Motion for case evaluation sanctions; MCR 2.403(O); MCR 2.403(O)(6)(b); The 28-day limitation period for filing a motion for case evaluation sanctions; MCR 2.403(O)(8); “Must”; Braun v York Props, Inc; A trial court’s essential authority to control the proceedings; Maldonado v Ford Motor Co; Reasonableness of fees; MRPC 1.5(a)(1); Smith v Khouri

Holding that the absence of evidence of an allocation of time spent by the parties’ attorneys litigating their case evaluations was fatal to their motions for case evaluation sanctions, the court affirmed the trial court’s denial of both parties’ motions. After two rejected case evaluations—one arising from a complaint and the other from a counterclaim, the parties stipulated that to calculate sanctions, the hours spent by their attorneys would be allocated between litigating the complaint and litigating the counterclaim. But the parties then claimed that this was an impossible task and presented no evidence of the allocation. On appeal, the court rejected defendant-doctor’s argument that the trial court should not have considered plaintiff’s (defendant’s former employer) motion for case evaluation sanctions as it was filed beyond the 28-day limitation period, noting he “had adequate notice that the court intended to consider [plaintiff’s] motion despite that it was filed a few days late." It next found that the trial court correctly determined that both parties were entitled to case evaluation sanctions under the court rule, and did not abuse its discretion by denying their motions for case evaluation sanctions in the absence of any evidence supporting their suggested allocations. Plaintiff “provided no evidence whatsoever with its motion for case evaluation sanctions or thereafter in the trial court. [Defendant] presented significant evidence about the reasonableness of the fee charged by his attorney, but only a single page detailing the hours spent on particular tasks. That document provided no insight into the topics labored over during those hours.” As such, there was no way to determine that 20% of his “attorney’s hours were dedicated to litigating the indemnification issue, let alone to allocate any time to either the complaint or counterclaim on” the clawback issue in this case.