8.7Frivolous Motion, Claim, or Defense

A frivolous motion is distinct from a frivolous claim or defense. See Home-Owners Ins Co v Andriacchi, 320 Mich App 52, 76 n 6, 78 n 9 (2017).

Frivolous motion. “Sanctions for the filing of a frivolous motion . . . must be evaluated under [MCR 1.109(E)(7)] not under MCL 600.2591, because MCL 600.2591 provides for sanctions related to a frivolous civil action or defense.” Home-Owners Ins Co, 320 Mich App at 76 n 6.¹ “MCL 600.2591 is not applicable to a frivolous motion because a motion does not involve a claim or defense in a civil action.” Home-Owners Ins Co, 320 Mich App at 78 n 9.

Frivolous claim or defense. The court must award reasonable costs and attorney fees to the prevailing party (unless the state is the prevailing party) against any attorney or party, or both, if it determines the claim or defense in a civil action was frivolous. MCL 600.2591; MCL 600.2421c; MCR 1.109(E)(7). The objective of punishing the introduction of frivolous claims and defenses with sanctions “is to deter parties and attorneys from filing documents or asserting claims and defenses that have not been sufficiently investigated and researched or that are intended to serve an improper purpose.” FMB-First Mich Bank v Bailey, 232 Mich App 711, 722-723 (1988).²

“The determination whether a claim or defense is frivolous must be based on the circumstances at the time it was asserted.” Pioneer State Mut Ins Co v Michalek, 330 Mich App 138, 147 (2019) (quotation marks and citation omitted). The evidence (or lack thereof) produced during the proceedings may be used to evaluate whether the action was frivolous. See Davids v Davis, 179 Mich App 72, 89-90 (1989).

“[MCR 1.109(E)(7)³] provides for an award of sanctions against both a party and his counsel for not making reasonable inquiry as to whether a [document] is well grounded in fact and warranted by either existing law or a good-faith argument for extension, modification or reversal of existing law.”Briarwood v Faber’s Fabrics, Inc, 163 Mich App 784, 792 (1987).

A.Caselaw Evaluating a Motion for Frivolousness

The trial court must “articulate a clear basis for its decision” regarding whether a motion is frivolous. Home-Owners Ins Co v Andriacchi, 320 Mich App 52, 79 (2017) (vacating the trial court’s order and remanding for “appropriate findings” where the trial court did not explain its finding of frivolousness on the record and its “written order gave no indication as to why it found that the motion was frivolous,” even though it was “fairly apparent” from the record that the motion had no legal basis). The Court of Appeals employs the clearly erroneous standard to a trial court’s determination regarding the frivolousness of a pleading; accordingly, “the trial court’s failure to articulate a clear basis for its decision makes it impossible to ascertain whether the trial court clearly erred in finding the motion frivolous.” Id. at 75, 79.

B.Caselaw Evaluating a Claim for Frivolousness

 A trial court did not “clearly err[] when it found that plaintiffs did not bring the claims for an improper purpose” where the record also supported a contrary finding because the “trial court had overseen the proceeding for years,” “had the opportunity to view the parties in person,” and “was also intimately familiar with the legal arguments and evidence.” Tolas Oil & Gas Exploration Co v Bach Servs & Mfg LLC, 347 Mich App 280, 322, 323 (2023).

The “trial court clearly erred by finding that plaintiffs’ first amended complaint was frivolous and warranted sanctions” because it “ignored the factual and legal uncertainties that plaintiffs’ attorneys faced and the reasonable decisions they made to protect plaintiffs’ interests.” Bauer-Rowley v Humphreys, 344 Mich App 52, 63, 64 (2022) (noting “the circumstances presented here differ substantially from cases in which [the Court of Appeals] has affirmed such sanctions”). Specifically, the Bauer-Rowley Court held that “there was a question of fact regarding whether plaintiffs were eligible for [personal protection insurance] benefits under [the plaintiff’s] policy[.] The legal effect of [an order issued by the State of Michigan Department of Insurance and Financial Services] was also unclear considering that the [Michigan Auto Insurance Placement Facility] processed claims for no-fault benefits in compliance with the order.” Id. at 63-64. Accordingly, the Court of Appeals reversed the trial court’s orders awarding attorney fees and costs under MCR 1.109(E) and MCL 600.2591. Id. at 64.

“Because [defendant] offered a plea in connection with MCL 333.7404, and entered probation over five weeks before plaintiff filed the complaint for forfeiture of her vehicle, plaintiff was issuing a demand that was then wholly without legal support, and that would have remained so even if [defendant] had later violated probation and ended up convicted under MCL 333.7404.” In re Forfeiture of $2,124, 342 Mich App 569, 578-579 (2022) (“according to MCL 333.7521(1)(d)(iii), a violation of MCL 333.7404 did not subject her vehicle to forfeiture”).⁴ Thus, “at the time plaintiff filed the forfeiture compliant, the complaint lacked arguable legal merit to justify the forfeiture of [defendant’s] vehicle.” In re Forfeiture of $2,124, 342 Mich App at 579. Accordingly, the Court of Appeals held that “the trial court clearly erred by finding that the claim was not frivolous, and [defendant was] entitled to costs and attorney fees incurred defending against the complaint.” Id. at 579 (citing MCL 600.2591(1)).

The trial court did not clearly err in finding that the plaintiff’s claims were frivolous and awarding sanctions under MCL 600.2591(3)(a) where “there was no basis in fact to support plaintiff’s speculative belief that defendant had benefited unjustly from plaintiff’s legal advice and reached a valuable settlement with [a third party], which was the foundation of plaintiff’s claims of quantum meruit, unjust enrichment, and fraudulent misrepresentation”; the “evidence support[ed] the conclusion that plaintiff did not sufficiently investigate and research the factual bases of its claims,” and “an objective assessment of the facts known and reasonably knowable, show[ed] that plaintiff ‘had no reasonable basis to believe that the facts underlying [its] legal position were in fact true[.]’” Meisner Law Group PC v Weston Downs Condo Ass’n, 321 Mich App 702, 733, 734 (2017), quoting MCL 600.2591(3)(a)(ii) (internal citation omitted).

A trial court properly ordered sanctions against the plaintiffs and the plaintiffs’ attorney where the court determined that the plaintiffs “knew at the outset” of litigation that the claims were frivolous and proceeded anyway. BJ’s & Sons Const Co, Inc v Van Sickle, 266 Mich App 400, 408 (2005).

C.Caselaw Evaluating A Defense for Frivolousness

“[T]he mere fact that a party did not ultimately prevail on its legal position does not per se render that position frivolous[.]” Pioneer State Mut Ins Co v Michalek, 330 Mich App 138, 147 (2019) (quotation marks, alterations, and citation omitted). However, “the trial court did not clearly err in finding that defendant’s defense was frivolous,” where it applied a “deferential standard of review,” that included “findings [that] went beyond a mere rejection of defendants’ legal position.” Id. at 147 (trial court “conducted a three-day bench trial . . . , made detailed findings of fact after trial, and its reference to those findings was sufficient to explain why it found the defense of these claims to be frivolous”).

For purposes of a frivolous defense that is “devoid of arguable legal merit,” see MCL 600.2591(3)(a)(iii), devoid of arguable legal merit means that the defense “is not sufficiently grounded in law or fact, such as when it violates basic, longstanding, and unmistakably evident precedent.” Bronson Health Care Group, Inc v Titan Ins Co, 314 Mich App 577, 584-585 (2016) (holding that the trial court clearly erred in denying attorney fees and costs to the plaintiff pursuant to MCL 600.2591 where the defendant’s “argument regarding its liability to pay penalty interest under MCL 500.3142 was devoid of arguable legal merit because it was contrary to basic, longstanding, and unmistakably evident precedent”) (quotation marks and citations omitted).

“The plain language of [MCL 600.2591] states that costs and fees can be awarded ‘if a court finds that a civil action or defense’ is frivolous, and the court rule uses similar language. The statute and court rule do not use the phrase ‘the’ to modify the word ‘defense.’” In re Costs & Attorney Fees (Powell Prod, Inc), 250 Mich App 89, 102 (2002). Therefore, “sanctions may issue if any defense is frivolous.” Id. at 103.

D.Joint and Several Liability for Sanctions 

“In its traditional context, joint and several liability means that where multiple tortfeasors caused a single or indivisible injury, the injured party may either sue all tortfeasors jointly or he may sue any individual tortfeasor severally, and each individual tortfeasor is liable for the entire judgment.” Bradley v Frye-Chaiken, ___ Mich ___, ___ (2024) (cleaned up). However, neither MCR 1.109(E) nor MCL 600.2591(1) “require that all attorneys who represent a sanctioned party during a civil action be held jointly responsible for frivolous conduct, let alone jointly and severally responsible for that conduct.” Bradley, ___ Mich at ___. “MCR 1.109(E)(6) only permits joint responsibility for the party and the person who signed the frivolous pleading.” Bradley, ___ Mich at ___. “And while MCL 600.2591(1) is not explicitly dependent on the filing of a frivolous pleading, the statute requires more than an attorney entering an appearance during any portion of the pertinent case, such as an appearance made after the frivolous action or defense was dismissed on the merits, to be held jointly responsible.” Bradley, ___ Mich at ___. “If an attorney substitutes into a case and does not participate in a frivolous claim or defense, the sanctionable conduct does not arise out of that attorney’s representation, and therefore a sanction is not permitted.” Id. at ___.

“MCR 1.109(E)(6) plainly does not provide that all attorneys who represented a client during any portion of a case in which an action or defense was frivolous must be held jointly and severally responsible for any sanctions that are eventually imposed.” Bradley, ___ Mich at ___. MCR 1.109(E)(6) provides that “‘[i]f 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 . . . .’” Bradley, ___ Mich at ___, quotingMCR 1.109(E)(6) (emphasis added). “The court rule is clear that only the attorney(s) who signed the frivolous document and/or the represented party may be held jointly responsible for the sanction imposed.” Bradley, ___ Mich at ___. “The court rule does not require the attorney who signed the frivolous document to be held jointly responsible with the represented party for the sanction imposed.” Id. at ___. “Rather, the court rule permits the trial court discretion to impose an appropriate sanction, under which a court may hold the attorney signing the frivolous document jointly responsible with the represented party for the sanctions imposed.” Id. at ___.

“MCL 600.2591 simply does not require, in any instance, that attorneys must be held jointly and severally responsible for sanctions imposed by a trial court.” Bradley, ___ Mich at ___. “MCL 600.2591 provides that ‘if a court finds that a civil action 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 nonprevailing party and their attorney.’” Bradley, ___ Mich at ___. “The statute clearly envisions that sanctions be awarded against ‘the nonprevailing party and their attorney,’ but the statute does not require that all attorneys of record must be sanctioned, especially when the attorney at issue was not retained when the frivolous ‘action or defense’ was presented or advanced.” Id. at ___. “The Legislature chose to make a frivolous defense sanctionable.” Id. at ___ (quotation marks and citation omitted). “The use of ‘a’ instead of ‘the’ supports the conclusion that the statute, as well as the court rule, does not require that the entire defense or all the asserted defenses be found frivolous in order for sanctions to issue.” Id. at ___. “The statute plainly contemplates that more than one frivolous defense may be presented during a civil action.” Id. at ___. “Had the statute instead referred to ‘the’ defense to a civil action, perhaps all attorneys could be sanctioned regardless of their participation.” Id. at ___. “Because the statute contemplates sanctions relating to a particular defense, it follows that sanctions may only be sought against counsel asserting that specific frivolous defense.” Id. at ___. “The language is directed toward the claims and arguments underlying the frivolous ‘civil action or defense,’ not all actions and circumstances related to the case at all proceedings.” Id. at ___. “Thus, there is no statutory basis for the assertion that all attorneys representing the sanctioned party must themselves be sanctioned, even if an attorney did not assist with or promote the frivolous defense.” Id. at ___.

In Bradley, an attorney “was hired to litigate the amount of costs and fees assessed by the trial court for frivolous defenses and counterclaims that were brought by attorneys prior to [the attorney’s] appearance in the case.” Id. at ___. Notably, the attorney “did not file any pleading deemed frivolous by the trial court” or “argue the unsubstantiated facts that formed the foundation of the trial court’s sanctions order.” Id. at ___. Nevertheless, the trial court held him “jointly and severally responsible for the sanctions it had imposed on defendant and her prior attorneys for frivolous pleadings filed earlier in the proceedings.” Id. at ___. “The trial court’s belief that it was required to impose sanctions on [the attorney] because he was an attorney of record for defendant, despite that [he] neither participated in the relevant sanctionable conduct nor represented defendant when the frivolous defenses were advanced, was not supported by MCR 1.109(E) and MCL 600.2591.” Bradley, ___ Mich at ___. “Because [the attorney] had not filed a frivolous document and no motion for sanctions was brought against him, the court committed an error of law by sua sponte holding him jointly and severally responsible for the sanctions imposed.” Id. at ___ (holding that “a trial court commits clear error by imposing sanctions against every attorney who represented a sanctioned party during a civil action, even when the sanctionable conduct occurred prior to an attorney being retained”).

E.Self-Representation 

Self-represented parties are not eligible for attorney fee sanctions under MCR 1.109(E)(7) or MCL 600.2591 because they require payment of “all reasonable costs actually incurred,” and a self-represented party cannot incur attorney fees. FMB-First Mich Bank v Bailey, 232 Mich App 711, 719, 726 (1998), quoting MCL 600.2591(2).⁵ 

F.Standard of Review

A trial court’s finding that a claim or defense was frivolous is reviewed for clear error. Szymanski v Brown, 221 Mich App 423, 436 (1997).