SB-0100, As Passed Senate, December 19, 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.