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

NICHOLE ROLFE,

Plaintiff-Appellant/Cross-Appellee,

UNPUBLISHED

July 22, 2021

v No. 352005

Genesee Circuit Court

BAKER COLLEGE, LC No. 15-104587-CK

Defendant-Appellee/Cross-Appellant.

Before: BORRELLO, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

Plaintiff-appellant/cross-appellee (plaintiff), Nichole Rolfe, appeals as of right, and 

defendant-appellee/cross-appellant (defendant), Baker College, cross-appeals as of right, the trial 

court’s order awarding defendant $9,500 in case evaluation sanctions. For the reasons set forth in 

this opinion, we reverse.

I. BACKGROUND

This matter has previously been before this Court, and we quote from this Court’s prior 

opinion in this matter for purposes of providing relevant factual background:

Plaintiff was enrolled in defendant’s nursing program. Approximately six 

months into her tenure as a student in defendant’s program, plaintiff was subjected 

to discipline from defendant’s nursing director. As part of that discipline, plaintiff 

signed a “behavior contract” that would permit her dismissal from defendant’s 

program if she continued to demonstrate “improper professional behavior.”

Plaintiff was subsequently discharged from the program for violation of the 

behavior contract based on conduct that defendant characterized as “[d]isrupting

the learning environment . . . by continuously arguing . . . about a personal belief 

regarding immunizations,” “persistent, aggressive, oppositional behavior . . . by 

student in clinical group setting . . . disrupting the clinical learning environment,”

and “abrasive and unprofessional” email communications to an instructor.
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Plaintiff filed suit, asserting breach of express or implied contract claims. 

In response to defendant’s motion for summary disposition, plaintiff asserted that 

her damages included “future lost wages” based on the full wages of a professional 

midwife for 30 years, in the amount of $97,700 per year for 30 years; plaintiff 

calculated her total damages at over three million dollars. Defendant filed motions 

in limine seeking to restrict plaintiff’s damages to the cost of the tuition she had 

paid to defendant, which according to defendant was at most $9,270.85. After 

several motion hearings, the trial court granted summary disposition in favor of 

defendant on most of plaintiff’s claims, including her claim for breach of “the 

covenant of good faith and fair dealing,” but denied summary disposition regarding 

plaintiff’s claim for breach of the behavior contract. The trial court also issued an 

opinion and order limiting plaintiff’s recoverable damages to “the cost of 

education,” thereby excluding such other claimed damages as future lost wages, 

stating in relevant part:

Plaintiff may recover, if and when proven, the costs of her education 

in a sense broader than tuition and books but limited to what she 

actually paid. If she paid with borrowed funds, such funds are a 

measure of damages, so long as she is obligated to pay them back. 

To the extent she is not required to pay them back but she is 

precluded from obtaining additional funds (e.g. a one-time grant) 

her inability to reacquire funds to pay for an education elsewhere 

formulates an aspect of her damages.

Before trial, the parties stipulated to the entry of a final judgment in favor 

of plaintiff and against defendant with regard to plaintiff’s claim that defendant had 

breached the behavior contract, and to the dismissal of plaintiff’s other claims, with 

a stipulated damages amount of $15,000 plus a waiver of any remaining debt owed 

by plaintiff to defendant. The consent judgment reserved plaintiff’s right to appeal 

the trial court’s limitation of her damages. [Rolfe v Baker College, unpublished per 

curiam opinion of the Court of Appeals, issued May 7, 2019 (Docket No. 340158), 

pp 1-2 (ellipses in original).]

The consent judgment specifically provided as follows:

Based upon the prior opinions and/or decisions of this trial court, the parties 

agree to entry of a final judgment in favor of Plaintiff, NICHOLE ROLFE, and 

against Defendant, BAKER COLLEGE, in the stipulated amount of $15,000.00 

(inclusive of all assessable costs and interest) as to Count II of the First Amended 

Complaint, together with a waiver by Baker College of any and all debt that 

Plaintiff, NICHOLE ROLFE owes Defendant, BAKER COLLEGE.

It is further agreed and understood that Plaintiff will appeal (and prosecute 

through completion) this Judgment as a matter of right, which includes any and all 

prior decisions of the trial court, including any damages limitation decreed by this 

trial court (specifically including the Order Regarding Summary Disposition and 

Motion in Limine, dated September 1, 2016). This Court declares that all prior 
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issues raised and/or resolved via prior decisions are fully preserved for appellate 

purposes and not waived by this final judgment.

It is also agreed and understood that if Plaintiff fails to appeal as stated 

above or if she fails to take any act necessary to prosecute that appeal to final 

adjudication, Plaintiff is ordered to tender to Baker College a Satisfaction of 

Judgment, signed by Plaintiff, for the full Judgment amount.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that a final 

judgment is hereby entered in favor of Plaintiff, NICHOLE ROLFE, and against 

Defendant, BAKER COLLEGE, in the amount of $15,000.00 (inclusive of 

assessable costs and interest) as to Count II of the First Amended Complaint, which 

sum shall be paid as follows:

(a) BAKER COLLEGE shall pay the sum of $2,250.00 to Plaintiff, 

NICHOLE ROLFE, within 7 days from the date of this Judgment; and

(b) BAKER COLLEGE shall pay the sum of $12,250.00 to the Simen, 

Figura & Parker, PLC[1] Client Trust Account where it shall remain pending further 

order of the Court.

IT IS ALSO ORDERED that the unpaid portion of the Judgment for 

$12,250.00 shall not be paid or collected upon until (1) Plaintiff’s appeal is 

prosecuted to final adjudication; and/or (2) the trial court resolves any motion for 

case evaluation sanctions brought by BAKER COLLEGE following prosecution of 

an appeal that NICHOLE ROLFE files.

IT IS ALSO ORDERED AND ADJUDGED THAT BAKER COLLEGE 

hereby waives and forgives any and all debt that Plaintiff, NICHOLE ROLFE owes 

Defendant, BAKER COLLEGE.

The parties further agree that this Final Judgment entered as a result of 

rulings by the court on motions filed by Baker College after case evaluation, 

specifically (but not limited to) Baker College’s motion for summary disposition 

and motions in limine concerning Plaintiff’s damages.

Any request for case evaluation penalties by BAKER COLLEGE will not 

be sought until after a final adjudication of Plaintiff’s appeal and any case 

evaluation sanctions ordered by the Court shall not exceed the Judgment amount of 

$15,000.00.

This is a final order conferring the right to appeal and closes the case.

 

1 This law firm represented Baker College.
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As alluded to previously, plaintiff appealed this final judgment. Rolfe, unpub op at 1-2. 

This Court affirmed, holding in relevant part that the trial court did not err by limiting plaintiff’s 

damages to the costs of her nursing school education and that the damages sought by plaintiff for 

“lost future wages and other damages not directly tied to the expense of her nursing education”

were “not recoverable under Michigan law regarding breach of contract damages.” Id. at 1-3.

Defendant subsequently filed a motion in the trial court arguing that it was entitled to case 

evaluation sanctions under MCR 2.403(O) because the $15,000 case evaluation award had been 

rejected by plaintiff and accepted by defendant before the above described consent judgment was 

entered.2 Defendant further argued that the final consent judgment provided that the judgment was 

entered as a result of the motions filed by defendant after case evaluation. Although defendant 

argued that its reasonable attorney fees subsequent to the case evaluation award were $31,678, 

defendant sought only $15,000 in case evaluation sanctions on the basis that the final judgment 

stated that case evaluation sanctions would be capped at $15,000. 

Plaintiff opposed the motion, arguing first that a consent judgment was not a “judgment”

for purposes of the court rule because the court did not determine the parties’ respective rights and 

obligations. Plaintiff also argued that the consent judgment was more than 10 percent higher than 

the case evaluation award, and thus more favorable to plaintiff under MCR 2.403(O)(3), because 

it included the forgiveness of $2,792 in debt that plaintiff still owed defendant. In the alternative, 

plaintiff argued that the trial court could decline to impose sanctions in the interest of justice, 

pursuant to MCR 2.403(O)(11); plaintiff maintained that the position advanced through her prior 

appeal was premised on an unsettled area of law and a legal issue of first impression. Finally, 

plaintiff argued that defendant’s current motion for case evaluation sanctions was frivolous and 

designed to harass, such that plaintiff was entitled to sanctions under MCR 1.109(E)(6). 

The trial court granted defendant $9,500 in case evaluation sanctions. This appeal 

followed, with plaintiff generally challenging the propriety of awarding case evaluation sanctions 

and defendant challenging the trial court’s decision to award less than the full amount of case 

evaluation sanctions requested.

II. CASE EVALUATION SANCTIONS

A. STANDARD OF REVIEW

Questions involving the interpretation of court rules are reviewed de novo. Bint v Doe, 

274 Mich App 232, 234; 732 NW2d 156 (2007). A trial court’s decision to grant or deny case 

evaluation sanctions is also reviewed de novo. Harbour v Correctional Med Servs, Inc, 266 Mich 

App 452, 465; 702 NW2d 671 (2005). The amount of a case evaluation sanction award is reviewed 

for an abuse of discretion. Peterson v Fertel, 283 Mich App 232, 239; 770 NW2d 47 (2009). 

Additionally, “because a trial court’s decision whether to award costs pursuant to the ‘interest of 

justice’ provision set forth in MCR 2.403(O)(11) is discretionary, this Court reviews that decision 

for an abuse of discretion.” Harbour, 266 Mich App at 465. “An abuse of discretion occurs when 

 

2 The case evaluation hearing occurred on October 19, 2016. The consent judgment was entered 

on August 29, 2017.
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the trial court’s decision is outside the range of reasonable and principled outcomes.” Peterson, 

283 Mich App at 235 (quotation marks and citation omitted).

Factual findings underlying a trial court’s application of the interest-of-justice exception in 

MCR 2.403(O)(11) are reviewed for clear error. Sabbagh v Hamilton Psychological Servs, PLC, 

329 Mich App 324, 364; 941 NW2d 685 (2019). “A finding is clearly erroneous when, although 

there is evidence to support it, the reviewing court on the entire record is left with a definite and 

firm conviction that a mistake was made.” Id. (quotation marks and citation omitted).

Because “judgments entered pursuant to the agreement of parties are in the nature of a 

contract,” this Court reviews de novo questions involving the interpretation of consent judgments 

entered by agreement. See Neville v Neville, 295 Mich App 460, 466; 812 NW2d 816 (2012). “In 

ascertaining the meaning of a contract, we give the words used in the contract their plain and 

ordinary meaning that would be apparent to a reader of the instrument.” Rory v Continental Ins 

Co, 473 Mich 457, 464; 703 NW2d 23 (2005).

B. ANALYSIS

Central to the issues on appeal is MCR 2.403(O),

3 which provides in relevant part:

(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 case evaluation. . . .

(2) For the purpose of this rule “verdict” includes,

(a) a jury verdict,

(b) a judgment by the court after a nonjury trial,

(c) a judgment entered as a result of a ruling on a motion after rejection of 

the case 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

 

3 None of the quoted provisions were affected by the recent amendment to this court rule. See 

Administrative Order No. 2019-09, ___ Mich ___ (2021).
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(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, which may include legal services provided by attorneys representing 

themselves or the entity for whom they work, including the time and labor of any 

legal assistant as defined by MCR 2.626.

* * *

(11) If the “verdict” is the result of a motion as provided by subrule 

(O)(2)(c), the court may, in the interest of justice, refuse to award actual costs.

Plaintiff first argues that defendant was not entitled to case evaluation sanctions because 

the consent judgment in this case did not constitute a “verdict” as that term is defined in MCR 

2.403(O)(2). There is no dispute that the only definition of “verdict” implicated by the procedural 

facts of this case is MCR 2.403(O)(2)(c), which states that a verdict includes “a judgment entered 

as a result of a ruling on a motion after rejection of the case evaluation.” Relying on our Supreme 

Court’s decision in Acorn Investment Co v Michigan Basic Prop Ins Ass’n, 495 Mich 338, 354; 

852 NW2d 22 (2014), plaintiff maintains that a consent judgment is not a “judgment” for purposes 

of MCR 2.403(O)(2)(c) because the parties’ respective rights and obligations are not determined 

by the court under a consent judgment.

“A ‘judgment’ is ‘[a] court’s final determination of the rights and obligations of the parties 

in a case.’ ” Acorn, 495 Mich at 351, quoting Black’s Law Dictionary (9th ed) (alteration in 

original). However, our Supreme Court explained in Acorn that “a consent judgment is not the 

kind of ‘judgment’ required by MCR 2.403(O)(2)(c) because the court does not ‘determine . . . the 

rights and obligations of the parties’ in a consent judgment.” Acorn, 495 Mich at 354, quoting 

Black’s Law Dictionary (9th ed) (ellipsis in original). Instead, “a consent judgment is a 

‘settlement’ or a ‘contract’ ‘that becomes a court judgment when the judge sanctions it.’ ” Acorn, 

495 Mich at 354, quoting Black’s Law Dictionary (9th ed). This Court has also explained that “[a]

consent judgment is different in nature from a judgment rendered on the merits because it is 

primarily the act of the parties rather than the considered judgment of the court.” Clohset v No 

Name Corp (On Remand), 302 Mich App 550, 565; 840 NW2d 375 (2013) (quotation marks and 

citation omitted). “Consent decrees differ from typical judgments because the voluntary nature of 

a consent decree is its most fundamental characteristic.” Id. (quotation marks and citation 

omitted).

In this case, the final judgment was entered as a result of the parties’ mutual agreement to 

stipulate to a consent judgment. This consent judgment provided that the parties agreed to a 

judgment of $15,000 in plaintiff’s favor along with a waiver of any remaining debt plaintiff owed 

to defendant. The consent judgment indicates that both parties stipulated to its form and content. 

Because the final judgment in this case was a consent judgment that was the product of the parties’

voluntary agreement, it did not constitute a “judgment” or “verdict” for purposes of case evaluation 

sanctions under MCR 2.403(O)(2)(c). Acorn, 495 Mich at 354; Clohset, 302 Mich App at 565; 

MCR 2.403(O)(2)(c).
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Nonetheless, defendant argues that the consent judgment was still a “verdict” for purposes 

of MCR 2.403(O)(2)(c) despite the fact that—as defendant admits—the parties negotiated the 

terms of the consent judgment. Defendant argues that the consent judgment resulted from “the 

ruling,” citing the following language in the consent judgment:

The parties further agree that this Final Judgment entered as a result of 

rulings by the court on motions filed by Baker College after case evaluation, 

specifically (but not limited to) Baker College’s motion for summary disposition 

and motions in limine concerning Plaintiff’s damages.

However, to the extent the judgment references defendant’s prior motion for summary 

disposition, defendant’s prior motion in limine concerning damages,4or any other unspecified 

prior motion, none of these motions could have actually resulted in the judgment that was entered 

because the final judgment at issue expressly indicates multiple times that the terms of the 

judgment were mutually agreed upon by the parties. Thus, the language of the consent judgment 

makes it clear that the judgment and its terms were the product of the parties’ agreement rather 

than a ruling by the trial court. Rory, 473 Mich at 464. A voluntary, mutual agreement is the very 

definition of a consent judgment. See Acorn, 495 Mich at 354; Clohset, 302 Mich App at 565. 

Where the judgment is the product of the parties’ mutual agreement, it logically follows that it is 

not the result of a “ruling” by the trial court as required by MCR 2.403(O)(2)(c) to be considered 

a “verdict.” See MCR 2.403(O)(2)(c); see also Acorn, 495 Mich at 354.

As defendant argues, the consent judgment seems to indicate that the parties agreed to 

preserve defendant’s right to seek case evaluation sanctions. However, regardless of defendant’s 

ability to pursue case evaluation sanctions, MCR 2.403(O) defines when a party is actually entitled

to case evaluation sanctions. Acorn, 495 Mich at 348. Because the final judgment in this case was 

a consent judgment rather than a judgment resulting from a ruling on a motion, the final consent 

judgment did not constitute a “verdict” for purposes of MCR 2.403(O)(2)(c). Acorn, 495 Mich at 

354. Defendant essentially suggests that the parties could mutually agree to create an additional 

type of “verdict” that would allow it to obtain case evaluation sanctions, although defendant cites 

no authority to support this position. However, “[i]n applying MCR 2.403(O)(2), this Court has 

consistently rejected attempts to expand or read additional meaning into the rule that is not 

expressly stated.” Jerico Const, Inc v Quadrants, Inc, 257 Mich App 22, 30; 666 NW2d 310 

(2003). Parties cannot create by consent judgment an additional means of satisfying the definition 

of “verdict” in MCR 2.403(O)(2). Jerico, 257 Mich App at 31 (holding that a stipulated order of 

dismissal was not a “verdict” for purposes of MCR 2.403(O) because “the stipulated order of 

 

4 As previously stated, with respect to the motion for summary disposition, the trial court granted 

summary disposition in defendant’s favor on four of the five counts alleged by plaintiff and denied 

defendant’s motion for summary disposition with respect to the remaining count for breach of the 

behavioral contract. That remaining count was subsequently settled by way of the consent 

judgment. With respect to the motion in limine, the trial court ruled that plaintiff could not seek 

damages for future lost wages on her remaining breach-of-contract claim and limited her potential 

damages to the costs actually paid toward her education.
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dismissal was entered on the basis of plaintiff’s and [defendant’s] settlement agreement—not by 

any of the three methods clearly and unambiguously set forth in MCR 2.403(O)(2)”).

Because the consent judgment was not a “verdict” as that term is defined in MCR 

2.403(O)(2), defendant was not entitled to recover case evaluation sanctions. MCR 2.403(O)(1).5 

The trial court erred by granting case evaluation sanctions in defendant’s favor.6

Having reached this conclusion, we need not address plaintiff’s remaining arguments 

regarding the application of MCR 2.403(O), that the judgment was more favorable to plaintiff and 

that the interest-of-justice exception in MCR 2.403(11) warranted denying case evaluation 

sanctions. These issues are now moot. B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 

586 NW2d 117 (1998) (“An issue is deemed moot when an event occurs that renders it impossible 

for a reviewing court to grant relief.”).

Finally, plaintiff argues that sanctions should be imposed against defendant pursuant to 

MCR 1.109(E)(5)(b) and MCR 1.109(E)(6). These provisions provide:

(5) Effect of Signature. The signature of a person filing a document, 

whether or not represented by an attorney, constitutes a certification by the signer 

that:

* * *

(b) 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; . . .

* * *

(6) Sanctions for Violation. 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.

 

5 Accordingly, we need not address defendant’s argument that the trial court abused its discretion

by not awarding the full amount requested in case evaluation sanctions.

6 We additionally note that a party’s inability to obtain case evaluation sanctions when the party 

agrees to settle a case by way of a consent judgment is in accord with the purpose of the case 

evaluation sanctions rule, which is “to encourage settlement and deter protracted litigation by 

placing the burden of litigation costs upon the party that required that the case proceed toward trial 

by rejecting the mediator’s evaluation.” Peterson, 283 Mich App at 236 (quotation marks and 

citation omitted).
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In this case, plaintiff’s sole basis for alleging that defendant should be sanctioned is that 

defendant did not withdraw its motion for case evaluation sanctions after plaintiff informed 

defendant of plaintiff’s contrary position on the matter. Having reviewed defendant’s arguments, 

we do not conclude that defendant’s motion for case evaluation sanctions violated MCR 

1.109(E)(5)(b). Defendant relied on language in the consent judgment that it believed brought the 

judgment within the rule. Although we conclude that the relevant legal authority compels an 

outcome contrary to defendant’s position, that fact standing alone does not indicate that defendant 

violated MCR 1.109(E)(5)(b). “Not every error in legal analysis constitutes a frivolous position.” 

Jerico, 257 Mich App at 36 (quotation marks and citation omitted). Plaintiff has not demonstrated 

an entitlement to sanctions under MCR 1.109(E)(6).

Reversed and remanded for further proceedings not inconsistent with this opinion. We do 

not retain jurisdiction. No costs are awarded to any party. MCR 7.219.

/s/ Stephen L. Borrello 

/s/ Deborah A. Servitto 

/s/ Cynthia Diane Stephens