Docket 108848 | Mich. Ct. App. | Oct 27, 1989
BAKER
v.
KALANJ
Michigan Court of Appeals.
Keller & Katkowsky, P.C. (by Lawrence S. Katkowsky), for plaintiff.
Dilley, Dewey & Damon, P.C. (by Thomas M. Rizzo), for Karen Marie Kalanj.
Frank S. Spies, for Neil Enterprises, Inc.
Before: WAHLS, P.J., and GRIBBS and R.B. BURNS,[*] JJ.
PER CURIAM.
In this dramshop action in which a jury determined that plaintiff had no cause of action, defendant Karen Marie Kalanj argues that the Barry Circuit Court erred in denying her motion for costs, including attorney fees, under MCR 2.403(0). Under that court rule, if a party and an opposing party reject a mediation evaluation, *567 one of those parties is obligated to pay the actual costs, including reasonable attorney fees, of the other party if the verdict is more favorable to the other party than was the mediation evaluation. In this case, a mediation evaluation of $90,000 against Kalanj was rejected by both plaintiff and Kalanj and, ultimately, a jury determined that Kalanj was not liable to plaintiff for any money damages. The mediation evaluation further assessed liability of $30,000 and $3,000, respectively, against defendants Gilkey Lake Tavern, Inc., and Neil Enterprises, Inc., doing business as Prairie Schooner. The mediation evaluation was rejected by all parties except Neil Enterprises, Inc.
Under other circumstances, defendant Kalanj may well have been entitled to an award against plaintiff for actual costs incurred. In this case, however, as emphasized by the circuit court at the February 19, 1988, hearing on defendant Kalanj's motion for costs under MCR 2.403(0), the name-and-retain provision of the dramshop act, MCL 436.22(6); MSA 18.993(6), required plaintiff to refrain from settling, and thereafter releasing defendant Kalanj from, this case until the claims against all defendants were resolved. That provision requires that an alleged intoxicated person Kalanj, in this case must be retained in an action against a bar which allegedly served that person while the person was visibly intoxicated "until the litigation is concluded by trial or settlement." If plaintiff had settled his claim with defendant Kalanj pursuant to the mediation evaluation, his entire action, including his claims against the two bars which allegedly served Kalanj liquor while she was visibly intoxicated, would have been subject to dismissal for failure to comply with the dramshop act's name-and-retain provision. Thus, plaintiff, who did not desire to accept the mediation *568 evaluation as it existed regarding the two bars, was constrained to reject the evaluation as it existed regarding defendant Kalanj. To do otherwise would have fatally jeopardized the entire case. Such a result occurred to another plaintiff in Bodell v Califf, 164 Mich. App. 95; 416 NW2d 341 (1987). In that dramshop action, the plaintiff accepted a mediation evaluation against the allegedly intoxicated person, and this Court affirmed an order of the circuit court granting summary disposition to the bar which had allegedly served liquor to that person while the person was visibly intoxicated, on the ground that, by settling with the allegedly intoxicated person, the plaintiff had violated the requirement of the dramshop act's name-and-retain provision. Moreover, the panel in Bodell rejected the plaintiff's argument that the name-and-retain provision conflicts with the court rule governing mediation, stating:
Mediation is not mandatory on any party. MCR 2.403. Here, plaintiff had a choice to either forego mediation or elect to submit to mediation. By agreeing to mediate, plaintiff forfeited his opportunity to proceed against the dramshop defendant since the AIP [allegedly intoxicated person] was no longer a party to the action as required by MCL 436.22(5); MSA 18.993(5). [164 Mich. App. 98.]
In this case, plaintiff failed to object in any way to the court's order of mediation. See MCR 2.403(C).
Nor could plaintiff have filed a conditional acceptance of the mediation evaluation pursuant to MCR 2.403(L)(3), as is suggested in defendant's appellate brief, so as to have permitted him to have accepted the evaluation against defendant Kalanj and rejected it against the defendant bars. While subsection (L)(3)(b) of that rule provides that "[a] party who accepts all of the [mediation] *569 awards may spacifically indicate that he or she intends the acceptance to be effective only if all opposing parties accept," plaintiff in this case had no intention to accept "all of the [mediation] awards," desiring instead to litigate the liability of the two bars.
Accordingly, we hold that the trial court did not err in denying defendant's motion for costs, including attorney fees, under MCR 2.403(0).
Affirmed.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.