Opinion
No. 114409.
October 26, 1999.
On order of the Court, the application for leave to appeal the March 19, 1999 decision of the Court of Appeals is considered, and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the decision of the Court of Appeals and REMAND for reconsideration.
The trial court concluded that defendant committed fraud at the arbitration hearing. The trial court did not indicate whether defendant perpetrated the fraud on plaintiff or on the court. The allegation of fraud in this case is based on defendant's failure to present relevant evidence to the arbitrator. However, it is clear that plaintiff was aware of the evidence in question, and could have presented it to the arbitrator herself. Under these circumstances, defendant cannot have perpetrated a fraud on plaintiff, and any finding to the contrary is clearly erroneous. The Court of Appeals concluded that defendant's actions constituted a "fraud on the court." However, the Court of Appeals did not address whether suppression or nondisclosure of relevant information known to both parties is sufficient to constitute a fraud on the court. We therefore remand this case to the Court of Appeals for consideration of this question. If the Court of Appeals concludes that the facts here establish a fraud on the court, the Court of Appeals must also consider whether the trial court's award of monetary damages and attorney fees was appropriate where plaintiff failed to timely move to vacate the award, MCR 3.602(J)(2), and where plaintiff apparently acquiesced in the fraud at the time it occurred. We do not retain jurisdiction.
Reported below: 234 Mich. App. 535.