Mary Lou Bonacci v. Ferris State University

STATE OF MICHIGAN

COURT OF APPEALS

MARY LOU BONACCI and DAVID GILL, UNPUBLISHED

January 13, 2015

Plaintiffs,

and

CUMMINGS, McCLOREY, DAVIS & ACHO,

P.L.C.,

Appellant,

v Nos. 318136 & 319101

Mecosta Circuit Court

FERRIS STATE UNIVERSITY and FERRIS LC No. 11-20376-CD

STATE UNIVERSITY BOARD OF TRUSTEES,

Defendants-Appellees.

Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.

PER CURIAM.

Appellant, Cummings, McClorey, Davis & Acho, P.L.C. (“CMDA”), appeal as of right a

trial court’s orders awarding attorney fees and costs incurred by defendants, Ferris State

University (“FSU”) and Ferris State University Board of Trustees (“Board”), when defending a

case filed by CMDA on behalf of its clients, plaintiffs Mary Lou Bonacci and David Gill.1 We

affirm, in part, and reverse, in part.

I

In 2003, FSU hired Bonacci, who was in her mid-50s, as a tenure-track professor in the

Social Work Department. When she was 59 or 60 years old, she received tenure. Bonacci taught

courses at FSU’s satellite campus in Traverse City, where she served as the department’s Site

Coordinator. During the same period of time, she also taught courses and maintained an office at

1

Plaintiffs are married.

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FSU’s main campus in Big Rapids. In 2008, FSU received complaints regarding Bonacci’s

performance and conduct at the Traverse City campus, and FSU conveyed the concerns to her.

In April 2009, the faculty of the Social Work Department, including Bonacci, agreed to a

rotation of teaching assignments, by which faculty in the department would rotate between the

main campus and the satellite campus.2 Bonacci was then assigned to teach courses solely on the

Big Rapids campus for the 2009 summer and fall semesters, and the duties previously assigned

to her at the Traverse City campus were distributed among other faculty, both older and younger

than her.

In September 2009, Bonacci filed grievances with FSU regarding her requests for travel

reimbursements from her home to the Big Rapids campus for her summer and fall 2009 teaching

assignments, which had been denied.

On November 5, 2009, physician assistant Michael L. Fulker recommended that

“different accommodations be done to facilitate Mrs. Bonacci[’s] ability to perform her job

requirements.” Fulker tied Bonacci’s work-related driving (at least 600 miles per week) to her

rheumatoid arthritis and degenerative bone disease. FSU responded that, if Bonacci had

intended to request accommodations under the Americans with Disabilities Act, her request was

inadequate and provided her with the information required to make such a request.

Bonacci then submitted a new letter from Fulker, which was nevertheless still dated

November 5, 2009, and recommended that Bonacci drive 200 miles per week or less and that she

only work four days per week for up to six hours. Fulker also stated, “In addition she was

recently found to [be] legally blind in regards to driving at night and has this restriction

pending.” A letter, which is not dated, from Dr. Bassima Al-Delaigan, recommended that

Bonacci should not be driving at night because her “vision is considered to be illegal to drive.”

Also in November 2009, Bonacci was hospitalized, suffering from IBS, pancreatic

failure, steatorrhea, and anemia. To obtain medical leave pursuant to the Family and Medical

Leave Act (“FMLA”), Bonacci submitted a certification from Fulker regarding “a serious health

condition,” which would cause her to be “incapacitated.”

In December 2009, while Bonacci was on FMLA leave for her pancreatic failure,

steatorrhea, and anemia, FSU Provost Fritz Erickson advised plaintiffs, “the key for me in

working on this is to get the specific medical documentation regarding [Bonacci’s] current health

condition and, if [Bonacci is] not deemed totally disabled, what type of job accommodations(s) .

. . physicians recommend.” Plaintiffs subsequently submitted the same documents relating to

2

The Social Work faculty sent a letter to Dr. Matthew Klein (Dean of the College of Arts and

Sciences) supporting a revision of academic teaching assignments for the Big Rapids and

Traverse City campuses. The goals were to give each campus a more “diverse philosophical

orientation and skill set” and to achieve an accreditation requirement for “comparability of

programs.” In an email sent on the same day, including the subject line “Statement for Dr.

Klein,” Bonacci stated, in relevant part, “Agreed, looks good.”

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Bonacci’s arthritis, degenerative bone disease, and night blindness, which predated her

hospitalization for the separate illnesses of IBS, pancreatic failure, steatorrhea, and anemia.

In early 2010, when Bonacci’s FMLA leave expired, Bonacci applied for Long Term

Disability and Social Security benefits, submitting documents indicating that she was “totally

disabled” and “unable to work.” Although FSU repeatedly requested further documentation

regarding accommodations, particularly for the separate illnesses of IBS, pancreatic failure,

steatorrhea, and anemia, as well as Bonacci’s ability to return to work, she never provided it.

FSU denied Bonacci’s request for accommodations on January 11, 2010.

According to Bonacci, on November 4, 2010, Bonacci sent FSU a request for a copy of

her personnel file. There is no record that FSU responded to her request. On November 11,

2010, Bonacci was terminated after losing her seniority because of her absence for medical

leave—a provision of her union contract.

On January 26, 2011, plaintiffs filed a complaint in Grand Traverse County Circuit Court

alleging: (I) failure to accommodate, (II) age discrimination, (III) retaliation, (IV) a violation of

the Bullard-Plawecki Employee Right to Know Act, (V) breach of implied contract, and (VI)

loss of consortium. Defendants filed an answer, a motion for a change of venue, and a letter

arguing that the claim was frivolous and requesting clarification for the factual and legal basis

for the complaint. Plaintiffs agreed at the motion hearing that Count V, breach of implied

contract, should have been filed in the Court of Claims. In addition, the Grand Traverse County

Circuit Court transferred the remainder of the case to Mecosta County Circuit Court. Plaintiffs

filed a separate complaint for breach of implied contract in the Court of Claims, but that claim

was later joined with the case in Mecosta County.

At her July 2011 deposition, Bonacci testified that she never provided a “return to work

slip” because she was never able to return to work. She also testified, “Realistically looking

back on it, I couldn’t have taught.” Afterward, CMDA filed a motion to withdraw as counsel

and to voluntarily dismiss the claims with prejudice. Defendants opposed the motion and moved

for entry of judgment in defendants’ favor. The trial court granted CMDA’s motion to withdraw,

denied its motion to voluntarily dismiss, and entered a judgment for defendants.

On May 21, 2012, the trial court found CMDA jointly and severally liable with plaintiffs

for defendants’ attorney fees and costs, holding that plaintiffs had no reasonable basis to believe

that their claims were supported by the facts and, therefore, the claims were frivolous pursuant to

MCL 600.2591. Moreover, the trial court held that CMDA failed to make a reasonable inquiry

to determine that the action was well-grounded in fact and law prior to signing and filing the

complaints in violation of MCR 2.114.

Before the trial court held a hearing to determine the amount of attorney fees and costs

incurred, plaintiffs settled with defendants and CMDA filed a motion to disqualify Mecosta

County Circuit Court Judge Ronald C. Nichols. The judge ruled that CMDA, as a law firm and

not a party to the case, lacked standing to move for disqualification, the motion was untimely,

and CMDA had not presented grounds for disqualification. Rather, the judge found that the bulk

of allegations of impropriety were grounded in misrepresentations made by CMDA. The judge

denied CMDA’s requests for disqualification and to set aside all previous rulings in the case.

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CMDA filed an application for leave to appeal the trial court’s order denying the motion for

disqualification, which defendants answered, and this Court subsequently denied. Bonacci v

Ferris State University, unpublished order of the Court of Appeals, entered January 8, 2014

(Docket No. 315781).

The trial court subsequently held an evidentiary hearing on attorney fees and costs.

Following the hearing, it found defendants’ attorney, Sheila Kinney, submitted detailed bills at a

reasonable hourly rate of $245. It further found, “credible testimony that she worked the hours

billed, that she did not ‘pad the bill,’ that she worked additional unbilled hours, and that she was

assisted by a secretary and also by a paralegal whose time was not billed.” The trial court further

found the approach taken by CMDA’s expert on attorney fees “unhelpful.” The trial court

entered two orders regarding attorney fees and costs. The June 4, 2013 order awarded attorney

fees ($275,747.50) and costs ($10,967.21), which were established on the record up to the date of

the evidentiary hearing—including reimbursement for 41.05 hours involved with the application

for leave to appeal regarding disqualification. CMDA filed a claim of appeal from this order in

Docket No. 318136. The October 29, 2013 order awarded attorney fees ($17,468.50) and costs

($17,468.50) for the defense of the case after the evidentiary hearing. CMDA filed a claim of

appeal from this order in Docket No. 319101.

II

On appeal, CMDA first argues that the trial court improperly assessed attorney fees and

costs against CMDA under MCR 2.114 and MCL 600.2591. We disagree.

This Court reviews a trial court’s ruling on a motion for costs and attorney

fees for an abuse of discretion. An abuse of discretion occurs when the decision

results in an outcome falling outside the range of principled outcomes. A trial

court’s findings of fact, such as whether a party’s position was frivolous, may not

be set aside unless they are clearly erroneous. [Keinz v Keinz, 290 Mich App 137,

141; 799 NW2d 576 (2010).]

“Findings are clearly erroneous when, although there is evidence to support them, the reviewing

court on the entire record is left with a definite and firm conviction that a mistake was made.”

CD Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich App 389, 425; 834 NW2d 878 (2013).

MCR 2.114(E) requires sanctions if an attorney or party signs a document in violation of

MCR 2.114(D), which provides:

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 by

existing law or a good-faith argument for the extension, modification, or reversal

of existing law; and

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(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.

Similarly, MCL 600.2591(1) provides:

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.

The statute defines “frivolous” to include that a party “had no reasonable basis to believe that the

facts underlying that party’s legal position were in fact true.” MCL 600.2591(3)(a)(ii).

“Sanctions may be assessed without regard to whether the pleader harbored an improper

purpose.” Harrison v Munson Healthcare, Inc, 304 Mich App 1, 41; 851 NW2d 549 (2014).

“The purpose for punishing with sanctions the introduction of frivolous claims is to deter parties

and attorneys from filing documents or asserting claims and defenses that have not been

sufficiently investigated and researched or that are intended to serve an improper purpose.” Id.

(citations and quotation marks omitted.) The purpose is not to discipline parties and attorneys

“whose cases are complex or face an ‘uphill fight.’ ” Louya v William Beaumont Hosp, 190

Mich App 151, 164; 475 NW2d 434 (1991).

A. FAILURE TO ACCOMMODATE

Plaintiffs alleged in the complaint that, in November 2009, Bonacci’s doctor placed

physical restrictions on her and, afterwards, she requested accommodations under the Persons

with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., from defendants—

specifically reassignment to the Traverse City campus due to her rheumatoid arthritis,

degenerative osteoarthritis, and spondylosis of the spine. Plaintiffs alleged that defendants first

denied her request for accommodations on January 11, 2010.

The PWDCRA provides that a person, such as defendants, shall accommodate a person

with a disability for purposes of employment unless the accommodation would impose an undue

hardship. MCL 37.1102(2); MCL 37.1201(b). The trial court found that, despite Bonacci’s

November 2009 request for accommodations due to her rheumatoid arthritis, degenerative

osteoarthritis, and spondylosis of the spine, she stopped working during the same period of time

for separate disabilities (steatorrhea, anemia, and pancreatic failure) and, as a result of those

separate disabilities, she made requests for FMLA leave, long-term disability, and social security

benefits claiming she was “totally disabled” and “unable to work.” The trial court noted that

Bonacci’s requests for benefits due to her inability to work were substantiated with

documentation from a health care provider. The trial court also found that Bonacci ignored

defendants’ requests for documentation that she was able to work with these separate disabilities

and explaining what type of accommodations were recommended by her health care provider.

Bonacci testified at her deposition that she never provided a “return to work slip” because she

was never able to return to work. She also testified, “Realistically looking back on it, I couldn’t

have taught.” The trial court found that all of the documentary evidence, as well as Bonacci’s

later deposition testimony, indicated that she was unable to work and there was no reasonable

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basis to believe defendants failed to accommodate her. The trial court found that plaintiffs had

no reasonable basis to believe that the facts underlying their legal position were true and their

claim was frivolous under MCL 600.2591. The trial court further ruled, “[a]t best, this

Complaint was filed in reliance on Plaintiffs’ misrepresentations alone,” and concluded that

CMDA was subject to sanctions for failing to conduct a reasonable inquiry into plaintiffs’

misrepresentations before signing the complaint under MCR 2.114(D)(2).

On appeal, CMDA relies on authority, including Tranker v Figgie Internat’l, Inc, 231

Mich App 115, 121-122; 585 NW2d 337 (1998), to argue the fact that Bonacci received social

security disability benefits did not preclude her from seeking accommodations from defendants

to perform her work. But CMDA’s reliance on this line of authority is misplaced. The trial court

did not conclude that the receipt of social security benefits precluded plaintiffs’ failure to

accommodate claim. Rather, the trial court merely considered Bonacci’s receipt of social

security benefits to be one of many facts CMDA would have uncovered proving Bonacci was

unable to work, even with accommodations, if it had conducted a reasonable inquiry before

signing the complaint. Therefore, we are not left with a definite and firm conviction that a

mistake was made when the trial court concluded that CMDA failed to conduct a reasonable

inquiry into the factual basis of the failure to accommodate claim. Moreover, in light of

Bonacci’s complete failure to notify defendants regarding accommodations that would have

allowed her to return to work and her personal belief that she was actually unable to return to

work, the trial court did not clearly err when it concluded that the failure to accommodate claim

was frivolous. Accordingly, the trial court’s imposition of attorney fees and costs pursuant to

MCR 2.114 and MCL 600.2591 for the failure to accommodate claim did not qualify as an abuse

of discretion.

Also on appeal, CMDA argues that the failure to accommodate claim arose, not after

Bonacci was placed on restrictions in November 2009, as alleged in the complaint, but during the

fall semester before she was placed on restrictions. CMDA maintains that claim was not

frivolous, but because it was not alleged in the complaint and was not considered by the trial

court in awarding sanctions and costs, we need not consider its merit. See King v Mich State

Police Dept, 303 Mich App 162, 184-185; 841 NW2d 914 (2013).

B. AGE DISCRIMINATION

Plaintiffs alleged that Bonacci’s age was a factor in defendants’ decision to reassign her

to the Big Rapids campus and in assigning a non-tenured professor, more than 20 years younger

than Bonacci, to take over her courses at the Traverse City campus. Plaintiffs further alleged that

Bonacci suffered damages under the Michigan Elliot-Larsen Civil Rights Act, MCL 37.2101 et

seq.

To establish a prima facie case of age discrimination, plaintiff must prove,

by a preponderance of the evidence, that (1) she was a member of the protected

class; (2) she suffered an adverse employment action; (3) she was qualified for the

position; and (4) she was replaced by a younger person. [Lytle v Malady, 458

Mich 153, 177; 579 NW2d 906 (1998).]

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On appeal, CMDA maintains the thrust of its claim was favoritism to one, younger

professor who received Bonacci’s course assignments and further discovery was necessary after

the complaint was filed to determine defendants’ motivations in giving those assignments. But

the trial court found that a reasonable inquiry by CMDA into its age discrimination claim would

have revealed that Bonacci’s course assignments were given to both younger and older faculty

members. As a result, the trial court found plaintiffs could not have had a reasonable basis to

believe that the facts underlying their legal position were true. In fact, Bonacci testified at her

deposition that no one had a problem with her age or would have taken adverse action because of

it. CMDA has not demonstrated these findings were clearly erroneous. Accordingly, the trial

court’s imposition of attorney fees and costs pursuant to MCR 2.114 and MCL 600.2591 for the

age discrimination claim did not qualify as an abuse of discretion.

C. BULLARD-PLAWECKI

Plaintiffs alleged that defendants failed to provide Bonacci a copy of her personnel file

pursuant to the Bullard-Plawecki Employee Right to Know Act, MCL 423.501, et seq., which

provides, in pertinent part:

An employer, upon written request which describes the personnel record, shall

provide the employee with an opportunity to periodically review at reasonable

intervals . . . the employee’s personnel record if the employer has a personnel

record for that employee. The review shall take place at a location reasonably

near the employee’s place of employment and during normal office hours. [MCL

423.503.]

The act also permits an employee to obtain a copy of their personnel file following a review,

conducted in accordance with MCL 423.503, or to obtain a copy of the file “[i]f an employee

demonstrates that he or she is unable to review his or her personnel record at the employing unit,

then the employer, upon that employee’s written request, shall mail a copy of the requested

record to the employee.”

In her November 4, 2010 letter to defendants, Bonacci merely requested a copy of her

personnel file. The trial court found that Bonacci neither requested an opportunity to review the

file under MCL 423.503 nor demonstrated that she was unable to review her record at the

employing unit under MCL 423.504. The trial court concluded that CMDA failed to conduct a

reasonable inquiry that its Bullard-Plawecki claim was well-grounded in fact before signing the

complaint where a review or inquiry about the November 4, 2010 letter, which CMDA claims it

drafted, would have revealed defendants were under no obligation to produce the file and the

Bullard-Plawecki claim was frivolous. CMDA does not make any argument that these findings

were clearly erroneous on appeal. Accordingly, the trial court’s imposition of attorney fees and

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costs pursuant to MCR 2.114 and MCL 600.2591 for the Bullard-Plawecki claim did not qualify

as an abuse of discretion.3

D. RETALIATION

In Count III, plaintiffs alleged that defendants retaliated against Bonacci for the grievance

she had made regarding travel pay, for seeking accommodations under the PWDCRA, and for

requesting a copy of her personnel file under Bullard-Plawecki. On appeal, plaintiffs’ only claim

is that the trial court clearly erred by finding that their claims under PWDCRA and Bullard

Plawecki were frivolous, and that necessarily, the trial court must also have clearly erred by

finding that their retaliation claim was frivolous. We concluded earlier in this opinion that

plaintiffs failed to establish the trial court’s findings regarding the PWDCRA and Bullard

Plawecki claims were clearly erroneous. Therefore, plaintiffs have also not established clear

error regarding the finding that the retaliation claim was frivolous and the trial court’s imposition

of attorney fees and costs pursuant to MCR 2.114 and MCL 600.2591 for the retaliation claim

did not qualify as an abuse of discretion.

E. BREACH OF IMPLIED CONTRACT

Plaintiffs alleged that defendants breached an implied contract that Bonacci’s

employment and teaching assignments would be based at the Traverse City campus. In answer

to that claim, defendants offered evidence that Bonacci had not only taught and served as site

coordinator at the Traverse City campus since she was hired in 2003, but she had also taught

classes at the Big Rapids campus since 2003, maintained an office in Big Rapids, and had agreed

to a teaching rotation among the Social Work faculty between the Big Rapids and Traverse City

campuses. Count V was then dismissed because the Court of Claims had exclusive jurisdiction

over such a breach of contract claim. See Paquin v Northern Mich Univ, 79 Mich App 605, 610;

262 NW2d 672 (1997). The trial court found that CMDA then refiled the claim in the Court of

Claims, despite having learned that Bonacci had taught at both campuses and had agreed to the

teaching rotation between campuses. The trial court found that CMDA failed to conduct a

reasonable inquiry that its breach of implied contract claim in the circuit court was warranted by

existing law or well-grounded in fact before signing the complaint.

On appeal, CMDA cites caselaw that “[a] past practice which does not derive from the

parties’ collective bargaining agreement may become a term or condition of employment which

is binding on the parties,” Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern

Mich Transp Auth, 437 Mich 441, 454; 473 NW2d 249 (1991), and argues the parties’ collective

bargaining agreement did not expressly address faculty campus assignments. But even if that is

true, CMDA fails to demonstrate that the trial court’s findings that CMDA did not conduct a

reasonable inquiry and the claim was frivolous were clearly erroneous, particularly because it

was filed in the circuit court (a court that CMDA concedes lacked jurisdiction) and Bonacci had

3

In light of this conclusion, we decline to address the trial court’s alternative basis for awarding

sanctions that CMDA failed to investigate whether defendants actually received the November 4,

2010 letter.

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agreed to teach at the Big Rapids campus. The trial court’s imposition of attorney fees and costs

pursuant to MCR 2.114 and MCL 600.2591 for the breach of implied contract claim did not

qualify as an abuse of discretion.

F. LOSS OF CONSORTIUM

Plaintiffs alleged that defendants’ intentional discrimination and violation of Bonacci’s

civil and statutory rights proximately caused Gill to suffer loss of consortium. The trial court

found that plaintiffs had no reasonable basis to believe the claims in their complaint were

supported by the facts and CMDA failed to make a reasonable inquiry into the facts before filing

plaintiffs’ complaint. On appeal, CMDA merely argues that that the trial court “had no basis to

find Gill’s consortium claim to be frivolous or unfounded.”

“An appellant may not . . . give issues cursory treatment with little or no citation of

supporting authority.” Houghton ex rel Johnson v Keller, 256 Mich App 336, 339; 662 NW2d

854 (2003); see also People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001) (“It is

not enough for an appellant in his brief simply to announce a position or assert an error and then

leave it up to this Court to discover and rationalize the basis for his claims, or unravel and

elaborate for him his arguments, and then search for authority either to sustain or reject his

position.”). “An appellant’s failure to properly address the merits of his assertion of error

constitutes abandonment of the issue.” Houghton, 256 Mich App at 339-340. Because CMDA

merely announces its position that the trial court had no basis to find the loss of consortium claim

frivolous and leaves this Court to unravel and elaborate its arguments, CMDA’s appeal regarding

the loss of consortium is abandoned. Id.4

G. JOINT AND SEVERAL LIABILITY

CMDA argues that, even if the trial court properly ordered CMDA to pay attorney fees

and costs, the trial court abused its discretion by holding CMDA jointly and severally liable with

plaintiffs. Rather, CMDA maintains that it was led astray by Bonacci’s representations about the

case and to hold it jointly and severally liable would dissuade attorneys from taking difficult

cases. We disagree. “The imposition of joint and several liability for attorney fees and costs is

permissible under Michigan law.” John J Fannon Co v Fannon Products, LLC, 269 Mich App

162, 172; 712 NW2d 731 (2005). Here, the trial court found that “the documentary evidence

presented . . . undermines any reasonable basis for Plaintiffs believing the facts underlying their

legal position . . . .” But the trial court also found that CMDA filed suit based on plaintiffs’

4

On appeal, CMDA also argues that the award of attorney fees and costs were not appropriate on

the basis of: 1) its choice of venue (Grand Traverse County Circuit Court as opposed to Mecosta

County Circuit Court), and 2) its filing of the complaint for the purposes of harassment and

delay. But it does not appear from the record that the trial court based its assessment against

CMDA on these grounds. CMDA’s arguments are therefore unpreserved and we decline to

address them. See King, 303 Mich App at 184-185 (where there was no exercise of discretion to

review with respect to newly asserted grounds for awarding attorney fees, this Court declined to

address the plaintiff’s unpreserved arguments on appeal).

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representations, alone, and without conducting a reasonable inquiry that would have revealed a

wealth of documentary evidence undermining those representations. Because actions by both

CMDA and plaintiffs caused defendants to incur attorney fees and costs, it was not outside the

range of principled outcomes to hold them jointly and severally liable.

III

Next, on appeal, CMDA challenges the amount of attorney fees and costs awarded by the

trial court.

The factors to be considered in determining the reasonableness of a fee include

the following:

(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the

services; and

(8) whether the fee is fixed or contingent. [MRPC 1.5(a).]

In Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982), our

Supreme Court established six additional factors for consideration: “(1) the professional standing

and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question

and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the

nature and length of the professional relationship with the client.” In Smith v Khouri, 481 Mich

519, 530-531; 751 NW2d 472 (2008), the Supreme Court held that “a trial court should begin its

analysis by determining the fee customarily charged in the locality for similar legal services” and

then multiply the “reasonable number of hours expended in the case” to produce a starting point

for the fee award. Then, the court should consider the other factors from MRPC 1.5(a) and

Wood to “determine whether an up or down adjustment is appropriate. And, in order to aid

appellate review, a trial court should briefly discuss its view of the remaining factors.” Id. at

531.

When it decided the fee customarily charged in the locality for similar legal services, the

trial court considered the mean and median rates for attorneys in Michigan with similar years of

experience, for attorneys practicing employment defense, and for attorneys in Kent County (the

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nearest county where an employment defense attorney can be hired). These median rates ranged

from $233 to $250 an hour, and the mean rates ranged from $251 to $260 an hour. The trial

court also noted that defendants had paid $405 an hour for a sophisticated defense attorney, but

Kinney and defendants had negotiated for a rate of $245 an hour. The trial court concluded that

the evidence supported a fee of at least $245 an hour. Again, multiplying this fee by the number

of hours billed, the trial court awarded $293,216 in attorney fees.

CMDA argues that the trial court improperly included the fees and costs associated with

its application for leave to appeal of the trial court’s order denying the motion to disqualify the

judge. We agree.

In DeWald v Isola (After Remand), 188 Mich App 697; 470 NW2d 505 (1991), the

defendants originally appealed to this Court when the trial court denied their motion for

sanctions against the plaintiff for filing a frivolous lawsuit. Id. at 698. This Court initially

remanded to the trial court for the imposition of sanctions. On remand in the trial court,

however, the defendants also sought the imposition of those costs and attorney fees incurred

during their appeal to this Court, which trial court denied. Id. This Court held “The costs,

including reasonable attorney fees, incurred by [the] defendants at the trial level were the direct

result of [the]plaintiff’s pursuit of a frivolous cause of action and were clearly within the scope

of the sanctions allowable under MCR 2.114, 2.625(A)(2), and MCL § 600.2591[.]” Id. at 703.

But this Court affirmed the trial court’s denial of appellate costs and attorney fees, reasoning that

the appeal regarding sanctions was separate from the substance of the lawsuit and the mere fact

that the appeal would not have occurred but for the initial filing of the frivolous lawsuit was too

tenuous a connection to impose appellate attorney fees and costs under the statutes and court

rules. Id. at 701. This Court then held, “it is inappropriate to expand the scope of MCR 2.114,

2.625(A)(2), and MCL 600.2591 . . . to cover costs, including attorney fees, incurred on appeal

and remand of a frivolous action.” Id. at 703; see also Edge v Edge, 299 Mich App 121, 133;

829 NW2d 276 (2012) (“Under DeWald, the circuit court in the present case did not have the

authority to grant plaintiff appellate attorney fees and costs under MCR 2.114, MCR

2.625(A)(2), and MCL 600.2591.”). In Edge, this Court further explained that, even if the trial

court found an appeal frivolous, it was precluded from awarding appellate attorney fees and

costs. Id. at 134.

Although the trial court attempted to distinguish the facts of this case from DeWald, by

concluding that the appeal of the order denying the motion to disqualify the judge “frustrated the

resolution of this case” because the trial court had not yet entered a final judgment, we conclude

that, just as in DeWald, the appeal regarding disqualification was separate from substance of the

frivolous lawsuit. According to DeWald and Edge, the trial court lacked the authority to grant

appellate attorney fees and costs under MCR 2.114, MCR 2.625(A)(2), and MCL 600.2591, and

therefore the portion of its award including appellate attorney fees and costs amounted to an

abuse of discretion.

We conclude that the portion of the trial court’s award including appellate attorney fees

and costs requires reversal, but we consider CMDA’s additional claims on appeal that the award

for attorney fees and costs incurred in the trial court proceedings should have been reduced.

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First, CMDA argues that Kinney’s use of block billing made it impossible to determine

the amount of time each task required and whether that time was reasonable, but the trial court

found that Kinney’s billing entries were not “impermissibly vague.” It reasoned that each

paragraph entry corresponded to a day’s tasks, which were discretely identified and often

provided a bracketed time entry. The bracketed time entries for each day’s tasks could also be

compared to the total number of hours billed for that day. Citing Kinney’s testimony that she

does not bill for clerical work, the trial court rejected CMDA’s claim that, without a bracketed

time entry for each task, Kinney could have been billing for non-legal, clerical work. The trial

court found that the detailed billing records submitted by Kinney adequately documented the

hours and nature of her work. The trial court found credible Kinney’s testimony that she actually

worked those hours and did not “pad the bill.” This Court is not left with a definite and firm

conviction that a mistake was made regarding the trial court’s findings about Kinney’s block

billing and the trial court did not abuse its discretion by declining to reduce the award on this

ground.

Second, CMDA cites its expert’s testimony that Kinney’s rate was higher than the hourly

rate of a large, established firm and the expert’s opinion that Kinney’s fees should be reduced by

more than half. But the trial court rejected the expert’s testimony on several grounds. The trial

court found that Kinney performed all the work she billed, so it found the expert’s “blended

rate,” using an average of the rates for a paralegal, an associate, and a senior attorney, was

“unhelpful.” The trial court also rejected the expert’s across-the-board 25 percent reduction in

the hours worked by Kinney. The trial court found that the expert failed to provide any

explanation for the reduction. It also found the expert unfamiliar with the complexity of this

case because he had only reviewed it for four hours. CMDA does not argue on appeal, and we

do not find, that the trial court’s factual findings regarding the expert’s testimony were clearly

erroneous and the trial court did not abuse its discretion by declining to reduce the award based

on this testimony.

Third, citing MRPC 1.5(a)(7) and Wood factor 1, the trial court found that Kinney

possessed “professional standing, reputation, and ability in employment cases” based on 30 years

of experience and FSU’s general counsel’s affidavit regarding Kinney’s experience and

expertise. CMDA nevertheless argues that Kinney lacked the requisite ability to conduct an

employment defense. To support its argument, CMDA claims that, on the record at a hearing,

Kinney misstated the current Michigan law regarding implied contracts for employment. But a

careful review of the record demonstrates that Kinney did not offer any explanation about

Michigan law and merely argued that CMDA had failed to provide any caselaw to support its

position regarding implied contracts.5 Therefore, CMDA has not established the trial court’s

5

In addition, CMDA claims that Kinney erroneously argued that CMDA “purposefully filed

[Plaintiffs’ complaint] in the wrong jurisdiction.” (Emphasis and brackets in CMDA’s brief on

appeal.) Because CMDA provides no citation to the record in support of this claim, it is

abandoned. Houghton, 256 Mich App at 339-340. In any event, we again note that Kinney’s

motion to change venue was successful.

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finding regarding Kinney’s ability was clearly erroneous and the trial court did not abuse its

discretion by declining to reduce the award on this ground.

Fourth, citing MRPC 1.5(a)(4) and Wood factor 3, the trial court found that Kinney’s

representation led to a positive result for defendants—noting the case “was dismissed without

dispositive motion, and it is not being appealed.” CMDA argues that Kinney was not

responsible for the result because CMDA, not Kinney, requested dismissal. But again, CMDA’s

argument is inconsistent with the record. Following Bonacci’s deposition, Kinney, on

defendants’ behalf, moved for entry of an order granting judgment for defendants, and CMDA,

on plaintiffs’ behalf, moved for voluntary dismissal. The trial court granted Kinney’s motion

and denied CMDA’s motion. Therefore, it was not clearly erroneous to credit Kinney for the

result achieved and the trial court did not abuse its discretion by declining to reduce the award on

this ground.

Fifth, citing Wood factor 4, the trial court found that, based on the frivolous legal and

factual claims, length of the proceedings, motions, briefing, and discovery requests, this case was

“significantly more complicated than the typical employment case.” Although CMDA claims

Kinney’s billing was excessive, on appeal citing the 19 hours billed to answer the Court of

Claims complaint and 49.95 hours billed to respond to plaintiffs’ motion for disqualification, the

trial court rejected similar allegations of excessive billing in its opinion, reasoning that CMDA’s

frivolous filings and misrepresentations6 required Kinney to engage in a meticulous review of the

case and made the case “exceedingly time-consuming.”7 CMDA has not established that the trial

court’s finding that Kinney’s billing was not excessive was clearly erroneous and the trial court

did not abuse its discretion by declining to reduce the award on this ground.

Last, CMDA challenges the award of costs because defendants did not offer any receipts

to document the costs aside from Kinney’s billing records. But, again, the trial court found

credible Kinney’s testimony that she did not “pad the bill.” Accordingly, we are not left with a

definite and firm conviction that a mistake was made regarding the costs for trial court

proceedings.

6

In particular, the trial court cited misrepresentations it had found CMDA had made in its

motion to disqualify the judge from the case, including, for example, statements that the judge

had “deeply rooted relationships with multiple board members” when he was actually only

acquainted with one member and did not know who the other members of defendant Board were.

7

CMDA’s reliance on McNeel v Farm Bureau Gen Ins Co of Mich, 289 Mich App 76; 795

NW2d 205 (2010), where this Court found that the trial court improperly reduced the attorney’s

fees by 46 percent, is misplaced. Just as the attorney’s billing records in McNeel were “legally

sufficient” and the attorney’s testimony supported the hours billed, here, the trial court found

Kinney’s testimony credible that she did not pad her bill.

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IV

We affirm the portions of the trial court’s orders finding CMDA jointly and severally

liable for attorney fees and costs incurred during trial court proceedings under MCR 2.114 and

MCL 600.2591, but we reverse the portions of the trial court’s orders awarding appellate

attorney fees and costs, and we remand for entry of an order consistent with this opinion. We do

not retain jurisdiction. No costs pursuant to MCR 7.219, neither party having prevailed in full.

/s/ Michael J. Riordan

/s/ Jane E. Markey

/s/ Kurtis T. Wilder

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