Minor v. Michigan Education Ass'n

338 N.W.2d 913, 127 Mich. App. 196

• Court: Michigan Court of Appeals
• Decided: July 11, 1983
• Docket: Docket 63896
• Status: Published

Opinions

Per Curiam.

Plaintiff appeals by right the trial court’s award of $3,501.25 in attorney fees to defendant Northville Public Schools (hereinafter "defendant”). The court based its award upon GCR 1963, 111.6, finding that "plaintiff unreasonably put defendants to their proofs on the statute of limitations issue”. We reverse and remand.

In challenging the award of attorney fees, plaintiff raises two arguments, as follows: (1). GCR 1963, 111.6 does not authorize an award unless there has been a full-scale trial, and (2) the court rule was improperly applied here, where the trial court based its award upon a finding that plaintiffs claims were legally — as opposed to factually — unwarranted. We base our ruling solely upon resolution of the latter issue.

We are willing to assume arguendo that an award of attorney fees may be proper in situations, such as the present one, where there has been no actual trial. See Russell v Glantz, 57 Mich App 44; 225 NW2d 191 (1974). We recognize that in certain recent decisions panels of this Court have used language suggesting that an award of attorney fees under GCR 1963, 111.6 is appropriate only where there has been an actual trial, Reppuhn v Abell, 97 Mich App 407; 296 NW2d 44 (1980); Goodrich Theaters, Inc v Warner Brothers Distributing Corp, 103 Mich App 548; 302 NW2d 913 (1981). However, we believe that an award of attorney fees in the present case would not necessarily be inconsistent with the language of Reppuhn and Goodrich. Those decisions arguably left the door open to an award of attorney fees in situations where the lower court proceedings in question were the "only time and place where the (parties’) dispute * * * could be settled”. 103 Mich App 554.

In the present case, the trial court found that the subject proceedings, hearings on defendants’ motions for accelerated judgment, were the "functional equivalent” of a trial, because defendants’ motion for accelerated judgment was dispositive. This reasoning was sound: such a motion is, in the words of the Goodrich opinion, the only time and place where certain defenses — such as the statute of limitations defense — may be adjudicated. See also Robinson v Emmet County Road Comm, 72 Mich App 623, 638; 251 NW2d 90 (1976), characterizing accelerated judgment as a proceeding which "provides a method by which certain disputed issues can be adjudicated at an early stage with a possibility of ending the case and avoiding an expensive trial”. We conclude that the trial court’s characterization of the motion for accelerated judgment as the "functional equivalent of a trial” for purposes of GCR 1963, 111.6 was consistent with the notion that accelerated judgment can serve as a direct substitute for trial. Accordingly, we decline to find the award of attorney fees improper solely because there had been no trial below.¹

Nonetheless, we agree with plaintiff that the trial court’s award of attorney fees was improper, because the court based its award largely upon its finding that plaintiff had taken an unwarranted position on a legal, as opposed to a factual, issue.

In Valley National Bank of Arizona v Kline, 108 Mich App 133; 310 NW2d 301 (1981), this Court held that GCR 1963, 111.6 could only be used to award attorney fees which were related to the cost of proving disputed facts. 108 Mich App 143. The court rule itself contains language which limits a trial court’s authority in awarding fees to situations in which a party has made an unwarranted factual claim:

"If it apepars * * * that any fact alleged or denied by a pleading ought not to have been so alleged or denied, the court may * * * require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact, including reasonable attorney fees.” (Emphasis added.)

Nothing in GCR 1963, 111.6 confers any authority to award attorney fees for costs incurred in disputing an adverse party’s position as to issues of law. The rule refers solely to the preparation of proofs and other steps taken by an opponent to establish disputed matters of fact. See Harvey v Lewis, 10 Mich App 23, 37; 158 NW2d 809 (1968), where Judge (now Justice) Levin observed:

"Surely, the order appealed from should be set aside to the extent the award is apportionable to the successful legal argument that petitioners’ allegations were legally insufficient, or to preparation to disprove such legally insufficient allegations. There can be no justification for awarding 'reasonable expenses incurred in proving or preparing to prove or disprove such fact’, if the fact is insufficient as a matter of law, as then there is no need factually to disprove it. If it be said the successful counsel might or could not have known in advance the court would rule favorably on his claim the allegations were legally insufficient, then how can it properly be held — if successful counsel is in doubt as to the outcome — that the unsuccessful litigant made allegations which 'ought not to have been’ made or that were 'unreasonable’.” (Levin, J., dissenting.) (Emphasis in original.)

Neither the rule nor any of the cases cited by defendants contain any language suggesting that a party may collect attorney fees for time spent researching, and preparing responses to, a party’s legal theories, merely because such theories may ultimately be found lacking in merit.

We cannot condone the principle of allowing a trial court to apply GCR 1963, 111.6 to reimburse a party for time spent in disputing questions of law, no matter how improbable or novel the legal theory involved. Such an application not only contravenes the narrowly drawn language of GCR 1963, 111.6, as demonstrated supra, but more importantly carries with it the potential for deterring even good-faith litigants from seeking legitimate relief in the courts. If this Court were to uphold the principle that a party may be compelled to pay attorney fees, merely because that party advanced a legal theory which was found to lack merit, it is not only conceivable but indeed inevitable, that many persons with legitimate claims for relief would be deterred from bringing them for fear of facing such a penalty. Others who do bring claims might venture to advance only a limited number of legal theories in support of their claims, in order to avoid a finding that one or more of their theories was sufficiently lacking in merit to qualify as "unwarranted” under the trial court’s reading of GCR 1963, 111.6. In situations where a case is rather complex or sophisticated, the prospective penalty for advancing a mariginal legal theory (one which justifies the opponent’s extensive legal research in preparing a response) could loom particularly large.

We also note that certain inequities would inhere in any ruling that GCR 1963, 111.6 is applicable to pleadings which are legally (as opposed to factually) "unwarranted”. As the award of attorney fees under GCR 1963, 111.6 is largely a matter left to a trial court’s discretion, awards under the rule would inevitably vary with the views and predilections of trial judges. One trial judge could regard a particular legal argument as a legitimate one which, although lacking in merit, was properly brought before the court for consideration. Another trial judge could determine that the same legal argument or theory, when advanced by a different litigant in an unrelated case, is not only marginal and lacking in merit, but "unwarranted” within the meaning of GCR 1963, 111.6 and thus a proper subject of an attorney fee award. The potential for inequity and prejudice is apparent.

In short, we conclude that the application of GCR 1963, 111.6 to a party’s pleading of legally (as opposed to factually) "unwarranted” claims would create uncertainty which would at best stifle legal creativity and which could indeed severely deter the filing of legitimate claims. In concluding our discussion of this issue, we add that this Court has previously taken notice of the chilling effect which an assessment of costs may have upon a litigant’s exercise of his right of access to the courts. See People v Cousino, 81 Mich App 416; 265 NW2d 355 (1978).²

In the present case, the trial court based its award of fees upon its finding that plaintiff unreasonably put defendants to their proofs on the statute of limitations issue. However, it is undisputed that only a small portion of defendants’ attorney fees resulted from time spent in responding to plaintiff’s factually unwarranted denial that the three-year statute had run. The itemized bill of time prepared by defendants’ attorney showed only 1.75 hours spent on the issue of whether the three-year statute of limitations had run. Most of the remaining time (the majority of the $3,501.25 awarded to defendants) was attributable to time spent researching a legal issue — namely, whether plaintiff was correct in making her belated assertion that the case was governed by a six-year statute of limitations. This assertion in turn rested upon plaintiff’s theory that she was a third-party beneficiary of a contract between defendants and the federal government, a legal theory which, although somewhat novel, was by no means frivolous. Even if the theory had been totally baseless, the award of attorney fees must be limited to time spent by defendants in contesting factual matters, Harvey v Lewis, supra; Kline, supra. We conclude that the present case should be remanded for a recomputation of attorney fees; on remand the court should award fees only to the extent that they reflect costs incurred in countering unwarranted factual allegations contained in plaintiff’s pleadings.³

Finally, we reject the argument advanced in defendants’ cross-appeal, namely, that the trial court erred in determining that it was without jurisdiction to award attorney fees under Title VII of the Civil Rights Act of 1964. The court determined that it lacked subject-matter jurisdiction over plaintiff’s Title VII claims. Defendant concedes that this aspect of the trial court’s disposition was correct. The Supreme Court has held that, where a court lacks subject-matter jurisdiction, "any action with respect to such a cause, other than to dismiss it, is absolutely void”. Fox v Board of Regents, University of Michigan, 375 ; 134 NW2d 146 (1965). Since the trial court lacked jurisdiction over plaintiffs Title VII claim, it could not make findings of fact, which are required for any award of attorney fees, Sturgis Savings & Loan Ass’n v Italian Village, Inc, 81 Mich App 577; 265 NW2d 755 (1978). The federal case cited by defendant, Freeman v Taft Broadcasting, 17 CCH EPD, ¶ 8506 (ND Ala, 1978), is distinguishable because, there, the trial court did not lack subject-matter jurisdiction. Instead, the plaintiff in Freeman merely failed to meet a certain deadline for filing his discrimination charge with the Equal Employment Opportunity Commission (EEOC), a defect which the United States Supreme Court has held "is not a jurisdictional prerequisite to a Title VII suit in federal court”, Zipes v Trans World Airlines, Inc, 455 US 385; 102 S Ct 1127; 71 L Ed 2d 234 (1982). We conclude that the trial court in the present case acted properly in refusing to award attorney fees under Title VII for lack of jurisdiction.

Reversed and remanded for proceedings consistent with this opinion.

1 In concluding discussion of this aspect of plaintiffs appeal, we note that both of the cases cited by plaintiff, Reppuhn, supra, and Goodrich, supra, are distinguishable, in that each involved an agreement among the parties to voluntarily dismiss the trial court proceedings. For example, in Reppuhn, the parties specifically stipulated that the defendants were to receive only a limited award of "costs” incurred in the subject litigation; any award of attorney fees would have contravened the express terms of the stipulation in that case. Contrast the present case, where there has been no comparable stipulation to dismiss the lower court proceedings.

2 We acknowledge that Cousino is arguably distinguishable, in that it was a criminal case decided on the basis of Const 1963, art 1, § 20, guaranteeing the right of an accused in criminal proceedings to bring an appeal. Arguably, that provision is inapplicable in a civil context such as the present one. However, the practical reality underlying the decision in Cousino remains applicable to civil matters: the prospect of an imposition of costs can serve as a significant deterrent to a party’s pursuit of relief in the courts.

3 To the extent that the court’s award is based upon plaintiffs "vexatious” or uncooperative behavior during the course of discovery, the proper remedy is not an award of fees under GCR 1963, 111.6, but instead imposition of the sanctions specifically applicable to lack of cooperation during discovery. See, for example, GCR 1963, 313.