If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### 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**

PIONEER STATE MUTUAL INSURANCE COMPANY,

Plaintiff

- Appellee, FOR PUBLICATION October 3, 2019

9:05 a.m.

v No. 344567

Berrien Circuit Court

STEPHEN A. MICHALEK and BARBARA M. MICHALEK, LC No. 14

- 000245

- CK

Defendants

- Appellants,

and

JUSTIN B. AGRESTI,

Intervening Plaintiff.

PIONEER STATE MUTUAL INSURANCE COMPANY,

Plaintiff

- Appellee,

v No. 344577

Berrien Circuit Court

STEPHEN A. MICHALEK and BARBARA M. MICHALEK, LC No. 14

- 000245

- CK

Defendants,

and

JUSTIN B. AGRESTI,

Intervening Plaintiff

- Appellant.- 2

- Before: M URRAY

, C .J., and M ETER and F ORT H OOD , JJ.

M URRAY

, C.J

.

Th ese consolidated appeals are from a final order awarding attorney fees to plaintiff, Pioneer State Mutual Insurance Company, in a case where the trial court found after a bench trial

that insurance fraud was committed by defendants , Stephen A. Michalek and Barbara M.

Michalek

. I ntervening plainti ff, Justin B. Agresti, appeals the same order by right. We affirm

.

I. BACKGROUND

In November 2011, Agresti was injured while riding his bicycle at defendants’ (his grandparents) lakefront property in Dowagiac. At the time of the injury, the property was insured pursuant to a homeowner ’ s policy issued by Pioneer. Agresti sued defendants in a separate premises liability action. Defendants signed a statement in the Agresti litiga tion in which they stated that members of defendants’ family dug a hole on the property on July 4, 2011, to fix a faulty septic pump

, and then failed to refill the hole upon departing the property.

Defendants asserted that the hole remained unfilled in No vember 2011, when Agresti rode his bicycle into the hole and injured himself. Pioneer retained counsel for defendants in the Agresti litigation, and counsel advanced a challenge to the duty (or lack thereof) by asserting an open and obvious defense.

Af ter the trial court denied defendants’ motion for summary disposition in the Agresti litigation, Pioneer commenced this action to void coverage under a fraud provi sion contained in

the homeowner ’ s policy. Pioneer alleged that defendants misrepresented tha t they dug a hole

, and left the hole open until November 2011. Following a bench trial, the trial court issued an opinion on March 15, 2017

, finding that defendants made fraudulent representations to Pioneer that voided the policy. Appellants moved for r econsideration of th at opinion, but before addressing that motion, the trial court entered a judgment in favor of Pioneer on July 17, 2017.

O n August 15, 2017, the trial court denied their motion for reconsideration of the March opinion

.

On September 5 , 2017, defendants filed a claim of appeal in this Court

, appealing the August 15, 2017 trial court order denying their motion for reconsideration of the opinion

. T his Court dismissed the appeal for lack of jurisdiction because the August 15, 2017 order w as not a final order under MCR 7.202(6)(a). 1 In doing so, this Court noted that the July 17, 2017 judgment “appears to be a final order.” This Court dismissed Agresti’s claim of appeal for the

same reason. 2

Two days after this Court dismissed the appe als for lack of jurisdiction, appellants again moved for a new trial or relief from judgment. Then, before the trial court addressed and

1 Pioneer State Mut Ins Co v Michalek , unpublished order of the Court of Appeals, entered September 26, 2017 (Docket No. 339991).

2 Pioneer State Mut Ins Co v Michalek , unpublished order of the Court of Appeals, entered September 26, 2017 (Docket No. 340016).- 3

- decided the motion s , defendants filed in this Court an application for delayed appeal of the trial court’s July 17, 20 17 judgment. On the same day, the trial court held a motion hearing to address the second motions for a new trial or relief from judgment

, but it did not rule on the

motion s.

On May 18, 2018, this Court denied defendants’ application for delayed appeal of the July 17, 2017 judgment “for lack of merit on the grounds presented.” 3 Thereafter, the trial court entered an order granting Pioneer’s motion for attorney fees and costs

. The trial court held that, given its previous finding that defendants commi tted fraud

, attorney fees were warranted under MCR 2.114(F)

. Defendants and Agresti separately appealed the order by right

, and this Court consolidated the appeals. 4

II. CHALLENGES TO THE JU LY 17, 2017 JUDGMENT

D efendants advance several issues in this appeal that are unrelated to the award of attorney fees, and that they previously asserted in their application for delayed ap peal the July 17, 2017 judgment . This Court denied that application for lack of merit in the grounds presented. Pioneer argues that consideration of these issues is barred by the law of the case doctrine. Pioneer is correct, but there is an additional jurisdictional ground that precludes us

from consider ing t hese challenges to the July 17 , 2017 j udgment.

We first address the jurisdictional issue. 5 In their c laim of a ppeal form s , appellants

identified the order that they are appealing by right as the June 19, 2018 order regarding attorney fees and costs, and in their docketing statement s , they noted that the order was a p ost judgment

order. Under MCR 7. 202(6)(a)( iv ), a post judgment award of attorney fees is a final order from which a claim of appeal can be taken. However, MCR 7.203(A)(1) limits the appeal taken under MCR 7.202(6)(a)( iv ) “to the portion of the order with r espect to which there is an appeal of rig ht,” meaning that the se appeal s only pertain to the award of attorney fees. Consequently, any

issue outside those challenging the award of attorney fees goes beyond our jurisdiction over

these appeal s

.

Second, e ven if we had jurisdiction, Pioneer is correct: the law of the case doctrine would preclude our consideration of the iss ues arising out of the July 17 , 2017 j udgment. “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.” Ashker v Ford Motor Co , 245 Mich App 9, 13; 627 NW2d 1 (2001). “Thus, a question of law decided by an appellate court will not be

3 Pioneer State Mut Ins Co v Michalek , unpublished order of the Court of Appeals, entered May 18, 2018 (Docket No. 340967).

4 Pioneer State Mut Ins Co v Michalek , unpublished order of the Court of Appeals, entered August 7 , 2018 (Docket No s. 344567; 344577 ).

5 Neither party raised this issue, but because it is jurisdictional we can do so without the parties first doing so. Yee v Shiawassee Co Bd of Commissione rs , 251 Mich App 379, 399; 651 NW 2d 756 (2002).- 4

- decided differently on remand or in a subsequent appeal in the same case.” Id . “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.” Id . The doctrine applies “only to issues actually decided, either implicitly or explicitly, in the prior appeal.” Grievance Admin v Lopatin , 462 Mich 235, 260; 612 NW2d 120 (2000).

In exe rcising the discretion afforded it when reviewing an application for leav e to appeal

, Great Lakes Realty Corp v Peters , 336 Mich 325, 328; 57 NW2d 901 (1953), the Court has numerous options: it can grant the application and hear the case on the merits, deny the application, enter peremptory relief, or take any other action dee med appro priate. See MCR 7.205(E)(2). I f the assigned panel determines that an application (late or otherwise) from a final

order warrants denial

, the panel often

— as was done here

— indicat es that it is for “lack of merit on the grounds pr esented.” In con trast to interlocutory applications for leave to appeal from

non final orders, where the Court generally does not express an opinion on the merits, applications for delayed appeal address whether to allow an appeal ( filed after the 21

- day period has elapsed ) to be taken on a merits challenge to a final order. Hence, when we deny an application from a non interlocutory order for lack of merit in the grounds presented, the order means what it says

— it i s on the merits of the case. 6 Consistent with this conclusion , this Court has previously applied the law of the case doctrine to orders denying applications for “lack of merit in the grounds presented.” See People v Douglas , 122 Mich App 526, 529

- 530; 332 NW2d 521 (1983)

, People v H ayden , 125 Mich App 65 0, 662

- 663; 337 NW2d 258 (1983), and People v Wiley , 112 Mich App 344, 346; 315 NW2d 540 (1981).

The first four issues raised in defendants’ and Agresti’s appeal briefs were raised in

defendants’ prior application for delayed appea l from the July 17, 2017 judgment

. Additionally, appellants have not shown a change in the material facts or an intervening change in the relevant

law. Because this Court previously denied defendants ’ application for delayed appeal “for lack

of merit on the grounds presented,” even if we had jurisdiction to address the merits challenge to the July 17 , 2017 judgment, we w ould not address the merits of those issues un der the law of the

case doctrin e

. 7 See id

. See also Locricchio v Evening News Ass’n

, 438 Mich 84, 109, n 13; 476 NW2d 112 (1991)

.

6 If a panel decides to deny an application challenging an i nterlocutory no n final order, it typically

uses language indicating that the application was denied because the Court was not persuaded that immediate appellate review was necessary. There is no merits language in those denial

orders because no merits determination was made; instead

, the panel has simply determined appellate interventio n was not necessary at the time. As a result, p arties are still free to challenge these interlocutory orders when appealing the final order. See Dean v Tucker

, 182 Mich App 27, 31; 451 N W2d 571 (1990).

7 We reject appellants’ arguments that this Court lacked jurisdiction to deny defendants’ delayed application for leave to appeal in Docket No. 340967. See MCR 7.205(G); MCR 7.203(B)(5). Similarly, the arguments that this Court lacks ju risdiction to address th e s e appeal s are devoid of merit. See MCR 7.206(6) ( a ) ( iv ); MCR 7.203(A)(1).- 5

- III. ATTORNEY FEES

As to the merits of the final order they did appeal of right, a ppellants argue that the trial court erred in awarding attorney fees , and in the amount of the fees awarded . This Court reviews a trial court’s award of attorney fees and costs for an abuse of discretion. Smith v Khouri , 481 Mich 519, 526; 751 NW2d 472 (2008). “An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes .” Id . This Court reviews for clear error a trial court’s factual findings underlying its fee award including a finding that a claim

or a defense was frivolous. See Ladd v Motor City Plastics Co

, 303 Mich App 83, 103; 842 NW2d 388 (2013). “A decision i s clearly erroneous when, although there may be evidence to support it, we are left with a definite and firm conviction that a mistake has been made.”

Guerrero v Smith , 280 Mich App 647, 677; 761 NW2d 723 (2008).

A. FRIVOLOUS DEFENSE

Without holding a hearing, but after briefing by the parties, the trial court entered an order granting Pioneer’s motion for attorney fees. The trial court awarded attorney fees pursuant

both to MCL 600.2591 and MCR 2.114(F) 8 on the basis of its finding at the bench trial that defendants engaged in fraud.

“ Generally, a wards of costs and attorney fees are recoverable only where specifically authorized by a statute, a court rule, or a recognized exception.” Edge v Edge , 299 Mich App 121, 127; 829 NW2d 276 (2012) (quotatio n marks, brackets, and citations omitted). MCL 600.2591 grants, and MCR 2.114(F) had granted, “a court the authority to award sanctions in the form of attorney fees and costs to a prevailing party if an action or defense is deemed ‘frivolous.’

” Keinz v Keinz , 290 Mich App 137, 141; 799 NW2d 576 (2010). MCL 600.2591(3) defines

“frivolous” :

(a) “ Frivolous” means that at least [one] of the following conditions is

met:

( i ) The party’s primary purpose in initiating the action or asserting the

defense was to harass, embarrass, or injure the prevailing party.

( ii ) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.

( iii ) The party’s legal position was devoid of arguable legal merit.

T he trial court ’s finding of frivolousness was based on its conclusions following the

bench trial that defendants acted fraudulently

, and that they knew they had engaged in fraud yet

8 MCR 2.114 w as repealed effective September 1, 2018. Administrative Order No. 2002

- 31, 501 Mich cxx, cxxxvii (2018). The substantive provisions of MCR 2.114 have been incorporated into MCR 1.109. Because MCR 2.114 was in effect at the time the trial cour t awarded sanctions, we make reference to that rule.- 6

- still put up a defense

. “T he determination whether a claim or defense is fri volous must be based

on the circumstances at the time it was asserted.” Robert A Hansen Family Trust v FGH Indus

, LLC , 279 Mich App 468, 486; 760 NW2d 526 (2008) (quotation marks and citation omitted).

The trial court found that the defense was frivolous at the time it was asserted

— i.e., at the time defendants responded to Pioneer’s complaint , and throughout the proceedings

. The trial court

had conducted a three

- day benc h trial on the fraud issue, had made det ailed findings of fact after trial, and i ts r eference to those findings was sufficient to explain why it found the defense of

these claims to be frivolous. Although “the mere fact that [a party] did not ultimately prevail on its legal position” does not per se render that position frivolous

, i d . at 487

, the trial court’s findings went beyond a mere rejection of defendants’ legal position.

In applying this deferential standard of review, and given the fact

- specific nature of the case and the trial court’s findings, we hold that the trial court did not clearly err in finding that

defendants’ defense was frivolous

.

B. REASONABLENESS OF FEES AND COSTS

Under the former M CR 2.114, if a trial court determined that a claim was frivolous in violation of MCR 2.114(F), sanctions were mandatory under MCR 2.1 14(E), which provided as

follows:

If a document is signed in violation of this rule, 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. The court may not assess punitive damages.

Similarly, MCR 2.625 provides that “if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591.” MCL 600.2591 provides, in relevant part, as follows:

(1) Upon motion of any party, if a court finds that a civil actio n 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 nonprevaili ng 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 attor ney fees.

“[T]he burden of proving the reasonableness of the requested fees rests with the party requesting them.” Smith , 481 Mich at 528

- 529. “W hen requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to deter mine what services were actually rendered, and the reasonableness of those services.” Reed v Reed , 265 Mich App 131, 166; 693 NW2d 825 (2005). In determining the reasonableness of a requested fee, a trial court should- 7

- “consider the totality of special circumstances applicable to the case at hand.” Smith

, 481 Mich

at 529. T he Supreme Court has provided nonexclusive factors to guide a trial court in determining the reasonableness of attorney fees. See Pirgu v United Se rvs Auto Ass’n , 499 Mich 269, 281

- 282; 884 NW2d 257 (2016).

T he trial court award ed Pioneer the hours it requested, but it reduced the h ourly rate from the requested $240.00 an hour to the billed rate of $140.00 an hour. In doing so, the trial court

di d not make any findings of fact with respect to the reasonableness of the requested fees or the number of hours expended on the proceeding. Instead, it adopted the analysis set forth in

Pioneer’s brief , which had attached to it detailed billings, affidavi ts, and a state bar survey of the average rates in the relevant community

.

The Michigan Supreme Court has explained:

In consideri ng the time and labor involved

. . . the court must determine the reasonable number of hours expended by each attorney. T he fee applicant must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness. The fee applicant bears the burden of supporting its claimed hours with evidentiary support. If a factual dispute exi sts over the reasonableness of the hours billed or hourly rate claimed by the fee applicant, the party opposing the fee request is entitled to an evidentiary hearing to challenge the applicant’s evidence and to present any countervailing evidence. [ Smith

, 481 Mich at 532.]

Although Pioneer’s motion was properly supported, in their response brief

, d efendants did not contest the reasonableness of the hourly rate, the number of hours expended, nor did they

request a hearing to resolve any disputed facts. Rather, defendants exclusively challenged the

trial court’ s findings of fraud after trial, and placed other legal objections to the award of attorney fees. Thus, the re was no need for the trial court to hold a hearing to allow defendants to

contest the re asonableness of the requested fees because, based on their submissions, they were not challenging that aspect of Pioneer’s request

. Id

. And, although d efendants did make a
request for an evidentiary hearing in the ir motion for reconsideration

, that motio n was simply too late to preserve the request. See Vushaj v Farm Bureau Gen Ins Co of Mich

, 284 Mich App 513, 519; 773 NW2d 758 (2009) (“ This issue was not raised until plaintiff filed his motion for

reconsideration. Where an issue is first presented in a motion for reconsideration, it is not properly preserved.”). And, the trial court does not abuse its discretion by rejecting arguments made in a motion for reconsideration that could have been made in response to the original

motion. Yoost v Caspari

, 2 95 Mich App 209, 220; 813 NW2d 783 (2012) (“ Ordinarily, a trial court has discretion on a motion for reconsideration to decline to consider new legal theories or evidence that could have been presented when the motion was initially decided.”).

T he trial c ourt did not clearly err in finding that the defense was frivolous

, and did not

abuse its discret ion in awarding attorney fees.- 8

- Affirmed.

Plaintiff

- appellee may tax costs.

/s/ Christopher M. Murray

/s/ Patrick M. Meter

/s/ Karen M. Fort Hood