In Docket No. 247437, defendant George W. Auch Company (Auch) appeals from an order that granted summary disposition in favor of plaintiff Spartan Technical Services, Inc., doing business as Laser Electric (Laser), with respect to Auch's counterclaim for contractual indemnity. In Docket No. 248270, Laser and plaintiff Hebat Badiee appeal from the trial court's judgment in favor of Auch and defendant Brighton Area Schools (BAS) on all of plaintiffs' claims in the instant action. In Docket No. 249881, plaintiffs appeal from the trial court's order that awarded defendants costs and case-evaluation sanctions. These three cases were consolidated on appeal,
I. FACTS AND PROCEDURAL HISTORY
BAS entered into a contract with Auch on November 20, 1998, under which Auch would act as construction manager for the renovation or new construction of seven schools in the Brighton area. In the fall of 1999, Laser, of which Badiee is executive vice president,
To accommodate the academic calendar, the project was set to begin on November 29, 1999, and was to be completed no later than August 26, 2000. In January of 2000, Auch personnel expressed concerns about the quality of Laser's work, its available staffing, and its ability to complete work on schedule. Accordingly, a meeting was held on February 1, 2000, at one of the job sites. Badiee claims that at this meeting, Auch vice president Thomas Hickey directed an ethnic slur at Badiee, who is of Iranian descent.
On February 14, 2000, Laser sent what proved to be the first of several letters in which it threatened to walk off the job. The February 14 letter cited Auch's alleged failure to pay Laser on its first payment application. Laser sent Auch a second letter on February 16, 2000, threatening to walk off the job. However, the delay in payment appeared to result from a combination of Laser not fulfilling the conditions agreed to at the February 1, 2000, meeting
As a result of Laser's poor performance, apparent labor difficulties, and threats to stop work, Auch felt the need to scrutinize Laser's work more closely. And, because of these concerns, Auch required Laser to submit consent of surety letters with each of its future payment applications, which it did for the second through sixth applications.
On July 6, 2000, Laser sent another letter threatening to stop work apparently as a result of the nonpayment of its seventh
After Laser left the job, Auch and BAS filed a claim with Merchant's Bonding, Laser's surety. Rather than bid the contracts out again with only three weeks left before the beginning of the school year, Auch "left the contracts" in place, and relied on Ted Krawzynski Electric, Laser's electrical subcontractor,
Auch paid the Laser employees, subcontractors, and vendors a total of approximately $717,000 for work performed after Laser stopped work. Laser was paid approximately $493,000, representing the amount of work it had performed. Auch repaid approximately $128,000 to Merchant's Bonding.
Plaintiffs filed the instant action on July 16, 2001, and alleged several counts related to what Laser characterized as defendants' breach of contract, one count that alleged both ethnic intimidation, MCL 750.147b, and ethnic discrimination in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq., counts of intentional interference with a business relationship and intentional interference with a contractual relationship, and a third-party beneficiary claim.
Auch filed a counterclaim against Laser with respect to the discrimination claim, and alleged that Laser's contracts with BAS required Laser to indemnify Auch against Badiee's ethnic-discrimination claim. Plaintiffs moved for summary disposition on the counterclaim, and Auch argued in response that, in fact, it was entitled to summary disposition on its counterclaim. The trial court ruled that Auch could not be indemnified by Laser for Auch's alleged ethnic discrimination against Badiee because Michigan's public policy prohibits indemnification of such civil rights violations.
At trial, all of plaintiffs' claims were resolved in defendants' favor by way of summary disposition, directed verdict, and jury verdict. Plaintiffs filed a postjudgment motion for judgment notwithstanding the verdict (JNOV), which the trial court rejected.
Auch appeals from the trial court's order that rejected its indemnity claim. Plaintiffs appeal from several orders that grant defendants' motions for summary disposition and directed verdict, and from an order that denied their motion for JNOV.
II. CONTRACTUAL INDEMNITY
After plaintiffs filed the complaint, Auch filed a counterclaim and sought an order to compel Laser to indemnify Auch against Badiee's civil rights claim. Laser filed a motion for summary disposition under MCR 2.116(C)(8) (failure to state a claim for which relief may be granted). The trial court granted summary disposition in favor of Laser because public policy does not allow an indemnitee to seek indemnity for the indemnitee's own acts of discrimination. Auch argues that the trial court erred because, contrary to the trial court's holding, Michigan law allows indemnification for one's own acts of discrimination, and that Auch was entitled to judgment on its indemnification claim.
Motions for summary disposition under MCR 2.116(C)(8) test the legal sufficiency of a complaint. Carmacks Collision, Inc. v. Detroit, 262 Mich.App. 207, 208-209, 684 N.W.2d 910 (2004). This Court reviews a trial court's decision whether to grant a motion under subrule C(8) de novo. Id. at 209, 684 N.W.2d 910.
This Court construes indemnity contracts in the same manner it construes contracts generally. Zurich Ins. Co. v. CCR & Co. (On Rehearing), 226 Mich.App. 599, 603, 576 N.W.2d 392 (1997). "An unambiguous contract must be enforced according to its terms." Burkhardt v. Bailey, 260 Mich.App. 636, 656, 680 N.W.2d 453 (2004). If indemnity contracts are ambiguous, the trier of fact must determine the intent of the parties. Sherman v. DeMaria Bldg. Co., Inc., 203 Mich.App. 593, 596, 513 N.W.2d 187 (1994). "While it is true that indemnity contracts are construed strictly against the party who drafts them and against the indemnitee, it is also true that indemnity contracts should be construed to give effect to the intentions of the parties." Id.
The trial court struck down the indemnity clause as a violation of public policy. However, because we hold that the indemnity provision is simply inapplicable to the factual predicate of Auch's claim, we need not address the public policy issue.
The relevant contractual provision in the contracts between BAS and Laser reads as follows:
Here, both plaintiffs and Auch contend that the language quoted above is clear and unambiguous. However, plaintiffs argue that the language clearly states that Auch can be indemnified only for misconduct on the part of Laser, its employees, and its subcontractors, and not for Auch's alleged misconduct. Auch, on the other hand, contends that the language is broad and clearly contemplates indemnity for any wrongful act, even its own.
Indemnity clauses need not expressly mention the indemnitee's own acts to provide coverage for them. Sherman, supra at 596-597, 513 N.W.2d 187. However, this certainly does not mean the court will automatically assume the clause covers the indemnitee's acts; the goal of the court is to determine the parties' intent from "`other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.'" Id. at 597, 513 N.W.2d 187, quoting Fischbach-Natkin Co. v. Power Process Piping, Inc., 157 Mich.App. 448, 452, 403 N.W.2d 569 (1987).
In Paquin v. Harnischfeger Corp., 113 Mich.App. 43, 52-53, 317 N.W.2d 279 (1982), this Court concluded that an indemnity clause provided coverage for the claims caused in part by the indemnitee's negligence because of a specific exclusion for claims caused solely by the indemnitee's negligence. In its analysis, this Court noted that "[t]he fact that the clause expressly precluded indemnification in the even[t] that the injury or damage was caused by [the indemnitee's] sole negligence ... indicates that the intent was to provide indemnity in all situations involving [the indeminitee's] own negligence except wherein caused by [the indemnitee's] sole negligence." Id.
This Court also concluded that the contractual indemnity clause provided coverage for the indemnitee's own acts in Fischbach. The clause in question provided indemnity for "`all liability or claimed liability for injuries, including death, to any and all persons whomsoever and for any and all property damage arising out of or resulting from or in any way connected with the work covered by this Subcontract ....'" Fischbach, supra at 450-451, 403 N.W.2d 569. This Court noted that the clause provided broad coverage, the parties were aware their employees would be working together, and "the possibility that an injury or damage would result from [the indemnitee's] negligence was apparent at the time the parties entered the contract providing for indemnification." Id. at 454-455, 403 N.W.2d 569.
The current clause, unlike that in Paquin, does not contain a provision excluding coverage for claims arising from the indemnitee's sole negligence. There also is a crucial distinction from Fischbach: the Fischbach clause provided indemnity for claims for personal injuries or property damage arising from work connected with the contract, while the current clause is much broader, as it provides indemnity for any claim.
Auch breaks the coverage of the provision into four components: indemnification for claims arising out of negligence, wrongful acts, breach of the agreement, and any obligation of Laser. Auch then argues the fourth component must be read independently of the other three, so that the first three components are not restricted to Laser. However, for the sentence concerning
There can be no question that the first three components must be read together. Although there is no language limiting the scope of the negligence and wrongful acts coverage to claims arising from the agreement, obviously Laser did not intend to indemnify Auch for claims unrelated to contract work, a point conceded by Auch. Thus, the first two components must be read in conjunction with the third, which restricts coverage to claims arising from the agreement.
Likewise, the first three components must be read in conjunction with the fourth. Otherwise, because the clause provides indemnity for claims arising from breach of the agreement, Laser would be powerless to enforce the contract. This would be as ludicrous a result as Laser providing indemnification for claims not arising from work connected with the agreement. The four components must be read together, as providing coverage for claims arising from Laser's conduct in connection with the agreement.
Unlike Paquin and Fischbach, in which the contract language indicated an intent to cover the indemnitee's acts, the current language evidences an intent to cover only Laser's actions. Accordingly, we hold that the trial court properly granted summary disposition in favor of Laser on Auch's counterclaim, though it did so under an alternative ground.
III. EXCLUSION OF EVIDENCE
Plaintiffs assert that the trial court erroneously granted defendants' motion in limine, which prevented plaintiffs from offering evidence of alleged ethnic slurs that Badiee himself had not heard or been made aware of before the date he walked off the job. The trial court reasoned that plaintiffs could not support their "hostile work environment" claim by using evidence of alleged ethnic slurs that Badiee neither heard nor even learned of until well after he left the worksite. Plaintiffs argue that the motion in limine prevented them from adequately proving their hostile workplace claim, and that it prevented them from rebutting Auch's defenses to Laser's breach of contract claims or from establishing a motive for Auch's alleged interference with the business and contractual relationships between Laser and BAS.
Plaintiffs also argues that the trial court erroneously excluded evidence of the fact that the Michigan Department of Civil Rights did not award Auch a "certificate of awardability" because Auch did not hire enough minorities for it to qualify for state contracts.
The standard of review with respect to a trial court's decision whether to admit evidence is as follows:
At trial, Badiee testified about two ethnic slurs directed toward him in his presence, and that an employee, John MacDonald, had told him of a third incident that allegedly occurred in March 2000. After the trial court heard defendants' motion in limine, it allowed plaintiffs to recall Badiee, over defendants' objection. Badiee then testified that he had been told that several Auch employees had used ethnic slurs to refer to him.
Plaintiffs do not explain why evidence of alleged ethnic slurs, of which Badiee was not aware and to which he was not a witness, are relevant to his hostile workplace claim under the CRA. Plaintiffs' primary argument seems to be that the motion in limine was made in an untimely manner contrary to the trial court's pretrial scheduling order. Plaintiffs offer no explanation or authority to support this position. A party may not simply announce its position and "leave it to this Court to discover and rationalize the basis for the party's claim." Conlin v. Scio. Twp., 262 Mich.App. 379, 384, 686 N.W.2d 16 (2004).
The trial court did not abuse its discretion when it excluded the evidence. We agree with defendants and the trial court that evidence of ethnic slurs that Badiee neither witnessed nor knew about is not relevant to his claim that defendants created a hostile workplace in violation of the CRA. Moreover, Badiee was able to testify before the jury that Auch employees used ethnic slurs to refer to him in his presence, and that he was made aware of other instances in which Auch employees allegedly used ethnic slurs to refer to him. Thus, the evidence excluded was cumulative. Any error resulting from the exclusion of cumulative evidence is harmless. Dunn v. Nundkumar, 186 Mich.App. 51, 54, 463 N.W.2d 435 (1990).
Accordingly, we hold that the trial court did not abuse its discretion when it granted defendants' motion in limine.
Plaintiffs sought to admit evidence of the fact that the Michigan Department of Civil Rights did not award a certificate of awardability to Auch in 1997 because it did not hire enough minority employees to qualify for contracts paid for with state funds.
This evidence is irrelevant because this is not a hiring case, and plaintiffs have not demonstrated how they were prejudiced by the exclusion of this evidence. Indeed, plaintiffs were permitted to present evidence to the jury in support of their contention that defendants engaged in racially discriminatory conduct.
Accordingly, we hold that the trial court did not abuse its discretion when it excluded this evidence, and, were we to conclude
IV. DIRECTED VERDICT WITH RESPECT TO BADIEE'S CIVIL RIGHTS CLAIMS
Plaintiffs maintain that the trial court erroneously granted defendants' motion for directed verdict with respect to plaintiffs' discrimination claims. Plaintiffs' civil rights count alleged violations of both the ethnic intimidation statute, MCL 750.147b,
On appeal, plaintiffs do little more than state that the trial court erred when it granted the motion for directed verdict, then quote verbatim the relevant statutory sections. Plaintiffs do not present any case law in support of their argument, any authority that explains the elements of the alleged torts, or even any explanation whatsoever of their argument. A party waives an issue when it gives the issue cursory treatment on appeal. Blazer Foods, Inc. v. Restaurant Properties, Inc., 259 Mich.App. 241, 252, 673 N.W.2d 805 (2003). Furthermore, a party may not simply announce its position and "leave it to this Court to discover and rationalize the basis for the party's claim." Conlin, supra at 384, 686 N.W.2d 16. Moreover, the facts presented at trial simply do not support plaintiffs' civil rights claims.
A. ETHNIC INTIMIDATION
Plaintiffs conceded during the motion for directed verdict that this claim applied only to Badiee. Badiee himself testified to only two instances in which ethnic slurs were allegedly directed at him. There is no evidence that either of these slurs accompanied any actual or threatened harm to Badiee or his property. Accordingly, no reasonable jury could conclude that defendants engaged in conduct that violated the ethnic intimidation statute, and the trial court properly granted summary disposition.
B. HOSTILE WORKPLACE
1. CRA Section 202
An "employer" is "a person who has 1 or more employees, and includes an agent of that person." MCL 37.2201(a). Claims against an employer under § 202
Here, Badiee's employer was neither BAS nor Auch, but Laser. Plaintiffs do not argue that BAS or Auch was an agent of Laser. Laser cannot sustain a claim against BAS or Auch under § 202 because it is not an "individual" and because it is at best an independent contractor of BAS. Because neither BAS nor Auch was plaintiffs'"employer" for the purposes of § 202, we hold that the trial court properly granted a directed verdict in favor of defendants.
2. CRA Section 209
As discussed above, plaintiffs are not employees of defendants for the purposes of the CRA. Moreover, the plain language of § 209
3. CRA Section 302
BAS cites Kassab v. Michigan Basic Prop. Ins. Ass'n., 441 Mich. 433, 440-441, 491 N.W.2d 545 (1992), in support of its argument that the public accommodation provision of § 302
4. CRA Section 402
The plain language of § 402
V. PLAINTIFFS' BREACH OF CONTRACT CLAIM
Plaintiffs allege that the trial court improperly denied plaintiffs' motion for JNOV. We review de novo motions for JNOV in the light most favorable to the nonmoving party to determine whether the facts and evidence presented preclude judgment for the nonmoving party as a matter of law. Merkur, supra at 123-124, 680 N.W.2d 485.
Laser submitted its seventh payment application for work it performed in June 2000. The evidence presented reflected that defendants had numerous reasons for delaying payment on that application. Laser did not provide a consent of surety with its seventh application before leaving the job on August 4, 2000,
Because plaintiffs bore the burden of proving their breach of contract claim, to sustain their motion for JNOV, plaintiffs were essentially required to establish that the evidence they presented was so substantial that the jury had no reasonable choice but to accept plaintiffs' version. Viewed in the light most favorable to defendants, the evidence presented was sufficient to allow a reasonable jury to find in defendants' favor. Accordingly, we hold that the trial court properly denied plaintiffs' motion for JNOV with respect to the breach of contract count.
VI. PLAINTIFFS' CLAIM OF INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS
Plaintiffs contend that the trial court erroneously denied plaintiffs' motion for JNOV with respect to plaintiffs' claim of intentional interference with business relations.
Plaintiffs claim that the fact that Auch delayed payment on the seventh application conclusively established plaintiffs' claim of intentional interference with business relations claim. However, defendants presented credible evidence that Auch had reasonable business reasons for delaying payment, such as Laser's failure to present a consent of surety as it had for the second through sixth payment applications, and the fact that Auch discovered that Laser had claimed to have paid its vendors significantly more money than the vendors certified receiving in their releases of liens.
Accordingly, viewing the evidence in the light most favorable to defendants, the jury had sufficient evidence to justify its verdict in favor of defendants on this claim and, therefore, the trial court properly denied plaintiffs' motion for JNOV.
VII. PLAINTIFFS' CLAIM OF INTERFERENCE WITH CONTRACTUAL RELATIONS
Plaintiffs also argue that the trial court erred when it granted defendants' motion for directed verdict with respect to plaintiffs' claim of interference with a contract. "The elements of tortious interference are (1) a contract, (2) a breach, and (3) an unjustified instigation of the breach by the defendant." Mahrle v. Danke, 216 Mich.App. 343, 350, 549 N.W.2d 56 (1996)." `[O]ne who alleges tortious interference with a contractual or business relationship must allege the intentional doing of a per se wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of invading the contractual rights or business relationship of another.'" CMI Int'l., Inc. v. Intermet Int'l. Corp., 251 Mich.App. 125, 131, 649 N.W.2d 808 (2002), quoting Feldman v. Green, 138 Mich.App. 360, 378, 360 N.W.2d 881 (1984). "A wrongful act per se is an act that is inherently wrongful or an act that can never be justified under any circumstances." Prysak v. R L Polk Co., 193 Mich.App. 1, 12-13, 483 N.W.2d 629 (1992). "If the defendant's conduct was not wrongful per se, the plaintiff must demonstrate specific, affirmative acts that corroborate the unlawful purpose of the interference." CMI Int'l., supra at 131, 649 N.W.2d 808.
To sustain this claim, plaintiffs were required to prove either that Auch committed an act that was so wrongful that Auch had no justification whatsoever for committing that act, and did so with malice and the intent to induce BAS to breach its contracts with Laser, or that Auch committed a lawful act with malicious intent to instigate BAS to breach its contracts with Laser. The trial court ruled that plaintiffs failed as a matter of law to prove that Auch did anything with the intent to interfere with the contracts between BAS and Laser.
The evidence presented at trial was not sufficient to allow a reasonable jury to conclude that Auch committed an act that was wrongful per se with the intent to induce BAS to breach its contracts with Laser. Furthermore, the evidence was insufficient to allow a reasonable jury to find that plaintiffs had presented evidence of specific, affirmative, unjustified acts with the intent to induce BAS to breach its contracts with Laser. To the extent that the alleged use of ethnic slurs by Auch personnel may have constituted an act that was wrongful per se, plaintiffs presented no evidence that would allow a reasonable jury to conclude that Auch intended its use of ethnic slurs to induce BAS to breach its contracts with Laser, nor did plaintiffs even show that this act actually induced BAS to breach the contractual relationship between it and Laser. Indeed, as discussed earlier, plaintiffs failed to establish that there was even a breach of the contracts by BAS.
We conclude that Laser failed to present evidence to counter defendants' evidence that Auch's actions were undertaken for valid business reasons, and that plaintiffs failed to present any evidence that would allow a reasonable jury to conclude that Auch acted with the intent to induce BAS to breach its contracts with Laser.
Accordingly, we hold that the trial court properly granted defendants' motion for directed verdict.
VIII. PLAINTIFFS' THIRD-PARTY BENEFICIARY CLAIM
Plaintiffs argue that the trial court improperly granted summary disposition in favor of defendants with respect to plaintiffs' third-party beneficiary claim. We review de novo a grant or denial of summary
The general conditions clause cited by plaintiffs in support of their third-party beneficiary claim is § 9.6.2, which provides, in relevant part, "The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work...." The contracts between Laser and BAS identify Laser as "the Contractor," while Auch is identified as "the Construction Manager" and BAS is identified as "the Owner." The contract between BAS and Auch similarly identifies Auch as "the Construction Manager" and BAS as "the Owner," and outlines Auch's duties with respect to "Contractors." The plain language of § 9.6.2, then, requires that Laser "promptly pay" its own subcontractors, not that Auch promptly pay Laser.
Furthermore, "[c]ontractors, subcontractors, and their employees are generally held not to be the third-party beneficiaries of the contract between the general or supervisory contractor and the project owner." Dynamic Construction Co. v. Barton Malow Co., 214 Mich.App. 425, 428, 543 N.W.2d 31 (1995). In Dynamic Construction, this Court reversed an order that denied the defendants summary disposition on the plaintiffs' third-party beneficiary claim. This Court reached that conclusion because the contract between the project owner and the construction manager not only lacked evidence of an intent to create a third-party beneficiary status with respect to contractors, but also expressly disclaimed third-party beneficiary status with respect to contractors. Here, § 10.7 of the contract between BAS and Auch provides that "[n]othing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Construction Manager."
Accordingly, we hold that the trial court properly granted summary disposition in favor of defendants with respect to plaintiffs' third-party beneficiary claim.
IX. EXPERT WITNESS TESTIMONY
A. Alfred Schaer
Plaintiffs assert that the trial court abused its discretion when it overruled plaintiffs' objections to the testimony of Alfred Schaer, an expert witness for defendants.
MRE 703 provides:
The trial court qualified Schaer, without objection, as an expert witness regarding contract administration and the bidding process in construction contracts. He is employed by a construction claims consulting firm, and is called upon to analyze the reasons for excessive costs or time for completion in projects.
The testimony to which plaintiffs object on appeal involves Schaer's analysis of the estimated date of completion had plaintiffs not left the job, which was based on the testimony of Auch witness Patrick Dunleavy, who had previously testified that plaintiffs had completed approximately sixty-two percent of the work when they left the project on August 4, 2000. Schaer testified that, on the basis of a rate of
Plaintiffs' argument with respect to this issue is, essentially, that plaintiffs disagree with the substance of Schaer's testimony because it was contradicted by the testimony of other witnesses. However, this is precisely the purpose of trials — to submit contradictory evidence for a determination of which evidence is more credible. Our review of the record shows support on the record for Schaer's testimony. Plaintiffs were free to challenge Schaer's testimony on cross-examination (and they did), and were free to present any contrary evidence from their own experts (which plaintiffs appear not to have done). It appears that plaintiffs are attempting on appeal to characterize testimony with which they disagree as groundless speculation despite the fact that the trial court properly ruled that Schaer's testimony was based on facts in evidence. Accordingly, we hold that the trial court did not abuse its discretion when it overruled plaintiffs' objection to Schaer's testimony.
B. Patrick Dunleavy
Plaintiffs assert that the trial court abused its discretion when it admitted the testimony of Patrick Dunleavy, an expert witness for defendants. Dunleavy is a certified public accountant employed by a financial consulting firm that specializes in forensic accounting, fraud investigation, and litigation support. Dunleavy was asked by defendants to help determine the merits of plaintiffs' claim of damages.
At trial, plaintiffs objected to the admission of Dunleavy's testimony because he stated that he had not consulted the state's prevailing wage statute
On appeal, plaintiffs continue to insist that Dunleavy's testimony was improperly admitted because of his apparent lack of familiarity with Michigan's prevailing wage act (PWA), MCL 408.551 et seq. However, Laser's compliance with the PWA was not relevant to Dunleavy's testimony. Dunleavy testified that Laser failed to pay some of its employees the minimum wage required by the contracts, and plaintiffs do not argue that Dunleavy is unqualified to render such testimony, nor does the record reveal any reason that Dunleavy was not properly qualified to testify concerning Laser's compliance with the contractual wage rates.
Accordingly, we hold that the trial court did not abuse its discretion when it admitted Dunleavy's testimony.
X. UNTIMELY MOTION IN LIMINE
An issue that is not raised before the trial court is not preserved for appeal. 46th Circuit Trial Court v. Crawford Co., 261 Mich.App. 477, 504, 682 N.W.2d 519 (2004). Here, plaintiffs did not object to the timing of defendants' motion. Plaintiffs' only procedural objection with respect to the motion was that it was not in writing. Moreover, plaintiffs do not cite Michigan authority to support its contention that this Court must reverse the trial court because the trial court chose to hear a motion in limine at a time other than that specified in its pretrial scheduling order. A party may not simply announce its position and "leave it to this Court to discover and rationalize the basis for the party's claim." Conlin, supra at 384, 686 N.W.2d 16. Accordingly, we decline to address this issue.
XI. BAS'S CLOSING ARGUMENT
Plaintiffs allege that BAS improperly stated during closing arguments that plaintiffs were barred from recovering because they did not submit their disputes to the architect as provided in the contracts. Plaintiffs state that this provision had specifically been removed from the contracts between BAS and Laser, and that the trial court erred when it permitted BAS to raise the issue despite the fact that BAS had not raised it as an affirmative defense.
We hold that in a civil case in which a party assigns as error on appeal remarks of counsel during closing arguments, but fails to object to those remarks at trial, the party must prove that (1) the remarks were so prejudicial as to have denied the party a fair trial and that (2) any resulting prejudice could not have been cured by a curative instruction. Thorin v. Bloomfield Hills Bd. of Ed., 203 Mich.App. 692, 704, 513 N.W.2d 230 (1994); Bourke v. North River Ins. Co., 117 Mich.App. 461, 466, 324 N.W.2d 52 (1982). This basis for appeal should be used sparingly for the reasons stated by our Supreme Court in Hunt v. Deming, 375 Mich. 581, 585, 134 N.W.2d 662 (1965), a case involving a jury instruction in a civil case:
We conclude that no such "unusual circumstances" exist here, and that plaintiffs have failed to prove that (1) the challenged remarks were so prejudicial as to have denied plaintiffs a fair trial, and that (2) any prejudice could not have been avoided by a
XII. CASE-EVALUATION SANCTIONS
Plaintiffs maintain that the trial court erroneously awarded case-evaluation sanctions to BAS under MCR 2.403(O)(8). We review de novo a trial court's decision whether to grant case-evaluation sanctions. Brown v. Gainey Transportation Services, Inc., 256 Mich.App. 380, 383, 663 N.W.2d 519 (2003). MCR 2.403(O)(8) provides that a party that seeks case-evaluation sanctions must file and serve a "request" within twenty-eight days after the entry of the judgment or entry of an order that denies a timely motion for a new trial. The twenty-eight-day requirement "was added to address stale motions for costs...." Mahrle, supra at 349, 549 N.W.2d 56.
Before trial, the parties submitted this case to case evaluation pursuant to MCR 2.403. The result was a recommendation that Auch pay plaintiffs $150,000, while BAS was to pay nothing. BAS accepted this evaluation award, and plaintiffs accepted the $150,000 evaluation award from Auch,
Plaintiffs do not argue that BAS was not entitled to recover case-evaluation sanctions, or that the amount of sanctions was improper. Rather, plaintiffs argue that BAS's motion for case-evaluation sanctions was untimely. BAS filed a motion for sanctions on April 29, 2003, twenty days after the order that denied plaintiffs' motion for JNOV or a new trial. However, BAS did not file an affidavit outlining the specific amount of the costs until June 6, 2003. The trial court heard BAS's motion and entered an order that awarded BAS $72,635 on June 27, 2003. Plaintiffs maintain that because the affidavit that detailed BAS's attorney fees was not submitted with BAS's motion, the motion was not timely because it did not state BAS's costs with specificity until the affidavit was filed.
We note that for ordinary taxation of costs, the court rules require that a prevailing party submit a bill of costs that lists costs with particularity within twenty-eight days of the entry of judgment. See MCR 2.625(F) and (G). However, MCR 2.403, by contrast, does not provide specific requirements for the "request" for sanctions. MCR 2.403(O). While MCR 2.625 deals only with costs, MCR 2.403 allows as sanctions "actual costs," which are defined as "those costs taxable in any civil action," as well as "a reasonable attorney fee...." MCR 2.403(O)(6). If the court rules required a party seeking case-evaluation sanctions to specify the amount of actual costs with particularity, then MCR 2.403 would specifically provide such a requirement as MCR 2.625 does. Furthermore, MCR 2.403(O)(6)(b) provides that the portion of the "actual costs" representing the "reasonable attorney fee" is to be "based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation." (Emphasis added.) By contrast, MCR 2.625 appears to require a detailed bill of costs because the court clerk is empowered to tax costs without a finding of reasonableness by the trial court. MCR 2.625(F). Because BAS
Furthermore, by affirming the trial court's award of costs here, the court rule's purpose to prevent "stale motions for costs" would not be frustrated. BAS filed a timely request for costs that put plaintiffs on notice of BAS's intent to recover actual costs. Approximately five weeks later, BAS filed and served its detailed affidavit outlining what it thought to be its actual, reasonable attorney fee. This was filed a full three weeks before the date the trial court held a hearing on BAS's request. Plaintiffs cannot argue that BAS's motion was "stale."
For the foregoing reasons, we conclude that the trial court did not err when it awarded BAS case-evaluation sanctions.
XIII. AWARD OF COSTS
Plaintiffs assert that the trial court erred when it awarded costs to Auch because those costs were unsupported and excessive. We review an award costs pursuant to MCR 2.625 for an abuse of discretion. Citizens Ins. Co. of America v. Juno Lighting, Inc., 247 Mich.App. 236, 245, 635 N.W.2d 379 (2001).
Plaintiffs maintain that the trial court abused its discretion when it awarded costs to Auch, which prevailed on all of plaintiffs' claims, because Auch forced plaintiffs out of business by rejecting case evaluation and proceeding to trial in a case that plaintiffs filed. Plaintiffs maintain that because of the enormous expense and debt that they incurred in preparing their case for trial, the trial court abused its discretion by awarding Auch costs. Plaintiffs attempt to blame defendants for this situation because defendants declined to settle a case in which, ultimately, defendants prevailed completely with respect to every claim.
Plaintiffs' argument that the trial court abused its discretion when it awarded costs to Auch because plaintiffs incurred a large expense in prosecuting their own case is wholly without merit. Plaintiffs fail to cite any authority for such a proposition, and the proposition confounds common sense.
Plaintiffs claim that the award of costs was excessive because some of the hours billed by Dunleavy were paid for the work of members of Dunleavy's staff who did not testify at trial. Plaintiffs do not cite any authority to explain why this constitutes an excessive expense, nor do they explain why (or even if) this was not a necessary expense incurred by Auch in the preparation of its defense. A party waives
Because plaintiffs have failed to cite any authority in support of their contention, and because they have not established that the costs were not reasonably incurred for a case of this magnitude, we hold that the trial court did not abuse its discretion when it awarded Auch costs.
Plaintiffs assert that the trial court erroneously failed to apportion costs between Laser and Badiee. We hold that plaintiffs have waived this issue because they have cited no authority whatsoever in support of their arguments. A party may not state their position and then leave it to this Court to search for authority in support of that position. Conlin, supra at 384, 686 N.W.2d 16.