259 N.W.2d 407 | Mich. Ct. App. | 1977
CITY BANK AND TRUST COMPANY
v.
KWASKE BROTHERS CONSTRUCTION COMPANY
Michigan Court of Appeals.
*160 Dykema, Gossett, Spencer, Goodnow & Trigg (by John H. Schomer), for City Bank and Trust Company.
Cummins & Cummins, for Brooks Abstract Company.
Before: M.J. KELLY, P.J., and ALLEN and D.E. HOLBROOK, JR., JJ.
Decided September 7, 1977. In lieu of leave to appeal, reversed and remanded to the circuit court, 402 Mich ___.
D.E. HOLBROOK, JR., J.
City Bank and Trust Company appeals an order of the lower court allowing costs and attorney's fees of $3,731.20 in favor of Brooks Abstract Company. A detailed recounting of the facts in this case appears in City Bank & Trust Co v Kwaske Brothers Construction Co, 69 Mich. App. 271; 244 NW2d 443 (1976). Suffice it to say for purposes of this case that the garnishee defendant, Brooks Abstract Company, prevailed via summary judgment in the lower court to the effect that there was a finding of no liability to the principal defendant.
The taxation of costs from the garnishment proceedings is the issue to which we address ourselves. In doing so, we affirm the result reached by the lower court.
The applicable court rule, GCR 1963, 526.9, pertaining to costs in a garnishment proceeding, controls over other subsections of GCR 526 whenever a garnishment action is involved. Plaintiff urges us to apply subsection 526.7 (Costs on Summary Judgment) on the premise that even though this case is a garnishment proceeding it did, in fact, end in summary judgment. A holding of that sort would contravene the general rule followed by Michigan courts that the more specific rule controls. See Reed v Secretary of State, 327 Mich. 108; *161 41 NW2d 491 (1950). Accordingly we find that 526.9 was correctly called into application.
Within 526.9(1) plaintiff argues that attorney's fees should be limited to those incurred in filing the disclosure.[1] Instead we understand the court rule as permitting those fees as well as other necessary expenses incurred by attorney and client alike.
Affirmed.
ALLEN, J., concurred.
M.J. KELLY, P.J. (dissenting).
I dissent.
As a general rule attorneys' fees are not awarded "unless allowance of a fee is expressly authorized by statute or court rule". State Farm Mutual Automobile Insurance Co v Allen, 50 Mich. App. 71; 212 NW2d 821 (1973). In the instant case we have a court rule which provides expressly for an allowance of attorney fees; GCR 1963, 526.9(1), states:
"The judge in awarding costs may (1) in case the issue of the garnishee's liability to the principal defendant is not brought to trial, award the garnishee as costs against the plaintiff such reasonable attorney's fees as the garnishee incurred in filing his disclosure and other necessary expenses."
Instead of a catchall phrase such as "including reasonable attorney fees" which is used in most of *162 the court rules which allow recovery of such fees,[1] the Court has opted to adopt language which limits the fees to those "incurred in filing his disclosure". The majority finds that the additional phrase "and other necessary expenses", is to be construed as expenses incurred by attorney and client alike. Since GCR 1963, 526.9(1) must be read "according to the plain language [of the rule], giving effect to the meaning of the words as they ought to have been understood by those who adopted them", Buscaino v Rhodes, 385 Mich. 474; 189 NW2d 202 (1971), it appears to me that the Court contemplated less than all reasonable attorney fees when it limited its language to "reasonable attorney's fees as the garnishee incurred in filing his disclosure". The court rule should be interpreted so that "every word, phrase, clause, and sentence of the provision to be construed must be given force and effect and no word, phrase, or clause shall be rendered nugatory". Chrysler Corp v Washington, 52 Mich. App. 229, 237; 217 NW2d 66, 69 (1974), lv den, 399 Mich. 859 (1977).
Attorney fees are not generally recoverable unless expressly authorized by statute or court rule. The phrase, "other necessary expenses", refers to expenses of the garnishee and should not be interpreted as expanding on the attorney fees recoverable.
I would reverse and remand for the trial court to tax only those attorney's fees incurred in filing the disclosure, and it would appear that such fees would encompass only the first two and one-half lines of exhibit B, the attorney fee statement attached to appellant's brief: "Receipt of writ of *163 garnishment, fact investigation, preparation and filing of garnishee disclosure denying liability."[2]
NOTES
[1] ".9 Costs in Garnishment Proceedings. Costs in garnishment proceedings shall be allowed as in civil actions. The judge in awarding costs may
"(1) in case the issue of the garnishee's liability to the principal defendant is not brought to trial, award the garnishee as costs against the plaintiff such reasonable attorney's fees as the garnishee incurred in filing his disclosure and other necessary expenses."
[1] GCR 1963, 111.6; 116.5(117.3); 306.7(1); 306.7(2); 313.1(3); 313.1(4); 404; 406; 407; 526.7(2); 726.1(1) providing in part that either party may request that the court order the other spouse to pay an attorney the sum specified as necessary to enable that party to carry on or defend the suit; 735.3; 749.4; 750.4; 816.5(2).
[2] The trial court relied upon a statement contained in 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 88, which failed to mention the limiting language of GCR 1963, 526.9(1) and which I believe to be deficient in that omission.
