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STATE OF MICHIGAN 

COURT OF APPEALS 

ANN V. ANNIS, 

 Plaintiff/Counter-DefendantAppellant/Cross-Appellee, 

UNPUBLISHED 

April 16, 2015 

v No. 319577 

Washtenaw Circuit Court 

Family Division 

THEODORE C. ANNIS, LC No. 11-000557-DO 

 Defendant/Counter-PlaintiffAppellee/Cross-Appellant. 

Before: OWENS, P.J., and JANSEN and MURRAY, JJ. 

PER CURIAM. 

 Plaintiff appeals as of right and defendant cross-appeals from the trial court’s decision 

and order awarding defendant attorney fees and costs as sanctions under MCR 2.114 in this 

divorce action. We affirm in part, vacate in part, and remand.

I. FACTS AND PROCEDURAL HISTORY 

 The parties were married in 1986 and separated in January 2011. No children were born 

of the marriage. In February 2011, prior to initiating divorce proceedings, the parties signed an 

agreement to mediate all unresolved issues, including spousal support and property division. 

The parties and their attorneys participated in mediation over the course of two days. At the 

conclusion of the second full day of mediation on March 3, 2011, the mediator prepared a threepage handwritten settlement agreement outlining the rights and obligations of each party and 

dividing property as noted in an attached appendix. The document was silent with regard to 

spousal support for either party. Both parties initialed each page of the document and the 

appendix, and each party and their respective attorney signed the final page of the document. 

 A few days later, plaintiff filed a complaint for divorce. In her complaint, plaintiff 

alleged that “[t]he parties have reached agreement on most property issues, and signed an 

agreement on March 3, 2011.” Plaintiff requested that the trial court affirm the settlement 

agreement the parties made with respect to their property or, in the alternative, award to each an 

equitable portion of the marital property. In his answer to the complaint and in a counterclaim 

for divorce, defendant affirmatively stated that the parties had reached agreement on all issues in 

the case and requested the court enter an order adopting and merging the settlement agreement. 
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In her answer to defendant’s counterclaim, plaintiff stated that the parties reached a partial 

property settlement, but that the agreement was neither comprehensive nor complete because it 

did not address all property issues or spousal support. 

 In June, defendant moved for entry of judgment and for sanctions. He alleged that the 

parties had reached a settlement agreement, that most aspects of the property division had been 

completed, and that he had complied with the terms of the settlement agreement. Defendant also 

alleged that plaintiff refused to conclude a final settlement and that her arguments and 

subsequent refusal to concede that a settlement existed were frivolous. Defendant attached to the 

motion a proposed judgment of divorce, which included a provision barring spousal support for 

both parties. In response, plaintiff denied that the parties had reached a comprehensive 

settlement. She maintained that the document signed by the parties and their attorney at the 

conclusion of mediation constituted only a “settlement memorandum” and not a settlement 

agreement. Plaintiff requested that the court impose sanctions on defendant. Plaintiff also 

moved to amend her complaint to add a claim for spousal support. Following a hearing on 

defendant’s motion for entry of judgment and plaintiff’s motion to amend the complaint, the trial 

court held that the March 3, 2011 document was a valid and binding settlement agreement as to 

all matters addressed in that document. The trial court also indicated that a trial would be held to 

determine any disputed issues not specifically addressed in the settlement agreement.1

 The order 

also provided that the issue of costs was reserved for both parties. 

 Thereafter, plaintiff moved for reconsideration. She alleged mutual mistake with regard 

to the formation of the settlement agreement and asked the court to reverse its finding that the 

settlement agreement was a binding and enforceable contract. Plaintiff also moved for a full 

evidentiary hearing regarding the circumstances surrounding the formation of the settlement 

agreement, and later filed an amended motion in limine seeking to set aside the settlement 

agreement. At the conclusion of the hearing on these matters, the court expressed irritation with 

plaintiff’s refusal to abide by its decision regarding the binding nature of the settlement 

agreement. The trial judge then disqualified himself under MCR 2.003(C)(1)(a) without 

deciding the motions and the case was reassigned. 

 Approximately two months later, defendant filed a motion for summary disposition and 

motion for entry of judgment. About one month later, plaintiff filed a second amended motion 

for reconsideration or rehearing with regard to the trial court’s ruling that the March 3, 2011 

document was a valid and binding settlement agreement as to all matters addressed in that 

document. This time she alleged fraud as an alternate basis for setting aside the settlement 

agreement. After a hearing, the court found no basis for plaintiff’s newly raised allegations of 

fraud or other claims of invalidity. The court granted summary disposition as to the issue of 

property division, but denied summary disposition as to the issue of spousal support. 

 On March 22, 2012, the trial court signed a consent order providing that both parties 

waived all claims to spousal support and that both parties waived the right to trial of the one 

 

1

 In a separate order, the trial court held that plaintiff could litigate the issue of spousal support 

during the trial. 
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disputed issue in the case. The trial court also dismissed plaintiff’s pending motions, including 

her motion for full evidentiary hearing and motion in limine, as moot. The trial court 

subsequently denied plaintiff’s motions for reconsideration regarding mutual mistake and fraud 

as the bases for setting aside the settlement agreement. 

 On April 4, 2012, the parties agreed to the entry of a judgment of divorce. Plaintiff filed 

a claim of appeal from that judgment on April 24, 2012, but on October 28, 2013, she moved to 

withdraw the appeal under MCR 7.218, and this Court entered an order dismissing the appeal. 

Annis v Annis, unpublished order of the Court of Appeals, entered November 15, 2013 (Docket 

No. 309853) (Annis I). Subsequently, defendant’s motion for vexatious appeal under MCR 

7.216(C) was denied. Annis v Annis, unpublished order of the Court of Appeals, entered 

December 12, 2013 (Docket No. 309853). 

 Back in front of the trial court, defendant requested a ruling on costs on April 14, 2012. 

In July, the court entered an order stating that it was “quite willing to charge [plaintiff] for her 

frivolous and continuing argument about the settlement agreement not being a settlement 

agreement but those claims must be more clearly identified.” Defendant submitted additional 

affidavits, and the trial court again indicated that it was “unable to determine from [defense 

counsel’s] statement of fees why she believes that all of the entries are chargeable to [plaintiff].” 

Defendant then filed a second request for ruling on costs and submitted an additional statement 

of costs, attaching a 21-page “History Bill” with billing entries through May 15, 2012. Plaintiff 

objected to each billing entry. Finally, defendant presented an updated statement of costs 

reflecting additional fees and costs incurred between May 15, 2012, and October 2013. 

Following a hearing, the court awarded defendant attorney fees in the amount of $33,800, and 

$37,447.20 in total fees and costs. 

II. ANALYSIS 

A. SANCTIONS – LAW OF THE CASE 

 Plaintiff contends that this Court’s denial of defendant’s motion for sanctions under MCR 

7.216(C) for filing a vexatious appeal in Annis I constitutes, under law of the case, a binding 

determination that there was arguable legal merit to the issues raised by plaintiff in that appeal, 

including her challenge to the binding nature of the settlement agreement. Under this theory, 

that prior order precludes us from determining in this appeal whether the trial court erred in 

concluding that plaintiff’s actions in the trial court were frivolous. Whether the law of the case 

doctrine applies is a question of law that this Court reviews de novo. Ashker v Ford Motor Co,

245 Mich App 9, 13; 627 NW2d 1 (2001). 

 The law of the case doctrine provides that “ ‘if 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.’ ” Grievance Administrator v Lopatin, 462 Mich 

235, 259; 612 NW2d 120 (2000), quoting CAF Investment Co v Saginaw Twp, 410 Mich 428, 

454; 302 NW2d 164 (1981). However, the law of the case doctrine “applies only to questions 

actually decided in the prior decision and to shoe questions necessary to the court’s prior 

determination.” City of Kalamazoo v Dep’t of Corrections (After Remand), 229 Mich App 132, 
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135; 580 NW2d 475 (1998). This Court’s previous denial of defendant’s motion for sanctions 

under MCR 7.216(C) for filing a vexatious appeal was a ruling on whether plaintiff’s appeal of 

the trial court’s sanction ruling was frivolous and, therefore, does not preclude our present 

review (under a much different standard of review) of the trial court’s decision that plaintiff’s 

repeated challenges to the binding nature of the settlement agreement violated MCR 2.114. Our 

Court has previously made clear that a decision under MCR 7.216(C) entails the legal issue of 

whether an appeal itself is frivolous (or “vexatious”), which is a separate issue from whether a 

trial court clearly erred in finding the underlying issue to be frivolous. See DeWald v Isola (After 

Remand), 188 Mich App 697, 700; 470 NW2d 505 (1991). 

B. SANCTIONS – THE MERITS 

 Regarding the merits of the trial court’s decision, plaintiff argues that the trial court 

clearly erred in finding that she was subject to sanctions for violating the provisions of MCR 

2.114(D). We review a trial court’s decision regarding sanctions for clear error. Robert A 

Hansen Family Trust v FGH Indus, LLC, 279 Mich App 468, 485-486; 760 NW2d 526 (2008) 

(citation omitted). 

 MCR 2.114(D) provides as follows: 

 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; 

 (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. 

If a document is signed in violation of MCR 2.114(D), then MCR 2.114(E) states that the court, 

on the motion of a party or on its own initiative, “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.” Additionally, MCR 2.114(F) states, “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).” 

 Plaintiff argues that the legal predicate for her argument against the binding nature of the 

settlement agreement was based squarely on fundamental contract law; specifically, that there 

was not a meeting of the minds with respect to the binding nature of the mediator’s handwritten 

document. Fundamentally, to establish a contract, “there must be ‘mutual assent’ to be bound—

that is, the parties must have a ‘meeting of the minds’ on all the essential elements of the 

agreement.” Huntington Nat’l Bank v Daniel J Aronoff Living Trust, 305 Mich App 496, 508; 

853 NW2d 481 (2014). Whether there has been a meeting of the minds must be judged from an 
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objective standard, “looking to the express words of the parties and their visible acts, not their 

subjective states of mind.” Stanton v Dachille, 186 Mich App 247, 256; 463 NW2d 479 (1990) 

(citations omitted). 

 The March 3, 2011 document contains contractual language setting forth rights and 

obligations and division of property, and it contains the signature of both parties to the 

agreement. Just four days after signing the agreement, plaintiff filed a complaint for divorce in 

which she admitted that “The parties have reached agreement on most property issues, and 

signed an agreement on March 3, 2011.” (Emphasis added.) In her answer to defendant’s 

counterclaim for divorce, plaintiff again admitted that “the parties reached a partial property 

settlement agreement on March 3, 2011.” (Emphasis added). The language of the document, 

coupled with plaintiff’s admissions in the pleadings, support a finding that plaintiff mutually 

assented to the settlement agreement. “Generally, contracts between consenting adults are 

enforced according to the terms to which the parties themselves agreed.” Lentz v Lentz, 271 

Mich App 465, 471; 721 NW2d 861 (2006). We conclude that the trial court did not clearly err 

by finding that plaintiff’s repeated challenges to the binding nature of the settlement 

agreement—even after the trial court found it enforceable—violated MCR 2.114(D)(2) and by 

awarding sanctions for this violation under MCR 2.114(E) and (F). 

C. SANCTIONS – THE AMOUNT 

 Plaintiff also argues that the trial court’s award of sanctions under MCR 2.114(E) and (F) 

is excessive, while defendant argues that the trial court erred by reducing defendant’s attorney’s 

hourly billing rate from $400 to $325. We review for an abuse of discretion a trial court’s award 

of attorney fees and costs. Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008) (opinion 

by TAYLOR, C.J.). The trial court does not abuse its discretion when it chooses an outcome 

within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 

Mich 372, 388; 719 NW2d 809 (2006). 

 In Smith, the Supreme Court set forth the following analysis for determining reasonable 

attorney fees: 

We hold that a trial court should begin its analysis by determining the fee 

customarily charged in the locality for similar legal services, i.e., factor 3 under 

MRPC 1.5(a). In determining this number, the court should use reliable surveys 

or other credible evidence of the legal market. This number should be multiplied 

by the reasonable number of hours expended in the case (factor 1 under MRPC 

1.5[a] and factor 2 under Wood[

2

]). The number produced by this calculation 

should serve as the starting point for calculating a reasonable attorney fee. . . . 

Thereafter, the court should consider the remaining Wood/MRPC factors to 

determine whether an up or down adjustment is appropriate. And, in order to aid 

appellate review, a trial court should briefly discuss its view of the remaining 

factors. [Id. at 530-531.] 

 

2 Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982). 
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 The Wood factors referenced by the Supreme Court are: “ ‘(1) the professional standing 

and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question 

and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the 

nature and length of the professional relationship with the client.’ ” Id. at 529, quoting Wood v 

Detroit Automobile Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982). MRPC 1.5(a) 

overlaps the Wood factors, Smith, 481 Mich at 529, and includes the following: 

 (1) the time and labor required, the novelty and difficulty of the questions 

involved, and the skill requisite to perform the legal service properly; 

 (2) the likelihood, if apparent to the client, that the acceptance of the 

particular employment will preclude other employment by the lawyer; 

 (3) the fee customarily charged in the locality for similar legal services; 

 (4) the amount involved and the results obtained; 

 (5) the time limitations imposed by the client or by the circumstances; 

 (6) the nature and length of the professional relationship with the client; 

 (7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and 

 (8) whether the fee is fixed or contingent. [MRPC 1.5(a).] 

“The above factors have not been exclusive, and the trial courts could consider any additional 

relevant factors.” Smith, 481 Mich at 530. The burden of proving the reasonableness of the 

requested fees rests with the party requesting them. Id. at 528-529. 

 A trial court is not required to give detailed findings regarding each Wood factor, In re 

Attorney Fees and Costs, 233 Mich App 694, 705; 593 NW2d 589 (1999), but it is required to 

make findings of fact with regard to the attorney fee issue, Howard v Canteen Corp, 192 Mich 

App 427, 437; 481 NW2d 718 (1991), overruled on other grounds Rafferty v Markovitz, 461 

Mich 265; 602 NW2d 367 (1999). Generally, the starting point for any attorney fee award is 

determining the fee customarily charged in the locality for similar services. Smith, 481 Mich at 

530. Once the party seeking the fee has established that, the figure should be multiplied by 

whatever number of hours the court concludes was reasonable for the work performed on the 

case or issue. Id. at 530-531. The actual fees charged by an attorney are not necessarily 

reasonable fees. See Vittiglio v Vittiglio, 297 Mich App 391, 410; 824 NW2d 591 (2012). 

 The trial court rendered its decision in a written decision and order. With regard to the 

hours spent, the trial court found as follows: 

At an early stage of this case, . . . it was apparent that there was a binding 

Settlement Agreement. Despite this ruling as the case proceeded through two 

more judges the plaintiff continued to assert that the Agreement was not binding. 

Counsel for the plaintiff at this hearing said, with a straight face, that there was no 

need for defense counsel to continue to defend against the claim of no Settlement 
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inasmuch as he had won that point. For his counsel not to have fought this 

assertion would have been malpractice. The main idea of meeting with the 

mediator, two times as I recall, and coming up with a binding Agreement was that 

this would save a lot of costs of litigation. Unfortunately this was not the case. A 

substantial amount of time had to be spent to make sure that no subsequent judge 

somehow found the Agreement not to be binding. 

The trial court’s sole comment regarding the hourly rate was, “Inasmuch as charges in this case 

go back to 2011, I am going to provide that [defendant’s attorney] be paid at the rate of $325 per 

hour.” The court engaged in no further analysis. The court awarded attorney fees of $33,800, 

and costs of $3,647.20, for a total award $37,447.20. 

 Because the court had already determined that defendant was entitled to fees, the only 

issue before the court was whether defendant’s requested fees were reasonable. On appeal, both 

parties agree that the trial court failed to articulate findings for its award of attorney fees and 

costs, and both parties express confusion over the trial court’s calculation of attorney fees and 

costs. The trial court failed to discuss the Wood/MRPC factors and failed to follow the steps of 

Smith. We have attempted to decipher how the court arrived at the figures that it did, and it 

appears that the trial court determined that all except .75 hours of the hours claimed through May 

15, 2012, were appropriately expended. However, the court failed to articulate any rationale for 

not awarding fees requested for services performed between May 15, 2012, and October 2013, 

and did not specifically address the issue of costs. The court also failed to address plaintiff’s 

numerous objections to the specific billing entries. The trial court implicitly found that 

defendant’s attorney charged an unreasonable hourly fee, but offered no explanation for the 

hourly fee it calculated other than to suggest that the work performed by defendant’s attorney 

went “back to 2011.” There was no finding as to the fee customarily charged in the locality for 

similar services, nor was there any explanation as to why the rate actually charged was 

unreasonable. Because the trial court did not make specific findings of reasonableness, there is 

little for this Court to review. We therefore vacate the award, and remand for further 

proceedings. On remand, the trial court should follow the steps set forth in Smith and address the 

objections raised by plaintiff. The trial court must articulate its findings of fact in support of its 

ultimate award. Howard, 192 Mich App at 437.3

 

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 Plaintiff also argues that the trial court erred by failing to grant plaintiff’s request for sanctions 

against defendant for his filing of his answer to plaintiff’s complaint and his motion for entry of 

judgment. We decline to do so. After the trial court reserved the issue of costs in its order 

following the hearing on that motion, plaintiff never filed a subsequent request for costs and, 

therefore, the trial court never made a decision on costs. Accordingly, the issue is unpreserved 

and we review unpreserved claims for plain error affecting substantial rights. Huntington Nat’l 

Bank v Ristich, 292 Mich App 376, 381; 808 NW2d 511 (2011). Because plaintiff never filed a 

request for costs and fees with regard to defendant’s filing of the motion for entry of judgment 

after the trial court issued its order reserving both parties’ requests for costs, the trial court never 

held a hearing to determine whether defendant’s filing of the motion violated the signature 

requirements of MCR 2.114(D). Without a request for costs and fees and a subsequent decision 
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 Affirmed in part, vacated in part, and remanded for further proceedings consistent with 

this opinion. Jurisdiction is not retained. No costs, neither party having prevailed in full. MCR 

7.219(A). 

/s/ Donald S. Owens 

/s/ Kathleen Jansen 

/s/ Christopher M. Murray 

on the request, there is no decision for this Court to review. We will also not address the issue 

sua sponte, as there is no clear set of facts to resolve the issue. See Harris v Pennsylvania 

Erection & Constr, 143 Mich App 790, 795; 372 NW2d 663 (1985).