Cleary v. the Turning Point

203 Mich. App. 208 (1993) 512 N.W.2d 9

CLEARY
v.
THE TURNING POINT

Docket Nos. 131858, 133317.

Michigan Court of Appeals.

Submitted March 11, 1993, at Lansing. Decided September 29, 1993. Approved for publication January 13, 1994, at 9:00 A.M.

Eames, Wilcox, Mastej, Bryant, Swift & Riddell (by Jerry R. Swift and Keith M. Aretha), for the plaintiffs.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Janet G. Callahan), for the defendant.

Before: BRENNAN, P.J., and HOOD and TAYLOR, JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of judgment and an order awarding costs and attorney fees. We affirm.

Plaintiffs claim on appeal that the trial court erred in precluding testimony that revealed that defendant was in violation of certain regulations promulgated pursuant to OSHA^[1] and MIOSHA.^[2] Plaintiffs argue that the proffered testimony concerning the alleged violations of administrative rules was admissible even though plaintiff Margaret Cleary was a volunteer at the retail establishment run by the defendant when she was injured. The decision whether to admit certain evidence is within the trial court's sound discretion and will not be disturbed absent an abuse of discretion. Meek v Michigan Bell Telephone Co, 193 Mich. App. 340, 345; 483 NW2d 407 (1992). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. Gore v Rains & Block, 189 Mich. App. 729, 737; 473 NW2d 813 (1991). On the basis of our review of the record, we cannot find that the trial court's decision to preclude the proffered testimony regarding defendant's alleged OSHA and MIOSHA violations was an abuse of its discretion. However, even if we had found that the trial court had erred in excluding the proffered testimony, we are convinced that, in light of the other evidence presented, the jury verdict would not have been different had the proffered testimony actually been admitted. See Della Pella v Wayne Co, 168 Mich. App. 362, 370-371; 424 NW2d 50 (1988).

Plaintiffs next claim that the trial court erred in denying their motion for a directed verdict. In deciding whether the trial court erred in denying plaintiffs' motion for a directed verdict, this Court must review all the evidence in a light most favorable to the nonmoving party to determine whether sufficient evidence was presented to create an issue for the jury. Howard v Canteen Corp, 192 Mich. App. 427, 431; 481 NW2d 718 (1992). We will not disturb the trial court's decision unless there has been a clear abuse of discretion. Id. Upon reviewing the entire record, we believe that the trial court was correct in denying plaintiffs' motion for a directed verdict.

Plaintiffs also claim that the trial court erred in permitting defendant's counsel to comment upon the particular nature of defendant's business. Specifically, plaintiffs contend that the trial court should have prevented any reference by defendant to the charitable nature of its business operations. On the basis of our careful review, and considering plaintiffs' own references to the charitable nature of defendant's business during its closing arguments, we cannot conclude that plaintiffs were prejudiced by defense counsel's limited references to the nature of defendant's business operations. We believe that defense counsel's comments did not have the effect of diverting the jury's attention from the issues or otherwise affect the verdict. Knight v Gulf & Western Properties, Inc, 196 Mich. App. 119, 132-133; 492 NW2d 761 (1992); Wilson v General Motors Corp, 183 Mich. App. 21, 26; 454 NW2d 405 (1990).

Plaintiffs finally claim that the trial court erred in its award of attorney fees to defendant. An award of attorney fees will be upheld on appeal absent an abuse of discretion. Antiphon, Inc v LEP Transport, Inc, 183 Mich. App. 377; 454 NW2d 222 (1990). Plaintiffs argue that the trial court abused its discretion in awarding defendant attorney fees that were based upon an hourly rate that exceeded the actual hourly rate charged by defense counsel. We cannot agree with plaintiffs. MCR 2.403(O)(1) states that if a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. Actual costs are defined by MCR 2.403(O)(6) as

(a) those costs taxable in any civil action, and

(b) a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the mediation evaluation.

Nothing in the language of MCR 2.403(O) requires a trial court to find that reasonable attorney fees are equivalent to actual fees. Troyanowski v Village of Kent City, 175 Mich. App. 217, 227; 437 NW2d 266 (1988). Moreover, plaintiffs fail to set forth any specific case law that supports their position. We conclude, therefore, that the trial court did not abuse its discretion in awarding defendant attorney fees calculated at an hourly rate higher than the hourly rate that defendant was charged by defense counsel.

Affirmed.

NOTES

[1] Occupational Safety and Health Act, 29 USC 651 et seq.

[2] Michigan Occupational Safety and Health Act, MCL 408.1001 et seq.; MSA 17.50(1) et seq.