COA 371641 MARLENA FRONCZEK-DUCZYNSKA V TOTAL CONSTRUCTION & RENOVATION LLC Opinion - Per Curiam - Unpublished 5/12/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MARLENA FRONCZEK-DUCZYNSKA, also
known as MARLENA FRONCZEK, and RANDALL
FRITCHEY, also known as RANDY FRITCHEY,
Plaintiffs-Appellees,
UNPUBLISHED
May 12, 2026
8:52 AM
v No. 371641
Macomb Circuit Court
TOTAL CONSTRUCTION & RENOVATION,
LLC, and JASON SZYMBORSKI,
LC No. 2019-004191-CK
Defendants-Appellants.
Before: BORRELLO, P.J., and M. J. KELLY and ACKERMAN, JJ.
PER CURIAM.
This matter is before this Court on remand from our Supreme Court for consideration as
on leave granted. Fronczek-Duczynska v Total Construction & Renovation LLC, 25 NW3d 374
(2025). Defendants, after having prevailed at a trial that followed the grant of a mistrial, now
challenge the trial court’s earlier ruling awarding attorney fees and costs to plaintiffs. For the
reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case arises out of a dispute involving the renovation of plaintiffs’ home. Plaintiffs
purchased the home on March 1, 2019. On April 16, 2019, plaintiffs entered into a contract with
defendant Total Construction & Renovation (Total Construction) to perform certain renovations
on the home that included installing hardwood floors, staining and finishing woodwork, installing
granite bathroom countertops, painting, framing and drywalling basement partition walls, and
installing a jacuzzi tub in a bathroom.
On October 16, 2019, plaintiffs filed this action against Total Construction and Jason
Szymborski, as the alleged owner of Total Construction. Plaintiffs raised various claims based on
allegations of defective and untimely performance under the contract. The matter proceeded to
trial. On the second day of trial, the presiding judge declared a mistrial. The circumstances
surrounding the grant of a mistrial and the subsequent award of attorney fees and costs to plaintiffs

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are the subject of the instant appeal and will thus be explained in sufficient detail to provide context
for understanding the parties’ appellate arguments.
On the second day of trial, during cross-examination of plaintiff Marlena Fronczek-
Duczynska, defense counsel questioned Fronczek-Duczynska about her various bank accounts and
specifically asked her, “You also have another account called the Marlena Fronczek 401 K trust.
Correct?” Fronczek-Duczynska responded affirmatively and indicated that it was “one of the
Chase accounts, checking accounts.” She also testified that she did not have a personal checking
account in her own name.
Fronczek-Duczynska acknowledged that there were four checks written from the Fronczek
401 K trust account and made payable to defendant Szymborski for the work on the subject
property. There were two checks for $20,000, one check for $7,700, and one check for $6,000.
Her testimony reflected that she did not write any checks to defendants from an account in her own
name, but she described the trust account as “my account.”
Fronczek-Duczynska testified that the subject property was owned by the trust and not by
plaintiffs Fronczek-Duczynska and her husband, Randall Fritchey. However, she then clarified
that she and her husband actually owned the property even though “it is in a trust.” Fronczek-
Duczynska stated, “I’m part of the trust. I am the trust owner.” The following testimony and
discussion then occurred that, although seemingly quite tangential to the nature of the action as
framed by the complaint, actually constitutes the fundamental root of the issue presented in the
instant appeal:
BY MR. KUHR [defense counsel]:
Q. In paragraph 12 of your amended complaint you say Marlena Fronczek
paid 20,000 on April one and April 16, which are these two checks. Do you recall
making that allegation?
A. I did pay the money, yes.
Q. But actually the Marlena Fronczek 401 trust made those payments?
MR. STRENGER [plaintiffs’ counsel]: Your Honor, again –
A. I’m the owner of the trust.
MR. STRENGER: Objection. It’s asking for a legal conclusion Your
Honor.
THE COURT: I have just indicated those motions will be heard outside of
the hearing of the jury.
Please move on, she has no basis to know, other than she can testify to what
she has in the trust, if she knows.

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MR. KUHR: I’m not asking what she had in the trust. She made an
affirmative representation here that she paid $40,000 and then in fact the trust paid
$40,000.
THE COURT: Are any of the assets in the trust not your personal assets.
A. They are my personal assets.
THE COURT: Or those of Mr. Fritchey.
A. Those are my personal assets.
THE COURT: All right. Your argument is a legal one then.
MR. KUHR: Can I make the motion now. Can we exclude the jury.
THE COURT: Very well.
Outside the presence of the jury, the attorneys and the trial judge engaged in a lengthy and,
frankly, somewhat convoluted discussion. The trial court began by chastising defense counsel:
Court will note that an issue has arisen that is being argued with the Plaintiff
on the stand.
The Court does not find that to be the appropriate manner to address this
issue. Its [sic] an issue of summary disposition, which should have been brought
prior to the –
If defense wanted to argue any issues related to capacity standing, the party
in interest, any of the above, those motions should have been brought prior to the
expiration of the scheduling order.
The date that was provided for motion for summary disposition to be filed
dispositive motions have a deadline and without leave to argue a dispositive motion,
I’m loath to do it while we have a jury seated. However, I will let you make your
record. Mr. Kuhr.
Defense counsel appeared to insist that Fronczek-Duczynska had engaged in a transaction
that was prohibited by IRS regulations when she used her 401(k) trust funds to pay for renovations
on the property owned by plaintiffs and that defendants were entitled to a dismissal on this basis.
Defense counsel also complained that the trial court had misled the jury by suggesting through its
questioning of Fronczek-Duczynska that the funds in this trust were merely her personal assets to
use as she wished. On this basis, defense counsel requested a mistrial. The trial court granted a
mistrial, stating as follows:
Motion for mistrial is granted on the basis that I asked a leading question of
this witness implying that was her money to use.

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Mr. Kuhr has indicated that that is not accurate and that he has federal law
that is going to prove that there are dispositive issues involved in this case.
Leave to file motion for summary disposition is granted.
In the event the Defendant is not successful in their argument related to what
a 401K Trust trustee can or cannot do with their [401(k)] bank account, the Court
will hear motions related to all costs and attorney fees incurred by the Plaintiff for
the delay in this matter in order for this leave to have been granted.
Defendants subsequently filed a motion for summary disposition under MCR 2.116(C)(8)
and (C)(10). Essentially, defendants argued that the action should be dismissed because Fronczek-
Duczynska had misused assets from the 401(k) trust for her personal use, while plaintiffs argued
that Fronczek-Duczynska could permissibly borrow from the trust and any penalty for an early
withdrawal of the funds was limited to a tax penalty. Plaintiffs maintained that defendants’
allegations of fraud were false and that their tactics were frivolous acts of bad faith with the intent
to delay the proceedings and prejudice plaintiffs.
The trial court held a hearing on the motion, heard argument, and took the matter under
advisement. In a written opinion and order, the trial court denied defendants’ motion for summary
disposition. In relevant part, the trial court reasoned that defendants had not provided information
about the actual nature of the trust account, that it was not clear that the transactions were
prohibited, that the penalty for using the funds early would merely be an additional tax, and that
defendants had thus not demonstrated that summary disposition was justified. The order reiterated
that plaintiffs were permitted to file a motion seeking related attorney fees and costs. The trial
court denied defendants’ motion for reconsideration.
Plaintiffs moved for attorney fees and costs. Following a hearing, the trial court granted
plaintiffs’ motion and awarded $14,817 in costs and attorney fees. The court expressed its
reasoning on the record at the hearing. First, the trial court explained:
Good morning. This is the date and time set for a motion for attorney fees
and costs associated with what is the unfortunate procedural history of this case, as
we all know. This matter proceeded to voir dire and initially to the first witnesses
being called in this case. We had a couple days of jury trial at which time prior to
lunch on the second day, Mr. Kuhr indicated that we had an issue related to the real
party in interest, and a 401 K Trust check that Ms. Fronczek Duczynska wrote to
pay the contractor in this matter.
I left the parties to go to lunch and come back and argue case law and
statutes and convince me that somehow this is a pertinent matter in this trial before
this court and not just a matter between Ms. Fronczek Duczynska and the IRS or
the, or the bank or any other injured party or aggrieved party or defrauded party.
There is no question in this case that Mr. Szymborski received the money
from that check. So once the check is written and the money is received by the
Defendant, I struggled to find the relevance of where that check upon which –

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Upon which bank account that check was written. In researching the matter
further, based on the briefs of the parties, I still find that it is not pertinent to our
trial on these facts.
At the time that those discussions happened after lunch on the second day
of trial, Mr. Kuhr was very dug in on behalf of his client that this was dispositive
on many of the issues and certainly in light of the fact that we had during voir dire
given the jury an estimate of how long they might be serving, I found that the delays
that we were experiencing in the trial, this new issue that was causing us some new
issues that were never before the Court during the long, and long awaited, we finally
got a long awaited trial date. This case was very old at the time it went to trial and
never had this matter come up during discovery, even though the check was always
the check.
I made a decision at that time in part because I was concerned about the
eight jurors and their schedules, and not being able to serve a lengthy period of jury
service for a case that I thought could be tried in a few days. And the insistence of
Mr. Kuhr that this was dispositive and that this would substantially affect the trial
of the case.
I saw no recourse but to call a mistrial at that time and open up the cut off
for motions for summary disposition, and that I would hear it as a motion. I gave
you time to file those, the motions. I gave you time to respond, I heard argument
on those motions.
As I told defense counsel and plaintiff counsel, of course at the time of the
trial, at the time of the trial and calling of mistrial, if I stop these proceedings and
if I proceed to a mistrial on the motion made by defendant for a mistrial, and their
insistence that I had a dispositive matter before me, that I would hold them to that
standard of, that I had to do that extraordinary act, and release our eight people who
had been seated, and who had spent a couple days of their lives listening very
tentatively [sic] to this case.
So now we find ourselves today. The motion for summary disposition was
denied. I’m very confident in the ruling that I made. I did get a motion for
reconsideration, and I looked at the matter yet again for any palpable error or need
to change my mind with regard to the decision that I made.
I denied the motion for reconsideration. Now before me, as I told Mr.
Strenger, given that we all spent a substantial period of time getting ready for this
trial and appearing at trial, I made it clear that if this matter came back with a denial
of a dispositive motion on this issue that I would entertain fees and costs wrongfully
incurred by the Plaintiff. These are not contingent matters, these are hourly matters.
This is an hourly matter. So there has been extraordinary costs to these parties
based on this delay and based on the proceedings as they transpired after I called
the mistrial and all of the lost hours in preparation for trial and in trial for. [Sic.]

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I have indicated I would entertain this motion, and I will entertain it now.
The court also explained as follows:
So I in granting the request for leave to file a motion for summary
disposition at that late stage of the game, and calling a mistrial the Court made it
clear that it was going to condition it upon the success of the motion. The amount
of costs that have been expended by the Plaintiff at that time. I am comfortable
with my order at the time I made it, which was that the defense would have to be
successful on this dispositive motion and the claims that they made in order for me
not to award attorney fees and costs wrongfully incurred. I can do that on any
motion if I find that a party has wrongfully incurred attorney fees and costs due to
the actions of the other party. That is always on the table. All right. All right.
As we have already stated above, the trial court granted the motion for fees and costs.
The matter again proceeded to trial, although the second trial was before a different judge.
Defendants prevailed in full obtaining directed verdicts in their favor on some counts and jury
verdicts in their favor on other counts.
Subsequently, defendants filed a motion under MCR 2.612 to set aside the July 12, 2022
order awarding plaintiffs costs and attorney fees. Defendants argued that the trial court was
prohibited from granting costs and attorney fees immediately following a mistrial and where
defendants did not engage in egregious misconduct that could have justified such a sanction.
Defendants further argued that the mistrial was caused by the trial court’s erroneous statement in
front of the jury, that defendants had ultimately prevailed in full on the entire case, and that there
was accordingly no reason to sanction defendants. Notably, it is apparent that defendants
characterized the trial court’s award of costs and attorney fees as being solely based on the mistrial
ruling. Defendants ignored the trial court’s previously expressed reliance on defendants’
unsuccessful motion for summary disposition in imposing the sanction.
The trial court heard oral argument at a hearing on September 11, 2023, and took the matter
under advisement. The court denied the motion in a written opinion and order. First, the trial court
concluded that defendants’ motion was untimely because it was not filed within a reasonable time
because the motion was filed one year after the challenged order was entered and defendants had
ample time to challenge the award of attorney fees and costs as the litigation continued during that
time. Next, the trial court also rejected defendants’ arguments on the merits. The trial court
specifically noted that defendants argued the mistrial was caused by the trial court’s misstatements
in front of the jury. The trial court also seemed to indicate that defendant’s argument did not make
sense because the court would not have sanctioned defendants for the court’s own error.
Furthermore, the trial court specifically stated that it had explained that defendants’ untimely
motion for summary disposition was the cause of the mistrial and that it had informed defendants
that they could be ordered to pay plaintiffs’ attorney fees and costs if defendants’ motion for
summary disposition failed. The trial court denied defendants’ motion for reconsideration.
This Court denied defendants’ delayed application for leave to appeal as lacking merit in
the grounds presented. Fronczek-Duczynska v Total Construction & Renovation LLC,

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unpublished order of the Court of Appeals, entered February 21, 2025 (Docket No. 371641). This
Court also denied reconsideration. Fronczek-Duczynska v Total Construction & Renovation LLC,
unpublished order of the Court of Appeals, entered April 10, 2025 (Docket No. 371641). However,
our Supreme Court subsequently remanded the matter to this Court for consideration as on leave
granted. Fronczek-Duczynska v Total Construction & Renovation LLC, 25 NW3d 374 (2025).
II. ANALYSIS
Defendants argue that the trial court erred by granting attorney fees to plaintiffs because a
trial court is prohibited from awarding costs and attorney fees after granting a mistrial unless the
sanctioned party engaged in egregious misconduct that caused the mistrial. Defendants cite
Persichini v William Beaumont Hosp, 238 Mich App 626, 640-642; 607 NW2d 100 (1999), in
support of this argument. Defendants also argue that costs cannot be assessed immediately
following the grant of a mistrial and that the court was instead required to wait until the final
disposition of the case to award costs. Defendants cite Benmark v Steffen, 374 Mich 155, 165; 132
NW2d 48 (1965), in support.
“[A] court’s inherent power to sanction misconduct and to control the movement of cases
on its docket includes the power to award attorney fees as sanctions when the egregious
misconduct of a party or an attorney causes a mistrial.” Persichini, 238 Mich App at 640-641.
“The ability to impose such sanctions serves the dual purposes of deterring flagrant misbehavior,
particularly where the offending party may have deliberately provoked a mistrial, and
compensating the innocent party for the attorney fees incurred during the mistrial.” Id. at 641.
Furthermore, this Court has explained that it has cited Benmark, 374 Mich 155, for the proposition
that “a trial court cannot assess costs immediately following the grant of a mistrial, but must await
the final disposition of the case.” Persichini, 238 Mich App at 641.
However, the record in the present case indicates that the trial court awarded costs and
attorney fees to plaintiffs for prevailing on defendants’ motion for summary disposition that was
predicated on an issue that the court determined was untimely raised by defendants for the first
time during the second day of trial rather than previously through a timely summary disposition
motion that complied with the court’s scheduling order. Contrary to defendants’ assertions on
appeal, the trial court did not sanction defendants for causing a mistrial. Defendants have thus
failed to accurately address the actual basis for the trial court’s ruling that defendants challenge on
appeal, and defendants therefore have abandoned their claim of error. “When an appellant fails to
dispute the basis of the trial court’s ruling, [t]his Court . . . need not even consider granting
plaintiffs the relief they seek.” Derderian v Genesys Health Care Sys, 263 Mich App 364, 381;
689 NW2d 145 (2004) (quotation marks and citation omitted; alteration and ellipsis in original).
In arriving at this determination, we expressly refrain from opining on the propriety or
correctness of any of the trial court’s rulings discussed herein. Our analysis is confined solely to
the arguments advanced by appellants on appeal. Having carefully reviewed the appellate briefs
and the record, we find that appellants have not articulated any legal error or presented any
argument that would warrant reversal or modification of the judgment below. Accordingly, we
hold that the appellants have failed to establish a basis for appellate relief.

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Affirmed. Plaintiffs having prevailed are entitled to costs. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ Matthew S. Ackerman

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