_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

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 panel1

 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 costs” 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 favorable 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 “assessable 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 and 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). 

3