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Zoran v. Township of Cottrellville

Court of Appeals of Michigan

December 28, 2017

MICHAEL ZORAN, KYLE SUNDAY, and AUSTIN ADAMS, Plaintiffs-Appellants,
v.
TOWNSHIP OF COTTRELLVILLE, Defendant, and KELLY ANN LISCO, also known as KELLY ANN FISCELLI-LISCO and KELLY ANN FISCELLI, Defendant-Appellee.

         St. Clair Circuit Court LC No. 13-001841-CZ

          Before: Murray, P.J., and Fort Hood and Gleicher, JJ. Per Curiam.

          PER CURIAM

         Plaintiffs appeal as of right the final judgment entered by the trial court in this Open Meetings Act (OMA), MCL 15.261 et seq., action. Specifically, plaintiffs challenge the trial court's award of attorney fees. For the reasons stated herein, we vacate the trial court's order and remand for further proceedings.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiffs filed this OMA suit against defendants, the Township of Cottrellville[1] and Kelly Ann Lisco, [2] as a result of actions taken at the Township's May 8, 2013 board meeting. At the time of the meeting, Lisco was the township supervisor. Counts I to III of the complaint[3]asserted violations of MCL 15.263(5) against the Township, and Count IV alleged that Lisco intentionally violated the OMA in contravention of MCL 15.273.

         The trial court granted plaintiffs' motion for summary disposition with regard to Counts I to III, determining that the Township violated the OMA.[4] It then held a bench trial for the remaining OMA claim against Lisco, and concluded that Lisco intentionally violated the OMA in contravention of MCL 15.273(1).

         Following the trial court's decision, plaintiffs filed a motion pursuant to MCL 15.273(1), requesting that the court order Lisco to pay their attorney fees. Specifically, they requested reimbursement at an hourly rate of $250, the rate charged by counsel per their attorney-client agreement, and asserted that MCL 15.273(1) mandates that a public official who intentionally violates the OMA pay the actual attorney fees of those persons bringing the action. In response, Lisco argued that the hourly rate of $250 requested by plaintiffs was clearly excessive in violation of Michigan Rule of Professional Conduct (MRPC) 1.5(a).

         At the motion hearing, the parties made arguments consistent with those made in their briefs. But ultimately, the trial court agreed with Lisco, finding plaintiffs' requested hourly rate of $250 to be clearly excessive in violation of MRPC 1.5(a). In so doing, it examined the factors this Court used in Speicher v Columbia Twp Bd of Election Comm'rs, 299 Mich.App. 86, 94-95; 832 N.W.2d 392 (2012), to evaluate a request for attorney fees under MCL 15.271(4), a provision which, like MCL 15.273(1), requires the payment of actual attorney fees for noncompliance with the OMA, and awarded plaintiffs attorney fees at a reduced hourly rate of $200. The court's final judgment reflected these findings and conclusions, and ordered that Lisco pay plaintiffs' attorney fees in the amount of $12, 392.

         II. ANALYSIS

         Plaintiffs argue that the trial court erred by awarding attorney fees at a reduced hourly rate of $200. In so doing, they assert that: (1) MCL 15.273(1) requires the payment of actual attorney fees for intentional violations of the OMA, (2) a party opposing a request for attorney fees must raise MRPC 1.5(a) as an affirmative defense, and (3) they presented unrebutted evidence that the requested hourly fee of $250 was not clearly excessive.

"We review a trial court's determination of the reasonableness of requested attorney fees for an abuse of discretion." Speicher, 299 Mich.App. at 94.[5] " 'If the trial court's decision results in an outcome within the range of principled outcomes, it has not abused its discretion.' " Id., quoting Taylor v Currie, 277 Mich.App. 85, 99; 743 N.W.2d 571 (2007). A trial court's factual findings are reviewed for clear error. Speicher, 299 Mich.App. at 94. "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake was made." Id. (citation and quotation marks omitted).

         The trial court ordered Lisco to pay plaintiffs' attorney fees pursuant to MCL 15.273(1), which states: "A public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $500.00 total, plus court costs and actual attorney fees to a person or group of persons bringing the action." (Emphasis added.) Despite the requirement that "actual attorney fees" be awarded, the court awarded fees at a reduced hourly rate of $200, rather than the actual hourly rate of $250 requested by plaintiffs.

         Plaintiffs first argue that the trial court erred by awarding attorney fees at a reduced hourly rate of $200 because the plain terms of MCL 15.273(1) require the payment of actual attorney fees. In Speicher, 299 Mich.App. at 93, this Court held that MRPC 1.5(a) and "the public policy restraint on illegal or clearly excessive attorney fees is applicable to actions for actual attorney fees under the OMA." Thus, plaintiffs are incorrect that "actual" attorney fees must always be awarded because of the plain language of MCL 15.273(1), as ...


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