# Cedric Richardson v. Bridgett Wright

> Michigan Court of Appeals · January 25, 2024

URL: https://www.frixlaw.com/law-library/cases/9927110

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** January 25, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9927110

## How later opinions describe it (automated extraction)

- recognizing that a litigant cannot concede an issue before the trial court and take an inconsistent position on appeal
- rejecting proposed definition of “insured person” that would exclude coverage of biological children, but not stepchildren

## Opinion text

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

CEDRIC RICHARDSON, UNPUBLISHED
January 25, 2024
Plaintiff-Appellee,

v Nos. 361839; 362999
Wayne Trial court
BRIDGETT WRIGHT, also known as BRIDGET LC No. 21-010834-CH
LAMAR,

Defendant-Appellant.

BRIDGETT WRIGHT,

Plaintiff-Appellant,

v No. 361841
Wayne Trial court
CEDRIC RICHARDSON, LC No. 22-004695-CH

Defendant-Appellee.

Before: CAVANAGH, P.J., and RICK and PATEL, JJ.

PER CURIAM.

In these consolidated appeals,1 appellant Bridgett Wright brings several claims against
appellee Cedric Richardson. In Docket No. 361839, Wright appeals by right the trial court’s order
granting sanctions under MCL 600.2591 and summary disposition under MCR 2.116(C)(10) in
favor of Richardson. In Docket No. 361841, she appeals an order of dismissal. Finally, in Docket

1
Richardson v Wright, unpublished order of the Court of Appeals, entered May 9, 2023 (Docket
Nos. 361839, 361841, and 362999).

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No. 363999, she appeals an order determining the reasonable amount of sanctions. We affirm in
part, reverse in part, and remand for further proceedings.

I. FACTUAL BACKGROUND

Around July 21, 2021, the parties entered into a Purchase Agreement under which
Richardson agreed to purchase certain real property from Wright, including a residence located in
Van Buren Township. Richardson was represented by a real-estate agent of Coldwell Banker Weir
and Manuel (CBWM), Dawn M. Palmer, who created the Purchase Agreement using CBWM’s
standard purchase agreement form. In essence, this required Palmer to fill in the blanks of the
Purchase Agreement, as applicable. Wright’s husband, also a real-estate agent, represented her in
the deal.

A number of provisions in the purchase agreement are relevant to this appeal. Under
Paragraph 2 of the Purchase Agreement, the parties agreed that Richardson would pay $449,000
for the house, and that in return, Wright would “convey marketable title to [Richardson] by
Warranty Deed, subject to existing building and use restrictions, easements, and zoning ordinances
of record.” Paragraph 3 of the Purchase Agreement indicated that the method of payment was a
cash sale subject to a new mortgage for 90% of the sale price. Paragraph 6 required an earnest
money deposit of $5,000, payable within four days after Wright accepted the offer from
Richardson, although an addendum signed the same day increased the earnest money deposit from
$5,000 to $7,500. Additionally, under Paragraph 40, titled “Other Terms and Conditions,”
Richardson’s agent included the following language:

If the appraisal comes in lower that [sic] the purchase price, Purchaser will pay
$5,000.00 over the appraised price up to the purchase price of $449,000.00.

Paragraph 30 provided that, “[i]n the event of default by Seller hereunder, the Buyer may, at
Buyer’s option, elect to specifically enforce the terms herein or demand, and be entitled to, a refund
of the entire earnest money deposit in full termination of this Agreement, and this shall be Buyer’s
sole remedy.” On the same day as entering into the Purchase Agreement, Richardson remitted the
earnest money deposit via a check for $7,500 written to CBWM, to be held in trust in accordance
with the Purchase Agreement.2

On August 5, 2021, Jamel Anderson, of Jayco Real Estate Services, Inc., submitted an
appraisal on behalf of the lender. The appraisal noted that no updates had been made to the
property in the prior 15 years and that the property was in “overall average condition.” Using the

2
The check was written from the account of “Imperial Care Services, LLC,” and was not signed
by Richardson. However, the check included the notation, “For Earnest Money 49109 Paloma
[the subject property].”

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sales comparison approach,3 the appraiser valued the property at $405,000 on the basis of three
comparable sales within the last 12 months.

About a week after the appraisal, Richardson’s agent e-mailed Wright’s agent to inform
him that Richardson understood the purchase price of the subject property to be $410,000, given
that the house had been appraised for less than the purchase price. Richardson’s agent indicated
that Richardson expected Wright to honor the Purchase Agreement. Wright’s agent responded
that she could not agree to that price and, in a series of e-mails, sought to terminate the Purchase
Agreement.

Consequently, Richardson filed a complaint against Wright, alleging breach of contract
and seeking specific performance of the Purchase Agreement. Five days later, Richardson filed a
notice of lis pendens with the court. Approximately a week after that, the trial court entered a
temporary restraining order prohibiting Wright from selling or marketing the property. Eventually,
Wright answered the complaint and generally denied liability. She asserted that the “purported
appraisal supplied by Plaintiff raises significant questions of accuracy, credibility, bias and
authenticity[.]” Wright also raised multiple defenses, including that Richardson materially
breached the Purchase Agreement first and that his claim was barred by reason of “fraud, unclean
hands, collusion and/or conspiracy.”

After several months of discovery, Richardson moved for summary disposition under
MCR 2.116(C)(10), and for sanctions under MCL 600.2591(1), on the basis that Wright’s defenses
were frivolous. In his brief in support, Richardson argued that the parties entered into a valid
binding contract for the sale of the subject property and that Wright breached that contract by
refusing to sell the property for the agreed-upon price.

Wright responded with several different arguments. She agreed that a valid contract
existed, but asserted that summary disposition was not proper because Paragraph 40, at a
minimum, was ambiguous, requiring the matter to be put before a jury. Wright also argued that
Richardson materially breached the Purchase Agreement first, and that he failed to personally pay
the security deposit. Wright added that the Purchase Agreement was unenforceable because
Paragraph 40 was an illusory promise because it allowed Richardson “to use any appraisal, even
one ordered and paid for by himself or his agent . . . to lower the agreed upon purchase price in the
[Purchase Agreement] to an unlimited degree.” Wright continued to allege that Richardson had
colluded with his agents—namely his realtor, the appraiser, and the mortgage officer—to defraud
her and purchase the property at an artificially deflated price.

A week before the motion hearing, Wright filed a separate complaint against Richardson,
alleging slander of title and statutory false encumbrance, and seeking to quiet title. At the motion

3
The “sales comparison approach” is a method of valuing property that uses “an analysis of
comparable sales, contract sales, and listings of properties that are the most comparable to the
subject property.” Fannie-Mae, Selling Guide (accessed December 20, 2023).

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hearing, the trial court admonished Wright’s counsel for filing the new complaint, stating that it
was, “wholly inappropriate,” and noting that Wright’s complaint was “a counterclaim . . . this late
in the game of slander of title.” After hearing argument from the parties, the court issued its ruling
from the bench:

According to the terms of the Purchase Agreement, because the appraisal came in
under the 449,000, [Richardson] was to pay the 405 plus the 5,000 for a total
purchase price of 410,000. [Wright] refused to honor the terms of the Purchase
Agreement by refusing to sell the property for $410,000.

* * *

Paragraph 30, the Purchase Agreement provides that in the event of default
by the seller, the buyer may at buyer’s option elect to specifically enforce the terms
herein or demand—and be entitled to a refund of the entire earnest money deposit.

[Richardson] herein pursued Option No. 1 to specifically perform.

* * *

And at the end of the day the Court does find the case is really one of a series of
red herring upon red herring upon red herring.

We’ve got the selection of the appraiser. We’ve got the deposit. We’ve got
the 401k and Plaintiff’s financial status. We’ve got the loan application . . . . I’m
not going to state it, but a deal is a deal is a deal.

There’s been no other appraisal, . . . . We do have an appraisal and the
appraisal provides what it provides, and it came in at 405,000, not 200 or not
$250,000.

And the Court does believe there is no genuine issue of material fact as to
whether [Wright] breached the terms of the Purchase Agreement and . . .
[Richardson] is entitled to specific performance of the contract.

[Wright] has made just a series of I call them red herrings, we can also label
them . . . as baseless claims that there’s some issue with the appraisal. [Wright] has
provided absolutely no factual or documented support that the appraisal is somehow
faulty, and for those reasons and as more fully set forth in [Richardson]’s brief the
Court is going to grant the Motion for Summary Disposition.

As to the new case the Court doesn’t have the case number handy in front
of me, the Court is going to grant -- is going to dismiss same and likewise grant
summary disposition for the following reasons.

First of all the Court finds it to be improperly filed. The Court finds it to be
untimely filed. The Court finds it to be frivolous and meant to harass. And the
Court does believe that in light of what the Court just did in the underlying first

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case that it is moot and will be dismissing that case with prejudice, as well as the
underlying case with prejudice finding it to be frivolous and entitling [Richardson]
to costs as to that matter.

In response to a request for clarification by Richardson’s counsel, the trial court also
indicated it was granting sanctions:

The Court’s granting it. If this case isn’t frivolous, there’s no case that would meet
the standard for frivolous. This is a clear, Paragraph 40, deal is a deal. We’ve been
litigating this case for however many months over something that a 12 year old
could read and understand about an appraisal and the $5,000 provision. It’s
frivolous, you’re entitled to sanctions and costs.

Thereafter, the trial court entered a written order granting Richardson’s motion for
summary disposition. The court ordered that the Purchase Agreement remain in effect and
indicated that the purchase price of the property was $410,000. The court further concluded that
Richardson was entitled to specific performance of the contract, as well as costs and attorney fees
under MCL 600.2591. Finally, the court entered a written order dismissing Wright’s complaint
with prejudice for the reasons stated on the record.

After entry of the summary disposition and sanctions order, Richardson filed a motion to
determine the amount of sanctions. He initially sought approximately $22,000 in fees and costs
and attached his counsel’s affidavit of fees and costs in support, which detailed the fees that were
incurred for the work performed. Wright raised 14 objections in response, primarily asserting that
certain services were unnecessary and that Richardson had improperly included appellate fees in
his estimate. Richardson conceded that some appellate fees had been improperly included, and
corrected the amount sought in a supplemental reply. He also added additional fees that had been
incurred between the time of the original motion and his reply, for a total of $27,267.17.

In the interim, Wright refused to abide by the trial court’s summary disposition order
requiring her to specifically perform under the Purchase Agreement and close the sale. After two
show cause hearings, the trial court entered a default judgment against her. The default judgment
mandated that the transfer of the property be recorded with the Wayne County Register of Deeds
in the subject property’s chain of title. It further permitted Richardson’s attorney to sign the
documents necessary to effectuate the sale on behalf of Wright, and required Wright to pay
Richardson $5,000 “for her failure to sign the closing documents for the Subject Property ordered
by this Court.”

A day after entry of the default judgment, the trial court held a hearing to determine the
amount of sanctions, as Wright had additionally sought a setoff of the $5,000 fine against the
sanctions award. After oral argument, the trial court stated that it was awarding Richardson
$26,967.17 in reasonable attorney fees and costs.4 After reciting the test for arriving at a

4
This number reflected deductions for appellate fees in the original motion and an additional $275
for appellate fees that Richardson’s counsel admitted had been improperly included in the
supplemental reply.

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reasonable fee under Smith v Khouri, 481 Mich 519, 531-532; 751 NW2d 472 (2008), and Pirgu
v United Servs Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016), the trial court first found
that the rate requested was reasonable, noting that it was below the median number sought by real-
estate attorneys within the geographic area. With respect to the hours expended, the court
reasoned:

Under the Smith case, once a reasonable hourly rate is determined by the
Court, the hourly rate should be multiplied by the reasonable number of hours
expended. [Richardson’s counsel] has attached an affidavit of cost[s] and fees and
has updated same, and the Court concludes that the number of hours expended in
connection with this case is reasonable and rejects any suggestion that the hours
were duplicative or unnecessary.

Having arrived at a baseline figure, the trial court considered the Pirgu factors, but did not make
any adjustments.

Turning to the $5,000 fine, the trial court denied Wright’s request to set off the fine against
the award of reasonable attorney fees and costs. The court reasoned that that sanction had “nothing
to do with attorney fees” and “was an exercise of the Court’s contempt powers for a clear violation
of a duly entered and non-stayed order of this Court.” Several days later, the trial court entered a
written order granting Richardson’s motion for sanctions under MCL 600.2591(1), and awarding
him $26,967.17 in attorney fees and costs incurred through August 12, 2022.

II. ANALYSIS

A. DOCKET NOS. 361839 AND 361841

In Docket Nos. 361839 and 361841, Wright raises claims related to the trial court’s grant
of summary disposition in favor of Richardson, arguing that the Purchase Agreement was either
unenforceable or ambiguous and that specific performance was an improper remedy. She
additionally claims that no grounds for sanctions existed under MCL 600.2591.

This Court reviews de novo a trial court’s decision on a motion for summary disposition
under MCR 2.116(C)(10). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999). A party is entitled
to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material
fact, and the moving party is entitled to judgment . . . as a matter of law.” Morelli v City of Madison
Hts, 315 Mich App 699, 702; 890 NW2d 878 (2016).

“The proper interpretation of a contract is a question of law, which this Court reviews de
novo.” Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). In construing
contractual language, this Court’s goal “is to determine the intent of the contracting parties,” the
best indicator of which is the language used. Quality Prod & Concepts Co v Nagel Precision, Inc,
469 Mich 362, 375; 666 NW2d 251 (2003). “This Court examines contractual language and gives
the words their plain and ordinary meanings[,]” Coates v Bastian Bros, Inc, 276 Mich App 498,
503; 741 NW2d 539 (2007), while also giving “effect to every word or phrase as far as
practicable.” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003).
If the language of the contract is unambiguous, then it is “reflective of the parties’ intent as a matter

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of law.” Quality Prod & Concepts Co, 469 Mich at 375. “[U]nambiguous contracts are not open
to judicial construction and must be enforced as written.” Rory v Continental Ins Co, 473 Mich
457, 468; 703 NW2d 23 (2005). A contract is ambiguous if its provisions are capable of more
than one interpretation or its provisions irreconcilably conflict. Klapp, 468 Mich at 467; Coates,
276 Mich App at 503. However, “[c]ourts may not impose an ambiguity on clear contract
language.” Coates, 276 Mich App at 503.

Regarding an award of sanctions for a frivolous defense, this Court reviews for clear error
a trial court’s finding that an action or defense is frivolous. Kitchen v Kitchen, 465 Mich 654, 661;
641 NW2d 245 (2002). “A decision is clearly erroneous where, although there is evidence to
support it, the reviewing court is left with a definite and firm conviction that a mistake has been
made.” Id. at 661-662.

1. ENFORCEABILITY OF THE CONTRACT

According to Wright, the Purchase Agreement is unenforceable because the parties did not
mutually assent to a purchase price because that term was too uncertain. Wright explains that
because the Purchase Agreement sets forth both a firm price and a manner in which the price may
be ascertained on the basis of the appraisal, the Purchase Agreement is inherently indefinite. This
argument, in essence, asserts that the Purchase Agreement is not enforceable because no contract
was ever formed, either due to lack of mutual assent or lack of definite terms. However, Wright
conceded in the trial court that a valid agreement existed. Given that fact, Wright cannot now take
an inconsistent position on appeal. Weiss v Hodge, 223 Mich App 620, 636; 567 NW2d 468 (1997)
(recognizing that a litigant cannot concede an issue before the trial court and take an inconsistent
position on appeal). Moreover, our review of the record shows that Wright did not raise either of
these arguments in the proceedings in the trial court. Michigan follows the “raise or waive” rule
of appellate review, whereby an issue that is not raised in the trial court is waived on appeal.
Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008). Accordingly, we deem these claims
waived, and we will not further consider them.

Wright next argues that the trial court’s interpretation leads to an absurd and unreasonable
result, rendering the Purchase Agreement unenforceable. According to Wright, the trial court’s
attempt to harmonize Paragraphs 2 and 40 resulted in an interpretation wherein the price “can be
literally any amount, plus $5,000[.]” We disagree.

First, Wright’s argument mischaracterizes the record. The trial court did not conclude that
the Purchase Agreement allowed for any amount plus $5,000 to be the purchase price. Rather, the
trial court recognized that Paragraph 2 set the purchase price at $449,000, but that Paragraph 40
required Richardson to pay $5,000 above the appraised price, up to $449,000, if the appraisal came
in lower than the purchase price. Consequently, Wright’s contention that the trial court’s
interpretation was unreasonable by allowing the purchase price to be any amount plus $5,000, is
not supported by the record.

Wright otherwise argues that “no rational seller of real estate would agree to a ‘price’ term
that allows the buyer to pay anything a randomly assigned appraiser says the property is worth
when the purchase agreement clearly states that the ‘Buyer agrees’ to pay a fixed purchase price.”
However, even assuming that a reasonable buyer would not enter into such an agreement, “[a]

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mere judicial assessment of ‘reasonableness’ is an invalid basis upon which to refuse to enforce
contractual provisions. Only recognized traditional contract defenses may be used to avoid the
enforcement of the contract provision.” Rory, 473 Mich at 470.

Indeed, none of the caselaw cited references the invalidation of a contract on the basis that
application of its terms would yield absurd results. Rather, those cases merely rejected a litigant’s
proposed interpretation of a contract on the basis that the interpretation would lead to unreasonable
conditions or an absurd outcome. See, e.g., Bodnar v St John Providence, Inc, 327 Mich App 203,
222-224; 933 NW2d 363 (2019) (rejecting litigant’s interpretation of “current pay rate” to include
overtime and benefits because that term did not contemplate their inclusion, and to require their
inclusion would impose an unreasonable condition); Allstate Ins Co v Tomaszewski, 180 Mich App
616, 619-620; 447 NW2d 849 (1989) (rejecting proposed definition of “insured person” that would
exclude coverage of biological children, but not stepchildren). Accordingly, not only has Wright
failed to demonstrate that the trial court’s interpretation was absurd, she has also failed to cite any
binding authority that unreasonableness renders a contract unenforceable.

Relatedly, Wright alternatively argues that even if the Purchase Agreement is enforceable,
Paragraph 40 of the agreement is ambiguous and its interpretation is a matter for a jury. She posits
that an ambiguity exists because the Purchase Agreement contains a fixed price and a contingent
price that creates an irreconcilable conflict and also because Paragraph 40 does not provide a
process for selecting an appraiser or identify the method of appraisal. We again disagree.

Reading Paragraphs 2 and 40 together does not demonstrate an irreconcilable conflict.
Paragraph 2 sets the purchase price, providing that “Buyer agrees to pay the sum of
[$449,000.00].” Paragraph 40, titled “Other Terms and Conditions,” provides that “[i]f the
appraisal comes in lower [than] the purchase price, Purchaser will pay $5,000.00 over the
appraised price up to the purchase price of $449,000.00.” It is plain that Paragraph 40 contained,
in effect, an exception to the set price in Paragraph 2, which applied only if the appraisal was lower
than the purchase price. In that instance, the purchase price would be the appraisal price plus
$5,000, up to the original sale price of $449,000. If the appraisal was not lower than $449,000,
then Paragraph 40 would not apply, and Richardson would pay the agreed-upon sale price of
$449,000, consistent with Paragraph 2. In this way, Paragraphs 2 and 40 operate harmoniously to
arrive at the appropriate purchase price. Accordingly, because Paragraphs 2 and 40 could each be
given operative effect, there is no inherent, irreconcilable conflict between them.

Wright nevertheless asserts that because the term “appraisal” in Paragraph 40 does not
identify a process for selecting an appraiser or specify the appraisal method to be employed, it is
ambiguous. She explains that it could be interpreted to mean that an independent appraisal should
have been conducted by an appraiser selected by both parties. But contrary to this argument, that
the Purchase Agreement neither defines the term “appraisal,” nor provides a process for selecting
an appraiser or appraisal method, does not render the term ambiguous. See Vushaj v Farm Bureau
Gen Ins Co, 284 Mich App 513, 515; 773 NW2d 758 (2009) (“The mere fact that a term is not
defined in a policy does not render that term ambiguous.”). Additionally, Wright’s interpretation
improperly adds language to the Purchase Agreement that does not exist. See McDonald v Farm
Bureau Ins Co, 480 Mich 191, 199-200; 747 NW2d 811 (2008) (“[I]t has long been the law in this
state that courts are not to rewrite the express terms of contracts.”); Northline Excavating, Inc v

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Livingston Co, 302 Mich App 621, 628; 839 NW2d 693 (2013) (“We cannot read words into the
plain language of a contract.”).

More fundamentally, a fair and contextual reading of Paragraph 40 demonstrates that the
term “appraisal” can only be interpreted to mean one thing. Significantly, the term “appraisal” is
qualified by the term “the,” which is a definite article denoting a particular appraisal, not just any
appraisal. See Barrow v Detroit Election Comm, 301 Mich App 404, 414; 836 NW2d 498 (2013)
(recognizing that the word “the” has a particularizing effect and denotes a specific item not a
general one). Paragraph 3 of the Purchase Agreement made the sale contingent on Richardson’s
ability to secure a mortgage for 90% of the purchase price, and obligated him to initiate a mortgage
application within five days of receipt of Wright’s acceptance. As a matter of common knowledge,
mortgage applications involve an appraisal by the lender. MRE 201(b)5; cf. Fed Bond & Mtg Co
v Burstein, 222 Mich 88, 91-92; 192 NW 549 (1923) (taking judicial notice of common financing
methods for the erection of large buildings). Consequently, absent any other reference to an
appraisal within the Purchase Agreement, the appraisal referred to and contemplated by the parties
in Paragraph 40 must be the appraisal performed by the lender for purposes of Richardson’s loan
application. Wright has failed to demonstrate that a fair reading of the term “the appraisal” lends
itself to more than one meaning.6

In sum, Wright has failed to demonstrate a genuine issue of material fact as to whether the
Purchase Agreement is either unenforceable or ambiguous. Accordingly, we conclude that the
trial court did not err by granting summary disposition in favor of Richardson with respect to his
breach-of-contract claim.

2. SPECIFIC PERFORMANCE

Wright next argues that the trial court erred by ordering specific performance because the
essential terms of the Purchase Agreement, mainly pertaining to consideration, are indefinite. We
disagree.

Specific performance is an equitable remedy, Rowry v Univ of Mich, 441 Mich 1, 10; 490
NW2d 305 (1992), and “contracts involving the sale of land are generally subject to specific

5
Under MRE 201(b), this Court may take judicial notice of a fact that is “not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”
6
As Richardson notes, Wright’s own actions belie her claim that she believed “appraisal” in
Paragraph 40 to mean a mutually agreed-upon independent appraisal. Wright did not object when
the lender’s appraiser inspected the property for purposes of the loan application and nothing in
the record shows that she otherwise contacted Richardson in an effort to mutually agree on a
different appraiser. Under these circumstances, Wright’s arguments appear somewhat
disingenuous, and merely reflect seller’s remorse for entering into a deal that did not pan out in
her favor.

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performance[,]” In re Egbert R Smith Trust, 480 Mich 19, 26; 745 NW2d 754 (2008). However,
specific performance is not proper

[w]henever it appears that material matters are not clear, certain and complete, but
are left by the parties so obscure or undefined that the court cannot say whether or
not the minds of the parties met upon all the essential particulars, or if they did, the
court cannot say exactly upon what substantial terms they agreed[.] [Henry v
Rouse, 345 Mich 86, 92; 75 NW2d 836 (1956).]

In this matter, the parties had a meeting of the minds on all essential terms related to the
sale of the subject property, including the price. In particular, the express words of the Purchase
Agreement support that the parties mutually agreed to a purchase price, subject to adjustment based
on the results of the appraisal. Under the agreement, Richardson “agree[d] to pay the sum of”
$449,00.00. In return, the agreement indicated that Wright “shall convey” marketable title in the
form of a warranty deed. Under “Other Terms and Conditions,” the parties further agreed that “if
the appraisal comes in lower [than] the purchase price, Purchaser will pay $5,000 over the
appraised price up to the purchase price of $449,000.00.” These price terms are reasonably
definite. Further, by their visible acts, the parties agreed to be bound by said terms, as both of
them initialed each page of the Purchase Agreement and signed the agreement’s last page.

Given the foregoing, it is plain that the Purchase Agreement’s essential terms, including
the parties’ promises and required performances, are not uncertain or indefinite. Because the terms
are reasonably clear and, indeed, are far from obscure, Wright’s argument that Richardson is not
entitled to specific performance must fail. Accordingly, we conclude that the trial court did not
err by concluding that Richardson is entitled to specific performance consistent with the terms of
the Purchase Agreement.

3. SANCTIONS UNDER MCL 600.2591

Wright further argues that the trial court erred by determining that Richardson was entitled
to sanctions. We disagree.

MCL 600.2591(1) mandates, upon the motion of any party, a trial court to award to the
prevailing party in a civil action costs and fees against the nonprevailing party and their attorney
if the court finds that “a civil action or defense to a civil action was frivolous.”
MCL 600.2591(3)(a) defines “frivolous” to mean:

(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 purpose of imposing sanctions for asserting frivolous claims is to deter parties and attorneys
from filing documents or asserting claims and defenses that have not been sufficiently investigated
and researched or that are intended to serve an improper purpose.” BJ’s & Sons Constr Co v Van

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Sickle, 266 Mich App 400, 405; 700 NW2d 432 (2005) (quotation marks and citation omitted).
“The mere fact that [a litigant does] not ultimately prevail does not render [a claim or defense]
frivolous.” Kitchen, 465 Mich at 662. And “[n]ot every error in legal analysis constitutes a
frivolous position.” Id. at 663.

Here, the trial court found that this case had been a series of “red herring upon red herring,”
referring, in part, to Wright’s defenses related to the selection of the appraiser and the payment of
the security deposit. More particularly, the trial court found that Wright had made a “series” of
“baseless claims that there’s some issue with the appraisal” and that she had “provided absolutely
no factual or documented support that the appraisal is somehow faulty.” The court further stated:

If this case isn’t frivolous, there’s no case that would meet the standard for
frivolous. This is a clear, Paragraph 40, deal is a deal. We’ve been litigating this
case for however many months over something that a 12 year old could read and
understand about an appraisal and the $5,000 provision. It’s frivolous, you’re
entitled to sanctions and costs.

While the court did not specify which Subparagraph of MCL 600.2591(3)(a) it found applicable,
it appears to have awarded sanctions on the basis of MCL 600.2591(3)(a)(ii), that Wright had no
reasonable basis to believe the facts underlying her defenses were true, and
MCL 600.2591(3)(a)(iii), that her position was devoid of arguable legal merit. “A claim is devoid
of arguable legal merit if it is not sufficiently grounded in law or fact[.]” Meisner Law Group PC
v Weston Downs Condo Ass’n, 321 Mich App 702, 733; 909 NW2d 890 (2017) (quotation marks
and citation omitted).

But even assuming that Wright’s argument interpreting Paragraph 40 was not frivolous,
we cannot conclude that the trial court clearly erred by awarding sanctions. Considering Wright’s
defense that the appraisal was defective or corrupted by collusion, the record supports the court’s
conclusion that Wright had no reasonable basis to believe the facts supporting her defense were in
fact true. From the outset of the litigation, Wright alleged that the appraisal raised “significant
questions of accuracy, credibility, bias, and authenticity,” and that Richardson had engaged in
some type of conspiracy or collusion to defraud her.7 Discovery, however, yielded no such defects
in the appraisal, nor any factual basis to support the claim that Richardson colluded or conspired
with the appraiser to make a final assessment that benefited him. Notwithstanding the lack of any
factual support, Wright continued to argue at the summary disposition stage that Richardson
selected the appraisal’s valuation in the appraisal documents tendered to Wright, thus precluding
him from enforcing the Purchase Agreement. But because no basis in fact existed to support
Wright’s speculative belief that the appraisal was somehow doctored by Richardson for his own
benefit, the trial court did not clearly err by concluding that Wright’s defense that the appraisal
was “somehow faulty” was frivolous.

Likewise, Wright’s defense that the Purchase Agreement was illusory—because it allowed
Richardson unfettered discretion with respect to the purchase price—was far from a legitimate,

7
Nothing in the record supports that Wright, at the time, based these allegations on anything other
than conjecture.

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colorable claim. Anyone (including, as the trial court noted, a 12-year-old) reading Paragraph 2
and Paragraph 40 of the Purchase Agreement together could understand that Richardson did not
have unfettered discretion to select whatever purchase price he would like. Given the plain
language of the Purchase Agreement, Wright and her counsel had no reason to believe that the
facts underlying this defense were true. Accordingly, Wright’s illusory-promise defense, which
was based on facts that she knew, or had reason to know, did not exist at the time she asserted the
defense, was also frivolous. Consequently, the trial court’s decision to award sanctions under
MCL 600.2591 was proper.

Finally, in her reply brief, Wright asserts that the trial court erred as matter of law because
it determined that she was “unable to support her claim, not that she had no reasonable belief in
the truth of her defense at the time it was asserted.” Wright cites Robert A Hansen Family Trust v
FGH Indus, LLC, 279 Mich App 468, 486; 760 NW2d 526 (2008), for the proposition that “[t]he
determination whether a claim or defense is frivolous must be based on the circumstances at the
time it was asserted.” Wright did not raise this argument, which proposes an alternative basis on
which to reverse the trial court’s decision to award sanctions, in her principal brief. Reply briefs
“must be confined to rebuttal, and a party may not raise new or additional arguments in its reply.”
Shelton v Auto-Owners Ins Co, 318 Mich App 648, 660; 899 NW2d 744 (2017); MCR 7.212 (G).
Consequently, her argument is not properly before this Court. See Shelton, 318 Mich App at 660
(indicating that an “alternative” argument is not a rebuttal argument within the meaning of
MCR 7.212(G)).

B. DOCKET NO. 362999

In Docket No. 362999, Wright raises claims related to the trial court’s decision determining
the amount of reasonable attorney fees and costs without an evidentiary hearing.

This Court reviews for an abuse of discretion an award of attorney fees and costs. Pirgu,
499 Mich at 274. A trial court’s “decision that an evidentiary hearing is not warranted is [also]
reviewed for an abuse of discretion.” Kernen v Homestead Dev Co, 252 Mich App 689, 691; 653
NW2d 634 (2002). A trial court “abuses its discretion when it chooses an outcome outside the
range of reasonable and principled outcomes.” Pirgu, 499 Mich at 274.

1. EVIDENTIARY HEARING

Wright first argues that the trial court abused its discretion as a matter of law by failing to
hold an evidentiary hearing to determine the reasonable amount of attorney fees. She specifically
disputes the reasonableness of the hours billed, and argues that if a factual dispute with respect to
hours billed exists, a party is entitled to an evidentiary hearing. She further contends that a remand
is proper in this case because the trial court provided no independent analysis to explain its
decision.

With respect to the calculation of reasonable attorney fees, Michigan courts apply the
methodology set forth in Pirgu, 499 Mich at 281. Pirgu directs that a court “must begin its analysis
by determining the reasonable hourly rate customarily charged in the locality for similar services.”
Id. The trial court then “must then multiply that rate by the reasonable number of hours expended
in the case to arrive at a baseline figure.” Id. In determining whether the number of hours

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expended is reasonable, the trial court “should exclude excessive, redundant or otherwise
unnecessary hours regardless of the attorneys’ skill, reputation or experience.” Smith, 481 Mich
at 532 n 17 (quotation marks and citation omitted). With respect to determining both the rate and
hours, a trial court is “obliged to make an independent determination with regard to a reasonable
amount of fees.” Mich Tax Mgt Servs Co v Warren, 437 Mich 506, 511; 473 NW2d 263 (1991).

Having reached a baseline figure, the court is to then consider whether an upward or
downward adjustment is appropriate based on the following nonexclusive list of factors:

(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. [Pirgu, 499 Mich at 282.]

The burden is on the fee applicant to establish that the hourly rate is reasonable and also to establish
the hours worked. Smith, 481 Mich at 531-532.

“Generally, a trial court should hold an evidentiary hearing when a party is challenging the
reasonableness of the attorney fees claimed.” Kernen, 252 Mich App at 691. “However, if the
parties created a sufficient record to review the issue,” and the trial court adequately explains its
reasoning, an evidentiary hearing is not required. Sabbagh v Hamilton Psychological Servs, PLC,
329 Mich App 324, 359; 941 NW2d 685 (2019) (quotation marks and citation omitted); Head v
Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 113; 593 NW2d 595 (1999).8

In the instant matter, Richardson submitted a detailed billing record showing the attorney
fees sought in connection with the litigation. In response, Wright contested 14 billing entries as
unnecessary, primarily related to work performed in pursuance of (1) a temporary restraining order
and a motion to show cause, which Wright alleged was unnecessary because a lis pendens on the

8
Wright cites Smith to suggest that whenever an evidentiary hearing is requested with respect to a
factual dispute regarding the reasonableness of the hours billed, a trial court must hold an
evidentiary hearing and the failure to do so is an abuse of discretion. The Court in Smith did not
make such a pronouncement.

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home already protected Richardson’s claim; (2) a motion to quash, which Wright alleged was
unnecessary because she had a right to discovery; (3) a claim of appeal, for which Wright posited
the trial court cannot award fees; and (4) fees incurred for pursuing fees. Before the hearing,
Richardson submitted two updated billing invoices seeking additional fees. At the hearing,
Wright’s counsel, only having had four days to review the supplemental invoices, noted he had
not had a chance to respond in writing and orally objected to “various” entries on “July 13th, July
20th, July 22nd, July 28th, July 29th, August 12th for various reasons, including, but not limited
to time being billed for doing research, which was unnecessary and should not be awarded.” At
the close of argument, with respect to the reasonable number of hours expended, the court ruled:

[O]nce a reasonable hourly rate is determined by the Court, the hourly rate should
be multiplied by the reasonable number of hours expended. [Richardson’s counsel]
has attached an affidavit of cost[s] and fees and has updated same, and the Court
concludes that the number of hours expended in connection with this case is
reasonable and rejects any suggestion that the hours were duplicative or
unnecessary.

Whether the number of hours billed was reasonable here could properly be resolved
without an evidentiary hearing, as all of Wright’s challenges could be resolved by reference to the
record and argument from the parties. For example, the record itself was adequate to evaluate
whether requesting fees for fees was proper, and whether billing related to preparation of a
temporary restraining order was necessary, given that a lis pendens had been filed. Indeed, on
appeal, Wright does not point to any specific challenge to the claimed fees that would require the
production of evidence at an evidentiary hearing to resolve the objection.9 Accordingly, the trial
court did not abuse its discretion by determining the amount of fees without an evidentiary hearing.

The closer question is whether the trial court adequately explained its rationale for adopting
the hours billed as reasonable. In concluding that “the number of hours expended in connection
with this case is reasonable,” the trial court provided no explanation regarding why those hours
were reasonable other than to reject Wright’s suggestion that the hours were “duplicative or
unnecessary” without explanation. The court simply adopted Richardson’s proposed hours billed
as reasonable without providing any explanation to support that the hours were, in fact, reasonable.
Accordingly, there is no way for this Court to discern whether the trial court simply reviewed the
hours submitted and effectively rubber-stamped them, or whether it made an original
determination regarding the reasonableness of the hours expended, as it is bound to do. See
Warren, 437 Mich at 511-512.

Because of the conclusory nature of the trial court’s decision, it is impossible for this Court
to determine whether the trial court’s wholesale adoption of Richardson’s hours billed was outside
the range of principled outcomes. Under these circumstances, we remand this matter to the trial

9
An example of a challenge that would have required an evidentiary hearing would be an objection
that the hours billed were excessive, because this claim would require a more involved analysis
and testimony to establish how long certain types of tasks should take.

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court for the limited purpose of providing an explanation regarding why the hours billed were
reasonable and, if necessary, to adjust the attorney fee award consistent with its determination.10

2. SETOFF

Wright finally argues that the trial court erred by refusing to set off from the attorney fees
award the $5,000 fine that she incurred for failing to abide by the trial court’s orders. According
to Wright, MCL 600.1721 precludes Richardson from accepting both the $5,000 fine and the full
amount of reasonable attorney fees. We disagree.

At the outset, Wright does not cite any authority indicating that she is entitled to a setoff
against sanctions. She cites language from BJ’s & Sons Constr Co, 266 Mich App at 400, 408-
409, stating that “a setoff against a sanctions award is permissible[,]” but that case does not explain
the circumstances under which a party is entitled to a setoff. Absent citation to any rule or principle
of law establishing that the facts of this matter support that a set off be granted, Wright’s argument
necessarily fails.

Wright does, however, cite MCL 600.1721 of the Revised Judicature Act, MCL 600.101
et seq., relating to a court’s contempt powers, as precluding Richardson from accepting both the
$5,000 fine and the award of reasonable attorney fees. That provision provides:

If the alleged misconduct has caused an actual loss or injury to any person
the court shall order the defendant to pay such person a sufficient sum to indemnify
him, in addition to the other penalties which are imposed upon the defendant. The
payment and acceptance of this sum is an absolute bar to any action by the
aggrieved party to recover damages for the loss or injury. [MCL 600.1721
(emphasis added).]

In her attempt to convince this Court that this provision is applicable, Wright claims that the court’s
use of its contempt power was intended to provide compensatory relief to Richardson, pointing to
the fact that the $5,000 fine was payable to Richardson and not the court. By this logic, because
Richardson has been compensated for his losses by the $5,000 fine, he cannot also accept the full
amount of attorney fees because acceptance of the $5,000 “is an absolute bar to any action by the
aggrieved party to recover damages for the loss or injury.” MCL 600.1721.

The record refutes Wright’s contention that the $5,000 fine was compensatory in nature.
In denying her request to set off the fine against the award of reasonable attorney fees, the court
reasoned that that fine had “nothing to do with attorney fees” and “was an exercise of the Court’s
contempt powers for a clear violation of a duly entered and non-stayed order of this Court.”
Additionally, a review of the earlier proceedings supports that the fee was not, in fact, ordered to

10
While it is somewhat troubling that Wright allegedly had insufficient time to respond to
Richardson’s updated billing invoices and only orally raised those objections at the hearing, most
without sufficient explanation, Wright has neither sought any relief in this regard nor cited any
authority that would entitled her to relief. Accordingly, our remand to the trial court is limited to
the record as it then existed before the trial court.

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compensate Richardson for losses related to Wright’s misconduct. Indeed, the trial court made no
findings related to losses that Richardson suffered as a result of Wright’s misconduct. Instead, the
trial court imposed the fee only after Wright refused to abide by the court’s order to close the sale
on three occasions, at which point the court entered a default judgment requiring her to pay
Richardson $5,000 “for her failure to sign the closing documents for the Subject Property ordered
by this Court.” It follows that, because the trial court’s exercise of its contempt power was not
intended to compensate Richardson, the bar to recovery of losses due to contemptuous conduct
under MCL 600.1721 is inapplicable. Accordingly, Wright has not demonstrated any error with
respect to the trial court’s decision not to set off the $5,000 fine against the attorney fees award.

III. CONCLUSION

In Docket Nos. 361839 and 361841, we affirm. In Docket No. 362999, we affirm in part,
reverse in part, and remand for further proceedings consistent with this opinion. We do not retain
jurisdiction.

/s/ Mark J. Cavanagh
/s/ Michelle M. Rick
/s/ Sima G. Patel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9927110. Public record. Not legal advice.