Citizens Nat. Bank of Cheboygan v. Mayes, Docket No. 68977

• Decision Date: 07 June 1984
• Docket Number: Docket No. 68977
• Parties: CITIZENS NATIONAL BANK OF CHEBOYGAN, Plaintiff-Appellee/Cross-Appellant, v. Harry J. MAYES, Defendant-Appellant/Cross-Appellee. 133 Mich.App. 808, 350 N.W.2d 809
• Court: Court of Appeal of Michigan — District of US

Page 809

350 N.W.2d 809

CITIZENS NATIONAL BANK OF CHEBOYGAN Plaintiff-Appellee/Cross-Appellant, v. Harry J. MAYES, Defendant-Appellant/Cross-Appellee.

Docket No. 68977.

133 Mich.App. 808, 350 N.W.2d 809

Court of Appeals of Michigan.

Submitted Nov. 8, 1983.

Decided April 17, 1984.

Released for Publication June 7, 1984.

[133 MICHAPP 809] Lindsay & Lindsay by Christopher F. Lindsay, Cheboygan, for plaintiff-appellee/cross-appellant.

Radka & Lewis by Thomas R. Lewis, Rogers City, for defendant-appellant/cross-appellee.

Before ALLEN, P.J., and MAHER and BELL, ^* JJ.

PER CURIAM.

On December 3, 1982, a jury [133 MICHAPP 810] awarded plaintiff a verdict for $14,822.22. On January 5, 1983, the trial court awarded plaintiff $178.56 in costs and $1,170 in attorney fees pursuant to GCR 1963, 316.7(b)(2). However, it denied plaintiff's request for attorney fees pursuant to the contract. Both parties appeal as of right.

We find that defendant's third issue requires reversal. He requested that the verdict form found in SJI2d 65.02 be given; it was not. In Javis v. Bd. of Ed. of the School Dist. of Ypsilanti, 393 Mich. 689, 702, 227 N.W.2d 543 (1975), the Supreme Court ruled that consistent and uniform application of the civil jury instructions requires the following rule:

"Where there is an omission of, or a deviation from an applicable and accurate SJI, prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a SJI, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations." ¹

Where the omitted instruction 1) applies, 2) is accurate, and 3) is requested, this Court will reverse. Socha v. Passino, 405 Mich. 458, 275 N.W.2d 243 (1979); Snow v. Freeman, 119 Mich.App. 677, 326 N.W.2d 602 (1982); Jackovich v. General Adjustment Bureau, Inc., 119 Mich.App. 221, 326 N.W.2d 458 (1982), lv. den. 417 Mich. 1071 (1983); Prentis v. Yale Manufacturing Co., 116 Mich.App. 466, 323 N.W.2d 444 (1982), lv. gtd. 417 Mich. 1039 (1983).

[133 MICHAPP 811] First, SJI2d 65.02 applied. It deals with a single defendant and a counterclaim. In 1978, plaintiff loaned defendant over $23,000 so that he could buy a truck. As a part of the loan agreement, plaintiff received a security interest in the truck. Within a year, however, plaintiff repossessed the truck. Eventually, it sold the truck for $10,000. It then sued defendant for the balance of the loan, i.e., $14,882.22. Defendant countersued claiming that plaintiff had breached its duty of good faith while selling the truck.

Defendant's claim was not an affirmative defense but a counterclaim. Although such a claim may be used as a set-off, Jones v. Morgan, 58 Mich.App. 455, 228 N.W.2d 419, lv. den. 394 Mich. 775 (1975), such a claimant has a right to recover damages. M.C.L. Sec. 440.9507(1); M.S.A. Sec. 19.9507(1).

Second, SJI2d 65.02 accurately states the law. Plaintiff does not contest this point.

Third, SJI2d 65.02 was adequately requested. Plaintiff argues that although defendant did request the instruction in writing before trial, he abandoned that request during trial. In fact, defendant suggested the form actually used. However, we do not view defendant's cooperation as a waiver. Not only does the record strongly suggest that the cooperation occurred only after the trial court had refused to give SJI2d 65.02, but defendant renewed his objection at the end of the discussion on the issue.

Because the remaining issues may rearise at the new trial, we will address them. Defendant argues that irrelevant and prejudicial information about repairs on the truck were admitted. We disagree. A determination of the relevancy of evidence is within the trial court's discretion. Birou v. Thompson-Brown Co., 67 Mich.App. 502, 513, 241 N.W.2d [133 MICHAPP 812] 265, lv. den. 397 Mich. 808 (1976). Evidence is relevant if it has a tendency to make the existence of a material fact more or less probable. MRE 401. In the present case, one of the key issues was the truck's value when it was sold. Of course its condition at that time is relevant. Therefore, the trial court did not abuse its discretion in ruling that the cost of repairs was relevant. Nor do we find any undue prejudice.

Defendant also argues that the evidence concerning the cost of repairs was erroneously admitted as hearsay. Francis Van Antwerp, manager and operating officer of the company that bought the truck, read from his company's invoices in testifying about the cost of repairs. Although this testimony was not hearsay, it was improperly admitted because of the lack of the proper foundation. MRE 602. Plaintiff failed to show that Van Antwerp had the requisite personal knowledge about the repairs. Even though plaintiff could show the invoices to Van Antwerp to refresh his recollection, this is not what was really done because he merely read from the invoices. At the new trial the proper procedure is to be followed. ²

Defendant last argues that the trial court improperly added interest, costs, and attorney fees to the jury's verdict. He contends that only the jury can award these items. We disagree. Costs were properly awarded pursuant to GCR 1963, 526.1, attorney fees were properly awarded pursuant to GCR 1963, 316.7(b)(2), ³ and interest was properly awarded pursuant to M.C.L. Sec. 600.6013; M.S.A. Sec. 27A.6013. All three of these items are properly decided by the trial court after the jury has reached its verdict.

In its cross-appeal, plaintiff argues that the trial court improperly refused to award attorney fees pursuant to the parties' contract. Plaintiff argues that reasonable attorney fees are to be included in costs awarded to a prevailing party, and that such fees cannot be ascertained until the case has been fully litigated. We disagree. In Wilson Leasing Co. v. Seaway Pharmacal Corp., 53 Mich.App. 359, 367, 220 N.W.2d 83 (1974), this Court ruled:

"In an action to recover the amount due on a contract within the coverage of article nine of the UCC, when that contract provides...