ROBERT J SCHREINER V ALEXANDER PRESTON
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT J. SCHREINER and LAURA L.
SCHREINER,
UNPUBLISHED
April 12, 2002
Plaintiffs-Appellants,
v
ALEXANDER PRESTON and ANN PRESTON,
No. 226490
Oakland Circuit Court
LC No. 97-001347-CZ
Defendants-Appellees.
Before: Neff, P.J., and Cavanagh and K. F. Kelly, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s denial of their motion for case evaluation
sanctions and the trial court’s calculation of statutory interest and determination of taxable costs.
We reverse.
Plaintiffs leased defendants a home located in Birmingham for several years. As a
condition of the lease, defendants were required to provide a security deposit in the amount of
$3,450. After defendants vacated the home, plaintiffs brought suit for unpaid rent and property
damages. A case evaluation awarded plaintiffs $9,000. Defendants rejected this award and the
case proceeded to trial. After a trial by jury, plaintiffs were awarded $700 in unpaid rent and
$10,220 for property damage.
On appeal, plaintiffs first argue that the trial court erred when it held that plaintiffs could
not tax costs for video depositions that were used by defendants at trial because they were not
filed with the court clerk. We disagree. We review the trial court’s decision to grant or deny
costs for an abuse of discretion. Blue Cross & Blue Shield of Michigan v Eaton Rapids
Community Hosp, 221 Mich App 301, 308; 561 NW2d 488 (1997).
Generally, a prevailing party may be entitled to costs. See MCR 2.625(A)(1). However,
because the power to tax costs is wholly statutory, only costs statutorily authorized may be
recovered. See Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 465; 633 NW2d 418
(2001); Beach v State Farm Mut Auto Ins Co, 216 Mich App 612, 621; 550 NW2d 580 (1996).
The statutory authority allowing costs for depositions of witnesses is MCL 600.2549, which
provides:
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Reasonable and actual fees paid for depositions of witnesses filed in any clerk’s
office and for the certified copies of documents or papers recorded or filed in any
public office shall be allowed in the taxation of costs only if, at the trial or when
damages were assessed, the depositions were read in evidence, except for
impeachment purposes, or the documents or papers were necessarily used.
Consequently, to tax costs for a deposition, including a video deposition, the deposition must
have been filed in a clerk’s office. See Rickwalt, supra at 465-466; Portelli v I R Constr
Products Co, Inc, 218 Mich App 591, 606-607; 554 NW2d 591 (1996); Stevens v Hogue, 85
Mich App 185, 190; 270 NW2d 735 (1978).
Here, plaintiffs argue that the video depositions were “filed in any clerk’s office” because
they were given to the trial court’s clerk. However, as plaintiffs concede, we addressed this
precise argument in Elia v Hazen, 242 Mich App 374, 380-382; 619 NW2d 1 (2000) and held:
Notwithstanding that plaintiffs presented the several deposition transcripts to the
trial judge, who eventually passed them to clerk Kuelbs, the depositions were not
filed in any clerk’s office and, thus, were not filed in accordance with MCL
600.2549; MSA 27A.2549. Consequently, plaintiffs are not entitled to the costs
of those depositions. This conclusion is necessary notwithstanding that “logic
would indicate that depositions used to resolve a case should be taxable . . . .” [Id.
at 382 (citations omitted).]
We are bound by our majority decision in Elia and, therefore, reject plaintiffs’ argument. See
MCR 7.215(H)(1). Further, this Court has consistently held, pursuant to the plain language of
MCL 600.2549, that the cost of a deposition is not taxable when the deposition was not filed in a
court clerk’s office. See Rickwalt, supra at 465; Portelli, supra at 606-607. Although, as
plaintiffs argue, it may appear unfair to allow defendants to avoid the imposition of costs in this
case, as we noted in Portelli, [w]hile logic would indicate that depositions used to resolve a case
should be taxable, we cannot rewrite statutes.” Id. at 607. “The plain, clear, and unambiguous
language of [the statute] indicates that the Legislature intended the taxation of costs only for
depositions filed in a clerk’s office.” Id. Therefore, we conclude that the trial court did not
abuse its discretion when it held that plaintiffs could not recover costs for the video depositions
because they were not filed with the clerk’s office.
Next, plaintiffs argue that the trial court improperly calculated the statutory interest
because the trial court only calculated interest on $7,470, the jury verdict [$10,920] minus the
security deposit [$3,450]. Instead, plaintiffs argue, that the trial court should have calculated
interest on $10,920. We agree. An award of interest pursuant to MCL 600.6013 is reviewed de
novo on appeal. Beach, supra at 623-624.
Pursuant to MCL 600.6013(1), interest is allowed on “a money judgment recovered in a
civil action . . . .” (Emphasis added.) Here, the jury awarded plaintiffs $700 for unpaid rent and
$10,220 for damages to the rental home, for a total award of $10,920. Although the jury verdict
form instructed the jury to subtract $3,450 from the total award to account for the security
deposit, plaintiffs were awarded $10,920. Therefore, plaintiffs were entitled to statutory interest
on $10,920, the amount of the money judgment. This conclusion comports with our holding in
Marina Bay Condominiums, Inc v Schlegel, 167 Mich App 602, 609; 423 NW2d 284 (1988),
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which permitted statutory interest to be awarded although the plaintiff was merely keeping
money that had been held in escrow. Further, defendants’ argument to the contrary, plaintiffs did
not have full and free legal use of the security deposit for several years. See MCL 554.605;
554.613(1) and (2). Therefore, the trial court erred in denying plaintiffs statutory interest on
$10,920.
Next, plaintiffs argue that the trial court erred when it concluded that judgment was not
rendered on a written instrument, thus, they were not entitled to interest under MCL 600.6013(5).
We agree. Statutory interpretation with regard to determining the provision that applies for
purposes of calculating interest on a judgment is subject to de novo review. Yaldo v North
Pointe Ins Co, 457 Mich 341, 344; 578 NW2d 274 (1998).
MCL 600.6013 provides, in pertinent part:
(5) For complaints filed on or after January 1, 1987, if a judgment is rendered on a
written instrument, interest shall be calculated from the date of filing the
complaint to the date of satisfaction of the judgment at the rate of 12% per year
compounded annually, unless the instrument has a higher rate of interest. In that
case interest shall be calculated at the rate specified in the instrument if the rate
was legal at the time the instrument was executed. The rate shall not exceed 13%
per year compounded annually after the date judgment is entered.
(6) Except as otherwise provided in subsection (5) and subject to subsection (11),
for complaints filed on or after January 1, 1987, interest on a money judgment
recovered in a civil action shall be calculated at 6-month intervals from the date of
filing the complaint at a rate of interest that is equal to 1% plus the average
interest rate paid at auctions of 5-year United States treasury notes during the 6
months immediately preceding July 1 and January 1, as certified by the state
treasurer, and compounded annually, pursuant to this section.
The purpose of the interest statute “is to compensate the prevailing party for expenses incurred in
bringing the suit and for any delay in receiving such damages.” Everett v Nickola, 234 Mich
App 632, 638; 599 NW2d 732 (1999). The statute is remedial and should be construed liberally
in favor of plaintiffs. Id. at 638-639. Although the term “written instrument” was not defined by
statute, this Court has held that the term “written instrument” is “an agreement or understanding
reduced to writing as a means of giving formal expression to an act or contract . . . .” Auto Club
Ins Ass’n v State Farm Ins Cos, 221 Mich App 154, 169; 561 NW2d 445 (1997), overruled in
part on other grounds by CAM Constr v Lake Edgewood Condominium Ass’n, ___ Mich ___;
640 NW2d 256 (2002). A written insurance contract has been found to be a written instrument
for purposes of this statutory provision. See Yaldo, supra at 346-347. The term “written
instrument” has also been held to include a no-fault plan and an ERISA based health care plan,
Auto Club Ins, supra at 169, as well as a written fee agreement, Everett, supra at 638-639.
In this case, plaintiffs sought damages for unpaid rent and property damage to which they
were entitled because a landlord/tenant relationship existed between plaintiffs and defendants as
evidenced by a lease. The lease was a formal agreement, reduced to writing, which explained
the rights and responsibilities of plaintiffs as the landlords and defendants as the tenants.
Consequently, plaintiffs were entitled to interest at the rate of twelve percent, pursuant to MCL
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600.6013(5), because judgment was rendered on a written instrument, the lease. Further,
defendants reliance on Charbeneau v Wayne Co General Hosp, 158 Mich App 730, 733; 405
NW2d 151 (1987) is misplaced because, although plaintiffs initially requested interest under
MCL 600.6013(6), they requested interest under MCL 600.6013(5) before the trial court entered
judgment. Therefore, the trial court erred when it ordered the payment of interest under MCL
600.6013(6) instead of MCL 600.6013(5).
Next, plaintiffs argue that the trial court erred in its determination of the time period for
which statutory interest accrued on the judgment pursuant to MCL 600.6013. We agree. Under
MCL 600.6013(5), plaintiffs were entitled to statutory interest “calculated from the date of filing
the complaint to the date of satisfaction of the judgment at the rate of 12% per year . . . .”
(Emphasis added.) Consequently, plaintiffs were entitled to statutory interest from November
12, 1997, the date the complaint was filed, until the judgment, dated March 27, 2000, was
satisfied. Contrary to defendants’ arguments on appeal, MCL 600.6013(5) governs the time
period used to calculate statutory interest, not MCR 2.403(O)(3). Further, the record reveals that
plaintiffs made every attempt to move the litigation forward and, in fact, moved for entry of
judgment on at least two occasions; thus, they are entitled to the entire amount of interest
accrued. See Eley v Turner, 193 Mich App 244, 247; 483 NW2d 421 (1992). Therefore, we
remand to the trial court to recalculate the interest due to plaintiffs, pursuant to MCL
600.6013(5), abating the interest for the period that the matter has been on appeal. See Dedes v
Asch, 233 Mich App 329, 340; 590 NW2d 605 (1998).
Finally, plaintiffs argue that the trial court erred in denying their request for case
evaluation sanctions. We agree. Our review of the trial court’s decision to award or deny case
evaluation sanctions is de novo. Elia, supra at 376-377.
A party that rejects a case evaluation and then fails to improve its position at trial is
subject to sanctions. Id. at 378. MCR 2.403(O), the court rule pertaining to case evaluation
sanctions, provides in part:
(1) If a party has rejected an evaluation and the action proceeds to verdict, that
party must pay the opposing party’s actual costs unless the verdict is more
favorable to the rejecting party than the case evaluation.
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(3) For the purpose of subrule (O)(1), a verdict must be adjusted by adding to it
assessable costs and interest on the amount of the verdict from the filing of the
complaint to the date of the case evaluation, and, if applicable, by making the
adjustment of future damages as provided by MCL 600.6306; MSA 27A.6306.
After this adjustment, the verdict is considered more favorable to a defendant if it
is more than 10 percent below the evaluation, and is considered more favorable to
the plaintiff if it is more than 10 percent above the evaluation.
In this case, the case evaluation awarded plaintiffs $9,000. After a jury trial, plaintiffs
were awarded $700 in unpaid rent and $10,220 for damages to the rental home, totaling $10,920.
However, the trial court improperly compared an adjusted jury verdict of $7,470 [$10,920 minus
the security deposit of $3,450] to $8,100 [the $9,000 case evaluation reduced by ten percent] and
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denied case evaluation sanctions. MCR 2.403(O)(3) clearly provides that to determine if case
evaluation sanctions are appropriate “a verdict must be adjusted by adding to it assessable costs
and interest on the amount of the verdict from the filing of the complaint to the date of the case
evaluation . . . .” Consequently, comparing the $10,920 jury award to the case evaluation, it is
clear that defendants did not improve their position at trial. Accordingly, plaintiffs were entitled
to case evaluation sanctions.1
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Janet T. Neff
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
1
We note that costs and interest are typically added to the verdict to determine if case evaluation
sanctions are appropriate. MCR 2.403(O)(3). However, in this case, even before costs and
interest are added, it is clear that plaintiffs are entitled to case evaluation sanctions.
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