SB-0100, As Passed House, December 13, 2018
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 100
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 2421b, 2421c, 2421d, 2421e, and 3212 (MCL
600.2421b, 600.2421c, 600.2421d, 600.2421e, and 600.3212), sections
2421b, 2421c, 2421d, and 2421e as added by 1984 PA 197 and section
3212 as amended by 2011 PA 301, and by adding section 2979.
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 (4), 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
Senate Bill No. 100 as amended December 13, 2018
connection with the civil action, unless this state demonstrates by
clear and convincing evidence that this state's position was
substantially justifiable. However, subsection (2) applies to
actions described in subsection (2) and subsection (3) 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 involving a tax administered by the
department of treasury under 1941 PA 122, MCL 205.1 to 205.31, the
court shall not award costs and fees under subsection (1) if this
state demonstrates that the department of treasury's position was
substantially justified. A demonstration by clear and convincing
evidence is not required under this subsection.
(3) 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.
(4) (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 (3) 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.
(5) (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.
(6) (4) Subject to subsection (5), (7), 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), (7),
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.
(7) (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.
(8) (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.
(9) (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.
Sec. 2979. (1) In a trespass, unjust enrichment, or any other
action arising from or relating to an easement held by a Michigan
electric cooperative and brought against the holding Michigan
electric cooperative, there is a rebuttable presumption that there
is no unreasonable or material increase in the burden on the
property subjected to the easement if the Michigan electric
cooperative can show 1 of the following:
(a) That the new or additional facility was installed above
the electric space, as defined by the Michigan electric
cooperative.
(b) That the new facility replaced a previously existing
facility in the same or substantially similar location on the pole
or poles.
(c) That the new or additional facility was installed within
the electric space or within the communications space, as defined
by the Michigan electric cooperative.
(d) That the new or additional facility was placed underground
along the same or substantially similar location of existing
underground electric facilities.
(2) In a trespass, unjust enrichment, or any other action
arising from or relating to an easement held by a Michigan electric
cooperative and brought against the holding Michigan electric
cooperative, the Michigan electric cooperative is not liable unless
the plaintiff establishes that 1 of the following applies to the
new or additional facility installed on an existing easement:
(a) The facility was installed outside the geographic bounds
of the express or prescriptive easement granted or obtained.
(b) The facility unreasonably or materially increases the
burden on the land.
(3) In a trespass, unjust enrichment, or any other action
arising from or relating to an easement held by a Michigan electric
cooperative and brought against the holding Michigan electric
cooperative, evidence of revenue realized by the Michigan electric
cooperative from services using the new or additional facility is
inadmissible for purposes of proving damages. Any damages in a
trespass, unjust enrichment, or any other action arising from or
relating to an easement held by a Michigan electric cooperative and
brought against the holding Michigan electric cooperative must be
determined by actual diminution of value of the property subject to
the easement and directly related to the installation of the
additional facility. However, damages awarded must not exceed $3.00
per linear foot.
(4) As used in this section:
(a) "Facility" means new or expanded broadband fiber
infrastructure used, at least partially, for electric service
purposes.
(b) "Michigan electric cooperative" includes entities engaged
in the transmission or distribution of electric service and that
are either of the following:
(i) An electric cooperative headquartered in this state
organized as a cooperative corporation under sections 98 to 109 of
1931 PA 327, MCL 450.98 to 450.109, serving primarily members of
the cooperative electric utility.
(ii) Another cooperative corporation headquartered in this
state.
Sec. 3212. Every A notice of foreclosure by advertisement
shall must include all of the following:
(a) The names of the mortgagor, the original mortgagee, and
the foreclosing assignee, if any.
(b) The date of the mortgage and the date the mortgage was
recorded.
(c) The amount claimed to be due on the mortgage on the date
of the notice.
(d) A description of the mortgaged premises that substantially
conforms with the description contained in the mortgage.
(e) A description of the property by giving its street
address, if any. The validity of the notice and the validity of any
eventual sale under this chapter are not affected by the fact that
the street address in the notice is erroneous or that the street
address is omitted.
(f) (e) For a mortgage executed on or after January 1, 1965,
December 31, 1964, the length of the redemption period as
determined under section 3240.
(g) (f) A statement that if the property is sold at a
foreclosure sale under this chapter, under section 3278 the
borrower will be held responsible to the person who buys the
property at the mortgage foreclosure sale or to the mortgage holder
for damaging the property during the redemption period.
Senate Bill No. 100 as amended December 13, 2018
(h) The name, address, and telephone number of the attorney
for the party foreclosing the mortgage.
(i) A statement in the following form: "This firm is a debt
collector attempting to collect a debt. Any information we obtain
will be used for that purpose.".
(j) For a residential mortgage, a statement in the following
form: "Attention homeowner: Are you a homeowner who is having
trouble making your mortgage payments? There are a number of
programs from a variety of organizations to help you. The Michigan
state housing development authority, or MSHDA, [may be able to help you
IN ] help finding local resources.
Information is available [ ] by going to
[the MSHDA website, www.michigan.gov/mshda.
] Please contact the telephone number for the attorney for
the party foreclosing the mortgage if you are in active military
duty.".
(k) A statement in the following form: "Notice of foreclosure
by advertisement. Notice is given under section 3212 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.3212, that the
following mortgage will be foreclosed by a sale of the mortgaged
premises, or some part of them, at a public auction sale to the
highest bidder for cash or cashier's check at the place of holding
the circuit court in ________ County, at (time), on (date). The
auction sale will close at (time). The sale will be made, but
without covenant or warranty, expressed or implied, regarding
title, possession, or encumbrances, to pay the remaining principal
sum of the note or notes secured by the mortgage, with interest and
late charges on the remaining principal sum, as provided in the
note or notes, advances, under the terms of the mortgage, interest
on the advances, fees, and charges and expenses of the attorney,
for the total amount, at the time of the initial publication of the
notice of foreclosure, reasonably estimated to be set forth below.
The amount may be greater on the day of the sale.Placing the
highest bid at the sale does not automatically entitle the
purchaser to free and clear ownership of the property. The
purchaser is encouraged to investigate the existence, priority, and
size of any other outstanding liens that may exist on this property
by contacting the county register of deeds office or a title
insurance company, either of which may charge a fee for this
information.".
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. 101 of the 99th Legislature is enacted into
law.