Fleischer v. Buccilli

13 Mich. App. 135 (1968) 163 N.W.2d 637

FLEISCHER
v.
BUCCILLI.

Docket No. 4,036.

Michigan Court of Appeals.

Decided August 29, 1968.

Ellis R. Van Hoesen, for plaintiff.

Potvin, Tunney & Lawrence, for defendant Frances Buccilli.

BURNS, J.

Plaintiffs brought an action against defendants for specific performance of a land contract and damages allegedly caused by the defendants' refusal to comply with the terms of the contract. Louis Buccilli filed his answer stating that he had been and was willing to carry out the terms of the contract and sign a deed but that Frances Buccilli, his wife, refused to abide by the terms of the contract. Frances Buccilli filed her answer and denied that she had received any money on the contract and alleged a conspiracy between plaintiffs and Louis Buccilli to defraud her. She also filed a cross-claim against Louis Buccilli.

Plaintiffs filed a motion for summary judgment, the hearing of which was adjourned at the request of Frances Buccilli's attorney to enable him to secure a deed from her. She signed the deed which was delivered to the plaintiffs and recorded. Subsequently plaintiffs were granted a summary judgment for specific performance and awarded $700 for damages and $100 for attorney fees. At the hearing on the motion for summary judgment plaintiff Carl E. Fleischer testified that he lost about $500 or $600 worth of business and that he paid for revenue stamps ($11), title insurance (no amount specified) and attorney fees ($600). A rehearing was granted as to damages and attorney fees because the original hearing was not properly noticed.

Following the rehearing the trial judge amended the judgment, assessed $400 damages against Frances Buccilli and ordered Louis Buccilli to pay plaintiffs' attorney fees in the amount of $200. The order further provided that plaintiffs pay the balance of $400 due on the contract to the clerk of the court who was required to remit $200 of that payment to Louis Buccilli and $200 to Frances Buccilli.

Defendant Frances Buccilli appeals the judgment of the trial court on several grounds, only one of which merits consideration in this opinion. Did the plaintiffs prove legally recoverable damages?

Although a suit for specific performance is historically an equitable action, the court, once having taken jurisdiction, can grant complete relief, including the awarding of damages. Frank v. Coyle (1944), 310 Mich. 14; Reinink v. Van Loozenoord (1963), 370 Mich. 121. The testimony of the plaintiffs, however, does not substantiate the judgment of the trial court.

The plaintiffs testified that they purchased title insurance because defendants failed to deliver a policy of title insurance or an abstract of title to the property as required by the contract. However, the plaintiffs did not offer any evidence of the amount paid for the title insurance and therefore did not prove their damages.

Plaintiff Carl Fleischer testified as follows:

"The Court: What are the hours again?

"A. Five thirty in the morning until one at night. I have a woman that comes in at eleven but I work a long day. * * *

"Q. Now, can you tell me, Mr. Fleischer, how many times you have been in the court room on these pending motions?

"A. Well, with this one it will be five times. * * *

"Q. Who has been in charge of your business while you've been here in court?

"A. I have a morning girl that takes care of the business for me. Of course, she isn't capable of doing as well as I do but at least the business will go on. It's not going to be as good as it would be if I was there.

"Q. Now, Mr. Fleischer, do you keep any accurate account of losses that you could disclose to this court — precise dollar and cents amount of losses you have sustained as a result of your required appearance in court on these matters of specific performance?

"A. Right now I don't, no.

"Q. All right. This matter started on December 12th of 1967, is that correct?

"A. I believe —

"Q. '66, I'm sorry. Now, can you tell me, Mr. Fleischer, if you are able to calculate in any reasonable manner the amount of damages you have sustained as a result of this lawsuit?

"A. Well, not really a total amount that I could put my finger on right now. I know my time is very valuable. There's the matter of my being in court. I have to be there. I wouldn't know how to answer that question. I'd say I've lost at least five or six hundred dollars."

Even if we were to assume that loss of business meant lost profits, Carl Fleischer's testimony as to loss of business falls short of establishing a correct measure of damages.

Next plaintiff stated that he paid his attorney $600. Generally, attorney fees cannot be charged as a measure of damages in the absence of statutory authority or court rule. Curtis v. Mueller (1915), 184 Mich. 148. Exceptions to this rule have been sparingly allowed when the parties seeking to recover attorney fees as damages have been forced to expend money by the unlawful acts of the other party. Cagney v. Wattles (1899), 121 Mich. 469; Bates v. Kitchel (1911), 166 Mich. 695. The proof submitted in the trial court did not substantiate an award of attorney fees on this basis.

Michigan cases hold that examplary damages may be allowed where the elements of fraud and malice or wanton and reckless disregard of a party's rights are involved. Livingston v. Burroughs (1876), 33 Mich. 511; Oppenhuizen v. Wennersten (1966), 2 Mich. App. 288. Although plaintiffs' complaint prays for exemplary damages, it does not allege facts which, if true, would establish such elements, nor does the testimony introduce anything which would cause the judge to make a determination regarding exemplary damages.

Plaintiffs also asked for exemplary attorney fees under GCR 1963, 526.13(1), which provides:

"In any action where the plaintiff's claim is reduced by counterclaim, or any other fact appears which shall entitle either party to costs, or to double costs, or to special damages, for delay or otherwise, the judge shall, on the application of either party, cause such fact to be entered in the minutes of the court."

The court did not cause such fact to be recorded in the minutes, and the plaintiffs were only entitled to ordinary tax costs.

Cause is reversed and remanded to the trial court for entry of judgment consistent with this opinion.

LESINSKI, C.J., and FENLON, J., concurred.