                            STATE OF MICHIGAN

                            COURT OF APPEALS



FIDELITY NATIONAL TITLE INSURANCE                                     UNPUBLISHED
COMPANY,                                                              October 30, 2014

               Plaintiff,

v                                                                     No. 316084
                                                                      Grand Traverse Circuit Court
CHS-HAMILTON, INC. f/k/a HAMILTON                                     LC No. 2011-028825-CZ
FARM BUREAU COOPERATIVE, INC.,

               Defendant-Appellant,
and

JOHN WILTZER and JOHN J. WILTZER, INC.,

               Defendants-Appellees.


Before: FITZGERALD, P.J., and GLEICHER and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (dissenting)

       I respectfully dissent from the majority’s decision to reverse the trial court’s award of
sanctions because I believe this Court is required to defer to the trial court under the
circumstances of this case.

        I agree with the majority’s recitation of the facts and applicable law. However, I disagree
with the majority’s application of the standard of review and conclusion that the trial court erred
in imposing sanctions. Our review is not de novo. Rather, where a party challenges some
underlying fact supporting the trial court’s decision, then the appropriate standard of review is
clear error, and the reviewing court must defer to the trial court’s view of the facts unless the
reviewing court is left with the definite and firm conviction that a mistake has been made by the
trial court. Herald Co Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470-472; 719
NW2d 19 (2006). Consequently, this Court will not reverse a trial court’s finding of frivolity
merely because we would have arrived at a different conclusion, but rather only if we are certain
that the trial court was wrong. I believe the majority erroneously fails to afford the trial court the
deference which it is due.

      Hamilton’s entire defense was, in effect, that the four corners of the written agreements
imposed no duty to discharge the particular mortgage at issue, so therefore Hamilton had no such

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duty. The trial court reasonably observed that Hamilton’s past dealings showed that Hamilton
appeared not to regard the four corners of the written agreements as the entirety of its actual
agreements, if indeed Hamilton regarded the written agreements as even relevant. The trial court
further reasonably observed that national standards made Hamilton’s past dealings proper or
even mandatory, in contrast to actions or inactions that would seem dictated by the written
agreements. Consequently, the trial court issued sanctions upon finding that there was no
reasonable basis to believe the facts asserted by Hamilton.

        Again, this Court is obligated to defer to the trial court’s factual findings and may reverse
only if definitely and firmly convinced that the trial court made a mistake. The evidence in the
record supports the trial court’s factual findings. The fact that Hamilton raised a superficially
legally cognizable defense that might have been supportable is not a sufficient basis for
overturning a trial court’s supported factual findings. We note that the trial court did not hold
that Hamilton’s position lacked any support, but rather reasonable support. It appears to me that
the majority disagrees with the trial court because it believes Hamilton’s defense has factual
support. However, clear error may not be found merely because a reviewing court finds that an
alternative outcome would have been permissible. See Hill v City of Warren, 276 Mich App
299, 308-309; 740 NW2d 706 (2007).

        Clearly, the trial court’s conclusion does not have no support in the record, and I am
unpersuaded that Hamilton has carried its burden of showing that the deference this Court must
afford trial courts should be overcome. I do not believe the record shows that the trial court
clearly erred, therefore I would affirm.



                                                              /s/ Amy Ronayne Krause




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