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### STATE OF MICHIGAN

COURT OF APPEALS

CHERRY M. BROWN,

Plaintiff-Appellee, UNPUBLISHED March 28, 2017

v No. 331893
Van Buren Circuit Court

FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, LC No. 14-640796-NF

Defendant-Third-Party PlaintiffAppellant,

v

HARVEY BALDWIN,

Third-Party Defendant.

Before: S TEPHENS , P.J., and S HAPIRO and G ADOLA , JJ.

P ER C URIAM

.

This case requires us to determine whether a discovery sanctio n awarded prior to case
evaluation remains enforceable aft er both parties have accepted a case evaluation award. We hold that it does and that a previously awarded discovery sanct ion is enforceable as separate and distinct from a mutually accepted case evaluation award.

Plaintiff sued defendant for no- fault benefits. During the li tigation, a discovery dispute arose, and the trial court entere d an order compelling defendan t to respond to certain discovery requests. Defendant failed to com ply with that or der, and the trial court ordere d defendant to pay sanctions in the form of costs and attorney fees to plaintiff’s counsel. Later, the case proceeded to case evaluation, and both parties accepted the evaluation af ter which defendant refused to pay the discovery sanction on the grounds that mutual acceptance of the case evaluation award-2- extinguished its duty to pay the sanction. 1 The trial court disagreed and ordered defendant to pay
the sanction.

Whether a discovery sanction is eliminated when both parties a ccept a case evaluation award is a question of law that turns on the interpretation of the applicable court rules, which we
review de novo. CAM Constr v Lake Edgewood Condo Ass’n , 465 Mich 549, 553; 640 NW2d 256 (2000). 2

Plaintiff relies on our decision in Merit Mfg & Die v ITT Higbie Mfg Co , 204 Mich App 16, 20, 22; 514 NW2d 192 (1994), wher e we held that “[c]ourt-or dered sanctions related to discovery and awarded before med iation should be considered sep arate and distinct from the
mediation award.”

Defendant argues that Merit is no longer controlling in light of the Supreme Court’s
decision in CAM Constr v Lake Edgewood Condo Ass’n , 465 Mich 549, 555; 640 NW2d 256 (2000). CAM held that mutual acceptance of a case evaluation award dispose s of “ all claims in
the action ” and it defined a “claim” as “f acts giving rise to a right ass erted in a judicial proceeding.” Id. at 555. The sanctions in this case, however, were not imposed because defendant violated its contract or unreasonably denied the clai m, or because of any other fact giving rise to the action or defense. 3 They were imposed by the court in order to punish defendant for its non-compliance with a court order and the rul es of discovery. MCR 2.313(B)(2). Because the sancti ons were not based upon “facts giving rise to a ri ght asserted in a judicial proceeding,” they were n ot a “claim” within the action , and so were not disposed of by the parties’ mutual acceptance of the case evaluation award. 4

1 At the time the trial court ordered defendant to pay the sanct ions, it did not award a specific amount but instead told plaintiff’s counsel to submit a bill of particulars. Plaintiff’s counsel
submitted the bill after case evaluation but before both partie s had accepted.

2 Plaintiff argues that the applicable standard of review is for an abuse of discretion. While we
review “the trial court’s decisi on to impose sanctions for an a buse of discretion,” Richardson v Ryder Truck Rental , 213 Mich App 447, 450; 540 NW2d 696 (1995), the issue present ed in this appeal is not whether the trial court abused its discretionary authority to sanction defendant for its violation of the discovery order, but whether that sanction is enforceable despite mutual acceptance of case evaluation. Merit Mfg & Die v ITT Higbie Mfg Co , 204 Mich A pp 16, 20, 22; 514 NW2d 192 (1994).

3 CAM stated that “[t]he entry of a j udgment pursuant to the accepta nce of a mediation evaluation is, in essence, a consent judgment.” 465 Mich at 556. We have previously held that the entry of a consent judgment does not eliminate certain types of sanction s. Smith v Elenges , 156 Mich App 260; 401 NW2d 342 (1986).

4 We also note that CAM did not expressly overtur n or even mention Merit , despite the fact that it did particularly mention several other decisions from this Cour t that it stated were inconsistent with its holding and were , therefore, overturned. CAM , 465 Mich at 555-556.-3- For this reason, defendant’s reliance on Larson v Auto-Owners Ins Co , 194 Mich App 329, 333; 486 NW2d 128 (1992) is unavailing. In Larson , we held that mutual acceptance of case evaluation bars a separate sanction award under MCL 500.31 48 or MCL 600.2591, which respectively provide for sanctions if the no-fault insurer’s de nial was unreasonable, or where a
claim or defense was frivolous. Such sanctions are based on th e facts and merits of the claim or defense. In contrast, the sanctions in this case were imposed to vindicate the authority of the court and to assure open discovery. 5 The sanctions are not related to the facts and merits of the
claim. While the term “sanction” is common to several statutes and court rules, defendant is mistaken in suggesting that all s anctions, whatever their natur e, must be treated identically. And whether a particular sanction survives a mutual case evaluation acceptance turns on its purpose and genesis.

Lastly, defendant also argues that Merit is distinguishable because, unlike this case, neither party referenced the discovery sanctions in their case evaluation summary. 204 Mich App at 21. Defendant argues that by referencing the sanctions in her case evaluation summary, plaintiff affirmatively asked the panel to include the amount o f the sanctions in its evaluation. We disagree. The only reference to the sanctions in plaintiff’ s summary was in the section titled “Defenses,” where she noted that defendant’s refusal to obey th e court’s discovery order
demonstrated that defendant did not have a viable defense. And notably, in the summary’s recitation of monetary claims, no a mount was included for the s anctions.

The trial court did not err in determining that the sanction w as enforceable as separate
and distinct from the case evaluation award.

Affirmed. As prevailing part y, appellee may tax costs.

/s/ Cynthia Diane Stephens /s/ Douglas B. Shapiro
/s/ Michael F. Gadola

5 The sanctions in Merit also had the purpose of supporting the requirement of “ ‘open and farreaching discovery’ ” and for a liberal construction of the dis covery rules. 204 Mich App at 21 quoting Ostoin v Waterford Twp Police Dep’t , 189 Mich App 334, 337; 371 NW2d 666 (1991). We concluded that “the purpose an d intent of sanctions imposed by court order because of failure to comply with discovery would be defeated if such pree xisting awards were automatically absorbed into mediation awards.” Id. at 21.