JOHN A SIMONSON V ROBERT K PELTON
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN A. SIMONSON,
UNPUBLISHED
July 15, 2010
Plaintiff-Appellant,
v
ROBERT K. PELTON and DANA C. PELTON,
No. 291465
Lake Circuit Court
LC No. 08-007313-CH
Defendants-Appellees.
Before: HOEKSTRA, P.J., and JANSEN and BECKERING, JJ.
PER CURIAM.
In this action to quiet title and for trespass and ejectment, plaintiff appeals the trial court’s
judgment, which, in part, denied attorney fees under the offer of judgment rule, MCR 2.405,1
based on a finding that plaintiff’s pretrial offer of judgment was not for a “sum certain,” as
required by MCR 2.405(A)(1). On appeal, plaintiff contends that the posttrial judgment was
more favorable than the terms of the offer of judgment, and therefore the plain language of MCR
2.405 mandates an award of attorney fees, even though the offer of judgment included an
equitable disposition to quiet title. Because we find no error in the trial court’s ruling, we affirm.
This case arises from a property dispute. The parties own adjoining parcels of land in
Lake County, Michigan, and some years ago defendants commissioned a timber harvest on their
property. Approximately five years later they constructed a fence around what would eventually
become the disputed parcel of land. After observing the fence, plaintiff believed it encroached
on his property, as did the timber harvest years before. He informed defendants of the perceived
encroachment, but defendants believed they owned the disputed parcel, based on an old survey
and steel posts and ribbons on the property. Plaintiff filed the instant action to quiet title, to eject
defendants from the disputed parcel, and for trespass damages resulting from the timber harvest.
Before trial, plaintiff submitted to defendants a written offer to stipulate to an entry of
judgment pursuant to MCR 2.405 to resolve the issues and end the lawsuit. According to the
terms of the proposed judgment, plaintiff’s title to the disputed parcel would supercede
1
Generally, MCR 2.405 allows a party to submit to an adverse party a written offer to stipulate
to the entry of a judgment in a sum certain. See infra.
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defendants’, and any and all persons claiming title through defendants. It also described and
established the boundary lines of the disputed parcel. The proposed judgment also required
defendants to remove the fence, livestock, and “all other encroachments within 40 days of the
judgment” and that if defendants failed to comply, “plaintiff [was] authorized to hire a contractor
to remove the same at Defendants’ cost and expense, and that a Judgment be entered for the costs
of such removal.” It further granted plaintiff leave to record the judgment with the Lake County
register of deeds to preserve his superior interest in the disputed parcel. Finally, the proposed
judgment also awarded plaintiff $3,180 for the value of timber removed from his property, and
$252 in costs. Defendants did not respond to plaintiff’s offer, which, pursuant to MCR
2.405(C)(2)(b), see infra, constituted a rejection.
At trial, plaintiff prevailed on all counts in his complaint. He then filed a proposed
judgment with the trial court, pursuant to MCR 2.602(B)(3), that was identical to the terms of the
offer of judgment he previously submitted to defendants, except that it included $5,675.38 in
costs ($5,004.80 of which constituted attorney fees), $400 for forester services, and $790 for
survey fees, in addition to $3,180 for the value of the timber. The trial court entered a judgment
that mirrored plaintiff’s proposed judgment in all respects with the exception of attorney fees,
which it denied. Plaintiff moved for reconsideration on the issue of attorney fees and argued that
because the final judgment was more favorable to him than the offer of judgment, attorney fees
were mandated as a “cost” pursuant to MCR 2.405.2 The trial court disagreed, and ruled that
plaintiff’s offer of judgment was not for a “sum certain” because it included provisions to quiet
title in addition to damages. This appeal ensued.
On appeal, plaintiff claims that the trial court erred when it denied attorney fees as a part
of actual costs under MCR 2.405 where defendants rejected plaintiff’s unconditional offer to
stipulate to the entry of a judgment in a sum certain and to quiet title, and where plaintiff
obtained a post-trial judgment that included damages in excess of the offer of judgment. We
disagree.
“We review de novo both the trial court’s interpretation of a court rule and its decision to
award sanctions.” Castillo v Exclusive Builders, Inc, 273 Mich App 489, 492; 733 NW2d 62
(2007). “We review for clear error the findings of fact underlying an award of attorney fees.”
Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264,
296; 769 NW2d 234 (2009). “‘A finding is clearly erroneous when, although there is evidence to
support it, the reviewing court on the entire record is left with a definite and firm conviction that
a mistake was made.’” Id., quoting Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich
App 368, 381-382; 652 NW2d 474 (2002).
At issue here is the interpretation of the offer of judgment rule, MCR 2.405. According
to MCR 2.405(B): “Until 28 days before trial, a party may serve on the adverse party a written
offer to stipulate to the entry of a judgment for the whole or part of the claim, including interest
and costs then accrued.” An “‘[o]ffer’ means a written notification to an adverse party of the
2
In addition to attorney fees, plaintiff sought clarification of an innocuous mathematical error in
the trial court’s monetary award calculation.
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offeror's willingness to stipulate to the entry of a judgment in a sum certain, which is deemed to
include all costs and interest then accrued.” MCR 2.405(A)(1). An offer is rejected if an offeree
fails to respond to the offer. MCR 2.405(C)(2)(b). “If an offer is rejected, [and i]f the adjusted
verdict is more favorable to the offeror than the average offer, the offeree must pay to the offeror
the offeror’s actual costs incurred in the prosecution or defense of the action.” MCR
2.405(D)(1). The adjusted verdict in this case constitutes the trial court’s judgment, “plus
interest and costs from the filing of the complaint through the date of the offer.” MCR
2.405(A)(4)(b), (5). Because defendants did not make a counteroffer, plaintiff’s offer constitutes
the “average offer.” MCR 2.405(A)(3). “‘Actual costs’ means the costs and fees taxable in a
civil action and a reasonable attorney fee for services necessitated by the failure to stipulate to
the entry of judgment.” MCR 2.405(A)(6).
Here, the parties do not dispute that the adjusted verdict, i.e., the trial court’s judgment,
was more favorable to plaintiff than plaintiff’s offer of judgment because the damage award in
the trial court’s judgment exceeded the proposed damages in plaintiff’s offer of judgment. Thus,
because defendants rejected the offer, plaintiff would be entitled to actual costs, including
attorney fees, but only if his offer was “to stipulate to the entry of a judgment in a sum certain[.]”
MCR 2.405(A)(1) (emphasis added). If an offer of judgment is not for a sum certain, it does not
meet the requirements of the offer of judgment rule, and the offeror is not entitled to actual costs
under the rule. Marilyn Froling Revocable Living Trust, 283 Mich App at 299-300; see also
Hessel v Hessel, 168 Mich App 390, 393-396; 424 NW2d 59 (1988). Thus, the question
becomes whether plaintiff’s offer of judgment to quiet title and for damages was for a sum
certain.
In Knue v Smith, 478 Mich 88; 731 NW2d 686 (2007), a case discussed by both parties as
germane to the resolution of this issue, the Supreme Court considered whether an offer of
judgment in an action to quiet title constituted a “sum certain.” The pertinent facts and
procedural history are as follows:
Plaintiffs filed an action to quiet title asserting that they had acquired title
to a small strip of land through adverse possession or acquiescence. During the
pendency of the lawsuit, plaintiffs’ counsel sent defense counsel a letter on May
16, 2003, presenting an offer for settlement that he characterized as a “stipulation
of entry of judgment” pursuant to MCR 2.405. The offer was that in return for
payment by plaintiffs to defendants of $3,000 the defendants would convey the
disputed land to plaintiffs by quitclaim deed and the parties would stipulate a
dismissal of all claims “with prejudice and without costs.” Counsel for
defendants replied by letter, acknowledging the offer but contesting that this
qualified as an offer of judgment pursuant to MCR 2.405.
The offer was not accepted and a bench trial was held. The trial court
entered a judgment and order quieting title in plaintiffs' favor. Plaintiffs
subsequently filed a motion seeking actual costs and attorney fees under the offer
of judgment rule, MCR 2.405(D)(1). They asserted that the offer of settlement of
May 16, 2003, qualified under the offer of judgment rule and, as the adjusted
verdict at the conclusion of the trial was more favorable to the plaintiffs than the
offer, they were entitled to offer of judgment sanctions.
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Defendants opposed the motion, arguing that the offer was not for a sum
certain because this was an equitable action, and even if this argument was
unavailing the court should decline to award sanctions under the “interest of
justice” exception set forth in MCR 2.405(D)(3). [Id. at 90-91 (opinion by
TAYLOR, C.J.)]
The trial court granted the plaintiffs’ motion and the Court of Appeals affirmed. Id. at 91.
On these facts, and after reviewing the plain language of MRE 2.405, Justice Taylor,
writing for the plurality, reasoned that “[t]here is no latitude given in this rule for offers of
judgment that culminate in something other than a ‘judgment for a sum certain.’” Id. at 93.
“That is, it is nonconforming for the offer to require a reciprocal exchange of cash for the
execution of a recordable real estate document culminating in a judgment of dismissal with
prejudice and without costs. For such an offer, the offer of judgment rule is simply
inapplicable[.]” Id. Thus, Justice Taylor concluded, the plaintiffs’ tendered offer did not
culminate in a judgment for a sum certain and “fell outside the scope of MCR 2.405(A)(1).” Id.
(CAVANAGH and CORRIGAN, JJ., concurring). Justice Young concurred in a separate opinion,
which stated in its entirety: “I concur in the result only. Because plaintiffs’ offer required a quit
claim deed in addition to the transfer of $3,000, the offer could not be for a sum certain.
Therefore, MCR 2.405 does not apply to this case.” Id. at 97 (YOUNG, J., concurring) (WEAVER,
J., concurring). Justice Kelly also concurred with the result, but stated in a separate opinion, “I
would hold that the offer judgment rule . . . is inapplicable when equitable relief is sought.” Id.
at 94 (KELLY, J., concurring). Justice Markman dissented in a separate opinion. Id. at 97-98
(MARKMAN, J., dissenting). The Court ultimately remanded for an entry denying the plaintiffs’
motion for sanctions under the offer of judgment rule. Id. at 94 (TAYLOR, J.).
Here, the facts indicate that plaintiff’s offer required that in exchange for the judgment,
defendants must have agreed that plaintiff’s title to the disputed property superceded defendants’
and that plaintiff be granted leave to file his title with the county register of deeds. Like Knue,
we find that this was not an offer to stipulate to the entry of a judgment for a sum certain.
Moreover, plaintiff’s offer also required defendants to perform several subsequent acts within 40
days after the entry of the judgment, including removal of the fence, livestock, and other
unidentified encroachments, as a condition to the judgment. If defendants failed to meet these
conditions, plaintiff was authorized to hire a contractor to remove the items at defendants’ cost
and expense. Such conditions likewise do not constitute a sum certain. See Best Fin Corp v
Lake State Ins Co, 245 Mich App 383, 387-388; 628 NW2d 76 (2001) (MCR 2.405 requires at
the very least that an offer be in writing and unconditional). Additionally, we find that plaintiff’s
requirement that defendants remove “all other encroachments” is vague at best, and cannot
constitute a sum certain. Thus, we conclude that the trial court correctly ruled that plaintiff did
not offer to stipulate to the entry of a judgment for a sum certain, and that plaintiff is therefore
not entitled to costs or attorney fees under MCR 2.405.3
3
We also reject plaintiff’s claim that he was entitled to statutory attorney fees of $150 pursuant
to MCL 600.2441(2)(C). First, we note that the plain language clearly indicates that any amount
(continued…)
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Affirmed.
/s/ Joel P. Hoekstra
/s/ Kathleen Jansen
/s/ Jane M. Beckering
(…continued)
awarded under this statute comprises costs, not attorney fees. Second, the record indicates that
plaintiff was awarded more than $150 in costs, and on appeal plaintiff has not shown that his
award did not include costs under this statute. Thus, plaintiff has not established that the trial
court committed any error. It is generally the appellant’s responsibility to meet their burden of
proof on appeal. In re 1987-88 Med Doctor Provider Class Plan, 203 Mich App 707, 726; 514
NW2d 471 (1994). Plaintiff has not met this burden.
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