Estate of Robert Muhammad v. William Gresley

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF ROBERT MUHAMMAD, by UNPUBLISHED

YREVA MUHAMMAD, Personal Representative, March 28, 2019

Plaintiff­Appellant/Cross­Appellee,

v No. 341745

Kent Circuit Court

WILLIAM GRESLEY, MATTHEW KAMPS, LC No. 16­001357­NO

SEBASTIEN LEBON, BERTRAND THIBAULT,

MICHAEL CHAMPRENAULT, DANIEL

MOORE, and NICOLAS PELFRENE,

Defendants­Appellees/Cross­

Appellants.

ESTATE OF ROBERT MUHAMMAD, by

YREVA MUHAMMAD, Personal Representative,

Plaintiff­Appellant,

v No. 343236

Kent Circuit Court

WILLIAM GRESLEY, MATTHEW KAMPS, LC No. 16­001357­NO

SEBASTIEN LEBON, BERTRAND THIBAULT,

MICHAEL CHAMPRENAULT, DANIEL

MOORE, and NICOLAS PELFRENE,

Defendants­Appellees.

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

PER CURIAM.

In these consolidated appeals, in Docket No. 341745 plaintiff, Yreva Muhammad, as

personal representative of the estate of Robert Muhammad, appeals by right a December 8, 2017

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trial court order granting summary disposition in favor of defendants William Gresley, Matthew

Kamps, Sebastien Lebon, Bertrand Thibault, Michael Champrenault, Daniel Moore, and Nicolas

Pelfrene. Defendants cross­appeal by right a trial court order denying their motions to strike

certain expert witnesses. In Docket No. 343236, plaintiff appeals by right a March 20, 2018 trial

court order in which the trial court imposed sanctions against plaintiff and plaintiff’s counsel in

the amount of $898,926 in attorney fees and $259,986 in costs. And in Docket No. 341745, we

affirm the trial court’s order in its entirety; in Docket No. 343236, we reverse the trial court’s

award of attorney fees and costs and remand for further proceedings.

I. BACKGROUND

In 2014, defendants and Robert worked together in the Ford Group at Hutchinson

Antivibration Systems, Inc. Defendants were engineers and Robert was an assistant. Defendants

testified that on September 5, 2014, the Ford Group had an outing at Muskegon Lake, which

included boating on Thibault’s sailboat, anchoring the sailboat, and swimming to a sandy beach.

At approximately 5:00 p.m. that day, Champrenault called 911 and reported that Robert went

underwater while swimming back to the sailboat. Defendants testified that despite diving

underwater in an effort to save Robert, they were unable to find him. Authorities recovered

Robert’s body from the lake the following day. The body had injuries on it. The Muskegon

County Medical Examiner, Dr. Joyce DeJong, performed an autopsy and determined that Robert

died of accidental drowning. The injuries were not inconsistent with accidental drowning.

Plaintiff sought a second opinion and hired Dr. Werner Spitz, a former medical examiner with 64

years’ experience. Dr. Spitz also concluded that Robert died of an accidental drowning and that

the injuries were consistent with having been caused by aquatic predation.

On February 12, 2016, plaintiff commenced this lawsuit alleging that defendants

assaulted and battered Robert causing his injuries and death. Plaintiff also alleged willful and

wanton misconduct. After more than a year, thousands of pages of discovery, over 35

depositions, and numerous motion hearings, the trial court granted summary disposition in favor

of defendants pursuant to MCR 2.116(C)(10). The trial court then imposed sanctions after

finding that plaintiff’s complaint was frivolous.

II. DOCKET NO. 341745

A. SUMMARY DISPOSITION

Plaintiff argues that the trial court erred in granting summary disposition in favor of

defendants. “This Court reviews the grant or denial of summary disposition de novo to

determine if the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood,

461 Mich 109, 118; 597 NW2d 817 (1999). “In reviewing a motion brought under MCR

2.116(C)(10), we review the evidence submitted by the parties in a light most favorable to the

nonmoving party to determine whether there is a genuine issue regarding any material fact.”

Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012). “A

question of fact exists when reasonable minds could differ as to the conclusions to be drawn

from the evidence.” Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010).

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“In presenting a motion for summary disposition, the moving party has the initial burden

of supporting its position by affidavits, depositions, admissions, or other documentary evidence.”

Quinto v Cross & Peters Co, 451 Mich 358, 362­363; 547 NW2d 314 (1996). The moving party

may satisfy its burden as follows:

First, the moving party may submit affirmative evidence that negates an

essential element of the nonmoving party’s claim. Second, the moving party may

demonstrate to the court that the nonmoving party’s evidence is insufficient to

establish an essential element of the nonmoving party’s claim. If the nonmoving

party cannot muster sufficient evidence to make out its claim, a trial would be

useless and the moving party is entitled to summary judgment as a matter of law.

[Id. at 362 (quotation marks and citation omitted).]

If the moving party satisfies its burden, “the burden then shifts to the opposing party to

establish that a genuine issue of disputed fact exists.” Id. “[T]he nonmoving party may not rely

on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth

specific facts showing that a genuine issue of material fact exists.” Id. “If the opposing party

fails to present documentary evidence establishing the existence of a material factual dispute, the

motion is properly granted.” Id. at 363.

In addition, the nonmoving party must present evidence that amounts to more than

speculation or conjecture. In Skinner v Square D Co, 445 Mich 153, 157; 516 NW2d 475

(1994), the plaintiff’s decedent designed and built a tumbling machine for cleaning and finishing

metal parts. The design included an electric motor that turned a drum in one direction to wash

parts and in another direction to eject the parts. Id. The decedent installed a switch

manufactured by the defendant to control the motor that turned the drum. Id. To change the

direction of the drum, the operator had to disconnect two wires from the switch to the motor and

reverse them. Id. at 157­158. On one occasion, while reversing the wires from the switch to the

motor, the decedent was electrocuted. Id. at 158.

The plaintiff filed suit, alleging defective design in that the switch had a large “phantom

zone” that caused the switch to “appear to be ‘off’ when it was actually ‘on.’ ” Id. The plaintiff

alleged that the design defect was the proximate cause of the decedent’s fatal injury. Id. The

trial court granted summary disposition in favor of the defendant on the ground that there was no

genuine issue of material fact on the issue of causation, and this Court affirmed. Id. at 158­159.

In affirming this Court, the Michigan Supreme Court addressed the proof required in a

case in which a plaintiff relies on circumstantial evidence to establish causation. Id. at 163. The

Court explained as follows:

While plaintiffs may show causation circumstantially, the mere happening

of an unwitnessed mishap neither eliminates nor reduces a plaintiff’s duty to

effectively demonstrate causation:

That there was no eyewitness to the accident does not always prevent the

making of a possible issue of fact for the jury. But the burden of establishing

proximate cause . . . always rests with the complaining party, and no presumption

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of it is created by the mere fact of an accident. [Id. at 163­164 (quotation marks

and citation omitted).]

The Court explained that, “[t]o be adequate, a plaintiff's circumstantial proof must

facilitate reasonable inferences of causation, not mere speculation,” and it proceeded to articulate

the “basic legal distinction between a reasonable inference and impermissible conjecture” as

follows:

As a theory of causation, a conjecture is simply an explanation consistent

with known facts or conditions, but not deducible from them as a reasonable

inference. There may be 2 or more plausible explanations as to how an event

happened or what produced it; yet, if the evidence is without selective application

to any 1 of them, they remain conjectures only. On the other hand, if there is

evidence which points to any 1 theory of causation, indicating a logical sequence

of cause and effect, then there is a juridical basis for such a determination,

notwithstanding the existence of other plausible theories with or without support

in the evidence.

We want to make clear what it means to provide circumstantial evidence

that permits a reasonable inference of causation. . . . [A]t a minimum, a causation

theory must have some basis in established fact. However, a basis in only slight

evidence is not enough. Nor is it sufficient to submit a causation theory that, while

factually supported, is, at best, just as possible as another theory. Rather, the

plaintiff must present substantial evidence from which a jury may conclude that

more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would

not have occurred. [Id. at 164­165 (quotation marks and citations omitted;

emphasis added).]

In a similar case addressing the proof necessary to survive a motion for summary

disposition relative to the element of causation, the Michigan Supreme Court explained:

It is important to bear in mind that a plaintiff cannot satisfy this burden by

showing only that the defendant may have caused his injuries. Our case law

requires more than a mere possibility or a plausible explanation. Rather, a plaintiff

establishes that the defendant’s conduct was a cause in fact of his injuries only if

he set[s] forth specific facts that would support a reasonable inference of a logical

sequence of cause and effect. A valid theory of causation, therefore, must be

based on facts in evidence. And while [t]he evidence need not negate all other

possible causes, this Court has consistently required that the evidence exclude

other reasonable hypotheses with a fair amount of certainty. [Craig v Oakwood

Hosp, 471 Mich 67, 87­88; 684 NW2d 296 (2004) (quotation marks and citations

omitted).]

The Court cautioned that “[i]t is axiomatic in logic and in science that correlation is not

causation.” Id. at 93. Therefore, “it is error to infer that A causes B from the mere fact that A

and B occur together.” Id.

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Although Skinner and Craig addressed causation in, respectively, a products liability and

negligence setting, the cases govern the analysis for determining whether a plaintiff can survive

summary disposition when the plaintiff relies on circumstantial evidence to prove causation. In

this case, to survive defendants’ motions for summary disposition, plaintiff was required to

create a genuine issue of material fact by connecting Robert’s injuries to defendants’ intentional

conduct. Plaintiff’s claims necessarily turned on proof that defendants inflicted the injuries upon

Robert. Because plaintiff relied on circumstantial evidence to show that defendants caused

Robert’s injuries, Skinner and Craig are instructive for purposes of this case.

In this case, in moving for summary disposition, defendants satisfied their initial burden

and supported their position with documentary evidence that negated plaintiff’s claims of assault,

battery, and willful and wanton misconduct. See Quinto, 451 Mich at 362­363. Specifically,

defendants’ evidence included the testimony of Officer Todd Dunham of the Muskegon County

Sheriff’s Department who asserted that there was no evidence of foul play in the case. He

explained that all of the facts and circumstances surrounding the event were consistent with

accidental drowning and that the evidence showed that Robert was a victim of “silent drowning.”

Officer Dunham testified that the photographs of Robert’s body were consistent with the

appearance of a drowning victim. Similarly, defendants testified that there was no animosity

toward Robert. This testimony was supported by photographs of the group outing. The

photograph of Robert swimming back to the boat and the timing of the 911 call supported

defendants’ testimonies regarding the sequence of events. Moreover, Dr. DeJong performed an

autopsy and concluded that Robert died of an accidental drowning. She stated that the injuries

on Robert’s body were consistent with injuries sustained when a person drowns in a lake. She

testified that there was no evidence of restraint and that there was no evidence that someone

kicked, punched, or hit Robert. Dr. DeJong also testified that if someone had beaten Robert to

death, there would have been internal injuries. And there were no internal injuries.

In addition, the only other expert to examine the body reached the same conclusion that

Dr. DeJong reached. Specifically, plaintiff hired Dr. Spitz to perform a second autopsy. Dr.

Spitz performed the autopsy, and his conclusions were consistent with Dr. DeJong’s conclusions.

Dr. Spitz, who had performed autopsies on more than 1,000 drowning victims over the course of

his 64­year career, testified that Robert’s death was consistent with accidental drowning. There

was nothing on the body that was inconsistent with drowning. Dr. Spitz opined that the blood in

Robert’s left eye was consistent with a postmortem injury. The injuries, according to Dr. Spitz,

were consistent with aquatic predation, and there was nothing to show that Robert was assaulted

before death. Dr. Spitz explained that there was no evidence that anyone caused any trauma to

Robert’s body. At one point during his deposition, Dr. Spitz explained that the injuries were

“100 percent complete typical manifestation of aquatic animals.” Dr. Spitz claimed that there

was no evidence that someone hit Robert because there was no evidence of hemorrhaging, and

the injuries were typical postmortem injuries with no bleeding or “almost no bleeding.” Dr.

Spitz testified that the location and pattern of injuries showed aquatic predation and that none of

the marks were inconsistent with aquatic predation.

Similar to the testimony of Dr. Spitz and Dr. DeJong, Dr. Badar Cassin, a forensic

pathologist, testified that the abrasions on Robert’s body were postmortem injuries caused by

aquatic predation. He explained that the discoloration of the eye was caused by seepage of

blood.

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Apart from the expert testimony regarding the cause of Robert’s death, defendants

showed that plaintiff did not have any evidence proving that defendants assaulted and battered

Robert or engaged in willful and wanton misconduct. Indeed, the testimony of plaintiff’s lay

witnesses revealed that they did not have any proof of assault or battery. The testimony of

Ronald Muhammad and Sultan Muhammad, who investigated the incident on behalf of the

Nation of Islam, of which Robert was a member, reflected that there was no evidence of assault

or battery. During his deposition, Ronald Muhammad agreed that he did not have any evidence

to show that any of Robert’s coworkers assaulted him. Similarly, at his deposition, Sultan

Muhammad testified that he did not reach any conclusions regarding the incident and that he did

not know if he had evidence of an assault.

Moreover, during her deposition, when asked if, apart from her suspicions, she had “any

evidence” to support the intentional tort claims at the time she filed the complaint, plaintiff

responded, “I’d say no, but I think evidence could be obtained.” When asked if “the thought

was, we’ll file the complaint and see if we can continue with the investigation?”, plaintiff

replied, “You could say it like that.” Similarly, Robert’s mother, who spoke with police during

the recovery effort, testified that she was unsure if Robert was murdered because there were “a

lot of possibilities” regarding the cause of Robert’s death. She had no evidence that Robert was

assaulted. In addition to these lay witnesses, none of the first responders testified that defendants

assaulted and battered Robert.

Defendants produced substantial documentary evidence in support of their motions for

summary disposition; therefore, the burden shifted to plaintiff to produce “specific facts”

showing that there was a genuine issue of material fact with respect to whether defendants

assaulted and battered Robert and acted with willful and wanton disregard. Plaintiff did not

produce any direct evidence to support her claims. Thus, because plaintiff relied on

circumstantial evidence regarding the cause of Robert’s injuries, she was required to submit

“substantial evidence from which a jury may conclude that more likely than not, but for

defendant[s’] conduct, [Robert’s] injuries would not have occurred.” Skinner 445 Mich at 165.

Instead of meeting this burden, plaintiff’s evidence, viewed in a light most favorable to plaintiff,

showed that any intentional acts by defendants were no more plausible than other theories as to

the cause of Robert’s injuries. Essentially, while there was conflicting evidence as to the timing,

nature, and cause of the injuries, a review of the record indicates that there was no evidence that

would allow a rational juror to conclude that an intentional tort or willful and wanton misconduct

was more likely the source of Robert’s injuries. As such, plaintiff attempted to create an issue of

fact by relying on speculation and conjecture. See id.

Plaintiff presented testimony, reports, and affidavits by three expert witnesses; however,

this evidence, viewed in a light most favorable to plaintiff, showed that plaintiff’s tort theory was

simply an explanation that was “consistent with known facts or conditions, but not deducible

from them as a reasonable inference.” Id. at 164. Instead, the evidence reflected that, at best,

plaintiff’s assault and battery theory was “just as possible” as defendants’ accidental drowning

theory. Thus, a jury would not be able to conclude that “more likely than not, but for the

defendant’s conduct, the plaintiff’s injuries would not have occurred.” Id. at 164­165.

Specifically, Dr. John Ng, M.D., an ocular trauma specialist, averred that it was

“reasonable to infer that [Robert’s] eye injury was the result of blunt force trauma,” and that “his

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heart was still beating when the blunt force made contact with his eye.” Dr. Ng also averred that

a subconjunctival hemorrhage did not occur underwater because he was “unaware of any

evidence regarding the presence of an underwater moderate force necessary to cause such an

injury.” However, Dr. Ng could not link any blunt force trauma to defendants, and he agreed

that he had no ability to testify that any defendant hit Robert. Dr. Ng testified that he did not

know what caused Robert’s eye injury. He agreed that a fist, a fall, or a strike from a stick could

have caused the injury, illustrating the wide range of potential causation. Dr. Ng explained, “All

I can say is this is an injury due to blunt trauma, however it happened, and whether a person did

it or whether the person fell, I can’t comment on that. That would be just conjecture . . . .” He

agreed that he had “no evidence of exact mechanism other than my . . . estimation that this is

blunt trauma.”

Dr. Ng testified that, in his opinion, a drowned person would not receive the same type of

injuries that Robert suffered. However, his subsequent testimony revealed that he could not rule

out that Robert suffered the injury underwater. He explained, “unless something was traveling in

the water—and again I said before, you know, a large fish traveling can strike you—you know,

it’s unlikely that—just sinking and hitting something softly is not going to cause that kind of

injury.” Dr. Ng also testified that he previously treated a patient who suffered similar

“periocular contusions” while swimming to a boat and that he had heard of comparable injuries

sustained by persons striking a fish while in the water. This testimony illustrated that there were

multiple alternate theories that were just as likely to have caused Robert’s injuries. Viewed in a

light most favorable to plaintiff, we conclude that Dr. Ng’s expert opinion did not make it more

likely than not that Robert was assaulted and battered as opposed to having sustained injuries in a

different manner. Rather, at best, Dr. Ng’s testimony and affidavit showed that defendants “may

have caused [Robert’s] injuries.” Craig, 471 Mich at 87 (emphasis added). This was insufficient

to create a genuine issue of material fact. See id.

Similarly, the testimony of Dr. John Fletemeyer, Ed.D., did not create an issue of fact

regarding whether defendants assaulted and battered Robert. Dr. Fletemeyer agreed with Dr.

Ng’s opinion that Robert suffered blunt force trauma. He testified that Robert suffered the

trauma before drowning. Dr. Fletemeyer testified that he could not dismiss the possibility of

assault, but he did not have any evidence to show that Robert was put into the water following an

assault. Dr. Fletemeyer opined that the trauma was not caused by natural conditions and “more

likely than not” it resulted from an assault. Again, however, he agreed that he could not testify

that a punch, a foot, or a stick caused the injuries and that he could not link the injuries to

defendants. Dr. Fletemeyer also agreed that Robert could have hit his head on the boat and that

the issue of causation was outside his realm of experience. Dr. Fletemeyer’s testimony would

not have allowed a rational juror to conclude that it was more likely than not that defendants’

conduct caused Robert’s injuries. As noted above, the evidence showed a wide range of

potential sources of the injuries and even plaintiff’s experts could not offer testimony to link any

of the injuries to defendants.

Plaintiff also presented the expert report and testimony of Dr. Patrick Besant­Matthews,

M.D., a retired forensic pathologist; however, this evidence would not have allowed a rational

jury to conclude that defendants more likely than not caused Robert’s injuries. Dr. Besant­

Matthews opined in his report that Robert’s injuries were uncommon for drowning victims and

that he would have treated the case as a possible homicide. He further opined that blunt force

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trauma occurred to Robert’s left lower lip and left eye and that it occurred during life. Dr.

Besant­Matthews also stated that Robert had different abrasions on his head as compared with

other parts of his body. He averred that it was unlikely Robert struck his face on any object in

the lake because of Robert’s likely slow descent and that it was unlikely Robert was dragged

along the bottom of the lake given the absence of scratch marks on certain parts of Robert’s

body. Dr. Besant­Matthews opined that scratches on Robert’s cheek were consistent with

fingernail marks. Dr. Besant­Matthews further indicated that Robert was likely alive when he

encountered blunt force trauma and that it was “highly unlikely” that the trauma occurred

underwater. Dr. Besant­Matthews also opined that the abrasions on Robert’s face appeared to

have had time to dry, which indicated that they occurred out of water. He also stated that there

was a neck injury that was “consistent” with having been strangled from behind. Dr. Besant­

Matthews opined that the injuries were not caused by aquatic predation.

Dr. Besant­Matthews’s testimony did not create an issue of fact for a jury because it

would not have allowed a jury to conclude that defendants’ conduct was more likely than not the

cause of Robert’s injuries. Dr. Besant­Matthews agreed that drowning victims can sustain

damages underwater. He did not know what happened to Robert’s body from the time that it

went missing until the time it was recovered. Dr. Besant­Matthews agreed that he had no

opinion as to what caused the blunt force trauma in this case and that it was difficult to decipher

when a deceased person came into contact with something as opposed to being struck by

something. He was “not sure” regarding the source of Robert’s injuries and had no opinion as to

whether defendants had any connection to the blunt force trauma. In short, viewed in a light

most favorable to plaintiff, Dr. Besant­Matthews’s testimony did not connect defendants to an

assault or battery. There was no evidence that defendants committed an assault or battery, and

Dr. Besant­Matthews could not testify that defendants caused Robert’s injuries. Therefore, Dr.

Besant­Matthews’s testimony, at best, showed that defendants “may have caused his injuries.”

Craig, 471 Mich at 87. And “[o]ur case law requires more than a mere possibility or a plausible

explanation.” Id. In this case, the testimony of Dr. Besant­Matthews was merely consistent with

a possible assault and battery. It did not, however, amount to “substantial evidence from which a

jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s

injuries would not have occurred.” Skinner, 445 Mich at 164­165.

Plaintiff contends that there are “multiple material facts in dispute.” Plaintiff cites the

opinions of Dr. Besant­Matthews, Dr. Ng, and Dr. Fletemeyer in support of her position that

there was evidence showing that Robert’s injuries occurred before he became submerged. But

evidence that the injuries occurred above water did not make it more probable than not that

defendants assaulted and battered Robert. See id. Instead, this evidence merely showed that

defendants “may have caused [Robert’s] injuries,” and therefore, plaintiff’s theory was simply an

explanation “consistent with known facts or conditions, but not deducible from them as a

reasonable inference.” Id. For a jury to conclude that defendants perpetrated intentional torts

against Robert based on evidence that the injuries occurred above water, the jury would have to

engage in pure speculation. Moreover, “[i]t is axiomatic in logic and in science that correlation

is not causation,” and “it is error to infer that A causes B from the mere fact that A and B occur

together.” Craig, 471 Mich at 93.

Plaintiff also contends that there is a factual dispute regarding whether Robert’s injuries

occurred while he was alive. Plaintiff notes that Dr. Besant­Matthews testified that Robert’s

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injuries showed evidence of drying before he was submerged in water, that Robert was likely

alive when he encountered blunt force trauma, and that it was “highly improbable” that Robert’s

swollen lip occurred after he entered the water. Plaintiff also asserts that Dr. Ng testified that the

subconjunctival hemorrhage occurred while Robert was alive and that Dr. DeJong noted swelling

in Robert’s lip. Viewing this evidence in a light most favorable to plaintiff, even if Robert

suffered injuries while he was alive, we agree this does not support the conclusion that

defendants caused the injuries. Dr. DeJong testified that a drowning victim may remain alive for

a few minutes before he or she becomes unconscious and dies. Therefore, the evidence showed

that it was just as likely that Robert suffered the injuries while he was submerged and remained

alive as it was that defendants inflicted the injuries upon Robert.

Plaintiff also contends that there was a factual dispute regarding whether the injuries

were the “result of blunt force trauma/batteries.” Plaintiff asserts that Dr. Besant­Matthews, Dr.

Ng, and Dr. DeJong supplied evidence showing that Robert suffered blunt force trauma.

However, none of the experts identified the source of any blunt force trauma, and none of the

experts could link the blunt force trauma to defendants. Therefore, evidence that Robert

sustained injuries from blunt force trauma would not allow a juror to conclude that more likely

than not defendants assaulted and battered Robert. See Skinner, 445 Mich at 164­165.

Plaintiff contends that there was evidence supporting each element of the alleged

intentional torts. Plaintiff cites evidence that Robert’s chin injury was “more likely than not, the

result of an intentional act.” But as noted above, Dr. Besant­Matthews’s testimony did not create

an issue of fact for the jury, so this argument fails for the same reasons discussed earlier.

Finally, plaintiff argues that the trial court erred by adopting defendants’ recitation of the

facts, viewing forensic pathology evidence in a light most favorable to defendants, offering

theories as to causation during the motion hearing, disregarding evidence consistent with

plaintiff’s theory of liability, and making credibility assessments. These arguments are devoid of

merit. The trial court articulated and applied the proper standard for evaluating a motion for

summary disposition. To the extent plaintiff takes issue with statements the trial court made

during oral argument, “a court speaks through its written orders and judgments, not through its

oral pronouncements.” In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009).

And to the extent that plaintiff contends that the trial court erred in weighing the evidence or in

evaluating the expert witness testimony, a trial court’s grant or denial of a motion for summary

disposition is reviewed de novo. Maiden, 461 Mich at 118. As discussed above, there were no

genuine issues of material fact based on the record submitted to the trial court. Therefore,

assuming arguendo that the trial court erred as plaintiff contends, it nevertheless did not err in

granting summary disposition under MCR 2.116(C)(10) in favor of defendants. See Gleason v

Mich Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A trial court’s ruling may be

upheld on appeal where the right result issued, albeit for the wrong reason.”).

In sum, viewed in a light most favorable to plaintiff, we conclude that plaintiff’s evidence

showed that an assault or battery or willful and wanton misconduct was no more plausible than

other theories as to the cause of Robert’s injuries. Essentially, while there was conflicting

evidence with respect to the timing, nature, and source of the injuries, a review of the record

indicates that the evidence would not allow a rational juror to conclude that an intentional tort or

willful and wanton misconduct by defendants more likely than not caused Robert’s injuries. As

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such, plaintiff failed to establish the existence of a genuine issue of material fact, and the trial

court did not err in granting summary disposition in favor of defendants. See Craig, 471 Mich at

87­88; Skinner, 445 Mich at 165­165.

B. EXPERT WITNESSES

Next, plaintiff argues that the trial court abused its discretion in denying her motion to

exclude certain expert witnesses, including: Officer Dunham, Gregory Dahl, a rescue diver who

recovered Robert’s body, and Molly Essebaggers, an investigator with the medical examiner’s

office. Plaintiff also maintains that the trial court abused its discretion in excluding the

testimony of Dr. Robert Abbott, Ph.D., plaintiff’s proposed fisheries expert.1 These arguments

lack merit.

We review for an abuse of discretion a trial court’s decision to admit or exclude evidence,

Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010), and review de novo a preliminary

question of law regarding the admissibility of evidence under a statute or rule of evidence,

Waknin v Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002).

MRE 702 governs the admissibility of expert witness testimony in Michigan, and it

provides:

If the court determines that scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise if

(1) the testimony is based on sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.

MRE 702 incorporates the standards of reliability that the United States Supreme Court

established in Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469

(1993), when interpreting the equivalent federal rule of evidence. See Gilbert v DaimlerChrysler

Corp, 470 Mich 749, 781­782; 685 NW2d 391 (2004). Under Daubert, a trial court must

“determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge

that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 US

at 592. “This entails a preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue.” Id. at 592­593. Some factors that bear on the trial

court’s inquiry include: (1) whether the scientific knowledge or technique can, and has been,

tested; (2) “whether the theory or technique has been subjected to peer review and publication”;

1

On cross­appeal, defendants argue that the trial court erred in denying their motions to exclude

the testimony of Dr. Ng and Dr. Fletemeyer under MRE 702. However, given our conclusion

that the trial court did not err in granting summary disposition in favor of defendants, we need

not address these issues.

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(3) “the known or potential rate of error”; (4) “the existence and maintenance of standards

controlling the technique’s operation”; and (5) whether there is “general acceptance” of the

scientific technique. Id. at 593­594. However, these factors are not exclusive; instead, “[m]any

factors will bear on the inquiry . . . .” Id. at 593. MCL 600.2955 also governs expert scientific

testimony in tort actions and sets forth factors for the trial court’s consideration.

A trial court is not necessarily required to hold a Daubert hearing to assess the

qualifications of an expert under MRE 702. “[T]he Daubert factors may or may not be relevant

in assessing reliability, depending on the nature of the issue, the expert’s expertise, and the

subject of the expert’s testimony.” Elher v Misra, 499 Mich 11, 24­25; 878 NW2d 790 (2016).

Rather, “it is within a trial court’s discretion how to determine reliability.” Id. at 25.

1. OFFICER DUNHAM, ESSEBAGGERS, AND DAHL

The trial court did not err in denying plaintiff’s motion with respect to Officer Dunham,

Essebaggers, and Dahl. Contrary to plaintiff’s argument on appeal, the trial court did not qualify

these witnesses as experts. Rather, the trial court held that it would reserve ruling on the

witnesses’ qualifications until trial when plaintiff could raise a foundational objection. The trial

court indicated that it would then determine the proper scope of testimony that each witness

could offer. This did not amount to error. The trial court noted that it reviewed some of the

deposition testimony of the witnesses. This was sufficient to allow the trial court to reserve

ruling on whether the witnesses could offer expert testimony under MRE 702.

Moreover, even if the witnesses failed to produce expert reports, failed to review reports,

and failed to specify the expert opinion that they would render, it was apparent from the

deposition transcripts that each witness had extensive experience in their respective fields.

Pursuant to MRE 702, an expert witness can be qualified as an expert based on his or her

“knowledge, skill, experience, training, or education.” (Emphasis added.) Therefore, the trial

court did not abuse its discretion in holding that the witnesses could potentially offer expert

testimony at trial limited to their area of expertise. Furthermore, Officer Dunham, Essebaggers,

and Dahl did not propose to offer scientific testimony; therefore, to the extent that plaintiff cites

MCL 600.2955 in support of her argument, the argument lacks merit.

Finally, the trial court did not view these witnesses as experts in granting defendants’

motions for summary disposition. Accordingly, given that the trial court did not err in granting

summary disposition in favor of defendants, plaintiff cannot establish error requiring reversal

with respect to Officer Dunham, Essebaggers, and Dahl.

2. DR. ABBOTT

Plaintiff argues that the trial court erred in granting defendants’ motions to exclude Dr.

Abbott. Plaintiff maintains that Dr. Abbott was qualified to offer expert testimony on aquatic

predation; however, plaintiff fails to provide meaningful analysis and does not cite any authority

to support her position. Plaintiff has therefore abandoned this issue for review. See Cheesman v

Williams, 311 Mich App 147, 161; 874 NW2d 385 (2015) (“An appellant may not merely

announce a position then leave it to this Court to discover and rationalize the basis for the

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appellant’s claims.”). Nevertheless, we have examined plaintiff’s argument and conclude that it

lacks merit.

Having reviewed Dr. Abbott’s deposition testimony, we conclude that the trial court did

not abuse its discretion in excluding the proposed testimony under MRE 702. Dr. Abbott’s

methodology and reasoning underlying his opinions were not based on sufficient facts and data,

and he did not have any experience in identifying the source of an injury on a deceased body.

Dr. Abbott had a Ph.D. in fisheries; his experience included working on various fisheries

development, aquaculture, and environmental impact projects. He specialized in compelling fish

to respond and react to sound stimuli. This did not qualify Dr. Abbott to offer an expert opinion

regarding the source of an injury on a deceased body.

Moreover, the methodology Dr. Abbott utilized in this case was insufficient to show

whether Dr. Abbott’s conclusions could be or had been tested. Furthermore, there was

insufficient information regarding whether Dr. Abbott employed a technique that had been

subjected to peer review or publication; there was no information regarding any known or

potential error rates; there was insufficient information regarding the standards Dr. Abbott used

to arrive at his opinions. In addition, plaintiff does not cite any evidence to support that Dr.

Abbott’s methods were generally accepted within the scientific community. See Daubert, 509

US at 593­594. Accordingly, the trial court did not abuse its discretion in excluding the

proposed testimony under MRE 702.

In addition, even if the trial court erred in excluding the testimony, we find nothing in Dr.

Abbott’s exhaustive two­volume deposition that would have allowed a jury to conclude that it

was more likely than not that defendants assaulted and battered Robert. At best, Dr. Abbott

would have opined that the injuries were not caused by aquatic predation. This testimony would

have been duplicative to the testimony offered by Dr. Ng and Dr. Besant­Matthews, both of

whom testified that Robert suffered blunt force trauma. Therefore, there is nothing about Dr.

Abbott’s testimony that would have changed the result of the trial court’s ruling on the motions

for summary disposition.

C. AMENDMENT OF COMPLAINT

Next, plaintiff argues that the trial court erred by denying her motion for leave to amend

the complaint to add additional claims. “We review a denial of leave to amend a complaint for

an abuse of discretion.” Casey v Auto Owners Ins Co, 273 Mich App 388, 400­401; 729 NW2d

277 (2006). A trial court abuses its discretion when its decision falls outside the range of

reasoned and principled outcomes. Gilbert, 470 Mich at 761­762.

MCR 2.118 governs amendment of a complaint, and it provides, in relevant part, as

follows:

(1) A party may amend a pleading once as a matter of course within 14

days after being served with a responsive pleading by an adverse party, or within

14 days after serving the pleading if it does not require a responsive pleading.

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(2) Except as provided in subrule (A)(1), a party may amend a pleading

only by leave of the court or by written consent of the adverse party. Leave shall

be freely given when justice so requires.

A trial court may deny a motion to amend for the follow reasons:

(1) undue delay, (2) bad faith or dilatory motive on the part of the movant,

(3) repeated failure to cure deficiencies by amendments previously allowed, (4)

undue prejudice to the opposing party by virtue of allowance of the amendment,

or (5) futility of the amendment. Absent bad faith or actual prejudice to the

opposing party, delay, alone, does not warrant denial of a motion to amend.

[Diem v Sallie Mae Home Loans, Inc, 307 Mich App 204, 216; 859 NW2d 238

(2014) (quotation marks and citation omitted).]

On August 11, 2017, plaintiff moved for leave to amend the complaint to add claims of

concert of action, civil conspiracy, false imprisonment, fraudulent concealment, and intentional

infliction of emotional distress. The trial court denied plaintiff leave to amend the complaint,

finding that the amendment was not supported by the evidence.

The trial court did not abuse its discretion in denying plaintiff leave to amend the

complaint. Initially, there was undue delay in moving to amend the complaint. Plaintiff

commenced this suit on February 12, 2016; discovery was extended and was set to close on

August 29, 2017. Plaintiff moved to amend the complaint on August 11, 2017, more than 18

months after commencing the action and less than three weeks before discovery was scheduled

to close. Plaintiff failed to explain why it took 18 months to realize that she had the additional

claims. A majority of the “newly” discovered evidence unearthed during discovery concerned

the conduct of the first responders that plaintiff attempted to add to the proceeding. There was

no reason why plaintiff waited until shortly before discovery was set to close to move to add

additional claims against defendants.

More importantly, it was evident from plaintiff’s motion that the proposed amendment

was futile. Plaintiff sought to add claims of civil conspiracy, concert of action, false

imprisonment, and intentional infliction of emotional distress. Plaintiff failed to cite any

evidence in support of these claims. The commonality of all of these additional claims is that

each claim required proof of intentional conduct. For the same reasons discussed above with

respect to the trial court’s ruling on the motion for summary disposition, addition of these extra

claims would have been futile. There was no evidence that defendants engaged in any

intentional conduct that resulted in Robert’s injuries or death. Plaintiff’s theories amounted to

nothing more than speculation and conjecture, and plaintiff failed to cite any evidence that would

allow a rational jury to conclude that it was more likely than not that defendants’ intentional acts

caused Robert’s injuries and death.

In the motion, plaintiff noted various minor inconsistencies in the voluminous record to

argue that the additional claims were meritorious. However, the trial court did not abuse its

discretion in finding that these inconsistencies did not amount to evidence of fraudulent

concealment, concert of action, or intentional tortious conduct on the part of defendants. The

evidence would not have allowed a rational juror to conclude “that more likely than not, but for

­13­

the defendant[s’] conduct, the plaintiff’s injuries would not have occurred.” Skinner, 445 Mich

at 164. Accordingly, the trial court did not abuse its discretion in concluding that amendment of

the complaint was futile and in denying leave to amend. See Diem, 307 Mich App at 216.

III. DOCKET NO. 343236

A. FRIVOLOUS COMPLAINT

Next, in Docket No. 343236, plaintiff contends that the trial court erred in imposing

sanctions for filing a frivolous complaint.

“We review for clear error the circuit court’s decision to impose sanctions on the ground

that an action was frivolous within the meaning of . . . MCL 600.2591.” Ladd v Motor City

Plastics Co, 303 Mich App 83, 103; 842 NW2d 388 (2013). Similarly, “[w]e review for clear

error the trial court’s determination whether to impose sanctions under MCR 2.114.” Guerrero v

Smith, 280 Mich App 647, 677; 761 NW2d 723 (2008). “A decision is clearly erroneous when,

although there may be evidence to support it, we are left with a definite and firm conviction that

a mistake has been made.” Id.

The trial court granted defendants’ motions for sanctions pursuant to MCR 2.1142 and

MCR 2.625. MCR 2.114(C) required that “[e]very document of a party represented by an

attorney shall be signed by at least one attorney of record.” MCR 2.114(D) provided in relevant

part that the signature of an attorney “constitutes a certification by the signer” that “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 good­faith argument for the

extension, modification, or reversal of existing law.” MCR 2.114(E) mandated sanctions for a

violation of MCR 2.114.

In her brief on appeal, plaintiff contends that counsel engaged in a “reasonable inquiry”

before signing the complaint. Defendants argue that, irrespective of whether plaintiff’s counsel

engaged in a reasonable inquiry, the complaint was not “well grounded in fact” in violation of

MCR 2.114(D). The parties’ focus on MCR 2.114(D) is misplaced. While the trial court cited

MCR 2.114(D), our review of the language in the trial court’s opinion and order reveals that the

trial court awarded sanctions based on its finding that the complaint was frivolous in violation of

MCR 2.114(F) and MCL 600.2591. Therefore, resolution of these issues turns on whether the

trial court clearly erred in finding that the complaint was “frivolous.” See Ladd, 303 Mich App

at 83.

“Awards of costs and attorney fees are recoverable only where specifically authorized by

a statute, a court rule, or a recognized exception.” Phinney v Perlmutter, 222 Mich App 513,

2

MCR 2.114 has been repealed effective September 1, 2018. Administrative Order No.

2002­31, 501 Mich cxx, cxxxvii (2018). The substantive provisions of MCR 2.114 have

been incorporated into MCR 1.109. Because MCR 2.114 was in effect at the time the trial

court awarded sanctions, we analyze the issue under that rule.

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560; 564 NW2d 532 (1997), overruled in part on other grounds by Garg v Macomb Co

Community Mental Health Servs, 472 Mich 263; 696 NW2d 646 (2005). MCL 600.2591 grants,

and MCR 2.114(F) had granted, “a court the authority to award sanctions in the form of attorney

fees and costs to a prevailing party if an action or defense is deemed ‘frivolous.’ ” Keinz v Keinz,

290 Mich App 137, 141; 799 NW2d 576 (2010). MCL 600.2591(3) defines “frivolous” as

follows:

(a) “Frivolous” means that at least 1 of the following conditions is met:

(i) The party’s primary purpose in initiating the action or asserting the

defense was to harass, embarrass, or injure the prevailing party.

(ii) The party had no reasonable basis to believe that the facts underlying

that party’s legal position were in fact true.

(iii) The party’s legal position was devoid of arguable legal merit.

“The determination whether a claim or defense is frivolous must be based on the

circumstances at the time it was asserted.” Robert A Hansen Family Trust v FGH Indus, LLC,

279 Mich App 468, 486; 760 NW2d 526 (2008) (quotation marks and citation omitted).

Moreover, “the mere fact that plaintiff did not ultimately prevail on its legal position does not

render its filing of the complaint . . . frivolous.” Id. at 487.

“The frivolous claims provisions impose an affirmative duty on each attorney to conduct

a reasonable inquiry into the factual and legal viability of a pleading before it is signed.”

Attorney General v Harkins, 257 Mich App 564, 576; 669 NW2d 296 (2003), overruled in part

on other grounds by Garg, 472 Mich 263 (2005). “The reasonableness of the inquiry is

determined by an objective standard.” Id. “The focus is on the efforts taken to investigate a

claim before filing suit, and a determination of reasonable inquiry depends on the facts and

circumstances of the case.” Id. Moreover, “[t]he attorney’s subjective good faith is irrelevant”

and “[t]hat the alleged facts are later discovered to be untrue does not invalidate a prior

reasonable inquiry.” Id.

In this case, plaintiff filed the complaint on February 12, 2016. In the facts portion of her

complaint, plaintiff alleged “upon information and belief” that defendants and Robert had a

dispute while they were on the sailboat and that as a result of the dispute, “Defendants held,

punched, kicked, and/or attacked Robert Muhammad.” Plaintiff alleged that as a result of

defendants’ attack, Robert sustained injuries to his face and “became unconscious and

subsequently died.” In alleging her claim of battery, plaintiff asserted that defendants “held

Robert Muhammad down and struck him about the face and head area with his [sic] fists and

with an object.” Plaintiff alleged that the “punches to the face caused swelling and bleeding to

Robert Muhammad’s lip” and that “[t]he object he [sic] struck Robert Muhammad with caused

abrasions to his forehead and eyelid.” Plaintiff claimed that Robert suffered “extreme mental

anguish and physical pain” and that “[a]s a direct and proximate result of Defendants[’] conduct,

Robert Muhammad was knocked unconscious and subsequently died.” Plaintiff alleged that

defendants also made “intentional and unlawful threats to do bodily injury to Robert Muhammad

­15­

by force” and that defendants’ actions created a “well­founded fear of imminent peril to Robert

Muhammad.”

The facts and evidence available at the time the complaint was filed showed that there

was “[n]o reasonable basis to believe that the facts underlying [plaintiff’s] legal position were in

fact true,” and, instead, a reasonable inquiry based on an objective standard would have revealed

that plaintiff’s legal position was “devoid of legal merit.” MCL 600.2591(3). Accordingly, the

trial court did not clearly err in finding that plaintiff’s claims were frivolous.

Before the complaint was filed, a reasonable inquiry into the facts available at that time

would have shown that there was not even a scintilla of evidence supporting the contention that

defendants assaulted, battered, and caused Robert’s death. The only two expert pathologists to

have examined Robert’s body concluded that he died of an accidental drowning. Dr. DeJong

completed an autopsy and opined that Robert died from an accidental drowning. At the time she

examined the body, Dr. DeJong was aware that Robert’s family was concerned about foul play.

Dr. DeJong did not find any evidence of foul play and concluded in her report that Robert’s

injuries were consistent with an accidental drowning.

Dr. Spitz, an experienced forensic pathologist who was retained by plaintiff to obtain a

second opinion as to the cause and manner of Robert’s death, arrived at the same conclusion.

Like Dr. DeJong, Dr. Spitz was aware that Robert’s family suspected an assault, and

representatives from the Nation of Islam were present during Dr. Spitz’s autopsy. Dr. Spitz

opined that Robert died of an accidental drowning. Dr. Spitz discovered evidence of “foam” in

the lungs, which was indicative that water was inhaled while Robert was alive. Dr. Spitz found

that the body exhibited “minor, superficial injuries” that “suggest that aquatic wildlife produced

the lesions in question.” Dr. Spitz concluded that “an assault on Mr. Mohammad [sic] is unlikely

and that his death was accidental.”

In addition to the forensic pathologists, Officer Dunham concluded his investigation into

the incident and completed thorough supplemental reports in which he fully discussed the

evidence and acknowledged the concerns of Robert’s family. And Officer Dunham determined

that Robert died of an accidental drowning.

Apart from the lead investigator and the forensic pathologists, plaintiff and witnesses

associated with plaintiff did not have any evidence that defendants assaulted Robert. Sultan and

Ronald Muhammad, representatives of the Nation of Islam, investigated Robert’s death, and

neither individual had any evidence indicating that defendants assaulted and battered Robert.

Similarly, plaintiff admitted during her deposition that, apart from her suspicions, she did not

have evidence to support her allegations. She agreed that the idea was to file the complaint in an

effort to continue the investigation.

In responding to defendants’ motions for sanctions, plaintiff argued that plaintiff’s

counsel consulted with Dr. Besant­Matthews and that Dr. Besant­Matthews agreed to testify as

an expert witness on behalf of plaintiff. Plaintiff maintained that plaintiff’s counsel consulted

with Dr. Besant­Matthews before filing the lawsuit. Plaintiff asserted that Dr. Besant­Matthews

reviewed photographs of Robert’s body and the Muskegon County Sheriff’s report and “came to

­16­

the independent and reasoned opinion that Mr. Muhammad’s injuries were inconsistent with an

accidental drowning.”

It is unclear what materials Dr. Besant­Matthews reviewed and whether he formulated an

opinion before plaintiff filed the complaint. Dr. Besant­Matthews completed his original report

in this case on October 22, 2016, nearly eight months after plaintiff filed the complaint. In that

report, Dr. Besant­Matthews indicated that he first received materials from plaintiff’s counsel on

June 24, 2016, over four months after plaintiff filed the complaint. In her response to

defendants’ motions for sanctions, plaintiff contended that Dr. Besant­Matthews reviewed

photographs and sheriff’s reports and formulated an opinion before she filed the complaint in

February 2016. However, in his October 22, 2016 report, Dr. Besant­Matthews noted that he

received sheriff’s reports from plaintiff’s counsel on June 24, 2016, and that he received

photographs from plaintiff’s counsel on June 30, 2016. This information reveals that Dr. Besant­

Matthews did not review the materials until over four months after plaintiff filed her complaint,

thereby suggesting that plaintiff misrepresented plaintiff’s counsel’s pre­complaint investigation

into the facts.

Irrespective of the timing, even assuming that Dr. Besant­Matthews prepared a report or

informed plaintiff’s counsel of his expert opinion before plaintiff filed the complaint, we note

there was nothing in Dr. Besant­Matthews’ report that provided plaintiff a reasonable basis to

believe that the facts underlying her legal position were in fact true. Dr. Besant­Matthews

concluded that Robert’s facial injuries were “unusual for drowning cases,” and had he been

responsible for the case, he would have “treated the case as a possible homicide, because of blunt

force injury to the left lower lip and left eye during life.” According to Dr. Besant­Matthews,

there were “also differences between the abrasions on the head compared to those scattered on

other parts of the body surface.” Dr. Besant­Matthews further opined that the “relative absence

of maceration” did not support a determination that Robert was submerged for 23 hours.

Dr. Besant­Matthews’ report did not provide plaintiff a reasonable basis to conclude that

defendants held Robert down, attacked him, physically battered him, and caused his death.

Simply because the injuries may have been “unusual” for a drowning case did not reasonably

lead to a conclusion that defendants assaulted and battered Robert. Indeed, at his deposition, Dr.

Besant­Matthews agreed that he had no opinion as to what caused the blunt force trauma in this

case, acknowledging that it was difficult to determine if a deceased person “came into contact

with something as opposed to being struck by something.” He was unable to decipher the source

of Robert’s injuries, and he did not have any opinion as to whether defendants inflicted blunt

force trauma upon Robert. Plaintiff could have learned of this aspect of Dr. Besant­Matthews’

opinions and views by conducting a reasonable inquiry into his findings. Instead, there was no

“reasonable basis to believe that the facts underlying [plaintiff’s] legal position were in fact

true,” and the overwhelming evidence at the time the complaint was filed showed that plaintiff’s

“legal position was devoid of arguable legal merit.” MCL 600.2591(3). The trial court did not

clearly err in finding that plaintiff’s complaint was frivolous.

B. REASONABLENESS OF ATTORNEY FEES AND COSTS

Finally, plaintiff argues that the trial court erred in awarding attorney fees and costs as

part of the sanctions award. We review the reasonableness of a trial court’s award of attorney

­17­

fees and costs for an abuse of discretion. Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472

(2008). “An abuse of discretion occurs when the trial court’s decision is outside the range of

reasonable and principled outcomes.” Id. In addition, “[a] court by definition abuses its

discretion when it makes an error of law.” In re Waters Drainage Dist, 296 Mich App 214, 220;

818 NW2d 478 (2012).

Under the former MCR 2.114, in the event that a trial court found that a claim was

frivolous in violation of MCR 2.114(F), sanctions were mandatory under MCR 2.114(E), which

provided as follows:

If a document is signed in violation of this rule, the court, on the motion of

a party or on its own initiative, shall impose upon the person who signed it, a

represented party, or both, an appropriate sanction, which may include an order to

pay to the other party or parties the amount of the reasonable expenses incurred

because of the filing of the document, including reasonable attorney fees. The

court may not assess punitive damages.

Similarly, MCR 2.625 provides that “if the court finds on motion of a party that an action

or defense was frivolous, costs shall be awarded as provided by MCL 600.2591.” (Emphasis

added.) MCL 600.2591 provides, in relevant part, as follows:

(1) 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.

(2) The amount of costs and fees awarded under this section shall include

all reasonable costs actually incurred by the prevailing party and any costs

allowed by law or by court rule, including court costs and reasonable attorney

fees. [Emphasis added.]

“[T]he burden of proving the reasonableness of the requested fees rests with the party

requesting them.” Smith, 481 Mich at 529. A trial court “may not award attorney fees . . . solely

on the basis of what it perceives to be fair or on equitable principles.” Reed v Reed, 265 Mich

App 131, 166; 693 NW2d 825 (2005). Instead, “[w]hen requested attorney fees are contested, it

is incumbent on the trial court to conduct a hearing to determine what services were actually

rendered, and the reasonableness of those services.” Id. In determining the reasonableness of a

requested fee, a trial court should “consider the totality of special circumstances applicable to the

case at hand.” Smith, 481 Mich at 529. The Michigan Supreme Court has provided the

following nonexclusive factors to guide a trial court in determining the reasonableness of

attorney fees:

(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,

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(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. [Pirgu v United Servs Auto

Ass’n, 499 Mich 269, 282; 884 NW2d 257 (2016).]

1. ATTORNEY FEES

In this case, in determining the reasonableness of the requested fees, the trial court,

without having held an evidentiary hearing, listed the relevant factors set forth in Pirgu and

proceeded to adopt the fee rate requested by Richard Radke, Jr., counsel for defendants Gresley,

Kamps, and Lebon. After finding that Radke’s fee was reasonable, the trial court applied

Radke’s fee rate to all of the other attorneys, multiplying that rate by the amount of hours

counsel for each defendant requested. The trial court awarded all of the hours requested at

Radke’s rate.

The trial court abused its discretion in determining the reasonableness of attorney fees to

award in this case. The Michigan Supreme Court has explained:

In considering the time and labor involved . . . the court must determine

the reasonable number of hours expended by each attorney. The fee applicant

must submit detailed billing records, which the court must examine and opposing

parties may contest for reasonableness. The fee applicant bears the burden of

supporting its claimed hours with evidentiary support. If a factual dispute exists

over the reasonableness of the hours billed or hourly rate claimed by the fee

applicant, the party opposing the fee request is entitled to an evidentiary hearing

to challenge the applicant’s evidence and to present any countervailing evidence.

[Smith, 481 Mich at 532 (emphasis added).]

In this case, the trial court did not hold a hearing to allow plaintiff to contest the

reasonableness of the hours billed or the hourly rate. Instead, after plaintiff challenged the

reasonableness of the requested attorney fees, the trial court engaged in a factual analysis of

whether Radke’s fee rate was reasonable. The trial court did not make any findings as to the

reasonableness of the hours billed; rather, it simply awarded all of the hours requested by each of

the defense attorneys involved in this case. The trial court did not hold an evidentiary hearing

despite plaintiff’s challenge, and this amounted to error. See id. Therefore, we reverse and

remand for an evidentiary hearing on the reasonableness of the attorney fees.

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2. COSTS

Plaintiff also argues that the trial court erred in awarding costs because there was no

support for the costs and because the trial court did not make a finding with respect to the

reasonableness of the costs. We agree.

After awarding attorney fees, the trial court awarded costs as follows:

As indicated above, defendants are entitled to awards of costs pursuant

to MCR 2.625, and “expenses” pursuant to MCR 2.114. The court accepts all

the “costs and expenses” figures submitted by defendants, expecting that they

are objectively verifiable by receipts, travel re­imbursement claims, etc.

The trial court erred in awarding costs. The trial court did not make findings with respect

to the costs and did not determine if the costs were reasonable. Instead, the trial court simply

accepted the figures that defendants submitted, “expecting that they are objectively verifiable.”

This amounted to error. This Court cannot review the trial court’s findings in regard to the

reasonableness of the costs because the trial court did not make any findings relative to costs. It

is clear that the trial court did not review any of the costs submitted; rather, it simply accepted

the representations of defendants’ attorneys without any independent review. Accordingly,

reversal and remand for an evidentiary hearing is warranted.

IV. CONCLUSION

In Docket No. 341745, we affirm the trial court’s order granting summary disposition in

favor of defendants. In Docket No. 343236, we reverse the trial court’s order awarding attorney

fees and costs and remand for further proceedings consistent with this opinion. We do not retain

jurisdiction. No party having fully prevailed on appeal, we decline to award taxable costs under

MCR 7.219.

/s/ Michael J. Riordan

/s/ Jane E. Markey

/s/ Anica Letica

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