DEPT OF TRANSPORTATION V KPS ENTERPRISES INC
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STATE OF MICHIGAN
COURT OF APPEALS
MICHIGAN DEPARTMENT OF
TRANSPORTATION,
UNPUBLISHED
February 2, 2001
Plaintiff-Appellant,
v
No. 216285
Macomb Circuit Court
LC No. 91-000619-CC
KPS ENTERPRISES, INC.,
Defendant-Appellee.
Before: Talbot, P.J., and O’Connell and Cooper, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order awarding defendant $35,300 in expert witness
fees. This case arises out of a condemnation action pursuant to the Uniform Condemnation
Procedures Act (UCPA), MCL 213.51 et seq.; MSA 8.265(1) et seq. We affirm in part, reverse
in part, and remand for further factual findings.
Plaintiff first argues that the trial court abused its discretion in determining that $200.00
per hour was a reasonable fee for the services of defendant’s expert, William Walsh. We
disagree.
We review for an abuse of discretion a trial court’s award of expert witness fees in a
condemnation action. Dep’t of Transportation v Schultz, 201 Mich App 605, 609; 506 NW2d
904 (1993). An abuse of discretion exists if an unprejudiced person, considering the facts on
which the trial court acted, would find no justification or excuse for the ruling, Auto Club Ins
Ass’n v State Farm Ins, 221 Mich App 154, 167; 561 NW2d 445 (1997), or the result is so
violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias,
Schoensee v Bennett, 228 Mich App 305, 314-315; 577 NW2d 915 (1998).
The testimony presented at trial supported the court’s decision to award this hourly rate.
During the hearing, Walsh testified that he routinely charged $200.00 per hour for his services.
Plaintiff’s witness, in contrast, opined that the fee was excessive. However, this witness also
admitted that some appraisers, albeit a minority, charged $200.00 per hour. Given that Walsh
had forty-four years of experience as a real estate appraiser, taught preliminary and advanced
appraising at two universities and a management school, and had been called in by roughly fifty
municipalities (as well as plaintiff) to perform appraisals on a number of large condemnation
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projects, we conclude that the trial court did not abuse its discretion in ruling that Walsh was one
of the minority of appraisers worth $200.00 per hour. Moreover, as the trial court noted, one of
plaintiff’s experts charged a similar amount for his services. Although this expert’s credentials
and appraisal methods were not entirely similar to defendant’s, plaintiff’s expert did bill himself
at trial as an expert in the valuation of real property. Thus, we find no abuse of discretion with
respect to this issue.
Plaintiff also challenges the trial court’s decision to award the entire amount of Walsh’s
fees to defendant. After examining the evidence presented at the hearing below, we agree in part.
The relevant portion of MCL 213.66; MSA 8.265(16) provides:
(1) Except as provided in this section, an ordinary or expert witness in a
proceeding under this act shall receive from the agency the reasonable fees and
compensation provided by law for similar services in ordinary civil actions in
circuit court, including the reasonable expenses for preparation and trial.
***
(5) Expert witness fees provided for in subsection (1) and this subsection
shall be allowed with respect to an expert whose services were reasonably
necessary to allow the owner to prepare for trial. For the purpose of subsection
(1) and this subsection, for each element of compensation, each party is limited to
1 expert witness to testify on that element of compensation unless, upon showing
of good cause, the court permits additional experts. The agency’s liability for
expert witness fees shall not be diminished or affected by the failure of the owner
to call an expert as a witness if the failure is caused by settlement or other
disposition of the case or issue with which the expert is concerned.
This Court has interpreted these sections as mandating an award of reasonable expert
witness fees. Schultz, supra at 609; Hartland Twp v Kucykowicz, 189 Mich App 591, 599; 474
NW2d 306 (1991); Macomb Co Rd Comm v Fisher, 170 Mich App 697, 699-700; 428 NW2d
744 (1988). However, the burden of proving what constitutes a reasonable expert fee lies with
the claimant. In re Condemnation of Property, 209 Mich App 336, 339; 530 NW2d 183 (1995);
Detroit v Lufran Co, 159 Mich App 62, 68; 406 NW2d 235 (1987). In addition, an expert is not
automatically entitled to compensation for all services rendered. Hartland Twp, supra at 599.
Experts are properly compensated for court time and the time required to prepare for their
testimony; however, any appraisal service that goes beyond the scope of the type of services that
a person in that profession would normally render are not compensable. Schultz, supra at 609.
As this Court stated in Lufran Co:
We believe that, read in the conjunctive, experts are properly compensated
under MCL 213.66; MSA 8.265(16) for court time and the time required to
prepare for their testimony as experts, i.e., as individuals whose specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue. MRE 702. See State Highway Comm’r v Rowe, 372 Mich 341, 343;
126 NW2d 702 (1964). Therefore, we do not regard conferences with counsel for
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purposes such as educating counsel about expert appraisals, strategy sessions, and
critical assessment of the opposing party’s position to be properly compensable as
expert witness fees. [Lufran Co, supra at 67.]
The trial court must provide specific findings of fact and provide sufficient reasons for its
determinations regarding awarded fees in order to provide a basis for review. Its failure to do so
will result in a remand for further explanation. Hartland Township, supra at 599; Wayne Co Bd
of Rd Comm’rs v GLS Leasco, Inc, 394 Mich 126, 142-143; 229 NW2d 797 (1975).
After reviewing the evidence presented at trial, we conclude that the court below erred in
awarding the entire amount of Walsh’s charged services. First, Walsh failed to explain what
services he actually rendered on September 25 and 26, 1993, for which he billed seven hours.
Second, other entries strongly suggest that he may have provided non-compensable “strategy”
services on a number of occasions during meetings with trial counsel.
In sum, the trial court at least partially erred in awarding Walsh’s fees. Given the
complexity of the situation, particularly defendant’s need to refute the evidence plaintiff
presented at trial, we do not disagree with the trial court that many of Walsh’s services were
reasonably necessary to allow defendant to properly prepare for trial. In addition, some of the
billing was detailed enough to support a decision that the expert’s services were properly
compensable under Lufran Co, supra. However, that the trial court gave little analysis regarding
this issue, as well as the possible errors with respect to at least a portion of the award, lead us to
conclude that the trial court abused its discretion in awarding defendant the entire amount of
Walsh’s witness fees. Therefore, we reverse the decision of the trial court and remand so that the
court may provide a detailed analysis in a written opinion.
Affirmed in part, reversed in part, and remanded for further consideration consistent with
this opinion. The trial court is directed to hear and decide the matter and make its findings in a
written opinion within sixty days of the date of this opinion. We retain jurisdiction.
/s/ Michael J. Talbot
/s/ Peter D. O’Connell
/s/ Jessica R. Cooper
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