The mandatory assessment of costs against the party and attorney when a civil action or defense to a civil action was frivolous.

In Davis v Highland Park Board of Education, Unpub Opin of the Court of Appeals (#315002 and 316235, 7/24/2014), defendant argued  that the trial court erred in awarding attorney fees and costs against plaintiff only, instead of plaintiff and his attorney.

Statutory interpretation is a question of law that is considered de novo on appeal. Elba Twp v Gratiot County Drain Comm’r, 493 Mich 265, 278 (2013).  MCL 600.2591(1) provides: Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.

“Because the Legislature’s use of the term ‘shall’ denotes that the sanctions are mandatory,” trial courts do not “have discretion to forgo sanctions on the basis of an internal policy.” Cvengros v Farm Bureau Ins, 216 Mich App 261 (1996).  Because MCL 600.2591(1) plainly provides that the court shall award costs and fees to the prevailing party by assessing them against the nonprevailing party and their attorney, the trial court erred in awarding attorney fees and costs against plaintiff only.