Fairway Enterprises, Inc. v. Na-Churs Plant Food Co., NA-CHURS
| Decision Date | 24 November 1987 |
| Docket Number | NA-CHURS,Docket No. 92667 |
| Citation | 163 Mich.App. 497,415 N.W.2d 257 |
| Parties | FAIRWAY ENTERPRISES, INC., Plaintiff-Appellee, v.PLANT FOOD COMPANY and Ben Marfia, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Scholten, Fant & Marquis by R. Neal Stanton, Grand Haven, for plaintiff-appellee.
Timothy J. Boone, Columbus, Ohio, and Cholette, Perkins & Buchanan by Kenneth L. Block, Grand Rapids, for defendants-appellants.
Before CYNAR, P.J., and WEAVER and HAUSNER, * JJ.
Defendants appeal as of right from an order of the Ottawa Circuit Court which denied their motion for attorney fees and expenses. We reverse and remand.
This action arises from a dispute concerning the sale of fertilizer. Dissatisfied with its purchase, plaintiff sued defendants asserting negligence and breach of express and implied warranty. The matter was sent to a mediation panel, which recommended a $10,000 award in favor of plaintiff. Although defendants accepted this evaluation, plaintiff rejected it and also rejected defense counsel's offer to settle for the same amount. A jury subsequently found in favor of defendants, and the trial judge ordered plaintiff to pay the defendant manufacturer $5,785.08, or $3,535 plus eighteen percent per annum, which plaintiff stipulated at trial as due and owing.
One hundred and seventy-three days after the court rendered its judgment on the verdict, defendants filed a motion for attorney fees and expenses pursuant to GCR 1963, 316.7-316.8 (now MCR 2.403[O]. The trial judge denied this motion on the ground that defendants failed to file their bill of costs within the twenty-eight-day limit of MCR 2.625(F). Defendants appeal as of right, arguing that the trial court erred in applying the twenty-eight-day limit of MCR 2.625(F) instead of a reasonable time standard.
We agree. The twenty-eight-day limit of MCR 2.625(F) is not the standard to be applied for awarding actual costs in mediation cases governed by MCR 2.403(O). Giannetti Brothers Construction Co., Inc. v. Pontiac, 152 Mich.App. 648, 653, 394 N.W.2d 59 (1986), lv. den. 426 Mich. 869 (1986). This is because the reasonable attorney fee portion of actual costs to be awarded under MCR 2.403(O) differs from simple court costs and requires judicial determination. Id. at 655, 394 N.W.2d 59. The time limit to be applied in mediation cases is a "reasonable time" after the prevailing party has been determined. Id. at 657, 394 N.W.2d 59.
In this case, defendants filed their bill of costs 173 days after entry of final judgment. Since in...
To continue reading
Request your trial
-
Dresselhouse v. Chrysler Corp.
...v. Barker, 158 Mich.App. 709, 726-727, 405 N.W.2d 395 (1987), lv. den. 429 Mich. 857 (1987); Fairway Enterprises, Inc. v. Na-Churs Plant Food Co., 163 Mich.App. 497, 415 N.W.2d 257 (1987), lv. den. 430 Mich. 875 (1988). Similarly, the twenty-eight-day rule was inapplicable in the present ci......
-
Butt v. Giammariner
...outlined in MCR 2.625 should not govern the determination of actual costs under MCR 2.405(D). Cf. Fairway Enterprises, Inc. v. Na-Churs Plant Food Co., 163 Mich.App. 497, 415 N.W.2d 257 (1987), lv. den. 430 Mich. 875 (1988); Giannetti Bros. Construction Co., Inc. v. Pontiac, 152 Mich.App. 6......
-
Peters v. Gunnell, Inc.
...see Dresselhouse v. Chrysler Corp., 177 Mich.App. 470, 480-482, 442 N.W.2d 705 (1989), and Fairway Enterprises, Inc. v. Na-Churs Plant Food Co., 163 Mich.App. 497, 499, 415 N.W.2d 257 (1987).12 Accordingly, the twenty-eight-day limit in MCR 2.625(F)(2) does not bar the award of fees and cos......
-
Kopf v. BOLSER
...9, 2007, judgment. In arguing that the 28-day limit does not apply here, defendant relies on Fairway Enterprises, Inc. v. Na-Churs Plant Food Co., 163 Mich.App. 497, 415 N.W.2d 257 (1987).4 In his brief on appeal, defendant states that the trial court in Fairway denied a motion for attorney......