Lopez-Flores v. Hamburg Township, 460 N.W.2d 268

460 N.W.2d 268

Mich. Ct. App.

1990

Per Curiam.

Plaintiff appeals as of right from an order denying his motion to set aside previous orders which assessed costs and attorney fees against plaintiff and in favor of defendants Ham burg Township Police Department and McPherson Community Health Center. We reverse.

The facts are undisputed. Plaintiffs son drowned in a boating accident on August 1, 1982. On July 30, 1984, plaintiff, in propria persona, filed in Wayne Circuit Court an action against the police department, the health center, and others alleging wrongful death and malpractice. The action was dismissed without prejudice in 1985.

On July 27, 1987, plaintiff, in pro per, commenced the instant action in Wayne Circuit Court, alleging the same claims as the earlier case. The circuit court subsequently granted defendant Hamburg Township’s motion for summary disposition. The order granting summary disposition included the following provision:

[N]o costs or fees are assessed against Plaintiff at this time. However, in the event that Plaintiff institutes another action against this Defendant arising out of the subject events described in the Complaint (i.e. the death of Plaintiffs son), Plaintiff will be assessed substantial costs.

The circuit court also granted defendant McPherson’s motion for summary disposition. The order granting the motion stated:

This matter having come before the Court through the Motion of the Defendants, Plaintiff having appeared and stipulated to the relief sought;

. . . [T]his matter stands dismissed with prejudice and without costs; however, if the Plaintiff restarts the instant litigation, the Court will award actual expenses in favor of the Defendant McPherson Community Health Center for the instant case in any additional litigation that is dismissed by the Court.

Plaintiff subsequently filed an action in propria persona against defendants in federal district court. That action also arose out of the death of plaintiffs son and alleged claims similar to those raised in state court, as well as various civil rights claims. Defendants moved for summary judgment and the action was dismissed, apparently without prejudice. According to plaintiff, the federal court did not assess costs against him.

Relying on the above-quoted portions of the Wayne Circuit Court’s orders, defendants returned to that court and filed motions for assessment of costs against plaintiff. The motions were granted and each defendant was ordered to submit a bill of costs. On February 17, 1989, the court ordered plaintiff to pay to defendant Hamburg Township attorney fees of $584, the amount which, according to its bill of costs, the township spent for its defense of the federal action. The same day, the court also ordered plaintiff to pay costs and attorney fees of $1,800 to defendant McPherson.

Plaintiff subsequently filed a motion to set aside the orders assessing fees and costs. Plaintiff asserted that the orders granting summary disposition provided for sanctions only if he pursued further litigation in the Wayne Circuit Court, so that his federal action fell outside their scope. By order entered April 10, 1989, the court denied plaintiff’s motion, assessed an additional $25 against him, and required him to appear for a creditors’ examination. This appeal followed.

We first consider whether the circuit court erred by refusing to set aside its order requiring plaintiff to compensate defendant Hamburg Township for the cost of defending the federal court action.

Michigan follows the rule that attorney fees may not be recovered as an element of costs unless authorized by statute or court rule. Baumgardner v Balmer, 157 Mich App 159, 160; 403 NW2d 525 (1987). When costs are recoverable, any attorney fee may also be recovered if authorized by statute or court rule. Id.; MCL 600.2401; MSA 27A.2401, MCL 600.2405(6); MSA 27A.2405(6). We are aware of no statute or court rule which authorizes one court to award costs and attorney fees for services performed in another court. Indeed, our Supreme Court has stated that ordinarily it is the court in which services were rendered that should determine the amount of attorney fees awardable. In the Matter of the Attorney Fees of Kelman, Loria, Downing, Schneider & Simpson, 406 Mich 497, 504; 280 NW2d 457 (1979). This apparently is based on the familiarity the court hearing the matter would have with the services performed as well as the appropriateness of an award of attorney fees in the case.

This Court has held that a circuit court must have jurisdiction in order to assess costs. Oscoda Chapter of PBB Action Committee, Inc, v Dep’t of Natural Resources, 115 Mich App 356, 365-366; 320 NW2d 376 (1982), lv den 417 Mich 905 (1983). Generally, this means the circuit court can assess costs if allowable in circuit court, if the costs were incurred in a proceeding within the jurisdiction of the circuit court, and if the costs were taxed at a time when the circuit judge had jurisdiction to tax costs. Id. Accordingly, a circuit court judge may not tax costs incurred on appeal. Id. at 365. See also Minor v Michigan Education Ass’n, 127 Mich App 196, 203-204; 338 NW2d 913 (1983).

We conclude that the trial court exceeded its authority in awarding defendant Hamburg Township attorney fees to recoup its expenses in defend ing plaintiffs federal court action. The decision whether to award costs and attorney fees incurred in federal court should have been left to the federal judge who heard the matter, not a circuit court judge who had no jurisdiction over that case. If the township is aggrieved by plaintiffs filings, its remedy is to seek costs in the court where each action is filed, not to travel back to Wayne Circuit Court requesting costs and attorney fees.

It is unclear whether defendant McPherson’s $1,800 bill of costs, upon which the circuit court based its order assessing costs against plaintiff, represented a bill for services performed in federal district court or in state circuit court, or both. The bill is largely deficient, specifying neither when the services were rendered nor for which lawsuit they were performed. It references both "circuit court fees,” apparently referring to plaintiff’s 1987 state court action, and services performed in bringing a motion for summary judgment, apparently referring to plaintiff’s federal court action.

To the extent that plaintiff may have been ordered to compensate defendant McPherson for costs and attorney fees arising out of his federal court action, the circuit court erred in refusing to set aside the order. As with the order assessing attorney fees in favor of defendant Hamburg Township, the circuit court lacked the authority to award costs and fees incurred by McPherson in defending the federal action.

To the extent that plaintiff may have been ordered to compensate McPherson for costs and attorney fees associated with its defense of the 1987 circuit court action, the court also erred in refusing to set aside the order. The order granting summary disposition in favor of McPherson in the 1987 circuit court case provided that the court would award McPherson actual expenses "if the Plaintiff restarts the instant litigation” which is "dismissed by the Court.” The language, "the instant litigation,” can only be construed to mean plaintiff’s 1987 suit. "The Court” can only refer to the Wayne Circuit Court. Plaintiff, however, has not attempted to revive his 1987 state court action. Nor has he instituted a subsequent Wayne Circuit Court action which resulted in dismissal by that court. Plaintiffs federal action therefore falls outside the scope of the court’s order granting summary disposition. The court erred in assessing costs and attorney fees on the basis of that order and thus erred in refusing to set aside its order assessing costs in favor of McPherson.

Reversed.