**_______________________________** Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

**FILED MAY 5, 2004**

**WILLIAM C. DESSART, and SHIELA A. DESSART,**  **Plaintiffs-Appellants,**

**v No. 122238**  **LYNN MARIE BURAK, and BRYAN R. BURAK,**  **Defendants-Appellees.**

**MEMORANDUM OPINION Plaintiff argued that he was entitled to mediation**  **sanctions under MCR 2.403 in his third-party negligence action. His claim for sanctions under MCR 2.403 requires a**  **determination whether “assessable costs” include attorney fees and whether assessable costs are calculated from the**  **filing of the complaint to the rendering of the verdict. The Court of Appeals answered both questions in the**  **negative. We affirm. I.**  **Procedural Background**

**Plaintiff William Dessart and defendant Lynn Burak were involved in an automobile collision. Plaintiff and**  **his wife filed a third-party negligence action for injuries plaintiff sustained in that accident. Before trial, a**  **mediation panel 1**  **evaluated the case at $120,000. Plaintiffs accepted the evaluation, but defendants rejected it.**  **Following a jury trial, plaintiff was awarded $100,000 in damages. The circuit court denied plaintiffs’ motion for**  **mediation sanctions under MCR 2.403, concluding that the**  **adjusted verdict was “more favorable” to the defendants as defined in MCR 2.403. The circuit court also rejected**  **plaintiffs’ argument that “actual co sts” under MCR 2.403**  **includes attorney fees. The Court of Appeals affirmed the decision of the circuit court. 252 Mich App 490; 652 NW2d**  **669 (2002).**

**II. Analysis**  **The proper interpretation of a court rule is a question of law and is subject to review**  **de novo.** CAM Constr v Lake Edgewood Condo Ass’n **, 465 Mich 549, 553; 640 NW2d 256 (2002).** 

**1 The procedure under MCR 2.403 formerly known as**  **"mediation" was renamed "case evaluation" effective August 1, 2000. This change did not effect any substantive**  **change in the rule.** 2**At the time the parties mediated this case, MCR 2.403 provided, in part:**  **(O) Rejecting Party's Liability for Costs.** 
**(1) If a party has**  **rejected an evaluation and the action proceeds**  **to verdict, that party must pay the opposing party's**  actual costs **unless the verdict is more f**  **avorable to the rejecting party than the mediation evaluation . . . .** 

*** * *** **(3) For the purpose of subrule (O)(1), a**  **verdict must be adjusted by adding to it** assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the case evaluation **. . . . After this adjustment, the verdict is considered more**  **favorable to a defendant if it is more than 10 percent below the evaluation, and is considered**  **more favorable to the plaintiff if it is more than 10 percent above the evaluation. . . .** 

*** * *** **(6) For the purpose of this rule,**  actual costs **are (a)**  **those costs taxable in any civil action, and**  **(b) a reasonable attorney fee based on a**  **reasonable hourly or daily rate as determined by the trial judge for services necessitated by the**  **rejection of the case evaluation. [Emphasis added.]**  **In their motion for mediation sanctions under this rule, plaintiffs argued that the adjusted verdict exceeded**  **$108,000 (which is “more than 10 percent below the evaluation” of $120,000) and, accordingly, was not “more**  3**favorable to defendants” under MCR 2.403(O)(3). As such, plaintiffs contended that they were entitled to mediation**  **sanctions under MCR 2.403(O)(1). Defendants responded that plaintiffs miscalculated the adjusted verdict in two ways:**  **first, by including “assessable costs” from the filing of the complaint to the**  verdict **rather than from the filing of the complaint to the**  case evaluation **and, second, by including attorney fees in “assessable costs.” The circuit**  **court denied plaintiffs' motion for sanctions, agreeing with defendants that "assessable costs" are limited to**  **taxable costs incurred from the date the complaint is filed until the date of case evaluation and do not include**  **attorney fees. In affirming the decision of the circuit court, the**  **Court of Appeals panel acknowledged that in** Beach v State Farm Mut Automobile Ins Co **, 216 Mich App 612; 550 NW2d 580 (1996), and**  Grow v W A Thomas Co **, 236 Mich App 696; 601 NW2d 426 (1999), the term "assessable costs" in the court**  **rule was interpreted broadly to include postmediation costs and attorney fees. The panel held, however, that those**  **cases were not controlling because their discussions of assessable costs were obiter dicta. The panel also noted**  **that** Beach **was distinguishable because it involved a statute that allows attorney fees as an element of damages**  **under certain circumstances. The panel held that attorney** 4**fees are included in the "actual costs" awarded as a mediation sanction, but not in "assessable costs" used to**  **determine whether a sanction should be awarded. The Court also explained that the assessable costs**  **that are added to a verdict under MCR 2.403(O)(3) are those incurred from the filing of the complaint to the date of**  **the case evaluation. In so concluding, the Court of Appeals declined to follow the**  Grow **Court in applying the “last antecedent” rule of construction in interpreting the**  **mediation rule. This rule of construction provides that “'a modifying clause is confined to the last antecedent**  **unless something in the subject matter or dominant purpose [of the statute] requires a different interpretation.’”**  Haveman v Kent Co Rd Comm’rs **, 356 Mich 11, 18; 96 NW2d 153 (1959), quoting**  Kales v Oak Park **, 315 Mich 266, 271; 23 NW2d 658 (1946), quoting**  Hopkins v Hopkins **, 287 Mass 542, 547; 192 NE 145 (1934). The Court of Appeals concluded**  **that the application of the last antecedent rule in this case would mean that the phrase "from the filing of the**  **complaint to the date of the mediation evaluation" modified only "interest on the amount of the verdict" and not**  **"assessable costs." MCR 2.403(0)(1). The panel concluded that such an interpretation of the rule "skews its dominant**  **purpose." 252 Mich App 497. Therefore, the panel held that the modifying phrase in MCR 2.403(O)(3) applied to**  5**both “assessable costs” and “interest.” This construction of the court rule, the Court concluded, was more in keeping**  **with the overall purposes of the mediation rule, which are “to encourage settlement, deter protracted litigation, and**  **expedite and simplify the final settlement of cases.” 252 Mich App 498.**  **We agree with the Court of Appeals that attorney fees, whether incurred before or after the mediation evaluation,**  **are not an element of "assessable costs" under MCR 2.403(O)(3). The general “American rule” is that “attorney**  **fees are not ordinarily recoverable unless a statute, court rule, or common-law exception provides the contrary.”**  Nemeth v Abonmarche Dev, Inc, **457 Mich 16, 37-38; 567 NW2d 641 (1998). As such, the term “costs” ordinarily does not**  **encompass attorney fees unless the statute or court rule specifically defines “costs” as including attorney fees.**  **For example, MCR 2.403(O)(6) provides that “actual costs” include “(a) those costs taxable in any civil action, and**  **(b) a reasonable attorney fee . . . .” MCR 2.403(O)(6),**  **however, does not define “ass essable costs” as including**  **attorney fees. We conclude, therefore, that attorney fees are not included in “assessable costs” under MCR**  **2.403(O)(3). We also agree that in adjusting a verdict under MCR**  **2.043(O)(3), assessable costs are limited to those incurred** 6**between the filing of the complaint and the date of the mediation evaluation or case evaluation.**  **Plaintiffs have urged upon us the position that utilization of the “last antecedent” rule would support the**  **conclusion that the modifying phrase applies only to “interest.” Here, however, the last antecedent rule**  **provides little guidance because there are no textual clues indicating that “assessable costs” and “interest” are to be**  **treated separately. To the contrary, the fact that “and” joins “assessable costs” and “interest on the amount of the**  **verdict from the filing of the complaint to the date of the case evaluation”**  **suggests that the phrase “assessable costs and interest” is to be thought of as a single term, and, as**  **a unit, is modified by “from the filing of the complaint to the date of the case evaluation.” MCR 2.403(0)(3).**  **Moreover, plaintiffs’ suggested reading produces conceptual difficulties because it would provide no temporal limit at**  **all to “assessable costs” and would make it possible for a party, remorseful over its failure to accept the mediation**  **award, to advantage itself between mediation and trial by accruing unnecessary costs. This is an outcome that surely**  **could not have been intended by the Court in adopting these rules. Indeed, the plain meaning of the rule and its**  **grammatical structure make it clear that the rule does set the temporal limit as the date of case evaluation. On the**  7**basis of the foregoing application of the principles of construction, we affirm the judgment of the Court of**  **Appeals. MCR 7.302(G)(1). Maura D. Corrigan**  **Michael F. Cavanagh Marilyn Kelly**  **Clifford W. Taylor Robert P. Young, Jr.**  **Stephen J. Markman**

8**_______________________________ v**  **S T A T E O F M I C H I G A N**
**SUPREME COURT**

**WILLIAM C. DESSART, and SHIELA A. DESSART,**  **Plaintiffs-Appellants,**

**No. 122238**  **LYNN MARIE BURAK, and BRYAN R. BURAK,**  **Defendants-Appellees.**

**WEAVER, J. (** concurring in result **). I concur in the majority’s determination that the last**  **antecedent rule does not control the interpretation of the court rule at issue in this case.**  **I agree with and adopt the Court of Appeals reasoning that applying the last antecedent rule to MCR 2.403(O)(3)**  **“skews [the court rule’s] dominant purpose,” which is to encourage settlement, deter protracted litigation, and**  **expedite and simplify the final settlement of cases. 252 Mich App 490, 497; 652 NW2d 669 (2002).**  **I write separately because in its efforts to avoid applying the last antecedent rule, the majority**  **unnecessarily creates a new rule of interpretation—that when two phrases are joined by “and,” they are to be** **treated as one term for the purpose of the last antecedent rule unless there is some textual clue indicating that they**  **are to be treated separately. This new rule of interpretation conflicts with the last antecedent rule,**  **which provides that a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase**  **that it immediately follows** , **unless there is some indication to the contrary.**  **1 The majority’s creation of the new conflicting rule of**  **interpretation is unnecessary because, although the last antecedent rule is a well-recognized rule of statutory**  **construction, its use is optional, not mandatory. As Sutherland On Statutory Construction explains, the last**  **antecedent rule is “another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where**  **the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding** 

1 Barnhart v Thomas **, 540 US ___; 124 S Ct 376, 380; 157 L Ed 2d 333 (2003), citing 2A Singer, Sutherland on**  **Statutory Construction, § 47.33, p 369 (6th rev ed, 2000) (“Referential and qualifying words a**  **nd phrases, where no contrary intention appears, refer solely to the last**  **antecedent.”)**

2**sections, the word or phrase will not be restricted to its immediate antecedent.”**  **2 I concur in the result of the memorandum opinion.**  **Elizabeth A. Weaver**

2 **2A Singer, Sutherland on Statutory Construction, § 47.33, p 372 (6th rev ed 2000).** 

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