Case evaluation sanctions: More breathing room to file motion

You’ve prevailed on a motion for summary disposition and your opponent’s case is dismissed in its entirety.

Your opponent moves for reconsideration and the court denies the motion.

Pop quiz: Under MCR 2.403(O)(8), when does the 28-day period in which to seek case evaluation sanctions begin to run?

MCR 2.403(O)(8) provides:

A request for costs under this subrule must be filed and served within 28 days after the entry of the judgment or entry of an order denying a timely motion for a new trial or to set aside the judgment.

Well, now. The rule mentions motions for new trials and setting aside judgments. A motion for reconsideration isn’t either of those, so the 28-day period must begin to run when judgment on the summary disposition motion is entered.

A reasonable but wrong conclusion, according to the Michigan Court of Appeals.

The 28-day period begins to run when the motion for reconsideration is denied.

As the court in Peterson v Fertel, 283 Mich App 232, 235; 770 NW2d 47 (2009), indicated “a motion for reconsideration corresponds to a motion for a new trial or to set aside a judgment.

Although the three motions have different labels and are used at different procedural points in litigation, all three have the same purpose: to rescind a dispositive ruling or judgment issued by the trial court. See MCR 2.119(F) (motion for reconsideration); MCR 2.610(A) (motion to set aside); MCR 2.611 (motion for new trial).

All three motions must be filed within 21 days of the issuance of the ruling or judgment. MCR 2.119(F)(1); MCR 2.610(A)(1); MCR 2.611(B).

The 21-day limit on these motions will expire before the 28-day limit on motions for case evaluation sanctions, so a party seeking case evaluation sanctions may elect to hold the motion for sanctions until learning whether the opposing party has filed any dispositive motions. See Brown v Gainey Transp Servs, Inc, 256 Mich App 380, 384; 663 NW2d 519 (2003) (the logic of MCR 2.403(O)(8) is to enable a party to await pending dispositive motions after trial).

We hold that when a trial court has entered a summary disposition order that fully adjudicates the entire action, MCR 2.403(O)(8) requires a party to file and serve a motion for case evaluation sanctions within 28 days after entry of a ruling on a motion for reconsideration of the order.

The case is Meemic Ins. Co. v. DTE Energy Co., et al.

File this one under: Good Things to Know.


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