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Civil Practice — Reconsideration Motion – Summary Judgment – Motion to Amend – Attorney’s Fees – Michigan Law

Teresa Bruno, Opinions Editor//December 11, 2014

Civil Practice — Reconsideration Motion – Summary Judgment – Motion to Amend – Attorney’s Fees – Michigan Law

Teresa Bruno, Opinions Editor//December 11, 2014

DeGorter v. Capitol Bancorp Ltd. (Lawyers Weekly No. 14-15-1157, 24 pp.) (Louis Bledsoe III, J.) 2014 NCBC 62

Holding: The mere appointment of a new judge and the filing of a motion to reconsider do not constitute sufficient grounds for reconsideration of a previous judge’s grant of summary judgment to a defendant.

Plaintiff’s motions for reconsideration and to amend his complaint are denied. Defendant Capitol National Bank’s motion for attorneys’ fees is granted.

This case is distinguishable from Ruff v. Parex, Inc., 1999 NCBC 6, and Wachovia Bank v. Harbinger Capitol Partners Master Fund I, Ltd., 2008 NCBC 6; both of those cases were transferred from regular superior court to this court. Moreover, Ruff involved a class action, and Harbinger had a subsequently filed companion case in federal court in New York.

This matter falls squarely within the general rule that one superior court judge may not modify, overrule, or change the order of another superior court judge.

Motion to Amend

Since the summary judgment order here was an interlocutory order affecting only one of three defendants, the general rule prohibiting a plaintiff’s post-judgment amendment to the complaint – as articulated in Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990), and Sentry Enterprises, Inc. v. Canal Wood Corp., 94 N.C. App. 293, 380 S.E.2d 152 (1989) – is not controlling.

Nevertheless, plaintiff may not amend his complaint to add a civil conspiracy claim against Capitol National Bank (CNB).

In granting summary judgment to CNB, Judge Murphy reviewed plaintiff’s evidence and determined that although CNB was a subsidiary of defendant Capitol Bancorp Ltd. and had issued the loans in question to plaintiff, the evidence failed to demonstrate that any of CNB’s alleged conduct – whether acting alone or in collusion with Bancorp and/or defendant Capitol Wealth, Inc. – had caused plaintiff’s claimed injury. Granting plaintiff’s motion to amend would effectively overrule Judge Murphy’s prior order.

Plaintiff’s motion to amend is also untimely, being filed nearly four years after plaintiff filed his original complaint and being based on conduct that was known to plaintiff at the time he filed his complaint. Furthermore, an amendment to add a civil action for conspiracy would be futile since there remain no underlying claims against CBN to support a conspiracy action.

Attorneys’ Fees

Plaintiff’s promissory notes in favor of CNB are governed by Michigan law. A contract may serve as a valid basis for an award of attorneys’ fees under Michigan law. Pursuant to the notes, CNB is entitled to reasonable attorneys’ fees and expenses incurred in collecting amounts due under the notes.

Defendants’ agreement to allocate 15 percent of defendants’ costs to CNB is reasonable. Defendants’ attorneys’ fees total $184,865, and their expenses total $11,845.69.

Defense counsel’s rates are reasonable, and the court awards CNB $27,729.75 in attorneys’ fees and $1,776.86 in expenses.

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