JIMMIE LEWIS V ARTHUR J BOTT
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STATE OF MICHIGAN
COURT OF APPEALS
JIMMIE LEWIS /d/b/a J.L. LEWIS &
ASSOCIATES,
UNPUBLISHED
December 10, 1996
Plaintiff-Appellee/
Cross-Appellant,
v
GRAND RAPIDS PLASTICS, INC., a Michigan
Corporation,
No. 162962
LC No. 89-365466-CK
ON REMAND
Defendant-Appellant/
Cross-Appellee.
JIMMIE LEWIS, d/b/a J.L. LEWIS & ASSOCIATES,
Plaintiff-Appellee/
Cross-Appellant,
v
No. 162963
LC No. 90-391930
ON REMAND
ARTHUR J. BOTT,
Defendant-Appellant/
Cross-Appellee.
_________________________________________
Before: Bandstra, P.J., and Murphy and Jansen, JJ.
PER CURIAM.
By order dated September 27, 1996, the Supreme Court remanded this matter “for plenary
consideration of the issue of whether the Court of Appeals properly denied defendant-appellant’s
motion to tax costs on appeal for the premium paid on the appellant’s letter of credit.” Upon plenary
consideration, we conclude that the motion was improperly denied.
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Plaintiff acknowledges that he agreed to permit the defendant to provide a letter of credit but
argues that he did not agree that any fees incurred by defendant in doing so would be taxable as costs.
Plaintiff further asserts that he agreed to this approach based on his understanding that the cost of
appeal bond premiums are recoverable as taxable costs under the court rules, but that there is no
comparable provision allowing for costs associated with the posting of a letter of credit.
Defendant argues that the letter of credit it procured for the benefit of plaintiff and with plaintiff’s
acquiescence served the exact same purpose and provided plaintiff the exact same security as would
have been available if a surety bond had been purchased instead. Plaintiff does not contest that
argument but, instead, relies on a formalistic approach, arguing that the letter of credit is simply not an
“appeal bond” as required by MCR 3.604 and that the bank, not being a “surety company authorized
to do business in Michigan” had failed to “execute an affidavit that [it] has pecuniary responsibility” for
the letter of credit as required by MCR 3.604(D)(1). Plaintiff does not suggest that its security or
position was in any way compromised by the fact that a letter of credit instead of a bond was issued or
because a bank instead of a surety company was used.
MCR 3.604(e) provides that a party who fails to file a notice objecting “to the sufficiency of the
surety” provided “waives all objections to the surety.” Plaintiff not only failed to file any objection, he
acquiesced to use of the letter of credit. We conclude that the resulting waiver of objections applies to
plaintiff’s objections to the taxation of costs otherwise available to defendant as the prevailing party
under MCR 7.219(F)(2).
Further authority for imposition of costs against plaintiff for the premium paid by defendant for
the letter of credit is found in MCR 7.216(a)(7):
The Court of Appeals may, at any time, in addition to its general powers, in its
discretion, and on the terms it deems just … enter any judgment or order or grant
further or different relief as the case may require.
Plaintiff acquiesced to the use of the letter of credit. Plaintiff suffered no prejudice as a result of that
approach. In light of the facts and circumstances surrounding this case, defendant is entitled to an order
imposing costs against plaintiff for the premium paid on the letter of credit.
Defendant’s motion to tax costs on appeal for the premiums paid on the letter of credit is
GRANTED.
/s/ Richard A. Bandstra
/s/ William B. Murphy
/s/ Kathleen Jansen
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