Berrien Circuit Court LC No. 14-000245-CK
Before: Murray, C.J., and Meter and Fort Hood, JJ.
consolidated appeals are from a final order awarding attorney
fees to plaintiff, Pioneer State Mutual Insurance Company, in
a case where the trial court found after a bench trial that
insurance fraud was committed by defendants, Stephen A.
Michalek and Barbara M. Michalek. Intervening plaintiff,
Justin B. Agresti, appeals the same order by right. We
November 2011, Agresti was injured while riding his bicycle
at defendants' (his grandparents) lakefront property in
Dowagiac. At the time of the injury, the property was insured
pursuant to a homeowner's policy issued by Pioneer.
Agresti sued defendants in a separate premises liability
action. Defendants signed a statement in the Agresti
litigation in which they stated that members of
defendants' family dug a hole on the property on July 4,
2011, to fix a faulty septic pump, and then failed to refill
the hole upon departing the property. Defendants asserted
that the hole remained unfilled in November 2011, when
Agresti rode his bicycle into the hole and injured himself.
Pioneer retained counsel for defendants in the Agresti
litigation, and counsel advanced a challenge to the duty (or
lack thereof) by asserting an open and obvious defense.
the trial court denied defendants' motion for summary
disposition in the Agresti litigation, Pioneer commenced this
action to void coverage under a fraud provision contained in
the homeowner's policy. Pioneer alleged that defendants
misrepresented that they dug a hole, and left the hole open
until November 2011. Following a bench trial, the trial court
issued an opinion on March 15, 2017, finding that defendants
made fraudulent representations to Pioneer that voided the
policy. Appellants moved for reconsideration of that opinion,
but before addressing that motion, the trial court entered a
judgment in favor of Pioneer on July 17, 2017. On August 15,
2017, the trial court denied their motion for reconsideration
of the March opinion.
September 5, 2017, defendants filed a claim of appeal in this
Court, appealing the August 15, 2017 trial court order
denying their motion for reconsideration of the opinion. This
Court dismissed the appeal for lack of jurisdiction because
the August 15, 2017 order was not a final order under MCR
7.202(6)(a). In doing so, this Court noted that the
July 17, 2017 judgment "appears to be a final
order." This Court dismissed Agresti's claim of
appeal for the same reason.
days after this Court dismissed the appeals for lack of
jurisdiction, appellants again moved for a new trial or
relief from judgment. Then, before the trial court addressed
and decided the motions, defendants filed in this Court an
application for delayed appeal of the trial court's July
17, 2017 judgment. On the same day, the trial court held a
motion hearing to address the second motions for a new trial
or relief from judgment, but it did not rule on the motions.
18, 2018, this Court denied defendants' application for
delayed appeal of the July 17, 2017 judgment "for lack
of merit on the grounds presented." Thereafter, the
trial court entered an order granting Pioneer's motion
for attorney fees and costs. The trial court held that, given
its previous finding that defendants committed fraud,
attorney fees were warranted under MCR 2.114(F). Defendants
and Agresti separately appealed the order by right, and this
Court consolidated the appeals.
CHALLENGES TO THE JULY 17, 2017 JUDGMENT
advance several issues in this appeal that are unrelated to
the award of attorney fees, and that they previously asserted
in their application for delayed appeal the July 17, 2017
judgment. This Court denied that application for lack of
merit in the grounds presented. Pioneer argues that
consideration of these issues is barred by the law of the
case doctrine. Pioneer is correct, but there is an additional
jurisdictional ground that precludes us from considering
these challenges to the July 17, 2017 judgment.
first address the jurisdictional issue. In their claim of
appeal forms, appellants identified the order that they are
appealing by right as the June 19, 2018 order regarding
attorney fees and costs, and in their docketing statements,
they noted that the order was a postjudgment order. Under MCR
7.202(6)(a)(iv), a postjudgment award of attorney
fees is a final order from which a claim of appeal can be
taken. However, MCR 7.203(A)(1) limits the appeal taken under
MCR 7.202(6)(a)(iv) "to the portion of the
order with respect to which there is an appeal of
right," meaning that these appeals only pertain to the
award of attorney fees. Consequently, any issue outside those
challenging the award of attorney fees goes beyond our
jurisdiction over these appeals.
even if we had jurisdiction, Pioneer is correct: the law of
the case doctrine would preclude our consideration of the
issues arising out of the July 17, 2017 judgment. "The
law of the case doctrine holds that a ruling by an appellate
court on a particular issue binds the appellate court and all
lower tribunals with respect to that issue." Ashker
v Ford Motor Co, 245 Mich.App. 9, 13; 627 N.W.2d 1
(2001). "Thus, a question of law decided by an appellate
court will not be decided differently on remand or in a
subsequent appeal in the same case." Id.
"The primary purpose of the doctrine is to maintain
consistency and avoid reconsideration of matters once decided
during the course of a single continuing lawsuit."
Id. The doctrine applies "only to issues
actually decided, either implicitly or explicitly, in the
prior appeal." Grievance Admin v Lopatin, 462
Mich. 235, 260; 612 N.W.2d 120 (2000).
exercising the discretion afforded it when reviewing an
application for leave to appeal, Great Lakes Realty Corp
v Peters, 336 Mich. 325, 328; 57 N.W.2d 901 (1953), the
Court has numerous options: it can grant the application and
hear the case on the merits, deny the application, enter
peremptory relief, or take any other action deemed
appropriate. See MCR 7.205(E)(2). If the assigned panel
determines that an application (late or otherwise) from a
final order warrants denial, the panel often-as was done
here-indicates that it is for "lack of merit on the
grounds presented." In contrast to interlocutory
applications for leave to appeal from nonfinal orders, where
the Court generally does not express an opinion on the
merits, applications for delayed appeal address whether to
allow an appeal (filed after the 21-day period has elapsed)
to be taken on a merits challenge to a final order. Hence,
when we deny an application from a noninterlocutory order for
lack of merit in the grounds presented, the order means what
it says-it is on the merits of the case. Consistent with
this conclusion, this Court has previously applied the law of
the case doctrine ...