The Kent County Drain Commissioner sought to make improvements to the Waters Drain and to apportion the cost of such improvements to property owners located in the Waters Drain Special Assessment District pursuant to the Michigan Drain Code. Plaintiffs owned land within the special assessment district. As permitted by Section 155 of the Drain Code (MCL 280.155), plaintiffs appealed the apportionment to the probate court. The probate court appointed a three-member board of review. The Hubbard Law Firm represented the Drain Commissioner, and argued before the board of review that the Drain Commissioner's apportionment should be upheld. After hearing, the board of review rejected plaintiffs' challenge and upheld the Drain Commissioner's apportionment. The probate court ordered plaintiffs to pay $6,659.97 for the Drain Commissioner's attorney fees.

This case concerned a provision of the Drain Code that contains broad language giving the probate court discretion to determine the "whole costs and expenses" of the appellate proceeding.

Plaintiffs appealed the ruling, arguing that the "whole costs and expenses" language of Section 158 of the Drain Code MCL 280.158 does not encompass attorney fees. While the statute does not explicitly reference attorney fees, it does provide that an "appellant shall pay the whole costs and expenses of such appeal." The Court of Appeals, in a published opinion, accepted The Hubbard Law Firm's argument, and held that the use of the expansive term "whole" in MCL 280.158 reveals the Legislature's intent that a landowner appealing an apportionment must pay the entire or total amount of costs and expenses of the appeal. The Drain Commissioner's legal expenses in defending such an appeal would constitute a portion of the entire or total expenses of an appeal. In light of the Legislature's use of the broad term "whole" to modify the phrase "costs and expenses," the Court of Appeals concluded that the phrase "whole costs and expenses" of MCL 280.158 encompasses attorney fees.

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For more information about this Opinion, or the Michigan Drain Code in general, contact Attorneys Andria Ditschman ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or Michael Woodworth ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).