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Bonfiglio v. Pamer8/23/2002
not been met will also find that the defense is not frivolous. However, the closer a defense gets to the line between the frivolous and non-frivolous, the chances increase that the negative disjunct will not be established. This seems to be the situation faced by the trial court in the case at bar. After listening to arguments on both sides of the sanctions issue and briefly reviewing the trial, the court made the following observations:
I can't . . . take the position that the positions [defense counsel] . . . took or the defenses he put forth in terms of a bank account and the $130,000.00 and the statute of limitations and whatever else was put out there in the way of argument and defenses to the jury, reached the level of frivolousness. And maybe if I had this case from the beginning I might feel differently. But I didn't. I came in at the eleventh hour.
We get into, you know, . . . if there was any reasonable legal basis for it. And I, I can't say with any certainty that there, that there wasn't. I'm going to deny the motion with some reservations because this one approaches it, if I ever had it in any case. But I'm going to deny the motion.
We believe that the court made the finding it was required to on the motion. The judge determined that it had not been established that the defense was frivolous. Without such a finding, the conditional relationship was not established, and sanctions were properly denied.
Further, we do not believe that the court's conclusion was clearly erroneous. Indeed, we have already concluded that Pamer's statute of limitations defense was meritorious. Further, Pamer was within her rights to argue that the statutory presumption raised by MCL 487.703 applied, as plaintiffs were within their rights to offer evidence to rebut the presumption. We acknowledge, as did the trial court, that there are circumstances in this case that move it into that gray area that lies around the line between the frivolous and the non-frivolous. Given this ambiguity, we believe that absent clear evidence to the contrary, this Court should defer to the superior ability of the trial judge to access the positions taken at trial.
Finally, plaintiffs argue as they did on cross-appeal in Docket No. 223998, that the trial court erred in denying their motion for summary disposition. This issue being moot, we decline to address it. See B P 7, supra at 359.
We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
Harold Hood
Donald E. Holbrook, Jr.
Donald S. Owens
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