Theodore Cadwell v. City of Highland Park ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
THEODORE CADWELL, and GLENN UNPUBLISHED
QUAKER, February 19, 2019
Plaintiffs-Appellants,
v Nos. 341026; 341284
Wayne Circuit Court
CITY OF HIGHLAND PARK, LC No. 10-012583-NO
Defendant-Appellee.
Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.
PER CURIAM.
These consolidated appeals arise out of the same lawsuit involving claims under the
Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. In Docket No. 341026, plaintiffs
appeal by leave granted1 the trial court’s October 19, 2017 order setting the amount of judgment
and interest to be paid, denying plaintiffs’ motion for immediate payment of the judgment and
interest, ordering defendant to make payments on the judgment as tax revenues for payment of
the judgment are received, and denying plaintiffs’ motion to show cause why defendant should
not be held in contempt. In Docket No. 341284, plaintiffs appeal as of right the trial court’s
November 14, 2017 order denying plaintiffs’ second motion for attorney fees. This Court, on its
own motion, consolidated plaintiffs’ appeals in Docket Nos. 341026 and 341284.2 For the
reasons set forth in this opinion, we affirm in part, reverse in part, and remand this matter for
further proceedings consistent with this opinion.
I. BACKGROUND
1
Cadwell v Highland Park, unpublished order of the Court of Appeals, entered April 20, 2018
(Docket No. 341026).
2
Id.
These consolidated appeals present another installment in protracted appellate litigation
between these parties following a jury verdict in plaintiffs’ favor.3 Defendant previously
appealed the judgment that followed the jury trial; this Court reversed in part in an unpublished
opinion, determining that remittitur was appropriate because the jury’s award of $500,000 to
each plaintiff for emotional distress was not supported by the evidence. Cadwell v Highland
Park, unpublished per curiam opinion of the Court of Appeals, issued May 28, 2015 (Docket No.
318430), pp 1, 6-7 (Cadwell I). This Court affirmed in all other respects. Id. at 7.
On remand, the trial court entered a remittitur judgment against defendant on May 4,
2016, in the amount of $521,360, plus costs and attorney fees. The remittitur judgment further
ordered that the judgment, costs, and attorney fees would be subject to the applicable statutory
interest rate under MCL 600.6013(8).
Following entry of the remittitur judgment, plaintiffs attempted to collect on the
judgment and a dispute developed between the parties regarding the method for calculating the
statutory interest on the judgment.
On January 23, 2017, the trial court entered an order adopting the interest calculation
submitted by plaintiffs as the proper calculation. However, on March 20, 2017, this Court
entered an order peremptorily reversing the trial court’s January 23, 2017 order, explaining in
pertinent part as follows:
Pursuant to MCR 7.205(E)(2), the Wayne Circuit Court’s January 23,
2017 order is REVERSED because the circuit court failed to properly calculate
the interest owed on the judgment under MCL 600.6013(8) consistent with this
Court’s holding in Chelsea Investment Group, LLC v City of Chelsea, 288 Mich
App 239, 256-260; 792 NW2d 781 (2010). As Chelsea instructs,
MCL 600.6013(8) simply requires that interest on a
judgment be recalculated every six months from the date of the
filing of the complaint using the interest rates announced on July 1
or January 1, whichever is “immediately preceding” the
complaint’s six-month calculation date. For example, interest for a
complaint filed in August 2008 would be calculated in February
2009 using the January 1, 2009, rate, and would be calculated
again in August 2009, using the July 1, 2009, rate. . . .
Accordingly, we REMAND this case for a recalculation of the interest due
consistent with Chelsea.[ 4]
3
The underlying facts of plaintiffs’ claims on which this action is based are not at issue in the
instant appeal.
4
Cadwell v Highland Park, unpublished order of the Court of Appeals, entered March 20, 2017
(Docket No. 336969).
-2-
On March 22, 2017, plaintiffs moved in the trial court for additional attorney fees and
costs, asserting that the attorney fees included in the remittitur judgment related only to pretrial
and trial matters and that plaintiffs were further entitled under the WPA to reasonable attorney
fees for matters related to “post-appeals and collection of the Court’s Remittitur Judgment.”
On March 24, 2017, defendant moved the trial court to correct the calculation of interest
on the judgment in accordance with this Court’s March 20, 2017 remand order. Defendant
argued that its method of calculation was correct and should be adopted by the trial court.
Plaintiffs opposed the motion. Plaintiffs argued that defendant’s calculations were incorrect and
also requested that the balance of the amount due on the judgment be paid immediately.
On March 30, 2017, plaintiffs moved the trial court for an order compelling defendant to
pay the remittitur judgment in full immediately. In their motion, plaintiffs noted that the trial
court’s August 29, 2016 order granting a second writ of mandamus had required defendants to
pay the judgment balance by November 30, 2016. Plaintiffs argued that defendants had
continued to refuse to make timely payments on the judgment, despite the trial court’s orders.
Plaintiffs further argued that MCL 600.6093 required the judgment to be immediately paid in full
in the instant case because the statute instructs any city to pay a judgment against it “on or before
the date when the tax roll and warrant shall be returnable” and that date had already passed in
this case. Defendant opposed the motion, arguing that it had complied with the trial court’s
orders by placing the judgment amount on its tax rolls and distributing the amounts it had
collected to plaintiffs. Defendant maintained that it was following the statutory requirements of
MCL 600.6093.
The trial court held a hearing on April 7, 2017, to address the pending motions. First,
with respect to plaintiffs’ motion to compel immediate payment of the remittitur judgment, the
parties indicated that they had agreed to adjourn the motion to allow defendant to submit a partial
payment along with a payment plan for the remaining unpaid balance to plaintiffs by April 28,
2017. Additionally, the trial court granted plaintiffs’ motion for additional attorney fees and
costs under the WPA, awarding plaintiffs $29,760. Finally, with respect to the calculation-of-
interest issue, the trial court granted the motion in part but ordered defendant to make further
recalculations. These rulings were memorialized in orders entered on April 21, 2017. Defendant
appealed the trial court’s award of additional attorney fees.5
Meanwhile, as defendant pursued appellate relief on the issue of the additional attorney
fees, the parties continued to litigate in the trial court how to calculate the interest on the remitter
judgment. During this time, the trial court held multiple hearings and accepted multiple
submissions by the parties addressing their respective proposed interest calculations. Plaintiffs
also renewed their motion to compel immediate payment and argued that defendant should be
held in contempt for failing to pay the remittitur judgment in full in violation of the trial court’s
August 29, 2016 order granting a second writ of mandamus.
5
This appeal was separate from the instant appellate proceedings. As will be discussed later in
this opinion, this appeal resulted in a published decision from this Court. Cadwell v Highland
Park, 324 Mich. App. 642; ___ NW2d ___ (2018) (Cadwell II).
-3-
On October 19, 2017, the trial court entered an order setting judgment and interest,
dismissing the show cause motion, and denying plaintiffs’ motion for immediate payment of
judgment and interest. In the order, the trial court adopted defendant’s interest calculations.
Plaintiffs subsequently filed a separate motion seeking a second award of additional
postjudgment attorney fees and costs based on attorney fees and costs incurred to collect on the
remittitur judgment since April 4, 2017. Plaintiffs explained that the previous award of
additional postjudgment attorney fees only covered the period from May 28, 2015 through
March 5, 2017. Plaintiffs maintained that they were entitled under the WPA to recover these
postjudgment attorney fees.
At the November 10, 2017 hearing on this motion, the trial court denied plaintiffs’
motion with prejudice, reasoning as follows:
Okay. The bottom line is this matter is pending in the Court of Appeals.[6]
I’m not going to award any additional costs at this juncture. Additionally, the
Court feels that this is subsequent judgment activity. That it’s not relevant and
pertinent to this Whistleblower’s Act, other than what the Court has previously
awarded. So, I’m denying a request at this point in time.
The trial court entered an order on November 14, 2017, stating that plaintiffs’ second motion for
attorney fees was denied for the reasons stated on the record.
Plaintiffs appealed as of right the trial court’s November 14, 2017 order denying
plaintiffs’ second motion for additional attorney fees. Additionally, as previously noted, this
Court granted plaintiffs’ application for leave to appeal the trial court’s October 19, 2017 order
and consolidated these two appeals.
Subsequently, on June 19, 2018, this Court issued a published opinion addressing
defendant’s appeal of the trial court’s April 21, 2017 ruling awarding plaintiffs additional
attorney fees of $29,760. Cadwell v Highland Park, 324 Mich. App. 642, 645, 647-649; ___
NW2d ___ (2018) (Cadwell II). In this Court, defendant argued “that the WPA only permits the
trial court to award attorney fees in connection with work leading up to the moment that a
judgment is entered and that it does not allow a court to award any attorney fees for post
judgment legal proceedings.” Id. at 650. This Court held that pursuant to MCL 15.364,
postjudgment attorney fees were recoverable by a prevailing plaintiff in an action under the
WPA. Id. at 645. However, this Court nonetheless vacated the trial court’s order awarding
postjudgment attorney fees and remanded the matter for further consideration because the trial
court “failed to properly evaluate whether the requested attorney fees were reasonable and
appropriate.” Id. at 645, 656-658. This Court specifically noted that the trial court did not rely
on any evidence to determine that the hourly rate it applied was the appropriate market rate; that
the trial court improperly considered the irrelevant factor of defendant’s apparent inability to pay
6
This appears to be a reference to defendant’s appeal of the trial court’s April 21, 2017 award of
additional attorney fees.
-4-
more in attorney fees in light of its financial situation; and that the trial court failed to briefly
discuss each of the factors set forth in Pirgu v United Servs Auto Ass’n, 499 Mich. 269, 281; 884
NW2d 257 (2016), for determining the reasonableness of attorney fees. Cadwell II, 324 Mich
App at 655-658.
Further facts necessary to the resolution of the issues will be presented below.
II. CONSTRUCTION OF MCL 600.6093(1)
In this appeal, plaintiffs first argue that the trial court failed to comply with MCL
600.6093(1) by denying plaintiffs’ motion to compel defendant to immediately pay the judgment
in full.
This issue presents a question of statutory interpretation, which is reviewed de novo on
appeal. In re Bradley Estate, 494 Mich. 367, 377; 835 NW2d 545 (2013). “The primary goal of
statutory interpretation is to ascertain and give effect to the Legislature’s intent as expressed by
the language of the statute.” Braska v Challenge Mfg Co, 307 Mich. App. 340, 352; 861 NW2d
289 (2014) (quotation marks and citation omitted). “If the statutory language is clear and
unambiguous, judicial construction is neither required nor permitted; the statute must be
enforced as written.” Id.
Plaintiffs are correct that “[m]unicipal corporations have the same obligation as any
person or body corporate to satisfy judgments rendered against them.” Zelenka v Wayne Co
Corp Counsel, 143 Mich. App. 567, 573; 372 NW2d 356 (1985). Nonetheless, because defendant
is a city, plaintiffs do not have access to all of the methods for collecting on a judgment that
might otherwise be available if the judgment were not against a municipality. For example, a
party may ordinarily collect by seeking execution on the judgment, MCL 600.6001, but an
execution may not be obtained on a judgment against a township, village, or city, MCL
600.6021(1). Garnishment also is not available as a means for collecting a judgment against a
municipality. Roosevelt Park v Norton Twp, 330 Mich. 270, 272-274; 47 NW2d 605 (1951);
Payton v Highland Park, 211 Mich. App. 510, 513; 536 NW2d 285 (1995). Our Supreme Court
has explained as follows:
The courts are practically unanimous in holding that the
funds or credits of a municipality or other public body exercising
governmental functions, acquired by it in its governmental
capacity, may not be reached by its creditors by execution under a
judgment against the municipality, or by garnishment served upon
the debtor or depository of the municipality.
The basis for this rule is that municipal funds constitute a trust fund for the
accomplishment of certain municipal functions; that to subject municipal funds to
levy of execution and garnishment would restrict, thwart and interfere with the
proper and orderly functioning of the municipal governmental machinery; and
that to allow an individual municipal creditor to reach municipal funds for the
satisfaction of his claim would effect a preference in favor of such creditor to the
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prejudice of other creditors and to the ultimate prejudice of the credit of the
municipality.
A township is a municipal corporation and as such an instrumentality of
the State for purposes of local government. Township funds are in the nature of
trust funds and are placed for disposition in accordance with appropriations
previously made. Public policy forbids disturbance of these funds as to do so
would have a tendency to curtail governmental activities for which these funds
were appropriated. [Roosevelt Park, 330 Mich. at 273 (citations omitted).]
Instead, the “sole remedy” for collecting a judgment against a township, village, or city is
provided by MCL 600.6093. Payton, 211 Mich. App. at 511; see also Roosevelt Park, 330 Mich.
at 273 (stating that 1948 CL 624.5, a predecessor statute that was substantively similar to the
current version of MCL 600.6093(1), provided “the sole remedy for the collection of a judgment
against a township”); Morley Bros v Carrollton Twp Supervisor, 312 Mich. 607, 614; 20 NW2d
743 (1945) (discussing “the statutory mandate which requires the amount of the judgments to be
assessed on the next tax roll, the only means whereby judgments against the township can be
collected”).7
The procedures for collecting on a judgment against a city are set forth in MCL
600.6093(1) as follows:
Whenever judgment is recovered against any township, village, or city, or
against the trustees or common council, or officers thereof, in any action
prosecuted by or against them in their name of office, the clerk of the court shall,
on the application of the party in whose favor judgment is rendered, his attorney,
executor, administrator, or assigns, make and deliver to the party so applying a
certified transcript of the judgment, showing the amount and date thereof, with the
rate of interest thereon, and of the costs as taxed under the seal of the court, if in a
court having a seal. The party obtaining the certified transcript may file it with
the supervisor of the township, if the judgment is against the township, or with the
assessing officer or officers of the city or village, if the judgment is against a city
or village. The supervisor or assessing officer receiving the certified transcript or
transcripts of judgment shall proceed to assess the amount thereof with the costs
and interests from the date of rendition of judgment to the time when the warrant
for the collection thereof will expire upon the taxable property of the township,
city, or village upon the then next tax roll of such township, city, or village,
without any other or further certificate than the certified transcript as a part of
the township, city, or village tax, adding the total amount of the judgment to the
other township, city, or village taxes and assessing it in the same column with the
general township, city, or village tax.
7
Morley Bros also involved a predecessor statute that was substantively similar to the current
version of MCL 600.6093(1). See Morley Bros, 312 Mich. at 613; 1929 CL 14690.
-6-
The supervisor or assessing officer shall set forth in the warrant attached
to the tax roll each judgment separately, stating the amount thereof and to whom
payable, and it shall be collected and returned in the same manner as other taxes.
The supervisor or assessing officer, at the time when he delivers the tax roll to the
treasurer or collecting officer of any township, city, or village, shall deliver to the
township clerk or to the clerk or recording officer of the city or village, a
statement in writing under his hand, setting forth in detail and separately the
judgment stating the amount with costs and interest as herein provided, and to
whom payable. The treasurer or collecting officer of the township, city, or
village, shall collect and pay the judgment to the owner thereof or his attorney, on
or before the date when the tax roll and warrant shall be returnable. In case any
supervisor, treasurer, or other assessing or collecting officer neglects or refuses to
comply with any of the provisions of this section he shall be guilty of a
misdemeanor, and on conviction thereof, shall be punished by a fine of not more
than $1,000.00 and costs of prosecution, or imprisonment in the county jail for a
period not exceeding 3 months, or by both fine and imprisonment in the discretion
of the court. Nothing herein contained shall be construed to exclude other
remedies given by law for the enforcement of the judgment.
In sum, as applicable to the question regarding the procedures for obtaining payment on a
judgment against a city, MCL 600.6093(1) simply requires the city to assess the amount of the
judgment with costs and interests on its tax roll and to then “collect and pay the judgment to the
owner thereof or his attorney, on or before the date when the tax roll and warrant shall be
returnable.” Id.
According to plaintiffs, this statutory language mandates that a city must pay the
judgment in full by the date “when the tax roll and warrant shall be returnable.” As plaintiffs
make clear in their appellate brief, their proposed reading of the statute would require a city to
pay a judgment against it in full by this firm deadline even if some of the taxes assessed for
purposes of satisfying the judgment were not actually collected as a result of those taxes having
not been paid. This is clearly an erroneous reading of the statutory requirements that would
require a city to use other funds in its possession to meet this obligation.
Contrary to plaintiffs’ arguments, MCL 600.6093(1) does not provide a vehicle for
plaintiffs to reach the other financial assets of a city, such as defendant, in order to satisfy a
judgment; rather, the statute only authorizes the judgment to be collected through taxes assessed
for that purpose. The statute provides that after the amount of the judgment has been assessed on
the tax roll, the city’s treasurer or collecting officer must “collect and pay” the judgment “on or
before the date when the tax roll and warrant shall be returnable.” MCL 600.6093(1) (emphasis
added). Under the statute, a city is merely authorized and required to assess taxes in the amount
of the judgment (with costs and interest) specifically for the purpose of satisfying the judgment,
to collect those taxes, and to use those taxes for their intended purpose of paying the judgment.
There is no requirement in the statute that the city must pay to the owner of the judgment any
money which has not already been collected from the taxes that were assessed specifically for
the purpose of paying the judgment. In other words, a municipality’s duty to pay the judgment is
not separate from its duty to collect the taxes that were assessed for purposes of paying the
judgment. The statute also does not provide that any other municipal funds must be the source of
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funds used for satisfying the judgment, nor does the statute require a city to divert other
municipal assets toward satisfying the judgment. As previously noted, MCL 600.6093 provides
plaintiffs’ sole remedy for collecting on the judgment against defendant, Roosevelt Park, 330
Mich. at 273; Morley Bros, 312 Mich. at 614; Payton, 211 Mich. App. at 511. Under MCL
600.6093(1), the trial court did not err by denying plaintiffs’ motion to require defendant to
immediately pay the entire judgment in full without evidence that all of the tax monies assessed
for that purpose had been collected.
Nonetheless, plaintiffs further argue in the alternative that the trial court’s ruling denying
the motion to require immediate payment of the judgment constituted a failure to enforce the trial
court’s August 29, 2016 order granting a second writ of mandamus, which had required
defendant to pay the entire balance of the judgment by November 30, 2016. This is again, an
erroneous argument as their argument fails to recognize that a trial court may generally revisit
issues it has previously decided while the proceedings remain pending, Hill v City of Warren,
276 Mich. App. 299, 307; 740 NW2d 706 (2007). Moreover, it would have been erroneous to
have enforced the order of mandamus with respect to requiring an immediate payment. The
requirements for procuring a writ of mandamus are as follows:
To obtain the extraordinary remedy of a writ of mandamus, the plaintiff
must show that (1) the plaintiff has a clear, legal right to performance of the
specific duty sought, (2) the defendant has a clear legal duty to perform, (3) the
act is ministerial, and (4) no other adequate legal or equitable remedy exists that
might achieve the same result. In relation to a request for mandamus, a clear,
legal right is one clearly founded in, or granted by, law; a right which is inferable
as a matter of law from uncontroverted facts regardless of the difficulty of the
legal question to be decided. [Berry v Garrett, 316 Mich. App. 37, 41; 890 NW2d
882 (2016) (quotation marks and citations omitted).]
Hence, for the reasons discussed, defendant did not have a “clear legal duty” under MCL
600.6093(1) to pay the judgment in full by a certain date if the taxes assessed for purposes of
satisfying the judgment had not been remitted to defendant, nor did plaintiffs have a clear legal
right to such immediate payment. Id. Therefore, enforcement of the writ of mandamus would
not have been appropriate, and we reject plaintiffs’ argument regarding the effect of the second
writ of mandamus order.
III. POSTJUDGMENT ATTORNEY FEES UNDER THE WPA
Next, plaintiffs argue that the trial court erred by denying their second motion for
additional attorney fees because the WPA, in MCL 15.364, authorizes a court to award
reasonable attorney fees to a plaintiff and the trial court in this case incorrectly believed that
plaintiffs’ “subsequent judgment activity” on which the attorney fees were based did not relate to
their WPA claim.
“[T]he decision to award attorney fees under the WPA is reviewed on appeal for an abuse
of discretion.” O’Neill v Home IV Care, Inc, 249 Mich. App. 606, 612; 643 NW2d 600 (2002).
“An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable
and principled outcomes.” Pirgu, 499 Mich. at 274.
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“[A]ttorney fees generally are not recoverable from the losing party as costs in the
absence of an exception set forth in a statute or court rule expressly authorizing such an award.”
Id. at 274-275 (quotation marks and citation omitted). However, MCL 15.364 permits a court to
award a plaintiff in an action under the WPA “reasonable attorney fees” if the court concludes
“that the award is appropriate.” See also Cadwell II, 324 Mich. App. at 649. Furthermore, MCL
15.363(1) authorizes civil actions for “actual damages” based on alleged violations of the WPA,
and MCL 15.363(3) provides that such damages mean “damages for injury or loss caused by
each violation of this act, including reasonable attorney fees.” This Court held in Cadwell II that
postjudgment attorney fees were recoverable pursuant to MCL 15.364 by a prevailing plaintiff
under the WPA. Cadwell II, 324 Mich. App. at 645. The Court reasoned that a “plaintiff who
prevails on a WPA claim but then must engage in postjudgment legal proceedings in order to
collect on his or her judgment is still prosecuting an action brought pursuant to the WPA.” Id. at
652. However, this Court in that prior appeal nonetheless vacated the trial court’s order
awarding postjudgment attorney fees and remanded the matter for further consideration because
the trial court failed to apply the proper legal framework in determining whether the requested
attorney fees were reasonable and appropriate. Id. at 645, 656-658. Specifically, this Court
explained that considering the reasonableness of attorney fees requested by a plaintiff in a WPA
action requires a court to apply the following legal framework:
When determining the reasonableness of an attorney fee sought pursuant
to a fee-shifting statute,
a trial court must begin its analysis by determining the reasonable
hourly rate customarily charged in the locality for similar services.
The trial court must then multiply that rate by the reasonable
number of hours expended in the case to arrive at a baseline figure.
Thereafter, the trial court must consider all of the following “factors to determine
whether an up or down adjustment is appropriate”:
(1) the experience, reputation, and ability of the lawyer or
lawyers performing the services,
(2) the difficulty of the case, i.e., the novelty and difficulty
of the questions involved, and the skill requisite to perform the
legal service properly,
(3) the amount in question and the results obtained,
(4) the expenses incurred,
(5) the nature and length of the professional relationship
with the client,
(6) the likelihood, if apparent to the client, that acceptance
of the particular employment will preclude other employment by
the lawyer,
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(7) the time limitations imposed by the client or by the
circumstances, and
(8) whether the fee is fixed or contingent.
“In order to facilitate appellate review, the trial court should briefly discuss its
view of each of the factors above on the record and justify the relevance and use
of any additional factors.” [Cadwell II, 324 Mich. App. at 655-656, quoting Pirgu,
499 Mich. at 281-282.]
In the instant appeal involving plaintiffs’ second motion for additional attorney fees, the
trial court denied the motion solely because it believed that the fees were for “subsequent
judgment activity” that was “not relevant and pertinent to this Whistleblower’s Act.” The mere
fact that the fees were incurred for postjudgment activity does not make the attorney fees
unrelated to the WPA claim, nor does that fact standing alone prohibit plaintiffs from recovering
these attorney fees. Cadwell II, 324 Mich. App. at 645, 652. Accordingly, the trial court erred by
denying plaintiffs’ motion solely on the basis that the requested fees were incurred for
postjudgment activity. Id. Furthermore, in denying the motion, the trial court did not make
findings related to any of the factors for evaluating the reasonableness of the requested attorney
fees; without these findings, this Court cannot adequately review the trial court’s decision to
deny an award of additional attorney fees. Id. at 655-656. Therefore, we reverse the trial court’s
ruling on this issue and remand this matter for the trial court to evaluate under the proper legal
framework the reasonableness of the additional postjudgment attorney fees sought by plaintiffs.8
On remand, the trial court should properly apply the framework outlined in Cadwell II in making
this determination.
As defendant notes, this requires the trial court to consider, among other things, the
results achieved by plaintiffs. Accordingly, the parties and the trial court should be more
discerning in ascertaining which postjudgment activities warrant an award of attorney fees rather
than simply treating the matter as an “all or nothing” proposition. Our Supreme Court has
explained it has “long recognized that the results obtained are relevant to determining the
reasonable value of legal services” and that the “results obtained are indicative of the exercise of
skill and judgment on the part of the attorney.” Pirgu, 499 Mich. at 280. “[T]he WPA was
enacted to remove barriers to an employee who seeks to report violations of the law, thereby
protecting the integrity of the law and the public at large.” Cadwell II, 324 Mich. App. at 655
(quotation marks and citations omitted). The WPA’s fee-shifting provisions, like other statutory
fee-shifting provisions, thus should not be understood to “provide a form of economic relief to
improve the financial lot of attorneys or to produce windfalls.” See Smith v Khouri, 481 Mich.
519, 528; 751 NW2d 472 (2008) (opinion by TAYLOR, C.J.).
8
In light of this conclusion, plaintiffs’ additional arguments challenging the trial court’s denial
of the second motion for additional attorney fees, which are based on the law-of-the-case and res
judicata doctrines, are moot and we decline to address them. “An issue becomes moot when a
subsequent event renders it impossible for the appellate court to fashion a remedy.” Kieta v
Thomas M Cooley Law Sch, 290 Mich. App. 144, 147; 799 NW2d 579 (2010).
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IV. CALCULATION OF INTEREST ON THE JUDGMENT
Next, plaintiffs argue that defendant’s interest calculations, which were adopted by the
trial court, are incorrect because they are inconsistent with MCL 600.6013(8) and this Court’s
decision in Chelsea. Plaintiffs specifically argue that defendant’s calculations incorrectly use the
January 1, 2011 interest rate of 1.553% for calculating the interest on the first period that begins
on October 20, 2010; that the calculations should involve changing to a new interest rate for the
first time on January 1, 2011, rather than on April 20, 2011; and that defendant’s starting balance
for calculating the interest is incorrect because it does not include the trial court’s April 21, 2017
award of additional attorney fees in the amount of $29,760.
This issue presents a question of statutory interpretation that is reviewed de novo on
appeal. Ayar v Foodland Distrib, 472 Mich. 713, 715; 698 NW2d 875 (2005). “Clear and
unambiguous statutory language is given its plain meaning, and is enforced as written.” Id. at
716.
The calculation of interest on the judgment in this case is governed by MCL 600.6013(8),
which provides in pertinent part as follows:
[F]or complaints filed on or after January 1, 1987, interest on a money judgment
recovered in a civil action is calculated at 6-month intervals from the date of filing
the complaint at a rate of interest equal to 1% plus the average interest rate paid at
auctions of 5-year United States treasury notes during the 6 months immediately
preceding July 1 and January 1, as certified by the state treasurer, and
compounded annually, according to this section. Interest under this subsection is
calculated on the entire amount of the money judgment, including attorney fees
and other costs.
In Chelsea, 288 Mich. App. at 259, this Court explained that
MCL 600.6013(8) simply requires that interest on a judgment be recalculated
every six months from the date of the filing of the complaint using the interest
rates announced on July 1 or January 1, whichever is “immediately preceding” the
complaint’s six-month calculation date. For example, interest for a complaint
filed in August 2008 would be calculated in February 2009 using the January 1,
2009, rate, and would be calculated again in August 2009, using the July 1, 2009,
rate.
In this case, plaintiffs first argue that the interest rate calculations adopted by the trial
court were inherently flawed because (1) the wrong interest rate was applied to the first six-
month period beginning with October 20, 2010; and (2) the calculations did not change to a new
interest rate until April 20, 2011, instead of changing the interest rate on January 1, 2011.
It is clear from their arguments that plaintiffs misconstrue the Chelsea Court’s
explanation of how MCL 600.6013(8) operates. First, as this Court made clear in Chelsea, the
six-month periods are measured by reference to the date on which the complaint was filed.
Chelsea, 288 Mich. App. at 259. Next, the “calculation date” occurs after six months have
transpired. Id. (“[I]nterest for a complaint filed in August 2008 would be calculated in February
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2009.”) (emphasis added). Finally, the interest rate to apply to a given six-month period is the
one announced on the date immediately preceding the calculation date. Id. In other words, the
applicable interest rate is the one that was announced on the relevant date (either January 1 or
July 1 of a given year) that falls between the beginning and ending date of the applicable six-
month period and thus occurs during the period itself. Id. (“For example, interest for a complaint
filed in August 2008 would be calculated in February 2009 using the January 1, 2009, rate, and
would be calculated again in August 2009, using the July 1, 2009, rate.”).
Thus, in the instant case, the first period begins on October 20, 2010, which is the date
the complaint was filed. The first period ends six months later, in April 2011. The applicable
interest rate is the rate announced on January 1, 2011, which falls between the beginning date
and calculation date of the period. Defendant’s interest rate calculations, which the trial court
adopted, followed this methodology. Plaintiffs have therefore not demonstrated that the
calculations contained an error in the interest rate employed for the initial period or the date on
which the applicable interest rate was changed.
Plaintiffs, by maintaining that the July 1, 2010 interest rate should be used to calculate
the interest for the first period beginning on October 20, 2010, incorrectly argue that the rate
from the date preceding the beginning date of the period should be used. As discussed above,
this is incorrect. Id. Additionally, although new interest rates are announced on January 1 and
July 1, the rates to be applied to the calculation of interest rates do not necessarily change on
these dates. Rather, as previously discussed, the applicable interest rate changes for purposes of
calculating interest under MCL 600.6013(8) on the “calculation date,” which occurs in six-month
intervals based on the date of the complaint. In this case, that means that the applicable interest
rate changes in October and April of each applicable year. Contrary to plaintiffs’ understanding,
there is no partial first period in order to set the calculation dates to subsequently fall on January
1 and July 1 instead.
Next, plaintiffs argue that the total judgment amount on which the interest is calculated
should include the award of additional postjudgment attorney fees. On this issue, plaintiffs are
correct.
MCL 600.6013(8) provides that “interest on a money judgment recovered in a civil action
is calculated at 6-month intervals from the date of filing the complaint,” and that “[i]nterest under
this subsection is calculated on the entire amount of the money judgment, including attorney fees
and other costs.” In Ayar, 472 Mich. at 717-718, our Supreme Court held that “under MCL
600.6013(8), judgment interest is applied to attorney fees and costs ordered as mediation
sanctions under MCR 2.403(O) from the filing of the complaint against the liable defendant.”
Although the issue in Ayar specifically involved attorney fees and costs ordered as mediation
sanctions, the Ayar Court’s reasoning is directly applicable to the issue in the instant case
regarding whether plaintiffs are entitled to judgment interest on additional attorney fees awarded
for postjudgment activities. The Ayar Court explained that the “statute plainly states that interest
on a money judgment is calculated from the date of filing the complaint” and that “the statute
makes no exception for attorney fees and costs ordered as mediation sanctions under MCR
2.403(O).” Id. at 716-717. Similarly, in this case, there is no exception in MCL 600.6013(8) for
attorney fees and costs incurred as part of postjudgment proceedings. Therefore, to the extent
plaintiffs are entitled to an award of additional reasonable attorney fees and costs for
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postjudgment activities, these fees and costs should be included in the total amount of the money
judgment on which interest is calculated from the date the complaint was filed. The trial court
erred by ruling at one point that attorney fees awarded for postjudgment activities did not incur
interest from the date the complaint was filed.9
However, we note that the amount of additional postjudgment attorney fees to which
plaintiffs are entitled, if any, has not yet been finally determined. We merely conclude that once
this determination is made, all additional attorney fees awarded should be factored into the
interest calculation from the date of filing the complaint. Accordingly, we remand this matter for
recalculation of the interest on the remittitur judgment consistent with this opinion.
V. CONTEMPT
Next, plaintiffs argue that the trial court erred by declining to hold defendant in contempt.
Our Supreme Court has held that a party may not “seek[] by general appeal to review an order of
the trial court refusing to punish for contempt.” Mason v Siegel, 301 Mich. 482, 484-485; 3
NW2d 851 (1942). Therefore, in making this argument, plaintiffs have failed to raise a
cognizable issue for our review.
VI. APPELLATE ATTORNEY FEES
Finally, plaintiffs ask this Court to award them reasonable attorney fees incurred in the
instant appeal because an award of appellate attorney fees is authorized under the WPA.
In Cadwell II, this Court explicitly stated that “appellate attorney fees are recoverable
under MCL 15.364.” Cadwell II, 324 Mich. App. at 656 n 3. However, this conclusion does not
end the inquiry. MCL 15.364 merely permits “reasonable attorney fees.” (Emphasis added.) In
the context of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., this Court has
previously concluded that although the fee provision in that act permits awarding appellate
attorney fees, it was necessary to remand the matter for the trial court to determine in the first
instance the reasonableness of the requested appellate attorney fees. Grow v WA Thomas Co,
236 Mich. App. 696, 720; 601 NW2d 426 (1999). A trial court’s analysis on remand must
consider “all appropriate factors,” including the results obtained in the appeal. Id. In construing
the fee provision of the WPA, it is appropriate to look to caselaw interpreting other similar fee-
shifting statutes, such as MCL 37.2802 within the Elliott-Larsen Civil Rights Act. Cadwell II,
324 Mich. App. at 653.
In this case, we conclude that it is necessary to remand this matter for the trial court to
determine the reasonableness of plaintiffs’ requested appellate attorney fees in the first instance.
Grow, 236 Mich. App. at 720. On remand, the trial court should follow the framework outlined in
9
We also note that the interest calculations eventually adopted by the trial court in its October
19, 2017 order did not even include the awarded postjudgment attorney fees of $29,760.
Nevertheless, this amount may ultimately be different in light of the proceedings flowing from
this Court’s decision in Cadwell II.
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Cadwell II, 324 Mich. App. at 655-656. This analysis includes consideration of the results
achieved by plaintiffs on appeal. Id. at 656; Grow, 236 Mich. App. at 720. We take this
opportunity to point out the very limited success of plaintiffs’ results in this appeal. Plaintiffs
have obtained a remand for purposes of evaluating the reasonableness of attorney fees they have
sought, but we have expressed no opinion on the amount, if any, to which plaintiffs may be
entitled. Plaintiffs have also successfully argued that whatever the amount of additional attorney
fees that may eventually be awarded, interest will accrue on that amount from the date the
complaint was filed as part of the total judgment amount, pursuant to MCL 600.6013(8).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs are awarded. MCR 7.219(A).
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
/s/ James Robert Redford
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