            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



ALEXANDER ROBERT SPITZER,                                          UNPUBLISHED
                                                                   May 28, 2019
              Plaintiff-Appellee,

v                                                                  No. 343105
                                                                   Oakland Circuit Court
JAY ABRAMSON and ABRAMSON LAW                                      LC No. 2015-145126-NM
OFFICES, PLLC,

              Defendants-Appellants,
and

MICHAEL BRYCE WINNICK d/b/a LAW
OFFICES OF MICHAEL BRYCE WINNICK,

              Defendant.



Before: SAWYER, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

        Defendants, Jay Abramson and Abramson Law Offices, PLLC (collectively,
“Abramson”) appeal as of right the trial court order denying their motion for sanctions. We
affirm.

        The background facts of this case were set forth in this Court’s prior opinion. Spitzer v
Abramson, unpublished per curiam opinion of the Court of Appeals, issued October 24, 2017
(Docket No. 333158). Relative to the instant appeal, plaintiff initiated an action against
defendants based on allegations of malpractice that allegedly occurred during defendants’
representation of plaintiff in his divorce proceedings against his now ex-wife. Abramson moved
for partial summary disposition pursuant to MCR 2.116(C)(8), seeking dismissal of all of
plaintiff’s claims except the claim for legal malpractice. Before that motion was heard,
defendant Winnick filed a motion for summary disposition pursuant to MCR 2.116(C)(7),
asserting that plaintiff had moved to set aside the settlement, but the trial court denied that
motion and this Court affirmed that decision. See Silverman v Spitzer, unpublished per curiam


                                               -1-
opinion of the Court of Appeals, issued December 16, 2014 (Docket No. 317682) (plaintiff
asserted that the settlement should have been set aside due to coercion exercised upon him to
settle the divorce action). Winnick thus contended that plaintiff’s action against him was barred
under principles of estoppel. Abramson concurred in Winnick’s motion. The trial court granted
Winnick’s motion, dismissing plaintiff’s claims against all defendants, and found that
Abramson’s separately filed motion for summary disposition was moot. This Court affirmed the
trial court’s order. Spitzer v Abramson, supra. Thereafter, Abramson moved for sanctions
against plaintiff and plaintiff’s counsel, claiming that plaintiff’s complaint was frivolous and
citing MCR 2.114. The trial court denied the motion, and Abramson now appeals that decision.

        This Court reviews for clear error a trial court’s factual determination whether a claim
was frivolous. Home-Owners Ins Co v Andriacchi, 320 Mich App 52, 75; 903 NW2d 197
(2017). “A decision is clearly erroneous when, although there may be evidence to support it, we
are left with a definite and firm conviction that a mistake has been made.” Kelsey v Lint, 322
Mich App 364, 379; 912 NW2d 862 (2017) (citation omitted).

        Under former MCR 2.1141, an attorney’s signature on a document submitted to the court
certifies that the document is, to the best of his or her knowledge, “well grounded in fact and is
warranted by existing law or a good-faith argument for the extension, modification, or reversal of
existing law . . . .” MCR 2.114(D)(2). The signature further certifies that the document was not
filed for an improper purpose, such as to harass, cause unnecessary delay, or cause needless
increase in the cost of litigation. “If a document is signed in violation of this rule, the court, on
the motion of a party or on its own initiative, shall impose upon the person who signed it, a
represented party, or both, an appropriate sanction . . . .” MCR 2.114(E). The word “shall”
generally indicates a mandatory directive. Smitter v Thornapple Tp, 494 Mich 121, 136; 833
NW2d 875 (2013).

        MCR 2.114 also provides for sanctions when a party pleads a frivolous claim or defense.
MCR 2.114(F). Additionally, MCL 600.2591(1) provides that if a court finds that an action was
frivolous, the court shall award costs and fees to the opposing party that it incurred in defending
against the frivolous action. “Frivolous” is defined in MCL 600.2591(3)(a) as meaning that one
of the following conditions was met:

       (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.



1
  MCR 2.114 was repealed, effective September 1, 2018, but was in effect at the times relevant
to this case. The language previously found in MCR 2.114(D) through (F) has been retained at
MCR 1.109(E).


                                                -2-
        The question whether a claim or defense is frivolous is evaluated at the time the claim or
defense was raised. In re Costs & Attorney Fees, 250 Mich App 89, 94; 645 NW2d 697 (2002).
The purpose of imposing sanctions for asserting frivolous claims “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.” BJ’s & Sons
Const Co, Inc v Van Sickle, 266 Mich App 400, 405; 700 NW2d 432 (2005) (citation omitted).
“Not every error in legal analysis constitutes a frivolous position,” and “merely because this
Court concludes that a legal position asserted by a party should be rejected does not mean that
the party was acting frivolously in advocating its position.” Kitchen v Kitchen, 465 Mich 654,
663; 641 NW2d 245 (2002). Moreover, sanction provisions should not be construed in a manner
that has a chilling effect on advocacy or that penalizes a party whose claim initially appears
viable but later becomes unpersuasive. Louya v William Beaumont Hosp, 190 Mich App 151,
163; 475 NW2d 434 (1991).

        Abramson asserts that plaintiff’s complaint was frivolous based upon a very narrow
interpretation of plaintiff’s complaint. According to Abramson, plaintiff’s complaint was based
solely on whether co-counsel, defendant Michael Winnick, coerced plaintiff into a divorce
settlement agreement. While that may have been a substantial point (i.e. gravamen) in plaintiff’s
complaint, that was not the sole basis for the legal malpractice claims. In his complaint, plaintiff
specifically asserted that Abramson engaged in malpractice in a number of ways, including that
he failed to meaningfully cross-examine or depose witnesses, failed to challenge or defend
against plaintiff’s ex-wife’s allegations in the divorce, failed to issue discovery requests and to
follow up on discovery requests, lost and mishandled documents that plaintiff provided to him,
and failed to intervene when co-counsel and plaintiff’s relationship dissolved into hostility.
Clearly, these allegations are not based upon on an alleged coercion into a settlement agreement.

        In response to Abramson’s motion for sanctions, plaintiff’s counsel asserted, and
provided evidence, that he had undertaken a thorough investigation into plaintiff’s claims. This
included the review of documents filed in plaintiff’s divorce case, detailed discussions with two
of plaintiff’s legal representatives in the divorce case, review of text messages between
Abramson and plaintiff, and obtaining the professional opinion of three experts regarding
whether an action for legal malpractice was demonstrated. It was only after all of the above took
place that plaintiff’s counsel filed a 41 page complaint against Abramson. And, the complaint
that was filed contained actionable claims against Abramson and well-pleaded factual allegations
to support the claims, which are accepted as true. See, e.g., Maiden v Rozwood, 461 Mich 109,
119; 597 NW2d 817 (1999). Because Plaintiff’s counsel undertook a thorough and extensive




                                                -3-
investigation of the underlying claims prior to filing the complaint against Abramson and
continued to investigate throughout the proceedings, and because Abramson has not shown that
plaintiff’s complaint was frivolous, the trial court properly denied Abramson’s motion for
sanctions.

       Affirmed.



                                                        /s/ David H. Sawyer
                                                        /s/ Mark J. Cavanagh
                                                        /s/ Deborah A. Servitto




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