remand in 46th Circuit Court I that
would undermine the analysis or result in our prior opinion.
We again affirm the opinion of the lower court with respect to attorney fees.
IV. Conclusion
We affirm as to Docket Nos. 256129 and 257234, reverse as to Docket No. 254180, and
remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Janet T. Neff
/s/ Jessica R. Cooper
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