Montgomery v. Bauer
| Decision Date | 20 April 2023 |
| Docket Number | 360607,360624 |
| Parties | BILLIE STEVEN MONTGOMERY, Plaintiff-Appellant, v. TAMMIE L. BAUER, Individually and as Personal Representative of the ESTATE OF BUD E. MONTGOMERY, and DANA MONTGOMERY, Defendants-Appellees, and JESSON & DYKSTRA, PLC, Appellee. BILLIE STEVEN MONTGOMERY, Plaintiff, v. TAMMIE L. BAUER, Individually and as Personal Representative of the ESTATE OF BUD E. MONTGOMERY, and DANA MONTGOMERY, Defendants-Appellees, and VAN DAM JESSON & DYKSTRA, PLC, Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Ionia Circuit Court LC No. 2019-000403-CZ
Before: O'Brien, P.J., and Murray and Letica, JJ.
Plaintiff Billie Steven Montgomery, filed a complaint seeking to recover from defendant, the Estate of Bud E. Montgomery, a Kubota tractor and accessories that he claimed to have purchased from his now-deceased brother in 2009. The trial court granted summary disposition under MCR 2.116(C)(10) in favor of the Estate and defendant Tammy L. Bauer, personal representative of the Estate (collectively, "the Estate"), on the basis of laches and denying plaintiff's request that the judge recuse himself. The trial court also granted the Estate sanctions under MCR 1.109(E)(6) and ordered plaintiff and his attorney's law firm, Jesson & Dykstra, jointly and severally liable for $118,853.75 in attorney fees and costs as sanctions.[1]
In Docket No. 360607, plaintiff appeals the February 23, 2022 order challenging the trial court's grant of summary disposition in favor of the Estate, the trial court's denial of plaintiff's motion to recuse, and the trial court's finding that plaintiff's complaint was frivolous. In Docket No. 360624, Jesson & Dykstra PLC,[2] appeals the same order, among other things challenging the trial court's finding that plaintiff's complaint was signed in violation of MCR 1.109(E)(5), the imposition of sanctions under MCR 1.109(E) on Jesson & Dykstra, jointly and severally with plaintiff, and the reasonableness of the sanctions amount. These appeals were consolidated to advance the efficient administration of the appellate process.[3] For reasons stated herein, we (1) affirm the trial court's grant of summary disposition in favor of defendants and the court's denial of plaintiff's motion to recuse; (2) reverse the trial court's December 15, 2021, order awarding sanctions to defendants under MCR 1.109(E); (3) vacate that portion of the trial court's February 23, 2022 order awarding $105,454.75 in attorney fees and costs to the Estate and Bauer, as personal representative of the Estate, as sanctions under MCR 1.109(E); and (4) remand so the trial court can properly calculate a supplemental award of attorney fees to Bauer, individually.
After the Estate denied plaintiff's claim for the Kubota tractor and accessories, plaintiff filed a two-count complaint in probate court asserting claims against defendants for claim and delivery and statutory conversion. Case evaluation was held in March 2021, and the case evaluation panel unanimously found plaintiff's claims to be frivolous. Plaintiff then moved the probate court to review the panel's finding under MCR 2.403(N)(2), after which the probate court concluded that plaintiff's claims against Bauer, individually, and Dana Montgomery were frivolous, but that plaintiff's claims against the Estate and Bauer as personal representative of the Estate were not. The probate court judge then recused himself in accordance with MCR 2.403(N)(2)(d), and the case was reassigned to Ionia Circuit Court Judge Ronald Schafer. Subsequently, the Estate moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff's claims were barred by laches. In addition, the Estate asked for an award of costs and reasonable attorney fees as sanctions under MCR 1.109(E)(6). The trial court granted the Estate's motion on the basis of laches and established a timeline for the parties to brief whether sanctions were warranted and, if so, in what amount.
After briefing and oral argument, the trial court granted the Estate's request for sanctions. The trial court reasoned that had plaintiff's attorney conducted a reasonable inquiry regarding the facts underlying plaintiff's claim, he would have realized that plaintiff's claim was not about recovering a tractor but about the repayment of a loan documented in the guise of Bud's sale of the tractor to plaintiff. After briefing and oral argument, the trial court issued an order awarding the Estate of Bud E. Montgomery, and Bauer, individually and as personal representative, $105,454.75 in attorney fees and costs as sanctions against plaintiff and Jesson & Dykstra, jointly and severally. The order also awarded Bauer, individually, $13,399 as a supplemental award of attorney fees as sanctions under MCR 1.109(E)(7) and MCL 600.2591. These appeals followed.
Defendants argue that under MCR 7.203(A)(1), this Court's jurisdiction is limited to plaintiff's challenge to the award of attorney fees and costs and that this Court is without jurisdiction to consider plaintiff's challenges to the November 18, 2021, order in which the trial court granted summary disposition in favor of defendants and denied plaintiff's oral motion to recuse Judge Schafer.
This Court has jurisdiction over appeals by right from final orders defined in MCR 7.202(6). Usually, "[w]here a party has claimed an appeal from a final order, the party is free to raise on appeal issues related to other orders in the case." Bonner v Chicago Title Ins Co, 194 Mich.App. 462, 472; 487 N.W.2d 807 (1992). In some appeals, however, the scope of jurisdiction is limited to certain types of issues. For instance, when an appeal is taken from a "postjudgment order awarding or denying attorney fees and costs under court rule[s] [MCR 2.403, 2.405, 2.625] or other law," MCR 7.202(6)(a)(iv), this Court's jurisdiction "is limited to the portion of the order with respect to which there is an appeal of right," MCR 7.203(A)(1). Because an appeal from a postjudgment order awarding attorney fees is limited to the portion of the order for which there is an appeal of right, this Court is without jurisdiction over "any issue outside those challenging the award of attorney fees." Pioneer State Mut Ins Co v Michalek, 330 Mich.App. 138, 143; 946 N.W.2d 812 (2019).
The February 23, 2022, order does not fall under MCR 7.202(6)(a)(iv) because it is a final order, not a postjudgment order. Defendants sought sanctions as part of their motion for summary disposition. As part of the November 2021 order granting summary disposition, the trial court provided a timeline for additional briefing on whether sanctions were warranted under MCR 1.109(E)(6) and, if so, how much. Although the November 2021 order resolved the summary disposition issue, it did not resolve defendants' argument that plaintiff was liable for sanctions. With respect to the December 15, 2021, order that awarded sanctions under MCR 1.109(E)(6) in favor of defendants, the order did not determine the amount of attorney fees and costs awardable as sanctions, so it was not a final order under MCR 7.202(6)(a)(iv). In re Hemminger Estate, 463 Mich. 941; 620 N.W.2d 852 (2000); John J Fannon Co v Fannon Prod, LLC, 269 Mich.App. 162, 165-167; 712 N.W.2d 731 (2005).
The February 23, 2022, order was the first order that constituted a final order. Accordingly, with respect to the Estate, the order appealed is not a "postjudgment order" awarding attorney fees for purposes of MCR 7.202(6)(a)(iv), and, therefore, this Court's jurisdiction is not limited by MCR 7.203(A)(1).
Turning to the merits, plaintiff argues that the trial court erred by granting summary disposition in favor of the Estate on the basis of laches because genuine issues of material existed and because laches is inapplicable to plaintiff's claim of statutory conversion.
This Court reviews a trial court's decision on a motion for summary disposition de novo. Auto Club Group Ins Co v Burchell, 249 Mich.App. 468, 479; 642 N.W.2d 406 (2002). Generally, a trial court's equitable decisions are reviewed de novo, but the findings of fact supporting an equitable decision are reviewed for clear error. Knight v Northpointe Bank, 300 Mich.App. 109, 113; 832 N.W.2d 439 (2013); Yankee Springs Twp v Fox, 264 Mich.App. 604, 611; 692 N.W.2d 728 (2004). A decision is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake was made. Wayne Co v Wayne Co Retirement Comm, 267 Mich.App. 230, 252; 704 N.W.2d 117 (2005).
"Laches is an affirmative defense based primarily on circumstances that render it inequitable to grant relief to a dilatory plaintiff." Attorney General v Powerpick Player's Club of Mich, LLC, 287 Mich.App 13, 51; 783 N.W.2d 515 (2010). Laches applies when there has been an unexcused or unexplained delay in starting an action and a corresponding change of material condition that results in prejudice. Knight, 300 Mich.App. at 114; Fraser v Almeda Univ, 314 Mich.App. 79, 102; 886 N.W.2d 730 (2016). The party asserting laches bears the burden of proving a lack of due diligence on the part of the party against whom the defense is asserted, as well as resultant prejudice. Attorney General, 287 Mich.App. at 51; Yankee Springs, 264 Mich.App. at 612. When laches appears, the court leaves the parties where it finds them. Knight, 300 Mich.App. at 114 (citation omitted). An action at law may be subject to the equitable defense of laches. See Fraser, 314 Mich.App. at 102 (indicating that "courts may apply the doctrine of laches to bar actions at law"), citing Tenneco Inc v Amerisure Mut Ins Co, 281 Mich.App. 426, 457; 761...
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