                            STATE OF MICHIGAN

                            COURT OF APPEALS



JOHN M. CEBULA, as trustee of the JOHN M.                          UNPUBLISHED
CEBULA REVOCABLE TRUST,                                            September 29, 2015

              Plaintiff/Counter-Defendant-
              Appellee,

and

JOHN M. CEBULA, individually, and CHERYL
A. CEBULA,

              Third-party Defendants-Appellees,


v                                                                  No. 321791
                                                                   Branch Circuit Court
M. RHOADES CONSTRUCTION COMPANY,                                   LC No. 12-030131-CZ
MICHAEL RHOADES, RHOADES
CONSTRUCTION, and RHOADES
CONSTRUCTION COMPANY,

              Defendant/Counter-Plaintiffs/Third-
              party Plaintiffs-Appellants.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

MARKEY, J., (dissenting).

       I respectfully dissent from the majority’s conclusion that the trial court erroneously
awarded plaintiff mediation sanctions. I believe the trial court analyzed the situation correctly
both factually and legally, so I would affirm.

       Admittedly, this case presents factually so that the completely capable and bright
members of this panel have had to intellectually stand on their heads to reach our respective
conclusions.

       The majority has aptly and accurately set forth the law. It is with its factual
conclusions—upon which, of course, the law must be applied—that I disagree.


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        Patently, and frustratingly, the mediation panel that heard this case elected to reduce its
evaluation to a very succinct $25,000 to plaintiffs notwithstanding defendants’ counter and third-
party claims. Although it would have been very helpful had the panel elaborated a bit more, the
simple fact is nothing was awarded to any party but plaintiffs. Defendants had counter-claimed
against plaintiffs for $18,913.63 in unpaid construction bills incurred pursuant to their building
contract. It is, however, not proper for us to speculate or assume what the mediators were
thinking or meant to accomplish. They merely awarded $25,000 to plaintiffs. So, to be entitled
to mediation sanctions, at trial, plaintiffs needed to better their position by 10%. I believe they
did; consequently, the trial court properly awarded them.

        This case was tried before the judge in a bench trial. On October 11, 2013, in its written
Judgment pursuant to MCR 2.602 and referencing the bench trial and July 31 Opinion and Order,
the court specifically stated that plaintiffs sustained damages “…in the sum of Thirty One
Thousand Eight Hundred Twenty-Nine and no/100ths Dollars ($31,829.00) of which Plaintiff
rightfully withheld payment to Defendants the sum of … ($18,913.63) leaving a cash balance
due to plaintiffs of $12,905.37 plus attorney fees and costs to be taxed in favor of plaintiff. The
Judgment explicitly no causes defendants and orders them to remove, dismiss and fully discharge
a certain “Claim of Lien recorded…and pertaining to the land and structure at issue in the…”
cause of action.

        The trial court’s factual findings relieved plaintiffs of the $18,913.63 defendants had
charged them and further awarded another $12,905.37. Most importantly, and what warrants
repeating, is that it awarded defendants nothing. Nor does the court even mention any debt owed
defendants, and the Judgment did not contemplate in any respect the satisfaction of any debt
owed to defendant. To the contrary, the Judgment relieved plaintiffs of any financial obligations
they may have owed defendants had the building contract been properly fulfilled, i.e., fully and
in a workmanlike manner. When read in context and in its entirety, the court’s judgment clearly
indicates that plaintiffs’ damages were $31,829. Relieving them of the $18,913.63 bill
defendants asserted, awarding them additional cash of $12,905.37 and giving nothing to
defendants yet requiring defendants to immediately remove the construction lien appears to be
the court’s way of accounting or simply calculating a fair and relevant award: Plaintiffs, keep
$18,913.63 in your pocket, and put in another $12,905.31 for the rest of the damages you
suffered.

       I think the majority’s analysis runs awry when it concluded:

       By crediting $18,913.63 against the amount defendants owed plaintiff, the trial
       court awarded defendants that which they were owed, thereby discharging the
       debt that was secured by the construction lien.

        Indeed, although the amount defendants were claiming for against plaintiffs is the same
as part of the $31,829 the trial court awarded plaintiffs, the majority’s statement that “…the trial
court awarded defendants that which they were owed, thereby discharging the debt secured by
the construction lien[.] is totally contrary to the court’s own findings and the wording of the
Judgment: The court found no cause for action on defendants’ counter-claims and ordered the
construction lien removed immediately. The fact that the court chose $18,913.63 is not likely
coincidence, but rather an amount that was relevant and reflective of some of the damages
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plaintiffs incurred. In any event, the record provides no support for any contention that the trial
court or the mediators did or intended to award defendants any amount of money.

      Consequently, plaintiffs’ award entitled them to the mediation sanctions the trial court
awarded, and I would affirm.
                                                         /s/ Jane E. Markey




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