J G Wentworth Ssc Lp v. Anthony Morris

STATE OF MICHIGAN

COURT OF APPEALS

J G WENTWORTH SSC, LP, UNPUBLISHED

February 22, 2018

Plaintiff/Counter-Defendant,

v No. 333413

Wayne Circuit Court

ANTHONY MORRIS, LC No. 15-005847-CZ

Defendant/Cross-Defendant,

and

INTEGRITY LIFE INSURANCE COMPANY and

GENERAL AMERICAN LIFE INSURANCE

COMPANY,

Defendants/Counter-

Plaintiffs/Cross-Plaintiffs-

Appellees/Cross-Appellants,

and

EXTENDED HOLDINGS, LTD and RSL

FUNDING, LLC,

Defendants/Cross-Defendants-

Appellants/Cross-Appellees.

Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.

PER CURIAM.

Defendant Anthony Morris separately sold rights to a single annuity payment to two

separate purchasers—plaintiff J. G. Wentworth SSC, LP (Wentworth) and defendant/cross-

appellee RSL Funding, LLC (RSL). In this resulting dispute, which was ultimately resolved by

interpleader, defendants/cross-appellees Extended Holdings, Ltd. (Extended), and RSL appeal by

right the trial court’s May 26, 2016 final judgment and order, and thereby challenge certain

earlier orders of the trial court. In the cross-appeal, defendants/cross-appellants Integrity Life

Insurance Company (Integrity) and General American Life Insurance Company (General

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American) challenge the amount of attorney fees awarded to them by the trial court. We affirm

in part, vacate in part, and remand for further proceedings consistent with this opinion.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case derives from a personal injury action brought by Morris against the city of

Detroit. That action was resolved in 1990 by a structured-settlement agreement. Under the

settlement agreement, the city was required to make monthly payments to Morris for life, plus

several lump-sum payments on specified dates. The city assigned its payment obligations under

the agreement to General American in 1990. In turn, General American purchased an annuity

from Integrity, naming Morris as the annuitant. Under the terms of both the settlement

agreement and the annuity, Morris was entitled in part to a lump-sum payment of $60,000 in

2015.1

Between 1998 and 2007, Morris sold his right to receive various payments under the

structured settlement agreement—including the $60,000 lump sum payment—to Wentworth.

Notwithstanding this sale, Morris agreed in January 2012 to sell rights to $40,000 of the $60,000

payment to RSL, who assigned to Extended its right to receive the payment. As required by the

Revised Structured Settlement Protection Act (RSSPA), MCL 691.1301 et seq., RSL applied to

the trial court for approval of the transfer to Extended of the right to receive the $40,000 payment

from Morris. The trial court issued an Unopposed Order of Transfer, approving “the Transfer of

Structured Settlement Payment Rights . . . to [RSL’s] assigned, Extended Holdings, Ltd. . . .from

Anthony J. Morris.” The order of approval included provisions releasing the annuity issuer and

owner (in this case, Integrity and General American, respectively) from liability related to the

transfer and ordering RSL and Extended to indemnify and hold harmless the annuity issuer and

owner from any and all liability, “including but not limited to any claims asserted by any person

or entity not a party hereto, claiming an interest in the Assigned Payments.”

Before any of the $60,000 payment was remitted to any party, Wentworth discovered the

transaction between Morris and RSL. Wentworth then initiated this action, naming Morris,

Integrity, General American, and RSL (but not Extended), as defendants. Integrity answered

Wentworth’s complaint and asserted, as an affirmative defense, that it was entitled to

interpleader relief. Integrity later filed a counterclaim and a cross-claim for interpleader relief

under MCR 3.603. The cross-claim named Extended as a cross-defendant.

Integrity also filed another cross-claim for injunctive relief against RSL, alleging that on

the same day that Wentworth instituted this action, RSL and Extended had filed an arbitration

demand in Texas naming Morris, Wentworth, and Integrity as respondents. Integrity further

alleged that the arbitration proceeding concerned the same subject matter as that at issue in this

1

Originally, an addendum to the annuity agreement provided that Morris would receive that

payment on July 1, 2015. The addendum was later amended, by hand, to instead make the

$60,000 payment due on June 1, 2015. Confusion subsequently arose regarding the precise date

that the $60,000 payment was actually due (or whether one or two payments were due).

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action, and that Integrity had never agreed to arbitration. Integrity moved for a temporary

restraining order or preliminary injunction seeking to stay the arbitration and to enjoin RSL from

seeking to compel Integrity to participate in it. Ultimately, the trial court entered a stipulated

order providing that neither RSL nor Extended would seek to compel Wentworth, Integrity, or

General American to participate in the Texas arbitration proceeding.2

After filing an appearance for the limited purpose of challenging the trial court’s

jurisdiction over it, Extended immediately moved for summary disposition under

MCR 2.116(C)(1) (lack of personal or in rem jurisdiction). The trial court never decided

Extended’s motion for summary disposition.

In due course, the trial court granted Integrity and General American the interpleader

relief they sought. The court determined that Wentworth was entitled to the entire $60,000

payment, and it therefore ordered Integrity to remit that sum to Wentworth. The trial court also

ordered Wentworth, RSL, and Extended to pay costs and attorney fees incurred by Integrity and

General American in obtaining a preliminary injunction, defending the lawsuit, and bringing

their action for interpleader. The court denied RSL’s and Extended’s motions for

reconsideration, and subsequently entered a stipulated final judgment and order dismissing the

action with prejudice.

This appeal and cross-appeal followed.

II. STANDARD OF REVIEW

We review de novo a trial court’s ruling on a motion for summary disposition, its

determinations regarding personal jurisdiction, Lease Acceptance Corp v Adams, 272 Mich App

209, 218; 724 NW2d 724 (2006), equitable issues, questions of statutory interpretation, In re

Forfeiture of 1987 Mercury, 252 Mich App 533, 538; 652 NW2d 675 (2002), questions

regarding the proper interpretation and application of court rules, and issues involving the

common law, Brecht v Hendry, 297 Mich App 732, 736; 825 NW2d 110 (2012). We review for

an abuse of discretion the trial court’s decision to grant a preliminary injunction. Hammel v

Speaker of House of Representatives, 297 Mich App 641, 647; 825 NW2d 616 (2012). We also

“review a trial court’s decision regarding whether to grant an award of attorney fees and costs for

an abuse of discretion.” Doe v Boyle, 312 Mich App 333, 343; 877 NW2d 918 (2015). “An

abuse of discretion exists when the decision is outside the range of principled outcomes,” or

when it is premised on “the court’s misunderstanding of controlling legal principles.” Davis v

City of Detroit Fin Review Team, 296 Mich App 568, 612; 821 NW2d 896 (2012).

We review for clear error a trial court’s findings of fact. MCR 2.613(C); see also

Markilie v Bd of Co Rd Com’rs of Livingston Co, 210 Mich App 16, 22; 532 NW2d 878 (1995).

2

Although RSL and Extended objected to some of the contents of this order (particularly the

portion ordering them to pay costs and attorney fees), they expressly agreed to the language

prohibiting them from seeking to compel Wentworth, Integrity, or General American to

participate in the Texas arbitration proceeding.

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A finding is clearly erroneous only if this Court is “left with a definite and firm conviction that a

mistake has been made.” Id.

III. MAIN APPEAL

A. PERSONAL JURISDICTION

RSL and Extended argue that the trial court erred by failing to consider and decide

Extended’s motion for summary disposition and by exercising personal jurisdiction over it. We

disagree.

After initially filing its motion for summary disposition and noticing it for a hearing to be

held on September 25, 2015,3 Extended made no reference to its motion in three subsequent

motion hearings. Indeed, at an October 9, 2015 hearing, when the trial court stated its belief that

there was only one motion for summary disposition before it—i.e., RSL’s motion—Extended’s

attorney did not correct the court. Nor did Extended re-notice its motion for a later date after the

initial hearing date had passed without argument on its motion, as it could have under

MCR 2.119(E)(1). Only after the trial court ruled against Extended on the substantive merits of

the parties’ respective claims did Extended raise the issue of its undecided motion in a motion for

reconsideration. In its February 9, 2016 opinion and order denying reconsideration, the trial

court stated that “the Register of Actions indicates that the [sic] Extended Holding’s motion for

summary disposition due to lack of personal jurisdiction was withdrawn on October 9, 2015 and

therefore was not argued by the parties at the hearing and not considered by the Court.”

The trial court’s finding that Extended had withdrawn its motion was not clearly

erroneous. MCR 2.613(C); Markilie, 210 Mich App at 22. The register of actions contains

several entries for October 9, 2015. In addition to reflecting that a hearing on one or more

motions took place on that date, it reflects the notation “Dismiss Hearing or Injunction,” and

indicates that the “dismissed” hearing was “CANCELED” after having been reset by the court

from September 25, 2015 to October 2, 2015, and then to October 9, 2015. The register of

actions does not specifically state which motion’s hearing was cancelled. But Extended’s motion

for summary disposition had originally been noticed for September 25, 2015, although there

were also other motions noticed for that date, including RSL’s motion for summary disposition

and Integrity and General American’s motion for costs and fees incurred in obtaining injunctive

relief regarding the Texas Arbitration proceedings. At the beginning of the October 9, 2015

motion hearing, the trial court stated “I believe Extended Holdings is out, correct?,” to which

counsel for Wentworth replied that his client was willing to dismiss Extended but that he

believed there were still “issues between Integrity and Extended that may preclude them from

being dismissed at this point.” Counsel for Extended said nothing. There was no further

discussion of Extended’s status as a party. Later in the hearing, counsel for Wentworth stated to

3

The Register of Actions does not reflect that a hearing was actually held on September 25,

2015. It does, however, reflect that a hearing was rescheduled from September 25, 2015 to

October 2, 2015, and then further rescheduled from October 2, 2015 to October 9, 2015.

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the court that RSL and Extended had “not filed any responsive pleadings. Their first response

was the summary disposition which is before your Honor today.” Counsel for Extended also

said nothing in response to the trial court’s statement, “I believe there is one motion for summary

disposition” (referencing RSL’s motion for summary disposition).

We are far from possessing the definite and firm conviction that a mistake was made.

MCR 2.613(C); Markilie, 210 Mich App at 22. Although the register of actions does not

indicate precisely which motion hearing was cancelled, it certainly could have been Extended’s

motion; this would explain why Extended’s counsel did not correct the court when it stated its

belief that only one summary disposition motion—RSL’s— remained. And we do not view

Extended’s stipulation to some orders of the trial court subject to a reservation of its personal

jurisdiction defense as conclusively establishing that it never withdrew the specific motion at

issue. Finally, the mere fact that Extended did not place its withdrawal of its motion on the

record at the October 9, 2015 hearing does not mean that such a withdrawal did not occur; the

transcript of the hearing itself indicates that the parties and court went “off the record” at least

once, and the register of actions also lists a “special conference” occurring on that day.

Additionally, it is undisputed that Extended did not attempt to re-notice its motion or

otherwise assert a personal jurisdiction defense until after the trial court had ruled on the merits

of the case. Even assuming that Extended’s motion was not withdrawn, Extended contributed to

the court’s purported error by failing to take the necessary steps to ensure that the court timely

heard and decided Extended’s pending motion. “Error requiring reversal may only be predicated

on the trial court’s actions and not upon alleged error to which the aggrieved party contributed by

plan or negligence.” Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d 675 (2003). “Trial

courts are not the research assistants of the litigants; the parties have a duty to fully present their

legal arguments to the court for its resolution of their dispute.” Walters v Nadell, 481 Mich 377,

388; 751 NW2d 431 (2008). Even assuming that the trial court’s finding that Extended had

withdrawn the motion was clearly erroneous, we would be disinclined to allow Extended to

transform the trial court’s failure to decide the motion into an appellate parachute. See Freed v

Salas, 286 Mich App 300, 308; 780 NW2d 844 (2009) (noting that it is well-settled that parties

cannot harbor error as an appellate parachute).4

B. PRELIMINARY INJUNCTION

RSL and Extended also argue that the trial court abused its discretion by entering a

preliminary injunction against them in favor of General American. We disagree.

4

Although we do not decide the issue, we note that Extended received the assignment of an

annuity originally issued in Michigan according to the laws of Michigan, which was required to

be approved by a Michigan court; the order of the trial court required that Integrity make the

payment to Extended, and set various rights and responsibilities of the parties to the transaction.

It is thus at least cognizable that Extended’s contacts with Michigan would be sufficient to

establish limited personal jurisdiction. See MCL 600.725.

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At a July 1, 2015 motion hearing, RSL and Extended affirmatively assented to the trial

court’s entry of a stipulated order precluding them from seeking to compel General American to

participate in the Texas arbitration proceedings. By expressly stipulating to entry of the order in

question, appellants waived their instant claim of error. See Nexteer Auto Corp v Mando

America Corp, 314 Mich App 391, 395; 886 NW2d 906 (2016). Waiver extinguishes any error

and precludes appellate review. The Cadle Co v City of Kentwood, 285 Mich App 240, 255; 776

NW2d 145 (2009).5

C. INTERPLEADER

RSL and Extended also argue that the trial court erred by granting equitable interpleader

relief to Integrity and General American. Specifically, they argue that the doctrine of unclean

hands bars Integrity and General American from such equitable relief because Integrity made

material misrepresentations concerning the date that the $60,000 annuity payment was to be

paid, and that those representations caused this controversy to arise in the first place. We

disagree.

“The clean hands maxim is an integral part of any action in equity.” Stachnik v Winkel,

394 Mich 375, 382; 230 NW2d 529 (1975). The doctrine of unclean hands “is a self-imposed

ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad

faith relative to the matter in which he seeks relief, however improper may have been the

behavior of the defendant.” Id. (quotation marks and citations omitted). Further, “a tortious act

can never be the foundation of an equitable right.” Putnam v Fitzgerald, 44 Mich 113, 116; 6

NW 198 (1880).

At common law, interpleader sounded in equity, Gairing v McClelland, 311 Mich 315,

319; 18 NW2d 838 (1945),6 and the court rule governing interpleader actions, MCR 3.603, bears

no indication that our Supreme Court intended to alter the common law. Accordingly, the

5

Even assuming, arguendo, that RSL and Extended did not waive their instant claim of error,

and further assuming that their argument is meritorious, they are nevertheless unentitled to

reversal on that basis. Again, “error requiring reversal may only be predicated on the trial

court’s actions and not upon alleged error to which the aggrieved party contributed by plan or

negligence.” Lewis, 258 Mich App 210. Moreover, “[a] party may not take a position in the trial

court and subsequently seek redress in an appellate court that is based on a position contrary to

that taken in the trial court.” Living Alternatives for Developmentally Disabled, Inc v Dep’t of

Mental Health, 207 Mich App 482, 484; 525 NW2d 466 (1994). By stipulating to entry of the

order they now seek to contest, RSL and Extended contributed to the trial court’s purported

error, and they therefore cannot capitalize upon it as a ground for reversal. “Any other

conclusion would be contrary to the rule that defendants cannot harbor error as an appellate

parachute.” People v Pipes, 475 Mich 267, 278; 715 NW2d 290 (2006); accord Freed, 286 Mich

App at 308.

6

See also 48 CJS Interpleader, § 4 (“[i]nterpleader is an equitable remedy or proceeding, which

is governed by equitable principles and rules”).

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unclean hands doctrine might provide a valid defense against interpleader under a proper set of

circumstances.

This case, however, does not present such circumstances. “When many persons have

been defrauded and available funds are insufficient to make all these persons whole, a race to the

courthouse can be expected.” Marsh v Foremost Ins Co, 451 Mich 62, 71; 544 NW2d 646

(1996). Therefore, the unclean hands doctrine must be applied with great care in interpleader

actions. See Sakon v Santini, 257 Mich 91, 93; 241 NW 160 (1932). Such actions involve

multiple adverse parties, and it would be inherently inequitable to bar one party from

interpleader relief based on the soiled hands of another party. Id. Accordingly, the doctrine

“ought not to be applied against one brought in by interpleader,” nor should it be applied where

doing so will prejudice the rights of those with clean hands. Id. In this case, application of the

unclean hands doctrine against Integrity would have impacted Wentworth (as an interpleaded

party) and General American (as an obligor subject to multiple liability). Consequently,

assuming (without deciding) that Integrity’s hands were unclean, it would nevertheless have

been inappropriate for the trial court to have barred the interpleader action on that basis. Id.

Moreover, “[a] defendant with unclean hands may not defend on the ground that the

plaintiff has unclean hands as well.” Attorney General v PowerPick Club, 287 Mich App 13, 53;

783 NW2d 515 (2010). RSL failed to comply with the provisions of the RSSPA in this case, and

its hands are therefore unclean with regard to the transactions at issue in this case. RSL was the

“transferee” in its transaction with Morris. See MCL 691.1302(u). Accordingly, under

MCL 691.1307(6), RSL had the “sole responsibility” to comply with the requirements of

MCL 691.1303, which, among other things, required RSL to provide “the payee” (i.e., Morris)

with a “disclosure statement” at least three days before he signed the transfer agreement, setting

forth both “[t]he amounts and due dates of the structured settlement payments to be transferred”

and “[t]he discounted present value of the payments to be transferred . . . under federal standards

for valuing annuities[.]” In its briefs on appeal, RSL admits that when it entered into a transfer

agreement with Morris, it was unaware of both the actual due date for the $60,000 payment and

the amount that then remained due to be paid to Morris (i.e., nothing—he had previously

assigned his rights to Wentworth). Under MCL 691.1307(6), it is immaterial why RSL lacked

such information. The relevant consideration is that without such information, RSL could not

have provided Morris with the disclosures required by MCL 691.1303. It is impossible to

provide a disclosure statement including information that one does not have, and it is equally

impossible to calculate the discounted present value of an annuity payment without knowing

either the amount of that payment or when it is due.

RSL contends that it had no obligation, common law or statutory, to obtain such

information. But as the trial court recognized, under MCL 691.1307(6), RSL did, in fact, have a

statutory obligation to do so. “The very foundation of a court of equity is good conscience, and

it will not lend its aid . . . to assist law violators.” Society of Good Neighbors v Van Antwerp,

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324 Mich 22, 28; 36 NW2d 308 (1949). Because RSL’s hands are unclean with regard to this

transaction, it cannot assert an unclean hands defense against General American and Integrity.7

In light of the fact that we reject RSL’s unclean hands theory, we hold that the trial court

did not err by granting interpleader relief to General American and Integrity. The RSSPA

unambiguously provides that neither a structured settlement obligor nor an annuity issuer

“shall . . . bear any responsibility or liability arising from a transferee’s failure to comply with”

MCL 691.1303. MCL 691.1307(6).8 As already noted, RSL failed to comply with

MCL 691.1303. Had it done so, it would have been aware of the actual due date for the $60,000

payment, and it also would have been aware that those funds were no longer owed to Morris.

In sum, under MCL 691.1307(6), neither General American nor Integrity can be held

liable for RSL’s damages in this case, and neither has ever claimed any right to receive or

permanently retain the $60,000 at issue. Consequently, General American and Integrity are

disinterested parties with no direct stake in the outcome of this case. Under such circumstances,

we discern no error in the trial court’s decision to grant them equitable interpleader relief under

MCR 3.603.

D. ATTORNEY FEES

Finally, RSL and Extended contend that the trial court erred by assuming that it

possessed the authority to award attorney fees to Integrity and General American. We disagree.

RSL and Extended do not challenge the amount of costs and attorney fees awarded, but only

challenge the trial court’s decision to order any costs and attorney fees at all.

“Michigan generally follows the ‘American rule’ regarding attorney fees, which provides

that fees are not generally recoverable unless a statute, court rule, or common-law exception

provides otherwise.” Silich v Rongers, 302 Mich App 137, 147-148; 840 NW2d 1 (2013). In

this case, however, Integrity and General American are correct that the trial court had the

discretion to grant them their costs and reasonable attorney fees.

7

Furthermore, RSL’s failure to comply with all of the requirements of the RSSPA made its

subsequent assignment to Extended ineffective. See MCL 691.1305(d) (“A payee may make a

further transfer of structured settlement payment rights only after complying with all of the

requirements of this act.”). Extended therefore possessed no right to the payment at issue,

because its rights arose only through RSL’s assignment.

8

MCL 691.1305(c) also provides that “[a]n annuity issuer or a structured settlement obligor is

not required to divide a periodic payment between the payee and a transferee or assignee or

between 2 or more transferees or assignees.” The $60,000 payment at issue in this case qualifies

as a “periodic payment” under MCL 691.1302(j). Consequently, General American and

Integrity had no obligation to divide the $60,000 payment between the purported transferees (i.e.,

Wentworth and RSL).

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The RSSPA provides a statutory basis for a fee award. MCL 691.1305(b) provides in

pertinent part:

The transferee is liable to the structured settlement obligor and the annuity

issuer for both of the following:

* * *

(ii) Other liabilities or costs, including reasonable costs and attorney fees,

arising from the structured settlement obligor’s and the annuity issuer’s

compliance with the order of the court or from the transferee’s failure to comply

with this act.

As Integrity (the annuity issuer) and General American (the obligor) note, the transfer order

obtained by RSL ordered Integrity to pay $40,000 of the $60,000 payment to Extended, despite

the fact that the right to receive those same funds had previously been assigned to Wentworth. In

other words, the costs and attorney fees incurred by Integrity and General American in this

matter arise out of both their attempts to lawfully comply with the trial court’s previous orders

and from RSL’s failure to abide by the notice requirements of the RSSPA. Accordingly, the trial

court had the discretion to award Integrity and General American their costs and fees in this

matter under MCL 691.1305(b)(ii).

Additionally, under the court rule governing interpleader actions, MCR 3.603, the trial

court had discretion to award Integrity and General American their costs and attorney fees as

disinterested stakeholders. MCR 3.603(E) provides:

Actual Costs. The court may award actual costs to an interpleader plaintiff. For

the purposes of this rule, actual costs are those costs taxable in any civil action,

and a reasonable attorney fee as determined by the trial court.

(1) The court may order that the plaintiff’s actual costs of filing the

interpleader request, tendering the disputed property to the court, and participating

in the case as a disinterested stakeholder be paid from the disputed property or by

another party.

(2) If the plaintiff incurs actual costs other than those described in subrule

(1) due to another party’s unreasonable litigation posture, the court may order that

the other party pay those additional actual costs.

(3) An award made pursuant to this rule may not include reimbursement

for the actual costs of asserting the plaintiff’s own claim to the disputed property,

or of supporting or opposing another party’s claim.

Therefore, the trial court correctly recognized its authority to award attorney fees in this

action.

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IV. CROSS APPEAL

Integrity and General American argue in their cross-appeal that the trial court misapplied

the controlling legal test for determining the reasonableness of awarded fees, as set forth by our

Supreme Court in Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008), and recently clarified

in Pirgu v United Servs Auto Ass’n, 499 Mich 269; 884 NW2d 257 (2016). Specifically, they

contend that the trial court failed to consider all of the relevant Smith factors and approve the

rates charged and the number of hours billed by Integrity and General American’s attorneys. We

agree that remand is required for the trial court to consider the relevant Smith factors.

In determining the reasonableness of requested attorney fees, “a trial court should begin

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

Smith, 481 Mich at 530. To do so, courts generally rely “on data contained in surveys such as

the Economics of the Law Practice Surveys that are published by the State Bar of Michigan.” Id.

at 531. “The trial court must then multiply that rate by the reasonable number of hours expended

in the case to arrive at a baseline figure.” Pirgu, 499 Mich at 281. Finally, the court must

consider “all” of the following nonexclusive factors (along with any other relevant factors) “to

determine whether an up or down adjustment is appropriate”:

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

performing the services,

(2) the difficulty of the case, i.e., the novelty and difficulty of the

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

(3) the amount in question and the results obtained,

(4) the expenses incurred,

(5) the nature and length of the professional relationship with the client,

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

employment will preclude other employment by the lawyer,

(7) the time limitations imposed by the client or by the circumstances, and

(8) whether the fee is fixed or contingent. [Id. at 281-282.]

“In order to facilitate appellate review, the trial court should briefly discuss its view of each of

the factors above on the record and justify the relevance and use of any additional factors.” Id. at

282.

In this case, when the trial court awarded Integrity and General American attorney fees

related to the preliminary injunction proceedings, it immediately leapt to a consideration of the

reasonableness factors, rather than beginning its inquiry “by determining the fee customarily

charged in the locality for similar legal services,” see Smith, 481 Mich at 530, and it then

attempted to use the reasonableness factors to determine reasonable rates for Integrity’s and

General American’s attorneys in light of their respective experience, reputation, and abilities. In

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other words, the trial court conflated the first step of the test with the last one. Its error in that

respect permeated the remainder of its analysis. Instead of calculating the “baseline figure” by

multiplying the fee customarily charged in the locality for similar legal services by the

reasonable number of hours expended, see Pirgu, 499 Mich at 281, the trial court multiplied the

rate it had established for each attorney by the number of hours it found reasonable. The trial

court also failed to briefly discuss all of the reasonableness factors on the record, and its related

order is silent with regard to those factors. Therefore, it is unclear which of the eight

reasonableness factors the trial court considered, or whether it considered “all” of them. See id.

at 281.

This error extended to the trial court’s later order regarding interpleader costs and fees.

The trial court relied on its previous determination of reasonable hourly rates for the respective

attorneys. This led the trial court to again improperly calculate the “baseline figure.” Further,

after entertaining argument from the parties on whether the reasonableness factors militated in

favor of deviating up or down from that erroneous baseline figure, the trial court failed to briefly

discuss each of the factors on the record. Instead, the trial court simply stated, “I don’t

find . . . any basis for a deviation balancing all of the statements made by counsel. I think that

the number that the Court has before it now with the reduced hours is reasonable and that’s what

will be ordered.” Nor did the trial court discuss the reasonableness factors in its related order.

Therefore, we cannot discern whether the court actually considered the required reasonableness

factors.

On the record before this Court, we cannot determine whether the court abused its

discretion by ruling as it did. See id. at 283 n 50. Therefore, we vacate the trial court’s fee

awards and remand for further consideration of the reasonableness of those awards in light of

this opinion. See id. at 283. We uphold the trial court’s awards of reasonable costs.

We affirm the trial court with regard to the main appeal. In the cross appeal, we affirm

the trial court’s awards of costs, vacate the trial court’s attorney fee awards, and remand for

further proceedings regarding the reasonableness of those fee awards. Having prevailed in both

the main appeal and cross-appeal, Integrity and General American may tax costs.

MCR 7.219(A). 9

9

Integrity and General American ask this Court to direct the trial court on remand to enter an

order awarding them reasonable costs and attorney fees they have incurred in the instant appeal

and cross-appeal under the RSSPA. Because this issue was neither raised in, nor addressed and

decided by, the trial court, we decline to address it. See Allen v Keating, 205 Mich App 560,

564; 517 NW2d 830 (1994) (“[a]ppellate review is limited to issues actually decided by the trial

court”). Cross-appellants may, however, raise the issue in an appropriate motion on remand if

they wish to do so. As stated, Integrity and General American may tax costs related to this

appeal and cross-appeal as prevailing parties. MCR 7.219(A).

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Affirmed in part, vacated in part, and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

/s/ Michael J. Riordan

/s/ Mark T. Boonstra

/s/ Michael F. Gadola

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