EDITH ELLEN PETTIS V RIETH RILEY CONSTRUCTION CO
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STATE OF MICHIGAN
COURT OF APPEALS
EDITH ELLEN PETTIS,
UNPUBLISHED
March 20, 2003
Plaintiff-Appellant,
v
RIETH-RILEY CONSTRUCTION COMPANY,
No. 234341
Kent Circuit Court
LC No. 98-011714-NZ
Defendant-Appellee.
Before: Schuette, P.J., and Sawyer and Wilder, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendant $22,093.53 in attorney fees,
and $1,739.22 in other costs, for a total of $23,832.75. We affirm.
The underlying case involved a trespass claim by plaintiff and quiet title claims by both
parties. In dispute was a twenty-eight-foot wide strip of land along the boundary that separated
parcels owned by the respective parties.
Plaintiff contends that the trial court erred when it found that plaintiff’s case, which had
been disposed of by the grant of summary disposition in favor of defendant, was filed in
violation of MCR 2.114(D)(2) and was frivolous. We disagree. We review a trial court’s
finding as to whether an action was frivolous for clear legal error. Kitchen v Kitchen, 465 Mich
654, 661; 641 NW2d 245 (2002). We also review a trial court’s decision regarding whether a
party or attorney has violated the signature requirements of MCR 2.114(D) for clear error.
Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 91; 592 NW2d 112
(1999) (citing Contel Systems Corp v Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990).
A trial court has the authority to sanction a party pursuant to MCR 2.114 and MCL
600.2591. 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
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by existing law or a good-faith argument for the extension, modification, or
reversal of existing law; and
(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.
If the person who signs the document, or the party that person represents, submits a document for
one of these improper purposes, then the trial court shall impose, even on its own initiative, an
“appropriate sanction.” MCR 2.114(E).
MCR 2.114(F) states that a party pleading a frivolous claim is subject to costs as
provided in MCR 2.625(A)(2). MCR 2.625(A)(2) provides that “if the trial court finds on
motion of a party that an action or defense was frivolous, costs shall be awarded as provided in
MCL 600.2591.”
A claim is frivolous when at least one 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. [MCL
600.2591(3)(a).]
In the present case, only subsections (ii) and (iii) are implicated.
The trial court stated:
The dismissal of the case was based on the unmistakable meaning and
legal import of an affidavit duly recorded by plaintiff’s father back in 1956, an
affidavit which she and her counsel were fully aware prior to filing this case. The
unmistakable legal effect of that affidavit and plaintiff’s knowledge of it combine
to compel the conclusion that filing this case was in such blatant violation of
MCR 2.114(D)(2) that it constituted both a violation of that subrule and a
frivolous action.
The recorded affidavit of plaintiff’s father states:
GLENN W. PETTIS, being first duly sworn, deposes and says that he and
his brother Eugene H. Pettis, of Ada, Michigan are the owners of a parcel of real
estate in the Township of Ada, Kent County, Michigan, lying West of a line
described as the North and South line 730 feet West of the East line of
Government Lots One (1) and Two (2) of Section 20, Town 7 North, Range 10
West and that Lucille Knutson, as the survivor of herself and Kenneth Knutson, of
1023 Pettis Avenue N.E., Ada, Michigan, is the owner of lands located in Section
20 of Town 7 North, Range 10 West and said lands lie immediately adjacent to
and joining deponent’s land on the East.
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Based on the language of this affidavit, it is clear that the signers of the affidavit were
stating that the strip of land now in dispute was part of the parcel that defendant now owns. That
conclusion was also supported by plaintiff’s expert as well as her answers to interrogatories.
Plaintiff argues that the trial court clearly erred in holding that “the unmistakable legal
effect” of the affidavit was defendant’s ownership of the disputed parcel of property. According
to plaintiff, over the years, the location of Government Lots 1 and 2 has changed, thus shifting
the effect of some of the language in the affidavit. However, plaintiff waited until approximately
seven months after the close of discovery to proffer any evidence that might have supported her
argument on this point and the trial court properly exercised its discretion in refusing to re-open
discovery or to consider the proffer. Further, the court properly held plaintiff to the deposition
testimony of her expert and to her own admissions in interrogatories. As the trial court stated:
The flaw in that effort to avoid the rule about being bound by what you
say in discovery is that, while the claim is made that we now know why they
made mistakes, that claim isn’t based upon evidence which is going to be
submitted at trial in this case, given the scheduling order and limitations it
imposed on disclosing a lot of this.
The trial court acknowledged that it could re-open discovery, but decided not to. The
grant or denial of discovery is within the trial court’s discretion. Reed Dairy Farm v Consumers
Power Co, 227 Mich App 614, 616; 576 NW2d 709 (1998). We believe that the trial court did
not abuse its discretion in refusing to accept evidence proffered seven months after the end of
discovery. Based on admissible evidence presented to the trial court, the court concluded that
plaintiff did not own and never did own the 28-foot parcel in dispute, and that plaintiff’s claim
was frivolous.
Plaintiff further argues that the trial court erred by not holding a hearing where plaintiff
could explain the issues actually raised by the affidavit in light of the history of the referenced
boundary line. Plaintiff cites KLCO v Dynamic Training Corp, 192 Mich App 39; 480 NW2d
596 (1991), where this Court stated that the “[a]nalysis of what process is due in a particular
proceeding depends on the nature of the proceeding and the interest affected by it.” Id., 42
(citing Artibee v Cheyboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976); Kennedy v Bd
of State Canvassers, 127 Mich App 493; 339 NW2d 477 [1983]). “Generally, due process in
civil cases requires notice of the nature of the proceeding, Van Slooten v Larsen, 410 Mich 21;
299 NW2d 704 (1980), an opportunity to be heard in a meaningful time and manner, Blue Cross
& Blue Shield of Mich v Comm’r of Ins, 155 Mich App 723; 400 NW2d 638 (1986), and an
impartial decision maker, Crampton v Dep’t of State, 395 Mich 347; 235 NW2d 352 (1975);
Harter v Swartz Creek (On Rehearing), 68 Mich App 403; 242 NW2d 792 (1976).” KLCO,
supra, 42.
MCR 2.119(E)(3) provides that “[a] court may, in its discretion, dispense with or limit
oral arguments on motions, and may require the parties to file briefs in support of and in
opposition to a motion.” Plaintiff submitted a response to defendant’s motion for partial
summary disposition and appeared at the hearing on this motion. Both of these allowed plaintiff
the opportunity to argue the merits of her claim. Defendant submitted a proposed order
reflecting the trial court’s opinion delivered from the bench at the hearing on defendant’s motion.
Plaintiff filed an objection on the ground that the trial court did not make a finding that plaintiff’s
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claim was frivolous. Defendant then moved for sanctions, and plaintiff filed a brief in opposition
to this motion.
We conclude that the trial court did not err in granting defendant’s motion for sanctions
and awarding fees without having held an evidentiary hearing because the parties created a
sufficient record to review the issue, and the court fully explained the reasons for its decision.
Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 113; 593 NW2d 595 (1999)
(citing Giannetti Bros Constr Co v Pontiac, 175 Mich App 442, 450; 438 NW2d 313 [1989]).
Plaintiff further argues that the trial court erred in concluding that the case was frivolous
because both parties sought to quiet title to the property at issue. Plaintiff cites Petterman v Hill,
125 Mich App 30, 33; 335 NW2d 710 (1983), and Wood v DAIIE, 413 Mich 573, 588; 321
NW2d 653 (1982), cases that do not address the argument at hand. Rather, these cases address
the reasonableness of attorney fees.
Plaintiff also cites an unpublished opinion from this Court. First, that case is not binding
pursuant to MCR 7.215(C)(1). Further, that case also fails to address the argument at hand—that
plaintiff’s claim should not have been found to be frivolous because defendant filed a
counterclaim to quiet title. Because plaintiff cites no binding authority in support of this
particular argument, it is deemed abandoned. In re Costs & Attorney Fees, 250 Mich App 89,
104; 645 NW2d 697 (2002).
“A trial court’s decision is clearly erroneous when, although there is evidence to support
it, the reviewing court is left with a definite and firm conviction that a mistake has been made.”
In re Attorney Fees & Costs, 233 Mich App 694, 701; 593 NW2d 589 (1999). Given the plain
language of plaintiff’s father’s recorded affidavit, which is considered prima facie evidence of
the facts pursuant to MCL 565.453, we are not left with a firm and definite conviction that the
trial court clearly erred in granting defendant’s motion for sanctions on the basis that plaintiff’s
case was filed in violation of MCR 2.114(D)(2) and was frivolous.
Plaintiff also contends that the trial court erred in assessing sanctions solely against
plaintiff. Plaintiff concedes that this argument was not preserved. This Court need not review
issues raised for the first time on appeal, although we may do so to prevent manifest injustice.
Herald Co, Inc v City of Kalamazoo, 229 Mich App 376, 390; 581 NW2d 295 (1998).
The trial court found that the case was filed in violation of MCR 2.114(D)(2) and was
also frivolous pursuant to MCR 2.114(F). MCR 2.114(F) states that in addition to sanctions
under this rule, a party pleading a frivolous claim is subject to costs as provided in MCR
2.625(A)(2), which states that costs shall be awarded as provided by MCL 600.2591.
MCL 600.2591(1) states:
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.
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Based on the plain language of this statute, the trial court erred in imposing sanctions
against only the plaintiff, rather than against plaintiff and her attorney who filed the action.
Plaintiff argues that the trial court’s failure to follow a clear statutory mandate constitutes
manifest injustice. In Napier v Jacobs, 429 Mich 222, 233; 414 NW2d 862 (1987), our Supreme
Court, quoting People v Farmer, 380 Mich 198, 208; 156 NW2d 504 (1968), stated:
“While this Court does have inherent power to review even if error has not
been saved – People v Dorrikas (1958), 354 Mich 303 [92 NW2d 305] – such
inherent power is to be exercised only under what appear to be compelling
circumstances to avoid a miscarriage of justice or to accord a [criminal] defendant
a fair trial.”
In Napier, the Court concluded that “[m]ore than the fact of the loss of the money judgment of
$60,000 in this civil case is needed to show a miscarriage of justice or manifest injustice.” Id.,
234. We conclude that plaintiff has failed to demonstrate a manifest injustice under the standard
provided in Napier. Therefore, although the court erred in imposing sanctions against only
plaintiff, because there is no manifest injustice, this issue need not be reviewed and we decline to
grant relief.
Defendant requested that plaintiff be sanctioned for filing a frivolous appeal. MCR
7.216(C) provides for such sanctions. This Court has imposed sanctions where the appeal is
brought “without any reasonable basis for belief that there was a meritorious issue to be
determined on appeal.” Cvengros v Farm Bureau Ins, 216 Mich App 261, 268; 548 NW2d 698
(1996), quoting MCR 7.216(C)(1)(a). Although some of plaintiff’s arguments did not have any
merit, we believe that there was a reasonable basis for belief that plaintiff’s argument concerning
the sanctions against plaintiff only was a meritorious issue to be determined on appeal.
Therefore, we conclude that defendant should not be awarded sanctions.
Affirmed.
/s/ Bill Schuette
/s/ David H. Sawyer
/s/ Kurtis T. Wilder
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