*1 ELIA v HAZEN February 10, 2000, Rapids. at Grand Docket No. 214227. Submitted 29, 2000, appeal sought. August at 9:05 A.M. Leave to Decided brought an action in the Berrien Circuit Connie Elia and others Hazen, alleging negligently against V. that the defendant Richard plaintiffs in sustained an automobile accident which caused bodily ipjury impairment Mediation function. serious awarding damages plaintiffs. All resulted in an evaluation parties rejected evaluation. A returned a verdict the mediation percent plaintiff damages awarding that were more than ten each evaluation, court, Peterson, J., M. in the and the David above those claiming judgment plaintiffs appealed, on the verdict. The entered request expert denying in their witness that the trial court erred appealed, claiming cross that the fees. The defendant plaintiffs awarding erred in the cost of several the record. were read into Appeals
The Court of held: deny expert 1. lacked discretion to an award of The trial court ground plaintiffs, on the that the in witness fees to the order, scheduling violation of a had failed to disclose their An award of witness fees before the settlement conference. plaintiffs mandatory 2.403(O)(l), under MCR witness fees to the party pay opposing party’s provides actual which that a party has a mediation evaluation and the costs where the proceeds action to a verdict that is less favorable to the than purposes 2.403(0), the mediation evaluation. For of MCR actual fees, which are costs include taxable costs such as pursuant 600.2164; 27A.2164, a verdict is taxable to MCL percent less favorable to a defendant if it is more than ten above the evaluation. awarding 2. in the cost of sev- The trial court erred transcripts eral that were read into the record and judge, gave given during trial who in turn them
which were serving MCL to a court clerk as court recorder. provides part in that reasonable and actual fees MSA27A.2549 deposition shall be for the of witnesses filed clerk’s office allowed in the taxation of costs if the were read into Elia v Hazen evidence at trial. In this the submission of the question did not constitute in the clerk’s office. proceedings. Reversed and remanded for further White, J., concurring dissenting part, agreed *2 denying an award of the trial court erred in witness fees to plaintiffs, disagreed depositions but that the were not filed implicit determinations, the clerk’s office. The trial court’s that fil- ing depositions deputy with a operating clerk in a courtroom is fil- “any ing in giving clerk’s office” and that counsel’s actions in transcripts kept to the trial court to be in the file filing, constituted should be affirmed. Expert — 1. Costs Witness Fees. plaintiff
The failure of a requiring with a order expert, parties’ all witness fees be disclosed before the settlement conference does not confer on the trial court discretion to refuse plaintiff’s to award witness fees as actual costs 600.2164; that are otherwise Otaxable under MCL MSA 27A.2164 (MCR2.403[O]). Depositions Filing — — 2. Costs in Clerk’s Office.
Reasonable and actual fees of witnesses filed in clerk’s office are taxable costs in an if action trial; providing transcript were read into deposi- evidence at a of a judge during tion trial does not constitute in the clerk’s office, judge gives transcript deputy even where the to a clerk who also serves as court recorder and the clerk includes transcript judge’s (MCL case file 27A.2549). John W. Ujlaky, plaintiffs. for the James, Dark & Brill (by John C. Fish, Pamela L. Lightvoet, and Brett A. Howell), for the defendant. Zahra, P.J.,
Before: and White and JJ. Hoekstra, Zahra, P.J. In this negligence automobile plaintiffs Elia, Connie Elia, Louis Theresa Cipro, and Andrea Cipro appeal as right from a judgment entered on a verdict, challenging the trial court’s denial of fees as taxable costs. trial court’s appeals, challenging cross Defendant1 deposi- several the cost of awarding plaintiffs order reverse and record. We into the trial tions read proceedings. further remand for in which 9, 1995, the automobile September rear an was struck in the riding filed this by defendant. Plaintiffs automobile driven action, that the colli- alleging negligence automobile of bod- injury impairment sion resulted serious mediated, case was ily function. The evaluation. Fol- defendant the mediation in favor of a verdict was rendered jury trial, lowing was entered on the verdict. plaintiffs, judgment for mediation Thereafter, plaintiffs brought motion fees legal of actual costs and sanctions the form court ordered that pursuant to MCR 2.403. fees. It pay plaintiffs’ legal costs and defendant cost of that were $19,389.16 included the *3 were filed record, ruling read into the trial during and used accor- with the court clerk However, 27A.2549. dance with MCL $13,750.43 plaintiffs’ request for the trial court denied fees, failed to expert ruling witness expert a order that all requiring with parties’ before the settle- witness fees be disclosed ment conference. erred appeal, plaintiffs argue that the trial court witness fees on the request their denying forth in noncompliance requirements with set
basis of order. A trial pretrial scheduling this case’s original in- award mediation sanctions court’s decision to 1 defendant-appellee Richard V. Hazen as “defendant.” We will refer to Corporation, is with Motors which Plaintiffs settled their claims General appeal. to this v 377 Eua Hazen Opinion is de novo. of law that reviewed question
volves
Employers
Ins
v American
240
Marketos
citing Great
684, 698;
(2000),
NW2d 848
Market,
v
Partnership
Ltd
Gas Transmission
Lakes
How-
(1997).
In the two ing below. The first was entered orders entered 7, 1996, by Casper on O. Grathwohl. August Judge provided, respect with That order fees: conference, attorneys exchange
Prior to settlement reasonable, necessary proper fee or statements proposed witnesses and which rate fee any question If there is as to later be taxed costs. paid, must be and heard the fee or rate of fee to be it raised prior of fees not to the settlement conference. Fees rate *4 exchanged will not allowed and those so statement be objection exchanged be allowed should costs without shall awarded. App 242 Mich reassigned Judge This case was later to John T. Ham- mond, who entered an pretrial amended scheduling February 11, order on 1997. That order was silent respect with to undisputed witness fees.2 It is plaintiffs comply that did not with original order’s requirement that disclose all witness fees before the settlement conference. argue, Plaintiffs however, that the pretrial amended order, which does require superseded disclosure, original order. it unnecessary We find to plaintiffs decide whether required to with the terms of origi- nal scheduling order plaintiffs are entitled fees as mediation sanctions.
This case was mediated in favor $30,000 amounts of for Cipro, Andrea $35,000 for The- $5,000 Cipro, resa for Connie Elia, $22,500 for Elia. Louis Plaintiffs and defendant the medi- ation Thereafter, jury evaluation. rendered the fol- lowing unadjusted plaintiffs: verdict in favor of $75,000 for Cipro, Andrea $105,000 Cipro, Theresa $17,500 for Elia, $75,000 Connie for Louis Elia.3 The trial court entered judgment on the verdict.
Generally, a party rejects a mediation evalua subject tion is to sanctions if does not its improve position at W trial. Grow v A Thomas 696, 716; NW2d 426 (1999), citing Meagher, supra at 157. MCR 2.403(O)(1) provides: subsequently reassigned Maloney Judge was case Paul L. Judge Peterson, presided then to David M. who over the trial posttrial Maloney Judge Judge motions at now issue. Neither nor Peterson pretrial scheduling entered orders. $1,500 Each amounts awarded individual are less proceeds Corporation settlement from General Motors and interest thereon. *5 379 Eua Hazen rejected pro- party action an evaluation and the
If a has pay party’s party opposing verdict, the ceeds to that verdict is more favorable actual costs unless the However, rejecting party if than mediation evaluation. party evaluation, rejected a opposing party also has more if the verdict is favorable is entitled to costs evaluation. that than the mediation mediation evalua- parties that Given percent is more than ten tion and the verdict a are, as matter value, plaintiffs above the mediated the amount to mediation sanctions in law, of entitled Great Lakes 2.403(O);4 “actual costs.” MCR their Partnership, supra at 130 Gas Transmission Ltd clear of MCR (applying language 2.403[O][l] word ‘must’ indi- that the rule’s “use holding dis- mandatory, is cates that the award of costs purposes 2.403, of MCR “actual cretionary”). For the are costs taxable in civil costs” defined as “those attorney fee based on action, ... reasonable hourly daily by rate determined reasonable rejection judge for services necessitated 2.403(O)(6)(a) evaluation.” MCR of the mediation Grow, supra. power to tax certain see (b); prevailing party expenses statutory, is and the cannot authority. expenses statutory recover such absent Farm Mut Automobile Ins Beach v State wit- Expert App 612, 621; (1996). Mich 600.2164; MSA under MCL ness fees are taxable by plaintiffs fees incurred Expert 27A.2164. MCR part of “actual costs” under would be their adding right even without to mediation sanctions is clear Plaintiffs’ itself the amount the verdict assessable costs and interest that percent MCR the mediation evaluation. See ten above more than 2.403(O)(3). 242 Opinion 2.403(0). Therefore, the trial court lacked discretion to refuse to award witness fees on the ground noncompliance there was with the terms set forth in the scheduling Accordingly, order. plaintiffs are provable expert entitled to witness fees on remand. appeal, cross argues defendant the trial
court erred in awarding
cost
several
that were read into the trial
record.
*6
Defendant
contends
the trial court misinter-
preted MCL 600.2549; MSA
in awarding
27A.2549
such
We
questions
statutory
costs.
review
of
interpretation
de novo. In re MCI Telecommunications Complaint,
396, 413;
Mich
MCL provides: MSA 27A.2549 depositions Reasonable and actual fees for wit- of any copies nesses filed in clerk’s office and the for certified papers any of or public documents recorded or filed in shall office be allowed in if, the of taxation costs at the damages assessed, depositions or when were the were evidence, except impeachment read in purposes, for the papers necessarily documents or were used. Here, plaintiffs were thirty-five awarded the costs depositions that were read into the record at trial. It undisputed is majority the depositions of those were not filed the office,5 circuit court clerk’s but were presented instead trial judge during the course of the trial. The trial judge then gave them to Deann Kuelbs, who served the Berrien County video clerk/deputy court court clerk and present was in the throughout courtroom the trial. Kuelbs kept the subsequent regarding See our discussion of the Roy Dr. Brian Cruise Dr. and R. A. Till. v Hazen Elia
Opinion judge’s file. Defendant does with the case dispute were read that the several not trial, rather, dis- but, used in the course and putes office” “filed in clerk’s whether 600.2549; MSA27A.2549. with MCL in accordance plain language statute, the trial Under the taxing erred in the costs those a clerk’s office. not filed in primary judicial interpretation of statutes is intent of Legislature. give to the intent to ascertain effect determining specific is lan- The first intent criterion presumed Legislature guage of statute. The is have plainly expressed. meaning not intended the it Courts probable Legislature speculate regarding intent of beyond expressed in Where the lan- words the statute. certain, employed plain, unambigu- guage in a is statute interpre- ous, applied as written without statute be ordinary plain meaning of the lan- tation. When normally clear, judicial guage is neither construction necessary permitted. applied, nor Such statute must speaks v I interpreted, it because itself. [Portelli Co, Inc, 606-607; App 591, R Constr Products (citations omitted).] (1996) *7 the court’s Portelli, In this Court reviewed trial taxa- depositions, excerpts which were of costs of tion summary motion for dis- included in the defendant’s position Id. was with the court clerk. at 606. that filed dep- appeal, plaintiff argued that, because any filed in clerk’s themselves were not ositions taxing Id. office, the trial court erred in their costs. plain, stating, agreed,, clear, “The This Court unambiguous language 600.2549; of MCL MSA Legislature intended the 27A.2549indicates that depositions in a clerk’s of costs filed taxation Despite supra at the fact the Portelli, 607. office.” 242 depositions were used to resolve this Court authority held that the trial court statutory lacked to tax the Id. depositions. costs present
We reach the same conclusion case. Notwithstanding plaintiffs presented that the several deposition transcripts judge, who eventu- ally passed Kuelbs, them to clerk depositions any were not filed in and, thus, clerk’s office were not filed accordance with MCL 600.2549; MSA Consequently, plaintiffs 27A.2549.6 are not entitled to depositions. the costs those This conclusion nec- essary notwithstanding “logic that would indicate that used resolve a case should be taxa- Portelli, ble ....” supra at 607. We are apply bound to the plain, unambiguous language of MCL 600.2549; 27A.2549, requires which that “filed in office,” clerk’s speculate regarding probable intent the Legislature beyond language that otherwise or construe the stat- ute’s clear language. Portelli, supra.
We note that the deposi- record indicates that the tions Dr. Brian Roy Cruise and Dr. R. A. Till were properly filed in the circuit court clerk’s office. There- fore, the costs of those two are taxable pursuant 600.2549; to MCL MSA 27A.2549 and should be considered taxable on remand.7 despite suggesting We reach that conclusion evidence Berrien employs policy parties option Circuit Court that allows to “bench ¡file” requirements Legislature documents. The set forth our in MCL supersede any policy procedure. MSA 27A.2549 local court 7 Despite argument appeal on defendant’s this Court is without authority to decide whether are entitled to costs for these two depositions, plaintiffs’ assertion that are entitled to those costs was preserved below. The issue whether were entitled to the costs of before, that were read into the record was raised by, Therefore, authority addressed the trial court. we have to review the *8 383 v Hazen Et.ta by Opinion White, J. proceedings consistent and remanded
Reversed jurisdiction. opinion. not retain We do this with J., concurred. Hoekstra, part dissenting (concurring in J. White, majority’s
part?)
join
first
discussion
I
in the
concerning
fees for
the denial
issue
first
I dis
order.
to
with
failure
deposi
majority’s conclusion that the
sent from
MCL
not
filed in accordance with
tions were
I
trial
would affirm the
600.2549; MSA 27A.2549.
during
acts taken
counsel
that the
court’s decision
filing
the statute.
constituted
under
trial
original
During
were
trial,
given
presented
to
court
to the
court
deputy
was a
clerk with the
recorder/clerk, who
at
The
were used
clerk’s office.
for the file.
were left with
recorder/clerk
attorney
then
them back to the
recorder/clerk
sent
space.
were
While the
because of lack
time-stamped
apparently
and entered into
not
still
return,
before their
docket
deputy
be
record. I would
clerk to
implicit
fil
affirm the trial court’s
determinations that
deputy
ing
operating
with a
courtroom
clerk
1
“any
that in
instant
clerk’s office” and
originals
giving
counsel’s actions
App
235;
221,
553
See
v
Mut Ins
issue.
Miller
Farm Bureau
95,
Glynn
Course,
App
(1996);
Sylvan
Adam
Mich
Golf
98;
(1992).
I do not believe that
Portelli
I R Constr Products
Co, Inc,
trial. read statute into the record and said: exactly says I me, any So can read that for what it filed in were, office think, clerk’s and read as evidence. So—and I there purposes that were read as evidence. And for of this hearing, objection, considering over I’m [defense counsel’s] them office,
filed clerk’s because to Mrs. Kuelbs recorder/deputy kept file, [the and she clerk] those how- ever, sent them back because of the volume involved.