Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  December 12, 2014                                                                   Robert P. Young, Jr.,
                                                                                                 Chief Justice

  149609                                                                               Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                           Mary Beth Kelly
                                                                                            Brian K. Zahra
                                                                                    Bridget M. McCormack
                                                                                          David F. Viviano,
  RICHARD R. ROBERTS and STACEY D.                                                                    Justices
  ROBERTS,
            Plaintiffs-Appellants,

  v                                                        SC: 149609
                                                           COA: 312354
                                                           Leelanau CC: 05-007063-CK
  ROBERT L. SAFFELL and JOANNE O.
  SAFFELL,
            Defendants-Appellees.

  _________________________________________/

         On order of the Court, the application for leave to appeal the May 22, 2014
  judgment of the Court of Appeals is considered. Pursuant to MCR 7.302(H)(1), in lieu of
  granting leave to appeal, we DIRECT the Leelanau Circuit Court to assign a different
  judge to preside over any further proceedings in this case. In all other respects, leave to
  appeal is DENIED, because we are not persuaded that the questions presented should be
  reviewed by this Court.

         ZAHRA, J. (concurring).

         I concur in the denial of plaintiffs’ application for leave to appeal. I write
  separately to admonish the trial court for its repeated failure to follow the decisions of the
  appellate court.

          In 2003, plaintiffs Richard and Stacey Roberts purchased a summer home in
  Leland, Michigan, from defendants Robert and Joanne Saffell. Some two years later,
  plaintiffs filed suit against defendants after discovering that their entire house had
  become structurally unsound because of a termite infestation. The suit pleaded claims for
  breach of contract, fraudulent misrepresentation, silent fraud, and innocent
  misrepresentation; all of which were based on defendants’ negative response to the seller
  disclosure statement query about whether there was any history of infestation. Because
  plaintiffs felt that they might not be able to prove actual knowledge of the termite
  infestation on defendants’ part, they made the strategic decision to solely pursue the
  claim for innocent misrepresentation. This was not a sound strategy.

         Defendants have continually maintained that innocent misrepresentation does not
  constitute a viable cause of action under the Seller Disclosure Act (SDA), MCL 565.951
  et seq. Defendants twice moved for summary disposition on this basis. The trial court
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first denied the motion, and the second time the trial court reserved a ruling until after
plaintiffs had presented their proofs. Trial then proceeded on the assumption that
plaintiffs had a cognizable cause of action. Defendants moved for a directed verdict after
plaintiffs had presented their proofs, but the trial court denied the motion. The jury
rendered its verdict in favor of plaintiffs, and the trial court entered judgment.

        Defendants appealed. The Court of Appeals, in a published decision, reversed the
trial court’s judgment and held “that innocent misrepresentation is not a viable theory of
liability under the [SDA].” Roberts v Saffell, 280 Mich App 397, 399 (2008) (Roberts I).
Plaintiffs sought leave to appeal in this Court. This Court considered the application and
heard oral argument in regard to whether to accept the application or take other
peremptory action. Roberts v Saffell, 483 Mich 943 (2009). Following the parties’
arguments, this Court affirmed the Court of Appeals’ conclusion that “a claim for
innocent misrepresentation requires that a defendant make a false statement without
knowledge of its falsity . . . ” Roberts v Saffell, 483 Mich 1089, 1090 (2009). 1 From this
rather unremarkable proposition, this Court stated that the panel had properly concluded
that plaintiffs’ claim for innocent misrepresentation did not constitute a viable cause of
action under the SDA, id., which requires a statement regarding “the condition and
information concerning the property, known by the seller,” MCL 965.957(1).

       On first remand, the trial court conducted a hearing on defendants’ motion for
entry of a judgment and attorney fees. The trial court openly provided its unsolicited
view on its “concept of justice and the meanings of justice and where does justice come
from.” The trial court concluded that

         it is essentially the notion that at the conclusion of a dispute that the right
         result has been reached. That people feel comfortable with the result.
         There are winners, there are losers, but they feel comfortable about the
         result.


        Apparently applying its subjective view of justice in this case, the trial court
denied defendants’ motion for attorney fees, believing it would be a “manifest injustice,
it’s wrong, it’s a bad result, it would be a terrible thing to do.” The trial court then openly
stated that it would not grant the motion unless “I’m directly told to do so by the court of
appeals.”

      Defendants again appealed. Roberts v Saffell, unpublished opinion per curiam of
the Court of Appeals, issued June 28, 2011 (Docket No. 295500) (Roberts II). The Court
of Appeals issued an opinion that was rather sympathetic to plaintiffs’ position, but the
panel “reluctantly conclude[d] that the contract requires the trial court to hold further
1
    See Roberts I, 280 Mich App at 414-415 (2008).
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proceedings regarding defendants’ attorney fee request.” Id. at 2. The panel expressly
“remand[ed] this case to the trial court to give the defendants an opportunity to establish
their fees pursuant to the terms and conditions of the contract.” Id. The panel also
entertained “defendants’ request that we order the case be heard by a different judge upon
remand,” but rejected this request because the “trial court indicated it would award the
attorney fees if so ordered by this Court, albeit reluctantly.” Id. at 2-3. In sum, despite
the conciliatory language in the opinion, the panel clearly stated that “the trial court was
required to enforce the contract as written” and ordered “the trial court to give the
defendants an opportunity to establish their fees pursuant to the terms and conditions of
the contract.” Id. at 2. This Court denied leave to appeal. Roberts v Saffell, 490 Mich
895 (2011).

       On second remand, the trial court conducted a second hearing on defendants’
motion for entry of a judgment and attorney fees. The trial court again injected its
subjective sense of justice into the proceedings. The following colloquy occurred:

              The Court: I guess, you know, I feel better about it if somewhere
       along the way you discover who put in those pristine 2x4’s next to the
       termite riddled 2x4’s, did you really win or just get lucky?”
              [Defense counsel]: We prevailed.
              The Court: [Plaintiffs’ counsel’s] clients get cheated?
              [Defense counsel]: No.
              The Court: Really?
             [Defense counsel]: They voluntarily dismissed a cause of action
       going forward on innocent misrepresentation, not withstanding the law
       doesn’t allow recovery, that’s not being cheated, that’s the legal process.
              The Court: My question is, were there in fact pristine white 2x4’s
       sistered next to termite riddled 2x4’s, and who did that, you ever figure that
       out? They sue the wrong people?
              Never mind, it’s rhetorical.


At the end of the hearing, the trial court stated:

       I’m going to provide a written opinion.
              I’m going to look at the legal issue regarding damages from the
       defendant’s point of view, whether they need to be pled, whether they need
       to be proven and regardless of how I resolve that issue -- regardless of how
       I resolve that issue I will then make findings with regard to attorney fees in
       this particular case.
                                                                                           4

              So, one way or the other you can go back to the Court of Appeals,
       you either get the fees or you won’t get the fees, but you won’t have to
       come back here and argue them again.


         In its written decision and order, the trial court concluded that “Defendants
cheated the Plaintiffs” and that it remained “this Court’s opinion that those six citizens
who listened to this trial understood the case, understood their obligation to base a verdict
on the Defendants’ actual knowledge and failure to disclose and that the jury’s verdict
should be reinstated.” 2 The trial court concluded that defendants “should not be paid for
their deception.” Turning to the question of attorney fees, the trial court stated that “[i]f
this case continues to be a vehicle for injustice, . . . then attorney’s fees will have to be
awarded.” Yet the trial court concluded that because “the source of the fee award arises
in a contract, the fees are considered damages, not costs.” The trial court reasoned “that
the failure to make a claim for fees and offer proofs at trial now precludes [Defendants]
from an award.” The trial court found that defendants should have brought a
counterclaim, but did not, and thus because defendants “failed to claim fees as damages
at trial, this Court declines to award them here.”

       Defendants appealed for the third time. Roberts v Saffell, unpublished opinion per
curiam of the Court of Appeals, issued May 22, 2014 (Docket No. 312354) (Roberts III).
The Court of Appeals first rejected the trial court’s conclusion that defendants were
required to file a counterclaim to obtain attorney fees under the contract. The panel then
held that

       [i]n any event, the trial court in this case was bound by the law of the case
       to award defendants’ [sic] their reasonable attorney fees under the contract.
       We are similarly bound. Under the law of the case doctrine, “an appellate
       court’s determination of an issue in a case binds lower tribunals on remand
       and the appellate court in subsequent appeals.” Grievance Administrator v
       Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000). The law of the case
       applies to explicit or implicit issues actually decided. Id. However, the
       doctrine “does not apply to an issue that was raised but not decided by an

2
  Of course, the trial court did not explain in its written opinion how “the case
nonetheless proceeded to trial as if on an intentional misrepresentation theory, which,
unlike an innocent misrepresentation theory, required proof of defendants’ knowledge of
the infestation and of their failure to disclose it to plaintiffs.” Roberts v Saffell,
unpublished opinion per curiam of the Court of Appeals, issued May 22, 2014 (Docket
No. 312354), p 2 n 2 (Roberts III). More confounding is that “the record suggests that
the trial court instructed the jury on those elements, notwithstanding the fact that the
remaining innocent misrepresentation claim did not require them to be proven.” Id.
                                                                                           5

       appellate court.” Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692,
       697; 513 NW2d 230 (1994). [Id. at 7.]


The panel explained that

       [i]n Roberts II, this Court found defendants to be the prevailing party and
       held that the contractual attorney fee provision applied. Roberts II, unpub
       [op] at 2. After determining that the trial court erred in failing to grant
       defendants’ attorney fee request, this Court “remand[ed] this case to the
       trial court to give the defendants an opportunity to establish their fees
       pursuant to the terms and conditions of the contract.” Id. . . .

                                         * * *
              The contract does not specify that the attorney fees must be
       established at trial. But rather than give the defendants the opportunity
       ordered by this Court, the trial court again denied their fee request. This
       Court determined that defendants were the prevailing party and that they
       thus were contractually entitled to an award of reasonable attorney fees.
       The trial court was bound by that decision and was directed to establish
       those fees. [Id. at 7-8.]


        Twice, the trial court, which has openly and vehemently expressed its unhappiness
with defendants’ appellate victories in this case, declined to award the contract-required
fees. During these proceedings, the trial court repeatedly called defendants deceptive and
even, at times, called them cheats. The trial court also demeaned the defense attorneys’
efforts as “creating the opportunity for this miscarriage of justice to unfold” and belittled
defense appellate counsel’s success by comparing him to a blind squirrel that
occasionally finds a nut.

       Twice, the Court of Appeals has had to overturn the trial court’s recalcitrance.
Despite an order from this Court and the Court of Appeals, the trial court declined to
enter an award for attorney fees because “[t]o characterize an award of fees to the
Defendants in the circumstances presented by this case as a manifest injustice is to
                                                                                                               6

demean the word manifest.” Yet “the trial court in this case was bound by the law of the
case to award defendants’ [sic] their reasonable attorney fees under the contract.”
Roberts III, unpub op at 7. Indeed the Roberts III panel recognized that it was similarly
bound. Id. I write this statement to espouse my view that the trial court improperly
invoked its own personal and subjective views of justice to decide this case. The trial
court was required to follow the law of the case and, for this reason alone, I admonish the
trial court for its repeated failure to follow the decisions of the appellate court. I agree
with defense counsel’s assertion before the Court of Appeals that the trial court’s
grandstanding and utter failure to follow the law has “increased the litigation costs which
[defendants] must initially bear and [plaintiffs] are obligated for under the contract.”
Simply put, the trial court’s bias has resulted in additional costs imposed on plaintiffs.

       YOUNG, C.J., joins the statement of ZAHRA, J.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 12, 2014
       t1209
                                                                             Clerk
