IGOR BERGER V ALLA KATZ
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STATE OF MICHIGAN
COURT OF APPEALS
IGOR BERGER, a/k/a GERALD BERGER,
UNPUBLISHED
July 28, 2011
Plaintiff/Counter-DefendantAppellee,
v
No. 291663
Wayne Circuit Court
LC No. 07-707413-CZ
ALLA KATZ and PAUL KATZ,
Defendants/Counter-PlaintiffsAppellants.
IGOR BERGER, a/k/a GERALD BERGER,
Plaintiff-Appellant,
v
No. 293880
Wayne Circuit Court
LC No. 07-707413-CZ
ALLA KATZ and PAUL KATZ,
Defendants-Appellees.
Before: WILDER, P.J., and SAAD and DONOFRIO, JJ.
WILDER, P.J. (dissenting in part).
I respectfully dissent from part VI of the Court’s opinion awarding case evaluation
sanctions to plaintiff.
In this case, as the majority opinion concedes, the case evaluation panel disregarded
MCR 2.403(K)(2) when it issued one award for plaintiff’s claims against both defendants.
Plaintiff did not object, however, and therefore, the trial court correctly interpreted the award in
accordance with the court rule, finding that there was a net award of $50,000 against each
defendant. The trial court then compared these awards to the jury verdict of $22,000 against
each defendant pursuant to MCR 2.403(O)(4)(a), which clearly prohibits aggregating an award:
“in determining whether the verdict is more favorable to a party than the case evaluation, the
court shall consider only the amount of the evaluation and verdict as to the particular pair of
parties, rather than the aggregate evaluation or verdict as to all parties.” (Emphasis added.)
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When construing a court rule, the word “shall” indicates a mandatory provision. Howard v
Bouwman, 251 Mich App 136, 145; 650 NW2d 114 (2002).
Furthermore, in my judgment, consideration of whether defendants, as counter-plaintiffs,
bettered their position is not warranted. While courts are prohibited from aggregating mediation
awards amongst multiple defendants, courts must aggregate the awards stemming from claims
and counter-claims amongst particular pairs of parties. MCR 2.403(O)(4)(a); see also Minority
Earth Movers, Inc v Walter Toebe Const Co, 251 Mich App 87, 94; 649 NW2d 397 (2002)
(“[M]ediation evaluations on a claim and counterclaim are to be treated as a whole for purposes
of acceptance or rejection.”). Under the applicable case law and court rule, then, it is
inappropriate to view in isolation only one side’s award from a claim or counter-claim. Instead,
a court is required to consider a plaintiff’s aggregate award against each particular defendant.
Here, for the reasons stated above, the mediation panel is considered to have awarded plaintiff a
net amount of $50,000 against Alla Katz. Because the jury verdict only awarded plaintiff
$22,000 against Alla, plaintiff is not entitled to sanctions against Alla. Likewise, because the
mediation panel awarded plaintiff $50,000 against Paul Katz and the jury only awarded $22,000,
plaintiff is not entitled to sanctions against Paul either.
Finally, I disagree with the majority’s conclusion that defendants waived or forfeited1
their right to have MCR 2.403(O)(4)(a) enforced because they did not object to the form of the
mediation award. As noted earlier, neither plaintiff nor defendants objected to the mediation
award’s form. Any party that fails to make such an objection may not later seek to view the
award contrary to the plain language of MCR 2.403(O)(4)(a). Cf. Roberts v Mecosta Co General
Hosp, 466 Mich 57, 64-67; 642 NW2d 663 (2002) (the failure of the defendant in a medical
malpractice case to object to the adequacy of the plaintiff’s notice of intent did not constitute a
waiver of the notice’s requirements that were listed in the plain language of the statute). Thus, in
my judgment, plaintiff forfeited the ability to have the $50,000 mediation award treated as
anything other than $50,000 against each defendant when he failed to object to its form.
/s/ Kurtis T. Wilder
1
Because waiver is the “intentional relinquishment or abandonment of a known right” and the
parties appeared to have done nothing other than fail to object to the manner of the mediation
award, their actions are more akin to forfeiture, which is merely the failure to object. People v
Carines, 460 Mich 750, 763 n 7; 597 NW2d 130 (1999).
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