ELIA v. HAZEN, 242 Mich. App. 374

Zahra, P.J. In this automobile negligence case, plaintiffs Connie Elia, Louis Elia, Theresa Cipro, and Andrea Cipro appeal as of right from a judgment entered on a jury verdict, challenging the trial court’s denial of expert witness fees as taxable costs. Defendant cross appeals, challenging the trial court’s order awarding plaintiffs the cost of several depositions read into the trial record. We reverse and remand for further proceedings. On September 9, 1995, the automobile in which plaintiffs were riding was struck in the rear by an automobile driven by defendant.

Plaintiffs filed this automobile negligence action, alleging that the collision resulted in serious injury and impairment of bodily function. The case was mediated, and plaintiffs and defendant rejected the mediation evaluation. Following a jury trial, a verdict was rendered in favor of plaintiffs, and judgment was entered on the verdict. Thereafter, plaintiffs brought a motion for mediation sanctions in the form of actual costs and legal fees pursuant to MCR 2.403. The trial court ordered that defendant pay plaintiffs’ costs and legal fees.

It included the $19,389.16 cost of depositions that were read into the trial record, ruling that they were filed with the court clerk and used during trial in accordance with MCL 600.2549; MSA 27A.2549. However, the trial court denied plaintiffs’ request for $13,750.43 in expert witness fees, ruling that plaintiffs failed to comply with a pretrial order requiring that all expert witness fees be disclosed before the parties’ settlement conference.

On appeal, plaintiffs argue that the trial court erred in denying their request for expert witness fees on the basis of noncompliance with requirements set forth in this case’s original pretrial scheduling order. A trial court’s decision to award mediation sanctions involves a question of law that is reviewed de novo. Marketos v American Employers Ins Co, 240 Mich App 684, 698; 612 NW2d 848 (2000), citing Great Lakes Gas Transmission Ltd Partnership v Market, 226 Mich App 127, 129; 573 NW2d 61 (1997).

However, we review a trial court’s decision regarding the amount of an award of mediation sanctions for an abuse of discretion. Meagher v McNeely & Lincoln, Inc, 212 Mich App 154, 158; 536 NW2d 851 (1995); see Giannetti Bros Constr Co v Pontiac, 175 Mich App 442, 450; 438 NW2d 313 (1989).

An abuse of discretion is found only in extreme cases in which the result is “ ‘ “so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” ’ ” Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638 (1999), quoting Marrs v Bd of Medicine, 422 Mich 688, 694; 375 NW2d 321 (1985), and Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). In the present case, two separate pretrial scheduling orders were entered below.

The first was entered on August 7, 1996, by Judge Casper O. Grathwohl. That order provided, with respect to expert witness fees: Prior to settlement conference, attorneys must exchange statements of the reasonable, necessary and proper fee or rate of fee proposed to be paid expert witnesses and which later may be taxed as costs. If there is any question as to the fee or rate of fee to be paid, it must be raised and heard prior to the settlement conference. Fees or rate of fees not so exchanged by statement will not be allowed and those exchanged without objection shall be allowed should costs be awarded.

This case was later reassigned to Judge John T. Hammond, who entered an amended pretrial scheduling order on February 11, 1997. That order was silent with respect to expert witness fees. It is undisputed that plaintiffs did not comply with the original order’s requirement that they disclose all expert witness fees before the settlement conference. Plaintiffs argue, however, that the amended pretrial order, which does not require disclosure, superseded the original order.

We find it unnecessary to decide whether plaintiffs were required to comply with the terms of the original pretrial scheduling order given that plaintiffs are entitled to expert witness fees as mediation sanctions. This case was mediated in favor of plaintiffs in the amounts of $30,000 for Andrea Cipro, $35,000 for Theresa Cipro, $5,000 for Connie Elia, and $22,500 for Louis Elia. Plaintiffs and defendant rejected the mediation evaluation.

Thereafter, the jury rendered the following unadjusted verdict in favor of plaintiffs: $75,000 for Andrea Cipro, $105,000 for Theresa Cipro, $17,500 for Connie Elia, and $75,000 for Louis Elia. The trial court entered judgment on the jury verdict. Generally, a party that rejects a mediation evaluation is subject to sanctions if the party does not improve its position at trial. Grow v W A Thomas Co, 236 Mich App 696, 716; 601 NW2d 426 (1999), citing Meagher, supra at 157.

MCR 2.403(O)(1) provides: If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.

Given that the parties rejected the mediation evaluation and the jury verdict is more than ten percent above the mediated value, plaintiffs are, as a matter of law, entitled to mediation sanctions in the amount of their “actual costs.” MCR 2.403(O); Great Lakes Gas Transmission Ltd Partnership, supra at 130 (applying the clear language of MCR 2.403[O][l] and holding that the rule’s “use of the word ‘must’ indicates that the award of costs is mandatory, not discretionary”).

For the purposes of MCR 2.403, “actual costs” are defined as “those costs taxable in any civil action, and ... a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the mediation evaluation.” MCR 2.403(O)(6)(

a) and (b); see Grow, supra. The power to tax certain expenses is statutory, and the prevailing party cannot recover such expenses absent statutory authority. Beach v State Farm Mut Automobile Ins Co, 216 Mich App 612, 621; 550 NW2d 580 (1996). Expert witness fees are taxable under MCL 600.2164; MSA 27A.2164. Expert witness fees incurred by plaintiffs would be part of their “actual costs” under MCR 2.403(0). Therefore, the trial court lacked discretion to refuse to award expert witness fees on the ground that there was noncompliance with the terms set forth in the pretrial scheduling order.

Accordingly, plaintiffs are entitled to provable expert witness fees on remand. On cross appeal, defendant argues that the trial court erred in awarding plaintiffs the cost of several depositions that were read into the trial record. Defendant contends that the trial court misinterpreted MCL 600.2549; MSA 27A.2549 in awarding such costs. We review questions of statutory

interpretation de novo. In re MCI Telecommunications Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). MCL 600.2549; MSA 27A.2549 provides: Reasonable and actual fees paid for depositions of witnesses filed in any clerk’s office and for the certified copies of documents or papers recorded or filed in any public office shall be allowed in the taxation of costs only if, at the trial or when damages were assessed, the depositions were read in evidence, except for impeachment purposes, or the documents or papers were necessarily used.

Here, plaintiffs were awarded the costs of thirty-five depositions that were read into the record at trial. It is undisputed that the majority of those depositions were not filed in the circuit court clerk’s office, but instead were presented to the trial judge during the course of the trial. The trial judge then gave them to Deann Kuelbs, who served as the Berrien County video court clerk/deputy court clerk and was present in the courtroom throughout the trial. Kuelbs kept the depositions with the judge’s case file.

Defendant does not dispute that the several depositions were read and used in the course of the trial, but, rather, disputes whether they were “filed in any clerk’s office” in accordance with MCL 600.2549; MSA 27A.2549. Under the plain language of the statute, the trial court erred in taxing the costs of those depositions not filed in a clerk’s office. The primary intent of judicial

interpretation of statutes is to ascertain and give effect to the intent of the Legislature. The first criterion in determining intent is the specific language of the statute. The Legislature is presumed to have intended the meaning it plainly expressed. Courts may not speculate regarding the probable intent of the Legislature beyond the words expressed in the statute. Where the language employed in a statute is plain, certain, and unambiguous, the statute must be applied as written without

interpretation. When the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Such a statute must be applied, and not interpreted, because it speaks for itself. [Portelli v I R Constr Products Co, Inc, 218 Mich App 591, 606-607; 554 NW2d 591 (1996) (citations omitted).] In Portelli, this Court reviewed the trial court’s taxation of costs of depositions, excerpts of which were included in the defendant’s motion for

summary disposition that was filed with the court clerk. Id. at 606. On appeal, the plaintiff argued that, because the depositions themselves were not filed in any clerk’s office, the trial court erred in taxing their costs. Id. This Court agreed,, stating, “The plain, clear, and unambiguous language of MCL 600.2549; MSA 27A.2549 indicates that the Legislature intended the taxation of costs only for depositions filed in a clerk’s office.” Portelli, supra at 607.

Despite the fact the depositions were used to resolve the case, this Court held that the trial court lacked statutory authority to tax the costs of the depositions. Id. We reach the same conclusion in the present case. Notwithstanding that plaintiffs presented the several deposition transcripts to the trial judge, who eventually passed them to clerk Kuelbs, the depositions were not filed in any clerk’s office and, thus, were not filed in accordance with MCL 600.2549; MSA 27A.2549. Consequently, plaintiffs are not entitled to the costs of those depositions.

This conclusion is necessary notwithstanding that “logic would indicate that depositions used to resolve a case should be taxable ....” Portelli, supra at 607. We are bound to apply the plain, unambiguous language of MCL 600.2549; MSA 27A.2549, which requires that depositions be “filed in any clerk’s office,” and may not speculate regarding the probable intent of the Legislature beyond that language or otherwise construe the statute’s clear language. Portelli, supra. We note that the record indicates that the depositions of Dr. Brian Cruise and Dr. Roy R. A.

Till were properly filed in the circuit court clerk’s office. Therefore, the costs of those two depositions are taxable pursuant to MCL 600.2549; MSA 27A.2549 and should be considered taxable on remand. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. Hoekstra, J., concurred. We will refer to defendant-appellee Richard V. Hazen as “defendant.” Plaintiffs settled their claims with General Motors Corporation, which is not a party to this appeal. The case was subsequently reassigned to Judge Paul L. Maloney and then to Judge David M.

Peterson, who presided over the trial and the posttrial motions now at issue. Neither Judge Maloney nor Judge Peterson entered pretrial scheduling orders. Each of the amounts awarded the individual plaintiffs are less $1,500 settlement proceeds from General Motors Corporation and interest thereon. Plaintiffs’ right to mediation sanctions is clear even without adding assessable costs and interest given that the amount of the verdict itself is more than ten percent above the mediation evaluation. See MCR 2.403(O)(3). See our subsequent discussion regarding the filing of the depositions of Dr. Brian Cruise and Dr.

Roy R. A. Till. We reach that conclusion despite evidence suggesting that the Berrien Circuit Court employs a policy that allows parties the option to “bench ¡file” documents. The requirements set forth by our Legislature in MCL 600.2549; MSA 27A.2549 supersede any local court policy or procedure. Despite defendant’s argument on appeal that this Court is without authority to decide whether plaintiffs are entitled to costs for these two depositions, plaintiffs’ assertion that they are entitled to those costs was preserved below.

The issue whether plaintiffs were entitled to the costs of depositions that were read into the record was raised before, and addressed by, the trial court. Therefore, we have authority to review the issue. See Miller v Farm Bureau Mut Ins Co, 218 Mich App 221, 235; 553 NW2d 371 (1996); Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992).