-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

LANSING PARKVIEW, LLC, 

Plaintiff/Counterdefendant/ThirdParty Defendant-Appellee,

UNPUBLISHED

October 23, 2018

No. 338284

Ingham Circuit Court

LC No. 13-000723-CK

v

K2M GROUP, LLC and DON L. KESKEY, 

Defendants/Counterplaintiffs/ThirdParty Plaintiffs-Appellants,

and

ROBERT REID and JOEL I. FERGUSON, 

Third-Party Defendants-Appellees.

LANSING PARKVIEW, LLC, 

Plaintiff/ Counterdefendant/ThirdParty Defendant-Appellee,

No. 339030

Ingham Circuit Court

LC No. 13-000723-CK

v

K2M GROUP, LLC and DON L. KESKEY, 

Defendants/Counterplaintiffs/ThirdParty Plaintiffs-Appellants,

and
-2-

ROBERT REID and JOEL I. FERGUSON, 

Third Party Defendants-Appellees,

and

BRIAN W. COYER, 

Appellant.

Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

Defendants, K2M Group, LLC and Don L. Keskey, appeal as of right the order of the 

trial court awarding attorney fees and costs to plaintiff Lansing Parkview, LLC in the amount of 

$262,772.33. Defendants, together with appellant Brian W. Coyer, also challenge the trial 

court’s order imposing sanctions on Coyer. We affirm.

I. FACTS

At the times relevant to this case, plaintiff Lansing Parkview, LLC owned property at 505 

N. Capitol Avenue in Lansing. The sole member of Lansing Parkview, LLC is third-party 

defendant Joel I. Ferguson. Defendant Keskey is an attorney and is the sole member of 

defendant K2M Group, LLC. Appellant Brian W. Coyer is an attorney representing defendants 

as co-counsel with defendant Keskey.

This case arises from defendants’ breach of a lease agreement relating to the property at 

505 N. Capitol Avenue. The resulting breach of contract case was previously before this Court. 

The facts underlying that previous case, and also underlying this appeal, were set forth by this 

Court in its opinion in that case as follows:

On June 21, 2006, plaintiff and defendants entered into an 18-month lease 

for the entire 20,000 square foot building and 30 parking spaces on the property at 

a monthly lease rate of $8,600. The lease provided that defendants would pay for 

all of the operating expenses during the lease term including the property taxes, 

insurance, maintenance, and utilities. Simultaneous with entering into the lease, 

the parties entered into an option to purchase the property for $1,250,000 at any 

time during the lease period. The option provided for a payment by defendants of 

$250,000 as “Option Money” upon execution of the option “as a non-refundable 

option payment” that would be applied as a credit against the sales price if 

defendants exercised the option and purchased the property.
-3-

Defendants exercised several extensions of both the lease and the option to 

purchase and, on June 30, 2008, the parties executed an addendum to the lease 

and to the option to purchase that extended the terms of both until June 30, 2009.

On June 10, 2009, the parties executed a “Third Addendum to Lease” that 

extended the terms of the lease to December 31, 2010, and also executed an 

“Addendum to Option to Purchase” that extended the time for exercise of the 

option until December 31, 2010. At that time, however, defendants were in 

default under the terms of the lease for failing to make lease payments in 

accordance with the term[s] of the lease and for non-payment of property taxes.

Defendants agreed to pay the amount of deferred rent and to reimburse plaintiff 

for unpaid property taxes on or before July 15, 2009.

On March 29, 2010, plaintiff sent defendants a letter indicating that 

$107,988.68 was then due and that plaintiff would consider entering into an 

agreement for leasing a portion of the building and five parking spaces for $4,000 

per month with plaintiff having responsibility for paying all utilities, building 

insurance, and general maintenance. The proposal also included a requirement 

that defendants enter into a promissory note payable to plaintiff and a guarantee 

for all delinquent amounts due under the lease.

On August 6, 2010, the parties entered into a new lease and a new option 

to purchase, effective May 1, 2010 and terminating October 31, 2011. The new 

lease provided that plaintiff could cancel the lease if plaintiff sold the property or 

leased the property to another party. The new lease included a provision for 

holding over on a month to month basis for 115% of the rent charged during the 

period of the new lease. The new option included an amortization schedule that 

allowed for a credit of $250,000 at the time of closing for the initial option 

payment and allowed rent credits according to a formula from the time of the first 

lease on June 21, 2006, through the date of exercise of the option. Thus, the 

purchase price of $1,250,000 provided in the option would be reduced to 

$863,265.13 on May 1, 2010, if the option was exercised. The new option 

provided that the option could not be extended except by written agreement of 

both plaintiff and defendants, and provided that “[t]his represents the entire

agreement between the Lessor and Lessee except for a Lease Agreement and 

Promissory Note given by Lessee to Lessor of even date, and supersedes or 

replaces all prior agreements, or understandings, either written or oral.”

The new lease expired on October 31, 2011. Plaintiff offered to extend 

the lease from November 1, 2011, until April 30, 2013, and proposed an extension 

of the promissory note until April 1, 2013. Plaintiff did not offer to extend the 

option to purchase. Defendants did not agree to execute an extension of the lease 

or the amended promissory note and, consequently, became a month-to-month 

tenant as of November 1, 2011. On August 28, 2012, plaintiff served a notice to 

quit to recover possession of the property because defendants were delinquent in 

the payment of rent under the new lease and were in default in making payments 

due under the promissory note. Defendants surrendered possession of the 

property on September 26, 2012.
-4-

On January 23, 2013, plaintiff sent written notice of default under the May 

1, 2010 promissory note and guarantee and provided a 15-day period to cure the 

default by paying the total amount due of $152,159.56. On May 29, 2013, 

plaintiff provided written notice of default under the May 1, 2010 lease, the May 

1, 2010 promissory note, and the May 1, 2010 guarantee, and provided a 15-day 

period to cure the default by the payment of $159,951.69.

On July 1, 2013, plaintiff filed a complaint against defendants for breach 

of contract. Plaintiff sought a judgment of $130,990.26 as the unpaid principal 

under the promissory note and $12,000 as the unpaid rent under the lease plus 

interest, late payment fees, costs, and attorney fees incurred as a result of the 

default. Defendants filed a counter-complaint/third party complaint. . . . 

* * *

Defendants asserted that plaintiff had orally represented from the 

inception of the 2006 lease and option to purchase that “the overall transaction 

involved a purchase of the Property but would be structured on an on-going basis 

as a Lease/Option to Purchase because of the existence of a Due-on-Sale clause in

Lansing Parkview’s or Joel Ferguson’s mortgage on the property.” They alleged 

that the parties did not intend for a lease and option to purchase but, rather, a 

purchase of the property as demonstrated by the “down payment” and the 

amortization tables attached to the June 21, 2006 lease and option to purchase, the 

subsequent addendums to the June 21, 2006 lease, and the subsequent extensions 

of the June 21, 2006 option to purchase. Defendants alleged fraud in the 

inducement, promissory estoppel, breach of contract and warranty of good faith 

and fair dealing, unjust enrichment, tortious interference with contract, and breach 

of constructive partnership.

The trial court granted summary disposition under MCR 2.116(C)(9) in 

favor of plaintiff on its claims of breach of contract and breach of personal 

guarantee, and under MCR 2.116(C)(8) and (9) on each of defendants’

counterclaims with the exception of defendants’ claim of promissory estoppel. A 

bench trial on defendants’ claim of promissory estoppel resulted in a directed 

verdict in favor of plaintiff. The trial court entered a judgment against defendants 

in the amount of $173,496.60, plus costs and fees. [Lansing Parkview, LLC v 

K2M Group, LLC, unpublished per curiam opinion of the Court of Appeals, 

issued March 23, 2017 (Docket No. 328507), p 1-3 (footnotes omitted).]
-5-

This Court affirmed the judgment of the trial court in that case, and also denied 

defendants’ motion for reconsideration.1 Our Supreme Court thereafter denied defendants’ 

application for leave to appeal to that court.2

While the case was pending before this Court and our Supreme Court, the trial court 

determined the amount of attorney fees and costs to be awarded to plaintiff. The trial court held 

extensive hearings, and thereafter issued its opinion and order awarding plaintiff attorney fees

and costs in the amount of $262,772.33. The trial court also denied defendants’ motion for stay 

of enforcement without bond, and imposed sanctions upon attorney Coyer for bringing the 

motion.

Defendants now appeal to this Court challenging the award of attorney fees and costs. 

Defendants and Coyer also challenge the sanctions imposed upon Coyer.

II. ANALYSIS

A. ENTITLEMENT TO ATTORNEY FEES AND COSTS

Defendants first contend that plaintiff failed to demonstrate that it is entitled to attorney 

fees and costs and that the trial court therefore abused its discretion in awarding attorney fees and 

costs to plaintiff. Because this Court previously affirmed the trial court’s finding that plaintiff is 

entitled to attorney fees and costs, this issue is now governed by the law of the case.

“The law of the case doctrine holds that a ruling by an appellate court on a particular 

issue binds the appellate court and all lower tribunals with respect to that issue.” New Props, Inc

v George D Newpower, Jr, Inc, 282 Mich App 120, 132; 762 NW2d 178 (2009) (quotation 

marks and citation omitted). “A legal question may not be decided differently where the facts 

remain materially the same.” McNees v Cedar Springs Stamping Co, 219 Mich App 217, 222; 

555 NW2d 481 (1996). “Thus, a decision of an appellate court is controlling at all subsequent 

stages of the litigation as long as it is unaffected by a higher court’s opinion.” Id., citing Johnson 

v White, 430 Mich 47, 53; 420 NW2d 87 (1988). “The primary purpose of the doctrine is to 

maintain consistency and avoid reconsideration of matters once decided during the course of a 

single continuing lawsuit.” Lenawee Co v Wagley, 301 Mich App 134, 150; 836 NW2W 193 

(2013). This Court has also observed that the law of the case doctrine stems from “the want of 

jurisdiction in an appellate court to modify its own judgments except on rehearing.” Johnson, 

430 Mich at 53. Thus, “[i]f an appellate court has passed on a legal question and remanded the 

case for further proceedings, the legal questions thus determined by the appellate court will not 

be differently determined on a subsequent appeal in the same case where the facts remain 

materially the same.” New Props, Inc, 282 Mich App at 132. The law of the case doctrine 

 1 Lansing Parkview, LLC v K2M Group, LLC, unpublished order of the Court of Appeals, 

entered May 17, 2017 (Docket No. 328507).

2 Lansing Parkview, LLC v K2M Group, LLC, 501 Mich 981; 907 NW2d 562 (2018).
-6-

controls regardless of the correctness of the prior opinion. Sumner v General Motors Corp (On 

Remand), 245 Mich 653, 662; 633 NW2d 1 (2001).

In this case, on the final day of trial on the underlying claim, the trial court issued its 

ruling from the bench granting plaintiff a directed verdict on the remaining substantive issue 

before the trial court. The trial court stated:

Thus, a verdict is rendered in favor of Lansing Parkview and against K2M Group 

LLC and Don L. Keskey on the promissory estoppel claim. Additionally, costs 

and reasonable attorney fees related to this hearing are awarded. We will have a 

Smith versus Khouri hearing on anything that is contested.

The trial court then entered the judgment, which provided, in part: “It is further ordered attorney 

fees and costs [are] preserved and [are] to be determined by [the] court.” In this Court’s opinion 

on appeal, this Court specifically stated that the trial court had awarded attorney fees and costs, 

and affirmed the judgment of the trial court, stating:

Defendants . . . appeal as of right from a judgment entered by the trial court in 

favor of plaintiff . . . in the amount of $173,496.90, plus attorney fees and costs. 

We affirm. [Lansing Parkview, unpub op at 1.]

This Court denied defendants’ motion for reconsideration, and our Supreme Court thereafter 

denied defendants’ application for leave to appeal to that court.

After conducting a hearing over several dates, the trial court entered an order awarding 

plaintiff $262,772.33 in attorney fees and costs. Defendants now challenge the amount ordered, 

but also challenge plaintiff’s entitlement to attorney fees and costs in any amount. The 

determination that plaintiff is entitled to attorney fees and costs in some amount, however, was 

already made by the trial court in its previous decision on the underlying merits of the case, and 

this Court explicitly affirmed that award. So, although defendants may challenge the 

reasonableness of the amount of the award for attorney fees and costs subsequently ordered by 

the trial court, plaintiff’s entitlement to attorney fees and costs in some amount was already 

determined by the trial court and affirmed by this Court, and has become the law of the case.

B. THE AMOUNT OF THE ATTORNEY FEES AND COSTS

Defendants next contend that plaintiff failed to demonstrate the reasonableness of the 

attorney fees and costs sought, and that the trial court therefore erred in awarding that amount to 

plaintiff. We disagree.

This Court reviews a trial court’s award of attorney fees and costs for an abuse of 

discretion. Pirgu v United Services Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016). A

trial court abuses its discretion when its decision is outside the range of reasonable and 

principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

Under the “American rule,” which Michigan follows, attorney fees generally are not 

recoverable from the losing party as an element of costs. Haliw v Sterling Heights, 471 Mich 

700, 706-707; 678 NW2d 615 (2004). An exception exists, however, when a contract 
-7-

specifically provides for the award of attorney fees; in that case, such a provision is enforceable 

as a matter of damages and not as an award of costs. Jay Chevrolet, Inc v Dedvukaj, 310 Mich 

App 733, 738; 874 NW2d 146 (2015); Central Transport, Inc v Fruehauf Corp, 139 Mich App 

536, 548; 362 NW2d 823 (1985). Recovery of attorney fees provided for by contract is limited 

to reasonable attorney fees, and the party claiming the right to recover attorney fees under the 

contract must establish a prima facie case that the attorney fees are reasonable. Zeeland Farm 

Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195-196; 555 NW2 733 (1996).

In this case, plaintiff sought attorney fees in its complaint as an element of contractual 

damages. The trial court found that plaintiff was entitled to attorney fees in an amount to be 

determined by the trial court. The trial court then determined the reasonableness of the attorney 

fees by applying the analysis set forth in Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008). 

This Court has discussed the application of the Khouri analysis as follows:

To evaluate whether an attorney fee is reasonable, courts begin by determining 

the fee customarily charged in the locality for similar legal services. Khouri, 481 

Mich at 530. To determine this amount, courts should use “reliable surveys or 

other credible evidence of the legal market.” Id. at 530-531. Then, the reasonable

hourly rate should be multiplied by the number of hours that were reasonably

expended to reach a baseline figure for a reasonable attorney fee. Id. at 533.

Courts should make adjustments to the figure using the factors from MRPC 1.5(a) 

and Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982). 

Khouri, 481 Mich at 532. [Ford Motor Co v Dep’t of Treasury, 313 Mich App 

572, 590-591; 884 NW2d 587 (2015).]

On appeal, defendants disagree at length with the trial court’s findings regarding the 

amount of attorney fees and costs. Unfortunately, defendants do not identify which findings are 

challenged as incorrect and why.

For example, defendants argue that the trial court should have relied upon the testimony 

of defendants’ expert, being defendant Kreskey himself, rather than plaintiff’s expert. 

Defendants assert that plaintiff’s expert exhibited “blind acceptance” of the fees and costs 

asserted by plaintiff. Defendants do not identify anything in the record to support this assertion. 

The trial court stated in its opinion that “Plaintiff’s expert, Mr. Kleiman, appeared to this Court 

to be both credible and reliable” and further noted that it was relying upon “Mr. Kleiman’s 

findings, that this Court found to be more credible and reliable than Defendants’ expert, Don L. 

Keskey. . . .” Defendants give little basis for their argument, other than that Keskey had been 

present for all the hearings, whereas plaintiff’s expert witness (understandably) had not been. 

“[D]oubts pertaining to credibility, or an opposing party’s disagreement with an expert’s opinion 

or interpretation of the facts, present issues regarding the weight to be given the testimony,” 

Surman v Surman, 277 Mich App 287, 309; 745 NW2d 802 (2008), and generally, it is the 

factfinder’s responsibility to determine the weight to be given testimony. See King v Reed, 278 

Mich App 504, 535; 751 NW2d 525 (2008). We conclude that defendants have not identified 

any abuse of discretion by the trial court in accepting the testimony of plaintiff’s expert.

Defendants further contend that plaintiff did not prove the reasonableness of the attorney 

fees because plaintiff’s attorneys presented computer summaries with inadequate testimony to 
-8-

provide the necessary specificity. Defendants also assert that the number of hours billed was 

grossly disproportionate to the underlying claim. Defendants, however, do not identify where in 

the record this occurred and do not specify which billings they dispute and why.

Defendants argue that most of the fees and costs awarded do not relate to the claims 

arising from the lease, promissory note, and personal guarantee, and that eliminating the 

unrelated fees would reduce the fees and costs to nearly zero. Again, defendants do not identify 

which costs were unrelated, nor do they identify any place in the record referencing these 

amounts. “It is not enough for an appellant in his brief simply to announce a position or assert an 

error and then leave it up to this Court to discover and rationalize the basis for his claims, or 

unravel and elaborate for him his arguments, and then search for authority either to sustain or 

reject his position.” Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), quoting 

Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Because defendants’ general 

assertions do not direct this Court to any specific instance of error, review is rendered virtually 

impossible and we may consider the issue abandoned on appeal. Prince v MacDonald, 237 Mich 

App 186, 197; 602 NW2d 834 (1999).

Moreover, our review of the record indicates that there is no support for defendants’ 

contention that the attorney fees sought did not relate to the parties’ underlying agreement.3 

Defendants argue that many of the attorney fees arose from plaintiff’s defense of defendants’ 

counterclaims and from plaintiff defending the judgment on appeal. The lease between the 

parties provides that in the event of default the defaulting party under the lease agrees to pay “all 

costs, expenses and reasonable attorney fees incurred by the non-defaulting party in enforcing 

the terms of this Lease whether or not litigation has been filed against the defaulting party.” 

Similarly, the promissory note between the parties provides that in the event of default on the

lease agreement or in carrying out the terms of the note, defendant Keskey “agrees to pay all 

amounts due under this Note plus all costs and actual attorney fees incurred in enforcing the 

terms of this Note even if litigation is not brought to enforce the terms of this Note.” Likewise, 

the Personal Guarantee given by defendant Keskey provides that in the event of breach by the 

debtor under the lease, promissory note, or guarantee, defendant Keskey “shall also pay all of 

Lenders costs and expenses including reasonable attorney fees incurred by lender in the 

enforcement of the Lease, Promissory Note and/or this Guarantee.” The plain language of the 

parties’ agreement encompasses all attorney fees regardless of whether the attorney fees were 

incurred in litigation. Defendants’ suggestion that the fees are somehow limited to only those 

fees incurred by plaintiff pursuing its claim before the trial court is without support. Given the 

broad, inclusive language of the parties’ agreement regarding attorney fees, it cannot be said that 

the trial court abused its discretion in determining that attorney fees incurred by plaintiff in all 

aspects of enforcing the parties’ agreement were awardable.

 3 Again, to the extent that defendants challenge the enforceability of the documents forming the 

basis of the parties’ underlying agreement and establishing plaintiff’s contractual right to 

attorney fees, these arguments are precluded by the law of the case doctrine in light of this 

Court’s previous opinion in this case.
-9-

Further, a review of the record indicates that plaintiff presented ample evidence on the 

issue of the reasonableness of the attorney fees and costs during a hearing that spanned several 

days. In its detailed opinion, the trial court outlined its reasoning in accordance with the 

instructions of Khouri, explaining its calculations and reasoning based upon the evidence 

presented. Because defendants have failed to identify error in either the method or the 

application of the method employed by the trial court, it cannot be said that the trial court abused 

its discretion in determining the amount of reasonable attorney fees and costs.

C. DISCOVERY

Defendants next contend that they were deprived of their constitutional right to due 

process because the trial court would not enforce their discovery requests regarding attorney fees

against plaintiff. We disagree.

Michigan has a broad discovery policy, permitting the discovery of any relevant subject 

matter that is not privileged. Augustine v Allstate Ins Co, 292 Mich App 408, 419; 807 NW2d 77 

(2011). But decisions regarding discovery are discretionary with the trial court, and this Court 

reviews the trial court’s grant or denial of discovery for an abuse of that discretion. Id.

Defendants contend generally that “[a]ppellees’ total refusal to provide relevant 

discovery information, and the Trial Court’s barring of any discovery, justifies a decision or 

ruling that all of Appellees’ claims for attorney fees and costs should be rejected. . . .” 

Defendants further contend that “all of Appellees’ counsel refused to provide any discovery 

concerning their claimed fees and costs which Appellants sought through the issuance of 

subpoenas as well as requests to admit, and interrogatories, which were timely served on 

Appellees’ attorneys in [advance of] the hearings.” Defendants do not specify what specific 

information they were attempting to discover and the relevance of that information. Defendants 

also do not indicate where in the record the requests were denied. Again, it is not sufficient for 

an appellant to merely announce his position and leave it to this Court to discover and rationalize 

the basis for the claim. Mudge, 458 Mich at 105. Further, this Court is not obligated to search 

the record for factual support for a party’s claim. Barrow v Detroit Election Comm, 305 Mich 

App 649, 682; 854 NW2d 489 (2014).

In any event, a review of the record indicates that although defendants were not permitted 

to engage in discovery in the manner sought, defendants were given ample opportunity to obtain 

any relevant information about the attorney fees and costs sought by plaintiff. At the evidentiary 

hearing to determine the amount of attorney fees and costs, which began on March 10, 2016, 

defendants informed the trial court that they had filed motions regarding discovery. The trial 

court declined to hear the motions, finding that defendants had failed to notice the motions and 

that the proof of service was defective. Defendants argued that they had given discovery 

requests to plaintiff that remained unanswered, and the following exchange took place:

THE COURT: I have no idea what additional discovery anybody could possibly 

want in this case. Sir, I don’t generally grant discovery in Smith versus Khouri 

hearings. We set them out and you get your information together. The rules are 

very clear on what I need to hear, and it is in regard to the bill that you were 

provided, what the objections are, and is this at a rate that is supposed to be – or is 
-10-

regularly used based on the number of years and experience of counsel, et cetera, 

so I don’t know what other discovery you need. We have had intense hearings for 

the last two, three years.

* * *

MR. COYER: Discovery is related also to the subpoenas. Discovery requests 

information, not a lot of questions, which I think you’ll see if you have a chance 

to take a look at the discovery. In going through the invoices, the summary 

invoices that were presented by attorneys Reid & Reid, this is not the detail that’s 

required by Smith versus Khouri. Smith versus Khouri requires details, and this 

is Adair. This is the Adair case. This is other cases that have simply said that an 

attorney cannot simply submit invoices without detailed billing to justify a 

reasonableness of the fees that are being requested. So there is so little detail in 

the – in Messrs Reid & Reid bill that it’s impossible to know whether or not they 

were engaged in the activities that were the center of this case.

THE COURT: Sir, that is your argument throughout this case, that it’s improper. 

You use the Adair case and you make those arguments in regard to my decision 

making of the facts and details of this this case as to what I can order or not. I’m 

not going to cause any further delay in this matter. I’m not going to allow further 

discovery. . . . 

* * *

MR. COYER: Your Honor, the last question I have for you – last issue is that in 

this discovery – and I will try to end the argument at this point, the discussion, 

and that is that the issue of retainers of Messrs Reid & Reid, probably less so with 

Mr. Shafer, begs an important question. We need the retainer agreements, if there 

are retainer agreements from Messrs Reid & Reid, because there’s no point in 

someone being reimbursed twice for the same work and there needs to be some 

specification of what work has been done.

This has no impact on [Lansing Parkview, LLC]. It is merely a way to 

essentially double recover on the part of the attorneys who are part of this case.

THE COURT: I understand. That’s why we have direct and cross and certainly 

you can get that information. If I want more information on it, I’ll ask them for 

further documentation. You can even say, can you bring that here? I’m not going 

to cause delay. Again, this is all part of why Smith versus Khouri was 

established, for exactly the reasons that you’ve made a record of.

Later in that same hearing, the trial court stated:

THE COURT: So as to your subpoenas, I’m not disregarding them. I think that 

was one of the questions that’s really outstanding. I’m just saying that I’m going 

to allow – because of all of these things that were – I don’t want any further delay, 

first of all. I don’t think this warrants any further delay. In terms of what you’ve 
-11-

requested, you certainly can elicit that testimony and ask that those things be 

brought again, if you need them, and I’ll tell you, yeah, bring them in. We’re not 

going to finish this hearing.

Thus, the trial court determined that formal discovery on the post-judgment issue of 

attorney fees and costs was unwarranted, but directed defendants to request whatever 

information they wanted and the trial court would direct plaintiff to produce that information.

At the continued hearing held May 19, 2016, defendants again raised the issue of 

discovery:

MR. COYER: Your Honor, with all due respect, I’m ready to move on, but his 

issue of discovery is a critical issue. Perhaps we can take that up later.

THE COURT: What is it that you’re missing, sir, that you need? You don’t get 

your checks, I’m ruling on that now. No checks.

MR. COYER: Do we get invoices?

THE COURT: No. You get the invoice – I’m not sure what you mean by that. If 

you want itemized billing, it appears they’ve given it to you. Do you have any 

itemized billing that they have not received?

* * *

MR. SHAFER: They have it all.

THE COURT: If they have it all, then, sir, that’s what they have and you can 

make your best argument to me at closing, because if you don’t – if you don’t 

have it by now, then they don’t get to make their case, and I guess maybe then 

you’ve got some points on your side, sir. Okay? Because summaries are not 

allowed. We know that, right? Okay. So you’ve turned over everything and all 

of the attorneys on your side have turned over everything, is that correct?

MR. SHAFTER: Yes.

THE COURT: End of story. Now you can make your arguments at closing and 

you can cross examine the heck out of this, okay? Move on.

And further:

THE COURT: Well, Mr. Shafer is here. What about Mr. Reid and Mr. Reid, did 

you subpoena them?

MR. COYER: Yes, we did.
-12-

THE COURT: Then they’ll have to show up and you’ll ask your 

questions. . . . They’ll be here when they are supposed to be here to answer your 

questions or I’ll have an officer pick them up.

Thus, although the trial court did not permit the formal discovery that defendants sought, 

the trial court repeatedly informed defendants that it would enforce their right to obtain any 

relevant information. And again, defendants do not identify any specific information that they 

were denied, only that they were not permitted to proceed with discovery in the manner of their 

choosing. A trial court’s decision to grant or deny discovery will only be overturned when the 

trial court has abused its discretion. Augustine, 292 Mich App at 419. In this case, there has 

been no demonstration that the trial court abused its discretion in limiting formal discovery on 

the post-judgment issue of attorney fees and costs.

D. RIGHT TO SELF-REPRESENTATION

Defendant Keskey also contends that the trial court violated his constitutionally protected 

rights to due process and equal protection by not permitting him to represent himself. We 

disagree.

Defendants raised this issue in their first appeal to this Court. This Court addressed the 

issue as follows:

V. REMOVAL OF ATTORNEY OF RECORD

Defendants argue that the trial court wrongfully required Keskey to 

withdraw as attorney of record for purposes of the trial. We review a preserved 

claim of constitutional error de novo. People v McPherson, 263 Mich App 124, 

131; 687 NW2d 370 (2004).

The trial court, sua sponte, removed Keskey as attorney of record because 

he was also a witness. MRPC 3.7(a) precludes a lawyer from acting “as advocate 

at a trial in which the lawyer is likely to be a necessary witness except” where (1) 

the testimony relates to uncontested issues, (2) the testimony relates to the nature 

and value of legal services rendered in the case, or (3) disqualification of the 

lawyer would work substantial hardship on the client. The purpose of the rule is 

to prevent any problems that would arise from a lawyer having to argue the 

credibility and effect of his own testimony, to prevent prejudice to the opposing 

party that might arise therefrom, and to prevent prejudice to the client if the 

lawyer is called as an adverse witness. Smith v Arc-Mation, Inc., 402 Mich 115, 

119; 261 NW2d 713 (1978); Kubiak v Hurr, 143 Mich App 465, 471, 475; 372 

NW2d 341 (1985); Comment to MRPC 3.7.

Our Constitution, Const. 1963, art. 1, § 13, however, guarantees citizens 

the right to appear pro per, and no distinction is made between lawyers and other 

citizens with respect to that right. When the exclusion of attorney testimony 

would work a substantial hardship on a party, MRPC 3.7 calls for a balancing of 

the rights of the respective parties. Plaintiff's counsel did not bring a motion to 

disqualify Keskey and expressed no concern about which of the “5 attorneys of 
-13-

record” tried the case. Keskey, on the other hand, argued that it would present a 

substantial hardship for any of the other attorneys of record to try the case with 

short notice because the intent had always been for Keskey to try the case and 

none of the other attorneys of record were prepared to try the case. Even 

assuming, however, that the trial court abused its discretion by refusing to allow 

Keskey to try the case, defendants have failed to identify any prejudice resulting 

from the trial court's exclusion of Keskey from representing himself. Thus, any 

error was harmless. [Lansing Parkview, unpub op at 6.] 

To the extent that Keskey raises the same issue involving the same occurrences before the 

trial court that were already addressed by this Court in its previous decision, Keskey is precluded 

by the law of the case doctrine from doing so. See New Props, Inc, 282 Mich App at 132. To 

the extent that Keskey points to subsequent occurrences before the trial court that have not been 

ruled upon by this Court, the law of the case doctrine does not necessarily bar this Court from 

considering those allegations if the facts are now different. See McNees, 219 Mich App at 222.

In its previous opinion, this Court determined that Keskey had not shown that he was 

prejudiced by being precluded from acting as his own advocate during the hearings before the 

trial court, and that therefore any error was harmless. In this appeal, Keskey once again does not 

identify any prejudice arising from any new instances of being barred from representing himself 

before the trial court in the post-judgment proceedings; for example, he does not claim that he 

was not adequately represented in the post-judgement proceedings. Once again, absent any 

demonstration of prejudice arising from the trial court barring Keskey from representing himself 

during the hearings, any error was harmless.

E. SANCTIONS

Lastly, defendants and appellant Coyer contend that the trial court abused its discretion in 

imposing sanctions upon Coyer. We disagree.

After the trial court entered its initial judgment in this case in June 2015, defendants 

appealed to this Court, then moved for, and were granted by the trial court, a stay of enforcement 

pending appeal to this Court without posting a bond. Plaintiff filed a motion in this Court 

requesting that defendants be required to post a bond to obtain the stay of enforcement. This 

Court granted plaintiff’s motion, and granted the stay of enforcement on the condition that 

defendants post a bond with the trial court in the amount of $216,870.00, as required by MCR 

7.209(F)(1).4

Thereafter, the trial court entered its post-judgment order for attorney fees and costs. 

Defendants moved for reconsideration of that order before the trial court, and once again moved 

to stay enforcement “for the duration of rehearings and appeals filed or to be filed in this case, 

and without the necessity of the filing by K2M/Keskey of a bond or surety.” Plaintiff opposed 

 4 Lansing Parkview, LLC v K2M Group, LLC, unpublished order of the Court of Appeals, issued 

November 18, 2015 (Docket No. 328507).
-14-

the motion, arguing that the identical issue had already been decided by this Court’s earlier 

order.

The trial court denied the motion for stay without bond and imposed sanctions on Coyer 

for bringing the motion. Contrary to defendants’ assertion on appeal that the trial court 

“provided no reasoning whatsoever for issuing sanctions in her May 17, 2017 bench ruling,” the 

trial court in fact stated in its May 17, 2017 bench ruling:

Quite honestly, I’m surprised by the filing of this given the previous ruling by the 

Court of Appeals. The Court of Appeals was very clear the last time we had this 

issue, and I have to agree with Mr. Reid’s arguments. I understand that 

defendants disagree with Mr. Reid’s arguments but they’re in line with what the 

appellate court has said, and there have been changes in the court rules since. The 

stay is denied unless the bond is posted as required with 110 percent.

There’s also a request for attorney fees. Honestly, I think if I don’t give 

attorney fees we’re going to continue to see litigation that’s unnecessary and I’m 

going to sanction you, Mr. Coyer, four hours, a thousand dollars paid to plaintiff

within 30 days.

As discussed, Michigan follows the American rule regarding the imposition of attorney 

fees and costs, which provides that attorney fees ordinarily are not recoverable unless a statute, 

court rule, or common-law exception provide to the contrary. Khouri, 481 Mich at 526; Haliw, 

471 Mich at 706. An exception to the American rule is the trial court’s inherent authority to 

sanction a litigant or attorney for misconduct by assessing attorney fees. Persichini v William 

Beaumont Hosp, 238 Mich App 626, 639; 607 NW2d 100 (2000); see also Ford Motor Co, 313 

Mich App at 595. The purpose of imposing sanctions “is to deter parties and attorneys from 

filing documents or asserting claims and defenses that have not been sufficiently investigated 

and researched or that are intended to serve an improper purpose.” BJ’s & Sons Constr Co, Inc v 

VanSickle, 266 Mich App 400, 405; 700 NW2d 432 (2005) (citation omitted). When awarding 

attorney fees as a sanction for misconduct, the trial court should put the party requesting fees “in 

the position they would have been in absent the misconduct,” balancing the “harshness of the 

sanction against the gravity of the misconduct.” Persichini, 238 Mich App at 642-643. A trial 

court’s exercise of its authority to sanction a litigant and its counsel is reviewed by this Court for 

an abuse of discretion. See Maldonado, 476 Mich at 388.

Here, in their motion for stay without bond, defendants sought the same relief that this 

Court denied in this case 18 months earlier. The trial court was therefore justified in finding that 

defendants’ motion warranted the imposition of sanctions. The amount of the sanctions was four 

hours of attorney fees at the rate of $250, which plaintiff’s counsel asserted at the hearing was a 

conservative estimate of the time spent in responding to the motion, and therefore was in keeping 

with MCR 2.114(E) and was not overly harsh.
-15-

The trial court therefore did not abuse its discretion.

Affirmed.

/s/ Cynthia Diane Stephens

/s/ Douglas B. Shapiro

/s/ Michael F. Gadola