G & V INC V ABDULLAH AL-JUFAIRI
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STATE OF MICHIGAN
COURT OF APPEALS
G & V INC., L & Z PROPERTIES LLC,
GEORGE DUZEY, ZIRKA DUZEY, VASYLY
SHIBANOV, and LIDIA SHIBANOV,
UNPUBLISHED
November 6, 2007
Plaintiffs-Appellants/CrossAppellees,
v
ABDULLAH AL-JUFAIRI, JUMANA JUDEH,
JUDEH
&
ASSOCIATES,
MUNTHER
MAWWAS, NEW HAVEN PETRO MART LLC,
SALEH D’ANDREA & MULLIN PLC,
BUSINESS LOAN EXPRESS, and PATRICK
HARRINGTON,
No. 271246
Macomb Circuit Court
LC No. 2003-000562-CZ
Defendants,
and
MULLIN & ASSOCIATES PLC and TURKIA
AWADA MULLIN,
Defendants-Appellees/CrossAppellants.
Before: Cavanagh, P.J., and Donofrio and Servitto, JJ.
PER CURIAM.
Plaintiffs appeal as of right from a jury verdict finding in their favor as to liability, but
awarding them $0 in damages. Mullin & Associates PLC and Turkia Awada Mullin (hereinafter
“defendants”) cross-appeal, challenging the trial court’s denial to award them costs as the
prevailing party and asserting that in the event plaintiffs prevail on their appeal, plaintiffs should
be precluded from presenting or relying upon certain evidence in a new trial. We affirm.
This matter arises out of a transaction involving the sale of a New Haven gas station to
plaintiffs. Plaintiffs alleged that the various defendants (individually and together) misled them
with respect to the profitability and value of the gas station. Plaintiffs also alleged that certain of
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the defendants including Mullin and Mullin and Associates PLC (the Mullin defendants), who
plaintiffs hired as legal counsel to represent their interests in the purchase of the gas station,
committed malpractice and breached fiduciary duties owed to plaintiffs. According to plaintiffs,
the combined actions of all defendants caused them to suffer damages as a result of their
purchase. During the pendency of the action, plaintiffs settled with some defendants and others
parties and claims were dismissed, leaving only plaintiffs’ claim for professional
negligence/malpractice against the Mullin defendants to be resolved at trial.
At the close of
trial, the jury returned a verdict finding that the Mullin defendants were professionally negligent,
but that plaintiffs suffered no damages. These appeals followed.
On appeal, plaintiffs first contend that the trial court erred in admitting evidence of
plaintiffs’ settlement with other defendants at trial. A trial court's decision to admit evidence is
reviewed for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
However, when the trial court's decision to admit evidence involves a preliminary question of
law, the issue is reviewed de novo, and admitting evidence that is inadmissible as a matter of law
constitutes an abuse of discretion. Id. An abuse of discretion occurs when the decision results in
an outcome falling outside the range of principled outcomes. Maldonado v Ford Motor Co, 476
Mich 372, 388; 719 NW2d 809 (2006). That evidence is inadmissible for one purpose does not
render it inadmissible for other purposes. See People v Sabin (After Remand), 463 Mich 43, 56;
614 NW2d 888 (2000).
In a motion in limine prior to trial, plaintiffs sought to exclude testimony concerning
plaintiffs’ sale of the gas station in 2004. The trial court denied the motion and apparently
verbally indicated the evidence could be admitted on the issue of the amount of damages to
which plaintiffs would be entitled. During trial, the court indicated that the 2004 price plaintiffs
received for the property could be referenced in connection with the price they paid for the gas
station in 2001.
Plaintiffs argue that the 2004 sale was part of a negotiated settlement with defendants
Business Loan Express (BLX) and Patrick Harrington and is not only irrelevant to the issues of
liability and damages, but also inadmissible as evidence pursuant to MRE 408. According to
plaintiffs, the settlement was based on negotiations exclusively with BLX and Harrington and
plaintiffs did not know who the buyer was until closing. Plaintiffs also assert that defendants
offered no evidence showing an appraisal connected with the sale, nor any other evidence that
would establish that the 2004 sale price represented the fair value of the business.
Defendants, however, insist that BLX and Harrington used the prospect of a potential
buyer for the gas station to settle their claims with plaintiffs. According to defendants, because
BLX and Harrington did not purchase the gas station from plaintiffs to settle their claims, the
actual sale was a transaction distinguishable from the settlement and thus not subject to MRE
408. To decide this issue requires that we start with the preliminary question of whether
plaintiffs’ sale of the gas station to a third party qualifies as an element of their settlement with
other defendants.
MRE 408 provides, in relevant part:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or
offering or promising to accept, a valuable consideration in compromising or
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attempting to compromise a claim which was disputed as to either validity or
amount, is not admissible to prove liability for or invalidity of the claim or its
amount. . .This rule. . . does not require exclusion when the evidence is offered
for another purpose, such as proving bias or prejudice of a witness. . .
It is undisputed that BLX and Harrington agreed to and provided a third-party buyer for
the gas station. Because providing a potential buyer for the gas station could be considered
valuable consideration rendered by BLX and Harrington in exchange for the dismissal of
plaintiffs’ claims against them, providing a buyer was obviously an element of these parties’
settlement. Not knowing the exact terms of these parties’ settlement agreement, it is more
difficult to establish whether the actual sale of the business and the price paid for the same were
a specific condition or element of the settlement. There is, however, no claim or evidence that
BLX or Harrington purchased the gas station from plaintiffs. Where neither BLX nor Harrington
paid plaintiffs for the gas station, whether the price plaintiffs received for the 2004 sale was an
actual element of the settlement is thus doubtful.
Even if the sale price were viewed as part of the settlement, we would nevertheless find
that the trial court did not abuse its discretion in allowing this evidence to be admitted. MRE
408 does not require exclusion when evidence of the settlement of a claim is offered for a
purpose other than proving “liability for or invalidity of the claim or its amount.” Here, the
evidence of the other defendants’ settlement with plaintiffs was not being offered to prove BLX
and Harrington’s liability for or invalidity of plaintiffs’ claim or the amount of plaintiffs’ claim
against them. The primary issues at trial were whether defendants were negligent, whether their
negligence caused plaintiffs to suffer damages, and, if so, the amount of damages plaintiffs were
entitled to recover. The evidence of the sale price was offered as evidence to support
defendants’ assertion that the purchase price paid in 2001 was consistent with the value of
property and that plaintiffs thus suffered no damages. The 2004 sale price not being offered for a
precluded purpose, it was not inadmissible under MRE 408.
Plaintiffs additionally assert that the amount they received for the sale was not relevant to
the issue of damages, in part because the price they received for the gas station may not reflect
the actual value of the business, but rather, the value of Harrington and BLX having their claims
settled with plaintiffs. However, it cannot be ignored that plaintiffs negotiated with BLX and
Harrington to sell the gas station to a third party. There would be no reason for plaintiffs to
accept from a third-party (and a third-party to pay) an amount that plaintiffs knew/believed to not
accurately reflect the value of the gas station.
In addition, plaintiffs’ damages are comprised of two components: (1) the difference
between what they paid for the gas station ($2.6 million) and what they claim the gas station was
actually worth ($1.75 million); and, (2) lost wages. The 2004 price could conceivably be
relevant to both. Lost wages would only be recoverable for that period that plaintiffs owned the
gas station. The jury, then, had to be made aware that plaintiffs sold the gas station in 2004 and
the question of whether plaintiffs were compensated in the sale for their lost wages would
logically follow.
The jury was also made aware, through the testimony of an expert at trial that at least one
method of valuing a business requires a review of the actual transactions for the purchase and
sale of the business that had recently occurred. The price paid for the gas station in 2004 could
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thus be relevant to the appropriate sale price for the gas station in 2001. To ensure that evidence
of the 2004 sale was considered for that purpose only, the trial court gave the jury a cautionary
instruction:
Now, during the case you heard evidence regarding the 2004 sale of the
New Haven gas station in connection with the Plaintiffs’ settlement of claims with
former Defendants. This evidence is relevant only as to the sole issue of whether
or not the 2001 purchase price of 2.6 million was the actual market value at the
time Plaintiffs purchased it. You are to make no credit or deduction to the amount
of damages, if any, Plaintiffs are entitled to—are entitled to based on the 2004
sale.
Additionally, the trial court did not rule that all information concerning the settlement
between plaintiffs and BLX and Harrington was admissible. Rather the trial court only allowed
evidence of the 2004 sale price to be admitted, and for the limited purpose of assisting in a
determination of whether the plaintiffs overpaid for the gas station in 2001. Plaintiffs or
defendants could, therefore, have elicited testimony that the property was sold in 2004 for a
specific price, without delving into whether the sale was part of a settlement with other
defendants or revealing the details of the settlement. Instead, it was plaintiffs’ counsel, in his
opening statement, who first referenced a settlement. Counsel stated, “Now, you will hear
evidence that the plaintiffs sold the business in August 2004. The plaintiffs will tell you that
came about as a result of a settlement with former defendants in this case.” Plaintiffs’ counsel
then posed questions to plaintiff Vasyly Shibanov on direct examination which led to the jury
being excused and an admonishment by the judge that he was not going to let counsel go into the
details of the settling defendants’ and plaintiffs’ negotiations leading up to the sale of the
property. Plaintiffs’ counsel then continued to question Shibanov:
Q.
Harrington?
With respect to the sale in August 2004, were there negotiations with Defendant
A. Yes.
Q. Were you a participant in those negotiations?
A. Yes.
Q. Was an offer made to you to settle this case by Defendant Harrington?
A. Yes.
Q. As a result of the settlement offer from Mr. Harrington, was a buyer for the
property produced?
A. Yes.
...
Q. For the business, how much was put down for the value of, how much did the
buyers pick for the value of (inaudible)?
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A. $2,150,000.00
Q. On top of that, did you get other money?
A. I think we got the money to pay the lawyer’s fee. . .
Q. Did they pick up a liability on taxes?
A. Yes. Yeah, we’d been behind in the taxes, I believe it was about $60,000.00
and was part of agreement they gonna, they gonna pay. . .
Plaintiffs’ counsel thereafter elicited further information from Shibanov regarding the details of
the settlement. While appellate counsel contended at oral argument that he was allowed to
introduce such information without waiving an appellate review of the same, the quotation
provided by plaintiffs on this issue does not match the citing reference. Moreover, the settlement
information was not elicited in rebuttal to any evidence provided by defendants, but was
introduced by plaintiffs on direct examination.
“A party is not allowed to assign as error on appeal something which his or her own
counsel deemed proper at trial since to do so would permit the party to harbor error as an
appellate parachute.” Dresselhouse v Chrysler Corp, 177 Mich App 470, 477; 442 NW2d 705
(1989). Accordingly, because plaintiffs’ counsel elicited testimony concerning plaintiffs’
settlement with BLX and Harrington that went far beyond the admission of the 2004 purchase
price deemed admissible for a limited purpose by the trial court, plaintiffs cannot assert on
appeal that the trial court should not have allowed admission of evidence concerning a term of
the parties’ settlement. The trial court did not abuse its discretion in allowing the 2004 sale price
to be admitted into evidence.
Plaintiffs next contend that the trial judge erred in admitting the opinions of defendants’
economic expert into evidence when there was no Daubert/Craig1 inquiry, and where the
opinions were purely subjective, not based on any recognized economic theory, and did not meet
the admissibility requirements of Michigan law. We disagree.
Expert testimony is admitted pursuant to MRE 702, which states:
If the court determines that scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
1
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 SCt 2786; 125 Led2d 469
(1993), and Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 82; 684 NW2d 296 (2004).
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Under MRE 702, the trial court has an independent obligation to review all expert
opinion testimony in order to ensure that the opinion testimony is rendered by a “qualified
expert,” that the testimony would “assist the trier of fact,” and that the opinion testimony meets
the three criteria set forth in MRE 702. Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 82;
684 NW2d 296 (2004). “While a party may waive any claim of error by failing to call this gate
keeping obligation to the court's attention, the court must evaluate expert testimony under MRE
702 once that issue is raised.” Id. The proponent of expert opinion testimony bears the burden of
proving that the contested opinion is based on generally accepted methodology. Gilbert v
DaimlerChrysler Corp, 470 Mich 749; 685 NW2d 391 (2004).
Plaintiffs’ first assignment of error begins with the incorrect assumption that Craig,
supra, requires a hearing every time an expert’s opinion is contested. In determining whether a
hearing regarding expert opinion was warranted, the Craig court stated:
Therefore, a Davis-Frye hearing was more than justified in light of the
information before the trial court when it ruled on defendant's motion in limine.
The proponent of expert opinion testimony bears the burden of proving that the
contested opinion is based on generally accepted methodology. Because there was
no evidence to indicate that Dr. Gabriel's theory was anything but novel, the trial
court was required to conduct the Davis-Frye inquiry requested by defendant.
Craig, then, stands for the proposition that if the proponent of expert opinion testimony
does not meet its burden of providing evidence that the opinion meets the criteria in MRE 702, a
hearing is justified.
In their motion to exclude McAuliffe’s testimony, plaintiffs asserted that McAuliffe’s
valuation of the gas station was flawed and his deposition testimony contains inconsistencies,
which demonstrate the unreliability of his opinions. Plaintiffs indicated that the weighted
average cost of capital approach was a proper method of valuation, but that McAuliffe used
incorrect data and/or used the data improperly in using this method to reach his conclusions.
Plaintiffs attached no exhibits that supported their assertions.
In their responsive motion, defendants addressed each flaw and inconsistency put forth
by plaintiffs, attaching portions of McAuliffe’s deposition testimony to support their response.
The deposition transcripts detailed that McAuliffe had been a CPA since 1976 and he performs
purchase investigations for companies seeking to acquire business, including determining the
value of the businesses. McAuliffe testified at deposition that he has appeared in federal court as
an expert and that he has provided opinions to clients with respect to the value of retail
operations, including gas stations. McAuliffe identified in his deposition the method he used to
value the gas station at issue (the weighted average cost of capital approach), and provided a
line-by-line explanation of the figures he used in the valuation, where he obtained those figures,
and why they were relevant.
The trial court opined that it could see nothing outrageous about McAuliffe’s opinions
that would justify excluding them. At a later hearing, the trial court stated that he felt there was
enough information contained in the parties’ briefs to make a determination regarding
McAuliffe’s testimony and that it appeared the issue was more in line with the weight of
McAuliffe’s testimony rather than its admissibility. The trial court, then, clearly reviewed the
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challenged opinions, the data underlying the expert testimony, and the manner in which the
expert interpreted and applied the data and concluded that the opinions were based upon reliable
principles and methodology. Because defendants provided sufficient information to establish
that McAuliffe’s opinions were reliable, a hearing was not necessarily required in order for the
trial court to perform its gate-keeping role with respect to expert testimony.
Moreover, given the evidence and the fact that the trial court properly reviewed the
challenges to McAuliffe’s testimony, we find no error in the court’s implicit conclusion that
McAuliffe’s testimony was based on sufficient facts or data, was the product of reliable
principles and methods, and that the principles and methods were applied reliably to the facts of
the case. We find no error in the trial court’s determination that the challenges to McAuliffe’s
testimony go to the weight, rather than the admissibility of the testimony and thus find that the
trial court did not abuse its discretion in allowing McAuliffe’s testimony.
Additionally, in their motion in limine, plaintiffs requested that McAuliffe be excluded
from testifying or, alternatively, that plaintiffs be allowed to present the testimony of their
stricken expert witness, Charles Esser, to testify in rebuttal to McAuliffe. As discussed below,
Esser was permitted to testify as a rebuttal witness, thus providing plaintiffs with their
alternatively requested relief. Were there any error in admitting McAuliffe’s testimony, then,
plaintiffs were provided adequate remedy in the form of an ability to challenge or discredit
McAuliffe’s testimony through their own expert.
Plaintiffs next contend that they were prejudiced by the trial court’s refusal to allow them
to add an expert witness after the witness list filing deadline, and are thus entitled to a new trial.
We disagree.
This Court will not disturb a trial court's decision regarding whether to permit a witness
to testify, after a party has failed to comply with a deadline for submission of a witness list,
absent an abuse of discretion. Carmack v Macomb County Community College, 199 Mich App
544, 546; 502 NW2d 746 (1993). Among the factors that should be considered in determining
the appropriate sanction for discovery violations are: (1) whether the violation was wilful or
accidental, (2) the party's history of refusing to comply with discovery requests (or refusal to
disclose witnesses), (3) the prejudice to the defendant, (4) actual notice to the defendant of the
witness and the length of time prior to trial that the defendant received such actual notice, (5)
whether there exists a history of plaintiff engaging in deliberate delay, (6) the degree of
compliance by the plaintiff with other provisions of the court's order, (7) an attempt by the
plaintiff to timely cure the defect, and (8) whether a lesser sanction would better serve the
interests of justice. Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571 (1990).
MCR 2.401(I) provides, in part, “no later than the time directed by the court under
subrule (B)(2)(a), the parties shall file and serve witness lists. . .”
(2) The court may order that any witness not listed in accordance with this rule
will be prohibited from testifying at trial except upon good cause shown.
Id.
Here, the trial court extended the dates by which the parties were required to file their
witness lists and the discovery cut-off date on several occasions. The last extension with respect
to witness lists provided that plaintiffs’ witness list was to be filed by July 16, 2004. Plaintiffs
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filed several witness lists throughout the course of this matter, but filed a fourth amended witness
list on January 14, 2005, adding several experts they intended to call at trial. This witness list
was clearly filed beyond the date set by trial court and, in fact, beyond the scheduled discovery
cut-off date of December 15, 2004. The trial court ruled that the newly added expert witnesses
were not going to be allowed to testify at trial and their names were stricken from plaintiffs’
witness list.
While striking a plaintiff’s experts is generally a harsh sanction, we can find no abuse
of the court’s discretion under the present circumstances. At the hearing on defendants’ motion
to strike, plaintiffs indicated that only two of the experts on the untimely witness list were
“new”: Mr. Bornsdorf (identified as an “additional” legal malpractice expert, as plaintiffs listed a
legal malpractice expert in their timely filed witness lists), and Charles Esser. Defendants
asserted at the hearing that they based decisions as to how to handle the case on the witnesses
listed on the prior, timely filed witness lists. Defendants further asserted that it appeared that
plaintiffs were now going to rely on the testimony of one particular expert listed on the untimely
witness list, Charles Esser, to establish an entirely new theory for damages. The trial court
clearly took the above into account and implicitly found that defendants would be prejudiced if
these untimely identified witnesses were allowed to testify. In addition, plaintiffs have provided
no explanation whatsoever, let alone good cause, for failing to identify these experts in prior
witness lists.
More importantly, despite the trial court’s ruling, it nevertheless allowed plaintiffs to call
Esser as a rebuttal witness. Esser testified extensively as to his credentials and the proper
methods for valuing a business, and provided testimony refuting that of defendants’ experts
concerning plaintiffs’ claimed damages. Plaintiffs have thus not shown any prejudice suffered
by virtue of the trial court’s written order striking their experts’ testimony.
Plaintiffs next claim that they are entitled to a new trial because the jury’s verdict was
based on passion or prejudice. Plaintiffs contend that this is the only reasonable conclusion,
given that the jury found that defendants were professionally negligent, but awarded plaintiffs no
damages. Plaintiffs devote only two short paragraphs to this argument, providing little analysis
and citing no binding authority to support their claim. It is not enough for an appellant to simply
announce a position or assert an error in his brief and then leave it up to this Court to discover
and rationalize the basis for his claims, or elaborate for him his arguments, and then search for
authority either to sustain or reject his position. Yee v Shiawassee Co Bd of Comm'rs, 251 Mich
App 379, 406; 651 NW2d 756 (2002).
Briefly addressing this claim despite plaintiffs’ failure to adequately address the issue, we
note that there is no legal requirement that a jury award damages simply because liability was
found. Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001). Indeed, the
plaintiff bears the burden of proving damages, and a jury is free to accept or reject such proofs.
Id. at 172-173. Moreover, a jury's verdict is to be upheld, even if it is arguably inconsistent, “[i]f
there is an interpretation of the evidence that provides a logical explanation for the findings of
the jury.” Granger v Fruehauf Corp, 429 Mich 1,7; 412 NW2d 199 (1987). In deciding whether
to grant a new trial, a circuit court must “make every effort to reconcile the seemingly
inconsistent verdicts.” Lagalo v Allied Corp, 457 Mich 278, 282; 577 NW2d 462 (1998).
Further, such an effort “requires a careful look, beyond the legal principles underlying the
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plaintiff's causes of action, at how those principles were argued and applied in the context of this
specific case.” Id. at 284-285.
Here, the jury could have found defendants professionally negligent for several reasons.
They could have, for example found the testimony that Mullin did not adequately disclose her
relationship with Al-Jufairi to plaintiffs and that her relationship with Al-Jufairi negatively
impacted her ability to properly represent plaintiffs in the gas station purchase convincing. The
jury could also have found the testimony that defendants were negligent in failing to disclose
information about the stability of the gas station to plaintiffs credible. There is adequate
evidence in the record, however, that would nevertheless allow the jury to find that plaintiffs’
claimed damages were not incurred as a result of defendants’ negligence.
Plaintiffs claimed essentially two categories of damages: (1) the difference between the
price they paid for the gas station and the actual value of the business; and, (2) lost profits.
Testimony at trial established that the $2.6 million price plaintiffs paid for the gas station was
negotiated/agreed to between plaintiffs and Al-Jufairi prior to plaintiffs ever meeting defendants.
Testimony also established that defendants other than the Mullin defendants made certain
representations to plaintiffs as to the profitability and value of the business, and that plaintiffs
paid a significant deposit to Al-Jufairi and applied for financing to purchase the business before
defendants became involved. While plaintiffs testified that defendants told them the gas station
was a good deal and was profitable, defendants essentially denied making such assurances to
plaintiffs. The jury was free to believe defendants’ testimony and conclude that while
defendants may have been professionally negligence, it was not the professional negligence that
led to plaintiffs’ claimed damages.
Plaintiffs not being entitled to a new trial, the only issue on cross-appeal requiring
resolution is defendants’ assertion that the trial court erred in determining that they were not the
prevailing parties under MCR 2.625 and were therefore not entitled to costs or alternatively, that
the trial court abused its discretion in refusing to award costs to defendants in this matter. We
disagree.
The determination whether a party is a “prevailing party” under MCR 2.625 is a question
of law. Klinke v Mitsubishi Motors Corp, 219 Mich App 500, 520-521; 556 NW2d 528 (1996).
This Court reviews legal questions de novo. Id.
MCR 2.625(A)(1) provides:
Costs will be allowed to the prevailing party in an action, unless prohibited by
statute or by these rules or unless the court directs otherwise, for reasons stated in
writing and filed in the action.
MCR 2.625(B)(2) further provides guidance in determining the prevailing party:
In an action involving several issues or counts that state different causes of action
or different defenses, the party prevailing on each issue or count may be allowed
costs for that issue or count. If there is a single cause of action alleged, the party
who prevails on the entire record is deemed the prevailing party.
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MCR 2.403(O)(6)(b) (governing case evaluation) maintains that for purposes of
determining taxable costs under that subrule and MCR 2.625, the party entitled to recover actual
costs under MCR 2.403 is to be considered the prevailing party. The party entitled to recover
actual costs under MCR 2.403 is provided for at MCR 2.403(O)(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 case evaluation. However, if the opposing party has also
rejected the evaluation, party is entitled to costs only if the verdict is more
favorable to that party than the case evaluation.
According to Forest City Enterprises, Inc v Leemon Oil Co, 228 Mich App 57, 81; 577 NW2d
150 (1998), MCR 2.625(B)(2) and MCR 2.403(O)(6) are to be read together such that the party
entitled to actual costs under the case evaluation rule for a cause of action shall also be deemed
the prevailing party under MCR 2.625(B)(2) on the entire record.
Here, it is undisputed that the case evaluation award was $96,500.00 in favor of plaintiffs
and against defendants. It is also undisputed that plaintiffs accepted the award, while defendants
rejected the award. Determining whether either is the prevailing party proves to be difficult,
however, as the case evaluation award was rendered when plaintiffs had several active claims
against defendants. The case evaluation award encompassed all of the active claims against
defendants as a whole, with no division of the award into specific amounts applicable to each
claim. The only claim that proceeded to trial and was thus the subject of the jury verdict, though,
was the professional negligence/legal malpractice claim, as the remaining claims were settled or
otherwise disposed of prior to and during the course of trial.
The above being true, it is impossible to determine whether the verdict was more
favorable to the defendants than the case evaluation award such that they could be deemed the
prevailing party for purposes of MCR 2.403. It is plausible that none of the case evaluation
award was attributable to the malpractice claim, which would result in defendants not bettering
their position at trial and thus not being considered the prevailing party. It is equally possible
that the award was entirely for plaintiffs claim of legal malpractice, in which case, an award of
no damages in the jury verdict would be more favorable to defendants and thus allow them to
recover their costs. Taking into account that the award of costs under MCR 2.625 is
discretionary (“. . . the award of taxable costs to the prevailing party is within the trial court's
discretion,” Allard v State Farm Ins Co, 271 Mich App 394, 403; 722 NW2d 268 (2006)), we
find no error or abuse of discretion in the trial court’s refusal to award costs under the
circumstances.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
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