*1 750 HICKS v OTTEWELL 1988, Decided No. Submitted June at Detroit. Docket 96853. February 1989. Walker, Jr., Hicks, Meyering Martin collec- Dale Clinton and Cars, Inc., brought tively of an the landlord lessee Northside Division, Court, seeking 4th the action in the 52nd District payment past of due rent Northside Cars and Northside Car Ottewell, corporate attorney. Under officer Richard S. court, judgment defendants consent entered $2,400 pay plaintiffs plus upon interest the settlement were to pending of a action in Oakland Circuit Court. The related agreed satisfy parties plaintiffs would not seek to further judgment circuit action was con- consent until the Plaintiffs, however, garnishments execu- cluded. filed for and satisfy attempt against tion defendants’ assets in an obtaining judgment. in a district court Defendants succeeded garnishments quashing order and execution. The order attorney provided that defendants could tax costs and further Although postjudgment proceedings. fees at the Julian incurred defendants, M. record for defendant Levant was the permission knowledge or drafted Ottewell without Levant’s motion and fees and the related notice of for costs proof support affidavit and service. The request prepared signed by fees was and for costs Nair, James R. an officer and director of Northside Cars. motion, signed of costs and Ottewell Levant’s name on bill Hansen, secretary, proof and had his Marion notarize of service they district court. the documents before were filed with the motion, Levant aware concluded it was ill became court, advised, suspecting withdrew The district it. requirement violation sanctions were order for a signed by party’s pleading that a under MCR 2.114 must Levant, record, party’s attorney of ordered Ottewell and Han- Following hearing, appear hearing. sen to for a References 2d, 13; Pleadings 339. § § Am Jur Notaries Public Motions; Public; See the Index to Annotations under Notaries Pleadings. Hicks v Ottewell Ottewell, court ordered pay Nair and Levant plaintiffs’ attorney $1,000 each, payable and fined them addition, district court. In the district court issued orders directing notary-public of State to revoke the commissions of Ottewell and Hansen. The Oakland Circuit Court, Gilbert, J., Ottewell, appeal. Alice L. affirmed on Nair *2 sought granted and Levant and were leave to before the Appeals. Court of Appeals The Court of held: requires 1. every pleading MCR 2.114 party repre- that of a by attorney signed by sented an attorney be at least one party. that, provides record for the by The court rule further (1) signing pleading, signer the certifies: he has read the (2) pleading; information, knowledge, to the best of his and inquiry, pleading
belief formed after reasonable the is well grounded by existing good- in fact and is warranted law or a argument extension, modification, faith for the or reversal of (3) law; existing pleading interposed and is not for improper purpose, unnecessary such as to harass or to cause delay litigation. or needless increase in the cost of Where a pleading signed 2.114, in violation of MCR a court shall sanction, appropriate including attorney an reasonable case, fees. In this the record disclosed a violation of MCR 2.114 ordering and the district court therefore did not err in appellants pay plaintiffs’ attorney to fees. damages 2. Punitive are not available in this state. The appellants district court’s fine of on each of the imposed punishment improper. in this case and is therefore remand, On the district court’s order is to be modified so as to $1,000 penalties appellants. strike the on the power 3. notary to revoke the commission issued to a public upon presentation satisfactory evidence of official incapacity Governor, by misconduct or is vested in statute delegated power Thus, Secretary who has that to the of State. authority Secretary since the district court lacked to order the notary-public of State to revoke the commissions of Ottewell Hansen, and the district court’s orders to the of State are vacated. appellants process 4. The were not denied due of law because commanding appear hearing gave the order them to for a no hearing potential advance notice of the nature of the or their liability appellants given ample oppor- for sanctions. The were tunity hearing question present argu- at the to witnesses and were, therefore, prejudiced by ments and not the lack of notice. part, part, Affirmed in reversed in and remanded. App Opinion the Court Kelly, P.J., all of and would strike dissented Kelly Judge by would the district court. procedural appellants’ rights due were to that
hold reasonably to calculated there was no notice violated since hearing into prior matters them called inform court, by judge func- question judge, prosecutor the witnesses were and a and tioned both as a testify against both required in violation of themselves Kelly Judge also hold constitutions. would and state federal refusing allow discretion in the circuit court abused its arguments denying appellants present in 'the and oral findings appellants’ of fact and conclusions of law motion support of its of the district court’s orders. affirmance Pleading — — Sanctions. 1. Motions and Orders attorney may properly party be A ordered and his of record opposing party’s fees pay and incurred costs by party motion responding where the to a motion made proof accompanying service notice of and its attorney, party, and contain drafted his actually signatures purporting to those of the but requirement forged party; such motion violates the every pleading party represented by must be of a *3 by signed one of record who has read least 2.114). (MCR pleading Damages. Damages — 2. Punitive punishment party’s Damages mis- for not be awarded conduct. — —
3. Notaries of Commission Statutes. Revocation notary public power to to a The revoke commission issued presentation satisfactory Upon official misconduct evidence of Governor, delegated incapacity in has is vested who (MCL 16.133, 55.107; MSA power to the of State 5.1041). 3.29[33], Ledwon, Ottewell, H. Clarence for Richard S. R. and M. Levant. James Nair Julian Kelly, P.J., and J. and Maher Before: Michael Warshawsky,* M. JJ. Warshawsky, defen- granted, leave By
M. * assignment. Appeals by judge, sitting Circuit on Court Hicks v Ottewell Opinion op the Court Ottewell, M. Julian Levant and dants Richard S. 10, 1986, from a R. Nair November James affirming Court order Oakland Circuit imposed by Court, 4th Division. the 52nd District Levant are Oakland
Defendants Ottewell and attorneys. County is an accoun- Defendant Nair employed by Both Nair tant defendant Ottewell. of defen- are officers and directors and Ottewell dant Northside Cars, Inc. plain- underlying action was commenced
The Meyering, Martin Hicks, and tiffs Dale Walker, Clinton July, 1981, Jr., district court in in past $3,000 and due rent from Ottewell recover Cars, was settled Inc. The action Northside February judgment 14, 1984. The entered consent plaintiffs judgment in the amount was in favor of plus paid at time of to be interest upon judgment or of a related the settlement pending in the Circuit Court. action parties Oakland agreed plaintiffs
separately would not judgment satisfy until seek to consent concluded. circuit court action was agreement, April spite on In of that plaintiffs against quash garnishments execution and filed moved to Defendants
defendants’ assets. May 23, and, at a on plaintiffs’ attorney, Foster, admitted 1985, David garnishments im- that proper and execution understanding contrary and parties. court en- On June quashing garnishments tered an order provided tax could execution and costs that defendants necessity repre- "for fees proceedings.” post-judgment sentation these *4 began July controversy on in this The were filed when several documents bearing signature Levant, M. of Julian court including attorney defendants, a mo- for of record 174 Mich Opinion of the Court tion for entry allowing an order costs and 2.114, attorney sanctions, fees under MCR notice and proof service. Defendant Otte- prepared well papers signed Levant’s them, name to permis- with Levant’s purportedly sion pursuant to a prior agreement between attorneys. agreement, Ottewell, Under a de- fendant in the action and an attorney, was to prepare pleadings while filing Levant was listed as of record and ap- made court pearances. agreement was made to reduce Ottewell’s fees to pleadings Levant. The prepared and filed without Levant’s actual knowledge signature. Nair, accountant, pre- pared the affidavit in support of the motion for costs and the bill of presented costs. Nair then them to Hansen, Ottewell’s secretary, Marion who signature motion, costs, notarized the on the bill of proof of service. later, Weeks motion, Levant learned of the be- lieved it was ill advised and notified the court of its August 1, 1985, withdrawal. On the district court judge, motion, on his own directed the sheriff to serve to appear orders at an evidentiary hearing plaintiffs’ on Foster, attorney, David defendant’s Levant, attorney, Ottewell, and Ottewell’s secretary, Marion Hansen. August 29, 1985,
On and witnesses attorneys appeared before court as directed. Ledwon, Clarence the attorney representing Otte- Levant, well and objected that the trial court had given his clients notice of the nature of the hearing or sufficient opportunity prepare. Led- won requested an adjournment and that support- ing affidavits be filed. The district denied the motion. The court then took testimony and concluded that sanctions imposed. would be
On February district court *5 755 Hicks v Ottewell Opinion the Court of against Nair under MCR Ottewell 2.114(E). imposed $1,000 a costs and court attorney, plaintiffs’ paid attorney fee to be against the fines then The court Foster. three defendants penalty,” system, the as a the abuse of "for payable In each, to the court. at January entered addition, on directing to revoke of State orders attorney notary-public Ottewell commissions secretary, Hansen. his argue first Defendants pur- Attorney awarding Foster $1,000 to in
erred
2.114(E).
produced at the
The facts
suant to MCR
August
Levant had
show that
signature
pleadings
which his
not read
signed Le-
and Nair
and that Ottewell
attached
signed
indicating
they
name without
vant’s
2.114(B) requires
capacity.
representative
MCR
a
represented by
pleading
party
every
an
aof
that
attorney
signed by
least one
2.114(D)
signing
provides that,
MCR
record.
pleading,
(1)
signer
has read
he or she
certifies:
(2)
pleading;
her knowl-
of his or
best
edge,
reason-
information,
formed after
and belief
grounded
pleading
inquiry,
in fact
is well
able
and is warranted
existing
good-faith
law or
argument
extension, modification, or rever-
for the
(3)
pleading
existing
is not
law; and
sal
improper purpose,
interposed
such as
unnecessary delay or needless
harass or to cause
litigation.
in the cost of
increase
pleading
signed
MCR
in violation of
Where a
appropriate
2.114, the court "shall”
pay
order to
sanction,
include an
which
parties
party
the reason-
the amount of
or
other
filing
expenses
incurred because
able
pleading,
including
fees. MCR
reasonable
2.113(A)
2.114(E).
provisions of
makes the
MCR
756
Mich
Opinion op the Court
applicable
MCR 2.114
to motions and affidavits.
Michigan
Reynaert,
Bank-Midwest
Inc,
v DJ
(1988).
App 630, 644;
Defendants next contend that
payable
$1,000
in the amount of
to the court were
2.114(E).
improper under MCR
The district court
pay
ordered
$1,000
defendants to
to the court
"for
system,
penalty.”
agree
the abuse of the
as a
We
damages
designed
with defendants. Punitive
are
punish
party
Michigan, puni-
a
for misconduct. In
damages tive
not be awarded. Association
Development Corp
Research &
v CNA Financial
Corp,
App 162,
123 Mich
171;
does not damages damages may and because not be punishment, awarded as the district court erred Accordingly, this case. the district court order is to striking penalty modified, district court.
Defendants next contend that the district court Hicks Ottewell v Opinion of Court Secretary jurisdiction to of State order the lacked to revoke notary of commissions Ottewell agree. 55.107; MSA 5.1041 vests We MCL Hansen. power to revoke com- the Governor with the upon notary public presenta- to a mission issued tion satisfactory misconduct evidence of official delegated power incapacity. This has been Organi- Secretary Executive of State under the 3.29(33). Act, 16.133; MSA The district zation MCL jurisdiction to court and the circuit court compel lack discretionary an officer act government. Const branch of the executive Twp Bd, 342 Mich 3, § 2; Randall v Meridian art 605, (1955). therefore vacate 608; 70 We NW2d January 23, 1986, the district court’s order directing revoke State public notary Ottewell commissions secretary Hansen. and his argue Lastly, district court defendants failing give advance notice erred charges against and, result, the sanc- them as a of law. We without due tions were *7 procedure provide disagree. not a MCR 2.114 does imposed. can to be be followed before requirement of due However, fundamental process ingful opportunity a to heard at mean- is the meaningful manner. Matthews
time in Eldridge, 893; L Ed 18 319; 96 S 47 2d v 424 US Ct (1976). requires process regard notice, to due With " 'reasonably calculated, under all cir- notice parties apprise cumstances, interested to oppor- pendency them an and afford the action ” objections.’ present tunity Trussell v their App 312, 323; 382 NW2d Decker, 147 Mich (1985), citing Bank & v Central Hanover Mullane 652; 94 L Ed Co, 306, 314; 70 S Ct 339 US Trust 865 (1950). oppor- given ample case, In this defendants Michael J. P.J. Kelly, tunity the hearing question witnesses present arguments were, their therefore, prejudiced aby Moreover, lack of notice.
rule allows the trial court "on its own initiative” an appropriate sanction for violation of 2.114(E). the rule. MCR The court made it clear that the hearing was not in the nature aof con- tempt proceeding, but merely fact-finding pro- ceeding to determine if there was a violation of the Thus, rules. argument defendants’ same procedural process due requirements apply to contempt proceedings apply here as well is without merit. We find no error.
Affirmed in part, reversed in part, and re- manded for entry of an order consistent with this opinion. We do not retain jurisdiction. J., concurred.
Maher, (dissenting). would strike all of the sanctions imposed by the district court as I believe its actions violated defendants’ procedural due rights.
This chain of events was started in motion when judge district up fired engine and, his own on August 1985, with nothing pending him, before sponte sua directed the sheriff to serve "orders appear” at an evidentiary hearing on all attorneys and subpoenas on Richard Ottewell and Marion K. Hanson. These orders are memorialized in the district court’s docket entries. Actual written court orders provided are not this Court and are not contained in the record below. parties
When the convened on date as directed on August 1985, an attorney, Ledwon, Clarence representing Messrs. Ottewell and Levant moved on the record *8 for a specification by the court of the nature of the Hicks v Ottewell by Kelly, P. J. hearing opportunity prepare and sufficient to pre- for time to requested adjournment it. He affidavits be filed. supporting and also that pare ground further hearing on the objected He before, subpoenas only day were served 2.506(C)(1), requires two to MCR which contrary replied: The district days. judge case. I right, adjourn I’m this All why no idea maybe you some of have realize that this case is show that you’re here. The record will I’m here to my own initiative. on the docket at truth, some guess. I I intend to take gather some Ledwon, ample op- have testimony. you Mr. will seen, if it portunity to see whatever something of this after conclusion done, whatever, I’ll address further needs to be that power in a case that other issue, Court has inherent but I think this lawyers to call into court who are involved
is before the court as well have an persons for that matter who subject matter of the lawsuit. It’s this interest inherent contempt power. necessarily This is not trial, just have some proceeding, nobody’s on Maybe questions nothing compelled I feel to ask. it, I don’t know. will come of con- and examination was Witnesses were sworn Ten marked exhibits judge. ducted witness, Attorney to the first judge handed testified to conversations David Foster. Mr. Foster (Mr. Julian Levant. Counsel Attorney he had with Ledwon) attorney-client asserting objected Mr. objection. privilege. The overruled on mat- Mr. Foster then Ledwon cross-examined Mr. point At one the exhibits. pertaining ters judge: Ledwon asked the witness instruct Mr. Can the court Ledwon: question? answer *9 by Kelly, Michael J. P.J. Dissent questioning is not This entire line of The Court:
relevant, long. go quite you Mr. I’ve—I’ve let Ledwon. Honor, .... Your I would Mr. Ledwon: I proceedings. these The Court: Not relevant disadvantage be- you’re somewhat of a realize cause here, and that’s you why didn’t know we’re go you far as have on why these —in permitted you I matter, this but it’s relevant. Honor, Han- representing Miss Mr. Keller: Your nothing young, regard, in this who is but sen recently trained, secretary, question this legal notarization, signature, respect with Court, by the I and do not see the basis for the relevance not is deemed irrelevant what for Miss in that appear today in Court Hansen’s order to respect. pertains your It as it The Court: is relevant client; office. his to how Mr. Foster runs not relevant as Big difference. Well, Honor, respect, I your Mr. Keller: in that —I or relevance. do not see differentiation If ... . Well, clearer perhaps The Court: it will become having a go are Maybe you as we on. some important understanding what’s difficult time why you’re know you
what isn’t. I realize don’t here, you why don’t know perhaps, you or claim signs not Mr. Foster you’re here. Whether or pleadings consent or what- somebody with else’s ten, ever, through is not relevant to exhibits one in this file. which are the court exchange
This led to a further between in the and counsel for Marion Hansen course requiring Mr. Keller to the order objected which time At this appearance Ms. Hansen’s court. improper expressed its concern court which pleadings had been filed the court were prompted Mr. Ledwon to ask if attacking forgery the documents on the basis of being prepared. replied: ill The court Hicks Ottewell v Michael warm, getting getting you’re The Court: You’re warm, Mr. Ledwon. contempt getting into Mr. Ledwon: —then we’re Honor, .... and we’re proceedings, your contempt proceeding It’s not a The Court: ... . yet it heard
Mr. —entitled to have Ledwon: judge. another contempt proceeding yet. —it is not a The Court: that, agree you, with some other
If it comes to Judge trying it. I’m to learn some to hear *10 right truth now. Attorney Julian Levant the court called
Later on to the stand. mony any objected Mr. Ledwon testi- attorney- Mr. Levant on the basis of throughout privilege. court, was which client questioning, conducting the ruled: Well, attorney-client I there is an realize to matters that relationship, are not exhibits, only but that relates questions these public. I can ask him about privileged. They are they because are not file for the entire world to place see. [sic] There .... Mr. If the .... Ledwon: privilege —is no that attaches to
The Court: those documents. are, Honor, if they your —if Mr. Ledwon: relating allegations any criminal
there’s nature, then this anything or of that matters very important question relative to becomes a privilege. attorney-client you what mean. The Court: I don’t understand again, a I—I don’t this is Mr. Ledwon: know— Honor, I know how far the hearing, your don’t go. an intent on the gonna Court’s Court to is the Whether there’s so, crime, and if prove forgery, delegated Honor, prosecutor, to a and not to a duty respectfully your I submit. judge, Well, agree, conceivably be I It it could The Court: is, however still a matter of a criminal matter. contempt, which is contempt, might be a matter of power of this Court. within the followed, procedure Thereafter the same Nair, and an R. an accountant calling James Cars, during which the court of Northside officer made and the examination and both conducted seventy At the conclusion of ruled on objections. the follow- the court made pages testimony of such ing statement: going right, very All at the least I’m The Court: sanctions, quite and I’m not sure
to to what extent and time. I’m not some point against to at this whom today, rule on that but I’m that. I think there’s been some going to do least least, pleadings very filed at the real unauthorized flag Mr. Foster’s been run around and pole, think that. compensated entitled to and he’s findings the court did not thereafter make While orders, purport- it did issue two both contempt of the court held on ing to issue at a session it at which ordered Secre- January notary of State to revoke commissions tary *11 K. and Marion Hansen. Never Richard S. Ottewell of its authority the court the source identify did for those orders. February convened on again
Court was it to going stated at which time " the court rules.” At this sanctions under MCR 2.114. Mr. Ledwon time the court referred to as follows: addressed the court proceeds, your Mr. Ledwon: Before Court Honor, wondering if the Court I wonder —I’m filed, ah, which were have the two exhibits would ah, presented that were Clerk the Motions Hicks v Ottewell Michael here, they I left 'em at the ah —I believe were here here, now, right they’re your before . . . here Honor? ah, I a Motion that we have made and if One is expound upon permitted be the same? No, seat, Mr. I’m The Court: have a Ledwon. to do I’m to do.
about whatever record, separate Mr. we make a Ledwon: Can have the ah ... . No, please sit down.
The Court: proof? Mr. Ledwon: —the offer of The Court: Sit down. against
The court sanctions Messrs. Otte- 2.114(E). under MCR Those are well and Nair opinion. re- majority referred to would sanctions, to all not only verse the district court as sanctions, because there was no due penal to inform the process reasonably notice calculated question the matters called into parties subpoenas were violative judge. 2.506(C)(1). The district court con- MCR as an interested as a hearings party, ducted the proceedings over the prosecutor presided required testify The witnesses were judge. in violation of both federal and against themselves process; This was not a this state constitutions. was a mess.
To those who would observe that the court rule a trial court "on its own initiative” permits violation of MCR impose appropriate 2.114, I that orders a reply would give notice of what hearing should notice, should conso- timely, about. Such be time restrictions for motion practice nant with the in accordance MCR in the local venue or with 2.119. appellants I would observe that did
Finally, due on to the circuit not receive *12 appellate appropriate In case an tribunal court. empowered peremptory affirmance. to enter a opinion This is not the case for such an order. The Novem- dated October and order entered findings 3, 1986, in the circuit court made no ber separate In in a of fact or conclusions of law. fact judge appellants’ motions order the circuit denied findings of fact and conclusions law argu- rehearing grant denied for failure to oral her ment. The circuit abused discretion. Appellants right argument oral in their had a 7.101(K). pursuant circuit court to MCR Although specific requiring no there is rule sitting appellate court, court, circuit as an to make findings law, I of fact and conclusions of believe process requires something that due more than appellants afforded the in this case again rattling circuit court. Since am dissent basement I am not sketching undertake perimeters parameters. of those every I would reverse each and order of the appellants. district court and award costs to the