Avery v. Demetropoulos

209 Mich. App. 500 (1994) 531 N.W.2d 720

AVERY
v.
DEMETROPOULOS

Docket No. 159578.

Michigan Court of Appeals.

Submitted November 15, 1994, at Detroit. Decided December 7, 1994. Approved for publication March 22, 1995, at 9:20 A.M.

Lyman B. Avery, in propria persona.

Romain, Donofrio, Kuck & Egerer, P.C. (by Pat M. Donofrio), for the defendant.

Before: HOOD, P.J., and JANSEN and A.T. DAVIS, JR.,^[*] JJ.

PER CURIAM.

This is plaintiff's second appeal in this case. In the prior appeal, this Court affirmed a final order of summary disposition based on the statute of limitations. Avery v Demetropoulos, unpublished opinion per curiam of the Court of Appeals, decided July 29, 1992 (Docket No. 129680). After the appeal, the trial court awarded costs and attorney fees of $5,588.04 to defendant because plaintiff filed a frivolous claim within the meaning of MCL 600.2591(3); MSA 27A.2591(3). Plaintiff appeals as of right from that decision. We affirm.

Preliminarily, we reject defendant's argument that this appeal should be dismissed. MCR 7.212(A)(4) and (I). We note that we could simply strike plaintiff's brief for failure to comply with MCR 7.212(C), especially the failure to include a statement of questions involved. MCR 7.212(C)(4). However, in the interests of judicial economy we have reviewed the matter, limiting our review to the specific questions gleaned from or presented by plaintiff's arguments.

The trial court had jurisdiction to consider defendant's motion for taxation of costs and attorney fees after the prior appeal was decided by this Court. Cf. Wilson v General Motors Corp, 183 Mich App 21, 41; 454 NW2d 405 (1990); Vallance v Brewbaker, 161 Mich App 642, 648; 411 NW2d 808 (1987). That this Court's prior opinion was silent regarding the question of remand did not deprive the trial court of jurisdiction to consider defendant's motion.

Next, MCR 2.504(B)(3) does not require that a trial court address the issue of costs in a final order disposing of the claims in a case. The purpose of MCR 2.504(B)(3) is to classify those dismissals entered by a court that are silent regarding their effect. See 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.504, Authors' Comment, p 59. This rule has been used to bar lawsuits involving the same matters and parties as those in prior lawsuits under principles of res judicata. Makowski v Towles, 195 Mich App 106; 489 NW2d 133 (1992). However, the court rule is not intended to dispose of the issue of costs related to a claim.

The flaw in plaintiff's argument is his failure to recognize that there can be more than one final judgment or order in an action. An order to allow attorney fees after entry of an order disposing of the meritorious question is one of the specific circumstances where separate final orders are recognized. Gherardini v Ford Motor Co, 394 Mich 430; 231 NW2d 643 (1975). Viewed in this context, MCR 2.504(B)(3) did not require that the trial court decide in the order of summary disposition whether costs should be awarded.

Further, plaintiff's reliance on MCR 2.625(F) to support his claim that defendant waived the issue of costs is misplaced. Because the issue of costs was decided under MCL 600.2591; MSA 27A.2591 and required a judicial determination, MCR 2.625(F) did not apply. The appropriate standard to apply to the statute is whether the motion for costs was filed within a reasonable time after the prevailing party was determined. See Giannetti Bros Construction Co, Inc v Pontiac, 152 Mich App 648; 394 NW2d 59 (1986) (discussing a similar issue with regard to mediation costs). Plaintiff has not shown any procedural defects that precluded the trial court from granting defendant's motion for taxation of costs and attorney fees.

Finally, the trial court did not clearly err in finding that plaintiff's claim was frivolous within the meaning of MCL 600.2591(3); MSA 27A.2591(3). DeWald v Isola, 180 Mich App 129; 446 NW2d 620 (1989). See also Louya v William Beaumont Hosp, 190 Mich App 151; 475 NW2d 434 (1991).

Affirmed.

NOTES

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