*1 v Burak DESSART v BURAK plaintiffs May On 122238. Decided 2004. Docket No. leave, Court, granting appeal, Supreme in lieu of for leave to the lower courts. affirmed the decisions of William C. and Sheila damages Circuit accident caused $120,000 sanctions, $100,000. and the defendants on the 2.403(0). include Sawyer, JJ., evaluation should adjusting costs and interest should be complaint to the verdict. plaintiffs sought only Court related to William Dessart’s evaluation a verdict The circuit The to the date of the evaluation. included in the assessable now known taxable costs incurred from the date affirmed that assessable against Lynn but denied be liable for the to determine rejected. should Lynn for the A. Dessart court, Stephen T. leave to of Appeals, as Burak. mediation be calculated from the plaintiffs At M. and case appeal, trial, whether brought A opposing party’s Griffin, EJ., evaluation that the claiming Davis, jury Bryan costs, injuries costs, [252] an action motion for mediation awarded J., and for the R. plaintiffs accepted in an automobile panel entered sanctions, Burak, Hood and rejects in the actual filing returned a purpose assessable judgment plaintiffs seeking of the a case Delta costs, opinion, signed by Chief Justice In a memorandum Corrigan, and Justices Cavanagh, Young, Taylor Kelly, Markman, Supreme Court held-. determining Adjustments to a verdict for imposed rejection of a case are to be for the whether sanctions interest, sum of assessable costs and evaluation are limited to the the time of the the time of the each from 2.403(O)(3). Attorney fees are not assessable case evaluation. MCR specifically defines costs as costs unless a statute or court imposed, attorney including attorney fees are fees. If sanctions are awarded, MCR included in the actual costs result, majority’s concurring in stated that the Justice Weaver, is not the last antecedent rule creation of a new [May- Mich 37 unnecessary given and is the actual rule consistent with majority that the last antecedent rule does not control determined case. the issue this
Affirmed. Adjusted — — — — Evaluation Awards Sanctions Pretrial Procedure Case *2 Verdicts. verdict, determining Adjustments whether to the for rejects be hable a a case evaluation should for costs, opposing party’s actual are limited to the sum of the and interest on the of the each assessable costs amount to the date of the case calculated from the evaluation; attorney assessable costs do not include fees unless a specifically statute or court rule defines “costs” as (MCR 2.304[O][3]). attorney fees Petrucelli, Waara), & PC. L. Jonny Petrucelli (by for plaintiffs. Peterson, DeGrand, Reardon, Pearson, Hall & P.C. Pearson), Daniel R. Glenn A. DeGrand (by for defendants. Opinion. argued Plaintiff that he was
Memorandum entitled to mediation sanctions under MCR 2.403 in his third-party negligence action. His claim for sanctions a under MCR 2.403 determination whether attorney “assessable costs” include fees and whether assessable are calculated the filing costs from rendering of the verdict. The Court of Appeals questions negative. answered both We affirm. procedural background
i. Lynn Plaintiff William Dessart and defendant Burak were involved in an automobile collision. Plaintiff and third-party negligence injuries his wife filed a action for trial, sustained in that plaintiff accident. Before Burak op $120,000. case at Plain- evaluated the panel1 mediation it. evaluation, rejected defendants but accepted tiffs $100,000 in trial, awarded jury plaintiff was Following motion for The circuit court denied damages. 2.403, concluding that sanctions under MCR mediation the defen- was “more favorable” to adjusted verdict also in MCR 2.403. The circuit court dants as defined that “actual costs” rejected plaintiffs’ argument The Court of MCR 2.403 includes fees. of the circuit court. 252 Mich affirmed the decision (2002).
II. ANALYSIS ques- of a-court rule is a proper interpretation de novo. CAM Constr subject tion of law and is review Ass’n, Edgewood v Lake Condo case, MCR parties the time the mediated this At *3 in part: 2.403 provided,
(0) Liability Rejecting Party’s for Costs.
(1) rejected party If an evaluation and the action has opposing proceeds pay the to that must party’s actual costs unless the verdict is more favorable rejecting party than the mediation evaluation .... the
(3) (0)(1), purpose must be For the of subrule a verdict adjusted by adding interest on the to it assessable costs and filing complaint the to the amount the verdict from adjustment, this the case evaluation .... After if it more favorable to a defendant is verdict is considered evaluation, percent and is consid- more than 10 below the formerly procedure MCR 2.403 known as “mediation” was change August did not effective 2000. This renamed “case evaluation” change any rule. substantive effect plaintiff if it is more than 10
ered more favorable percent the evaluation.. .. above
(6) rule, For the of this actual costs are (a) action, any taxable in civil those costs (b) on a reasonable fee based a reasonable by hourly daily judge or rate as determined the trial for by rejection necessitated of the case evalua- services [Emphasis added.] tion.
In their motion for mediation sanctions under this argued adjusted verdict exceeded plaintiffs (which $108,000 percent is “more than 10 below the and, $120,000) accordingly, evaluation” of was not “more favorable defendants” under MCR such, plaintiffs they contended that were entitled to mediation sanctions under MCR 2.403(O)(l). Defendants mis- responded plaintiffs first, adjusted ways: calculated verdict two “assessable costs” from the to the verdict rather than from the and, second, to the case evaluation including attorney fees “assessable costs.” The cir- sanctions, cuit court denied motion for agree- ing with defendants that “assessable costs” are limited to taxable costs incurred from the date the complaint is filed until the date of case evaluation and do not include attorney fees. court,
In affirming the decision of the circuit
Appeals panel acknowledged
Court of
Beach v
Co,
612;
State Farm Mut Automobile Ins
216 Mich App
(1996),
Co,
included deter- used to sanction, not in costs” but “assessable be should awarded. mine whether sanction costs also that the assessable explained The Court 2.403(0X3) are to a verdict under MCR are added from the incurred those In concluding, so of the case evaluation. in apply- the Grow Court declined to follow Appeals in inter- rule of “last antecedent” construction
ing the rule. This rule of construction the mediation preting “ ‘ clause modifying “a is confined matter something subject antecedent unless last a differ- statute] purpose [of or dominant ’ ” Rd Kent Co interpretation.” Haveman v ent 18; (1959), Comm’rs, 11, 356 Mich Park, Kales v Oak quoting (1946), Hopkins, 287 Mass quoting Hopkins The con- 192 NE Court of of the last rule cluded that antecedent filing of phrase mean that the “from the this case would of the mediation evaluation” the date on the amount of the verdict” only modified “interest 2.403(0)(1). panel not “assessable costs.” MCR an concluded such 497. purpose.” its dominant “skews Therefore, modifying phrase panel held costs” and to both “assessable applied This the court “interest.” construction concluded, the overall keeping was more with encourage rule, which are “to of the mediation purposes *5 settlement, deter protracted litigation, and expedite simplify the final settlement of cases.” 252 Mich App 498. agree
We
with the Court
that attorney
fees, whether
incurred before or after the mediation
evaluation, are not an element of “assessable costs”
2.403(O)(3).
under MCR
general
“American rule” is
“attorney
are not ordinarily
fees
recoverable un-
statute,
less a
court
or common-law exception
provides
contrary.”
Dev,
the
Inc,
Nemeth v Abonmarche
16, 37-38;
Plaintiffs have urged upon us the position that utili- zation of the “last antecedent” rule would support the conclusion that the modifying phrase applies only to Here, however, “interest.” the last antecedent guidance little because there are no textual indicating clues that “assessable costs” and “interest” are to be treated separately. To the contrary, the fact joins “and” “assessable costs” and “interest on amount of the verdict from the filing of the complaint to the date of the case evaluation” suggests that phrase “assessable costs and interest” is to thought be a single term, and, unit, as as a by is modified “from Burak Concurring by J. Weaver, case 2.403(0)(3). sug- Moreover, plaintiffs’ evaluation.” produces conceptual difficulties gested reading limit it no at all to “assessable provide temporal would remorse- possible party, make it for a and would costs” award, to the mediation accept its failure to ful over mediation and trial accru- itself between advantage surely is an unnecessary costs. This outcome ing adopting not have been intended could the rule and Indeed, plain meaning rules. these *6 make it the rule structure clear that grammatical its evalua- temporal limit as date of case does set foregoing the basis of the tion. On construction, of judgment of we affirm the principles 7.302(G)(1). Appeals. of the Court Cavanagh, Taylor, Young, C.J., Corrigan, Kelly, and MARKMAN,JJ., and concurred. result).
WEAVER,J. I concur (concurring antecedent rule majority’s determination last interpretation not control the of the court at does in this case. issue reason- agree adopt
I with and applying the last antecedent rule MCR ing pur- court rule’s] “skews dominant [the encourage settlement, pro- is deter pose,” which and the final litigation, expedite simplify tracted and 490, 497; settlement cases.
669 to avoid separately I write its efforts rule, unnec- majority the last antecedent applying interpretation rule of when essarily creates new —that “and,” are treated joined by they to be phrases two for the antecedent rule as one term last 44 Concurring Opinion by Weaver, J. indicating they unless there some textual is clue separately. interpre- are to be treated This rule of new tation conflicts with the last antecedent which limiting phrase that a clause or should ordi- narily modifying only phrase be read as the noun or immediately that it follows,unless there is some indi- contrary.1 cation to the majority’s conflicting creation of the new rule of unnecessary although because, is the last well-recognized statutory
antecedent rule is a rule of optional, mandatory. construction, its use is not Statutory explains, Sutherland On Construction discovery last antecedent rule is “another aid to meaning uniformly intent or and is not inflexible and binding. Where the sense of the entire act qualifying phrase apply preceding word or to several succeeding phrase sections, or even the word or will not be restricted to its immediate antecedent.”2 opinion.
I concur the result of the memorandum Thomas, Barnhart v 20,_; 540 US 124 S Ct L157 Ed 2d (2003), citing Singer, Statutory Construction, 2A Sutherland on (6th 2000) (“Referential 47.33, p ed, § qualifying rev words and phrases, contrary appears, solely where no intention refer to the last antecedent.”). Singer, (6th Statutory 2A Construction, 47.33, Sutherland on p § *7 2000). rev ed