Attorneys

This summary also appears under Litigation

 

Issues: Request for attorney fees following an offer of judgment; MCR 2.405; MCR 2.405(B) & (D); Whether the trial court properly applied the "interest of justice" exception of MCR 2.405(D)(3); Whether the case presented "unusual circumstances" to warrant the denial of attorney fees; AFP Specialties, Inc. v. Vereyken; Luidens v. 63rd Dist. Court; "Actual costs" defined; MCR 2.405(A)(6); Claim that the request for attorney fees pursuant to MCR 2.405 was barred by the legal doctrines of res judicata & collateral estoppel because the trial court already ruled that plaintiff's complaint was not "frivolous"; TBCI, PC v. State Farm Mut. Auto. Ins. Co.; Leahy v. Orion Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Broom v. Westchase Park Hous. Partner

e-Journal Number: 57927

Judge(s): Per Curiam – Riordan, Donofrio, and Boonstra

 

The court held that "the trial court abused its discretion when it applied the 'interest of justice' exception without any record support for its conclusion" that the case presented "unusual circumstances" warranting the denial of attorney fees. Thus, it reversed trial court's order invoking the exception of MCR 2.405(D)(3) and denying defendant-Concord Realtors' request for attorney fees following an offer of judgment, and remanded for a determination of the proper amount of, and an award of, attorney fees. In 2008, plaintiff slipped and fell at a residence in Waterford. In 2011 he filed a premises liability action arising out of this fall. He alleged that Concord Realtors, as well as defendant-Westchase Park Housing Partner, owned, possessed, or managed the property where he fell. Concord Realtors sent him a letter stating that it had no ownership interest in the premises at issue and that it believed he inadvertently sued the wrong party. It later sent plaintiff an offer of judgment offering to resolve the claims against it for $100. He did not respond. The trial court later granted Concord Realtors summary disposition. In denying its motion pursuant to MCR 2.405, the trial court found that the circumstances of the case were unusual "because in naming Concord Realtors as a party to the action, plaintiff initially relied upon a letter from an insurer, which appeared to reference Concord Realtors as the insured party in the dispute." While it was later discovered that this was an error, "the trial court found that the record did not identify any documentation from the insurer that clarified the error made by the insurer." The court held that the trial court abused its discretion. The record contained "ample evidence that put plaintiff on notice that Concord Realtors was not a proper party to this action at the time of receipt of the letter and certainly within weeks of filing its complaint." Yet he "refused to dismiss Concord Realtors from the suit until after substantial litigation had occurred." Also, the letter from the insurer identified the insured party as being located in Waterford. However, Concord Realtors is located in Grand Rapids, and it sent numerous letters to plaintiff advising him that it did not have an interest in the property in question and encouraging him "to investigate this issue or contact the registered agent or counsel for Concord Realtors to discuss this issue." It also asserted in its pleadings that "it did not have an interest in the property in question." Even Westchase Park asserted in its pleadings that Concord Realtors did not have any interest in the premises. In light of all of this evidence, "the trial court abused its discretion when it found that because the record did not identify anything from the insurer to clarify that Concord Realtors was not the entity who insured the relevant premises, 'unusual circumstances' existed to warrant the denial of attorney fees pursuant to MCR 2.405."

 

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