Opinion
Docket No. 117134.
Decided May 7, 1991, at 9:40 A.M. Leave to appeal sought.
McIntosh, McColl, Carson, McNamee, Strickler Houle (by John C. McColl), for the plaintiff.
Cummings, McClorey, Davis Acho, P.C. (by Timothy Young and Marcia L. Howe), for the defendants.
Before: DANHOF, C.J., and GRIFFIN and FITZGERALD, JJ.
Defendants, Lyle Cataline and Richard Jefferson, appeal as of right from the trial court's order denying mediation sanctions following a jury verdict of no cause of action. Defendants' motion for rehearing was denied. We reverse.
The underlying civil rights suit involved plaintiff's allegations that defendants, who were police officers, used excessive force in arresting him. A third defendant who was included in the original suit settled with plaintiff before a verdict was reached.
Mediation resulted in an evaluation of $1.25 million for plaintiff against all three defendants, jointly and severally. All parties rejected the mediation evaluation. Following a jury trial, a judgment of no cause of action was entered.
Defendants filed a motion for mediation sanctions, including costs and attorney fees. Plaintiff objected to an award of mediation sanctions, arguing that 42 U.S.C. § 1988 controlled the civil rights case and that attorney fees for a prevailing defendant can only be awarded upon a finding that the plaintiff's action was frivolous. The trial court agreed with plaintiff in denying defendants' request for mediation sanctions.
Where both parties reject a mediation evaluation and the matter proceeds to trial, a party is entitled to actual costs if the verdict is more favorable to that party than the mediation evaluation. MCR 2.403(O)(1); Zalut v Andersen Associates, Inc, 186 Mich. App. 229, 231; 463 N.W.2d 236 (1990).
A panel of this Court has addressed the issue presented to us in the context of a local court rule providing for mediation sanctions. Varney v Genesee Co Sheriff (On Remand), 156 Mich. App. 539, 544; 402 N.W.2d 57 (1986). Citing Marek v Chesny, 473 U.S. 1; 105 S Ct 3012; 87 L Ed 2d 1 (1985), this Court held that both 42 U.S.C. § 1988 and the local court rule providing for mediation sanctions should be utilized by the court in assessing costs. The ruling reversed a previous decision by the same panel which held that 42 U.S.C. § 1988 preempted state court rules on the basis of the policy behind 42 U.S.C. § 1988 of encouraging the private enforcement of civil rights and ensuring victims of discrimination access to the courts. Varney v O'Brien, 147 Mich. App. 397, 407-408; 383 N.W.2d 213 (1985) (G.R. DENEWETH, J., dissenting in part).
We hold that the state court rule providing for mediation sanctions, MCR 2.403(O)(1), should be utilized in conjunction with 42 U.S.C. § 1988 in assessing costs. Varney, supra. Thus, the trial court erred in holding that 42 U.S.C. § 1988 controlled any award of attorney fees or costs in this case.
Reversed and remanded to the trial court for assessment of actual costs. MCR 2.403(O)(1).