CHARLES TOUSSAINT V CITY OF STERLING HEIGHTS
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STATE OF MICHIGAN
COURT OF APPEALS
CHARLES TOUSSAINT,
UNPUBLISHED
May 18, 2004
Plaintiff-Appellee,
v
CITY OF STERLING HEIGHTS, and DANIEL
KOT, d/b/a QUALITY TREE SERVICE,
No. 244086
Macomb Circuit Court
LC No. 1998-003436-CH
Defendants-Appellants.
Before: Fitzgerald, P.J., and Jansen and Talbot, JJ.
PER CURIAM.
This matter reaches us by order of our Supreme Court for consideration as on leave
granted. Defendants City of Sterling Heights and Daniel Kot, d/b/a Quality Tree Service, appeal
the circuit court order vacating its prior award of mediation sanctions to defendants as the
prevailing parties in plaintiff Charles Toussaint’s inverse condemnation and trespass action. We
reverse and remand for further proceedings.
This case arose when defendants entered plaintiff’s property to cut down a maple tree,
which defendant Sterling Heights claimed was diseased and dangerous. A mediation panel
evaluated plaintiff’s action at $2,000, which plaintiff rejected and defendants accepted. The case
went to trial and a jury found no cause of action. The trial court entered an order of judgment
permitting defendants to bring a motion for attorney fees; although the court rule, MCR
2.403(O)(8), provides a twenty-eight day period to file a motion for costs, the trial court’s order
stated that defendants could bring a motion “so long as the motion is filed within 21 days after
the judgment was entered.” The order was drafted by defendants.
Defendants’ motion for mediation sanctions was heard on October 23, 2000, and the trial
court granted defendants an award of $30,533.96. Plaintiff later challenged defendants’ motion,
which was filed on October 11, 2000, as untimely. Defendants’ motion was filed within 21 days
of September 21, 2000, the date the judgment was logged into the docket, but more than 21 days
after September 18, 2000, the date on the order itself.
On reconsideration, the trial court agreed with plaintiff, concluded that it lacked
jurisdiction to grant defendants sanctions, and vacated its previous order. According to the trial
court’s opinion, the order of judgment was “signed” on September 18, 2000, but “not logged into
the computerized docket until September 21, 2000.” The trial court did not address its discretion
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to extend the time period for defendants’ motion under MCR 2.108(E), in the event the motion
was late because of “excusable neglect.” In addition, defendants submitted an affidavit that the
order was dated September 18, but was not signed until September 20, and not docketed until
September 21. The trial court did not address, and plaintiff does not contest, the accuracy of the
affidavit.
On appeal, this Court entered an order on December 19, 2001, vacating the trial court’s
order and remanding for further proceedings. This Court denied plaintiff’s subsequent motion
for reconsideration. Plaintiff filed an application for leave and, on September 30, 2002, our
Supreme Court vacated this Court’s order and remanded for our consideration as on leave
granted.
The trial court’s decision whether to award sanctions is reviewed de novo, as is the
court’s interpretation of a court rule. Brown v Gainey Transportation, 256 Mich App 380, 383;
663 NW2d 519 (2003). The date an order is signed is the date of entry. Moriarity v Shields, ___
Mich App ___; ___ NW2d ___ (2004); MCR 2.602(A)(2).
Defendants argue on appeal that, under the court rule, MCR 2.403(O)(8), they were
entitled to bring a motion for costs within twenty-eight days after entry of the judgment in this
case. Plaintiffs respond that defendants waived the twenty-eight day period when they drafted
the order in this case that expressly limited the time to twenty-one days.
We note that the trial court made its ruling on the unexplained assumption that the order
in this case was signed and entered on September 18, 2000. However, defendants averred in an
affidavit that the September 18, 2000, date on the trial court’s order was a clerical error that did
not accurately reflect the date the order was signed. Plaintiff does not dispute this claim and the
trial court did not address it. Because it is not necessary to resolution of this case, we need not
address the parties’ argument regarding whether a trial court may reduce the time for filing a
motion under MCR 2.403(O)(8). Instead, we remand to permit the court to determine whether,
in fact, as the uncontroverted evidence suggests, the order contained a clerical error as to the date
of signing. Clerical mistakes may be corrected at any time. MCR 2.612.
If, on remand, the court finds that there was a clerical error in the date of signing, it shall
correct the error and consider the other issues raised in plaintiff’s motion objecting to the
October 23, 2000, sanction award.
Alternatively, if the court finds that the order was, in fact, signed on September 18, it
shall determine whether or not to exercise its discretion to extend the time period because of
“excusable neglect” caused by the uncertainty regarding the date in this case. MCR 2.108(E). If,
in that event, the court chooses to extend the time for defendants’ motion, it shall also resolve
plaintiff’s remaining challenges to the October 23, 2000, award of sanctions.
Finally, if the court finds that the order was signed on September 18, and, in the exercise
of its discretion, chooses not to extend the time, it may dismiss defendants’ motion on the basis
that defendants are bound by the language they drafted. A party may not contribute to an alleged
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error by plan or negligence and then argue error on appeal. Munson Med v Auto Club, 218 Mich
App 375, 388; 554 NW2d 49 (1996).
Reversed and remanded. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Kathleen Jansen
/s/ Michael J. Talbot
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