Smith v. Elenges, Docket No. 81903

• Decision Date: 09 March 1987
• Docket Number: Docket No. 81903
• Parties: Norma SMITH and Paul Smith, Plaintiffs-Appellants, v. Toney ELENGES, d/b/a Toney's Jefferson Mobile Service, Defendant, and A. Joseph Hoski, M.D., Carl L. Silver, Personal Representative of the estate of Shyla Brandt, P.C., a/k/a Shyla Valley, Deceased, Carlos Perez-Borja, M.D., and G.C. Medina, Defendants- A 156 Mich.App. 260, 401 N.W.2d 342
• Court: Court of Appeal of Michigan — District of US

Page 342

401 N.W.2d 342

Norma SMITH and Paul Smith, Plaintiffs-Appellants, v. Toney ELENGES, d/b/a Toney's Jefferson Mobile Service,

Defendant,

and

A. Joseph Hoski, M.D., Carl L. Silver, Personal

Representative of the estate of Shyla Brandt,

P.C., a/k/a Shyla Valley, Deceased,

Carlos Perez-Borja, M.D., and

G.C. Medina,

Defendants-

A

Docket No. 81903.

156 Mich.App. 260, 401 N.W.2d 342

Court of Appeals of Michigan.

Submitted March 10, 1986.

Decided Nov. 17, 1986.

Released for Publication March 9, 1987.

[156 MICHAPP 261] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiffs.

Harry Riseman, Detroit, for Carl C. Silver.

Kerr, Russell & Weber by C. Kenneth Perry, Jr., Detroit, for Carlos Perez-Borja and Glorificacion Medina.

Before T.M. BURNS, P.J., and WAHLS and THOMAS, ^* JJ.

PER CURIAM.

This cause of action originally arose out of an automobile accident. Plaintiffs, Norma Smith and Paul Smith, brought an action against defendant Toney's Jefferson Mobile Service and several doctors. Plaintiffs turned down a unanimous mediation board recommendation as to damages. Eventually the jury trial resulted in a no cause verdict for the individual doctors. Because plaintiffs failed to win an award greater than ten percent higher than the unanimous mediation award, actual costs were imposed against plaintiffs. After an appeal and retrial on the issue of [156 MICHAPP 262] damages, a consent judgment of $20,000 was entered as to Toney's Jefferson Mobile Service only. Plaintiffs then moved to set aside the mediation sanctions awards to the other defendants since the total amount of $20,000, although against only one of the defendants, is over the total mediation evaluation of $15,000 plus ten percent or $16,500. The trial court denied the motion. Plaintiffs appeal as of right. We affirm.

Prior to reaching the merits, an issue as to whether this appeal is proper has been raised. Defendants Medina and Perez-Borja argue that plaintiffs "lack standing" to appeal the trial court's award of costs and mediation sanctions because the issue was already presented in an earlier appeal. That argument seems to be based on the doctrine of law of the case, although cases dealing with abandonment are cited.

Where a prior ruling of the appellate court concerns the same question of law in the same case, the doctrine of law of the case applies and the prior ruling is controlling, People v. Covington, 132 Mich.App. 79, 85, 346 N.W.2d 903 (1984), lv. den. 419 Mich. 917 (1984). If the facts before a prior panel were the same as those before this panel, the previous disposition of an issue on the merits would preclude further review on appeal, People v. Pauli, 138 Mich.App. 530, 541, 361 N.W.2d 359 (1984), lv. den. 422 Mich. 930 (1985). Here, the earlier opinion dealt only with a faulty jury instruction, and did not address the mediation sanctions because the ultimate outcome was unknown. Thus, the question was not decided in the earlier proceeding. This appeal was based on the 1984 order denying the motion to set aside mediation sanctions in light of the consent judgment, so it raised issues not presented in the earlier appeal.

There is an argument that, since the reversal [156 MICHAPP 263] did not involve appellees (it was on damages, and they received no cause verdicts), any appeal as to the mediation sanctions should have taken place then. However, since plaintiffs claim that the total result must be used, and that position is at least...