            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



ANNETTE RENEE WYLER and STACEY A.                                  UNPUBLISHED
WYLER,                                                             July 18, 2019

               Plaintiffs-Appellants,

v                                                                  No. 342750
                                                                   Leelanau Circuit Court
BAYVIEW LOAN SERVICING, LLC, ORLANS                                LC No. 2017-010021-CH
AND ASSOCIATES, PC, MARSHALL R.
ISAACS, and CHEMICAL BANK,

               Defendants-Appellees.


Before: M. J. KELLY, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

       Plaintiffs appeal by right the trial court’s order awarding defendant Bayview Loan
Servicing, LLC (Bayview), attorney fees and costs on the basis that plaintiffs filed a frivolous
complaint. We affirm.

        Plaintiffs’ three-count complaint alleged an invalid foreclosure and sheriff’s sale with
respect to plaintiffs’ home, fraud and forgery regarding public records, and violation of various
state and federal statutes and regulations. Several years earlier, allegations sounding in
negligence, violation of statute, and promissory estoppel pertaining to the underlying note and
mortgage on the home, as well as related assignments, were litigated by plaintiffs and rejected by
a federal court in Wyler v Bank of America, unpublished opinion of the United States District
Court for the Western District of Michigan, issued November 7, 2011 (Case No. 1:11-CV-132).
Subsequently, and before the instant action was pursued, plaintiffs made allegations of an illegal
and invalid foreclosure and sheriff’s sale and claims of fraudulent mortgage assignments in an
action filed in the Leelanau Circuit Court. Those claims were summarily dismissed, and this
Court affirmed the ruling on the basis of res judicata, judicial estoppel, and lack of standing.
Wyler v Bank of New York Mellon, unpublished per curiam opinion of the Court of Appeals,
issued November 17, 2016 (Docket No. 329153). Our Supreme Court denied leave in the case.
Wyler v Bank of New York Mellon, 500 Mich 1060 (2017).
        Undeterred, plaintiffs filed the present action, and the trial court granted defendants’
motions for summary disposition based on the doctrine of res judicata as to two of the counts and
failure to state a claim relative to the third count.1 The trial court also agreed with Bayview’s
argument that plaintiffs’ claims were frivolous. On January 18, 2018, the trial court entered an
order granting summary disposition in favor of defendants, awarding Bayview costs and attorney
fees as sanctions for the frivolous complaint, and directing Bayview to submit a bill of costs and
appropriate supporting documentation. Bayview complied, requesting $9,940 in attorney fees
and costs. Plaintiffs filed a response challenging the request, and a hearing on the matter was
held on February 5, 2018. The trial court awarded Bayview only $6,538 in attorney fees and
costs, and plaintiffs filed an objection to the dismissal of the case and the award of sanctions,
which the court treated as a motion for reconsideration.

        On February 15, 2018, the trial court entered two orders. One order formally awarded
Bayview the $6,538 in sanctions, and the second denied plaintiffs’ objections or motion for
reconsideration. On March 7, 2018, plaintiffs filed a claim of appeal. In an order, this Court
dismissed the claim of appeal, in part, for lack of jurisdiction, indicating that the January 18,
2018 order granting summary disposition and the February 15, 2018 order denying plaintiffs’
objections could only be challenged “by filing a delayed application for leave to appeal under
MCR 7.205(G).” Wyler v Bayview Loan Servicing, LLC, unpublished order of the Court of
Appeals, entered April 11, 2018 (Docket No. 342750). The claim of appeal, however, could
proceed with respect to the order of February 15, 2018, awarding Bayview attorney fees and
costs. Id.

        In July 2018, plaintiffs filed their brief on appeal, and in August 2018, they filed an
amended appellate brief. Plaintiffs have not filed a delayed application for leave to appeal.
Accordingly, the only issue that we can entertain is whether the trial court erred in awarding
sanctions to Bayview; the order granting summary disposition remains intact. Plaintiffs’ brief is
almost entirely devoted to re-litigating their claims and making a wide range of accusations.
There is no substantive discussion of res judicata, nor do plaintiffs set forth any analysis
regarding the allegations in the complaint and whether they stated a valid cause of action. The
extent of plaintiffs’ argument concerning sanctions is that plaintiffs had “a reasonable basis to
believe facts asserted in the complaint were true and accurate.” This argument is completely
irrelevant with respect to whether the complaint was frivolous because it was barred on the basis
of res judicata or failed to state a claim. Plaintiffs present absolutely no challenge to the amount
of attorney fees and costs the trial court awarded to Bayview.

        An appellant’s failure to properly address the merits of his or her assertion of error
constitutes abandonment of the issue. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 626-
627; 750 NW2d 228 (2008). “It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority



1
  Although plaintiffs appeared at the hearing on the motion, they failed to file a response to
defendants’ motion for summary disposition.


                                                -2-
either to sustain or reject his position.” Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845
(1998) (quotation marks omitted). Therefore, in light of the substantial briefing failure by
plaintiffs, we affirm the award of attorney fees and costs to Bayview.

        Furthermore, the trial court’s finding that plaintiffs’ complaint was frivolous was not
clearly erroneous, and the award of sanctions did not constitute an abuse of discretion. Kitchen v
Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002); Edge v Edge, 299 Mich App 121, 127; 829
NW2d 276 (2012). The question whether a claim is frivolous is evaluated at the time the claim
was raised. In re Costs & Attorney Fees, 250 Mich App 89, 94; 645 NW2d 697 (2002). The
objective of sanctions “is 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 Mich Bank v Bailey, 232 Mich App 711, 723; 591
NW2d 676 (1998). “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.” MCR 2.625(A)(2). “[I]f a court finds that 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.” MCL 600.2591(1). “The amount of costs and fees
awarded under this section shall include all reasonable costs actually incurred by the prevailing
party and any costs allowed by law or by court rule, including court costs and reasonable
attorney fees.” MCL 600.2591(2). A civil action is frivolous when a “party’s legal position was
devoid of arguable legal merit.” MCL 600.2591(3)(a)(iii).

        Plaintiffs’ prior state action had already been barred by the doctrine of res judicata, yet
plaintiffs proceeded to once again file a lawsuit which was plainly precluded by the doctrine.
See Richards v Tibaldi, 272 Mich App 522, 531; 726 NW2d 770 (2007) (prior action was a final
decision based on the merits and the contested matter was or could have been resolved in the
prior action, with both suits involving the same parties or their privies). Additionally, plaintiffs
failed to voice any cohesive challenge in their motion for reconsideration with respect to the
court’s ruling that the count alleging a violation of a criminal statute failed to state a civil claim.
In sum, plaintiffs’ position was devoid of arguable legal merit.

     We affirm. Having fully prevailed on appeal, defendants are awarded taxable costs under
MCR 7.219.




                                                               /s/ Michael J. Kelly
                                                               /s/ Jane E. Markey
                                                               /s/ Elizabeth L. Gleicher




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