HEBAT BADIEE V BRIGHTON AREA SCHOOLSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
March 1, 2005
SPARTAN TECHNICAL SERVICES, INC, d/b/a
Livingston Circuit Court
LC No. 01-18676-CK
BRIGHTON AREA SCHOOLS,
GEORGE W. AUCH COMPANY,
SPARTAN TECHNICAL SERVICES, INC, d/b/a
Livingston Circuit Court
LC No. 01-18676-CK
BRIGHTON AREA SCHOOLS,
GEORGE W. AUCH COMPANY,
SPARTAN TECHNICAL SERVICES, INC, d/b/a
Livingston Circuit Court
LC No. 01-18676-CK
BRIGHTON AREA SCHOOLS,
Official Reported Version
GEORGE W. AUCH COMPANY,
Before: Griffin, P.J., and Saad and O'Connell, JJ.
In Docket No. 247437, defendant George W. Auch Company (Auch) appeals from an
order that granted summary disposition in favor of plaintiff Spartan Technical Services, Inc.,
doing business as Laser Electric (Laser), with respect to Auch's counterclaim for contractual
indemnity. In Docket No. 248270, Laser and plaintiff Hebat Badiee appeal from the trial court's
judgment in favor of Auch and defendant Brighton Area Schools (BAS) on all of plaintiffs'
claims in the instant action. In Docket No. 249881, plaintiffs appeal from the trial court's order
that awarded defendants costs and case-evaluation sanctions. These three cases were
consolidated on appeal,1 and we affirm the trial court's orders.
I. FACTS AND PROCEDURAL HISTORY
BAS entered into a contract with Auch on November 20, 1998, under which Auch would
act as construction manager for the renovation or new construction of seven schools in the
Brighton area. In the fall of 1999, Laser, of which Badiee is executive vice president,2 bid for
and was awarded seven separate contracts to do the electrical work at the seven schools. The
total combined contract price was approximately $1.1 million.
To accommodate the academic calendar, the project was set to begin on November 29,
1999, and was to be completed no later than August 26, 2000. In January of 2000, Auch
personnel expressed concerns about the quality of Laser's work, its available staffing, and its
ability to complete work on schedule. Accordingly, a meeting was held on February 1, 2000, at
one of the job sites. Badiee claims that at this meeting, Auch vice president Thomas Hickey
directed an ethnic slur at Badiee, who is of Iranian descent.3 Hickey denied making ethnocentric
slurs, and testified that when he arrived at the job site on February 1, 2000, for the meeting, he
found Badiee in Auch's trailer, speaking at length to the Auch project manager and construction
superintendents. Hickey testified that, in response to Auch's concerns that Badiee did not have
enough people on the job and that those present were not adequately supervised, Badiee
proceeded "in a very dismissive and very demeaning manner" to tell the Auch personnel "that
they didn't know really what they were doing . . . ." As a result of the meeting, plaintiffs and
Auch reached an agreement to alleviate several of the concerns Auch raised.4 Auch sent
Badiee v Brighton Area Schools, unpublished order of the Court of Appeals, entered June 26,
2003 (Docket Nos. 247437 and 248270); Badiee v Brighton Area Schools, unpublished order of
the Court of Appeals, entered August 13, 2003 (Docket Nos. 247437, 248270, and 249881).
Badiee is not an owner of this corporation. His wife, Lisa Badiee, was the president and sole
stockholder. The corporation was initially formed not as a construction business, but as a wordprocessing business, and later began doing business as Laser. Lisa Badiee has no construction
Specifically, plaintiffs claimed at trial that Hickey said of Badiee, in his presence, that Hickey
"wished he had not hired a sand n----r as a subcontractor."
One of the concerns Auch raised is that it did not appear that Laser would have a sufficient
work force during the summer months, when school would not be in session. Because the
buildings were schools, the bulk of the work would be delayed until school ended for the
summer. Auch was concerned that labor would be hard to find with other large projects
requiring large work forces, notably the Detroit casinos, planned for the summer of 2000.
Badiee assured Auch that he would be able to find enough personnel through a professional
organization, and by hiring subcontractors. Ultimately, when summer arrived, Laser was unable
plaintiffs a letter on February 4, 2000, memorializing these agreements. In particular, Auch
required Laser to (1) provide copies of state electrician licenses for Laser personnel responsible
for the projects,5 (2) correct defective work, (3) update its schedule to accurately reflect progress
at each school, (4) provide consent of surety letters for payment applications, and (5) provide
state electrical permits for each project. Auch's letter concluded by stating that payments would
not be released until these requirements were met. A second meeting took place on February 10,
2000, with representatives from BAS, Auch, and Laser, to further clarify the requirements
spelled out in the February 4, 2000, letter, and Auch sent a second letter to memorialize that
On February 14, 2000, Laser sent what proved to be the first of several letters in which it
threatened to walk off the job. The February 14 letter cited Auch's alleged failure to pay Laser
on its first payment application. Laser sent Auch a second letter on February 16, 2000,
threatening to walk off the job. However, the delay in payment appeared to result from a
combination of Laser not fulfilling the conditions agreed to at the February 1, 2000, meeting6
and the fact that Laser overstated its "general conditions" expenses by nearly $41,000.7
Ultimately, the payment application was approved for one hundred percent of the costs related to
labor and materials and for that portion of the "general conditions" amount requested that
reflected expenses Laser had actually incurred.
As a result of Laser's poor performance, apparent labor difficulties, and threats to stop
work, Auch felt the need to scrutinize Laser's work more closely. And, because of these
concerns, Auch required Laser to submit consent of surety letters with each of its future payment
applications, which it did for the second through sixth applications.8 In addition to the BAS
projects, Laser was under contract to perform electrical work for the Michigan Department of
Transportation (MDOT) and Michigan State University (MSU).9 Laser employee Mike Beach,
to find sufficient labor and had to ask Auch for help in locating sufficient personnel. Auch
assisted Laser in contacting several electrical subcontractors.
The letter cited as authority 1999 AC R 408.30801 et seq., which requires a licensed electrician
to be present to oversee electrical installations, R 408.30820. As will be discussed in greater
detail below, Laser apparently allowed unlicensed apprentice electricians to do electrical work in
violation both of the state regulation and the contract between Laser and BAS.
For example, Laser had two licensed electricians on its staff. Laser gave Auch two licenses,
but one was expired. When Auch asked Laser for a current license for the employee whose
license had expired, Badiee replied that Auch could check with the state itself, something that,
according to Hickey, it never had to do. Eventually Badiee provided a valid license.
Apparently, Laser had invoiced the entire amount of the "general conditions" expenses
provided for in the contract. These amounts were intended to reimburse Laser for such
necessary expenses as bond costs, clerical support, and permit fees as Laser incurred them.
Laser apparently inappropriately attempted to acquire these funds up-front.
Laser was not able to provide a consent of surety for its seventh application, which led Auch to
withhold payment and ultimately precipitated the instant action.
Laser had expected both projects to be completed by January 2000; however, both continued
into the summer of 2000. Furthermore, Laser employee John McDonald, an unlicensed
one of the two licensed electricians employed by Laser, split his time between the BAS projects
and the MDOT project. Laser began to fall behind schedule, and there were workmanship
concerns at several of the project sites.10 Unsupervised, unlicensed apprentice electricians were
performing much of the electrical work.
On July 6, 2000, Laser sent another letter threatening to stop work apparently as a result
of the nonpayment of its seventh payment application dated June 30, 2000. In addition to not
being able to submit a consent of surety as required, Laser apparently represented that it made
payments to suppliers in excess of amounts those suppliers actually received. After Auch's
accounting department spent several hours working with Laser's bookkeeper to reconcile this
discrepancy, Auch eventually released payment in the form of a check payable jointly to Laser
and its vendors. Significantly, by mid-July 2000, it became apparent to Auch that Laser was
behind schedule and would not complete its work before August 26, 2000, the date that school
was set to begin. An emergency meeting of representatives from Auch, Laser, and BAS resulted
in a promise from Badiee that Laser would submit a plan for finishing the project by July 24,
2000. Laser never submitted this plan. Instead, it sent yet another letter threatening to stop
work, dated July 28, 2000, and on August 4, 2000, Laser walked off the job.
After Laser left the job, Auch and BAS filed a claim with Merchant's Bonding, Laser's
surety. Rather than bid the contracts out again with only three weeks left before the beginning of
the school year, Auch "left the contracts" in place, and relied on Ted Krawzynski Electric,
Laser's electrical subcontractor,11 as well as two other subcontractors, to finish the job using the
amount of money remaining under the contracts.
Auch paid the Laser employees, subcontractors, and vendors a total of approximately
$717,000 for work performed after Laser stopped work. Laser was paid approximately
$493,000, representing the amount of work it had performed. Auch repaid approximately
$128,000 to Merchant's Bonding.12
Plaintiffs filed the instant action on July 16, 2001, and alleged several counts related to
what Laser characterized as defendants' breach of contract, one count that alleged both ethnic
intimidation, MCL 750.147b, and ethnic discrimination in violation of the Civil Rights Act
apprentice electrician with little estimating experience, did the estimation work for the BAS
projects. Apparently, McDonald assumed that only one licensed electrician would be required
for all seven BAS contracts, whereas state regulations require at least one licensed electrician at
each worksite where electrical work is being done. Essentially, by the summer of 2000, Laser
had only two licensed electricians to supervise nine projects. MDOT and MSU ultimately
terminated their contracts with Laser.
Including, notably, an incident in which two pipefitters working on one of the school buildings
were nearly electrocuted.
Several Laser employees joined Ted Krawzynski Electric to finish the work after Laser left the
This apparently represents funds paid from the bond that were not needed to finish Laser's
(CRA), MCL 37.2101 et seq., counts of intentional interference with a business relationship and
intentional interference with a contractual relationship, and a third-party beneficiary claim.
Auch filed a counterclaim against Laser with respect to the discrimination claim, and
alleged that Laser's contracts with BAS required Laser to indemnify Auch against Badiee's
ethnic-discrimination claim. Plaintiffs moved for summary disposition on the counterclaim, and
Auch argued in response that, in fact, it was entitled to summary disposition on its counterclaim.
The trial court ruled that Auch could not be indemnified by Laser for Auch's alleged ethnic
discrimination against Badiee because Michigan's public policy prohibits indemnification of
such civil rights violations.
At trial, all of plaintiffs' claims were resolved in defendants' favor by way of summary
disposition, directed verdict, and jury verdict. Plaintiffs filed a postjudgment motion for
judgment notwithstanding the verdict (JNOV), which the trial court rejected.
Auch appeals from the trial court's order that rejected its indemnity claim. Plaintiffs
appeal from several orders that grant defendants' motions for summary disposition and directed
verdict, and from an order that denied their motion for JNOV. Plaintiffs further appeal from
orders granting case-evaluation sanctions granted to BAS and costs to defendants.
II. CONTRACTUAL INDEMNITY
After plaintiffs filed the complaint, Auch filed a counterclaim and sought an order to
compel Laser to indemnify Auch against Badiee's civil rights claim. Laser filed a motion for
summary disposition under MCR 2.116(C)(8) (failure to state a claim for which relief may be
granted). The trial court granted summary disposition in favor of Laser because public policy
does not allow an indemnitee to seek indemnity for the indemnitee's own acts of discrimination.
Auch argues that the trial court erred because, contrary to the trial court's holding, Michigan law
allows indemnification for one's own acts of discrimination, and that Auch was entitled to
judgment on its indemnification claim.
Motions for summary disposition under MCR 2.116(C)(8) test the legal sufficiency of a
complaint. Carmacks Collision, Inc v Detroit, 262 Mich App 207, 208-209; 684 NW2d 910
(2004). This Court reviews a trial court's decision whether to grant a motion under subrule C(8)
de novo. Id. at 209.
This Court construes indemnity contracts in the same manner it construes contracts
generally. Zurich Ins Co v CCR & Co (On Rehearing), 226 Mich App 599, 603; 576 NW2d 392
(1997). "An unambiguous contract must be enforced according to its terms." Burkhardt v
Bailey, 260 Mich App 636, 656; 680 NW2d 453 (2004). If indemnity contracts are ambiguous,
the trier of fact must determine the intent of the parties. Sherman v DeMaria Bldg Co, Inc, 203
Mich App 593, 596; 513 NW2d 187 (1994). "While it is true that indemnity contracts are
construed strictly against the party who drafts them and against the indemnitee, it is also true that
indemnity contracts should be construed to give effect to the intentions of the parties." Id.
The trial court struck down the indemnity clause as a violation of public policy.
However, because we hold that the indemnity provision is simply inapplicable to the factual
predicate of Auch's claim, we need not address the public policy issue.13
The relevant contractual provision in the contracts between BAS and Laser reads as
The Contractor shall indemnify and hold the Owner and
Construction Manager, its past, present and future employees, officers,
members of its Board of Trustees, agents and predecessor, successor and related
entities, harmless from and against any and all liabilities, damages, fines,
penalties, demands, forfeitures, claims, suits, causes of actions or any other
liabilities of losses, including all costs of defense, settlement and prosecution
along with actual attorney, expert and other professional fees, arising out of or
related to any negligence, wrongful act or breach of this Agreement or the
obligation of the Contractor or any of its employees or others for whom it is
responsible in connection with this Agreement of [sic] the Project. The
Contractor agrees to indemnify the Owner and Construction Manager and hold
them harmless from all claim for bodily injury and property damage that may
arise from the Contractor's operations. [Emphasis added.]
Here, both plaintiffs and Auch contend that the language quoted above is clear and
unambiguous. However, plaintiffs argue that the language clearly states that Auch can be
indemnified only for misconduct on the part of Laser, its employees, and its subcontractors, and
not for Auch's alleged misconduct. Auch, on the other hand, contends that the language is broad
and clearly contemplates indemnity for any wrongful act, even its own.
Indemnity clauses need not expressly mention the indemnitee's own acts to provide
coverage for them. Sherman, supra at 596-597. However, this certainly does not mean the court
will automatically assume the clause covers the indemnitee's acts; the goal of the court is to
determine the parties' intent from "'other language in the contract, surrounding circumstances, or
from the purpose sought to be accomplished by the parties.'" Id. at 597, quoting FischbachNatkin Co v Power Process Piping, Inc, 157 Mich App 448, 452; 403 NW2d 569 (1987).
However, we note that for purposes of insurance, parties can obtain policies covering
intentional acts of discrimination. North Bank v Cincinnati Ins Cos, 125 F3d 983, 988 (CA 6,
In Paquin v Harnischfeger Corp, 113 Mich App 43, 52-53; 317 NW2d 279 (1982), this
Court concluded that an indemnity clause provided coverage for the claims caused in part by the
indemnitee's negligence because of a specific exclusion for claims caused solely by the
indemnitee's negligence. In its analysis, this Court noted that "[t]he fact that the clause expressly
precluded indemnification in the even[t] that the injury or damage was caused by [the
indemnitee's] sole negligence . . . indicates that the intent was to provide indemnity in all
situations involving [the indeminitee's] own negligence except wherein caused by [the
indemnitee's] sole negligence." Id.
This Court also concluded that the contractual indemnity clause provided coverage for
the indemnitee's own acts in Fischbach. The clause in question provided indemnity for "'all
liability or claimed liability for injuries, including death, to any and all persons whomsoever and
for any and all property damage arising out of or resulting from or in any way connected with the
work covered by this Subcontract . . . .'" Fischbach, supra at 450-451. This Court noted that the
clause provided broad coverage, the parties were aware their employees would be working
together, and "the possibility that an injury or damage would result from [the indemnitee's]
negligence was apparent at the time the parties entered the contract providing for
indemnification." Id. at 454-455.
The current clause, unlike that in Paquin, does not contain a provision excluding
coverage for claims arising from the indemnitee's sole negligence. There also is a crucial
distinction from Fischbach: the Fischbach clause provided indemnity for claims for personal
injuries or property damage arising from work connected with the contract, while the current
clause is much broader, as it provides indemnity for any claim.
Auch breaks the coverage of the provision into four components: indemnification for
claims arising out of negligence, wrongful acts, breach of the agreement, and any obligation of
Laser. Auch then argues the fourth component must be read independently of the other three, so
that the first three components are not restricted to Laser. However, for the sentence concerning
indemnification to make any meaningful sense, the components must all be read together.
There can be no question that the first three components must be read together. Although
there is no language limiting the scope of the negligence and wrongful acts coverage to claims
arising from the agreement, obviously Laser did not intend to indemnify Auch for claims
unrelated to contract work, a point conceded by Auch. Thus, the first two components must be
read in conjunction with the third, which restricts coverage to claims arising from the agreement.
Likewise, the first three components must be read in conjunction with the fourth.
Otherwise, because the clause provides indemnity for claims arising from breach of the
agreement, Laser would be powerless to enforce the contract. This would be as ludicrous a
result as Laser providing indemnification for claims not arising from work connected with the
agreement. The four components must be read together, as providing coverage for claims arising
from Laser's conduct in connection with the agreement.
Unlike Paquin and Fischbach, in which the contract language indicated an intent to cover
the indemnitee's acts, the current language evidences an intent to cover only Laser's actions.
Accordingly, we hold that the trial court properly granted summary disposition in favor of Laser
on Auch's counterclaim, though it did so under an alternative ground.17
III. EXCLUSION OF EVIDENCE
Plaintiffs assert that the trial court erroneously granted defendants' motion in limine,
which prevented plaintiffs from offering evidence of alleged ethnic slurs that Badiee himself had
not heard or been made aware of before the date he walked off the job. The trial court reasoned
that plaintiffs could not support their "hostile work environment" claim by using evidence of
alleged ethnic slurs that Badiee neither heard nor even learned of until well after he left the
worksite. Plaintiffs argue that the motion in limine prevented them from adequately proving
their hostile workplace claim, and that it prevented them from rebutting Auch's defenses to
Laser's breach of contract claims or from establishing a motive for Auch's alleged interference
with the business and contractual relationships between Laser and BAS.
Plaintiffs also argues that the trial court erroneously excluded evidence of the fact that the
Michigan Department of Civil Rights did not award Auch a "certificate of awardability" because
Auch did not hire enough minorities for it to qualify for state contracts.
The standard of review with respect to a trial court's decision whether to admit evidence
is as follows:
[This Court] review[s] a trial court's decision to admit or exclude evidence
for an abuse of discretion. . . . However, any error in the admission or exclusion
of evidence will not warrant appellate relief "unless refusal to take this action
appears . . . inconsistent with substantial justice," or affects "a substantial right of
the [opposing] party." [Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296
(2004) (citations omitted).]
At trial, Badiee testified about two ethnic slurs directed toward him in his presence, and
that an employee, John MacDonald, had told him of a third incident that allegedly occurred in
March 2000. After the trial court heard defendants' motion in limine, it allowed plaintiffs to
recall Badiee, over defendants' objection. Badiee then testified that he had been told that several
Auch employees had used ethnic slurs to refer to him.
See Grand Trunk W R, Inc v Auto Warehousing Co, 262 Mich App 345, 354; 686 NW2d 756
Plaintiffs do not explain why evidence of alleged ethnic slurs, of which Badiee was not
aware and to which he was not a witness, are relevant to his hostile workplace claim under the
CRA. Plaintiffs' primary argument seems to be that the motion in limine was made in an
untimely manner contrary to the trial court's pretrial scheduling order. Plaintiffs offer no
explanation or authority to support this position. A party may not simply announce its position
and "leave it to this Court to discover and rationalize the basis for the party's claim." Conlin v
Scio Twp, 262 Mich App 379, 384; 686 NW2d 16 (2004).
The trial court did not abuse its discretion when it excluded the evidence. We agree with
defendants and the trial court that evidence of ethnic slurs that Badiee neither witnessed nor
knew about is not relevant to his claim that defendants created a hostile workplace in violation of
the CRA. Moreover, Badiee was able to testify before the jury that Auch employees used ethnic
slurs to refer to him in his presence, and that he was made aware of other instances in which
Auch employees allegedly used ethnic slurs to refer to him. Thus, the evidence excluded was
cumulative. Any error resulting from the exclusion of cumulative evidence is harmless. Dunn v
Nundkumar, 186 Mich App 51, 54; 463 NW2d 435 (1990).
Accordingly, we hold that the trial court did not abuse its discretion when it granted
defendants' motion in limine.
Plaintiffs sought to admit evidence of the fact that the Michigan Department of Civil
Rights did not award a certificate of awardability to Auch in 1997 because it did not hire enough
minority employees to qualify for contracts paid for with state funds.18 During the hearing on
defendants' motion to exclude the evidence, plaintiffs conceded that the evidence was relevant
only to Auch employees, and not to subcontractors with whom Auch worked. Plaintiffs also
conceded that Auch had received a certificate by the time Laser joined the project. On the basis
of these concessions, plus the trial court's ruling that the evidence was not relevant because this
was not a hiring case and because there was evidence that Auch actually recommended Laser for
the BAS projects twice, the trial court granted the motion.
This evidence is irrelevant because this is not a hiring case, and plaintiffs have not
demonstrated how they were prejudiced by the exclusion of this evidence. Indeed, plaintiffs
were permitted to present evidence to the jury in support of their contention that defendants
engaged in racially discriminatory conduct.
Accordingly, we hold that the trial court did not abuse its discretion when it excluded this
evidence, and, were we to conclude there was error, that error would be harmless.
IV. DIRECTED VERDICT WITH RESPECT TO BADIEE'S CIVIL RIGHTS CLAIMS
Plaintiffs sought to admit handwritten notes of the Department of Civil Rights employee who
reviewed Auch's application for the certificate of awardability.
Plaintiffs maintain that the trial court erroneously granted defendants' motion for directed
verdict with respect to plaintiffs' discrimination claims. Plaintiffs' civil rights count alleged
violations of both the ethnic intimidation statute, MCL 750.147b,19 and the CRA, specifically
MCL 37.2202, 37.2209, 37.2302, and 37.2402. This Court reviews de novo a trial court's
decision with respect to a motion for directed verdict. Merkur Steel Supply, Inc v Detroit, 261
Mich App 116, 123; 680 NW2d 485 (2004). Motions for directed verdict may be granted only
"when no material factual questions exist on which reasonable minds could differ." Id.
On appeal, plaintiffs do little more than state that the trial court erred when it granted the
motion for directed verdict, then quote verbatim the relevant statutory sections. Plaintiffs do not
present any case law in support of their argument, any authority that explains the elements of the
alleged torts, or even any explanation whatsoever of their argument. A party waives an issue
when it gives the issue cursory treatment on appeal. Blazer Foods, Inc v Restaurant Properties,
Inc, 259 Mich App 241, 252; 673 NW2d 805 (2003). Furthermore, a party may not simply
announce its position and "leave it to this Court to discover and rationalize the basis for the
party's claim." Conlin, supra at 384. Moreover, the facts presented at trial simply do not support
plaintiffs' civil rights claims.
A. ETHNIC INTIMIDATION
Plaintiffs conceded during the motion for directed verdict that this claim applied only to
Badiee. Badiee himself testified to only two instances in which ethnic slurs were allegedly
directed at him. There is no evidence that either of these slurs accompanied any actual or
threatened harm to Badiee or his property. Accordingly, no reasonable jury could conclude that
The ethnic intimidation statute provides:
A person is guilty of ethnic intimidation if that person maliciously, and
with specific intent to intimidate or harass another person because of that person's
race, color, religion, gender, or national origin, does any of the following:
(a) Causes physical contact with another person.
(b) Damages, destroys, or defaces any real or personal property of another
(c) Threatens, by word or act, to do an act described in subdivision (a) or
(b), if there is reasonable cause to believe that an act described in subdivision (a)
or (b) will occur. [MCL 750.147b(1).]
Though this is a criminal statute, it provides for a civil action for a person who is a victim
of the crime of ethnic intimidation without regard to "the existence or outcome of any criminal
prosecution . . . ." MCL 750.147b(3).
defendants engaged in conduct that violated the ethnic intimidation statute, and the trial court
properly granted summary disposition.
B. HOSTILE WORKPLACE
1. CRA Section 202
An "employer" is "a person who has 1 or more employees, and includes an agent of that
person." MCL 37.2201(a). Claims against an employer under § 20220 may only be brought by
employees. Kamalnath v Mercy Mem Hosp Corp, 194 Mich App 543, 553; 487 NW2d 499
(1992). An independent contractor is not an employee, and may not bring a claim against an
employer under § 202. Id..
Here, Badiee's employer was neither BAS nor Auch, but Laser. Plaintiffs do not argue
that BAS or Auch was an agent of Laser. Laser cannot sustain a claim against BAS or Auch
under § 202 because it is not an "individual" and because it is at best an independent contractor
of BAS. Because neither BAS nor Auch was plaintiffs' "employer" for the purposes of § 202, we
hold that the trial court properly granted a directed verdict in favor of defendants.
2. CRA Section 209
As discussed above, plaintiffs are not employees of defendants for the purposes of the
CRA. Moreover, the plain language of § 20921 provides that a contractor may not discriminate
against its employees, and provides for a breach of contract action when a contractor does
discriminate against an employee. In other words, BAS would have a breach of contract action
CRA § 202 provides, in relevant part:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate
against an individual with respect to employment, compensation, or a term,
condition, or privilege of employment, because of religion, race, color, national
origin, age, sex, height, weight, or marital status. [MCL 37.2202(1).]
Section 209 provides:
A contract to which the state, a political subdivision, or an agency thereof
is a party shall contain a covenant by the contractor and his subcontractors not to
discriminate against an employee or applicant for employment with respect to
hire, tenure, terms, conditions, or privileges of employment, or a matter directly
or indirectly related to employment, because of race, color, religion, national
origin, age, sex, height, weight, or marital status. Breach of this covenant may be
regarded as a material breach of the contract. [MCL 37.2209.]
against Laser only when Laser discriminated against Badiee (or another employee). In light of
plaintiffs' allegations, and the facts presented to the jury, § 209 does not apply here.
Accordingly, we hold that the trial court properly granted defendants' motion for directed
3. CRA Section 302
BAS cites Kassab v Michigan Basic Prop Ins Ass'n, 441 Mich 433, 440-441; 491 NW2d
545 (1992), in support of its argument that the public accommodation provision of § 30222 does
not apply here. Though our Supreme Court was addressing a claim that a denial of insurance
benefits violated the public accommodation provision of § 302, BAS asserts, and we agree, that
the Court's reasoning applies here by analogy. The Court in Kassab stated:
[I]t is beyond the legislative purpose to provide a civil rights action under
the public accommodations section of the act for breach of contract in claims
processing. Upon the issuance of a policy of insurance, the services owed by an
insurer to an insured are no longer "services . . . made available to the public."
The rights and obligations of the contracting parties are then private. While an
insured is not separated from the "public" upon entering into insuring agreements
embodied in a policy of insurance, the obligations of the insurer are owed to a
particular contracting party/insured. The rights and obligations of the contracting
parties are specific to the contract and to the persons involved. [Kassab, supra at
By analogy, to the extent that the "right" to perform the electrical work for BAS may have been a
"'service  . . . made available to the public,'" referring to the definition of "place of public
accommodation" under § 301, MCL 37.2301(a), it lost that status when Laser and BAS entered
into their contracts whereby Laser would perform those services. Accordingly, we conclude that
§ 302 does not apply to the facts of this case, and hold that the trial court properly granted
defendants' motion for directed verdict.
4. CRA Section 402
The plain language of § 40223 clearly shows that it applies to conduct between a school
and its students or prospective students. Plaintiffs were neither students nor prospective students
Section 302 provides, in relevant part:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of a place of public accommodation
or public service because of religion, race, color, national origin, age, sex, or marital
status. [MCL 37.2302.]
Section 402 provides:
of BAS's elementary schools. Accordingly, we hold that the trial court properly granted
defendants' motion for directed verdict because § 402 does not apply to the facts of this case.
V. PLAINTIFFS' BREACH OF CONTRACT CLAIM
Plaintiffs allege that the trial court improperly denied plaintiffs' motion for JNOV. We
review de novo motions for JNOV in the light most favorable to the nonmoving party to
determine whether the facts and evidence presented preclude judgment for the nonmoving party
as a matter of law. Merkur, supra at 123-124.24
Laser submitted its seventh payment application for work it performed in June 2000. The
evidence presented reflected that defendants had numerous reasons for delaying payment on that
application. Laser did not provide a consent of surety with its seventh application before leaving
An educational institution shall not do any of the following:
(a) Discriminate against an individual in the full utilization of or benefit
from the institution, or the services, activities, or programs provided by the
institution because of religion, race, color, national origin, or sex.
(b) Exclude, expel, limit, or otherwise discriminate against an individual
seeking admission as a student or an individual enrolled as a student in the terms,
conditions, or privileges of the institution, because of religion, race, color,
national origin, or sex.
(c) For purposes of admission only, make or use a written or oral inquiry
or form of application that elicits or attempts to elicit information concerning the
religion, race, color, national origin, age, sex, or marital status of a person, except
as permitted by rule of the commission or as required by federal law, rule, or
regulation, or pursuant to an affirmative action program.
(d) Print or publish or cause to be printed or published a catalog, notice, or
advertisement indicating a preference, limitation, specification, or discrimination
based on the religion, race, color, national origin, or sex of an applicant for
admission to the educational institution.
(e) Announce or follow a policy of denial or limitation through a quota or
otherwise of educational opportunities of a group or its members because of religion,
race, color, national origin, or sex. [MCL 37.2402.]
The trial court granted summary disposition in favor of Auch on plaintiffs' breach of contract
count on the ground that there was no contract between Auch and Laser. Plaintiffs do not
challenge this ruling on appeal. Accordingly, only Laser's breach of contract claim against BAS
went to the jury.
the job on August 4, 2000,25 as it had with its previous applications.26 Evidence was presented
that the seventh application requested significantly more money as payment to vendors than the
vendors acknowledged receiving. Because of concerns that vendors were not being paid, Auch
ultimately found it necessary to issue checks to Laser and its vendors jointly. After plaintiffs left
the job, defendants filed a claim against Laser's performance bond and paid other workers to
complete the contract work in time for the beginning of the school year.
Because plaintiffs bore the burden of proving their breach of contract claim, to sustain
their motion for JNOV, plaintiffs were essentially required to establish that the evidence they
presented was so substantial that the jury had no reasonable choice but to accept plaintiffs'
version. Viewed in the light most favorable to defendants, the evidence presented was sufficient
to allow a reasonable jury to find in defendants' favor. Accordingly, we hold that the trial court
properly denied plaintiffs' motion for JNOV with respect to the breach of contract count.
VI. PLAINTIFFS' CLAIM OF INTENTIONAL INTERFERENCE WITH BUSINESS
Plaintiffs contend that the trial court erroneously denied plaintiffs' motion for JNOV with
respect to plaintiffs' claim of intentional interference with business relations.
"The elements of tortious interference with a business relationship are the
existence of a valid business relationship or expectancy, knowledge of the
relationship or expectancy on the part of the defendant, an intentional interference
by the defendant inducing or causing a breach or termination of the relationship
or expectancy, and resultant damage to the plaintiff. To establish that a lawful act
was done with malice and without justification, the plaintiff must demonstrate,
with specificity, affirmative acts by the defendant that corroborate the improper
motive of the interference. Where the defendant's actions were motivated by
legitimate business reasons, its actions would not constitute improper motive or
interference." [Mino v Clio School Dist, 255 Mich App 60, 78; 661 NW2d 586
(2003), quoting BPS Clinical Laboratories v Blue Cross & Blue Shield of
Michigan (On Remand), 217 Mich App 687, 698-699; 552 NW2d 919 (1996)
We note that, despite the record showing that Laser did, indeed, walk off the job, on appeal,
plaintiffs repeatedly characterize the facts as reflecting that Laser and Badiee had been
"removed" from the job.
Plaintiffs claim that Auch had no right to require a consent of surety. However, § 9.3.1 of the
general conditions of the contracts between Laser and BAS required Laser to provide "such data
substantiating the Contractor's right to payment as the Owner Construction Manager or Architect
may require. . . ." Hickey testified that Auch asked Laser to provide consents of surety with
payment applications after concerns arose because of defects in Laser's work, Laser's early
threats to walk off the job, and Laser's apparent inability to secure an adequate work force.
Plaintiffs claim that the fact that Auch delayed payment on the seventh application
conclusively established plaintiffs' claim of intentional interference with business relations
claim. However, defendants presented credible evidence that Auch had reasonable business
reasons for delaying payment, such as Laser's failure to present a consent of surety as it had for
the second through sixth payment applications, and the fact that Auch discovered that Laser had
claimed to have paid its vendors significantly more money than the vendors certified receiving in
their releases of liens.
Accordingly, viewing the evidence in the light most favorable to defendants, the jury had
sufficient evidence to justify its verdict in favor of defendants on this claim and, therefore, the
trial court properly denied plaintiffs' motion for JNOV.
VII. PLAINTIFFS' CLAIM OF INTERFERENCE WITH CONTRACTUAL RELATIONS
Plaintiffs also argue that the trial court erred when it granted defendants' motion for
directed verdict with respect to plaintiffs' claim of interference with a contract. "The elements of
tortious interference are (1) a contract, (2) a breach, and (3) an unjustified instigation of the
breach by the defendant." Mahrle v Danke, 216 Mich App 343, 350; 549 NW2d 56 (1996).
"'[O]ne who alleges tortious interference with a contractual or business relationship must allege
the intentional doing of a per se wrongful act or the doing of a lawful act with malice and
unjustified in law for the purpose of invading the contractual rights or business relationship of
another.'" CMI Int'l, Inc v Intermet Int'l Corp, 251 Mich App 125, 131; 649 NW2d 808 (2002),
quoting Feldman v Green, 138 Mich App 360, 378; 360 NW2d 881 (1984). "A wrongful act per
se is an act that is inherently wrongful or an act that can never be justified under any
circumstances." Prysak v R L Polk Co, 193 Mich App 1, 12-13; 483 NW2d 629 (1992). "If the
defendant's conduct was not wrongful per se, the plaintiff must demonstrate specific, affirmative
acts that corroborate the unlawful purpose of the interference." CMI Int'l, supra at 131.
To sustain this claim, plaintiffs were required to prove either that Auch committed an act
that was so wrongful that Auch had no justification whatsoever for committing that act, and did
so with malice and the intent to induce BAS to breach its contracts with Laser, or that Auch
committed a lawful act with malicious intent to instigate BAS to breach its contracts with Laser.
The trial court ruled that plaintiffs failed as a matter of law to prove that Auch did anything with
the intent to interfere with the contracts between BAS and Laser.
The evidence presented at trial was not sufficient to allow a reasonable jury to conclude
that Auch committed an act that was wrongful per se with the intent to induce BAS to breach its
contracts with Laser. Furthermore, the evidence was insufficient to allow a reasonable jury to
find that plaintiffs had presented evidence of specific, affirmative, unjustified acts with the intent
to induce BAS to breach its contracts with Laser. To the extent that the alleged use of ethnic
slurs by Auch personnel may have constituted an act that was wrongful per se, plaintiffs
presented no evidence that would allow a reasonable jury to conclude that Auch intended its use
of ethnic slurs to induce BAS to breach its contracts with Laser, nor did plaintiffs even show that
this act actually induced BAS to breach the contractual relationship between it and Laser.
Indeed, as discussed earlier, plaintiffs failed to establish that there was even a breach of the
contracts by BAS.
We conclude that Laser failed to present evidence to counter defendants' evidence that
Auch's actions were undertaken for valid business reasons, and that plaintiffs failed to present
any evidence that would allow a reasonable jury to conclude that Auch acted with the intent to
induce BAS to breach its contracts with Laser.
Accordingly, we hold that the trial court properly granted defendants' motion for directed
VIII. PLAINTIFFS' THIRD-PARTY BENEFICIARY CLAIM
Plaintiffs argue that the trial court improperly granted summary disposition in favor of
defendants with respect to plaintiffs' third-party beneficiary claim. We review de novo a grant or
denial of summary disposition to determine whether the moving party is entitled to judgment as a
matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
The general conditions clause cited by plaintiffs in support of their third-party beneficiary
claim is § 9.6.2, which provides, in relevant part, "The Contractor shall promptly pay each
Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the
Contractor on account of such Subcontractor's portion of the Work . . . ." The contracts between
Laser and BAS identify Laser as "the Contractor," while Auch is identified as "the Construction
Manager" and BAS is identified as "the Owner." The contract between BAS and Auch similarly
identifies Auch as "the Construction Manager" and BAS as "the Owner," and outlines Auch's
duties with respect to "Contractors." The plain language of § 9.6.2, then, requires that Laser
"promptly pay" its own subcontractors, not that Auch promptly pay Laser.
Furthermore, "[c]ontractors, subcontractors, and their employees are generally held not to
be the third-party beneficiaries of the contract between the general or supervisory contractor and
the project owner." Dynamic Construction Co v Barton Malow Co, 214 Mich App 425, 428; 543
NW2d 31 (1995). In Dynamic Construction, this Court reversed an order that denied the
defendants summary disposition on the plaintiffs' third-party beneficiary claim. This Court
reached that conclusion because the contract between the project owner and the construction
manager not only lacked evidence of an intent to create a third-party beneficiary status with
respect to contractors, but also expressly disclaimed third-party beneficiary status with respect to
contractors. Here, § 10.7 of the contract between BAS and Auch provides that "[n]othing
contained in this Agreement shall create a contractual relationship with or a cause of action in
favor of a third party against either the Owner or Construction Manager."
Accordingly, we hold that the trial court properly granted summary disposition in favor
of defendants with respect to plaintiffs' third-party beneficiary claim.
IX. EXPERT WITNESS TESTIMONY
A. Alfred Schaer
Plaintiffs assert that the trial court abused its discretion when it overruled plaintiffs' objections to
the testimony of Alfred Schaer, an expert witness for defendants.
MRE 703 provides:
The facts or data in the particular case upon which an expert bases an
opinion or inference shall be in evidence. This rule does not restrict the discretion
of the court to receive expert opinion testimony subject to the condition that the
factual bases of the opinion be admitted in evidence thereafter.
The trial court qualified Schaer, without objection, as an expert witness regarding
contract administration and the bidding process in construction contracts. He is employed by a
construction claims consulting firm, and is called upon to analyze the reasons for excessive costs
or time for completion in projects.
The testimony to which plaintiffs object on appeal involves Schaer's analysis of the
estimated date of completion had plaintiffs not left the job, which was based on the testimony of
Auch witness Patrick Dunleavy, who had previously testified that plaintiffs had completed
approximately sixty-two percent of the work when they left the project on August 4, 2000.
Schaer testified that, on the basis of a rate of completion of approximately 7.75 percent a month
and approximately thirty-eight percent of the work remaining, plaintiffs would not have finished
the project until December 2000.27 However, contrary to contentions by plaintiffs that Schaer
used simply a straight-line method of computing a projected completion date, Schaer testified
that he took into account Laser's July 2000 difficulty in obtaining adequate labor and that,
depending on Laser's ultimate ability to secure additional labor, it might have completed its work
as early as October 2000. Evidence on the record showed that Laser had significant problems
securing an adequate work force.
Plaintiffs' argument with respect to this issue is, essentially, that plaintiffs disagree with
the substance of Schaer's testimony because it was contradicted by the testimony of other
witnesses. However, this is precisely the purpose of trials—to submit contradictory evidence for
a determination of which evidence is more credible. Our review of the record shows support on
the record for Schaer's testimony. Plaintiffs were free to challenge Schaer's testimony on crossexamination (and they did), and were free to present any contrary evidence from their own
experts (which plaintiffs appear not to have done). It appears that plaintiffs are attempting on
appeal to characterize testimony with which they disagree as groundless speculation despite the
fact that the trial court properly ruled that Schaer's testimony was based on facts in evidence.
Accordingly, we hold that the trial court did not abuse its discretion when it overruled plaintiffs'
objection to Schaer's testimony.
B. Patrick Dunleavy
Plaintiffs assert that the trial court abused its discretion when it admitted the testimony of
Patrick Dunleavy, an expert witness for defendants. Dunleavy is a certified public accountant
employed by a financial consulting firm that specializes in forensic accounting, fraud
The record shows that these projects were to be completed before the August 26, 2000,
opening of the school year.
investigation, and litigation support. Dunleavy was asked by defendants to help determine the
merits of plaintiffs' claim of damages.
At trial, plaintiffs objected to the admission of Dunleavy's testimony because he stated
that he had not consulted the state's prevailing wage statute28 before rendering his opinion.
However, Dunleavy testified that his opinion was based on the minimum wage provided for in
the contracts between Laser and BAS and on Laser's payroll records, and that his testimony
would be that Laser had not paid the minimum wage required by the contracts. The trial court
overruled plaintiffs' objections because of Dunleavy's accounting experience, and ruled that,
because Dunleavy was testifying not with respect to Laser's compliance with the statutory
minimum wage but with respect to Laser's compliance with the contractual minimum wage,
Dunleavy was qualified to testify. Plaintiffs' argument is not that Dunleavy lacks the expertise to
examine Laser's payroll, but that Dunleavy was unqualified because of his apparent unfamiliarity
with the prevailing wage statute.
On appeal, plaintiffs continue to insist that Dunleavy's testimony was improperly
admitted because of his apparent lack of familiarity with Michigan's prevailing wage act (PWA),
MCL 408.551 et seq. However, Laser's compliance with the PWA was not relevant to
Dunleavy's testimony. Dunleavy testified that Laser failed to pay some of its employees the
minimum wage required by the contracts, and plaintiffs do not argue that Dunleavy is
unqualified to render such testimony, nor does the record reveal any reason that Dunleavy was
not properly qualified to testify concerning Laser's compliance with the contractual wage rates.
Accordingly, we hold that the trial court did not abuse its discretion when it admitted
X. UNTIMELY MOTION IN LIMINE
An issue that is not raised before the trial court is not preserved for appeal. 46th Circuit
Trial Court v Crawford Co, 261 Mich App 477, 504; 682 NW2d 519 (2004). Here, plaintiffs did
not object to the timing of defendants' motion. Plaintiffs' only procedural objection with respect
to the motion was that it was not in writing. Moreover, plaintiffs do not cite Michigan authority
to support its contention that this Court must reverse the trial court because the trial court chose
to hear a motion in limine at a time other than that specified in its pretrial scheduling order. A
party may not simply announce its position and "leave it to this Court to discover and rationalize
The Michigan prevailing wage act, MCL 408.551 et seq., provides that contracts for certain
state construction projects must pay a minimum wage based on the prevailing wage for each job
in the locality where the work is to take place. Plaintiffs repeatedly refer to this act as the "Davis
Bacon Act," which was actually the federal counterpart, former 40 USC 276a et seq., now 40
USC 3141 et seq., to Michigan's prevailing wage act. Michigan's act refers to the Davis-Bacon
Act only to state that any contract that requires that employees be paid in accordance with the
federal act is exempt from the Michigan act. See MCL 408.552. Here, however, neither act was
relevant to Dunleavy's testimony.
the basis for the party's claim." Conlin, supra at 384. Accordingly, we decline to address this
XI. BAS'S CLOSING ARGUMENT
Plaintiffs allege that BAS improperly stated during closing arguments that plaintiffs were
barred from recovering because they did not submit their disputes to the architect as provided in
the contracts. Plaintiffs state that this provision had specifically been removed from the
contracts between BAS and Laser, and that the trial court erred when it permitted BAS to raise
the issue despite the fact that BAS had not raised it as an affirmative defense.
We hold that in a civil case in which a party assigns as error on appeal remarks of
counsel during closing arguments, but fails to object to those remarks at trial, the party must
prove that (1) the remarks were so prejudicial as to have denied the party a fair trial and that (2)
any resulting prejudice could not have been cured by a curative instruction. Thorin v Bloomfield
Hills Bd of Ed, 203 Mich App 692, 704; 513 NW2d 230 (1994); Bourke v North River Ins Co,
117 Mich App 461, 466; 324 NW2d 52 (1982). This basis for appeal should be used sparingly
for the reasons stated by our Supreme Court in Hunt v Deming, 375 Mich 581, 585; 134 NW2d
662 (1965), a case involving a jury instruction in a civil case:
This is not to say that this Court may not, in unusual circumstances, and
to prevent manifest injustice, take note of instructions which err with respect to
basic and controlling issues in a case even though objection thereto was not made
before the jury retired. It is to say however, that the Court will exercise its
discretion in this fashion but sparingly. [Emphasis added; citations omitted.]
We conclude that no such "unusual circumstances" exist here, and that plaintiffs have failed to
prove that (1) the challenged remarks were so prejudicial as to have denied plaintiffs a fair trial,
and that (2) any prejudice could not have been avoided by a curative instruction. Thorin, supra;
Bourke, supra. Accordingly, we decline to address this issue further.
XII. CASE-EVALUATION SANCTIONS
Plaintiffs maintain that the trial court erroneously awarded case-evaluation sanctions to
BAS under MCR 2.403(O)(8). We review de novo a trial court's decision whether to grant caseevaluation sanctions. Brown v Gainey Transportation Services, Inc, 256 Mich App 380, 383;
663 NW2d 519 (2003). MCR 2.403(O)(8) provides that a party that seeks case-evaluation
sanctions must file and serve a "request" within twenty-eight days after the entry of the judgment
or entry of an order that denies a timely motion for a new trial. The twenty-eight-day
requirement "was added to address stale motions for costs . . . ." Mahrle, supra at 349.
Before trial, the parties submitted this case to case evaluation pursuant to MCR 2.403.
The result was a recommendation that Auch pay plaintiffs $150,000, while BAS was to pay
nothing. BAS accepted this evaluation award, and plaintiffs accepted the $150,000 evaluation
award from Auch,29 but rejected the evaluation award of zero from BAS. The case proceeded to
trial and defendants prevailed on all of plaintiffs' claims. The trial court rejected plaintiffs'
postjudgment motion for JNOV or, in the alternative, a new trial, and BAS filed a request for
case-evaluation sanctions pursuant to MCR 2.403(O).
Plaintiffs do not argue that BAS was not entitled to recover case-evaluation sanctions, or
that the amount of sanctions was improper. Rather, plaintiffs argue that BAS's motion for caseevaluation sanctions was untimely. BAS filed a motion for sanctions on April 29, 2003, twenty
days after the order that denied plaintiffs' motion for JNOV or a new trial. However, BAS did
not file an affidavit outlining the specific amount of the costs until June 6, 2003. The trial court
heard BAS's motion and entered an order that awarded BAS $72,635 on June 27, 2003.
Plaintiffs maintain that because the affidavit that detailed BAS's attorney fees was not submitted
with BAS's motion, the motion was not timely because it did not state BAS's costs with
specificity until the affidavit was filed.
We note that for ordinary taxation of costs, the court rules require that a prevailing party
submit a bill of costs that lists costs with particularity within twenty-eight days of the entry of
judgment. See MCR 2.625(F) and (G). However, MCR 2.403, by contrast, does not provide
specific requirements for the "request" for sanctions. MCR 2.403(O). While MCR 2.625 deals
only with costs, MCR 2.403 allows as sanctions "actual costs," which are defined as "those costs
taxable in any civil action," as well as "a reasonable attorney fee . . . ." MCR 2.403(O)(6). If the
court rules required a party seeking case-evaluation sanctions to specify the amount of actual
costs with particularity, then MCR 2.403 would specifically provide such a requirement as MCR
2.625 does. Furthermore, MCR 2.403(O)(6)(b) provides that the portion of the "actual costs"
representing the "reasonable attorney fee" is to be "based on a reasonable hourly or daily rate as
determined by the trial judge for services necessitated by the rejection of the case evaluation."
(Emphasis added.) By contrast, MCR 2.625 appears to require a detailed bill of costs because
the court clerk is empowered to tax costs without a finding of reasonableness by the trial court.
MCR 2.625(F). Because BAS sought a reasonable attorney fee as its "actual costs," the amount
of the "actual costs" was required to be determined by the trial court. Here, BAS timely filed its
"request" for case-evaluation sanctions, and then submitted an affidavit outlining what it thought
to be the reasonable attorney fee incurred a full three weeks before the trial court's hearing on
BAS's request. BAS was by no means guaranteed to recover what it stated was the attorney fee
incurred; rather, the trial court was given the responsibility of determining what the proper
attorney fee would be.
Furthermore, by affirming the trial court's award of costs here, the court rule's purpose to
prevent "stale motions for costs" would not be frustrated. BAS filed a timely request for costs
that put plaintiffs on notice of BAS's intent to recover actual costs. Approximately five weeks
later, BAS filed and served its detailed affidavit outlining what it thought to be its actual,
reasonable attorney fee. This was filed a full three weeks before the date the trial court held a
hearing on BAS's request. Plaintiffs cannot argue that BAS's motion was "stale."
Auch rejected the evaluation award.
For the foregoing reasons, we conclude that the trial court did not err when it awarded
BAS case-evaluation sanctions.
XIII. AWARD OF COSTS
Plaintiffs assert that the trial court erred when it awarded costs to Auch because those
costs were unsupported and excessive. We review an award costs pursuant to MCR 2.625 for an
abuse of discretion. Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 245;
635 NW2d 379 (2001) .
Plaintiffs maintain that the trial court abused its discretion when it awarded costs to
Auch, which prevailed on all of plaintiffs' claims, because Auch forced plaintiffs out of business
by rejecting case evaluation and proceeding to trial in a case that plaintiffs filed. Plaintiffs
maintain that because of the enormous expense and debt that they incurred in preparing their
case for trial, the trial court abused its discretion by awarding Auch costs. Plaintiffs attempt to
blame defendants for this situation because defendants declined to settle a case in which,
ultimately, defendants prevailed completely with respect to every claim.30 Plaintiffs further
assert that the costs taxed by Auch were "excessive."
Plaintiffs' argument that the trial court abused its discretion when it awarded costs to
Auch because plaintiffs incurred a large expense in prosecuting their own case is wholly without
merit. Plaintiffs fail to cite any authority for such a proposition, and the proposition confounds
Plaintiffs claim that the award of costs was excessive because some of the hours billed by
Dunleavy were paid for the work of members of Dunleavy's staff who did not testify at trial.
Plaintiffs do not cite any authority to explain why this constitutes an excessive expense, nor do
they explain why (or even if) this was not a necessary expense incurred by Auch in the
preparation of its defense. A party waives an issue by giving it cursory treatment on appeal.
Blazer Foods, supra at 252. Moreover, given the length of the trial, the size of the construction
project involved, and the several hundred exhibits admitted by plaintiffs, we agree with Auch
that it is reasonable to expect a significant expense on the part of its experts who spent time
reviewing documents produced in connection with this trial.
In other words, plaintiffs apparently are of the opinion that this Court should reverse the trial
court's award of costs to Auch because Auch had the temerity to actually defend itself against
plaintiffs' claims, as opposed to simply surrendering any meritorious defenses and paying
plaintiffs a settlement.
We also note that plaintiffs decline to acknowledge that, in all likelihood, plaintiffs filed the
instant action of their own volition.
Because plaintiffs have failed to cite any authority in support of their contention, and
because they have not established that the costs were not reasonably incurred for a case of this
magnitude, we hold that the trial court did not abuse its discretion when it awarded Auch costs.
Plaintiffs assert that the trial court erroneously failed to apportion costs between Laser
and Badiee. We hold that plaintiffs have waived this issue because they have cited no authority
whatsoever in support of their arguments. A party may not state their position and then leave it
to this Court to search for authority in support of that position. Conlin, supra at 384.
/s/ Henry William Saad
/s/ Richard Allen Griffin
/s/ Peter D. O'Connell