Maple Hill Apartment Co. v. Stine

On Remand

Before: Bronson, P.J., and T. M. Burns and Mackenzie, JJ. T. M. Burns, J.

Plaintiff rejected a mediation panel evaluation and failed to obtain a verdict which was more than ten percent greater than the panel’s evaluation. The trial court ruled that, pursuant to GCR 1963, 316.7(b)(1), defendant was entitled to "actual costs”. The term "actual costs” is defined in GCR 1963, 316.8 to include "a reasonable attorney fee as determined by the trial judge for services necessitated by the rejection of the panel’s evaluation”. In our earlier opinion in this case, 131 Mich App 371; 346 NW2d 555 (1984), we construed the meaning of GCR 1963, 316.8, and remanded the case for recalculation of the recoverable fee. On April 17, 1985, the Supreme Court vacated our judgment and remanded the case for reconsideration in light of former Oakland County Circuit Court Rule 18.12, for the reason that GCR 1963, 316 did not take effect until after the mediation proceedings had been concluded. 422 Mich 862 (1985).

Former Oakland County Circuit Court Rule (OCCR) 18.12 defines the term "actual costs” to include "reasonable attorney fees to be determined by the judge to whom the case is assigned”. The wording of former OCCR 18.12 differs from the wording of GCR 1963, 316.8. While under either rule, attorney fees are to be "reasonable” and are to be determined by the judge assigned to or presiding over the case, GCR 1963, 316.8 contains *691an additional requirement that the attorney fees be "for services necessitated by the rejection”.

Our previous opinion relied on this terminology to hold that a party rejecting a mediation evaluation is not to be burdened with unlimited liability for any costs which are "but-for” caused by the decision to proceed to trial. The result reached in our earlier opinion was based on the requirements that attorney fees be "reasonable” and that those fees be only for services "necessitated” by the rejection. Thus, under GCR 1963, 316.8 attorney fees are recoverable only for services which are made necessary or unavoidable by the rejection. Attorney fees are not always recoverable for all services rendered. Causation principles require an inquiry into which consequences would not have occurred but for the rejection and an inquiry into which consequences are reasonably foreseeable. However, GCR 1963, 316 does not provide for recovery of attorney fees for all services "caused” by the rejection. Rather, the court rule provides for recovery of attorney fees for services which are "necessitated” by the rejection. Services may be foreseeable while at the same time they are not necessitated. An attorney may rationally choose to provide many legitimate services requested by clients, but at the same time such services may not be necessary. Grossly inefficient and unduly wasteful conduct is never necessitated by a rejection. Such services are avoidable and unnecessary. The resulting costs incurred through no fault of the party rejecting the award are not recoverable.

In addition to the requirement that the services be necessitated, an attorney fee based on such services is recoverable under GCR 1963, 316 only if the fee is "reasonable”. The determination of the reasonableness of a fee involves a consideration of whether the attorney acted properly in *692supplying the underlying services. A fee charged for unnecessary conduct might not be reasonable. Both the "reasonableness” requirement and the requirement that services be "necessitated” led to the result reached in our earlier opinion.

However, the court rule which is applicable in this case is former OCCR 18.12. That rule required only that the attorney fees be "reasonable”. In Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973), this Court set forth several guidelines for determining the "reasonableness” of attorney fees. The Crawley factors have been applied in a multitude of cases in which reasonable attorney fees are authorized by statute or court rule. See Burke v Angies, Inc, 143 Mich App 683; 373 NW2d 187 (1985); Johnston v Detroit Hoist & Crane Co, 142 Mich App 597; 370 NW2d 1 (1985); Nelson v DAIIE, 137 Mich App 226; 359 NW2d 536 (1984); Bowen v Nelson Credit Centers Inc, 137 Mich App 76; 357 NW2d 811 (1984); King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984); In re L’Esperance Estate, 131 Mich App 496; 346 NW2d 578 (1984); Bradley v DAIIE, 130 Mich App 34; 343 NW2d 506 (1983); Butt v DAIIE, 129 Mich App 211; 341 NW2d 474 (1983); Petterman v Haverhill, 125 Mich App 301; 335 NW2d 710 (1982); Heath v Alma Plastics Co, 121 Mich App 137; 328 NW2d 598 (1982); Medbury v General Motors Corp, 119 Mich App 351; 326 NW2d 139 (1982); and Liddell v DAIIE, 102 Mich App 636; 302 NW2d 260 (1981). In addition, the Supreme Court adopted the Crawley factors and applied them to the no-fault insurance scheme in Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982). While a trial court should consider the guidelines of Crawley, it is not limited to those factors in making its determination. Id. Further, the trial court need not detail its findings as to *693each specific factor considered. Id. The award will be upheld unless it appears upon appellate review that the trial court’s finding on the "reasonableness” issue was an abuse of discretion. Id. However, if any of the underlying facts, such as the number of hours spent in preparation, are in dispute, the trial judge should make findings of fact on those issues. See Desender v De Meulenaere, 12 Mich App 634; 163 NW2d 464 (1968).

In the instant case, plaintiff challenged the amount of attorney fees requested by defendant. The trial court merely found that the bill of costs was reasonable and accepted the bill on its face. This was error. The trial court abused its discretion by failing to consider the Crawley factors and to determine a reasonable fee.

As to the awards for expert witness fees and defense of the counterclaim, we adopt the analysis in our original opinion. See 131 Mich App 371, 379-380.

Reversed and remanded for proceedings in which the Crawley factors are applied and any underlying disputed issues of fact are resolved.

Bronson, P.J., concurred.