*1 Co Stine v 1984] v STINE COMPANY HILL APARTMENT MAPLE 10, 1983, August Detroit. Decided 68746. Submitted Docket No. 3, 1984. applied appeal for. to January Leave brought Company, Apartment an action Plaintiff, Maple Hill Stine, architect, profes- defendant, for against W. Robert Gun, who Samuel filed malpractice. retained Defendant sional Thereafter, defendant’s insurer and an answer counterclaim. plaintiff’s against action. defend Dennis Cotter retained regarding represent the counter- defendant refused to Cotter The case claim, believing of interest could arise. conflict single mediation, panel returned a and submitted to was accepted $25,000 plaintiff’s in favor. Defendant of evaluation plaintiff counter- not. The claim and the but the evaluation did $4,700 tried, jury returned а verdict in were and claim of plaintiff no of action defen- of cause and a verdict on favor of Court, John N. Circuit The Oakland dant’s counterclaim. verdicts, and, J., O’Brien, granted judgment on because percent greater ten plaintiff more than did not obtain verdict rejected, was ordered evaluation which the mediation than including plaintiff reasonable pay costs defendant’s actual pay plaintiff Dennis Cotter fee. The court ordered $1,250 costs, $10,108.11 including and for fees testify- expert paid to be to defendant himself for witness fees pay ing in his court also ordered own behalf. The $4,218.75 pursuing Gun fees and costs in Samuel [1, 5 Am Jur [2-5, [4] 20 Am Jur Liability 20 Am Jur Construction 20 Am Jur Who 6] 20 Am Jur ALR3d 633. for awarding 66 ALR3d 1115. 15A Am Jur payment 2d, 2d, 2d, "successful costs where both parties 2d, 2d, References Courts § Costs § Costs 12.§ Costs 16. provision Arbitration costs 2d, Compromise § 72. arbitration party” 82. part for compromise and Award § parties Points of settlement. 71 ALR3d 909. or "prevailing party” for prevail costs, fees, Settlement Headnotes and settlement 139. affirmative 5.§ expenses. purposes agreement claims. ordering appealed the Plaintiff defendant’s counterclaim. these fees and Held: costs. Michigan authority grants Su-
1. The to the Constitution preme promulgate regulating practice proce- Court to rules *2 provision in dure the courts. the Court Rules The in General including attorney rejection for an award of costs fees of a after evaluation, panel’s mediation a trial and the occurrence may reasonably procedural and certain be events classified as regu- authority promulgate Supreme to and within the Court’s procedure late in courts. only 2. The rule should be tax those costs which construed to person reasonably a find would foreseeable under the circum- existing rejects
stances at the time he the mediation award. accruing delay Costs because of unforeseeable should not be finding taxed under the rule. The trial court must make a as to costs what were foreseeable. awarding attorney The Mr. 3. court erred in fees and costs to Prevailing prevail Defendant did not on the Gun. counterclaim. question prerequisite is on the claim in an absolute to the award costs under the rule. expert 4. Defendant not entitled to an fee a witness absent showing special prepartion testify that he underwent to an as expert. Reversed and remanded. J., part. agreed J. T. dissented in He that the rule. question providing including attorney for costs a reasonable impermissible fee was not invalid as an interference with legislative prerogatives explained However, and his reasons. he Supreme Court, believed that promulgating the rule including against taxes costs reasonable fees a party rejects who satisfy a mediation evaluation fails and trial, following certain conditions party intended for that responsibility rejection bear for all costs incurred after the per the mediation valuation. He would also hold that it is not improper se under the court rule to award fees to than correctly more one and that court trial attorneys. awarded costs and fees both He did deem it dispositive proved that defendant’s counterclaim unsuccessful. important thing plaintiffs rejec-
He believed that the was that tion the mediation evaluation necessitated trial and pursuing caused fees to be incurred in He counterclaim. would affirm. Maple Hill Co v Stine op Opinion the Court — — — Court Rules. Law Mediation Constitutional 1. Costs grants authority Supreme Michigan to the Constitution The practice procedure regulating promulgate rules Court courts; provision Court Rules in the General including attorney fees after of a of costs award evaluation, trial, panel’s and the occurrence of procedural reasonably may be classified events certain authority promulgate regu- Supreme Court’s within (Const 1963, 1963, 5; GCR procedure the courts art § late 316.8). 316.7, — — Rules. Mediation Court 2. Costs provision underlying in the General Court Rules policy The including attorney rejec- fees after court costs award of for an proposed and the occurrence of mediation award tion of upon litigation place costs the burden of is to events certain rejecting , trial the mediation who insists effectively encourages award; the settlement of a rule such 316.8). (GCR 316.7, litigation pending — — 3. Costs Rules. Mediation Court including attorney fees Rule which taxes costs General Court *3 proposed litigant rejeсts a where a conditions under certain be construed to insists a trial should award and mediation reasonably person find only a would costs which tax those existing he at the time circumstances under the foreseeable 316.8). (GCR 316.7, 1963, rejects the mediation award — — Mediation Court Rules. 4. Costs prerequi- question Prevailing is an absolute on a counterclaim providing pursuant rule for to a court of costs site to award relating under certain the counterclaim of costs an award proposed rejected media- plaintiff a has where the conditions plaintiff’s and resolving claim gross both tion award in (GCR 1963, 316.7[b][l]). defendant’s counterclaim T. Dissent Partial and Partial Concurrence — — 5. Costs Mediation Court Rules. Court, taxes costs promulgating Supreme the rule rejects party against who attorney a including fees reasonable satisfy conditions certain fails to evaluation and a mediation responsibility trial, for to bear following intended for valuation the mediation after the all costs incurred 316.8). (GCR 316.7, Opinion op the Court Attorney Judgments Multiple Attorneys. — — 6. Fees improper, providing It under a court rule for award of fees, attorney fees to more than one award employment in circumstances where the of more than one attorney is reasonable. Attorney — — — 7. Costs Mediation Fees Court Rules. accepts gross A defendant who mediation evaluation in favor plaintiff plaintiff’s on both claim and defendant’s counter- including claim is entitled costs reasonable fеes in pursuing plaintiff rejects his counterclaim where the the evalu- percent and ation fails obtain verdict more than ten greater jury than mediation evaluation even where the returned a verdict of no cause action the counterclaim (GCR 316.8). 1963, 316.7, Donnelly (by Donnelly Hadden, W. P.C. W. Had- den), plaintiff. Gun,
Samuel H. for defendant. Bronson, P.J., J. T. Before: T. M. Burns JJ. Kallman,* brought P.J. Plaintiff
Bronson, this action against profes- alleging defendant, architect, its malpractice. sional Defendant filed counterclaim against plaintiff, alleging that he had not been paid in for services full rendered. The matter was pursuant submitted to to GCR panel 316. The mediation was not asked evalu- separately complaint ate the worth of separate counterclaim, and it did not render as- single Instead, sessments. it returned a evaluation plaintiffs in favor $25,000. the amount accepted Defendant evaluation, but rejected it. *4 only trial,
After the jury returned a verdict $4,700 plaintiff. favor The verdict ”no was
* judge, sitting Appeals assignment. Circuit on the Court of 375 Co Stine v Opinion of the Court Because action” on the counterclaim. cause of plaintiff judgment to an amount failed obtain pur- exceeding that, $27,500, ruled the trial court 316.7(b)(1), 1963, defendant was GCR suant The term costs” to "actual costs”. "actual entitled 1963, 316.8 to include "a reason- in GCR is defined judge attorney by the trial fee as determined able of the necessitated for services Applying panel’s rule, the court evaluation”. plaintiff pay Cotter, Dennis the attor- ordеred against complaint, defending ney $10,108.11 in This amount included fees and costs. paid "expert $1,250 witness fees” to be testifying his own behalf. himself for defendant pay order trial court went on to prosecuting counterclaim, Samual the Gun, costs. Plaintiff $4,218.75 in fees and right appeals the court’s order as of from now imposing remand. these costs. We reverse and authority acknowledge Supreme Court’s
We practice proce- promulgate regulating rules rules) (as opposed to substantive dure (On courts, 6, § 5; v Peuler Const art Perin Rehearing), 541-542; 130 NW2d 373 Mich (1964). agree We also with defendant provision 1963, 316.8, costs, for the award supra, "proce- may reasonably be classified as despite nature, dural” in this Court’s observation proce- demarcating the line substantive and susceptible easy resolution, dural rules is not Co, 105 Cleveland-Cliffs Iron Co v First State Ins Mich (1981). App 487, 492; Accord- NW2d ingly, unen- we decline to hold that the rule is promulgation of substan- forceable as an invalid tive law. court
Nonetheless, the trial we believe applied way the rule in erred in which *5 Opinion of the Court this case. The court found that the entire amount awarded as fees and costs had been "necessitated [plaintiffs] by panel’s [mediation] of the assumption evaluation”, underlying GCR 316.8. The finding spent this is that all of the time (in by attorneys trying each of the the case trial) spent preparing addition to time must be having by plaintiffs treated as been "necessitated” way, decision as to the mediation. In this the trial court has used the term "necessitated” as if it reasoning, meant "caused”. Under the trial court’s plaintiffs accept since refusal the mediation award was the "but-for” cause of the need for plaintiffs thereby trial, action "necessitated” all attorneys trying costs incurred defendant’s language purpose the case. Given the of GCR interpret 1963, 316.7, we would the term "necessi- differently. tated”
Neither case law nor the Committee Notes to provide GCR 316.7 and 316.8 this Court with guidance any interpreting meaning of terms policy underly- contained in Still, those rules. ing guide the rule can this Court in its construc- policy apparent: place tion. That is the burden litigation upon party costs who insists by rejecting proposed a trial mediation award. agree any poliсy effectively We with which en- courages pending litigation. the settlement of How- policy ever, such must be circumscribed equitable party considerations. A should not be responsible through for costs which accrue no fault example, of his party rejects own. For if proposed opponent goes mediation award and his try on grossly the case in a manner which unduly inefficient, legal or otherwise wasteful of resources, rejecting it would not be fair to hold the responsible
the mediation award to the Co Stine v Opinion of the Court question expenses exceed an extent 1963, 316.8 reasonable. which is amount equitable recognizes authoriz- consideration ing fee”. only “a reasonable award of used "reasonable” as the term believe We construed to exclude be should in this subrule opposing by the are incurred costs certain party reject- through of the no fault side’s ing *6 aptly proposed Plaintiff mediation award. proce- points the mediation award out imposing courts to the to chill access dure tends upon party uncertainty a who is the burden proposed and who award a with dissatisfied right to a his constitutional to exercise chooses chilling a extent, effect is trial. To some policy any by-product necessary encour- litigation. pending However, ages settlement of right party’s policy upon of this effect adverse party oppressive is faced when trial becomes liability any potentiаl for of unlimited with by the decision are "but-for” caused costs which proceed to trial. argu- logical extreme, defendant’s to its
Taken plaintiff in- for all costs liable ment would hold curred in the trial of a
case, if costs even those of hours the direct result of thousands were judge unjustifiable delays over a trial ordered parties’ objections. fore- could A trial which both days, completed seeably for in several have been through example, no run several months could party. Applying reason- defendant’s fault of either ing hypothetical, for liable could be to this reasonably many cost foreseeable times the of the court trial. We believe that construction hypothetical to such absurd rule which could lead rejected. results must be imposing potential such
In avoid the order to Opinion op the Court liability litigants, we construe the term "rea- "reasonably sonable” to mean foreseeable”. In rejects proposed words, other who media- responsible only tion award should be for trial person reasonably costs which a would find fore- facing seeable under the circumstances him at the reject time he decides to the award. This construc- preserves procedure’s tion encouraging effect of adding
settlement, without the chill- ing uncertainty potential litigant’s element of to a right decision to exercise his to trial. present simply case,
In the the trial court im- posed full amount claimed defendant’s at- tоrneys as costs incurred the trial of the case. distinguish The court did not between amounts of spent preparing spent time for trial and time during the courthouse the actual trial. All of the reasonably any litigant former is foreseeable; can expect opponent that his will need a certain prepare amount of time to However, for trial. plaintiff alleges present par- case the spend unusually large ties were forced to enduring delays including amount of time in trial *7 delays numerous at the courthouse which neither reasonably anticipated. could have We do alleged not delays believe that the burden of these solely upon plaintiff. should fall Under the case, circumstances of this the trial cоurt should have determined the amount of time normally which the trial of this matter would computed take, and should have fees accordingly. If, as asserts, defendant the number of delays in relatively the trial of this case was normal, then the court’s award of costs could be upheld, subject adjustments to the additional or- plaintiff If, dered infra. hand, on the other alleging correct that this trial involved an Co v Stine Opinion of the Court delay, unforeseeable amount of the court would be required accordingly. to reduce its award of costs
The matter is remanded for a factual determina- of whether the tion trial of this cause involved parties reasonably more time than the could have plaintiff anticipated reject when decided adjust mediation settlement. court must then any its award costs to the extent that there was during delay unforeseeable trial. The court shall findings issue written statement of its as to this issue. adjustments
There are additional which the trial First, court must make remand. the court requiring plaintiff pay must rescind its order $4,218.75 Samuel Gun in costs in connec- pursuit tion with the of the counterclaim. We note prevail defendant not that did the counterclaim Prevailing —the "no verdict was cause of action”. question prerequi- on the claim in is an absolute any site to award of costs under GCR 316.7(b)(1).
Defendant much makes of the fact that proposed separately mediation settlement did not According evaluate the merits of the counterclaim. plaintiff rejеcted defendant, since the settlement gross”, rejected necessarily "in the evaluation as to the counterclaim as well as the evaluation with respect original complaint. disagree. to We question plain- There can be no that rational accepted indicating tiff would have an evaluation "no cause action” on counterclaim. The plaintiff precaution mere fact that did not take asking separate require evaluations does (1) us to asume the evaluation was fact the (2) setoff, result reject aof or intended aspect of the evaluation which related nothing Certainly to the counterclaim. in the rec- *8 J. J. T. Kallman, Partial Concurrence assumption. supports the circum- Under either ord plain- requires presume equity that stances, us to accepted cause of action” "no have tiff would this, we that conclude Given on the counterclaim. 316.7(b)(1)applies, defendant’s and that GCR prevail bars its on the counterclaim failure recovery of costs.
Finally, plaintiff the court awarded *9 381 Co v Stine Kallman, Partial J. T. Concurrence respect to the result the reached and rationale employed.
Plaintiff the asserts that trial court had no 1963, 316.8, under power to award actual costs, advancing fees as number of policy opposition reasons in to such an award1 and that the mediation rule arguing modifies substan- legislative approval. effect, tive law without In Court that wants this declare a court rule adopted by Supreme the Court constitutes impermissible interference with the prerogatives of Legislature. notes,
As the majority Michigan Supreme Court has the power regulating to establish rules practice case, and in the In procedure courts. however, I believe that more attention should be devoted to whether the mediation rule is "substan- tive” or "procedural” than majority spends question. this hard In Cleveland-Cliffs Iron Co v Co, 487, 492; First State Ins 105 App Mich 307 (1981), NW2d 78 this Court noted that the distinc- tion between substance procedure problem and is a which has "challenged generations baffled of lawyers”. Legal commentary opin- on this Court’s Dixon, ion in James v 527; 95 Mich 291 NW2d 1 argues that, litigation Plaintiff because the outcome of is uncer tain, penalized one prosecuting defending should not be or lawsuit, awarding attorney fees tends to chill access courts, difficulty assessing reasonable costs would consti tute an unreasonable burden on the sound administration courts, and, given specific legislative fee authorization contexts, permit awards in certain other such awards should not be consequence rejecting panel’s fact, ted as a a award. In existing clearly preclude Supreme statutes would not Court’s promulgation Supreme may of the mediation rule and the Court well right adopt pursuant have believed that it had the the rule existing statute. See fn 4 infra. App 371 131
382 J. T. Partial Concurrence Michigan held (1980), in which was impliedly MRE 601 adoption Court’s Supreme 600.2166; statute, MCL man’s the dead abrogаted in sepa 27A.2166, the difficulties illustrates MSA In Glicks procedure. rules of substance rating Evi Michigan Law: Survey Annual man, the James 757, 767, deci dence, L Rev Wayne for its "meticu praised noted favorably sion conclu reasons for its outlining the lous detail” of Evi Rules Note, hand, the other sions. On Power of Constitutional An Exercise dence: Court, 1980 Det Col L Rev Supreme Michigan *10 as James decision is criticized 1093, the "incomplete product and "unfortunate” concludes that The author the court”. by analysis by propounded tests of various application distinguish substantive scholars different the dead demonstrate clearly rules procedural substantive, to the hold contrary man’s statute is James.2 ing of 1963, 316, does that GCR arguable least
It is at proce- guise under the rule impose a substantive give up litigants rule forces The mediation dure. circum- in certain recovery to a full rights their 2 1080-1083, Evidence, pp supra, sets forth author of Rules of proce distinguish by rules various scholars six tests advanced dure and substance. tests, six that under five of these The author concludes must be deemed in the dead man’s statute the rule embodied fact, Id., emphasizing pp by as different 1093-1095. In substantive. rule, contrary pects to that reached the dead man’s a conclusion through application seemingly fairly atof be drawn the author can least again just This of the six tests noted in Rules of Evidence. five substance-procedure emphasize slippery nature of serves dichotomy. James, panel rejected by this supra, I never been note that has holding agreed panels have with its Court and that two other impliedly abrogates Mason v dead man’s statute. See MRE 601 (1981) Co, 76, 89; App Chesapeake 167 110 Mich 312 NW2d & O R however, J., concurring part dissenting part; (Cynar, Cynar’s issue); Judge analysis majority Dahn v concurred of this (1981), 584, 588-589; Sheets, lv den 412 305 547 NW2d 104 Mich (1982). Co Stine v J. T. Partial Concurrence adversely and, such, stances as affects vested inter- purpose Moreover, ests.3 the obvious of the rule is going to reduce the number of cases to trial. This may to limit to the courts well effort access be beyond practice proce- going viewed as mere affecting rights dure the courts as substantive to full access to courts. may time,
At the same the mediation rule be procedural. properly characterized as The rule person would not cause a to alter his out-of-court test conduct —a which has sometimes been ad- cutting edge vanced as between substance and procedure. actually Moreover, the mediation rule goes vindicating to the or means methods of sub- rights, defining stantive rather than the duties populace Ultimately, which the must abide. am say promulgated by loathe to that a rule Michigan Supreme constituting Court is invalid overreaching. judicial 1963, 316, Since GCR is not manifestly unwilling rule, a substantive I am adopt plaintiff’s argument rule unen- forceable.4 requires rejects 316.7 who mediation to judgment greater obtain a which is more than than the 10% media circumstances, unfairly deprive tion evaluation. In certain will plaintiff ates evaluation is If, instance, recovery. panel of a full a mediation evalu particular malpractice $1,000,000, medical action rejected plaintiff and, *11 by following trial, jury a the
judgment plus equals $1,100,000, plaintiff taxable costs and interest might will question holding be liable to the defendant for fees. One well depriving litigant the recovery by wisdom of a of a full responsible losing where, him party’s attorney for the fees as example footnote, in the set forth in this he obtains award which $100,000. by exceeds the mediation evaluation it, analyzed parties 4 1have namely, this issue as the have drawn problem the crux of the is the resolution of the substance- procedure thinking fact, Supreme may issue. In the have Court not been 1963, 4, provision plaсing of Const art constitutional § 5—the practice GCR procedure promulgating in the courts in its bailiwick—in 1963, 316. Supreme might specific Court have believed that had statu- tory as costs if statute, By may authorization for the rule. fees be taxed "by by (Emphasis sup- authorized statute or court rule”. 371 Mich by J. T. Concurrence Partial
II attorney fees the asserts next Plaintiff in that excessive court were the trial awarded part for "services fees were not these least the eval- mediation the necessitated plaintiffs counsel’s 1963, 316.8. In GCR uation”. large portion words, of the fees were ineffi- the trial court’s own reason of "incurred diligence”. Apparently, ciency want of portions over this extended case bench trial although only days, 25 hours were some nine actually spent trial this cause. on the disagree majority’s strongly conclu- with the
I during delays of trial should course sion that "reasonably be foreseeable” deemed chargeable rejects the which mediation side meaning prevail within the and then fails to 1963, 316.7. GCR judicial heavy take notice that dockets would 27A.2405(6). 600.2405(6); provision plied.) could be MCL MSA This promulgate expansively permitting as the Court construed even losing litigant responsibility imposes rule which on the ultimate winning party’s attorney fees. 1963, 3, Supreme Conceivably, relying was on Const art Court 7, alia, provides, inter for the of the common continuation § amended, changed, repealed. Sterling unless or In Placek v law 638, 656-660; (1979), Heights, Supreme 405 Mich NW2d provision support power Court to alter the relied for its
judge-made contributory negligence common-law rule of as a bar plaintiffs recovery negligence legislative in a suit without action. notes, requires As rule” each common-law "American party of the fees, regardless responsibility to a own lawsuit assume for his Thus, Supreme in the have outcome courts. Court could grounded authority concluded that its to amend this rule was 3, 7. Const art § (1980) published contempora- The Staff Comment in 408 lxxv neously publication with the of the rule to indicate fails Supreme concluding power what Court that it had relied adopt simply the rule. The Staff Comment states that 316, is based on several This to a final local mediation rules. leads possibility Supreme really that the Court considered whether never promulgation legislative prerogatives. rule of the invaded *12 Co v 385 Stine Kallman, Partial J. T. Concurrence areas, in populous urban such County, as Oakland impossible have made it for trial judges to devote of a particular their time to cause over 100% arise, period days emergencies orders need to — executed, be like. Whether and the or not the trial proceeded here could have moré expeditiously does that, change not the fact fundamental but for plaintiffs mediation, rejection no trial such, have necessary would been this case. As plaintiffs evaluation fact, did, expenditure necessitate of what- ever attorney required bring fees were this case through to conсlusion trial.5 that, It is clear to me in promulgating GCR 1963, 316.7, the Supreme Court intended for the party who the mediation evaluation rejects 1963, 316.7, fails to satisfy conditions of GCR trial, following costs, to bear for all responsibility fees, including reasonable incurred after the rejection of the mediation evaluation. would not allow a rejecting party such minimize consequences serious of rejection by crying that the trial court was proceeding inefficient with the case. The majority asserts it does not believe that for delays burden not "reasonably foreseeable” "should fall In solely plaintiff’. fact, however, its disposition of this places issue none of the burden for delays "unforeseeable” plaintiff. Instead, if the was "unfore- delay seeable”, plaintiff obligated is not to bear defen- dant’s fees for the period of this delay. This, course, means that defendant will be direct responsible fees incurred say accept plaintiffs This is that I characterization that pay nothing highly had to probable defendants’ counsel to do but It is wait. that, during trial, breaks defense counsel dis strategy, during cussed did last minute research on issues which arose trial, and the like. J. T. Partial Concurrence
consequence plaintiff’s reject decision to *13 rule, I mediation mediation evaluation. Given the strap to with this burden no reason defendant see would have been settled without when this case plaintiff accepted only the trial had Moreover, I that such a cannot believe evaluation. result was intended Supreme
by the Court. question it, fundamental is whether As I see the expect to be for it is reasonable paid an he undertakes a trial all of his time when for delays than courthouse result less at the being spent actually on that time of his 100% lawyer time, I do not sells is his trial. What anything an ex- unreasonable about see pecting compensated periods in the for he is to be waiting judge to courthouse, harried return for a of his cause. to the trial his attentions majority pre- analysis issue, the of this In its following hypothetical dem- whimsical sents the absurdity of GCR of the construction onstrate was intended: 316.7 which believe extreme, argument logical defendant’s to its "Taken in the all costs incurred plaintiff liable for would hold case, the direct result if those costs were trial of a even delays ordered unjustifiable hours of of thousands of A trial parties’ objections. judge trial over both days, in several foreseeably completed have been could through no fault months example, could run several for reasoning Applying defendant’s party. of either times many plaintiff could be liable hypothetical, trial.” the reasonable foreseeable cost of judge highly trial I find it dubious Michigan history jurisprudence has ever of delays” justifiable ordered "thousands of hours — parties. objections unjustifiable of the or —over generally judge, attor- it is As a trial I find that Co Stine v T. Partial Concurrence trial generally continuances who desire neys delays in these to resist attempt who judges over of control semblance sоme maintain effort to Moreover, trial court was if a even their dockets. "thousands parties with vex determined could parties delays”, unjustifiable hours trial scheme court’s short circuit quickly Indeed, control. superintending order of seeking an possibly could a trial court fathom how I cannot case, on a attorney hours "thousands” waste if to do so. it wanted even hypotheti- fanciful Assuming majority’s pass, contrary major- ever come to cal could of the construc- logical extension position, ity’s I advocate does not 316.7 which tion rejecting media- compel the result *14 the opposition’s liable for all of tion would be is an be- fees. There obvious distinction attorney and a in presented the situation here сase tween the parties decides to judge annoy which the trial Given wasting objections. their time over their by imagined real sce- the difference between the nario, to mind to various rationales come allow former, fees in the but recovery attorney latter, expound situation. I choose not however, possibilities, these since are unnec- they case, and, essary to the resolution at least respect a scenario much like that cast by going are never to be majority, certainly almost applicable future case.
Ill argu- The majority plaintiff’s fails to address ment that improperly the trial court awarded fees to both Cotter and Gun because attorney showing attorneys there has beеn no two panel’s were "necessitated of the Partial Concurrence T. plaintiff suggests evaluation”. To the extent it is never reasonable to award fees to com- pensate attorney, specifically more than one I disagree position. with its The reasonableness of awarding fees to more than one turns on specific circumstances the case. For in- complex litigation stance, in in the sense —either applicable highly technical, that the law is uncer- tain or obscure or ing preparation the sense that time-consum- necessary adequately assimi- present late and at facts trial —it is not unrea- attorney appear sonable to have more than one hand, the trial. On thе other it would be unreason- able to utilize more than one at trial on a straightforward pre- routine matter which involves sentation of evidence and the
application of well legal principles settled to this evidence.6 Under the circumstances of this case believe that it was not unreasonable to award fees to both initially Cotter and Gun. Defendant retained one plaintiff’s who filed an answer to com- plaint Thereafter, and the counterclaim. defen- against dant’s insurer retained Cotter to defend plaintiff’s action. Cotter asserts that defendant pursue asked him However, the counterclaim. representation, Cotter declined to undertake this believing that a conflict interest could arise. any, apparently Moreover, plication discovery little, there was if du- respect of effort Cotter and Gun in pretrial proceedings. Under these *15 that, imply attorneys help 6 1 prepare do not where several case evaluation, for trial after of all mediation reasonable conducting preparation fees incurred in this not are recoverable pursuant Clearly objectionable to GCR 316.8. is not that attorneys pretrial aspects necessary several work on different preparation preparation entrusting attorney than rather to one long duplication so there no of effort the various between lawyers. however, time, might At the same it still be unreasonable to attorney use than more one in the actual trial of the case which does duplication involve of time in court. Co Stine v by J. T. Partial Concurrence the trial court’s circumstances, I do not believe Gun was fees to both Cotter and to award decision in error.
IV that Gun should be contention Plaintiffs did not because defendant fees attorney awarded presents a troublesome on his counterclaim prevail However, persuaded ultimately by I am question. affirming the award reasoning the trial court’s During proceedings Gun. on fees brought under GCR defendant’s motion fees incurred in 316.8, for those costs and counterclaim, court the trial prosecution noted: panel put a file the mediation parties "When figures separate from the grоss asking for without
mediators, get figure in return. going to one they’re fact, position are in no Quite obviously, after the we gone guess may have go and second what now to on in their minds back the time when didn’t ask it at we accepted the media- the defendant mediation. When award, single and that would accepted tion he have plaintiff totally. terminated the case When mediation, rejec- rejected tion necessitated the trial that was award made
held.” asking for
Plaintiff could have itself protected separate evaluations of the and counter- complaint and, have no so, claim. It did not do on we appeal, ascertaining panel’s way of whether setting $25,000 off evaluation was arrived from what it believed the counterclaim was worth $25,000 due to a sum in to be excess believed circum- its Under these complaint. stances, erred in cannot trial court say awarding Gun fees. *16 T. Partial Concurrence majority prereq- asserts that an absolute
uisite to an award of costs under GCR 316.7(b)(1), prevail. must This is a fa- cially since, untrue true, statement if it were any attorney defendant would not be entitled to plaintiff prevailed fees in this case since in his dispositive such, action. As I do not deem it proved defendant’s counterclaim unsuccessful. Of import plaintiffs rejection more to me is that the evaluation necessitated the trial and caused prosecution fees to be incurred of the coun- terclaim. practice attorneys
It is basic to trial are obligated preserve to make a record below appellate claims of error for Here, review. good failed to make a record when did not request separate evaluations the claim and majority, plain- counterclaim. Unlike the I believe consequences tiff should bear the of its failure to adequate appellate create record review. notes "expert witness fee” for defendant’s $1,250 an as Nothing testimony. in the record indicates own that defendant prepare "ex- himself had lengthened testimony appreciably pert” his or that acknowledges testimony. Defendant his in-court testimony his trial involved that merely bulk background setting of the forth the factual called would have been case. Defendant regardless give testimony this factual trial "expert”. gave testimony as an he also whether showing that defendant underwent Absent some testify expert, special preparation to as an we by including any the trial court erred believe "expert witness” fee for defendant. amount as an proceedings consis- and remanded Reversed opinion. tent with Burns, J., T. M. concurred. (concurring part T. and dis- rejec- senting part). majority’s I concur with the plaintiff’s argument is, tion impermissible essence, in ence invalid as an interfer- legislative prerogatives. However, I be- with explica- lieve that this issue is entitled to a fuller given by majority. tion I than that also concur majority’s with strike the award of decision to "expert $1,250 as an fee” to witness defendant myself However, himself. concur find unable to majority’s opinion in the remainder of the —both