Attorney fees; Fraud; Ypsilanti Charter Twp v Kircher; Spectrum Health v Grahl; Brooks v Rose; Distinction between attorney fees that are recoverable based on a statute or court rule & those recoverable only as a form of damages; Pransky v Falcon Group, Inc; Appellate jurisdiction; MCR 7.202(6)(a)(iv)

The court held that plaintiff’s requests for attorney fees that it included in its complaint and amended complaint were not sufficient to justify an award of attorney fees under the circumstances here. Thus, it affirmed the trial court’s postjudgment order denying plaintiff’s motion for attorney fees. The case stemmed from a dispute over the enforcement of restrictive covenants. Plaintiff did not cite a statute or court rule that would authorize awarding attorney fees but instead claimed it was “entitled to attorney fees based on defendants’ alleged fraud.” The fundamental premise of plaintiff’s argument was that in Ypsilanti, Spectrum Health, and Brooks, the court “never expressly conditioned the ability to recover attorney fees for another party’s fraud on alleging fraud in the complaint or obtaining a finding of fraud earlier in the proceedings and that the trial court in this case therefore made an error of law in ruling that plaintiff could not recover attorney fees incurred as a result of defendants’ alleged fraud because plaintiff had not alleged fraud in its complaint and there had been no previous finding by the trial court of fraud.” The court noted that it has observed “there is a distinction between attorney fees that are recoverable based on a statute or court rule and attorney fees that are instead recoverable only as a form of damages.” Plaintiff only sought attorney fees by way of a motion; it “never asserted a claim for attorney fees based on allegations that defendants committed fraud.” Because it “never properly advanced its claim for attorney fees based on alleged fraud committed by defendants, the trial court did not err by denying plaintiff’s motion for attorney fees; plaintiff was not entitled as a matter of law to recover attorney fees based on alleged fraud under the circumstances of this case.” Thus, the court did not need to decide whether defendants committed the fraudulent acts alleged by plaintiff.