Bill Text: MI SB0245 | 2019-2020 | 100th Legislature | Engrossed
Bill Title: Civil procedure: costs and fees; recovery of costs and fees in an action involving this state; remove certain restrictions. Amends secs. 2421b, 2421c, 2421d & 2421e of 1961 PA 236 (MCL 600.2421b et seq.). TIE BAR WITH: SB 0246'19
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2020-03-12 - Referred To Committee On Judiciary [SB0245 Detail]
Download: Michigan-2019-SB0245-Engrossed.html
Substitute For
SENATE BILL NO. 245
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 2421b, 2421c, 2421d, and 2421e (MCL 600.2421b, 600.2421c, 600.2421d, and 600.2421e), as added by 1984 PA 197.
the people of the state of michigan enact:
Sec. 2421b. (1) "Costs and fees" means the normal costs incurred in being a party in a civil action after an the action has been filed with the court , and those provided by law or court rule, and include all of the following:
(a) The reasonable and necessary expenses of expert witnesses as determined by the court.
(b) The reasonable cost of any study, analysis, engineering report, test, or project which that is determined by the court to have been necessary for the preparation of a the party's case.
(c) Reasonable A reasonable and necessary attorney fees fee, including those a fee for purposes of any appeal.
(2) "Party" means a named plaintiff or defendant involved in the particular civil action. , but does not include any of the following:
(a) An individual whose net worth was more than $500,000.00 at the time the civil action was commenced.
(b) The sole owner of an unincorporated business or any partnership, corporation, association, or organization whose net worth exceeded $3,000,000.00 at the time the civil action was commenced and which is not either exempt from taxation pursuant to section 501(c)(3) of the internal revenue code or a cooperative association as defined in section 15(a) of the agricultural marketing act, 12 U.S.C. 1141j(a).
(c) The sole owner of an unincorporated business or any partnership, corporation, association, or organization that had more than 250 full-time equivalent employees as determined by the total number of employees multiplied by their working hours divided by 40, at the time the civil action was commenced.
(d) As used in this subsection "net worth" means the amount remaining after the deduction of liabilities from assets as determined according to generally accepted accounting principles.
(3) "Prevailing party" means as follows:either of the following, as applicable:
(a) In an a civil action involving several remedies, or issues or counts which that state different causes of actions action or defenses, the party prevailing as to each remedy, issue, or count.
(b) In an action involving only 1 issue or count stating only 1 cause of action or defense, the party prevailing on the entire record.
(4) "State" means an agency or department of the this state, 1 or more members of an agency or department of the this state, or any official of the this state or of an agency or department of the this state acting in his or her official capacity. , but State does not include an institution of higher education established pursuant to under article 8 VIII of the state constitution of 1963; the department of labor as administrator of licensing and regulatory affairs or any of its agencies in administering the worker's disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, being sections 418.101 to 418.941 of the Michigan Compiled Laws, 1969 PA 317, MCL 418.101 to 418.941, the Michigan employment security act, Act No. 1 of the Public Acts of Extra Session of 1936, being sections 421.1 to 421.72 of the Michigan Compiled Laws, and Act No. 176 of the Public Acts of 1939, being sections 423.1 to 423.30 of the Michigan Compiled Laws; 1936 (Ex Sess) PA 1, MCL 421.1 to 421.75, or 1939 PA 176, MCL 423.1 to 423.30; or the department of corrections.
Sec. 2421c. (1) The On stipulation of the parties or motion under subsection (3), a court that conducts a civil action brought by or against the this state as a party, except for a civil infraction action, shall award to a prevailing party, other than the this state, the costs and fees incurred by that party in connection with the civil action, unless this state demonstrates that this state's position was substantially justifiable. However, subsection (2) applies in any of the following:
(a) An action involving illegal gambling and a licensee under the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1101 to 436.2303, to which the liquor control commission is a party.
(b) An action to which the department of health and human services is a party that relates to either of the following:
(i) The child abuse and neglect central registry.
(ii) Child support or the establishment of paternity under part D of subchapter IV of the social security act, 42 USC 651 to 669b.
(c) An action related to the summary suspension of a license that was required under section 92(2) of the administrative procedures act of 1969, 1969 PA 306, MCL 24.292.
(2) In an action described in subsection (1)(a) to (c), the court shall only award costs and fees under subsection (1) if the court finds that the position of the this state to in the civil action was frivolous. To find that the this state's position was frivolous, the court shall must determine that at least 1 of the following conditions has been met:
(a) The This state's primary purpose in initiating the action was to harass, embarrass, or injure the prevailing party.
(b) The This state had no reasonable basis to believe that the facts underlying its legal position were in fact true.
(c) The This state's legal position was devoid of arguable legal merit.
(3) (2) If the parties to an action do not agree on the awarding of costs and fees under sections 2421a to 2421f, a motion may be brought regarding the awarding of the prevailing party may move the court to award costs and fees. and the amount thereof. The moving party seeking an award of costs and fees under sections 2421a to 2421f shall must establish all of the following:
(a) That If subsection (2) applies, that the position of the this state was frivolous.
(b) That the party was the prevailing party.
(c) The amount of costs and fees sought including an itemized statement from any attorney , who represented the party and any agent , or expert witness who represented the party showing the rate at which the costs and fees were computed.
(d) That the party is eligible to receive an award of costs and fees under sections 2421a to 2421f. For good cause shown, a party may seek a protective order regarding the financial records of that the party.
(4) (3) The court may reduce the amount of the costs and fees to be awarded under this section, or deny an award, to the extent that the party seeking the award engaged in conduct which that unduly and unreasonably protracted the civil action.
(5) (4) Subject to subsection (5), (6), the amount of costs and fees awarded under this section shall must include those reasonable costs actually incurred by the party and any costs allowed by law or by court rule. Subject to subsection (5), (6), the amount of fees awarded under this section shall must be based upon on the prevailing market rate for the kind and quality of the services furnished. , except that an attorney fee shall not be awarded at a rate of more than $75.00 per hour unless the court determines that special circumstances existed justifying a higher rate or an applicable law or court rule provides for the payment of a higher rate.In awarding an attorney fee under this section, the court shall award a reasonable attorney fee as determined by the court following applicable supreme court precedent.
(6) (5) The court shall only award costs and fees awarded under this section shall only be awarded to the extent and amount that the this state caused the prevailing party to incur those costs and fees.
(7) (6) This section does not apply to an agency or department in establishing a rate; in approving, disapproving, or withdrawing approval of a form; nor or in its role of hearing or adjudicating a case. Unless an agency had discretion to proceed, this section does not apply to an agency or department acting ex rel on the information and at the instigation of a nonagency or nondepartmental person who has a private interest in the matter nor or to an agency or department required by law to commence a case an action upon the action or request of another nonagency or nondepartmental person.
(8) (7) This section does not apply to an agency or department that has such a minor role as a party in the case action in comparison to other nonprevailing parties so as to make its liability for costs and fees under this section unreasonable, unjust, or unfair.
Sec. 2421d. If the court awards costs and fees to a prevailing party upon judicial review of the final action of a presiding officer in a contested case pursuant to under section 125 of Act No. 306 of the Public Acts of 1969, being section 24.325 of the Michigan Compiled Laws, the administrative procedures act of 1969, 1969 PA 306, MCL 24.325, the court shall award those costs and fees provided for in section 123 of Act No. 306 of the Public Acts of 1969, being section 24.323 of the Michigan Compiled Laws, if the court finds that the position of the state involved in the contested case was frivolous.the administrative procedures act of 1969, 1969 PA 306, MCL 24.323.
Sec. 2421e. (1) The director of the department of technology, management, and budget shall report annually to the legislature regarding the amount of costs and fees paid by the this state during the preceding fiscal year pursuant to under sections 2421 to 2421d. The report shall describe the number, nature, and amount of the awards; the claims involved; and any other relevant information which that would aid the legislature in evaluating the scope and impact of the awards. Each agency or department of this state shall provide the director of the department of technology, management, and budget with information as is necessary for the director to comply with the requirements of this section.
(2) If costs and fees are awarded under sections 2421 to 2421d to a prevailing party, the agency or department over which the party prevailed shall pay those costs and fees.
(3) Sections 2421a to 2421d do not apply to a civil action which that is settled , or a civil action in which a consent agreement is entered into. , or to a civil action based in tort.
Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect unless Senate Bill No. 246 of the 100th Legislature is enacted into law.
