20231207_C359082_69_359082.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
INTERNATIONAL OUTDOOR, INC, FOR PUBLICATION
December 7, 2023
Plaintiff-Appellant/Cross-Appellee, 9:00 a.m.
v No. 359082
Oakland Circuit Court
SS MITX, LLC, d/b/a SIMPLY SELF STORAGE, LC No. 2016-155472-CB
Defendant-Appellee,
and
LAMAR ADVERTISING OF MICHIGAN, INC,
Defendant-Appellee/Cross-Appellant.
LAMAR ADVERTISING OF MICHIGAN, INC, No. 359811
Oakland Circuit Court
Plaintiff-Appellee, LC No. 2016-155489-CB
and
SS MITX, LLC, d/b/a SIMPLY SELF STORAGE,
Plaintiff,
v
INTERNATIONAL OUTDOOR, INC,
Defendant-Appellant.
Before: GADOLA, P.J., and BORRELLO and HOOD, JJ.
GADOLA, P.J.
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In Docket No. 359082, plaintiff, International Outdoor, Inc. (International), appeals by
right the trial court’s order entering judgment in favor of defendants, SS MITX, LLC, doing
business as Simply Self Storage (Simply Storage), and Lamar Advertising of Michigan, Inc.
(Lamar) after a jury trial. Lamar cross-appeals the same order challenging the trial court’s denial
of its claim for attorney fees. In Docket No. 359811, defendant International appeals by right the
trial court’s award of costs to plaintiff Lamar. We affirm the trial court’s order entering judgment
in favor of Simply Storage and Lamar, vacate the trial court’s order denying Lamar’s request for
attorney fees, vacate in part the trial court’s order for costs, and remand to the trial court for further
proceedings.
I. FACTS
This appeal arises from a contract dispute. Simply Storage operates a self-storage business
near I-75 in Auburn Hills. In March 2009, Simply Storage leased to International the exclusive
right to erect a billboard on its property. The lease had a five-year term and could be renewed for
additional terms of five years. International did not erect a billboard on the property, and in
December 2015, after the five-year term of the lease had concluded, Simply Storage leased the
right to erect a billboard on the property to Lamar.
International filed suit against Simply Storage and Lamar, contending that International
renewed its exclusive lease with Simply Storage in 2013, that Simply Storage breached the
renewed lease by thereafter contracting with Lamar, and that Lamar tortiously interfered with
International’s contract with Simply Storage. Simply Storage denied that the lease with
International had been renewed. Simply Storage and Lamar then sued International, alleging that
International failed to perform on its lease with Simply Storage and thereafter tortiously interfered
with Simply Storage’s lease with Lamar. The trial court consolidated the two cases.
The parties moved for summary disposition under MCR 2.116(C)(10). International
supported its motion with a letter dated December 20, 2013, signed by International’s president,
Latif Z. Oram, purporting to renew the lease. Oram asserted that he sent the letter to Simply
Storage in December 2013. Simply Storage presented evidence that it never received the renewal
letter. The trial court denied the parties’ motions on the basis that a question of fact existed whether
International timely renewed the lease.
At trial, Oram testified that he drafted and sent the renewal letter to Simply Storage in
December 2013. Oram admitted that, contrary to a statement in the letter, he did not include a
check for payment, explaining that it was a form letter. When asked why International had not
produced electronic records to demonstrate when the letter was created, Oram testified that he no
longer owned the computer from 2013 and no longer had the relevant data on his computer’s server
due to a computer virus. The jury found in favor of International, awarding $405,000 in damages.
The trial court entered judgment in favor of International.
Simply Storage and Lamar thereafter moved for relief from the judgment under MCR
2.612(C)(1)(c). They asserted that after trial they learned that Oram created the renewal letter in
2016 and intentionally backdated the letter to 2013 for the purpose of misrepresenting that
International had timely renewed the lease. Simply Storage and Lamar supported their motion
with the affidavit of Patrick Depa, a former International employee, in which Depa stated that in
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July 2016, he saw Oram type and sign the renewal letter, backdating the letter to December 2013
for the purpose of supporting International’s claim that it timely renewed the lease.
The trial court held a hearing on the motion, at the conclusion of which the trial court
ordered that International permit Simply Storage and Lamar to conduct a forensic analysis of
International’s computers related to Depa’s assertion that the renewal letter was created in 2016
and International’s assertion that their computer records of 2013 had been destroyed by a virus.
The trial court thereafter held an evidentiary hearing, during which Depa testified that he had seen
Oram create the renewal letter in 2016 and backdate the letter to 2013. In addition, the expert
conducting the forensic analysis of International’s computer testified that he could find no
evidence on the computer of the renewal letter being created in 2013, and no evidence of a
computer virus wiping out files created before February 2014 as asserted. International’s own
computer service provider testified that the reason the 2013 information was not apparent on the
computer was because the one provided for analysis was not the one in use in 2013, but that
information was not provided to the forensic examiner at the time of the forensic analysis.
International’s computer service provider also testified that the computer in use by International
in 2013 was not replaced until 2019, contradicting Oram’s assertion at trial in 2018 that the 2013
computer was not available at the time of the first trial.
The trial court thereafter issued an opinion in which it found Depa’s testimony sufficiently
credible to rebut Oram’s testimony regarding the renewal letter. The trial court further found that
International had made “flagrant misstatements” about the existence of its computer and had failed
to fully disclose witnesses who had information about the case. The trial court entered an order
setting aside the judgment and ordering a new trial.
At the conclusion of the second trial, the jury found in favor of Simply Storage and Lamar.
The jury determined that International tortiously interfered with Lamar’s contractual relationship
with Simply Storage and awarded Lamar $687,244 in damages. The jury also found that Lamar
was entitled to reasonable attorney fees as an element of damages. Lamar thereafter sought
$844,011.40 in attorney fees and submitted a bill of costs seeking $40,237.86 in costs. The trial
court determined that Lamar was not entitled to its attorney fees as an element of damages, but
entered an order granting Lamar’s request for costs. The trial court denied International’s motion
for judgment notwithstanding the verdict. These appeals followed and were consolidated by this
Court.
II. DISCUSSION
A. MOTION FOR RELIEF FROM JUDGMENT
International contends that the trial court abused its discretion by granting Simply Storage’s
and Lamar’s motion for relief from judgment after the first jury trial because (1) Depa’s assertions
could have been discovered by reasonable diligence before the first trial, (2) Depa’s assertions
were not credible, and (3) the trial court made errors at the evidentiary hearing that warrant
reversal. We disagree.
We review a trial court’s decision to grant or deny a motion for relief from judgment for
an abuse of discretion, which occurs when the trial court’s decision falls outside the range of
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principled outcomes. Adler v Dormio, 309 Mich App 702, 707; 872 NW2d 721 (2015). A trial
court also abuses discretion when it premises its exercise of discretion on an error of law. Ronnisch
Constr Group, Inc v Lofts on the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016). We
review de novo the trial court’s interpretation and application of the court rules and the rules of
evidence. Kuebler v Kuebler, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No.
362488); slip op at 6.
1. DUE DILIGENCE
International first contends that the trial court abused its discretion by granting the motion
for relief from judgment after the first jury trial because Simply Storage and Lamar could have
discovered Depa’s assertions by due diligence before the first trial. We disagree that defendants
were obligated to demonstrate due diligence.
MCR 2.612(C) sets forth the bases under which a party may move for relief from judgment.
MCR 2.612(C)(1) provides:
(C) Grounds for Relief from Judgment.
(1) On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior
judgment on which it is based has been reversed or otherwise vacated; or it is no
longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment.
MCR 2.612(C)(1)(b) (newly discovered evidence) and (C)(1)(c) (fraud) provide distinct
grounds for relief from a judgment. Under MCR 2.612(C)(1)(b), newly discovered evidence is
not sufficient to grant relief from a judgment unless it could not have been discovered through due
diligence in time to move for a new trial under MCR 2.611(B). A party seeking relief from
judgment based on newly discovered evidence must establish that (1) the evidence, not simply its
materiality, is newly discovered, (2) the evidence is not merely cumulative, (3) the newly
discovered evidence is likely to change the result, and (4) the party moving for relief from
judgment was not able to produce the evidence with reasonable diligence. South Macomb Disposal
Auth v American Ins Co, 243 Mich App 647, 655; 625 NW2d 40 (2000). By contrast, MCR
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2.612(C)(1)(c) does not impose a due diligence requirement on the party seeking relief from
judgment on the basis of fraud, misrepresentation, or the misconduct of an adverse party.
Additionally, MCR 2.612(C)(1)(f) permits the trial court to grant relief from judgment for
“any reason justifying relief.” Generally, relief is granted under MCR 2.116(C)(1)(f) when the
reason for setting aside the judgment is not included in (C)(1)(a)-(e), and when the judgment was
obtained by the improper conduct of the party in whose favor the judgment was entered. Heugel
v Heugel, 237 Mich App 471, 478-479; 603 NW2d 121 (1999). However, a trial court is justified
in granting relief under MCR 2.116(C)(1)(f) “even where one or more of the bases for setting aside
a judgment under subsections a through e are present, when additional factors exist that persuade
the court that injustice will result if the judgment is allowed to stand.” Id. at 481.
Relatedly, the bases for granting a new trial are set forth in MCR 2.611, which provides,
in relevant part:
(A) Grounds.
(1) A new trial may be granted to all or some of the parties, on all or some of the
issues, whenever their substantial rights are materially affected, for any of the
following reasons:
***
(b) Misconduct of the jury or of the prevailing party.
***
(f) Material evidence, newly discovered, which could not with reasonable diligence
have been discovered and produced at trial.
***
(h) A ground listed in MCR 2.612 warranting a new trial.
***
(B) Time for Motion. A motion for a new trial made under this rule or a motion
to alter or amend a judgment must be filed and served within 21 days after entry of
the judgment.
In this case, defendants moved for relief from judgment under MCR 2.612(C)(1)(c)
asserting that Oram fraudulently represented that the letter purporting to renew the lease had been
sent to Simply Storage in December 2013. Defendants offered Depa’s affidavit as proof that Oram
created the letter in July 2016, but backdated the letter to 2013 for the purpose of misrepresenting
that International had renewed the lease three years earlier.
International contends that under MCR 2.612(C), defendants were required to establish
that Depa’s averments constituted newly discovered evidence that they could not have discovered
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with reasonable diligence before the first trial. In support of this theory, International directs this
Court’s attention to Stallworth v Hazel, 167 Mich App 345; 421 NW2d 685 (1988).1 In Stallworth,
the plaintiff sued the defendant to establish that the defendant was the father of her child. A jury
found that the defendant was not the child’s father. Id. at 349. The plaintiff moved for a new trial
and for relief from judgment, alleging in part that the defendant perjured himself when he denied
that he had written the date on a letter that had been at issue during the trial. In support of her
motion, the plaintiff presented a report from a handwriting expert opining that the defendant had
written the date that appeared on the letter. The trial court denied the motions, reasoning that the
plaintiff could have obtained the handwriting analysis before the first trial. Id. at 349. This Court
affirmed, stating in relevant part:
Because plaintiff’s allegation of perjury is dependent upon newly
discovered evidence, we conclude that such perjury should warrant relief from
judgment only if it could not have been discovered and rebutted at trial by the
exercise of due diligence. Any other result would undermine MCR 2.611(A)(1)(f),
which allows a new trial based on newly discovered evidence only when that
evidence “could not with reasonable diligence have been discovered and produced
at trial.” [Id. at 356.]
We are unpersuaded that the reasoning of Stallworth supports International’s argument that
due diligence must be demonstrated for a moving party to obtain relief from judgment on the basis
of fraud. In Stallworth, this Court recognized the historical distinction between intrinsic and
extrinsic fraud, which was a procedural distinction; a court sitting in equity could not grant relief
from a judgment entered in a different court if the claim involved intrinsic fraud; rather, only the
original court could grant relief for intrinsic fraud. See id. at 355. That distinction is not relevant
under MCR 2.612(C), which permits the trial court to grant relief from a judgment on the basis of
fraud without regard to whether the fraud was intrinsic or extrinsic.
Moreover, Stallworth concluded that because the plaintiff’s allegation of fraud was based
upon the report of the handwriting expert, which could have been sought by the plaintiff earlier,
the plaintiff had not demonstrated diligence sufficient to obtain relief from judgment. MCR
2.612(C)(1)(b) and (C)(1)(c), however, provide distinct grounds for relief from a judgment,
distinguishing fraud, misrepresentation, and improper conduct by an adverse party as a basis for
setting aside a judgment from the mere discovery of new evidence after trial. We observe that
evidence of fraud typically is concealed from the moving party by the opposing party at the time
of trial. Consequently, it will almost always be the case that whenever a party raises fraud,
misrepresentation, or other misconduct of an adverse party as a basis to set aside a judgment, the
evidence of that conduct is likely newly discovered by the moving party. Regardless of whether
1
Because Stallworth was published before November 1, 1990, it is not strictly binding on this
Court. See MCR 7.215(J)(1). It nevertheless “has precedential effect under the rule of stare
decisis.” MCR 7.215(C)(2); Legacy Custom Builders, Inc v Rogers, ___ Mich App ___, ___; ___
NW2d ___ (2023) (Docket No. 359213); slip op at 5 n 1. See also Woodring v Phoenix Ins Co,
325 Mich App 108, 114-115; 923 NW2d 607 (2018). Although this Court has applied Stallworth
in unpublished opinions, those decisions are not binding on this Court. See MCR 7.215(C)(1)
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it is newly discovered, however, evidence of fraud is given a distinct category under the court rule
delineating it from evidence that is merely newly discovered. By grafting the due diligence
requirement of newly discovered evidence relevant to MCR 2.612(C)(1)(b) onto the grounds stated
under MCR 2.612(C)(1)(c), the Court in Stallworth interpreted the court rule in such a way as to
remove fraud as an independent ground for relief from judgment under MCR 2.612(C)(1).
The Court in Stallworth reasoned that to not impose a due diligence requirement “would
undermine MCR 2.611(A)(1)(f), which allows a new trial based on newly discovered evidence
only when that evidence ‘could not with reasonable diligence have been discovered and produced
at trial.’ ” Stallworth, 167 Mich App at 356. But just as there is a distinction between the
requirements of MCR 2.612(C)(1)(b) and (C)(1)(c), there is a distinction between the requirements
of MCR 2.611(A)(1)(f) and (A)(1)(h). MCR 2.611(A) provides that the trial court may grant a
new trial when the substantial rights of a party are materially affected for any of the reasons stated
in that subsection. One of the reasons is stated in MCR 2.611(A)(f), which provides “[m]aterial
evidence, newly discovered, which could not with reasonable diligence have been discovered and
produced at trial.” A separate basis for granting a new trial is stated in MCR 2.611(A)(h), which
states, “[a] ground listed in MCR 2.612 warranting a new trial.” Fraud is a ground listed in MCR
2.612 justifying relief from a judgment, and thus falls into the category of MCR 2.611(A)(h), not
MCR 2.611(A)(f). In sum, we hold that MCR 2.612(C)(1)(c) does not impose a requirement of
due diligence upon a party seeking relief from judgment on the basis of fraud, misrepresentation,
or other misconduct of an adverse party.
We observe, however, that although defendants were not required to show due diligence in
discovering the fraud, the record in this case nonetheless amply supports the conclusion that
Simply Storage and Lamar exercised diligence to ascertain the legitimacy of the renewal letter in
the earlier litigation. During discovery, Lamar asked International to identify “any persons who
provided information used in answering this First Discovery Set.” International answered: “Randy
Oram, President; Jeff Sieving, Corporate Counsel; and Patrick Depa, Director, Real Estate.” When
asked in the same set of requests, however, to identify all persons that “you believe may have
information regarding the facts giving rise to the claims and defenses in this action,” International
did not list Depa. International also did not list Depa when asked to identify “any and all person(s)
with information about the facts alleged in the complaint and/or the Defendant’s denials of those
facts.” Read together, International’s answers to the interrogatories can reasonably be understood
as an assertion by International that Depa, although he may have assisted in some unstated way in
preparing the discovery responses, had no relevant information concerning the substance of the
dispute. Accordingly, International led Lamar to believe that it had no grounds to depose Depa
despite International knowing that Depa had information about the provenance of the renewal
letter.
International suggests that Simply Storage and Lamar could not reasonably rely on
International’s answers to the interrogatories and should have investigated further, implying that
Lamar should have assumed that Depa had information notwithstanding International’s assertion
to the contrary. We disagree. The purpose of discovery is to simplify and clarify the issues to be
tried. Hamed v Wayne Co, 271 Mich App 106, 109; 719 NW2d 612 (2006). International had a
duty to make complete and correct disclosures, see MCR 2.302(G)(3)(a)(i), and we reject an
interpretation of the court rules that requires a party to assume that his or her opponent has violated
the rules of discovery. Simply Storage and Lamar were permitted to rely on International’s
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discovery responses and cannot be faulted for failing to depose Depa after International asserted
that Depa had no information relevant to the claims or defenses at issue.2 We conclude that
although Simply Storage and Lamar were not required by MCR 2.612(C)(1)(c) to demonstrate
diligence in discovering International’s fraud, they did not fail to exercise diligence in attempting
to ascertain the validity of the renewal letter.
2. DEPA’S CREDIBILITY
International also contends that the trial court abused its discretion by finding Depa’s
testimony credible when granting the motion for relief from judgment. We review for an abuse of
discretion the trial court’s decision to admit or exclude evidence. Mitchell v Kalamazoo
Anesthesiology, PC, 321 Mich App 144, 153; 908 NW2d 319 (2017). We review the trial court’s
findings of fact for clear error, giving regard to “the special opportunity of the trial court to judge
the credibility of the witnesses who appeared before it.” MCR 2.613(C); Dep’t of Environmental
Quality v Sancrant, 337 Mich App 696, 717; 976 NW2d 874 (2021).
International argues that there were inconsistencies and misrepresentations in Depa’s
affidavit that demonstrated that Depa was not credible. During the evidentiary hearing,
International’s lawyer cross-examined Depa about inconsistencies in his affidavit. For example,
counsel questioned Depa about his assertion in the affidavit that, when searching for the renewal
letter, the staff at International looked in every file. Depa agreed that the staff actually looked in
every file pertinent to billboards, not necessarily every single file of every kind. Depa also agreed
that during his deposition he conceded that it was possible that Oram replaced his computer
without Depa’s knowledge. In addition, Depa agreed that, contrary to his assertion in his affidavit
that International forgot about the lease until 2016, the lease was mentioned occasionally during
meetings, although no one took action on the lease. International’s lawyer also elicited testimony
from Depa casting doubt on his assertion that he informed Oram that the lease had expired, and
testimony that Depa asked Oram to lie to a prospective employer.
Although International’s lawyer effectively cross-examined Depa regarding the accuracy
of Depa’s recollections, the trial court correctly observed that the inaccuracies with which Depa
was confronted did not undermine his testimony that he saw Oram draft and print the back-dated
renewal letter in 2016. The trial court was in the best position to assess the weight and credibility
of Depa’s testimony at the evidentiary hearing. See MCR 2.613(C). In addition, International did
not present evidence to support its assertion that all computer data surrounding the letter had been
lost, lending support to Depa’s testimony that the renewal letter had in fact been created in 2016
and that International deliberately deleted or destroyed evidence that would have established the
letter’s provenance. On this record, we have no basis to second guess the trial court’s superior
ability to assess Depa’s credibility. See Swain v Morse, 332 Mich App 510, 524; 957 NW2d 3962
Similarly, Simply Storage and Lamar did not lack diligence for failing to make further discovery
requests related to International’s computers based upon International’s assurances that the
computer information was no longer available.
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(2020) (The judicial system relies upon the fact-finders to determine the credibility of the
evidence).
3. EVIDENTIARY CHALLENGES
a. CHARACTER EVIDENCE
International contends that the trial court improperly admitted propensity evidence at the
evidentiary hearing. Depa testified at the hearing that he observed Oram create the renewal letter
in 2016 and backdate the letter to 2013, and that he also had observed Oram alter other documents
in the past. He testified, in relevant part:
Q. Had you ever had any experience with Mr. Oram doing anything of this
nature before, altering the date on a document, or altering a document?
A. Many, many times.
Q. And what had you seen before?
A. He would manipulate engineering plans. He would move stamps from
other plans that were stamped and reviewed by engineers to engineering plans and
building plans that weren’t approved by engineers.
He would also manipulate building code dates for building code—for plans
that were designed—or engineered to a specific building code in the past, but now
a new building code was adopted by the state that he would move—he would
actually move that—or change that date from 2011, building code—Michigan
BC—Michigan building code—to now 2015 Michigan building code, . . .
International’s lawyer objected to the testimony as improper evidence of “other bad acts”
subject to exclusion under MRE 404(b). Lamar’s lawyer responded that the testimony was
admissible under MRE 404(b) as evidence of Oram’s system of altering dates on documents. The
trial court overruled International’s objection. We conclude that the trial court erroneously
admitted Depa’s testimony that Oram altered other documents in the past, but the error was
harmless.
Generally, only relevant evidence is admissible. MRE 402. Evidence is relevant when it
has “any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” MRE 401.
Evidence that is logically relevant under MRE 401 and 402, however, nonetheless may be
excluded under a rule of legal relevance. In that regard, MRE 404 generally precludes the
admission of character evidence to prove that the actor acted in conformity with that character
despite its relevance. MRE 404 provides in pertinent part:
(a) Character Evidence Generally. Evidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion, . . .
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***
(b) Other Crimes, Wrongs or Acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Other acts evidence under MRE 404(b) is only admissible “when a party shows that it is
(1) offered for a proper purpose, i.e., to prove something other than . . . propensity to act in a
certain way, (2) logically relevant, and (3) not unfairly prejudicial under MRE 403.” Rock v
Crocker, 499 Mich 247, 257; 884 NW2d 227 (2016). In this case, the trial court erred by accepting
other acts evidence without a “proper purpose,” because Lamar’s stated purpose was effectively
propensity evidence. See MRE 404(b). The trial court also failed to offer a limiting instruction.
See People v VanderVliet, 444 Mich 52, 75; 508 NW2d 114 (1993). Nonetheless Depa’s testimony
regarding Oram’s other acts of falsifying documents could have been properly admitted under
MRE 404(b) for myriad other proper purposes. Most obviously it tends to show lack of accident
or mistake related to Oram’s explanations for International’s inability to locate metadata related to
the document at issue in this case. See MRE 404(b)(1). Moreover, improper admission of other-
acts evidence “is presumed not to be a ground for reversal unless it affirmatively appears that,
more probably than not, it was outcome determinative—i.e., that it undermined the reliability of
the verdict.” People v Denson, 500 Mich 385, 409; 902 NW2d 306 (2017) (quotation marks and
citation omitted). When reviewing the improper admission of other acts evidence, we must “focus
on the nature of the error and assess its effect in light of the weight and strength of the untainted
evidence.” Id. at 409-410 (alterations, quotation marks, and citation omitted). Here, the
inadmissible testimony was relatively minor compared to other high-confidence corroborating
evidence of falsification of the documents at issue. Considering that the evidence could have been
properly admitted on other grounds, and in light other high-confidence corroborating evidence, the
error in this case was harmless.
b. FAYCURRY’S TESTIMONY
International also contends that the trial court erred by preventing International from
introducing evidence that Depa left a message with another employee, James Faycurry. Depa
testified that no one at International had taken an interest in the lease with Simply Storage until
about January or February 2016, which Depa recalled was about the time Faycurry started working
with International, and that Faycurry renewed Oram’s interest in the lease with Simply Storage at
that time. By contrast, Faycurry testified at the evidentiary hearing that he began working for
International in February 2017. International’s lawyer attempted to introduce into evidence a
voicemail message Depa purportedly left Faycurry in June 2019, wherein Depa attempted to
confirm the date Faycurry began his employment with International and also made a derogatory
remark about Oram. International argued that the voicemail message was offered to impeach Depa
because Depa admitted on the voicemail that he was a contractor, not an employee, that Depa was
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unsure of when Faycurry began his employment with International at the time he made his
affidavit, and that the voicemail also showed Depa’s animosity toward Oram. The trial court
excluded the voicemail as hearsay.
Hearsay is a statement other than one made by the declarant while testifying at the hearing
that is offered to prove the truth of the matter asserted, MRE 801(c), and is generally inadmissible.
MRE 802. Evidence that Depa was biased against Oram generally would be admissible to attack
Depa’s credibility. However, International did not have to admit the voicemail message to
establish the points that it wished to make. It could have cross-examined Depa about his animosity
toward Oram and could have confronted him with the voicemail and other evidence if he denied
it. International also had cross-examined Depa about his understanding of his employment status
and suggested that Depa misrepresented himself as an employee. International also demonstrated
that Depa’s affidavit was incorrect about the start date of Faycurry’s employment, without resort
to the voicemail. On the record before the trial court, International did not lay a sufficient
foundation to establish that the voicemail was admissible for a purpose other than to prove the
truth of the matters asserted in the recording. We conclude that the trial court did not abuse its
discretion by excluding the hearsay evidence.
B. JUDGMENT NOTWITHSTANDING THE VERDICT
At the conclusion of the second trial, the jury found that International tortiously interfered
with the contract between Simply Storage and Lamar. International contends that the trial court
erred by denying International’s motion for judgment notwithstanding the verdict because Simply
Storage and Lamar failed to establish their claim of tortious interference with a contract.
International argues that it could not interfere with defendants’ contract because Simply Storage
had no duty to perform under the lease until Lamar constructed a billboard on the Simply Storage
property, which never occurred. We disagree.
We review de novo a trial court’s decision to grant or deny a motion for judgment
notwithstanding the verdict, Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586 , 604; 886
NW2d 135 (2016), viewing “the evidence and all legitimate inferences in the light most favorable
to the nonmoving party.” Craig v Oakwood Hosp, 471 Mich 67, 77; 684 NW2d 296 (2004). If the
evidence viewed in this light fails to establish a claim as a matter of law, the moving party is
entitled to judgment notwithstanding the verdict. Craig, 471 Mich at 77. However, “if reasonable
jurors could have honestly reached different conclusions, the jury verdict must stand.” Hecht, 499
Mich at 605-606.
The elements of tortious interference with a contract or contractual relations are “(1) the
existence of a contract, (2) breach of the contract, and (3) an unjustified instigation of the breach
by the defendant,” resulting in damage to the aggrieved party to the contract. Knight Enterprises,
Inc v RPF Oil Co, 299 Mich App 275, 280; 829 NW2d 345 (2013). For purposes of tortious
interference with a contract, the element of breach may be demonstrated by showing that “the
defendant induced or otherwise caused nonperformance of the contract.” Hutton v Roberts, 182
Mich App 153, 161; 451 NW2d 536 (1989); see also Wilkinson v Powe, 300 Mich 275, 285-286;
1 NW2d 539 (1942) (Tortious interference with a contract does not require actual breach of
contract; the interference need only cause the termination of the contractual arrangement). With
regard to the third element, the party alleging tortious interference with a contractual relationship
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must allege the “intentional doing of a per se wrongful act or the doing of a lawful act with malice
and unjustified in law” for the purpose of invading the contractual rights of another. Relative Time
Films, LLC v Covenant House Michigan, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket
No. 359645); slip op at 3 (quotation marks and citation omitted). “If the defendant’s conduct was
not wrongful per se, the plaintiff must demonstrate specific, affirmative acts that corroborate the
unlawful purpose of the interference.” Id., quoting Knight Enterprises, 299 Mich App at 280.
In this case, the parties do not dispute that Simply Storage and Lamar entered into a lease
agreement. The lease provides that Simply Storage leased to Lamar “as much of the hereinafter
described lease premises as may be necessary for the construction, repair and relocation of an
outdoor advertising structure,” for a term of 20 years beginning on the date of the installation of
the billboard. Lamar presented significant evidence that Oram’s actions directly interfered with
the lease between Lamar and Simply Storage and caused Lamar to lose the benefit of its bargain
for a period of years; the evidence showed that, but for International’s forged renewal letter,
Simply Storage would have allowed Lamar onto its property to erect the billboard. International’s
actions therefore caused Simply Storage to “breach” its lease with Lamar, in that the interference
induced the nonperformance of the contract.
International argues that the record established that Simply Storage did not breach any
particular duty that it owed to Lamar because the 20-year lease period did not commence until
Lamar installed a sign, and thus the agreement never began; that is, Simply Storage had no duty to
perform because Lamar never installed a billboard, so the lease never commenced. International’s
argument does not reflect a plausible interpretation of the parties’ agreement.
Simply Storage and Lamar agreed that Lamar was leasing the property “necessary for the
construction” of the billboard, and that the term of the lease would be 20 years beginning from the
date of the installation of the billboard. The fact that the parties agreed that the 20-year term would
begin upon the construction of the billboard did not mean that the agreement did not become a
valid and binding agreement as of the date of execution. The latter provision protected Lamar’s
right to use the property for its billboard for at least 20 years after the billboard’s construction; it
did not preclude the agreement from coming into force. Once Simply Storage executed the lease
with Lamar, it would have been a breach of the agreement for Simply Storage to refuse Lamar
reasonable entry to construct its billboard.
A reasonable jury considering the evidence could conclude that a contract existed between
Simply Storage and Lamar, and that International’s forged lease renewal, ostensibly demonstrating
an exclusive right to erect a billboard on the property, interfered with the contract between Simply
Storage and Lamar to permit Lamar to erect a billboard on the same property, inducing
nonperformance of the contract. Because a reasonable jury could find that International
unjustifiably induced the nonperformance of the contract between Simply Storage and Lamar, the
trial court did not err when it denied International’s motion for judgment notwithstanding the
verdict. See Hecht, 499 Mich at 605-606.
C. REMITTITUR
International also contends that the trial court abused its discretion by denying its motion
for remittitur. We review the trial court’s decision on a motion for remittitur for an abuse of
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discretion, viewing the evidence in the light most favorable to the non-moving party. Pungo v
Blue Harvest Farms, LLC, 326 Mich App 1, 30; 930 NW2d 393 (2018).
Remittitur is a reduction of the amount awarded by the jury’s verdict. See Anderson v
Progressive Marathon Ins Co, 322 Mich App 76, 84; 910 NW2d 691 (2017). When determining
whether remittitur is warranted, the relevant inquiry is whether the jury’s award falls within the
range of the evidence presented at trial. Id. Remittitur is warranted when the jury’s verdict exceeds
the highest amount that the evidence supports. Diamond v Witherspoon, 265 Mich App 673, 694;
696 NW2d 770 (2005). The trial court’s power to grant remittitur should be exercised with
significant restraint. Anderson, 322 Mich App at 84. If the jury’s award falls reasonably within
the range of the evidence and within the limits of what reasonable minds would deem just
compensation, it should not be disturbed. Id.At trial, Lamar presented evidence that it lost $687,244 in profits during the years it was
prevented from installing its billboard on Simply Storage’s property. That amount was based on
testimony that Lamar’s net monthly profits for the proposed billboard would have been $11,541
for 61 months (the delay caused by International’s interference), reduced by $16,757 to account
for reduced profits during the Covid shutdown. International argues that at trial, through cross-
examination of Lamar’s witness, International demonstrated that Lamar did not lose its profits
altogether, but instead lost only the time value of the profits (the earnings on those profits) that it
would have made during that period but for International’s interference. International argues that
Lamar still has the opportunity to earn profits for the entire 20-year lease because after the delay
of 61 months caused by International’s interference, Lamar still had a 20-year lease, albeit pushed
further into the future, and that Lamar did not establish that it would have taken advantage of the
lease renewal options.
International’s assessment of the evidence does not establish grounds for remittitur. Lamar
presented evidence of the profits it would have obtained; International argued that Lamar lost only
the earnings on those profits during that period. The jury evidently found Lamar’s evidence
persuasive; indeed, International’s argument does not account for Lamar not having access to those
earnings during the years in question. That is, International did not merely delay Lamar in earning
the interest on the profits in question, it deprived Lamar of access to those profits during that period
for whatever purpose Lamar may have wanted or needed those funds. Moreover, International did
not establish that the opportunity to embark on the 20-year lease several years later is necessarily
the same opportunity that existed had the lease commenced according to Lamar’s and Simply
Storage’s agreement.
In sum, International presented its theory to the jury but did not succeed in refuting Lamar’s
evidence. As discussed, remittitur is warranted only when the jury’s verdict exceeds the highest
amount that the evidence supports, Diamond, 265 Mich App at 694, and thus, the relevant inquiry
is whether the jury’s award falls within the range of the evidence presented at trial. Anderson, 322
Mich App at 84. A reasonable jury could find that Lamar lost the benefit of profits during the
period in question as a result of International’s tortious interference. Viewing the evidence in the
light most favorable to Lamar, there was evidence to support the jury’s award of damages. The
trial court therefore did not abuse its discretion by denying International’s motion for remittitur.
D. ATTORNEY FEES
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On cross-appeal, Lamar argues that the trial court erred by determining that Lamar was not
entitled to its reasonable attorney fees as an element of damages. We review for an abuse of
discretion a trial court’s award of attorney fees and costs; questions of law pertaining to an award
of attorney fees are reviewed de novo. Highfield Beach at Lake Michigan v Sanderson, 331 Mich
App 636, 655; 954 NW2d 231 (2020).
Michigan follows the “American Rule” that provides that the prevailing party in litigation
is not entitled to recover its attorney fees as an element of damages unless expressly allowed by
statute, court rule, common law exception, or by the parties’ contract. Skaates v Kayser, 333 Mich
App 61, 84; 959 NW2d 33 (2020). Exceptions to this general rule are narrowly construed. Brooks
v Rose, 191 Mich App 565, 575; 478 NW2d 731 (1992).
Michigan law allows a plaintiff to recover its attorney fees as an element of damages under
the common law “prior litigation” exception. Under the prior litigation exception, a party may
recover attorney fees incurred in prior litigation with a third party where the present defendant by
wrongful conduct caused the present plaintiff to prosecute or defend the prior action. Grace v
Grace, 253 Mich App 357, 371; 655 NW2d 595 (2002). In this case, Lamar seeks to recover
attorney fees incurred to litigate this action and the prior action with International, and therefore
this case does not fall within the traditional description of the prior litigation exception.
Lamar contends, however, that the recovery of attorney fees “has been allowed in limited
situations where a party has incurred legal expenses as a result of another party’s fraudulent or
unlawful conduct.” Brooks, 191 Mich App at 575. A review of the decisions relied upon to support
this statement in Brooks, however, indicates that those cases involved fees incurred in previous
disputes caused by the defendant’s fraudulent conduct. See Oppenhuizen v Wennersten, 2 Mich
App 288, 299; 139 NW2d 765 (1966) (the measure of damages for a claim of fraud may include
attorney fees or legal costs that the plaintiff incurred in a dispute with a third party that was caused
by the defendant’s fraud); Tutton v Olsen & Ebann, 251 Mich 642, 650; 232 NW 399 (1930)
(holding that a person may recover as a form of damages his or her attorney fees incurred in
defending himself or herself from an earlier prosecution in a claim for malicious prosecution
brought against the defendant who caused the earlier prosecution); Bates v Kitchel, 166 Mich 695,
701-702; 132 NW 459 (1911) (stating that the expenses the plaintiff incurred in procuring his
discharge from imprisonment were recoverable in an action for false imprisonment because the
expenses were a direct and necessary result of the unlawful imprisonment). The key consideration
in each of the cases cited in Brooks was that the plaintiff established that the defendant’s actions
caused the plaintiff to incur legal expenses in an earlier action involving a third party.
This Court, however, has since relied on Brooks for the proposition that a trial court has
authority to award attorney fees in an action in which the moving party incurred the fees as a result
of another party’s fraudulent or unlawful conduct. See Ypsilanti Charter Twp v Kircher, 281 Mich
App 251, 286-287; 761 NW2d 761 (2008); see also Spectrum Health v Grahl, 270 Mich App 248,
253; 715 NW2d 357 (2006). Although earlier caselaw limited an award of attorney fees to fees
incurred in prior litigation, the Court in Ypsilanti did not limit the exception in that same way:
Plaintiff was forced to incur substantial costs and attorney fees to prosecute this
matter, which originally arose out of defendant’s illegal and egregious discharge of
raw sewage into a public storm drain. The matter then continued when defendant
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flaunted the circuit court’s orders requiring him to clean up and remediate the
contaminated areas on his property, and when he refused to bring his buildings into
compliance with applicable local ordinances. Plaintiff incurred substantial legal
expenses as a result of defendant’s unlawful conduct. We cannot conclude that the
circuit court’s award of attorney fees for plaintiff fell outside the range of
reasonable and principled outcomes. [Ypsilanti Charter Twp, 281 Mich App
at 286-287 (citations omitted).]
Under the rule as articulated in Ypsilanti, Lamar could seek attorney fees associated with
prosecuting its claim against International on the basis that International engaged in fraudulent or
unlawful conduct that forced Lamar to prosecute its claim. See id. at 286-287. Accordingly, the
trial court necessarily abused its discretion when it denied Lamar’s motion for attorney fees on the
ground that there was no exception to the American Rule premised on fraud or unlawful conduct.
See Ronnisch Constr Group, 499 Mich at 552. Consequently, we vacate the trial court’s order
denying Lamar’s motion for attorney fees and remand for reconsideration of that motion. The trial
court is directed on remand to reconsider Lamar’s request for attorney fees under the rule
established in Ypsilanti and as stated in Spectrum Health and cases cited therein. See Brooks, 191
Mich App at 575.
E. COSTS
International contends that the trial court abused its discretion by awarding costs to Lamar
in excess of costs approved by the trial court’s clerk. We review a trial court’s decision to award
costs for an abuse of discretion, Pirgu v United Servs Auto Ass’n, 499 Mich 269, 274; 884 NW2d
257 (2016), and review de novo the application of the relevant statutes and court rules, Franks v
Franks, 330 Mich App 69, 86; 944 NW2d 388 (2019). Whether a particular expense is taxable as
a cost is a question of law that we review de novo. VanElslander v Thomas Sebold & Assocs, Inc,
297 Mich App 204, 211; 823 NW2d 843 (2012).
MCR 2.625 permits the prevailing party to recover the costs incurred during litigation.
MCR 2.625(A)(1) provides that costs “will be allowed to the prevailing party in an action, unless
prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in
writing and filed in the action.” However, because the power to tax costs is purely statutory, the
prevailing party cannot recover costs absent statutory authority. Estate of Carlsen v Southwestern
Mich Emergency Servs, PC, 338 Mich App 678, 701; 980 NW2d 785 (2021). What is a “cost”
within the meaning of MCR 2.625(A) is ascertained by reference to the statutory provisions
identifying what items are taxable as costs. Id. at 702.
The Revised Judicature Act, MCL 600.101 et seq., provides that the following items
generally may be taxed as costs:
(1) Any of the fees of officers, witnesses, or other persons mentioned in this
chapter or in [MCL 600.2501 et seq.], unless a contrary intention is stated.
(2) Matters specially made taxable elsewhere in the statutes or rules.
(3) The legal fees for any newspaper publication required by law.
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(4) The reasonable expense of printing any required brief and appendix in
the supreme court, including any brief on motion for leave to appeal.
(5) The reasonable costs of any bond required by law, including any stay of
proceeding or appeal bond.
(6) Any attorney fees authorized by statute or by court rule. [MCL
600.2405.]
MCR 2.625(F) provides the procedure for taxing costs, directing the party entitled to costs
to submit a bill of costs and supporting materials, and directing the trial court clerk to approve the
appropriate costs. The action of the clerk is then reviewable by the trial court upon motion by an
affected party. MCR 2.625(F)(4). In this case, after prevailing in the second jury trial Lamar
submitted a bill of costs to the trial court clerk requesting $40,237.86 in taxable costs, and specified
the requested amounts as follows:
Filing fee, MCL 600.2529(2): $187.98
Motion fees, MCL 600.2529(2): $834.37
Service of process fee, MCL 600.2555, MCL 600.2559(1)(a): $50.00
Transcript fees, MCL 600.2543(2): $2,021.62
Depa’s travel costs, MCL 600.2552(1): $960.50
Expert witness fees, MCL 600.2163: $25,045.39
Appeal Bond, MCL 600.2505(5): $11,138.00
International objected to the bill of costs, and the trial court clerk approved costs in the
amount of $660.35. Lamar moved for review of the clerk’s action. The trial court thereafter
directed the trial court clerk to issue an additional taxation of costs to Lamar in the amount of
$39,165.51, which included the amounts Lamar sought for transcript fees, Depa’s travel, expert
witness fees, and the appeal bond fee. International challenges on appeal the trial court’s taxation
of those costs.
1. TRANSCRIPTS
International contends that the trial court abused its discretion by permitting Lamar to tax
the cost of transcripts from the first trial because those transcripts were prepared in anticipation of
appeal to this Court and not for a purpose authorized by MCL 600.2543(2). That statutory section
provides:
Only if the transcript is desired for the purpose of moving for a new trial or
preparing a record for appeal shall the amount of reporters’ or recorders’ fees paid
for the transcript be recovered as a part of the taxable costs of the prevailing party
in the motion, in the court of appeals or the supreme court. [MCL 600.2543(2).]
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MCL 600.2543(2) does not authorize the trial court to tax the cost of transcripts prepared
for an appeal, which is a taxable cost on appeal. Home-Owners Ins Co v Andriacchi, 320 Mich
App 52, 74; 903 NW2d 197 (2017). However, if a transcript was prepared for the purpose of
moving for a new trial, it may be “recovered as a part of the taxable costs of the prevailing party
in the motion . . . .” MCL 600.2543(2). In this case, the transcript from the first trial was not
prepared for the purpose of Lamar moving for a new trial. Although Lamar indicates that it used
the transcript to seek a new trial after learning of International’s fraud, the record indicates that
Lamar initially obtained the transcript for the purpose of preparing for a motion for judgment
notwithstanding the verdict after the first trial, on which it did not prevail, and also for its appeal
in this Court. Accordingly, the trial court erred when it allowed Lamar to tax the cost of preparing
the transcript from the first trial. We therefore vacate the trial court’s taxation of costs to the extent
that it included this expense.
2. TRAVEL EXPENSES
International contends that the trial court erred in taxing costs for Depa’s travel expenses.
A witness may be compensated for his or her travel expenses “in coming to the place of attendance
and returning from the place of attendance” for trial, but only as provided under MCL 600.2552(5).
See MCL 600.2552(1). Under MCL 600.2552(5), the witness may be reimbursed a “per-mile rate”
equal to the rate set by the department of management and budget for state employees. See MCL
600.2552(5). Mileage must be “estimated from the residence of the witness, if his or her residence
is within this state, or from the boundary line of this state that the witness passed in coming into
this state, if his or her residence is out of this state.” MCL 600.2552(1).
In this case, it is undisputed that Depa flew to Michigan to attend the trial. MCL 600.2552
does not limit reimbursement to any particular mode of travel. The trial court, however, allowed
Lamar to tax the full cost of Depa’s airfare ($960.50) without applying the estimated miles to the
rate of reimbursement provided under MCL 600.2552(5). Accordingly, we vacate the trial court’s
order to the extent that it included this expense and remand to the trial court for amendment of the
order to reflect the cost of Depa’s travel expense calculated under MCL 600.2552.
3. EXPERT WITNESS FEES
International contends that the trial court erred by permitting Lamar to tax the fees of its
expert witness, John Stott Matthews, who testified regarding his inspection of International’s
computers. We review for an abuse of discretion the trial court’s determination of the amount of
expert witness fees taxed as costs. Estate of Carlsen, 338 Mich App at 701.
MCL 600.2164 governs the award of costs for expert witness fees, and states in relevant
part:
(1) No expert witness shall be paid, or receive as compensation in any given case
for his services as such, a sum in excess of the ordinary witness fees provided by
law, unless the court before whom such witness is to appear, or has appeared,
awards a larger sum, which sum may be taxed as part of the taxable costs in the
case. . . .
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***
(3) The provisions of this section shall not be applicable to witnesses testifying to
the established facts, or deduction of science, nor to any other specific facts, but
only to witnesses testifying to matters of opinion.
International argues that the trial court erred when it allowed Lamar to tax Matthews’
expert witness fees because Matthews testified to facts and not as an expert witness. Under MCL
600.2164(3), an expert must testify as to “matters of opinion” and not to “established facts” to be
entitled to compensation in excess of that for an ordinary witness. See MCL 600.2164(3); see also
Guerrero v Smith, 280 Mich App 647, 672; 761 NW2d 723 (2008). Contrary to International’s
argument on appeal, Matthews testimony encompassed more than facts. Matthews testified about
his investigation of the computer devices at issue and informed the court about the observations
and reports that he made in his investigation. The trial court qualified him as an expert in computer
forensics, and he offered opinion testimony about his observations throughout the hearing. The
trial court therefore had authority to grant Lamar’s request to tax Matthews’ fees as a cost.
International argues, however, that the trial court erred by allowing Lamar to tax Matthews’
fees for time during which Matthews charged for advising and educating Lamar’s lawyers and for
engaging in work other than testifying or preparing to testify. A trial court may only tax those fees
related to testifying as an expert witness or preparing to testify as an expert witness; the court may
not tax as a cost those fees arising from “conferences with counsel for purposes such as educating
counsel about expert appraisals, strategy sessions, and critical assessment of the opposing party’s
position.” See Detroit v Lufran Co, 159 Mich App 62, 67; 406 NW2d 235 (1987). Additionally,
the trial court may assess the reasonableness of an expert’s fees and adjust them accordingly. See
Guerrero, 280 Mich App at 675-677.
In its motion to tax costs, Lamar submitted documentation that showed that Matthews’
charges included time and expenses arguably not compensable as costs, such as hardware that he
purchased as part of his investigation and telephone conversations apparently for the purpose of
educating counsel. See Lufran Co, 159 Mich App at 67. Moreover, the record does not
demonstrate that the trial court evaluated the reasonableness of Matthews’ fees. See Guerrero,
280 Mich App at 675-677. Accordingly, we vacate the trial court’s order to the extent that it taxed
costs for Matthews’ fees and remand to the trial court to permit it to assess the requested fees.
4. APPEAL BOND
International also argues that the trial court had no authority to allow Lamar to tax its
expenses for an appeal bond because Lamar did not identify a correct basis for taxing that cost in
its request to the trial court’s clerk. A trial court may tax the “reasonable costs of any bond required
by law, including any stay of proceeding or appeal bond.” MCL 600.2405(5). The expenses for
a letter of credit obtained in lieu of a bond also may be taxable as a cost under this statute.
VanElslander, 297 Mich App at 222. An appeal bond is a form of security designed to protect an
appellee’s rights during the pendency of an appeal. See Federal Nat’l Mortgage Ass’n v Wingate,
404 Mich 661, 678; 273 NW2d 456 (1979). As such, it is normally incurred in the trial court as a
condition precedent to an appeal. See MCR 2.621(H)(1). Because the trial court has the authority
to tax costs incurred in its court, see MCL 600.2455, it had the authority to tax the expenses that
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Lamar incurred in connection with its letter of credit as a cost under MCL 600.2405(5). See
VanElslander, 297 Mich App at 222.
International argues that under MCR 7.219(F)(2), only the Court of Appeals has authority
to tax the costs of an appeal bond. MCR 7.219(F) provides that a “prevailing party may tax only
the reasonable costs incurred in the Court of Appeals,” which includes expenses for any “appeal
or stay bond.” MCR 7.219(F)(2). That is, when an appeal or stay bond is “incurred” in the Court
of Appeals, the prevailing party on appeal may tax the costs associated with that bond. The
Supreme Court similarly provided that the prevailing party in the Supreme Court could tax the
costs associated with his or her appeal bond. See MCR 7.319(A). The court rules are consistent
with the general proposition that a party is only entitled to tax the costs incurred in a particular
court when that party prevails in that court. The trial court did not err when it allowed Lamar to
tax the expenses associated with its letter of credit in lieu of appeal bond that was incurred in that
court.
We affirm the trial court’s order entering judgment for Simply Storage and Lamar, vacate
the trial court’s order denying Lamar’s request for attorney fees, vacate in part the trial court’s
order granting costs, and remand to the trial court for further proceedings consistent with this
opinion. We do not retain jurisdiction. As the prevailing parties in Docket No. 359082, Lamar
and Simply Storage may tax the costs associated with that appeal. See MCR 7.219(A). Because
none of the parties prevailed in full in Docket No. 359811, no party may tax costs incurred in that
appeal. See MCR 7.219(A).
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Noah P. Hood
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