Raymond Guzall III v. David Warren

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
RAYMOND GUZALL III and RAYMOND UNPUBLISHED
GUZALL III, PC, July 8, 2021
Plaintiffs-Appellants,
v No. 352004
Wayne Circuit Court
DAVID WARREN and JOELSON ROSENBERG, LC No. 18-000343-CB
PLC,
Defendants,
and
BARRY A. SEIFMAN and BARRY A. SEIFMAN,
PC,
Defendants-Appellees.
Before: REDFORD, P.J., and BORRELLO and TUKEL, JJ.
PER CURIAM.
Plaintiffs, Raymond Guzall III, and Raymond Guzall III, PC, appeal as of right the trial
court’s order awarding attorney fees and costs to defendants, Barry A. Seifman and Barry A.
Seifman, PC.1 The trial court awarded the attorney fees pursuant to this Court’s prior order,
imposing sanctions for plaintiffs’ previous vexatious appeal in this Court in Docket No. 344507
and remanding for a determination of an appropriate award of sanctions. Guzall v Warren,
unpublished order of the Court of Appeals, entered September 12, 2019 (Docket Nos. 344507 &
345190). On appeal, plaintiffs challenge this Court’s order awarding sanctions to defendants and
the amount of attorney fees awarded to defendants. We disagree and, for the reasons stated in this
opinion, affirm the trial court’s attorney fee award to defendants.
1
The other defendants, David Warren and Joelson Rosenberg, PLC, are not parties to this appeal.
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I. UNDERLYING FACTS
A. BACKGROUND THROUGH THE PRIOR APPEAL
This case arises from a dispute over attorney fees in a civil employment discrimination
case; the background facts can be found in this Court’s prior opinions. As summarized in Harris
v Greektown Superholdings, Inc, unpublished per curiam opinion of the Court of Appeals, issued
August 20, 2015 (Docket No. 322088) (Harris I), pp 1-2:
In March 2012, [Diane] Harris, assisted by attorney Raymond Guzall III,
filed a lawsuit against Greektown Casino, LLC, Greektown Superholdings, Inc.,
and Carolyn Simancik (collectively “Greektown Casino”), asserting claims of
racial discrimination, hostile work environment, age discrimination, retaliation, and
intentional infliction of emotional distress. In November 2013, a jury returned a
verdict in favor of Harris for $600,066. Thereafter, Harris filed a motion requesting
entry of judgment and an award of attorney fees and costs.
After the jury returned its verdict but before the trial court entered judgment
or awarded attorney fees or costs, appellees, Barry A. Seifman and Barry A.
Seifman, P.C., formerly known as Seifman & Guzall, P.C., filed a motion to
intervene in Harris’s case, asserting a right to any attorney fees awarded. According
to appellees, in 2006, Guzall and appellees executed a stockholder agreement
expressly providing that in the event Guzall ended his employment with Seifman
& Guzall, P.C., all client files would remain the property of the firm. In February
2012, Guzall tendered notice that he was leaving the firm. Appellees asserted that
when Guzall left, he took several client files and court documents, including the
file regarding Harris’s case, in violation of the 2006 stockholder agreement.
Shortly after Guzall left the firm, appellees initiated litigation against him
in the Oakland Circuit Court. In March 2012, the Oakland Circuit Court issued a
stipulated order stating, “Any attorney fees and or cost reimbursements . . . paid to
Plaintiffs or Defendants, whether directly or indirectly, from or on behalf of any of
the following clients, shall be deposited into an interest bearing escrow account
maintained by the Court.” Harris was not listed among the “following clients”
covered by the Oakland Circuit Court’s March 2012 order. According to appellees,
Harris was not listed because Guzall improperly concealed his relationship with
Harris. Therefore, appellees argued, intervention in Harris’s case was necessary to
protect their interest in any attorney fees awarded.
Following a hearing, the trial court granted appellees’ motion to intervene
and ordered that any attorney fees awarded would be held in escrow with the Wayne
Circuit Court. In January 2014, appellees requested that the trial court refer the
issue of entitlement to attorney fees to the Oakland Circuit Court, where the other
disputes between Guzall and appellees were pending. The trial court granted
appellees’ motion and referred the attorney fee dispute to the Oakland Circuit
Court. Thereafter, the [c]ourt entered judgment on Harris’s jury verdict, awarded
$50,000 in attorney fees, and dismissed the case with prejudice.
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The plaintiff, Harris, appealed as of right, arguing that it was improper for the trial court to
have allowed appellees to intervene in order to assert an interest in any of the awarded attorney
fees. Id. at 2. This Court agreed that appellees did not have standing to intervene, but it also ruled
that because Harris lacked standing to appeal, it could not grant her the relief she sought. Id. at 3-
4. This Court determined that because Harris was not an aggrieved party, she could not contest a
matter that did not adversely affect her. Id. at 4. This Court noted that attorney Guzall was the
aggrieved party with standing to appeal, but he did not. Id. As a result, this Court held that it
lacked jurisdiction over the appeal and dismissed it. Id.
After this Court dismissed the appeal,
the trial court scheduled and began conducting an evidentiary hearing to determine
the distribution of attorney fees in the action, rejecting numerous arguments posed
by Guzall before and during the hearing. With a motion to disqualify the trial judge
pending, Guzall refused to appear at a scheduled continuation of the hearing until
the disqualification motion was heard and decided. In response, the trial court held
Guzall in contempt, striking all of his filings related to the attorney-fee dispute,
defaulting him for his contemptuous conduct, and releasing the disputed attorney
fees, which were being held in escrow, to Seifman. [Harris v Greektown
Superholdings, Inc., unpublished per curiam opinion of the Court of Appeals,
issued October 31, 2017 (Docket No. 331652) (Harris II), p 2.]
Guzall and Harris appealed, and this Court affirmed the finding of contempt and the associated
sanctions striking Guzall’s pleadings and defaulting him. Id. at 3-4.2
While Guzall’s application for leave to appeal this Court’s decision in
Harris II was pending in the Supreme Court, Guzall filed this action.[3] Guzall’s
complaint accused all defendants of (1) tortious interference with contract, (2)
tortious interference with business relationship or expectancy, (3) statutory
conversion, (4) unjust enrichment, (5) breach of contract, (6) conspiracy, and (7)
intentional infliction of emotional distress. In response, Seifman and Warren each
filed a motion for summary disposition under MCR 2.116(C)(7), (8) and (10),
arguing that Guzall’s claims were barred by collateral estoppel, that this suit was
an impermissible collateral attack on the trial court’s contempt order, that Guzall’s
own wrongful conduct barred his attempts at recovery, and that Guzall had failed
to state a claim on which relief could be granted. Defendants additionally requested
that the trial court sanction Guzall for filing a frivolous pleading. Dispensing with
oral argument, the trial court agreed with defendants that summary disposition was
warranted, finding Guzall’s claims to be barred by collateral estoppel and the
collateral attack doctrine, as well as legally deficient. The trial court also held that
Guzall’s complaint was clearly frivolous and awarded sanctions under MCR 2.114
2
The Michigan Supreme Court declined to grant leave to appeal. Harris v Greektown
Superholdings, Inc., 503 Mich 871 (2018).
3
To be clear, that action also is the action in this case on appeal.
-3-
and MCL 600.2591. The trial court directed defendants to file new motions for
sanctions along with documentation of their attorney fees and an analysis of the
reasonableness of those fees.
Defendants filed such motions. The trial court held a hearing on defendants’
motions on July 20, 2018. The trial court made findings concerning the
reasonableness of the requested attorney fees under Pirgu v United Servs Auto
Ass’n, 499 Mich 269, 281-282; 884 NW2d 257 (2016). Following the hearing, the
trial court awarded $16,380.73 to Warren and $4,446.80 to Seifman. [Guzall v
Warren, unpublished per curiam opinion of the Court of Appeals, issued August 8,
2019 (Docket Nos. 344507 & 345190) (Guzall I), pp 5-6 (footnotes omitted).]
Guzall appealed to this Court, arguing that the trial court erred by determining that his
present suit was an impermissible collateral attack on the trial court’s order in the Harris litigation,
and by holding him in contempt, entering a default against him, striking his pleadings, and
releasing the escrowed funds. Id. at 6. This Court affirmed because it was “clear that Guzall
[sought] in this action ‘another bite at the apple’ concerning his entitlement to the attorney fees at
issue in the Harris litigation.” Id. at 7; see also id. at 8. This Court also agreed that Guzall’s
claims in the present case were barred by collateral estoppel. Id. at 8-9. Additionally, this Court
held that the trial court did not err in imposing sanctions against Guzall for filing a frivolous
complaint. Id. at 9-10. The Michigan Supreme Court declined to grant leave to appeal. Guzall v
Seifman, 505 Mich 1080 (2020).
Notably, defendants on appeal in Guzall I requested sanctions for plaintiffs’ filing frivolous
and vexatious appeals. Id. at 13. After receiving defendants’ motion, this Court agreed that
Guzall’s appeal associated with Docket No. 344507 was frivolous and vexatious under MCR
7.216(C)(1)(a).4 Guzall, unpub order. Consequently, this Court awarded “defendants their actual
damages and expenses, including attorney fees, incurred as a result of plaintiffs’ appeal in Docket
No. 344507.”5 Id. This Court then remanded for the circuit court to (1) determine the amount of
actual damages and expenses incurred by defendants related to the appeal in Docket No. 344507,
and (2) enter an order awarding sanctions to defendants in those determined amounts.6 Id. This
4
MCR 7.216(C)(1) states, in pertinent part, that “[t]he Court of Appeals may, on its own initiative
or on the motion of any party filed under MCR 7.211(C)(8), assess actual and punitive damages
or take other disciplinary action when it determines that an appeal or any of the proceedings in an
appeal was vexatious . . . .” See also MCR 7.216(C)(2) (“Damages may not exceed actual
damages and expenses incurred by the opposing party . . . .”).
5
This Court stated that only the appeal in Docket No. 344507 was frivolous and vexatious, and
not the appeal associated with Docket No. 345190, Guzall, unpub order, which dealt with the
imposition of sanctions for filing a frivolous complaint, Guzall I, unpub op at 10.
6
Under MCR 7.216(C)(2), this Court “may remand the case to the trial court or tribunal for a
determination of actual damages.”
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Court’s order also required defendants, within 30 days, to ask the circuit court to schedule a hearing
and required the circuit court to make its determination within 90 days. Id.B. PROCEEDINGS ON REMAND
The trial court held a hearing regarding the amount of actual damages. It found that 26.25
hours was a reasonable amount of time for defendants to have spent while defending plaintiffs’
frivolous and vexatious appeal in Docket No. 344507. The trial court also found that an hourly
rate of $350 was reasonable under the circumstances. As a result, it awarded sanctions in the
amount of $9,187.50 for attorney fees and $173.60 for costs, for a total of $9,361.10. This appeal
followed.
II. SCOPE OF APPEAL
As an initial matter, plaintiffs raise several issues challenging the validity of the orders and
judgments in Harris I and Harris II. Plaintiffs also argue that errors were committed in the instant
case, including by this Court in Guzall I. But these issues are not properly before us. Any issues
with the decisions in Harris I and Harris II should have been raised in an appeal in those cases.
The Harris I plaintiff’s appeal was dismissed for lack of jurisdiction because that plaintiff was not
an aggrieved party with standing to file an appeal. Harris I, unpub op at 1, 4. Then, in Harris II,
this Court held that the trial court did not err by finding Guzall in contempt of court for his “childish
behavior” by refusing to attend an evidentiary hearing when ordered to do so. Harris II, unpub op
at 3-4. In Harris II, this Court also held that the trial court’s striking of Guzall’s filings and entering
a default were proper sanctions. Id. at 4. Consequently, due to Guzall’s contempt and default, this
Court affirmed the attorney fees at the center of Harris I and Harris II awarded to Seifman. Id.Plaintiffs appealed the Harris II decision, but our Supreme Court declined to grant leave to appeal,
Harris v Greektown Superholdings, Inc., 503 Mich 871 (2018), which made the Harris II judgment
final, see MCR 7.305(H)(3) (“If leave to appeal is denied after a decision of the Court of Appeals,
the Court of Appeals decision becomes the final adjudication and may be enforced in accordance
with its terms.”).
Not only do plaintiffs seek to collaterally attack the decisions and judgments in Harris I
and Harris II, they also seek to have us reverse this Court’s prior decision in Guzall I. This is not
permissible. First, the law of the case doctrine “holds that an appellate court’s ruling on a particular
issue binds the appellate court and all lower tribunals with respect to that issue.” Cipriano v
Cipriano, 289 Mich App 361, 375; 808 NW2d 230 (2010). And second, and perhaps more directly,
the scope of a second appeal is limited by the scope of the proceedings on remand. Glenn v TPI
Petroleum, Inc, 305 Mich App 698, 703; 854 NW2d 509 (2014) (citation omitted) (“[W]hen an
appellate court gives clear instructions in its remand order, it is improper for a lower court to
exceed the scope of the order. It is the duty of the lower court or tribunal, on remand, to comply
strictly with the mandate of the appellate court.”). In other words, “[i]ssues outside the scope of a
remand order will not be considered on appeal following remand.” People v Burks, 128 Mich App
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255, 257; 339 NW2d 734 (1983).7 The only issue before the trial court after this Court’s remand
in Guzall I was to determine the amount of actual costs, including attorney fees, that defendants
incurred as a result of plaintiffs’ frivolous and vexatious appeal in Docket No. 344507.8 Because
the validity of the judgments from Harris I and Harris II are not within the scope of this Court’s
remand order, plaintiffs cannot raise these issues in the present appeal.
Aside from being procedurally barred from raising these issues on appeal, one of the
common threads in plaintiffs’ arguments is that most of the “errors” occurred as a result of no court
adhering to this Court’s pronouncement in Harris I that Seifman lacked standing to intervene to
seek the attorney fees in question. Harris I, unpub op at 2-3. But contrary to plaintiffs’ view, this
statement was nonbinding dictum and, even more so, void. In Harris I, this Court dismissed the
appeal due to lack of jurisdiction. Harris I, unpub op at 1, 4. Thus, any pronouncement not related
to why this Court dismissed the case is by definition dictum. See Mount Pleasant Pub Sch v
Lakeview Community Sch, 302 Mich App 600, 610 n 2; 840 NW2d 750 (2013) (defining
nonbinding dictum as “[a] judicial comment made during the course of delivering a judicial
opinion, but one that is unnecessary to the decision in the case”) (quotation marks and citations
omitted). Further, as plaintiffs recognize, it is well established that “[w]hen a court lacks subject
matter jurisdiction to hear and determine a claim, any action it takes, other than to dismiss the
action, is void.” Bowie v Arder, 441 Mich 23, 56; 490 NW2d 568 (1992). Because this Court in
Harris I dismissed the appeal on the narrow ground that it lacked jurisdiction due to the plaintiff
Harris’s lack of standing to appeal, its discussion related to whether Seifman (and by implication
Guzall) could intervene, i.e., become a party, is void. Whether Seifman had standing at the trial
court to seek attorney fees was not related to whether the plaintiff Harris had standing to bring an
appeal. As such, because this Court dismissed Harris I for lack of jurisdiction, its “rulings”
pertaining to the appropriateness of Seifman intervening in Harris I are ineffectual.
As a result, we decline to address plaintiffs’ attacks on these prior judgments because they
are barred by the law-of-the-case doctrine and impermissibly attempt to expand the scope of an
appeal after a remand.
III. ACTUAL DAMAGES
Plaintiffs argue that the trial court abused its discretion when it awarded defendants
$9,361.10 in attorney fees and costs related to the frivolous and vexatious appeal in Docket No.
344507. We disagree.
7
“Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),
they nevertheless can be considered persuasive authority.” In re Stillwell Trust, 299 Mich App
289, 299 n 1; 829 NW2d 353 (2012) (citation omitted).
8
This Court in its remand order explicitly stated, “Proceedings on remand are limited to the issue
of defendants’ damages and expenses in Docket No. 344507 only.”
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A. STANDARD OF REVIEW
This Court reviews the award of attorney fees for an abuse of discretion. Moore v Secura
Ins, 482 Mich 507, 516; 759 NW2d 833 (2008). “An abuse of discretion occurs when the decision
resulted in an outcome falling outside the range of principled outcomes.” Hayford v Hayford, 279
Mich App 324, 325; 760 NW2d 503 (2008). “An error of law necessarily constitutes an abuse of
discretion.” Denton v Dep’t of Treasury, 317 Mich App 303, 314; 894 NW2d 694 (2016). Any
findings of fact on which the trial court based its award are reviewed for clear error. Stallworth v
Stallworth, 275 Mich App 282, 288; 738 NW2d 264 (2007). “A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire record is left with a
definite and firm conviction that a mistake was made.” Zoran v Cottrellville Twp, 322 Mich App
470, 475; 913 NW2d 359 (2017) (quotation marks and citation omitted).
B. ANALYSIS
Plaintiffs first aver that the most that could have been awarded was $7,405 because that
was the amount defendants originally claimed to have incurred (21.2 hours, plus costs), as
evidenced by a motion filed in this Court at the time of the prior appeal. The latest invoice in that
motion covered the period up to August 26, 2019. After this Court’s remand, defendants requested
to be reimbursed for a total of 32.25 hours, plus costs. In support of the extra 10.85 hours,
defendants attached an additional invoice dated November 1, 2019. This November 1 invoice
covered the period from August 29, 2019 through November 1, 2019, and listed 10.85 hours as
having been incurred during this period. Thus, merely because the amount requested at the trial
court was different from the amount requested at this Court is not a reason to find error; all of the
billed time was supported with documentation. What matters is whether the amounts billed
encompassed part of defendants’ actual damages. And as discussed below, this is what the trial
court sought to accomplish.
Plaintiffs next argue that the billing was inadequate because it did not specify which work
was for Docket No. 344507. Although the billing itself did not reference which docket number
was at issue for the various line items, the trial court, while examining each billing entry, was very
aware that only items attributable to Docket No. 344507 were reimbursable. Accordingly, the fact
that the billing document did not refer to a particular Docket No. is not controlling.
Plaintiffs also contend that defense counsel was double-reimbursed for the same work. In
particular, plaintiffs allege that one invoice billed for 2.0 hours of time for August 23 and August
26, 2019, but another invoice billed for 1.25 hours for that same work, which this time occurred
on October 4, 2019.9 Plaintiff is mistaken. The invoiced work that occurred on August 23 and 26
9
We note that plaintiffs did not raise this particular argument in the trial court. When the
November 1, 2019 bill was being discussed, the only objection plaintiffs made was that the billing
entries were not “parsed out” between the two Court of Appeals dockets. Nevertheless, we
consider the issue preserved because the only issue on remand was the amount of attorney fees
and costs the trial court should award in this case; defendant’s argument on appeal is simply a
more nuanced argument than what he raised at the trial court level. See Mueller v Brannigan Bros
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related to filing a motion for damages in this Court, which was filed on August 26, 2019. In
contrast, the work that occurred on October 4 was for a motion requesting a hearing on damages
that was filed in the trial court on October 4, 2019. Thus, contrary to plaintiffs’ assertion, there
was no double billing.
Plaintiffs next argue that the trial court did not properly apply the factors from Pirgu, 499
Mich at 282. Our Supreme Court in Pirgu held that when determining the reasonableness of
attorney fees, a court must first determine the reasonable hourly rate customarily charged in the
locality for similar services. Id. at 281. The trial court then is to “multiply that rate by the
reasonable number of hours expended in the case to arrive at a baseline figure.” Id. Finally, the
trial court must consider the following factors to determine if an up or down adjustment is
appropriate:
(1) the experience, reputation, and ability of the lawyer or lawyers
performing the services,
(2) the difficulty of the case, i.e., the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly,
(3) the amount in question and the results obtained,
(4) the expenses incurred,
(5) the nature and length of the professional relationship with the client,
(6) the likelihood, if apparent to the client, that acceptance of the particular
employment will preclude other employment by the lawyer,
(7) the time limitations imposed by the client or by the circumstances, and
(8) whether the fee is fixed or contingent. [Id. at 281-282.]
The trial court went through all of the billing items and found that 26.25 hours of the
requested 32.25 hours was a reasonable amount of time for defendants to have spent while
defending against plaintiffs’ frivolous appeal in Docket No. 344507. The trial court also found
that defense counsel’s hourly rate of $350 was reasonable given the circumstances and his
experience. As a result, the trial court awarded sanctions in the amount of $9,187.50 for attorney
fees and $173.60 for costs, for a total of $9,361.10. The trial court found no reason to adjust the
calculated amount upward or downward.
Restaurants & Taverns LLC, 323 Mich App 566, 585-586; 918 NW2d 545 (2018) (“While
minimal, appellate consideration is not precluded merely because a party makes a more developed
or sophisticated argument on appeal. We prefer to resolve issues on their merits when possible,
so we will construe plaintiff’s objections in her favor to the extent we can.”).
-8-
One of plaintiffs’ complaints on appeal is that the trial court did not sufficiently account
for Pirgu factor 2 because the amount of skill used in defending against the appeal was minimal,
given that defense counsel mostly copied another attorney’s work. Plaintiffs raised this argument
in the trial court, which rejected it. The trial court stated that it thought more was involved than
merely copying and pasting another’s brief and that arguing before the Court of Appeals requires
“a certain skill level” and “certain type of lawyering.” The trial court did not abuse its discretion.
Defense counsel admitted that he used codefendants’ brief as a starting point in drafting his own
brief, but he denied that he merely “cut and paste[d]” from codefendants’ brief and instead
explained that he reviewed the brief and conducted his own research to ensure that the facts and
law were correct. These facts do not necessarily establish that a lower level of skill was needed,
which undermines plaintiffs’ argument.10
Plaintiffs further argue that a remand is necessary because the trial court failed to review
the proofs. Plaintiffs’ position is unfounded. At the hearing, the trial court went through each line
item in the billing and, after entertaining any objections from plaintiffs, rendered a decision on
those items. Plaintiffs’ reliance on the trial court’s comment that it was “not going to go through
and slice that up” is misplaced. This comment referenced two entries for August 26 and August
28, 2018, in which defense counsel (1) billed 0.25 hours (15 minutes) for reviewing plaintiffs’
claim of appeal and related documents and forwarding information to the client, and (2) billed 0.20
hours (12 minutes) for e-mails regarding briefing extension. At the hearing, plaintiffs contended
that it would not take 15 minutes to review the claim of appeal and forward any communications.
The trial court responded that the time claimed for both entries was reasonable and that it did not
have to look at the e-mails themselves (or the claim of appeal) to make that determination. Given
the small amount of time billed for these two items, we do not see how the trial court abused its
discretion. Even if it was indeed a minimal amount of work, plaintiffs have failed to show how
taking 15 minutes for each item falls outside the range of reasonableness.
Plaintiffs next suggest that it was improper for defense counsel to be reimbursed for
attending oral argument in this Court when defense counsel knew that plaintiffs’ counsel was not
going to attend. This position is meritless. Merely because a party waives its right to oral argument
does not then mean that it is pointless or unreasonable for other parties to appear. Plaintiffs,
unsurprisingly, cite no authority for this proposition. Indeed, a party’s right to oral argument is
independent from any other party’s right to attend. See
(accessed May 10, 2021)
(“A party who timely files its brief on appeal and includes the statement ‘ORAL ARGUMENT
10
Likewise, plaintiffs’ argument that defense counsel’s “copying and pasting” does not support
the $350 hourly rate is not persuasive. Regardless of the task counsel was doing, he was entitled
to bill for his time. It was established that he had more than 30 years’ experience, significant
appellate experience, and regularly charged up to $400 per hour for his time. Thus, the trial court’s
decision to award defense counsel’s actual hourly rate of $350 in this case was reasonable and not
an abuse of discretion.
-9-
REQUESTED’ on the title page of the brief in capital letters or boldface type is entitled to oral
argument.”),11 citing MCR 7.212(C); MCR 7.214(A); IOP 7.214(A).
Plaintiffs further argue that no attorney fees should be recoverable for time spent after
October 27, 2018, because those hours are related to defendants’ pursuit of attorney fees. At the
outset, plaintiffs do not explain the significance of this October 27 date. “A party may not merely
announce a position and leave it to this Court to discover and rationalize the basis for the claim.”
Caldwell v Chapman, 240 Mich App 124, 132-133; 610 NW2d 264 (2000). See also McIntosh v
McIntosh, 282 Mich App 471, 485; 768 NW2d 325 (2009) (“This Court will not search the record
for factual support for a party’s claim.”). Indeed, that date seems to have no relevance to whether
any activities were related to defending against plaintiffs’ appeal in Docket No. 344507 because
oral argument was not heard until August 6, 2019, and this Court issued Guzall I on August 8,
2019, both of which are well after the October 27, 2018 date. Moreover, plaintiffs failed to raise
this issue at the trial court level. When the trial court discussed the billing entries for work taking
place after October 27, 2018, plaintiffs never claimed that any of those fees were not recoverable
as having been incurred in the pursuit of attorney fees. Indeed, when discussing the invoice that
was issued on November 1, 2019, which addressed time spent after this Court issued its opinion
in Guzall I, plaintiffs’ only argument was that because Docket Nos. 344507 and 345190 had been
consolidated, the trial court should split the time listed on that November 1, 2019 invoice between
the two dockets. This was plaintiffs’ position even though the work performed after the release of
Guzall I related to the pursuit of attorney fees, which was solely connected to Docket No. 344507.
Thus, because plaintiffs never raised the argument they raise on appeal at the trial court, it is not
preserved, and we decline to address it. See In re Murray, ___ Mich App ___, ___; ___ NW2d
___ (2021) (Docket No. 349068); slip op at 3-4; Autodie, LLC v Grand Rapids, 305 Mich App
423, 431; 852 NW2d 650 (2014).
Finally, plaintiffs argue that no costs should have been awarded without the attachment of
“proof.” Although defendants did not provide actual receipts with the attorney-billing statements,
the invoices nonetheless noted these various expenses.12 While the weight of this proof
understandably is less than having and presenting actual receipts, it cannot be said that there was
no proof to support the costs. Fundamentally, the trial court found that defendants had in fact
incurred those expenses. With the invoices that were submitted, we are not left with a definite and
firm conviction that the trial court made a mistake when it found that the various costs had indeed
been incurred, and we decline to disturb those findings. See Zoran, 322 Mich App at 475.
11
Specifically, this is addressed under Question 13 in the Frequently Asked Questions section.
12
The $173.60 in expenses that the trial court awarded represented $45 for a messenger service,
$5 for parking at the Court of Appeals, $103 for this Court’s filing fee, and $20.60 for a circuit
court filing fee.
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IV. CONCLUSION
For the reasons stated in this opinion, we affirm the trial court’s award of attorney fees and
costs to defendants. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.
/s/ James Robert Redford
/s/ Stephen L. Borrello
/s/ Jonathan Tukel
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