Taylor v. Anesthesia Associates of Muskegon, P.C., Docket No. 108992

• Decision Date: 22 September 1989
• Docket Number: Docket No. 108992
• Citation: 445 N.W.2d 525,179 Mich.App. 384
• Parties: Rochelle M. TAYLOR and Kenneth L. Taylor, Plaintiffs-Appellants, v. ANESTHESIA ASSOCIATES OF MUSKEGON, P.C., and Peter Bozeman, M.D., Defendants-Appellees. 179 Mich.App. 384, 445 N.W.2d 525
• Court: Court of Appeal of Michigan — District of US

Page 525

445 N.W.2d 525

Rochelle M. TAYLOR and Kenneth L. Taylor Plaintiffs-Appellants, v. ANESTHESIA ASSOCIATES OF MUSKEGON, P.C., and Peter Bozeman M.D., Defendants-Appellees.

Docket No. 108992.

179 Mich.App. 384, 445 N.W.2d 525

Court of Appeals of Michigan.

Submitted May 10, 1989.

Decided Aug. 9, 1989.

Released for Publication Sept. 22, 1989.

[179 MICHAPP 385] Dilley, Dewey & Damon, P.C. by Thomas A. Geelhoed, Grand Rapids, for plaintiffs-appellants.

Fraser, Trebilcock, Davis & Foster, P.C. by Randy J. Hackney and Kathleen E. Kane, Lansing, for defendants-appellees.

Before HOLBROOK, P.J., and SAWYER and NEFF, JJ.

PER CURIAM.

Plaintiffs appeal from an order taxing costs in favor of defendants as a mediation sanction pursuant to MCR 2.403(O). In their appeal, plaintiffs challenge two specific aspects of the order: (1) the award of attorney fees incurred by defendants for services from the time of the mediation hearing until the expiration of the twenty-eight-day period provided in MCR 2.403(L) for acceptance or rejection of the mediation evaluation, and (2) an award for expenses incurred by defendants for preparation of trial exhibits. We find merit in both issues and reverse.

By rejecting the mediation evaluation, plaintiffs became liable to pay as a sanction defendants' "actual costs" pursuant to MCR 2.403(O) when their suit on a malpractice claim concluded with a trial verdict of no cause of action. Both issues raised in this appeal concern the scope of the actual costs that may be awarded as a sanction pursuant to MCR 2.403(O)(6), which provides:

[179 MICHAPP 386] For the purpose of this rule, actual costs include those costs taxable in any civil action and a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the mediation evaluation.

Interpretation of a court rule is subject to those principles governing statutory construction. Issa v. Garlinghouse, 133 Mich.App. 579, 581, 349 N.W.2d 527 (1984). Thus, the court rule should be construed in accordance with the ordinary and approved usage of the language; it should also be construed in light of its purpose and the object to be accomplished by its operation. In re Prichard Estate, 169 Mich.App. 140, 150-151, 425 N.W.2d 744 (1988), lv. den. 431 Mich. 906 (1988). The purpose of mediation sanctions is to impose the burden of litigation costs upon the party who insists upon trial by rejecting a proposed mediation award. The Wayne-Oakland Bank v. Brown Valley Farms, Inc., 170 Mich.App. 16, 21, 428 N.W.2d 13 (1988).

In keeping with these principles, we hold that attorney fees incurred prior to the deadline for accepting or rejecting a mediation evaluation are not taxable as costs pursuant to MCR 2.403(O). The parties may accept or reject at any time within the twenty-eight-day period following service of the mediation panel's evaluation, but the decision of each party is not disclosed by the clerk until after the twenty-eight-day period has expired. MCR 2.403(L)(1)-(2). Prior to that time, a party cannot know whether the opposing party's decision will require preparation for a trial. At that time, it becomes apparent whether a trial has become necessary in consequence of the rejection of mediation. It is logically inescapable that any attorney fees incurred prior to that time are not "necessitated by the rejection of the mediation [179 MICHAPP 387] evaluation" because those fees would have been generated regardless of whether the other party rejected the evaluation. ¹ See also Maple Hill Apartment Co. v. Stine (On Remand), 147 Mich.App. 687, 695-697, 382 N.W.2d 849 (1985) (MacKenzie, J., dissenting in part). To hold otherwise would do violence to the plain wording of the court rule as well as its purpose to shift the financial burden of those attorney fees that would have been avoided by entry of judgment on the basis of mediation.

We also conclude that the award for enlargement of medical records to be used as trial exhibits was erroneous. For purposes of mediation sanctions, "actual costs" include "those costs taxable in any civil action."...