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STATE OF MICHIGAN COURT OF APPEALS

PENTWATER POINTE CONDOMINIUM ASSOCIATION, Plaintiff/CounterDefendant/Appellant-Cross Appellee, v LORA JUANITA LAMB and CHARLES LAMB d/b/a CHARLIE'S MARINA, Defendants/CounterPlaintiffs/Appellees-CrossAppellants.

UNPUBLISHED February 17, 2011

No. 293980 Oceana Circuit Court LC No. 08-006824-CZ

Before: SAWYER, P.J., and WHITBECK and WILDER, JJ. PER CURIAM. Plaintiff condominium association brought suit against defendants, owners of two condo units, alleging violations of the condominium documents and the Joint Agreement of Cooperation and Mutual License ("Joint Agreement"). Defendants counterclaimed for wrongful foreclosure and breach of the Joint Agreement. The trial court found no cause of action on plaintiff's claims, granted relief on defendants' counterclaim for wrongful foreclosure, and held that the Joint Agreement was invalid for lack of mutual assent to an essential term. The trial court awarded defendants attorney fees under MCR 2.114 and MCL 600.2591. Plaintiff appeals only the grant of attorney fees, and defendants cross-appeal the trial court's finding that the Joint Agreement was not a valid contract. We affirm. This Court reviews an award of attorney fees for an abuse of discretion. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). Findings of fact underlying the award of attorney fees, including a finding that an action is frivolous, are subject to review for clear error. Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002); Reed, 265 Mich App at 164. Clear error exists when, despite some evidence supporting a finding, this Court is "left with a definite and firm conviction that a mistake has been made." Kitchen, 465 Mich at 661-662. "[T]his Court defers to the trial court on issues of credibility." Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000). Questions of law receive de novo review. Reed, 265 Mich

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App at 164. Generally, attorney fees and costs are not recoverable under the "American rule" unless a statute, court rule, or common law exception provides otherwise. Dessart v Burak, 470 Mich 37, 42; 678 NW2d 615 (2004). Plaintiff first argues that the trial court did not identify any recognized authority that would permit an award of attorney fees in this case. However, the trial court clearly stated that it was adopting and incorporating by reference several sections of defendants' post-trial brief. One of these sections, titled "Attorney's Fees," lists three separate bases for awarding attorney fees. Although plaintiff is correct that the trial court specifically stated that it accepted defendants' findings of fact and made no such statement regarding defendants' legal conclusions, the briefing adopted and incorporated by the trial court provides both adequate legal authority and factual justifications for awarding attorney fees in the matter. Thus, this argument is without merit. Plaintiff also argues that the award of attorney fees was not proper under MCR 2.114 or MCL 600.2591.1 MCR 2.114 is intended in part "to deter parties and attorneys from filing documents or asserting claims and defenses that have not been sufficiently investigated and researched or that are intended to serve an improper purpose." FMB-First Michigan Bank v Bailey, 232 Mich App 711, 724; 591 NW2d 676 (1998). MCR 2.114(D) and (E) allow a court to award attorney fees as a sanction for claims brought for an improper purpose or without sufficient prior research into the viability of the claims. Under MCR 2.114(D)(3), improper purposes include harassment or causing unnecessary delays or expenses. Additionally, MCR 2.114(F) provides that "a party pleading a frivolous claim . . . is subject to costs as provided in MCR 2.625(A)(2)." MCR 2.625(A)(2) states, "In an action filed on or after October 1, 1986, if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591." MCL 600.2591(1) allows a court to award attorney fees against parties who bring "frivolous" claims, which is defined to mean: (i) The party's primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party. (ii) The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true. (iii) The party's legal position was devoid of arguable legal merit. [MCL 600.2951(3)(a).]

Plaintiff also contends that an award of fees could not have been based on MCL 559.215. Plaintiff points out that the plain language of

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