Opinion
Docket No. 197116.
Submitted January 29, 1998, at Lansing.
Decided May 26, 1998, at 9:30 A.M.
In lieu of granting leave to appeal, the Court of Appeals order imposing sanctions is reversed because the Supreme Court agrees with the dissent that the record does not justify imposition of actual and punitive damages. 459 Mich ___.
Cross Wrock, P.C. (by Phillip J. Holman and Russ E. Boltz), for the plaintiff.
Kathleen Solomon, for the defendant.
Before: MARKEY, P.J., and BANDSTRA and HOEKSTRA, JJ.
While retaining jurisdiction over a pending delayed application for leave to appeal, the Supreme Court has remanded this case to us with instructions to provide "an explanation of the reasons for concluding that defendant's failure to pursue her appeal in conformity with the court rules was vexatious." Coburn v Coburn, 456 Mich. 918 (1998). Our task is thus to explain in detail the egregious behavior of defendant and her counsel that required our previous order.
The parties were divorced pursuant to a consent judgment on October 23, 1991. That decree provided in pertinent part that the parties would begin with joint physical and legal custody of their only minor child. Subsequently, both parties petitioned for sole physical custody. Plaintiff had remarried and moved to another state. The parties submitted their custody dispute to binding arbitration. Dick v Dick, 210 Mich. App. 576, 588; 534 N.W.2d 185 (1995). The arbitrator awarded sole physical custody to plaintiff. After the circuit court confirmed that award by order of August 16, 1996, the matter came to this Court as an appeal of right.
After defendant filed her first brief as appellant, plaintiff filed a motion to strike for failure to conform to the requirements of the court rules. A motion to strike a brief as nonconforming is one of the types of motions that can be adjudicated by the chief judge or another designated judge, acting alone. MCR 7.211(E)(2)(c). The chief judge pro tempore granted the motion to strike, MCR 7.201(A)(2), in an order that specified the following deficiencies:
The brief as submitted does not comply with MCR 7.212(C)(4), (6) and (7). Appellant shall within 21 days of this order submit an appellant's brief that complies with all those rules.
The referenced subrules require a statement of the basis of the jurisdiction of the Court of Appeals, MCR 7.212(C)(4), a statement of facts that, inter alia, provides "specific page references to the record," MCR 7.212(C)(6), and, correlatively, that when facts are stated in the argument portion of the brief, such assertions likewise "be supported by specific page references to the record," MCR 7.212(C)(7). Defendant's original brief on appeal contained no jurisdictional statement whatsoever, and absolutely no page references to the record either in the statement of facts section of the brief or in the argument portion of the brief as facts were iterated.
Defendant's substitute brief was then timely filed and again met with a motion to strike. Again, the motion to strike pursuant to MCR 7.211(E)(2)(c) was granted, this time by the chief judge with the following directive:
Appellant shall within 21 days of this order file an appellant's brief that is limited to documents filed and hearings held in the trial court prior to the claim of appeal being filed on August 16, 1996. Any documents filed, hearings held, or factual allegations made after August 16, 1996 are not properly before the Court in this appeal.
Examination of this second attempt to submit the appellant's brief reflects, among other patent defects, that defendant had appended to the proposed brief, as exhibits, affidavits that were not part of the lower court record, and orders and transcripts that related to matters that occurred in the trial court after the order from which appeal of right had been claimed. Because this was already defendant's second opportunity to comply with the court rules, it is worth listing the improprieties facially evident within the defect specifications noted in the chief judge's order:
1. Neither affidavits nor depositions may be presented in this fashion as a means of enlarging the appellate record. Isagholian v Transamerica Ins Corp, 208 Mich. App. 9, 18; 527 N.W.2d 13 (1994).
2. Even by stipulation, in the absence of a motion to enlarge the record and the granting of such motion by this Court, MCR 7.216(A)(4), the parties cannot add to the record on appeal anything not considered by the court below in rendering the decision that is the subject of appeal. Lorland Civic Ass'n v DiMatteo, 10 Mich. App. 129, 137-138; 157 N.W.2d 1 (1968).
3. Exhibits offered on appeal that were either not offered to the court below or that were excluded by the lower court from the settled record on appeal are not properly part of the record on appeal. Dora v Lesinski, 351 Mich. 579, 581; 88 N.W.2d 592 (1958); Singer v Hoffman Cake Co, 281 Mich. 371, 375; 275 N.W. 177 (1937).
4. Facts not appearing from the record cannot be considered on appeal. Associates Discount Corp v Gear, 334 Mich. 360, 367-368; 54 N.W.2d 687 (1952). This is a limitation on the power of the appellate court, which is confined to the record in conducting its review. Sims v Sims, 298 Mich. 491, 496; 299 N.W. 158 (1941). The record to be considered on appeal must be made in the trial court. Stephenson v Golden, 279 Mich. 710, 732-733; 276 N.W. 849 (1937).
5. Nothing arising after the order from which appeal has been taken can be considered on appeal. Sandusky Grain Co v Borden's Condensed Milk Co, 214 Mich. 306, 323-324; 183 N.W. 218 (1921); Monyhan v Detroit Saline Plank Road Co, 129 Mich. 549, 552; 89 N.W. 372 (1902). This is true even of official proceedings subsequently occurring. See Klotz v Chatfield, 163 Mich. 86, 87-88; 127 N.W. 774 (1910).
Again, on proper motion pursuant to MCR 7.216(A)(4), subsequent events, particularly those rendering an appeal moot or otherwise directly affecting the viability of the appeal, may and assuredly should be promptly brought to the attention of the appellate court.
Defendant's third effort to file her appellant's brief generated yet another motion to strike, as well as a motion to dismiss and a motion to affirm. Those motions were submitted to this three-judge panel, MCR 7.211(E)(1), which granted the motion to dismiss, MCR 7.211(C)(2)(b), MCR 7.216(A)(10), and denied the other motions as moot.
Again, the numerous defects in this third brief merit iteration:
1. Although there were some references to the record in the statement of facts, numerous crucial factual assertions therein, and within the argument portion of the brief, had no affiliated record references. The rule in this state is that assertions of fact in a brief that are not supported by references to the record represent an improper attempt to enlarge the record. In re Marx's Estate, 201 Mich. 504, 507; 167 N.W. 976 (1918). Because this was defendant's third effort, and because the first brief was stricken for precisely the same defect, among others, this Court had reasonable grounds for concluding that such repeated flouting of the court rules and of a fair presentation was intentional and deliberate, rather than accidental or negligent.
2. Various factual assertions concerned matters previously stricken as outside the record. These included statements of fact that had, in the stricken second appellant's brief, been supported by the affidavit of defendant's former attorney and were stricken because they were never part of the record below or were derived from psychological reports also stricken from the second brief as being matters not of record. Ironically, although the nonrecord material was no longer attached to the brief as exhibits, it was now incorporated into the body of the brief and constituted a significant part of it. Again, this Court reasonably inferred that defendant's pleadings were designed to circumvent the requirements of the court rules and the prior rulings of the chief judge and chief judge pro tempore, and that this effort was in no way a good-faith mistake.
At most, very limited portions of these documents had been submitted to the trial court, but defendant in her second brief attached the whole of such documents, and in her third brief made factual assertions excerpted from the nonrecord portions of these materials. It may usefully be noted here that the motion for rehearing of the order dismissing the appeal argued at length that these materials were not privileged, as asserted in the plaintiff's objections. Breach of confidentiality, however, was in no way referenced as a basis, in whole or in part, for granting the motion to dismiss.
3. Such record references as were provided did not support the assertions of fact to which they pertained. Rather, the references often were to defense counsel's arguments before the trial court for which no supporting evidence was ever adduced or properly proffered, MRE 103(a)(2). Other references may have related generally to the point at issue but did not verify the essential details that were the basis of the argument for reversal. Once again, this Court could derive no other impression from this method than that defendant was attempting to manufacture the requisite factual support for appellate relief in the absence of the necessary record. See Lemanski v Ford Motor Co, 82 Mich. App. 244, 250-252; 266 N.W.2d 775 (1978).
After the appeal was dismissed and a motion for rehearing was denied, plaintiff moved for actual and punitive damages pursuant to MCR 7.216(C). That motion was also granted by this panel, Judge HOEKSTRA dissenting. The order provided:
Plaintiff-Appellee's motion for actual and punitive damages is GRANTED. MCR 7.216(C)(1)(a), (b).
This matter is hereby remanded to the trial court for a determination of damages as set forth in MCR 7.216(C)(2). These damages are to be assessed jointly and severally against both defendant-appellant and her counsel.
Defense counsel has incorrectly complained that this Court awarded sanctions of more than $126,000. Obviously, this Court left the determination of damages, both actual and punitive, to the trial court, as authorized by MCR 7.216(C)(2). We note that, in conjunction with the motion, counsel for plaintiff-appellee did submit an undifferentiated claim for attorney fees of more than $63,000, which, if proper, could indeed be doubled. Without prejudging the issue for the trial court, we note that plaintiff's counsel carries the burden of proving damages, and that any award is limited to reasonable attorney fees and costs, which must be a product of the identified improprieties to be recoverable under the rule.
We acknowledge that our previous order may be subject to understandable misinterpretation. The motion for damages relied only on improprieties in the three appellant's briefs filed by counsel Solomon and identified nothing in the motion for rehearing, which cocounsel Bassett filed, as a basis for seeking sanctions. Hence, our order was not drafted as clearly as it should have been. Because cocounsel's actions were not at issue, the order should have specified that the award of sanctions did not extend to him. Instead, the order merely implied that result; the trial court could only determine damages under MCR 7.216(C)(2) to the extent that expenses were incurred by plaintiff because of defendant's improprieties, none of which were the fault of cocounsel Bassett. Accordingly, the joint and several provision of the order only referenced counsel, not cocounsel. In any event, we trust that, whatever else it does with the application now pending before it, the Supreme Court will see the justice of modifying the order as necessary to conform it to this intent.
In awarding damages pursuant to MCR 7.216(C)(1)(a), this Court found that the appeal was taken for the purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to be determined on appeal. Given that appellant's presentation consistently relied on matters not of record as a basis for appellate relief, not once, or twice, but three times, we concluded that where the only basis asserted for appellate relief is outside the record, an appellant cannot entertain a reasonable belief that any issue depending on such non-record matters is even arguably meritorious. Cvengros v Farm Bureau Ins, 216 Mich. App. 261, 269; 548 N.W.2d 698 (1996). On further review, we adhere to this conclusion. As noted earlier, Michigan jurisprudence bars argument predicated on matters outside the record and deems such tactics "inappropriate." Wiand v Wiand, 178 Mich. App. 137, 142-143; 443 N.W.2d 464 (1989). Moreover, appellant's counsel was repeatedly warned of this requirement yet persisted in disregarding it. No authority to support an exception to these rules attributable to any unique aspect of this individual case was ever cited by appellant's counsel.
MCR 7.216(C)(1)(b) allows an award of sanctions when a brief is grossly lacking in the requirements of propriety, violates court rules, or grossly disregards the requirements of a fair presentation of the issues to the court. The adverb "grossly" modifies only the first and third types of impropriety; hence, sanctions for violation of the court rules may be granted even where the violation is less than "gross." See, generally, Kales v City of Oak Park, 315 Mich. 266, 271-272; 23 N.W.2d 658 (1946) Nonetheless, it has never been the practice of this Court to invoke MCR 7.216(C) for any but the most egregious and repeated court rule violations. We do not view our decision in this case as changing that practice. On the basis of the particular facts of this case and the unequivocal history of improper briefing by defendant-appellant's counsel, we harbor no doubt that her violation of the court rules may properly be described as "gross." The repetitive nature of that conduct, combined with the apparent deliberate attempts at circumvention of the rules and the orders of this Court enforcing those rules and calling such defects to counsel's attention, fully justifies an award of both actual and punitive damages. Defense counsel was apparently determined that we either rely on or be influenced by improper, extraneous, nonrecord information.
The award of damages will compensate plaintiff, in whole or in part, for his costs in defending the appeal and troubling himself, through counsel, to bring these court rule violations to our attention. The award also serves an institutional function: the deterrence of like tactics by others. Although written in a different context entirely, the following sentiments are particularly apposite here:
Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts. Our frequent strictures against this kind of argument mean little unless we are prepared to reverse and require a new trial. A prosecutor who crosses a clearly defined line, and a trial judge who makes no effort to stop him, have only themselves, not the appellate courts, to blame if a judgment of conviction is reversed and the case must be retried because of improper argument. [ People v Farrar, 36 Mich. App. 294, 299-300; 193 N.W.2d 363 (1971).]
We would paraphrase the final two sentences to state that our frequent strictures against ignoring the requirements of the court rules mean little unless we are prepared to dismiss an appeal and impose sanctions on attorneys who choose to give our warnings no heed. Because the client properly may be burdened with the consequences of counsel's improprieties short of abandoning the representation, White v Sadler, 350 Mich. 511, 522-523; 87 N.W.2d 192 (1957), adversely affected parties and their attorneys have no one to blame but themselves if an appeal is dismissed on this basis.
As reported in the Michigan Bar Journal, the newsletter of the Appellate Practice Section, and various legal publications, the Chief Clerk of this Court, pursuant to a policy approved by all the judges of this Court, MCR 7.201(G), advised the bar generally that this Court would begin enforcing the court rules more strictly, well before the three briefs proffered on behalf of the defendant in this case were stricken.
Nonetheless, decisions to sanction are not made easily, lightly, or often, and we do not wish to travel this path again soon. Our order requires defendant-appellant's counsel to pay plaintiff-appellee actual and punitive damages. We might well be justified in both referring the matter to the Attorney Grievance Administrator for investigation and assessing defense counsel for the needless costs and expenses this Court has incurred in dealing with this misconduct. In re Thurston, 226 Mich. App. 205, 207-208; 574 N.W.2d 374 (1997). Just as those whose wrongdoing puts the federal government to expense must reimburse the government for all consequential costs, e.g., 14 U.S.C. § 88(c)(3); see United States v James, 986 F.2d 441, 442, 444 (CA 11, 1993), appellate litigants and attorneys who drain tax-funded judicial resources by flouting the requirements of the court rules should realize that they too may be properly called upon to make full recompense.
We therefore conclude that our original order granting the motion for sanctions was generally correct, and we would simply modify it as set forth in this opinion.
BANDSTRA, J., concurred.
I respectfully dissent. MCR 7.216(C)(1), the court rule authorizing damages in this case, states that this Court "may .. . assess actual or punitive damages or take other disciplinary action when it determines that an appeal or any of the proceedings in an appeal was vexatious." The term "may" designates a permissive provision. Jordan v Jarvis, 200 Mich. App. 445, 451; 505 N.W.2d 279 (1993). Thus, this Court may assess damages but is not required to do so. Sanctions are authorized in a court's "discretion, on final review, as the totality of facts and circumstances may require." In re Mathers, 371 Mich. 516, 538; 124 N.W.2d 878 (1963) (discussing a prior version of the court rule).
In my opinion, the totality of the facts and circumstances of this case does not require this Court to impose sanctions. Defendant has already suffered harm by losing the opportunity to have her case reviewed. See, e.g., In re Dihle Estate, 161 Mich. App. 150, 160-161; 410 N.W.2d 303 (1987). Moreover, I perceive no benefit in prolonging this acrimonious litigation by remanding the matter to the trial court for a determination of damages. See, e.g., Mathers, supra at 538-539 (declining to assess damages in the child custody case).