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STATE OF MICHIGAN 

COURT OF APPEALS 

DANIEL FETTE and BERRIEN COUNTY 

BOARD OF PUBLIC WORKS, 

 Plaintiffs/Counter-DefendantsAppellants/Cross-Appellees, 

FOR PUBLICATION 

May 21, 2015 

9:00 a.m. 

V No. 320803 

Berrien Circuit Court 

PETERS CONSTRUCTION CO., LC No. 13-000288-CZ 

 Defendant/Counter-PlaintiffAppellee/Cross-Appellant. 

Before: DONOFRIO, P.J., and O’CONNELL and RONAYNE KRAUSE, JJ. 

PER CURIAM. 

 In this contract dispute, plaintiffs, Daniel Fette and the Berrien County Board of Public 

Works, appeal as of right from the trial court’s order confirming an arbitrator’s award of 

approximately $45,300 in favor of defendant. Defendant, Peters Construction Co., cross-appeals 

from that same order. We affirm. 

I. BASIC FACTS 

 Defendant and plaintiffs entered into a contract for a construction project, which included 

installing a water main underneath railroad tracks. During the project, defendant encountered 

some “unforeseen subsurface conditions” that, according to it, were not anticipated in the 

agreement and required extra expense in completing the job. Defendant tried to get plaintiffs to 

agree to pay this extra amount, but plaintiffs declined. Citing the arbitration clause in the 

contract,1

 defendant filed a claim for arbitration.2

 

1

 ¶ 30.1 All claims, disputes and other matters in question arising out of, or relating to, the 

CONTRACT DOCUMENTS or the breach thereof, except for claims which have been waived 

by the making and acceptance of final payment as provided by Section 20 shall be decided by 

arbitration in accordance with the Construction Industry Arbitration Rules of the American 

Arbitration Association. This agreement to arbitrate shall be specifically enforceable under the 
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 On February 12, 2013, the arbitrator issued a scheduling order, which provided that the 

parties would exchange witness lists and proposed exhibits by March 8, 2013. On March 8, 

2013, defendant (the claimant) submitted electronic copies of its 19 exhibits to the arbitrator and 

to plaintiffs. On that same day, plaintiffs (respondents) also submitted their electronic copies of 

their exhibits to the arbitrator and to defendant. Plaintiffs submitted 19 exhibits as well, and 

while most of the exhibits matched those submitted by defendant, a few were different. 

 The arbitration hearing eventually was held on August 12, 2013. At the hearing, 

defendant did not formally offer into evidence its previously submitted exhibits. Instead, 

defendant called two witnesses, one of which was disallowed by the arbitrator for lack of 

personal knowledge. After which, defendant closed its case. Plaintiffs then took testimony from 

their witnesses and formally submitted their previously disclosed exhibits to the arbitrator. 

 The parties did not request a reasoned award; therefore, as is not unusual in arbitrations, 

the arbitrator made no findings of fact or conclusions of law in the award. See Saveski v Tiseo 

Architects, Inc, 261 Mich App 553, 555; 682 NW2d 542 (2004), citing DAIIE v Gavin, 416 Mich 

407, 428; 331 NW2d 418 (1982). Instead, the award, in pertinent part, simply provided that 

“Respondents shall pay to Claimant Forty Five Thousand Three Hundred One Dollar and Twelve 

Cents ($45,301.12).” 

 On October 11, 2013, plaintiffs filed the instant lawsuit in circuit court, seeking to vacate 

the arbitration award. On November 12, 2013, defendant filed a counter-claim, seeking to 

confirm the award. On November 25, 2013, plaintiffs filed an amended complaint, and on 

December 4, 2013, defendant filed an amended counter-claim. 

 In their amended complaint, plaintiffs alleged that the award should be vacated because 

the arbitrator exceeded his authority and because the arbitrator conducted a hearing that 

substantially prejudiced their rights. The basis for both of these allegations was that while 

defendant identified its proposed exhibits in accordance with the arbitrator’s scheduling order, it 

never actually submitted those exhibits at the hearing. As a result, plaintiffs averred that, with 

defendant presenting no evidence in support of its claim, the arbitrator could not as a matter of 

law find for defendant. 

 Defendant argued that there were no legal grounds to vacate the award and, as a result, 

sought sanctions for plaintiffs’ alleged frivolous action. 

 The trial court denied plaintiffs’ request to vacate the award and, instead, granted 

defendant’s request to confirm the award. The trial court noted that defendant did supply 

evidence at the arbitration hearing in the form of testimony from its one witness and that it was 

prohibited from evaluating the merits of the arbitrator’s decision. The trial court also noted that 

the arbitrator is vested with discretion to direct the order of proofs at the hearing. Moreover, the 

prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment 

may be entered upon it in any court having jurisdiction thereof. 

2

 At the arbitration proceeding, defendant prosecuted its claim pro se, which is common in the 

construction industry. 
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trial court noted that plaintiffs’ main argument—that the arbitrator must have based the amount 

of damages on documents submitted outside the presence of the parties—must fail because even 

if the court were not precluded from speculating on the reasons for the arbitrator’s decision, the 

arbitrator had evidence of damages from the evidence submitted by plaintiffs. However, the 

court denied defendant’s request for sanctions, finding that plaintiffs presented a good-faith 

argument. 

 After the amended complaint was filed, but before the trial court ruled on the disposition 

of the case, plaintiffs issued a subpoena for the deposition of Douglas Needham. Needham was 

employed by the Michigan Infrastructure & Transportation Association (MITA), a construction 

trade association, and was at the arbitration hearing in Berrien County assisting defendant. 

When questioned by defendant about what purpose deposing Needham would accomplish, 

plaintiffs responded, “We want to establish Mr. Needham’s version of what occurred at the 

arbitration hearing.” 

 Defendant moved to quash the subpoena on two grounds. Defendant first relied on MCR 

2.305(C)(1), which provides that a person may be required to attend a deposition “in the county 

where the deponent resides, is employed, or transacts business in person, or at another 

convenient place specified by order of the court.” Defendant explained that Needham did not 

reside in Berrien County and does not transact business in Berrien County “in person.” 

Defendant also relied on MCR 2.305(A)(4) and MCR 2.302(C), which allow for a protective 

order to be issued if the deposition would result in “undue burden or expense.” Defendant 

claimed that since Needham’s version of what transpired at the arbitration hearing would have no 

bearing on the disposition of the case, it clearly would subject him to an undue burden or 

expense. 

 The trial court agreed with defendant and quashed the subpoena. The court explained, in 

part, that because there was no real dispute regarding the fact that defendant never submitted its 

exhibits at the arbitration hearing, Needham’s testimony would not “add” anything to plaintiffs’ 

defense against confirming the arbitration award. 

II. PLAINTIFFS’ APPEAL 

A. ARBITRATION AWARD 

 While we review a trial court’s decision to vacate or enforce an arbitration award de 

novo, judicial review of an arbitration award nonetheless is extremely limited. Washington v 

Washington, 283 Mich App 667, 671; 770 NW2d 908 (2009). 

“A court may not review an arbitrator’s factual findings or decision on the merits. 

Rather, a court may only decide whether the arbitrator’s award ‘draws its essence’ 

from the contract. If the arbitrator in granting the award did not disregard the 

terms of his employment and the scope of his authority as expressly 

circumscribed in the contract, judicial review effectively ceases.” [Police Officers 

Ass’n of Mich v Manistee Co, 250 Mich App 339, 343; 645 NW2d 713 (2002) 

(citation omitted).] 
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 The parties do not dispute that the arbitration here was statutory arbitration because the 

contract specified that “[t]he award rendered by the arbitrators shall be final, and judgment may 

be entered upon it in any court having jurisdiction thereof.” See Gordon Sel-Way, Inc v Spence 

Bros, Inc, 438 Mich 488, 495; 475 NW2d 704 (1991) (stating that where an arbitration 

agreement provides that judgment may be entered on the arbitration award, it falls within the 

definition of statutory arbitration). 

 The Michigan Arbitration Act (MAA), MCL 600.5001 et seq., was repealed by our 

Legislature pursuant to 2012 PA 370 and replaced by the Uniform Arbitration Act (UAA), MCL 

691.1681 et seq., which was enacted pursuant to 2010 PA 371. The repeal of the MAA and the 

enactment of the UAA became effective July 1, 2013. See 2012 PA 370 and 371. While the 

UAA provides that it “governs an agreement to arbitrate whenever made,” MCL 691.1683(1), it 

also provides that “[t]his act does not affect an action or proceeding commenced . . . before this 

act takes effect,” MCL 691.1713. Consequently, because defendant filed its claim for arbitration 

before July 1, 2013, the arbitration proceeding was commenced before July 1, 2013, and the 

UAA does not apply. Instead, the MAA continued to govern the proceeding. 

 MCL 600.5021 of the MAA provided that “arbitration shall be conducted in accordance 

with the rules of the supreme court.” In turn, MCR 3.602(J)(2), provides the following:3

On motion of a party, the court shall vacate an award if: 

(a) the award was procured by corruption, fraud, or other undue means; 

(b) there was evident partiality by an arbitrator appointed as a neutral, 

corruption of an arbitrator, or misconduct prejudicing a party’s rights; 

(c) the arbitrator exceeded his or her powers; or 

(d) the arbitrator refused to postpone the hearing on a showing of 

sufficient cause, refused to hear evidence material to the controversy, or 

otherwise conducted the hearing to prejudice substantially a party’s rights. 

 Plaintiffs moved to vacate the arbitration award based on violations of MCR 

3.602(J)(2)(c) and (d). Plaintiffs alleged that the arbitrator exceeded his powers by failing to 

adhere to the Construction Industry Arbitration Rules of the American Arbitration Association 

(AAA), which the parties’ contract specified would be followed at the arbitration proceeding. 

Specifically, plaintiffs claimed that the arbitrator violated rules of the AAA by considering 

evidence that was not presented at the hearing, which resulted in the hearing being conducted in 

this manner that prejudiced their rights. 

 Two rules, Rule 32 and Rule 33, of the AAA are implicated, and they provide the 

following, in pertinent part: 

 

3

 Even though MCR 3.602 was amended in 2014, the content of MCR 3.602(J) was unaffected. 
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R-32. Conduct of Proceedings 

(a) The claimant shall present evidence to support its claim. The respondent shall 

then present evidence supporting its defense. Witnesses for each party shall also 

submit to questions from the arbitrator and the adverse party. The arbitrator has 

the discretion to vary this procedure, provided that the parties are treated with 

equality and that each party has the right to be heard and is given a fair 

opportunity to present its case. 

(b) The arbitrator, exercising his or her discretion, shall conduct the proceedings 

with a view toward expediting the resolution of the dispute and may direct the 

order of proof, bifurcate proceedings, and direct the parties to focus their 

presentations on the issues the decision of which could dispose of all or part of the 

case. 

When deemed appropriate, the arbitrator may also allow for the presentation of 

evidence by alternative means including video conferencing, internet 

communication, telephonic conferences and means other than an in-person 

presentation. Such alternative means must still afford a full opportunity for all 

parties to present any evidence that the arbitrator deems material and relevant to 

the resolution of the dispute and when involving witnesses, provide that such 

witness submit to examination. 

* * * 

R-33. Evidence 

(a) The parties may offer such evidence as is relevant and material to the dispute 

and shall produce such evidence as the arbitrator may deem necessary to an 

understanding and determination of the dispute. Conformity to legal rules of 

evidence shall not be necessary. 

(b) The arbitrator shall determine the admissibility, relevance, and materiality of 

the evidence offered. The arbitrator may request offers of proof and may reject 

evidence deemed by the arbitrator to be cumulative, unreliable, unnecessary, or of 

slight value compared to the time and expense involved. All evidence shall be 

taken in the presence of all of the arbitrators and all of the parties, except where: 

1) any of the parties is absent, in default, or has waived the right to be present, or 

2) the parties and the arbitrators agree otherwise. 

 Plaintiffs’ claims must fail for several reasons. First, the record does not support 

plaintiffs’ primary contention that the arbitrator considered the exhibits that defendant 

electronically shared before the hearing in making its award determination. Plaintiffs fail to 

appreciate that (1) the arbitrator could have relied on the testimony of defendant’s sole witness at 
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the hearing4

 and (2) the arbitrator could have relied on the evidentiary documents that plaintiffs 

admitted at the hearing. Plaintiffs do not dispute that most of the exhibits they submitted at the 

hearing were the same ones that defendant identified as its proposed exhibits. Thus, there was 

properly submitted evidence that the arbitrator could have considered in making its award in 

favor of defendant. We also note that even if the award was against the great weight of evidence 

or was not supported by substantial evidence, this Court would be precluded from vacating the 

award. Donegan v Mich Mut Ins Co, 151 Mich App 540, 549; 391 NW2d 403 (1986); see also 

Washington, 283 Mich App at 675 (“It is simply outside the province of the courts to engage in a 

fact-intensive review of how an arbitrator calculated values, and whether the evidence he relied 

on was the most reliable or credible evidence presented.”). 

 Second, assuming arguendo that the arbitrator did consider the exhibits that defendant 

presented before the hearing as evidence, plaintiffs cannot show how Rule 32 was violated. Rule 

32 clearly affords the arbitrator with discretion in allowing parties to present evidence “by 

alternative means,” as long as the parties were still afforded “a full opportunity . . . to present any 

evidence that the arbitrator deems material and relevant to the resolution of the dispute.” 

Accordingly, allowing the parties to electronically submit evidence before the hearing would be 

acceptable as long as the process did not adversely affect the parties’ ability to present relevant 

evidence. Here, allowing the parties to electronically submit evidence prior to the hearing did 

nothing to affect plaintiffs’ ability to present any evidence they desired. In fact, plaintiffs also 

submitted their exhibits this way, and plaintiffs also submitted evidence in the form of exhibits 

and witness testimony at the hearing itself. 

 Third, again assuming arguendo that the arbitrator considered defendant’s exhibits as 

being admitted into evidence, plaintiffs cannot show how Rule 33 was violated. As already 

mentioned, Rule 32 expressly allows for the presentation of evidence “by alternative means.” 

Rule 33 states in pertinent part that “[a]ll evidence shall be taken in the presence of all of the 

arbitrators and all of the parties.” Thus, in addition to the requirements in Rule 32 for allowing 

evidence being presented by alternative means, any such evidence also must be “taken in the 

presence of all of the arbitrators and all of the parties.” Here, in their pre-hearing submission of 

exhibits, both sides provided copies to the opposing parties. Consequently, the arbitrator could 

have viewed these submissions as being “in the presence” of the other parties. Because 

arbitrators are “comparatively more expert about the meaning of their own rule[s],” arbitrators, 

and not the courts, should resolve procedural matters. Gregory J Schwartz & Co Inc v Fagan, 

255 Mich App 229, 232; 660 NW2d 103 (2003), citing Howsam v Dean Witter Reynolds, Inc, 

537 US 79, 85; 123 S Ct 588; 154 L Ed 2d 491 (2002). Furthermore, the essence of this process 

already is approved in the rules, under Rule 34(b), where it allows for the filing and transmitting 

of other evidence after a hearing as long as the parties had an opportunity to examine and 

respond to such evidence. Although Rule 34 does not apply here because the evidence was 

submitted before the hearing and not after it, it still demonstrates that the AAA considered the 

 

4

 Of course, there is no transcript of the hearing, so the content of the testimony is unknown. 

Even if the testimony were known, we would be prohibited from questioning the sufficiency or 

reliability of the evidence. See Washington, 283 Mich App at 675. 
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process of filing exhibits electronically, i.e., outside the physical presence of the opposing party, 

as long as the other party was aware of it, as being fair and acceptable. 

 In sum, because plaintiffs have failed to establish any procedural error at the arbitration 

hearing, they likewise have failed to demonstrate how the arbitrator exceeded his powers or how 

the hearing was conducted in a manner that substantially prejudiced their rights. MCR 

3.602(J)(2)(c) and (d). Therefore, the trial court properly denied plaintiffs’ motion to vacate the 

arbitration award. We note that because plaintiffs failed to establish the presence of any 

procedural error, we express no opinion on whether plaintiffs would have been entitled to the 

award being vacated if such a procedural error had existed at the arbitration hearing. 

B. QUASHING OF SUBPOENA 

 Plaintiffs next argue that the trial court erred when it quashed their subpoena to have 

Needham deposed. We review a trial court’s decision to quash a subpoena for an abuse of 

discretion. See Castillon v Roy, 412 Mich 873, 873; 312 NW2d 655 (1981); Ghanam v Does, 

303 Mich App 522, 530; 845 NW2d 128 (2014); Chastain v Gen Motors Corp, 254 Mich App 

576, 593; 657 NW2d 804 (2002). A trial court abuses its discretion when it chooses an outcome 

that falls outside the range of reasonable and principled outcomes. Saffian v Simmons, 477 Mich 

8, 12; 727 NW2d 132 (2007). A trial court’s findings of fact, however, are reviewed for clear 

error. Hayford v Hayford, 279 Mich App 324, 325; 760 NW2d 503 (2008). 

 “Michigan follows a policy of open and broad discovery.” Thomas M Cooley Law Sch v 

Doe 1, 300 Mich App 245, 260; 833 NW2d 331 (2013). Parties are permitted discovery to “any 

matter, not privileged, that is relevant to the subject matter involved in the pending claim.” 

Augustine v Allstate Ins Co, 292 Mich App 408, 419; 807 NW2d 77 (2011) (quotation marks 

omitted). Despite this broad discovery policy, courts are empowered to limit excessive, abusive, 

or irrelevant discovery requests. Cooley Law Sch, 300 Mich App at 260-261. Pursuant to MCR 

2.302(C)(1), a party may move the trial court for a protective order to disallow the discovery: 

 On motion by a party or by the person from whom discovery is sought, 

and on reasonable notice and for good cause shown, the court in which the action 

is pending may issue any order that justice requires to protect a party or person 

from annoyance, embarrassment, oppression, or undue burden or expense, 

including one or more of the following orders: 

(1) that the discovery not be had. 

 At the trial court, plaintiffs sought the deposition of Needham, who assisted defendant at 

the arbitration hearing. After hearing arguments from the parties, the trial court found that 

Needham did not have “anything to add to the defense of the motion to compel” and quashed the 

subpoena. The trial court did not clearly err in making this finding. The crux of plaintiffs’ 

position was that defendants never submitted their exhibits at the arbitration hearing. Plaintiffs 

apparently wanted Needham to confirm this at this deposition. However, the parties never 
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seriously disputed that this is what occurred.5

 Defendants admitted that they presented their 

exhibits before the hearing took place. As a result, while it is clear that Needham had relevant 

information related to how the evidence was admitted at the hearing, this information was 

already known by plaintiffs since they also were present at that very same hearing. We therefore 

conclude that, with plaintiffs already possessing first-hand knowledge of what transpired at the 

arbitration hearing, the court did not clearly err in finding that having Needham go through a 

deposition would have constituted “annoyance, embarrassment, oppression, or undue burden or 

expense.”6 Consequently, the trial court did not abuse its discretion in quashing the subpoena. 

III. DEFENDANT’S CROSS-APPEAL 

 Defendant argues in its cross-appeal that the trial court erred in failing to award it 

attorney fees and costs as sanctions pursuant to MCR 2.114 for those fees and costs incurred as a 

result of defending against plaintiffs’ complaint to vacate the arbitration award.7 We review a 

trial court’s decision on a request for sanctions under MCR 2.114 for an abuse of discretion. 

Sprenger v Bickle, 307 Mich App 411, 422-423; 861 NW2d 52 (2014). But the trial court’s 

factual findings are reviewed for clear error. Id. at 423. A finding is clearly erroneous if, after a 

review of the record, this Court is left with a definite and firm conviction that a mistake was 

made. Univ Rehab Alliance, Inc v Farm Bureau Gen Ins Co of Mich, 279 Mich App 691, 693; 

760 NW2d 574 (2008). 

 “MCR 2.114 concerns the execution of court documents and applies to all pleadings, 

motions, affidavits, and other papers mandated by the court rules.” Sprenger, 307 Mich App at 

423. The rule provides, in pertinent part: 

(D) The signature of an attorney or party, whether or not the party is represented 

by an attorney, constitutes a certification by the signer that 

(1) he or she has read the document; 

 

5

 On appeal, plaintiffs reference how defendant’s answer to the amended complaint disavowed 

many allegations that it never submitted its exhibits at the hearing, but the trial court noted how 

these responses were spurious and instead deemed the responses as admissions. As such, the 

allegations by plaintiffs were admitted, and defendant never appealed that determination. 

Regardless, the parties in presenting their arguments to the trial court and to this Court do not 

dispute that defendant never offered any exhibits into evidence at the arbitration hearing. 

6

 We note that the trial court never made this explicit finding, but we conclude that such a 

finding was implicitly made when it stated that Needham did not have “anything to add” and 

granted defendant’s motion to quash. 

7

 At the trial court, defendant also had requested attorney fees under MCL 691.1705, but it does 

not rely on that statute on appeal. Therefore, only the issue with respect to MCR 2.114 is before 

us. 
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(2) to the best of his or her knowledge, information, and belief formed after 

reasonable inquiry, the document is well grounded in fact and is warranted by 

existing law or a good-faith argument for the extension, modification, or reversal 

of existing law; and 

(3) the document is not interposed for any improper purpose, such as to harass or 

to cause unnecessary delay or needless increase in the cost of litigation. 

(E) If a document is signed in violation of this rule, the court, on the motion of a 

party or on its own imitative, shall impose upon the person who signed it, a 

represented party, or both, an appropriate sanction, which may include an order to 

pay to the other party or parties the amount of the reasonable expenses incurred 

because of the filing of the document, including reasonable attorney fees. The 

court may not assess punitive damages. 

(F) In addition to sanctions under this rule, a party pleading a frivolous claim or 

defense is subject to costs as provided in MCR 2.625(A)(2). The court may not 

assess punitive damages. 

As this Court has stated, “[s]anctions are warranted under MCR 2.114 where a plaintiff asserts 

claims without any reasonable basis in law or fact for those claims, or where the claims are 

asserted for an improper purpose.” Robert A Hansen Family Trust v FGH Indus, LLC, 279 Mich 

App 468, 486; 760 NW2d 526 (2008); see also MCL 600.2591. In determining whether a claim 

was frivolous, courts look at the circumstances at the time the claim was asserted. Jerico Constr, 

Inc v Quadrants, Inc, 257 Mich App 22, 36; 666 NW2d 310 (2003). 

 In declining to award sanctions in favor of defendant, the trial court found that plaintiffs’ 

claim to vacate the arbitration award was founded on “a good faith argument for clarification of 

the law where there is no clear appellate law on the scope of review of procedural issues.” We 

are not left with a definite and firm conviction that the trial court erred in determining that 

plaintiffs’ claim was not frivolous. It is well established that the lack of clear appellate law can 

be a basis to bring a claim in good faith. Schroeder v Terra Energy, Ltd, 223 Mich App 176, 

195; 565 NW2d 887 (1997). Here, there is no question that the ramifications regarding the type 

of procedural abnormality that plaintiffs alleged to have taken place at the arbitration hearing are 

not adequately addressed in any prior caselaw. We note that even though plaintiffs’ attempt to 

vacate the arbitration award ultimately was unsuccessful, it does not mean that plaintiffs’ 

position was not based on “good-faith argument.” See Kitchen v Kitchen, 465 Mich 654, 662; 

641 NW2d 245 (2002). 

IV. DEFENDANT’S REQUEST FOR APPELLATE ATTORNEY FEES 

 Although not part of its cross-appeal, defendant requests to be awarded its costs and 

attorney fees that were incurred on appeal as sanctions. 

 Defendant first requests these costs and fees pursuant to MCL 600.2591, which provides 

in pertinent part, the following: 
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(1) Upon motion of any party, if a court finds that a civil action or defense to a 

civil action was frivolous, the court that conducts the civil action shall award to 

the prevailing party the costs and fees incurred by that party in connection with 

the civil action by assessing the costs and fees against the nonprevailing party and 

their attorney. 

(2) The amount of costs and fees awarded under this section shall include all 

reasonable costs actually incurred by the prevailing party and any costs allowed 

by law or by court rule, including court costs and reasonable attorney fees. 

 Contrary to defendant’s assertion, the above statute does not allow for an award of 

appellate costs and attorney fees. As this Court has already held, “it is inappropriate to expand 

the scope of . . . MCL 600.2591 . . . to cover costs, including attorney fees, incurred on 

appeal . . . .” DeWald v Isola, 188 Mich App 697, 703; 470 NW2d 505 (1991). 

 The DeWald Court’s holding is supported by the plain language of MCL 600.2591, 

which makes it clear that it only applies to “civil actions.” Because a “civil action” relates to the 

filing of a complaint, see MCR 2.101, an appeal from the circuit court to this Court is not a “civil 

action.” In adopting the reasoning of the United States Supreme Court in the context of the 

Federal Rules of Civil Procedure, the DeWald Court agreed that provisions like MCL 600.2591 

are “ ‘more sensibly understood as permitting an award only of those expenses directly caused 

by the filing, logically, those at the trial level.’ ” Id. at 701 (emphasis added), quoting Cooter & 

Gell v Hartmarx Corp, 496 US 384, 406; 110 S Ct 2447; 110 L Ed 2d 359 (1990). In other 

words, any expenses incurred on appeal cannot fairly be attributed to the filing of a frivolous 

complaint in the circuit court. DeWald, 188 Mich App at 703. 

 Defendant’s reliance on Edge v Edge, 299 Mich App 121; 829 NW2d 276 (2012), for 

suggesting something different is misplaced. The Court in Edge never stated that MCL 600.2591 

could be used to recover appellate attorney fees. First, the Court favorably cited to DeWald, 

where it stated that the only provisions allowing recovery of appellate costs and attorney fees 

were MCR 7.219, MCR 7.326(C), and MCL 600.2445. Id. at 132, citing DeWald, 180 Mich 

App at 699-700. Second, the Court, in pointing out that MCL 600.2591 only permitted “the 

court that conduct[ed] the civil action” to award costs and fees, did not do so to indicate that a 

party could invoke this statute at this Court. Instead, the Edge Court simply was pointing out 

that in addition to MCL 600.2591 not being applicable because appellate expenses were not 

incurred in response to a filing of a frivolous complaint, the statute clearly does not allow 

another court (in that case, the circuit court) to award costs that were incurred in a different court 

(the Court of Appeals). Edge, 299 Mich App at 134. Again, Edge did not state that a party could 

invoke MCL 600.2591 to claim costs and attorney fees at this Court as long as the request was 

made at this Court. In fact, the Edge Court went on to explain that such appellate sanctions only 

“must be considered by this Court under MCR 7.216.” Id. at 135. 

 Defendant next claims that it is entitled to these appellate costs and attorney fees and 

punitive damages under MCR 7.216(C). While MCR 7.216(C) does allow for this Court to 

award “actual and punitive damages . . . when it determines that an appeal or any of the 

proceedings in an appeal was vexatious,” the court rule requires that a party seeking these 

damages must file a motion pursuant to MCR 7.211(C)(8). And pursuant to MCR 7.211(C)(8), 
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A party’s request for damages or other disciplinary action under MCR 7.216(C) 

must be contained in a motion filed under this rule. A request that is contained in 

any other pleading, including a brief filed under MCR 7.212, will not constitute a 

motion under this rule. 

Therefore, because defendant made its request for damages in its brief on appeal and not in a 

separate motion, the request is ineffectual. See Barrow v Detroit Election Comm’n, 305 Mich 

App 649, 684; 854 NW2d 489 (2014). However, MCR 7.211(C)(8) goes on to provide that a 

party may file such a motion “at any time within 21 days after the date of the order or opinion 

that disposes of the matter that is asserted to have been vexatious.” Therefore, defendant’s 

request is denied without prejudice. 

 Affirmed. Neither party having prevailed in full, no costs may be taxed. MCR 7.219. 

/s/ Pat M. Donofrio 

/s/ Peter D. O’Connell 

/s/ Amy Ronayne Krause