JOANN KUSMIERZ V JOYCE SCHMITT
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
JOANN KUSMIERZ, KERRY KUSMIERZ, KIM
L. LINDEBAUM, JAMES B. LINDEBAUM, and
M SUPPLY CO.,
FOR PUBLICATION
November 15, 2005
9:15 a.m.
Plaintiffs-Appellees,
v
No. 258021
Bay Circuit Court
LC No. 01-003467-CZ
JOYCE SCHMITT and DIANE RANKIN,
Defendants-Appellants,
and
Official Reported Version
RONALD SCHMITT,
Defendant.
Before: Bandstra, P.J., and Neff and Donofrio, JJ.
BANDSTRA, P.J.
This appeal raises issues concerning the case evaluation process under MCR 2.403. We
conclude that the trial court erred in augmenting the value of the jury verdict because of an order
granting plaintiffs injunctive relief and, as a result, awarding plaintiffs "actual costs" (including
attorney fees) as a case evaluation sanction against defendants. MCR 2.403(O)(5) only
authorizes that approach if it is "fair . . . under all of the circumstances." Here, we conclude that
it was not fair under all the circumstances because the case evaluators had not considered
equitable relief in determining their award to plaintiffs and because the jury, at trial, had already
made a determination of the attorney fees to which plaintiffs were entitled. Further, the trial
court failed to compare the case evaluation award and jury verdict for each pair of plaintiffs and
defendants as required by MCR 2.403(O)(4)(a). Accordingly, we vacate the orders of the trial
court regarding actual costs and remand for further proceedings consistent with this opinion.
FACTS AND PROCEEDINGS BELOW
A brief summary of the family dispute underlying this case suffices for the purposes of
the issues raised on appeal. In June 2001, plaintiffs JoAnn Kusmierz, Kerry Kusmierz, Kim
-1-
Lindebaum, James Lindebaum, and M Supply Company filed suit against defendants Joyce
Schmitt, Ronald Schmitt, and Diane Rankin, alleging claims of defamation, intentional infliction
of emotional distress, and invasion of privacy/false light. Plaintiffs JoAnn Kusmierz and James
Lindebaum are sister and brother, and their spouses are Kerry Kusmierz and Kim Lindebaum,
respectively. Plaintiff M Supply Company is a family business associated with plaintiffs.
Defendants Joyce Schmitt and Diane Rankin are sisters of plaintiffs JoAnn Kusmierz and James
Lindebaum, and defendant Ronald Schmitt is defendant Joyce Schmitt's husband. Plaintiffs'
complaint requested a money judgment in the amount of no less than $25,000 for each individual
plaintiff. It sought recovery under the Revised Judicature Act's provision for libel and slander
actions based on communications involving private individuals, which limits recovery to
"economic damages including attorneys fees." MCL 600.2911(7). However, it did not contain a
request for equitable relief.
In June 2002, the case was submitted for evaluation. The case evaluators rendered an
evaluation of $25,000 in favor of all plaintiffs against defendants Joyce Schmitt ($17,500) and
Diane Rankin ($7,500), and found no cause of action against defendant Ronald Schmitt. The
case evaluation stated that "[b]y stipulation of the parties, all plaintiffs are treated as one."1 The
award was rejected by plaintiffs and defendants Joyce Schmitt and Diane Rankin, but was
accepted by defendant Ronald Schmitt. Following the evaluation process, on stipulation of the
parties, M Supply Company was dismissed as a plaintiff.
In April 2003, the case proceeded to trial. During trial, defense counsel took issue with
the presentation of evidence concerning attorney fees because plaintiffs' complaint did not
include a request for an award of attorney fees, and because their witness list had not identified
anyone able to provide testimony about the reasonableness of the fees charged. Defense counsel
argued that the statutory attorney fees that plaintiffs sought under MCL 600.2911(7) were
"special damages" that must be "specifically stated" in the pleadings under MCR 2.112(I). In
response, plaintiffs moved to file an amended complaint under MCR 2.118(C)(2), arguing that
statutory attorney fees were not "special damages" that were required to be specifically pleaded
in the original complaint, and that, in any event, adding attorney fees as part of the damages
would not prejudice defendants. The trial court granted plaintiffs' motion, and the amended
complaint was filed during trial, claiming that economic loss to plaintiffs included attorney fees
and costs. However, like the original complaint, the amended complaint requested only a money
judgment, and did not contain a request for equitable relief. Plaintiffs' counsel, David Skinner,
testified regarding attorney fees incurred by plaintiffs for his services.
1
We note that MCR 2.403(H)(4) specifically allows such an approach, but only where the
plaintiffs are "members of a single family." Here, two of the individual plaintiffs are brother and
sister, but the other two are in-laws, unrelated to each other by blood or marriage. This raises a
question about the foursome's status as a "single family." Further, one of the plaintiffs, M
Supply Company, a business entity, is certainly not a family member. Nonetheless, the parties
stipulated plaintiffs' receiving a "lump sum" case evaluation award and no one contests that
approach on appeal. Accordingly, we accept this approach for the purpose of our analysis of the
issues presented, but without making further comment on its propriety.
-2-
During closing argument, defendants argued that if attorney fees were awarded, they
should be limited to the actual amount paid, and that the award should be apportioned among
plaintiffs according to the amount of damages recovered by each of them. The trial court
instructed the jury that if it decided that the plaintiffs were entitled to damages, it should
determine the amount of money that would reasonably, fairly, and adequately compensate
plaintiffs, and that the elements of damages should include actual and future attorney fees and
costs. M Civ JI 50.01. During deliberations, the jury asked for clarification regarding damages,
and the trial court provided an instruction regarding noneconomic damages. M Civ JI 50.02.
The jury found defendants liable for damages totaling $22,000, allocated as follows:
$11,000 against defendant Diane Rankin, $9,000 against defendant Joyce Schmitt, and $2,000
against defendant Ronald Schmitt. Out of the total award, $10,000 were awarded for attorney
fees—$5,000 to plaintiff James Lindebaum and $5,000 to plaintiff Kim Lindebaum. The
remainder of the award for was for noneconomic damages—$5,000 to plaintiff James
Lindebaum, $5,000 to plaintiff Kim Lindebaum, $1,000 to plaintiff JoAnn Kusmierz, and $1,000
to plaintiff Kerry Kusmierz.
In May 2003, plaintiffs moved for additur or partial new trial and judgment
notwithstanding the verdict under MCR 2.610, MCR 2.611(A)(1)(a), (d), and (e), and MCR
2.611(E), arguing that both the economic and noneconomic damages awarded were grossly
inadequate and against the great weight of the evidence, and that the trial court's belated jury
instruction regarding noneconomic damages constituted an irregularity in the proceedings.
Plaintiffs also moved for costs and attorney fees under MCR 2.625(A)(2) and MCL 600.2591(1)
on the basis that the defenses asserted by defendants were frivolous. Plaintiffs also moved for
injunctive relief under MCR 3.310(H), requesting that defendants be permanently enjoined from
engaging in harassing conduct.
In December 2003, the trial court denied plaintiffs' motion for additur or partial new trial
and judgment notwithstanding the verdict, finding that the jury verdict was not grossly
inadequate or against the great weight of the evidence. Specifically, the trial court found that the
amount awarded by the jury for attorney fees was within the range supported by the evidence
presented at trial and declined to disturb the jury's finding that plaintiffs did not suffer economic
damages. The trial court also found that there was no error in the jury instruction regarding
noneconomic damages, where plaintiffs failed to request the instruction before the jury began
deliberating, failed to object to the instructions as given, and only requested the instruction after
the jury asked a question pertaining to noneconomic damages. The trial court also denied
plaintiffs' motion for costs and attorney fees, finding that the defenses proffered by defendants
were not frivolous. However, the trial court granted in part plaintiffs' motion for injunctive
relief, notwithstanding the fact that no form of injunctive relief had been requested in the original
or amended complaint. The trial court acknowledged that injunctive relief "was not specifically
requested in either [c]omplaint," but found that it had the authority to enter such an order "in the
interest of justice."
In February 2004, the trial court entered an order for injunctive relief, enjoining
defendants from sending letters or packages to plaintiffs' residences or places of employment,
coming within a quarter mile of plaintiffs' residences, and putting anything in plaintiffs'
-3-
mailboxes or driveways for three years. A final written judgment was also entered in accordance
with the jury verdict. No appeals were taken from either of these orders.
Plaintiffs then moved for a determination of case evaluation sanctions under MCR 2.403,
arguing that the verdict was not more favorable to defendant Joyce Schmitt than to plaintiffs
because plaintiffs received both a monetary award and an equitable award and it was fair to
award costs under all the circumstances. Stated another way, plaintiffs maintained that, although
the adjusted verdict in their favor was less than the total case evaluation award, the verdict was
not more favorable to defendant Joyce Schmitt than to them, by virtue of the trial court's award
of injunctive relief.2 Plaintiffs requested that the trial court award case evaluation sanctions in
the amount of $86,298.30, including costs and reasonable attorney fees, with interest assessed
from the date the complaint was filed.
Defendant Joyce Schmitt also moved for case evaluation sanctions, arguing that, where
the case evaluation resulted in an award of $17,500 against her and in favor of plaintiffs and the
adjusted jury verdict was $10,254.59 against her and in favor of plaintiffs, the adjusted verdict
was more favorable to her than the case evaluation. Defendant Joyce Schmitt argued that,
therefore, she was entitled to taxable costs and attorney fees incurred after rejection of the case
evaluation under MCR 2.403(O)(1) and MCR 2.403(O)(6), in the amount of $51,960.13.
Defendants further responded to plaintiffs' motion for a determination of case evaluation
sanctions by arguing that it would be inappropriate for the trial court to consider its posttrial
grant of injunctive relief as a basis for an award of case evaluation sanctions for the following
reasons: (1) the order granting injunctive relief was not a part of the "verdict" for the purpose of
determining liability for case evaluation sanctions; (2) plaintiffs never requested equitable relief
in either their original or first amended complaint, and no such request was considered by the
case evaluators; and (3) the motion for injunctive relief was not filed until after the jury returned
a verdict that supported an award of case evaluation sanctions in favor of defendant Joyce
Schmitt. Defendants also argued that it would be inappropriate for the trial court to award
additional attorney fees as case evaluation sanctions because evidence supporting plaintiffs'
claims for attorney fees was presented to the jury at trial over defendants' objections, the jury
rendered its award of attorney fees on the basis of the evidence presented, and the trial court
denied plaintiffs' motion for additur relating to the allegedly insufficient award of attorney fees.
In July 2004, following hearings on the parties' motions for case evaluation sanctions, the
trial court granted case evaluation sanctions, generally, in favor of plaintiffs and denied case
evaluation sanctions in favor of defendant Joyce Schmitt. The trial court rejected defendants'
argument that an additional award of attorney fees as case evaluation sanctions was inappropriate
2
Plaintiffs' argument in this regard was based on a misconstruction of the case evaluation rules.
In situations like this, where both parties have rejected the case evaluation, "a party is entitled to
costs only if the verdict is more favorable to that party than the case evaluation," without any
consideration of whether the verdict was "not more favorable" to the other party. MCR
2.403(O)(1).
-4-
in light of the jury's consideration and award of attorney fees as an element of plaintiffs'
damages. However, the trial court indicated that the amount of attorney fees awarded as case
evaluation sanctions would be reduced by the amount previously awarded by the jury. The trial
court also rejected defendants' argument that its posttrial award of injunctive relief could not be
used as a basis for an award of case evaluation sanctions, stating, "I believe that the language in
the complaint, which states that the plaintiff requests all other reliefs as necessary is sufficient for
this Court to consider the equitable relief received." Therefore, the trial court's award of case
evaluation sanctions to plaintiffs was based on the adjusted verdict enhanced by an unspecified
value attributed to its posttrial award of injunctive relief.
The trial court awarded plaintiffs "actual costs" under MCR 2.403(O)(6) in the amount of
$67,259.60. Defendants Joyce Schmitt and Diane Rankin appeal as of right the trial court's
posttrial case evaluation sanctions decisions.
DISCUSSION OF THE ISSUES RAISED3
Defendants argue that the trial court erred in considering its posttrial award of injunctive
relief as a basis for an award of case evaluation sanctions in this case under MCR 2.403(O)(5).
We review de novo as a question of law a trial court's decision to grant or deny case evaluation
sanctions. Campbell v Sullins, 257 Mich App 179, 197; 667 NW2d 887 (2003). Likewise, we
review de novo as a question of law the interpretation and application of court rules. Peters v
Gunnell, Inc, 253 Mich App 211, 225; 655 NW2d 582 (2002).
Defendants first contend that MCR 2.403(O)(5) did not allow the trial court to consider
its award of injunctive relief in determining plaintiffs' entitlement to case evaluation sanctions.
MCR 2.403(O)(5) provides:
If the verdict awards equitable relief, costs may be awarded if the court
determines that
(a) taking into account both monetary relief (adjusted as provided in
subrule [O][3]) and equitable relief, the verdict is not more favorable to the
rejecting party than the evaluation, and
(b) it is fair to award costs under all of the circumstances.
3
We initially note that the jurisdictional challenge raised by plaintiffs in their brief on appeal
was already rejected in response to their motion to dismiss under MCR 7.211(C)(2)(c) ("the
appeal is moot"), which motion was denied by our Court in November 2004. Plaintiffs argued
that defendants' satisfaction of the judgment before filing their claim of appeal operated as a
waiver of the right to appeal and that the appeal was moot because our Court would be unable to
provide relief to the successful parties on appeal. However, because the judgment was
involuntarily satisfied through a variety of garnishments, defendants did not waive their right to
appeal, and therefore the appeal is not moot. See Horowitz v Rott, 235 Mich 369, 372; 209 NW
131 (1926); Becker v Halliday, 218 Mich App 576, 578-580; 554 NW2d 67 (1996).
-5-
Defendants reason that MCR 2.403(O)(5) does not apply because it only refers to a
determination that "the verdict is not more favorable to the rejecting party than the evaluation"
and, in this case, the relevant question is whether the verdict is more favorable to plaintiffs under
MCR 2.403(O)(1), both sides having rejected the case evaluation.
MCR 2.403(O)(1) provides:
If a party has rejected an evaluation and the action proceeds to verdict, that
party must pay the opposing party's actual costs unless the verdict is more
favorable to the rejecting party than the case evaluation. However, if the
opposing party has also rejected the evaluation, a party is entitled to costs only if
the verdict is more favorable to that party than the case evaluation.
Under the wording of the first sentence of this provision (payment must be made "unless the
verdict is more favorable"), the relevant question is whether the verdict is not more favorable to
the rejecting party. If it is not more favorable, the rejecting party must pay the opposing party's
actual costs. That is apparently the genesis of, or counterpart to, the language of MCR
2.403(O)(5)(a), which allows the court to take into account both monetary relief and equitable
relief in determining whether the verdict "is not more favorable" to the rejecting party than the
evaluation.
A different question becomes relevant under the second sentence of MCR 2.403(O)(1)
where both parties have rejected the evaluation. In that case, as was the situation here, a party is
only entitled to costs if the verdict "is more favorable" to that party than the case evaluation.
MCR 2.403(O)(5)(a) contains no language that specifically tracks the second sentence of MCR
2.403(O)(1).
Defendants are thus technically correct in arguing that MCR 2.403(O)(5) does not, by its
terms, contemplate the situation presented here. To more completely address the alternatives of
MCR 2.403(O)(1), MCR 2.403(O)(5)(a) should probably be amended with the addition of a
clause something like "or, in situations where both parties have rejected the evaluation, the
verdict in favor of the party seeking costs is more favorable than the case evaluation."
Nonetheless, MCR 2.403(O)(5) certainly does not prohibit the trial court from placing a value on
equitable relief granted and using it in comparing the verdict and the case evaluation in the
situation presented in this case. To do so furthers the apparent purpose of the rule. We conclude
that the trial court did not err in using MCR 2.403(O)(5) as a guide for this case, even though, by
its terms, it does not technically apply.
Defendants next argue that the order for injunctive relief should not be considered part of
the "verdict" for purposes of 2.403(O)(5). Thus, defendants argue that the trial court erred in
enhancing the adjusted jury verdict by an unspecified value attributed to its posttrial award of
injunctive relief. We disagree.
"Verdict" is defined by MCR 2.403(O)(2)(c) to include "a judgment entered as a result of
a ruling on a motion after rejection of the case evaluation." The trial court's order for injunctive
relief constituted part of the "verdict" because it falls under this definition. That is, it was
entered as a result of a ruling on plaintiffs' motion for injunctive relief after rejection of the case
-6-
evaluation. That remains the case, even though the order was entered after a trial and jury
verdict. See Marketos v American Employers Ins Co, 465 Mich 407, 414; 633 NW2d 371
(2001), (MCR 2.403[O][2] "now clarifies that decisions by the court, as well as by a jury, may be
considered a verdict in some instances.").
Defendants next argue that consideration of the value of equitable relief to award
sanctions in this case is not "fair . . . under all of the circumstances." MCR 2.403(O)(5)(b). We
agree, for a couple of reasons.
First, MCR 2.403(K)(3) allows case evaluators to consider claims for equitable relief
("The evaluation may not include a separate award on any claim for equitable relief, but the
panel may consider such claims in determining the amount of an award."). Thus, evaluators
presented with a case in which the plaintiffs seek "equitable relief" may place a value on that
relief and augment the overall evaluation award accordingly. That approach makes legitimate a
later comparison between the evaluation and a verdict that also includes a value for equitable
relief. Defendants maintain that the case evaluation panel did not consider plaintiffs' request for
injunctive relief when it issued its decision, and that certainly appears to be the case. Plaintiffs'
complaint and amended complaint did not mention any request for injunctive relief, and the trial
court was simply mistaken in suggesting that these pleadings were sufficiently vaguely or
broadly worded to constitute such a request. Because the value of injunctive relief was not
considered by the evaluators, the case evaluation in favor of plaintiffs may well have come in
artificially low and, as a result, the difference between it and the verdict (which did include the
value of injunctive relief) was greater than it should have been.
Further, as summarized above, the jury heard evidence and arguments regarding
plaintiffs' claims for attorney fees under MCL 600.2911(7) and rendered an award of attorney
fees after being properly instructed. The jury's decision in this regard was reviewed and found
appropriate by the trial judge in denying plaintiffs' motion for additur. In light of that, it was not
"fair . . . under . . . the circumstances" of this case for the trial court to later award additional
attorney fees as actual costs under MCR 2.403(O)(5). Under the circumstances of this case, we
conclude that the trial court erred by taking into account the value of the equitable relief it had
ordered in awarding costs against defendants under MCR 2.403(O)(5).
The determination of costs in this case should have been based on the case evaluation
award and adjusted jury verdict, without any consideration of the value of equitable relief. As
the record is sufficient for us to determine which of the parties should be assessed costs, and
which of the parties are entitled to them, we turn to that issue.4
4
We consider this matter on appeal because we think it provides a good illustration of how the
case evaluation rules operate. Our analysis should provide some instruction to the bench and bar
for later cases. However, we caution that the approach we use today is somewhat fact-specific,
depending on the way the evaluation and verdict in this case were structured. Thus, while we
anticipate that our analysis will provide some general principles that might be applicable in other
(continued…)
-7-
We begin by noting that the trial court's imposition of costs was not based on a
comparison of "the amount of the evaluation and verdict as to . . . particular pair[s] of parties," as
it should have been in this multiple parties case. MCR 2.403(O)(4)(a). It is necessary to
determine the case evaluation award for each plaintiff and also to determine the amount of each
plaintiff 's award for which each defendant is liable. Further, it is necessary to determine the
adjusted verdict for each plaintiff and the amount of that adjusted verdict for which each
defendant is liable. Then, a comparison of the evaluation award and verdict for each pair of
parties can be made.
Case Evaluation Award
The case evaluators rendered a lump sum award in favor of the plaintiffs as a group in the
amount of $25,000. Because there is nothing in the record to indicate otherwise, we assume that
this amount was equally for the benefit of each of the five individual plaintiffs in the case at the
time of the evaluation.5 Accordingly, the evaluation award in favor of each individual plaintiff
was $5,000. Further, the case evaluators determined that two of the defendants, Joyce Schmitt
and Diane Rankin were liable to plaintiffs in the amounts of $17,500 and $7,500 respectively.
Again, there being nothing in the record to indicate otherwise, we assume that each of these
amounts was equally for the benefit of each of the five individual plaintiffs.
Thus, the case evaluation award, with respect to particular pairs of parties, was as
follows:
•
Joyce Schmitt is liable to Kim Lindebaum in the amount of $3,500;
•
Joyce Schmitt is liable to James Lindebaum in the amount of $3,500;
•
Joyce Schmitt is liable to JoAnn Kusmierz in the amount of $3,500;
•
Joyce Schmitt is liable to Kerry Kusmierz in the amount of $3,500;
•
Joyce Schmitt is liable to M Supply Company in the amount of $3,500;
•
Diane Rankin is liable to Kim Lindebaum in the amount of $1,500;
•
Diane Rankin is liable to James Lindebaum in the amount of $1,500;
(…continued)
cases, we also anticipate that other cases will require adjustments to the approach we use
depending on the facts and circumstances presented.
5
As noted earlier, the parties here stipulated a lump sum award and the court rules specifically
provide for that approach in certain instances. See n 1. Nonetheless, to allow a comparison of
the evaluation and verdict between "particular pair[s] of parties" as required by MCR
2.403(O)(4)(a), the lump sum award must be divided and allocated to each of the individual
plaintiffs.
-8-
•
Diane Rankin is liable to JoAnn Kusmierz in the amount of $1,500;
•
Diane Rankin is liable to Kerry Kusmierz in the amount of $1,500; and
•
Diane Rankin is liable to M Supply Company in the amount of $1,500.
The case evaluators found no cause of action against defendant Ronald Schmitt and he accepted
that determination.
Adjusted Jury Verdict
The jury verdict against defendants Joyce Schmitt and Diane Rankin totaled $20,000, 6
which, when adjusted to include costs and interest, MCR 2.403(O)(3), is approximately
$21,196.7 The jury also concluded that defendant Joyce Schmitt was liable for $9,000 of the
$20,000 in damages (i.e., 9/20, or 45 percent, of the damages) and defendant Diane Rankin was
liable for $11,000 of the $20,000 in damages ( i.e., 11/20, or 55 percent, of the damages). In
other words, the jury determined that, between those two defendants, Joyce Schmitt was liable
for $9,538 of the adjusted verdict amount (45 percent of $21,196 is $9,538) and Diane Rankin
was liable for $11,658 of the adjusted verdict amount (55 percent of $21,196 is $11,658).
The jury further determined that plaintiffs James Lindebaum and Kim Lindebaum were
each entitled to $10,000 of the $22,000 jury verdict and that JoAnn Kusmierz and Kerry
Kusmierz were each entitled to $1,000.8 In other words, James Lindebaum and Kim Lindebaum
were each entitled to 10/22, or 45.5 percent, of the amounts for which the defendants were liable;
and JoAnn Kusmierz and Kerry Kusmierz were each entitled to 1/22, or 4.5 percent, of the
amounts for which defendants were liable.
Combining these determinations relative to defendants and plaintiffs, the adjusted jury
verdict, with respect to particular pairs of parties, was as follows:
•
Joyce Schmitt is liable to Kim Lindebaum in the amount of $4,340 (45.5% of $9,538);
•
Joyce Schmitt is liable to James Lindebaum in the amount of $4,340 (45.5% of $9,538);
•
Joyce Schmitt is liable to JoAnn Kusmierz in the amount of $429 (4.5% of $9,538);
6
The $2,000 liability verdict against Ronald Schmitt is not included in our analysis because he
accepted the case evaluation and he cannot be liable for, or entitled to, an "actual costs" sanction.
7
We have applied the same proportional adjustment that was used by the trial court to adjust the
total $22,000 jury verdict to approximately $23,315.
8
Because plaintiff M Supply Company was dismissed before trial, the jury returned no verdict
with respect to it and it cannot be liable for, or entitled to, any "actual costs" sanction.
Accordingly, we do not include it in our analysis.
-9-
•
Joyce Schmitt is liable to Kerry Kusmierz in the amount of $429 (4.5% of $9,538);
•
Diane Rankin is liable to Kim Lindebaum in the amount of $5,304 (45.5% of $11,658);
•
Diane Rankin is liable to James Lindebaum in the amount of $5,304 (45.5% of $11,658).
•
Diane Rankin is liable to JoAnn Kusmierz in the amount of $525 (4.5% of $11,658); and
•
Diane Rankin is liable to Kerry Kusmierz in the amount of $525 (4.5% of $11,658).
Parties' Liability or Entitlement to Costs
Comparing the case evaluation awards and adjusted jury verdicts relative to each
particular pair of parties listed above, the verdicts for Kim Lindebaum and James Lindebaum
were "more favorable" to them than were the case evaluations, because the verdicts were "more
than 10 percent above" the evaluations. MCR 2.403(O)(3). However, the verdicts for plaintiffs
JoAnn Kusmierz and Kerry Kusmierz were more favorable to defendants Joyce Schmitt and
Diane Rankin than were the case evaluations, because those verdicts were "more than 10 percent
below" the evaluations. Id.
Accordingly, defendants Joyce Schmitt and Diane Rankin are liable to Kim Lindebaum
and James Lindebaum for "actual costs" including reasonable attorney fees for services
necessitated by the those defendants' rejection of the case evaluation. MCR 2.403(O)(6).
However, JoAnn Kusmierz and Kerry Kusmierz are liable to Joyce Schmitt and Diane Rankin
for the "actual costs" they incurred as the result of the Kusmierzes' rejection of the case
evaluation. Id.9
CONCLUSION
The trial court erred when it augmented the value of the verdicts by considering the
injunctive relief granted to plaintiffs. Also, its comparison of the case evaluations and verdicts
was not specific to the pairs of parties as required by the rules. We vacate the trial court's orders
regarding actual costs. We remand this matter for further consideration and entry of orders
regarding actual costs consistent with this opinion. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Janet T. Neff
/s/ Pat M. Donofrio
9
The record before us is not sufficient for us to determine the amounts of these "actual costs."
On remand, the trial court shall determine those amounts.
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
