Wojas v. Rosati

182 Mich. App. 477 (1990) 452 N.W.2d 864

WOJAS
v.
ROSATI

Docket No. 105830.

Michigan Court of Appeals.

Decided March 5, 1990.

Seymour F. Posner, for plaintiff.

Rosati Associates, P.C. (by A.D. Rosati), for defendant.

Before: MARILYN KELLY, P.J., and GRIBBS and R.B. BURNS,^[*] JJ.

MARILYN KELLY, P.J.

Defendant appeals as of right from the circuit court's order granting plaintiff attorney fees for a vexatious appeal. MCR 7.101(P)(1)(a). We affirm.

Initially, plaintiff sued defendant in district court seeking payment for carpentry work he did in defendant's home. Defendant revealed, by way of affirmative defense, that plaintiff was not licensed under the residential builder act. MCL 339.2401 et seq.; MSA 18.425(2401) et seq. Defendant was a general contractor. He was licensed under the act. Defendant sought summary disposition claiming plaintiff could not recover, because he had no license. MCL 339.2412; MSA 18.425(2412). The trial judge denied the motion. Following a bench trial, he awarded plaintiff $2,279.29.

The judge's ruling that plaintiff was not required to be licensed was based on three alternative theories. First, plaintiff worked only for wages and was exempted from the statute under MCL 339.2401(b); MSA 18.424(2401)(b). Secondly, plaintiff was working not as an independent contractor but as a time and material man for defendant. Therefore, plaintiff needed no license and defendant, as owner and general contractor, did not need one either. MCL 339.2403(b); MSA 18.425(2403)(b). Thirdly, in the event plaintiff was not properly denominated a time and material man for defendant, he was his subcontractor. There was no violation of the act under this theory, because defendant was licensed. MCL 339.2403(e); MSA 18.425(2403)(e).

The circuit court denied defendant's appeal and awarded plaintiff damages for a vexatious claim. MCR 7.101(P)(1)(a). The judge found that defendant's appeal was based on nothing but a highly technical defense, that plaintiff had done the carpentry work satisfactorily, and that he should have been paid. The court's conscience was shocked by defendant's actions.

Defendant then sought leave to appeal the circuit court decision to the Court of Appeals. Leave was denied. He moved for reconsideration. It was denied. Plaintiff made two motions for costs and attorney fees. We granted the first and denied the second. Defendant next sought leave from the Supreme Court. When that was denied, he moved for reconsideration which was also denied. The Supreme Court granted plaintiff attorney fees. Wojas v Rosati, 432 Mich. 902; 439 NW2d 912 (1989). Defendant now appeals the circuit court's award of attorney fees. He maintains his appeal to that court was not vexatious.

Traditionally, the decision to award attorney fees is within the trial court's discretion. See Minor v Michigan Education Ass'n, 127 Mich. App. 196, 201; 338 NW2d 913 (1983), Keen v Keen, 145 Mich. App. 824, 831; 378 NW2d 612 (1985), In re Attorney Fees of Mullkoff, 176 Mich. App. 82, 85; 438 NW2d 878 (1989), lv den 433 Mich. 868 (1989), and Hickey v Zezulka, 177 Mich. App. 606, 623; 443 NW2d 180 (1989). An abuse of discretion exists only when the result so violates fact and logic that it constitutes perversity of will, defiance of judgment or the exercise of passion or bias. Marrs v Bd of Medicine, 422 Mich. 688, 694; 375 NW2d 321 (1985).

Damages for a vexatious appeal may be awarded where (1) the appeal was taken for purposes of hindrance or undue delay, (2) there is no meritorious issue on appeal or (3) the record is grossly lacking in the requirements. MCR 7.101(P)(1).

In this case, damages are warranted, because there was no meritorious issue on appeal. The uncontroverted testimony indicates that plaintiff worked only for wages and sought only reimbursement for materials furnished. MCL 339.2401(e); MSA 18.425(2401)(e). He was not a residential maintenance and alteration contractor. Therefore, he required no license under the act. MCL 339.2412; MSA 18.425(2412). The court did not abuse its discretion in awarding damages.

Plaintiff's request for costs and attorney fees is granted. MCR 7.216, MCR 7.219(A). We remand to the 52-3 District Court for determination of reasonable attorney fees for services rendered in replying to this appeal.

Affirmed.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.