Wayne State University v. Michael Bannoura ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
WAYNE STATE UNIVERSITY, UNPUBLISHED
November 17, 2015
Plaintiff/Counter-Defendant-
Appellee,
v No. 322715
Wayne Circuit Court
MICHAEL BANNOURA, LC No. 12-011119-CZ
Defendant/Counter-Plaintiff-
Appellant.
Before: SERVITTO, P.J., and WILDER and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by right the trial court’s order granting summary disposition in favor
of plaintiff and dismissing defendant’s counterclaim in its entirety1. Defendant also challenges
the trial court’s earlier grant of partial summary disposition in favor of plaintiff, dismissing
Count IV of defendant’s counterclaim, which alleged a violation of the Elliott-Larson Civil
Rights Act (CRA), MCL 37.2101 et seq. Finally, defendant challenges the trial court’s failure to
award him damages after granting summary disposition in his favor on plaintiff’s principal
landlord-tenant eviction complaint. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This action began in the 36th District Court when plaintiff Wayne State University
(WSU) initiated eviction proceedings against defendant relating to his operation of Delilah’s
Café in plaintiff’s David Adamany Undergraduate Library. The eviction suit involved a dispute
regarding whether the lease agreement between plaintiff and defendant allowed defendant to
unilaterally exercise his option to renew the lease for a five-year term, or whether the exercise of
the option required defendant’s approval. Defendant was granted permission to file a
counterclaim, and the action was transferred to the circuit court. Defendant then filed a
1
The then-pending claims asserted in defendant’s counterclaim were for specific performance,
unjust enrichment, quantum meruit, fraudulent misrepresentation, and tortious interference with
an advantageous business relationship.
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counterclaim asserting: (a) breach of contract, (b) specific performance, (c) unjust enrichment,
(d) violation of the CRA, premised on national origin discrimination, (e) quantum meruit, and (f)
fraudulent misrepresentation.
Defendant moved for, and was granted, summary disposition on plaintiff’s eviction
claim. The trial court found that the language of the lease agreement allowed defendant to
unilaterally exercise the option to renew his lease for five years.2
The case then proceeded on defendant’s counterclaim. The trial court granted
defendant’s motion to amend his counterclaim to add a count of tortious interference with an
advantageous business relationship. Plaintiff then moved for partial summary disposition
pursuant to MCR 2.116(C)(10) on defendant’s CRA claim. The trial court granted that motion,
finding no genuine issue of material fact on the issue of whether plaintiff’s conduct amounted to
discrimination on the basis of race.3
Plaintiff then moved for summary disposition, pursuant to MCR 2.116(C)(7), (8) and
(10), on the remainder of the claims asserted in defendant’s amended counterclaim. The trial
court granted the motion in part from the bench, holding that (1) defendant’s claim for specific
performance was rendered moot by its grant of summary disposition to defendant in the eviction
case, (2) defendant’s unjust enrichment and quantum meruit claims were also rendered moot by
that ruling,4 and (3) defendant had failed to allege or prove a fraudulent misrepresentation on the
part of plaintiff. The trial court took defendant’s motion under advisement with respect to
defendant’s breach of contract and tortious interference with an advantageous business
relationship claims, and permitted supplemental briefing on the issues relating to those claims.
The trial court subsequently issued an order incorporating its oral holding and granting summary
disposition to plaintiff on all of defendant’s remaining claims.
The trial court also denied defendant’s claim for attorney fees. The trial court held that
plaintiff’s eviction claim was not frivolous because it was based upon a reasonable interpretation
of the lease agreement. The trial court noted that defendant had provided no authority in support
of his claim for attorney fees in relation to his counterclaim (on which he did not prevail).
This appeal followed. On appeal, defendant challenges the trial court’s grant of summary
disposition except as to his fraudulent misrepresentation claim.
2
Plaintiff has not appealed the trial court’s dismissal of its eviction claim.
3
Although the trial court made reference to “race” and “racial discrimination,” it is clear from
context that the trial court was addressing defendant’s claim for violation of the CRA based on
discrimination due to national origin.
4
The trial court also noted the existence of an express, rather than implied, contract, in finding
that these claims lacked a legal basis.
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II. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s ruling on a motion for summary disposition.
Issues of statutory interpretation are also subject to review de novo.” Random House, Inc v
Dep’t of Treasury, 298 Mich. App. 566, 571; 828 NW2d 454 (2012). Although the trial court did
not specify under which subrule it granted summary disposition on defendant’s claims of unjust
enrichment, quantum meruit and fraudulent misrepresentation, we review their dismissal under
MCR 2.116(C)(8) because the trial court found these claims deficient on their face.
A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal
sufficiency of the complaint on the basis of the pleadings alone. The purpose of
such a motion is to determine whether the plaintiff has stated a claim upon which
relief can be granted. The motion should be granted if no factual development
could possibly justify recovery. [Beaudrie v Henderson, 465 Mich. 124, 129-130;
631 NW2d 308 (2001).]
We review the trial court’s dismissal of the remaining claims under MCR 2.116(C)(10) because
the record reflects that the trial court considered evidence submitted in the form of depositions,
affidavits and other documentation.
“A motion brought under MCR 2.116(C)(10) tests the factual support for a claim.
The pleadings, affidavits, depositions, admissions, and any other documentary
evidence submitted by the parties must be considered by the court when ruling on
a motion brought under MCR 2.116(C)(10). When reviewing a decision on a
motion for summary disposition under MCR 2.116(C)(10), this Court ‘must
consider the documentary evidence presented to the trial court in the light most
favorable to the nonmoving party.’ ” “A trial court has properly granted a motion
for summary disposition under MCR 2.116(C)(10) ‘if the affidavits or other
documentary evidence show that there is no genuine issue in respect to any
material fact, and the moving party is entitled to judgment as a matter of law.’ ”
[American Home Assurance Co v Mich Catastrophic Claims Ass’n, 288 Mich
App 706, 716-717; 795 NW2d 172 (2010) (citations omitted).]
III. CRA VIOLATION
Initially, plaintiff contends this Court is without jurisdiction to consider the CRA
violation claim because of procedural deficiencies in the filing of defendant’s appeal.
Specifically, plaintiff argues that defendant failed to comply with MCR 7.204(B) and (C) by not
filing a copy of the trial court’s November 1, 2013 summary disposition order, or the hearing
transcript associated with that ruling, and that this failure precludes this Court’s consideration of
the trial court’s ruling on defendant’s CRA claim. Plaintiff filed a motion in this Court seeking
dismissal of this appeal for the same reasons, which this Court denied. Wayne State University v
Bannoura, unpublished order of the Court of Appeals, entered March 25, 2015 (Docket No.
322715). Because this Court has already addressed this procedural issue, reconsideration of the
issue is precluded by the law of the case doctrine. See Roberts v Saffell, 497 Mich. 921, 924; 857
NW2d 652 (2014), quoting Grievance Administrator v Lopatin, 462 Mich. 235, 260; 612 NW2d
120 (2000). We therefore decline to dismiss this aspect of plaintiff’s appeal on that ground.
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Defendant asserts that, as an independent contractor leasing space from plaintiff, he was
subject to discrimination by plaintiff based on his Middle Eastern origins, and that the trial court
erred in holding otherwise. We disagree. MCL 37.2102(1) provides:
The opportunity to obtain employment, housing and other real estate, and the full
and equal utilization of public accommodations, public service, and educational
facilities without discrimination because of religion, race, color, national origin,
age, sex, height, weight, familial status, or marital status as prohibited by this act,
is recognized and declared to be a civil right.
Additionally, MCL 37.2502(1) states, in relevant part:
(1) A person engaging in a real estate transaction, or a real estate broker or
salesman, shall not on the basis of religion, race, color, national origin, age, sex,
familial status, or marital status of a person or a person residing with that person:
(a) Refuse to engage in a real estate transaction with a person.
(b) Discriminate against a person in the terms, conditions, or privileges of a real
estate transaction or in the furnishing of facilities or services in connection with a
real estate transaction.
(c) Refuse to receive from a person or transmit to a person a bona fide offer to
engage in a real estate transaction.
(d) Refuse to negotiate for a real estate transaction with a person.
MCL 37.2501(b) defines “Real estate transaction” as “the sale, exchange, rental or lease of
property or an interest therein.”
A prima facie case of discrimination can be established by demonstrating either
intentional discrimination or disparate treatment. Reisman v Wayne State Regents, 188 Mich
App 526, 538; 470 NW2d 678 (1991). Intentional discrimination can be proven by either direct
or indirect evidence. Harrison v Olde Financial, 225 Mich. App. 601, 606; 572 NW2d 679
(1997). “Direct evidence” is defined “as evidence that, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor.” Id. at 610 (citations and quotation
marks omitted). Establishing a prima facie case requires “only that the plaintiff has provided
enough evidence to create a rebuttable presumption of discrimination.” Id. at 607-608. “If the
court concludes that the plaintiff has established a prima facie case of discrimination, the court
then examines whether the defendant has articulated a legitimate, nondiscriminatory reason for
its action. If that articulation is made, the court next considers whether the plaintiff has proved
by a preponderance of the evidence that the reason offered by the defendant was a mere pretext
for discrimination.” Id. at 608 (citations omitted).
In support of his claim, defendant offers examples of conduct that he contends serves as
both direct and indirect evidence of plaintiff’s discriminatory animus. First, defendant refers this
Court to alleged discriminatory comments by WSU Dean Sandra Yee characterizing the food
served at his establishment as “gas station food,” which defendant construes to be a derogatory
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ethnic comment because of the alleged stereotypical belief that gas stations are primarily owned
by persons of Middle Eastern heritage or origin. He further asserts that plaintiff altered its
policies to hamper or preclude his business, and that Yee made a comment to another employee
of plaintiff indicating that defendant’s business should be “contained.”
The record indicates that Yee’s first in-person contact with defendant was at her
deposition. Yee’s criticisms of Delilah’s Café involved the lack of healthy food options, its
encroachment of merchandise outside the confines of the Café and security concerns involving
the propping open of doors to the loading dock. Yee noted that the types of items offered by the
Café also presented problems or difficulties in keeping a clean and neat environment in the
library. It is undisputed that Yee authored an email to another employee of plaintiff, Habelah
Ghareeb, indicating her concerns pertaining to the Café, including: (a) “healthier food offerings
as well as something less ‘gas station like’ ”, (b) “food wear and tear on the building”, and (c)
less expensive choices for students. Myson Hawthorne, WSU Associate Director for Access
Services, did not specifically recall Yee’s use of the word “contained,” but testified at his
deposition that he understood Yee’s concerns as involving the nature or type of food being
provided and defendant’s business’s encroachment (by way of racks of snacks for sale) into areas
of the library outside the leased space.
Defendant further alleges plaintiff’s discriminatory treatment of another tenant (Ramzey
Eid). Eid testified at his deposition that he leased space for a full-service restaurant from
plaintiff, not within the confines of a library. His contention that plaintiff had discriminated
against him was based on an employee of plaintiff, Ian Studders, having asked him at some point
during their interactions whether he was “Persian.” Eid construed this inquiry to comprise
discriminatory animus, despite Studders having assisted Eid in securing a payment plan with
WSU when his lease payments fell into arrears.
Defendant also contends that an orthodox Jewish professor was offended by a t-shirt
worn by an employee of defendant referencing Palestine, and refused to hold classes after
demanding that the employee not wear the t-shirt. Defendant further contends that an
unidentified employee of plaintiff suggested that defendant would not be permitted to succeed at
the university.
Defendant has provided mere speculation in support of his CRA claim. The comments
by Yee are neutral on their face and only interpreted by defendant as derogatory and evidencing
animus. Yee’s criticisms of Delilah’s Café did not touch on race or ethnic origins, referring only
to the type of fare being offered and the problems it was creating in maintaining a proper library
environment. Further, even if Eid’s allegations were related to defendant’s claim, Eid’s
testimony indicates that an employee of plaintiff assisted Eid in implementing a payment plan to
address his lease arrearages despite an arguably inappropriate inquiry into Eid’s ethnicity.
Defendant offers no documentation or evidence of the comment attributed to the unidentified
employee. Moreover, a comment by an unidentified individual, which cannot be demonstrated
or substantiated, and the actions of an individual professor, do not support defendant’s claim of
national origin discrimination on the part of plaintiff. Thus, even taking defendant’s
documentary evidence in the light most favorable to him, American Home Assurance Co, 288
Mich. App. at 716-717, defendant has not established a prima facie case for discrimination under
the CRA. The trial court did not err in dismissing defendant’s CRA claim.
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IV. UNJUST ENRICHMENT AND QUANTUM MERUIT
Defendant also contends that an implied contract existed between plaintiff and defendant
concerning improvements made to the leasehold, and that plaintiff was unjustly enriched due to
the monies invested and improvements made to the leasehold space by defendant. The trial court
properly dismissed these claims, because they are precluded by the existence of an express
contract.
Both unjust enrichment and quantum meruit are equitable theories of recovery based on
the existence of an implied contract. See Barber v SMH (US), Inc, 202 Mich. App. 366, 375; 509
NW2d 791 (1993); Keywell & Rosenfeld v Bithell, 254 Mich. App. 300, 358-359; 657 NW2d 759
(2002) (citation omitted).
“[A] contract will be implied only if there is no express contract covering the same
subject matter.” Belle Isle Grill Corp v City of Detroit, 256 Mich. App. 463, 478; 666 NW2d 271
(2003). “Generally, an implied contract may not be found if there is an express contract between
the same parties on the same subject matter.” Morris Pumps, 273 Mich. App. at 194 (quotation
marks, citations, and emphasis omitted).
The initial dispute between plaintiff and defendant involved an express contract to lease
space in an undergraduate library. The lease contains an extensive and specific term related to
improvements and additions to the leasehold. Specifically, the lease provides that general
improvements, additions, or improvements to the leasehold require the prior written consent of
plaintiff, and, unless provided for in a separate agreement or written notice by plaintiff, become
the property of plaintiff upon the termination of the lease, while “trade-specific” improvements
remain the property of defendant. Based on the existence of this express agreement, defendant
cannot avail himself of equitable remedies. It is a well-recognized precept that a party cannot
seek an implied contract to remedy unjust enrichment when an express contract covering the
same subject matter exists between the same parties. Belle Isle Grill Corp, 256 Mich. App. at
478. Defendant’s assertion of claims related to an implied contract is thus without merit. Morris
Pumps, 273 Mich. App. at 194; Barber, 202 Mich. App. at 375.
V. SPECIFIC PERFORMANCE
Defendant argues that the trial court erred in dismissing as moot his specific performance
claim, which is puzzling given that plaintiff’s eviction action was unsuccessful and defendant has
retained his leasehold interest. We disagree with any suggestion that the trial court erred in this
regard.
The trial court correctly held that defendant’s request for specific performance is
rendered moot by the prior trial court order awarding him the right to unilaterally renew his lease
agreement. No meaningful relief can be provided because defendant has retained occupancy and
continues to function in the leasehold space, without interruption. See B P 7 v Bureau of State
Lottery, 231 Mich. App. 356, 359; 586 NW2d 117 (1998). There is no other reasonable
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requirement for performance remaining under the lease other than what has already been
awarded.5
VI. BREACH OF CONTRACT
Defendant further argues that the trial court erred in granting summary disposition to
plaintiff on defendant’s breach of contract counterclaim, because plaintiff breached the covenant
of quiet enjoyment in his lease agreement. Defendant did not, however, in either his initial
counterclaim or his amended counterclaim, make any allegations pertaining to a breach of the
covenant of quiet enjoyment. The trial court thus could have properly dismissed the claim in
accordance with MCR 2.116(C)(8) (failure to state a claim on which relief can be granted).
Additionally, this claim is unpreserved for appeal. Hines v Volkswagen of America, Inc, 265
Mich. App. 432, 443; 695 NW2d 84 (2005).
Regardless of preservation, defendant cannot demonstrate that a genuine issue of material
fact exists regarding an alleged breach of the covenant of quiet enjoyment. Leaseholders have a
right to beneficial enjoyment of the land “for the purpose for which the premises are rented, at
least to the extent disclosed to the lessor at the making of the lease.” Grinnell Bros v
Asiuliewicz, 241 Mich. 186, 188; 216 N.W. 388 (1927). A breach of the covenant of quiet
enjoyment occurs when a landlord “obstructs, interferes with, or takes away from the tenant in a
substantial degree the beneficial use of the leasehold.” Slatterly v Madiol, 257 Mich. App. 242,
258; 668 NW2d 154 (2003). Defendant cannot demonstrate that plaintiff has substantially
interfered with his leasehold interest. Defendant was never deprived of access to or the
occupancy of the leasehold. He continued to maintain his store and operate it throughout the
landlord-tenant dispute and beyond. Plaintiff’s requirement that defendant remove merchandise
racks from the area outside the entrance to the Café did not interfere with any right of quiet
enjoyment, as the placement of the merchandise racks was outside defendant’s leased area and
did not unreasonably intrude on defendant’s control or use of the area defined in his lease
agreement. Plaintiff’s alteration of signage in the library directing students to his establishment,
and other alleged acts of interference with the promotion of his business, did not interfere with
defendant’s possession or use of his leasehold. Defendant’s claim for breach of contract is thus
without merit.
VII. INTERFERENCE WITH AN ADVANTAGEOUS BUSINESS RELATIONSHIP.
Defendant asserts that the trial court also erred in dismissing his counterclaim for tortious
interference with an advantageous business relationship. We disagree. As discussed in Mino v
Clio Sch Dist, 255 Mich. App. 60, 78; 661 NW2d 586 (2003) (citations omitted):
The elements of tortious interference with a business relationship are the
existence of a valid business relationship or expectancy, knowledge of the
5
Defendant appears to argue in this portion of his appellate brief that plaintiff’s eviction action
was frivolous. Any such claim is not related to the mootness of defendant’s counterclaim for
specific performance.
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relationship or expectancy on the part of the defendant, an intentional interference
by the defendant inducing or causing a breach or termination of the relationship or
expectancy, and resultant damage to the plaintiff. To establish that a lawful act
was done with malice and without justification, the plaintiff must demonstrate,
with specificity, affirmative acts by the defendant that corroborate the improper
motive of the interference. Where the defendant’s actions were motivated by
legitimate business reasons, its actions would not constitute improper motive or
interference.
In other words, “ ‘One who alleges tortious interference with a contractual or business
relationship must allege the intentional doing of a per se wrongful act or the doing of a lawful act
with malice and unjustified in law for the purpose of invading the contractual rights or business
relationship of another.’ ” CMI Int’l, Inc v Intermet Int’l Corp, 251 Mich. App. 125, 131; 649
NW2d 808 (2002), quoting Feldman v Green, 138 Mich. App. 360, 378; 360 NW2d 881 (1984).
“A wrongful act per se is an act that is inherently wrongful or an act that can never be justified
under any circumstances.” Prysak v R L Polk Co, 193 Mich. App. 1, 12-13; 483 NW2d 629
(1992). “If the defendant’s conduct was not wrongful per se, the plaintiff must demonstrate
specific, affirmative acts that corroborate the unlawful purpose of the interference.” CMI Int’l,
251 Mich. App. at 131.
Defendant relies upon three examples of behavior by plaintiff to substantiate his claim.
The first is plaintiff’s restriction on his placement of merchandise racks in the library hallway
outside the entrance to his establishment. While defendant contends that the enforcement of this
restriction implies a malicious intent to interfere with his ability to display his product and secure
business, employees of plaintiff testified at their depositions that the racks intruded into an area
not covered by defendant’s lease agreement and were also deemed a possible safety hazard
because the racks obstructed access to a fire extinguisher. Defendant does not deny that his
placement of merchandise racks outside the leased premises comprised an encroachment into an
area that is not governed by his lease and, thus, plaintiff’s restrictions on this space were neither
contrary to the lease nor a malicious interference with defendant’s business; rather, they were
motivated by legitimate business reasons, namely control of space not leased to defendant and
safety concerns. “ ‘Where the defendant’s actions were motivated by legitimate business
reasons, its actions would not constitute improper motive or interference.’ ” Dalley v Dykema
Gossett, PLLC, 287 Mich. App. 296, 324; 788 NW2d 679 (2010) (citation omitted).
Defendant also complains that certain exterior signage was altered, negatively affecting
his business. However, in accordance with the parties’ lease agreement, plaintiff had exclusive
authority pertaining to signage. Further, plaintiff never obligated itself to provide promotional
signage to defendant, and asserted before the trial court that the decision was made to remove all
advertising signs from the exterior of the library, as part of an effort to maintain a clean library,
and that this decision applied to all businesses, not just defendant’s. Such an exercise of
authority by plaintiff is in conformity with the lease agreement and a legitimate business activity.
Id. Consequently, defendant has failed to demonstrate any wrongful act by plaintiff in the
determination and control of its signage.
Defendant also challenges the removal from brochures distributed to plaintiff’s incoming
freshmen of a reference identifying the location of Delilah’s Café in the library. Plaintiff
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asserted that the omission was due to its understanding that the lease for the property was
expiring and, therefore, that the restaurant would not be occupying the library location. In
addition, the omission did not constitute interference with defendant’s advantageous business
relationship, as plaintiff was under no obligation contractually to provide defendant with
advertising or promotional literature for his business. Although defendant ultimately prevailed
in retaining his leasehold, the action of plaintiff in preparing the brochure does not comprise a
wrongful act. Defendant has also failed to demonstrate that omission of the reference from the
brochure was done with malice or to purposefully interfere with his business, given the
reasonable explanation by staff that there was a belief that the business would not be remaining
in the current library location. Id.
In sum, plaintiff’s actions were motivated by legitimate business reasons, and the trial
court did not err in granting summary disposition to plaintiff on defendant’s tortious interference
counterclaim.
VIII. ATTORNEY FEES
Finally, defendant contends that he is entitled to damages in the form of attorney fees
incurred in defending the eviction litigation initiated by plaintiff and in conjunction with the
prosecution of his counterclaim. We disagree.
In Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc, 303 Mich. App. 441, 451;
844 NW2d 727 (2013), aff’d and remanded 497 Mich. 337 (2015), citing Brown v Home-Owners
Ins Co, 298 Mich. App. 678, 689-690; 828 NW2d 400 (2012), this Court stated:
A trial court’s decision to grant or deny a motion for attorney fees presents a
mixed question of fact and law. This Court reviews the trial court’s findings of
fact for clear error, and questions of law de novo. “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.”
However, this Court reviews for an abuse of discretion a trial court’s ultimate
decision whether to award attorney fees. “An abuse of discretion occurs when the
trial court's decision is outside the range of reasonable and principled outcomes.”
[Citations omitted.]
Additionally, this Court reviews “for clear error the circuit court’s decision to impose sanctions
on the ground that an action was frivolous within the meaning of MCR 2.625(A)(2) and
MCL 600.2591.” Ladd v Motor City Plastics Co, 303 Mich. App. 83, 103; 842 NW2d 388
(2013).
“Under the ‘American rule,’ attorney fees are not recoverable as an element of costs or
damages unless expressly allowed by statute, court rule, common-law exception, or contract.”
Reed v Reed, 265 Mich. App. 131, 164; 693 NW2d 825 (2005). Here, defendant argues that he is
entitled to attorney fees incurred based on the frivolous nature of plaintiff’s action.
MCR 2.625(A)(2) allows a trial court to order payment of a party’s attorney fees by a party who
has pressed a frivolous action or defense under MCL 600.2591. A “frivolous” action requires
demonstration of at least one of the following:
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(i) The party’s primary purpose in initiating the action or asserting the defense
was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying that
party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
[MCL 600.2591(3)(a).]
Defendant also argues that plaintiff’s eviction action was sanctionable under MCR 2.114,
because it was not well grounded in fact and was devoid of arguable legal merit.
MCR 2.114(D)(2). Defendant’s argument is that, under either the statute or court rule, plaintiff
could not have reasonably interpreted the renewal term of the lease agreement as allowing for his
eviction.
“The purpose for punishing with sanctions the introduction of frivolous claims 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.”
Harrison v Munson Healthcare, Inc, 304 Mich. App. 1, 41; 851 NW2d 549 (2014), overruled in
part on other grounds Krusac v Covenant Med Ctr, Inc, 497 Mich. 251; 865 NW2d 908 (2015)
(citations and quotation marks omitted.) The purpose of imposing sanctions is not to discipline
litigants and attorneys “whose cases are complex or face an ‘uphill fight.’ ” Louya v William
Beaumont Hosp, 190 Mich. App. 151, 163-164; 475 NW2d 434 (1991). “The ultimate outcome of
the case does not necessarily determine the issue of frivolousness.” Id. at 164.
In this instance, the eviction litigation initiated by plaintiff was focused on the following
lease provision with defendant:
2. Term
The term of this Lease shall be for a period of five (5) years beginning
July 1, 2006 and ending June 30, 2011. This Lease may be renewed in
writing signed by both parties for an additional term of five (5) years. If
Tenant exercises the Renewal Option, then the rent for each year of the
renewal term shall be as indicated in Paragraph 3 B.
The trial court in granting summary disposition in favor of defendant did not hold that plaintiff’s
action was frivolous or without arguable legal merit. Further, our review of the disputed lease
provision indicates that the issue was reasonably subject to divergent interpretations given both
the suggestion that a renewal required signature of both parties and the implication of a right of
the tenant to exercise a renewal option. MCR 2.114(D)(2) was therefore not violated, nor was
defendant entitled to attorney fees in accordance with MCL 600.2591. Defendant has not
demonstrated the existence of an applicable statute, court rule, common-law exception or
contractual provision permitting an award of attorney fees, and the trial court did not err in
declining to award them for defendant’s defense of plaintiff’s eviction action. Reed, 265 Mich
App at 164.
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Finally, defendant asserts that he is entitled to attorney fees and costs based on his
counterclaim. Defendant provides no basis in any statute, court rule or common-law exception
to justify an entitlement to attorney fees, particularly given the determination that the claims
asserted in his counterclaim were properly subject to summary dismissal. Id.
Affirmed.
/s/ Deborah A. Servitto
/s/ Kurtis T. Wilder
/s/ Mark T. Boonstra
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