Juarez v. Holbrook

764 N.W.2d 216 (2009)

Jerry JUAREZ, Plaintiff-Appellee,
v.
John James HOLBROOK, All-In-One Disposal Corp., d/b/a Asset Management, Inc., and All One Disposal, Inc., Defendants-Appellants, and
Technical Logistic Corporation, Defendant.

Docket Nos. 137358, 137359. COA Nos. 275040, 276312.

Supreme Court of Michigan.

April 24, 2009.

On order of the Court, the application for leave to appeal the July 1, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

CORRIGAN, J. (dissenting).

I would vacate that part of the Court of Appeals judgment that held that the trial court properly determined the amount of attorney fees as case evaluation sanctions, and I would remand this case to the Wayne Circuit Court for reconsideration in light of Smith v. Khouri, 481 Mich. 519, 751 N.W.2d 472 (2008). In all other respects, I would deny leave to appeal.

MARKMAN, J. (dissenting).

I dissent and would vacate that part of the Court of Appeals judgment that held that the trial court properly determined the amount of attorney fees as case evaluation sanctions. I would also remand to the trial court for reconsideration in light of Smith v. Khouri, 481 Mich. 519, 751 N.W.2d 472 (2008).

Defendant was entitled to such sanctions because the jury verdict was well below the case evaluation award that all parties had rejected. The trial court awarded $68,893 in attorney fees, calculating the amount by taking the defense attorneys' hourly rate, which the court found to be low, and multiplying it by the number of hours billed, which the court found to be high. Defendants appealed, arguing that the amount was inadequate, but the Court of Appeals affirmed. One day later, this Court issued Smith, in which we clarified the process of calculating case evaluation attorney fees:

[T]he trial court should begin the process of calculating a reasonable attorney fee by determining factor 3 under MRPC 1.5(a), i.e., the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence. This number should be multiplied by the reasonable number of hours expended. This will lead to a more objective analysis. After this, the court may consider making adjustments up or down in light of the other factors listed in Wood [v. Detroit Automobile, 413 Mich. 573, 321 N.W.2d 653 (1982)] and MRPC 1.5(a). In order to aid appellate review, the court should briefly indicate its view of each of the factors. [Smith, supra at 522, 751 N.W.2d 472.]

A remand to the trial court for compliance with Smith is clearly required here. See Young v. Nandi, 482 Mich. 1007, 759 N.W.2d 351 (2008). However, the majority's disdain for Smith is apparently viewed as adequate justification for ignoring Smith. Rather than forthrightly overruling this decision, something the new majority is apparently loathe to do (perhaps because several majority justices repeatedly and loudly proclaimed fealty to stare decisis, and dissented, whenever the former majority overruled a precedent), it is increasingly becoming the modus operandi of this Court that relevant precedents simply be ignored. See, e.g., Vanslembrouck v. Halperin, ___ Mich. ___, 763 N.W.2d 919, 2009 WL 1108607 (Docket No. 135893, order entered April 24, 2009), where the new majority ignored Vega v. Lakeland Hospitals, 479 Mich. 243, 244, 736 N.W.2d 561 (2007), Hardacre v. Saginaw Vascular Services, ___ Mich. ___, 762 N.W.2d 527 (2009), where the new majority failed to follow Boodt v. Borgess Med. Ctr., 481 Mich. 558, 751 N.W.2d 44 (2008), and Sazima v. Shepherd Bar, ___ Mich. ___, 762 N.W.2d 924 (2009), where the new majority failed to follow Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606, 295 N.W. 331 (1940), and Camburn v. Northwest School Dist. (After Remand), 459 Mich. 471, 592 N.W.2d 46 (1999).

CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.