STOCK BUILDING SUPPLY V STEPHEN ROLLIER
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STATE OF MICHIGAN
COURT OF APPEALS
STOCK BUILDING SUPPLY LLC,
UNPUBLISHED
November 30, 2006
Plaintiff,
v
STEPHEN ROLLIER, d/b/a ROLLIER CUSTOM
HOMES, and ANN ROLLIER,
Defendants-Cross Plaintiffs/Third
Party Plaintiffs/Appellees/Cross
Appellants,
v
DANIEL ZAWLOCKI,
Defendant-Cross
Defendant/Appellant/Cross
Appellee,
and
DEPARTMENT OF LABOR AND ECONOMIC
GROWTH,
Defendant,
and
DENISE MAXWELL,
Third Party
Defendant/Appellant/Cross
Appellee.
Before: Wilder, P.J., and Kelly and Borrello, JJ.
PER CURIAM.
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No. 270144
Genesee Circuit Court
LC No. 04-080022-CH
Cross-defendant Daniel Zawlocki and third party defendant Denise Maxwell appeal as of
right an order granting summary disposition in favor of cross-plaintiffs/third party plaintiffs
Stephen and Ann Rollier under MCR 2.116(C)(10). The Rolliers cross-appeal on the grounds
that the trial court erred in excluding the portion of the judgment awarding attorney fees in
calculating the amount of prejudgment interest under MCL 600.6013(8). We affirm the trial
court’s order granting summary disposition and reverse and remand for recalculation of the
award of prejudgment interest.
I. FACTS AND PROCEDURAL HISTORY
In April 2003, Zawlocki and Maxwell entered into a contract with Stephen Rollier, d/b/a
Rollier Custom Homes, under which Rollier1 was to build a custom home for Zawlocki and
Maxwell for the cost of the supplies used in constructing the home plus ten percent. The
estimated cost of the home was $623,778. The contract contained the following provision:
If the Buyer defaults under this agreement, the Builder may, at the Builder’s
option, pursue all legal and equitable remedies available to the Builder under
Michigan law, and the Builder may retain the monies already paid to the Builder
as liquidated damages. Buyer shall also be responsible for any and all expenses,
costs, and/or attorney fees incurred to recoup and/or reimburse Builder for any
and all damages sustained as a result of Buyers[’] default.
In a letter dated April 28, 2004, Zawlocki and Maxwell sent Rollier a termination letter in which
they “cancelled” the contract with Rollier, asserting that Rollier lied to them and cheated them
“by taking or attempting to take kickbacks from the tradesmen and material suppliers involved
with the building of our home.”
Rollier had purchased lumber and building supplies for Zawlocki and Maxwell’s home
from Stock Building Supply. In October 2004, Stock filed a complaint against the Rolliers
seeking payment of $10,852.83 for the unpaid balance for supplies that Stock had provided for
the construction of Zawlocki and Maxwell’s home.2 Thereafter, the Rolliers filed a cross
complaint against Zawlocki and a third party complaint against Maxwell, alleging, among other
claims, breach of contract, unjust enrichment, quantum meruit, and judicial foreclosure of a
construction lien. On September 22, 2005, the Rolliers moved for summary disposition under
MCR 2.116(C)(10) as to all four of the aforementioned counts in their cross complaint against
Zawlocki and their third party complaint against Maxwell. Zawlocki and Maxwell argued that
summary disposition was not warranted because there was a genuine issue of material fact
regarding whether Rollier attempted to commit a fraud against them by asking two of his
subcontractors to increase their bills to Zawlocki and Maxwell and then pay him the additional
1
References to “Rollier” in this opinion refer to Stephen Rollier.
2
The lower court record indicates that most, if not all, of this amount was charged by Zawlocki
and Maxwell for supplies used in the construction of their home on Rollier’s account with Stock.
Zawlocki and Maxwell ultimately paid Stock approximately $12,000, and the parties stipulated
to dismiss Stock’s complaint against the Rolliers.
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money. The trial court granted the motion as to all four counts in the Rolliers’ cross complaint
and third party complaint on the grounds that Zawlocki and Maxwell had no documentary
evidence to support their claims of a material factual dispute. The trial court therefore entered a
judgment against Zawlocki and Maxwell in the amount of $77,379.27. Of this amount,
approximately $16,000 was for services or materials provided in the construction of the home
and approximately $61,400 was for attorney fees. Zawlocki and Maxwell thereafter moved for
reconsideration, and the trial court denied the motion.
The Rolliers submitted a bill of costs, seeking to recover $9,632.50 in prejudgment
interest under MCL 600.6013(8). The trial court awarded the Rolliers prejudgment interest
under MCL 600.6013(8) on the portion of the judgment representing the Rolliers’ actual losses
and costs, but specifically refused to award prejudgment interest on the amount of the judgment
representing attorney fees.
II. STANDARD OF REVIEW
We review de novo a trial court’s grant or denial of summary disposition under MCR
2.116(C)(10). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A
motion brought under MCR 2.116(C)(10) tests the factual support for a claim. Downey v
Charlevoix Co Bd of Co Rd Comm’rs, 227 Mich App 621, 625; 576 NW2d 712 (1998). The
pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by
the parties must be considered by the court when ruling on a motion brought under MCR
2.116(C)(10). MCR 2.116(G)(5); id. at 626. When reviewing a decision on a motion for
summary disposition under MCR 2.116(C)(10), this Court “must consider the documentary
evidence presented to the trial court ‘in the light most favorable to the nonmoving party.’”
DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836
(2001), citing Harts v Farmers Ins Exch, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial court has
properly granted a motion for summary disposition under MCR 2.116(C)(10) “if the affidavits or
other documentary evidence show that there is no genuine issue in respect to any material fact,
and the moving party is entitled to judgment as a matter of law.” Quinto v Cross & Peters Co,
451 Mich 358, 362; 547 NW2d 314 (1996).
III. ANALYSIS
Zawlocki and Maxwell argue that the trial court erred in granting the Rolliers’ motion for
summary disposition. They assert that summary disposition based on MCR 2.116(C)(10) was
improper in part because there was a genuine issues of material fact regarding whether Stephen
Rollier committed fraud by asking subcontractors Michael Bolton and Matt Henry to inflate their
bills and then pay the additional monies paid by Zawlocki and Maxwell back to him in the form
of a kickback. We find that Zawlocki and Maxwell failed to establish an issue of material fact
regarding this issue. First, regarding Matt Henry, the only evidence presented by Zawlocki and
Maxwell was a copy of a cashier’s check in the amount of $24,258 to Henry and an excerpt from
Stephen Rollier’s deposition testimony in which he referenced that check to Henry and another
$10,000 payment to Henry, but asserted nothing about an allegedly improper kickback. In
addition, they attached to their brief opposing summary disposition a copy of the letter
purporting to terminate the construction contract, in which Zawlocki and Maxwell asserted that
Rollier was “taking or attempting to take kickbacks from the tradesmen and material suppliers
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involved with the building of our home.” Such evidence, without more, simply does not
establish that Rollier was engaged in a scheme to receive kickbacks from its subcontractors.
As for their claim regarding Michael Bolton, Zawlocki and Maxwell did not attach to
their brief opposing the Rolliers’ motion for summary disposition an affidavit or deposition of
Bolton or any other documentary evidence to support their claims.3 The only evidence Zawlocki
and Maxwell offered to support their claim was the deposition testimony of Maxwell, in which
she asserted: “Mr. Bolton told me that [Rollier] had asked him to up his bid on his contract and
give him [Rollier] the rest of the money.” According to Maxwell, the reason that Rollier did so
was because he “wasn’t happy with the 10 percent.” Maxwell’s statement regarding Bolton
telling her that Rollier asked Bolton to increase his price and give Rollier the extra money
constitutes hearsay under MRE 801 because it was a statement, other than one made by Maxwell
while testifying at her deposition, which was offered for its truth. Inadmissible hearsay does not
create a genuine issue of fact. McCallum v Dep’t of Corrections, 197 Mich App 589, 603; 496
NW2d 361 (1992). A party opposing a motion for summary disposition must establish the
existence of a material factual dispute with admissible evidence. MCR 2.116(G)(6); McElhaney
v Harper-Hutzel Hosp, 269 Mich App 488, 497; 711 NW2d 795 (2006). Moreover, while
Zawlocki and Maxwell, in their brief opposing the Rolliers’ motion for summary disposition,
promised to produce the testimony of Bolton at trial, a mere promise to offer factual support at
trial is insufficient to withstand a motion for summary disposition. Kamalnath v Mercy Mem
Hosp Corp, 194 Mich App 543, 553; 487 NW2d 499 (1992). For these reasons, we agree with
the trial court that Zawlocki and Maxwell failed to offer evidence to create an issue of material
fact regarding whether Rollier was engaged in a scheme to inflate the bills of its subcontractors
and then receive the extra money paid by Zawlocki and Maxwell in the form of a kickback.
Zawlocki and Maxwell also argue that there is a genuine issue of material fact regarding
whether the Rolliers were entitled to ten percent of the cost of the windows installed in the home,
which would have been approximately $6,600. According to Zawlocki and Maxwell, the trial
court erred in awarding the Rolliers ten percent of the cost of the windows in the judgment
because they purchased the windows directly from a window supplier after the building contract
was terminated. We hold that Zawlocki and Maxwell failed to establish an issue of fact on this
issue. In support of their argument, Zawlocki and Maxwell attached to their brief opposing the
Rolliers’ motion for summary disposition an affidavit signed by Zawlocki in which Zawlocki
averred that he and Maxwell negotiated the agreement with the window supplier for acquisition
of the windows, that he ordered and paid for the windows, that Maxwell received delivery of the
windows at the construction site, that Rollier was not present when the windows were installed
3
Zawlocki and Maxwell did attach to their motion for reconsideration the affidavit of Michael
Bolton. However, we observe that there is no abuse of discretion in the denial of a motion for
reconsideration that rests on testimony that could have presented the first time the issue was
argued, Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000), and note that
the trial court properly refused to consider the affidavit. Moreover, after reviewing the contents
of Bolton’s affidavit, we reject Zawlocki and Maxwell’s claim that the affidavit supports their
claim that Stephen Rollier was attempting to convince Bolton to inflate the price of his services
and then kickback any monies paid by Zawlocki and Maxwell to him.
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and that he and Rollier agreed that the Rolliers would not receive ten percent of the cost of the
windows installed at the home. Mere conclusory allegations in an affidavit are insufficient to
create a question of fact. Hamade v Sunoco, Inc, 271 Mich App 145, 163; 721 NW2d 233
(2006). Zawlocki’s affidavit was the only documentary evidence offered by Zawlocki and
Maxwell to support their contention that the Rolliers were not entitled to recover ten percent of
the cost of the windows. They did not offer a receipt or an order from the window supplier or
any other documentation. In contrast, counsel for the Rolliers, at the hearing on the motion for
summary disposition, was prepared to supply the order that Rollier had made for the windows as
well as a letter from the window supplier. The order shows that Rollier placed an order for
windows for Zawlocki and Maxwell’s home on February 27, 2004, which was two months
before Zawlocki and Maxwell terminated the construction contract. The letter concerned
Rollier’s “purchasing windows for the Zawlocki residence” and specifically states that Rollier
ordered the windows for Zawlocki’s home, that the windows were delivered at the jobsite and
received by Rollier, and that a representative of the window supplier walked through the home
with Rollier after the windows were installed. Our review of a motion for summary disposition
is limited to the evidence that had been presented to the trial court at the time the motion was
decided. Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005). While it
is not entirely clear whether counsel for the Rolliers physically presented this evidence to the
trial court,4 it is clear that counsel for the Rolliers offered to submit the documents to the trial
court on the record at the hearing on the summary disposition motion and it is clear that the trial
court considered them and relied on them in rejecting Zawlocki and Maxwell’s claim regarding
the Rolliers’ entitlement to ten percent of the cost of the windows. Therefore, viewing the
documentary evidence in a light most favorable to Zawlocki and Maxwell, as the non-moving
parties, we find that they have failed to establish a genuine issue of material fact regarding this
issue. Although it appears that Zawlocki paid the window supplier directly, this does not
establish an issue of material fact regarding whether the Rolliers were entitled to payment of ten
percent of the cost of the windows.
On cross-appeal, the Rolliers argue that the trial court erred in refusing to impose
prejudgment interest on the portion of the judgment awarding attorney fees pursuant to MCL
600.6013(8). We agree.
We review de novo an award of prejudgment interest under MCL 600.6013. B & B
Investment Group v Gitler, 229 Mich App 1, 13; 581 NW2d 17 (1998). The prejudgment
interest statute is to be construed liberally in favor of the plaintiff. Id. The purpose of
prejudgment interest is to compensate the prevailing party for expenses incurred in bringing
actions for money damages and for any delay in receiving such damages. Id.
MCL 600.6013(8) provides:
Except as otherwise provided in subsections (5) and (7) and subject to subsection
(13), for complaints filed on or after January 1, 1987, interest on a money
4
We were unable to locate these two documents in the lower court record.
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judgment recovered in a civil action is calculated at 6-month intervals from the
date of filing the complaint at a rate of interest equal to 1% plus the average
interest rate paid at auctions of 5-year United States treasury notes during the 6
months immediately preceding July 1 and January 1, as certified by the state
treasurer, and compounded annually, according to this section. Interest under this
subsection is calculated on the entire amount of the money judgment, including
attorney fees and other costs. The amount of interest attributable to that part of
the money judgment from which attorney fees are paid is retained by the plaintiff,
and not paid to the plaintiff’s attorney. [Emphasis added.]
The statute plainly provides that prejudgment interest applies to “the entire amount of the
money judgment, including attorney fees . . . .” MCL 600.6013(8). If the language of a statute is
clear and unambiguous, judicial construction is not permitted and the statute must be enforced as
written. People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). In Ayar v Foodland
Distributors, 472 Mich 713, 716; 698 NW2d 875 (2005), our Supreme Court held that MCL
600.6013(8) is clear and unambiguous. MCL 600.6013(8) makes no exception for attorney fees;
to the contrary, it specifically includes them. Because MCL 600.6013(8) clearly and
unambiguously requires prejudgment interest to be applied to attorney fees, we hold that the trial
court should have ordered prejudgment interest on the entire amount of the money judgment,
including attorney fees. We therefore remand for the trial court to award prejudgment interest on
the amount of the money judgment relating to attorney fees.
Affirmed, in part, and reversed and remanded, in part. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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