                          STATE OF MICHIGAN

                             COURT OF APPEALS



ARCHIE A. VAN ELSLANDER,                                             UNPUBLISHED
                                                                     December 30, 2014
               Plaintiff-Appellant,

v                                                                    No. 318500
                                                                     Oakland Circuit Court
THOMAS SEBOLD & ASSOCIATES, INC.,                                    LC No. 2003-051583-CZ
HOME INSPECTIONS NORTH, INC., and
LINCOLN WOOD PRODUCTS, INC.,

               Defendants,
and

DANIEL S. FOLLIS and MARY ELIZABETH
FOLLIS,

               Defendants-Appellees.


Before: MURRAY, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

        Plaintiff, Archie A. Van Elslander, appeals as of right an award of case evaluation
sanctions comprised of attorney fees and costs, totaling $583,322.39. This is plaintiff’s second
appeal of case evaluation sanctions in this case. In the first, we affirmed the trial court’s ruling
that defendants, Daniel and Mary Follis, were entitled to sanctions, but remanded for a
redetermination as to the amount. Van Elslander v Thomas Sebold & Assoc, Inc, 297 Mich App
204, 241; 823 NW2d 843 (2012). It is the trial court’s new award entered after remand that is
the subject of this appeal. For the reasons set forth below, we vacate the award to the extent it
pertains to the Follises’ time devoted to pursuing case evaluation sanctions and remand for
correction. In all other respects, we affirm.

                                       I. BACKGROUND

         This case began more than ten years ago when the home Van Elslander purchased from
the Follises sustained serious water damage. Although the case’s procedural history is long, the
pertinent facts for purposes of this appeal concern only the discreet issues related to the trial
court’s recalculation of the case evaluation award. A brief history of this case’s tortured journey
to this point nevertheless bears mention. As described in our most recent opinion:

                                                -1-
        This case initially involved claims pertaining to breach of contract, breach
of warranty, negligence and silent fraud, arising from the sale of a home by
defendants, Daniel and Mary Follis, to Van Elslander. As described in a previous
appeal to this Court:

               Unit 6 is a six-bedroom, approximately 9,000-square-foot
       home on the shore of Lake Michigan, in Bay Harbor. The
       Follises contracted with TSA to construct Unit 6, most of which
       occurred in 1996 and 1997, as a vacation residence and potential
       retirement home. In 1998, plaintiff purchased Unit 6 from the
       Follises for $3 million. In July 2002, powerful storms swept
       across Lake Michigan, and a tremendous quantity of water entered
       Unit 6. Plaintiff subsequently discovered that the home had
       extensive water damage and widespread mold. Significant
       portions of the home ultimately were removed and rebuilt, at great
       expense, and this lawsuit followed.[1]

__________________________________________________________________
1
 Van Elslander v Thomas Sebold & Assoc, Inc, unpublished opinion per curiam
of the Court of Appeals, issued December 2, 2008 (Docket Nos. 272396, 274966),
p 2.
__________________________________________________________________

        The parties engaged in a case evaluation on April 13, 2005. Van Elslander
was awarded $173,500, which he rejected. During the pendency of the action, all
the defendants, except for Daniel and Mary Follis, were dismissed and the first
trial proceeded solely against them on Van Elslander’s claim of $1.6 million in
damages. A nine-day jury trial resulted in a special verdict that rejected Van
Elslander’s claim of silent fraud but found the Follises had breached their
responsibility to repair and awarded Van Elslander $680,838.82 in damages.
With costs the award to Van Elslander totaled $706,465.30. The Follises
appealed, and this Court remanded for a new trial solely on the issue of whether
they had breached the escrow schedule pertaining to a window well and any
damages arising therefrom.

        A second trial was conducted on this limited issue, resulting in a jury
verdict of no cause of action in favor of the Follises. The judgment permitted the
Follises to submit a motion for taxation of costs. Van Elslander filed several
motions for reconsideration and appeals to this Court and the Michigan Supreme
Court, which were all denied. The Follises sought case evaluation sanctions,
taxation of costs and other sanctions. An evidentiary hearing was conducted after
the Follises sought reconsideration of the trial court’s initial refusal to award
sanctions. At the conclusion of a multi-day evidentiary hearing, the trial court
awarded the Follises $86,813.98 in taxable costs, and attorney fees of
$689,262.50 as sanctions pursuant to MCR 2.403(O), for a total award of


                                        -2-
       $776,076.48. [Van Elslander, 297 Mich App at 209-211 (bracketed footnote in
       original).]

        Van Elslander then contested that award in this Court, arguing that “the single issue tried
on remand following the [Follises’] appeal . . . was not the same or comparable to the multiple
issues originally submitted for case evaluation.” Id. at 212. In essence, Van Elslander claimed
that his winning the first trial should preclude an award of fees and costs incurred for that
proceeding because they were only awarded after he lost the second trial. Id. at 214-215. We
disagreed, however, because Van Elslander’s rejection of the award necessitated the fees
generated in both trials and therefore a sufficient causal nexus between the rejection and
subsequent proceedings existed. Id. at 215-216. The actual award of costs and attorney fees was
a different story, however.

        Regarding costs, we rejected several of the Follises’ categories outright and found that
several others lacked an adequate explanation. Although we remanded a number of issues on
this score for more detailed findings, those germane to this appeal include clarification as to
whether certain costs of the Follises’ experts, Robert Melvin and Delno Malzahn, were
compensable as sanctions. Id. at 219-222.

        We additionally held that the trial court failed to properly apply Smith v Khouri, 481
Mich 519; 751 NW2d 472 (2008), in calculating reasonable attorney fees. Id. at 240. In
particular, we noted that in arriving at the market value of these fees, the trial court relied too
heavily on the averments of the Follises’ attorneys and their expert, Norman Lippitt, while giving
scant attention to objective surveys or other reliable evidence of the legal market. Id. at 233-237.
Also problematic was the trial court’s calculation of reasonable billable hours, including its
failure to consider whether there were blended fees, and the court’s fee enhancements coupled
with the court’s failure to acknowledge the Follises’ potential role in unnecessarily running up
fees. Id. at 238-241. Accordingly, we remanded for an evidentiary hearing and correction of
these errors.1

                            II. THE CASE ON SECOND REMAND

       In accordance with this Court’s opinion, an evidentiary hearing spanning four days
followed. Before the court delivered its ruling, the parties settled several issues related to costs
that were addressed in our prior opinion. Accordingly, the trial court entered a stipulated order
for sanctions of $30,643.33 reflecting these uncontested costs. The order further identified the
remaining disputed costs, including those for Melvin and Malzahn’s trial preparation and
attendance, as well as those for Lippitt’s hearing preparation and testimony




1
  On remand, Van Elslander moved for the trial court’s recusal based on the court’s alleged
communication with a non-participating attorney back in 2010. The trial court denied that
motion, and the chief judge denied the subsequent appeal because the motion was untimely.


                                                -3-
       Three months later, the trial court delivered its ruling on the record. The ruling took three
days to deliver and comprises 277 pages of transcript. Before reaching the merits, the court
explained:

                The matter is before the Court following trial court proceedings pursuant
       to [Van Elslander, 297 Mich App at 204]. . . . [T]he trial court record speaks for
       [itself]. The Court of Appeals “generally affirmed” the trial court’s opinion and
       order in 2010. This opinion is limited to those matters reversed only. This
       hearing is not a “do-over” as Plaintiff maintains; therefore, this Court’s opinion
       today acknowledges adjudications by the trial court in its 2010 opinion and order,
       which are and remain the law of the case. For example only, this was a complex
       case; Zausmer can only fit in the most esteemed category; Getto impressed the
       Court with his demeanor and intellect, et cetera.

        The court then organized its analysis into three categories: (1) taxable costs, (2) attorney
fees (called “rates”), and (3) hours. The court based its detailed findings for each category on a
thorough review of the relevant invoices, evidentiary hearing testimony, prior relevant factual
findings, and the State Bar of Michigan Economics of Law Practice Summary Report for 2007
(“2007 Survey”) and for 2010 (“2010 Survey”). The court expressly cross-referenced each
category (and the accompanying findings) to the applicable paragraphs of this Court’s most
recent opinion.

        Regarding costs, the court reviewed Melvin, Malzahn, and Lippitt’s invoices “line-by-
line” and made detailed findings regarding the specific hours which were (or were not) taxable.
Additionally, the court applied the relevant portions of the 2010 Survey in determining the
propriety of Lippitt’s billing rate and hours. As for attorney fees, the court expressly reviewed
every individual category and grid included in the 2007 and 2010 Surveys, before applying this
information in analyzing the propriety of each attorney’s rates in conjunction with the court’s
own review and credibility determinations of relevant witness testimony. In similar fashion, the
court’s billable-hour analysis culminated in a line-by-line itemization of each individual time
entry on the invoices. To streamline its analysis, the court created an index of 16 rationales,
which it cross-referenced in making each ruling.2 The court additionally found that the Follises



2
  The categories comprising this index are: I-A (allowing fees for monitoring co-defendants’
trial and appellate activity); I-B (disallowing fees for monitoring co-defendants’ case evaluation
sanction litigation); II (allowing fees for investigating potential cross-defendants or third-party
defendants); III (allegedly administrative or ministerial tasks); IV (Van Elslander does not
contest defendant’s time entry); V (time entries for which the Follises no longer seeks costs); VI
(allowing fees that are not redundant, i.e., allowing fees for lawyers serving as both first and
second chair, or what the court termed “one chief and several Indian braves”); VII-XII
(intentionally unused by the court); XIII (“the May 26, 2006 one-half award rationale,” i.e., the
court awards one-half of the time billed for services that were trial-oriented, adverse, or verdict-
oriented; the court denies costs for appellate services); XIV (disallowing fees charged by both
Zausmer’s firm and Plunkett and Cooney, which the court called “transition from not redundant

                                                -4-
did not unreasonably increase their counsel’s billable hours and that blended fees did not apply
in this case.

        Based on these rulings and findings, the court entered an order awarding the Follises
$583,322.39 in case evaluation sanctions, comprised of $30,643.33 for uncontested costs,
$15,781.50 for contested costs,3 and $536,897.56 for attorney fees. The trial court entered a stay,
and this appeal followed.

                  III. ANALYSIS OF THE COURT’S RULINGS ON REMAND

        Van Elslander argues that the trial court variously failed on remand to follow this Court’s
ruling. Whether the trial court erred by failing to follow an appellate ruling on remand is a
question of law that we review de novo. Kalamazoo v Dep’t of Corrections (After Remand), 229
Mich App 132, 134-135; 580 NW2d 475 (1998). But the trial court’s recalculation of attorney
fees and costs is for an abuse of discretion. Smith, 481 Mich at 526. An abuse of discretion
occurs when a trial court’s ruling falls outside the range of reasonable and principled outcomes.
Id. The trial court’s factual findings underlying its award calculation are reviewed for clear
error. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). “[A] finding of no clear
error does not necessarily mean that the trial court was ‘right’ in the sense of having reached ‘the
only correct result.’ This is particularly true given the ‘great deference’ generally afforded to
trial courts, which are in a better position to examine the facts.” Hill v City of Warren, 276 Mich
App 299, 308; 740 NW2d 706 (2007) (emphasis in original, citation omitted). Instead, clear
error exists when we are left with a definite and firm conviction that a mistake was made. Id. at
308-309.

       To the extent Van Elslander argues the trial court neglected to follow the law of the case,
our review is de novo. New Properties, Inc v George D Newpower, Jr, Inc, 282 Mich App 120,
132; 762 NW2d 178 (2009).

                                     A. LAW OF THE CASE

         Van Elslander asserts the trial court erred in determining that the factual findings which
this Court did not disturb remain the law of the case. But the law of the case doctrine applies to
this Court’s rulings on legal questions, binding trial courts only as to those decisions when the
same case is on remand. Kalamazoo, 229 Mich App at 135-136. Therefore, this doctrine as
cited by the court—and Van Elslander’s argument that the court failed to follow it—cannot apply
in this context.

        Nevertheless, to the extent Van Elslander’s challenge may be interpreted as contesting
the trial court’s prior findings in 2010, this is improper. Indeed, after generally affirming the
trial court’s award of case evaluation sanctions, we remanded this case for a recalculation of the
award based, in part, on factual findings the trial court either did not make, or made incorrectly

to redundant” or “two chiefs and no Indian braves”); and XV (allowing fees for attorney time
spent in pursuit of case evaluation based on a “causal nexus”).
3
    This amount includes costs for Lippitt ($8,492.50), Melvin ($3,720), and Malzahn ($3,569).


                                                -5-
in 2010. Accordingly, the trial court was correct that the evidentiary hearing was “not a ‘do
over’ ” of the whole sanctions issue. Instead, the proper time to challenge the trial court’s
findings which this Court left untouched was either in the prior appeal, or if Van Elslander
believed there was palpable error, in a motion for reconsideration under MCR 7.215(I). Having
failed to do either, he cannot now collaterally attack the trial court’s prior ruling on this ground.
Kosch v Kosch, 233 Mich App 346, 353; 592 NW2d 434 (1999) (“Defendant’s failure to file an
appeal from the original judgment . . . pursuant to MCR 7.205(A) or (F), precludes a collateral
attack on the merits of that decision.”).

        Setting this aside, however, the thrust of Van Elslander’s inartfully-constructed challenge
appears to be that certain factual findings and rulings which the trial court made on remand were
either clearly erroneous or an abuse of discretion in light of our most recent opinion. To the
extent Van Elslander properly presents those issues, we will address them when relevant to his
arguments later in this opinion.

                  B. APPLICATION OF THE PROPER LEGAL FRAMEWORK

       Van Elslander contends that the trial court failed to apply the correct legal framework for
analyzing the reasonable amount of sanctions due. On this score, we directed the trial court to
follow the relevant guidelines set forth in Smith. Van Elslander, 297 Mich App at 228-230. As
Smith instructs:

         We hold that a trial court should begin its analysis by determining the fee
         customarily charged in the locality for similar legal services, i.e., factor 3 under
         MRPC 1.5(a).[4] In determining this number, the court should use reliable surveys


4
    The factors of MRPC 1.5(a) include:
         (1) the time and labor required, the novelty and difficulty of the questions
         involved, and the skill requisite to perform the legal service properly;

         (2) the likelihood, if apparent to the client, that the acceptance of the particular
         employment will preclude other employment by the lawyer;

         (3) the fees customarily charged in the locality for similar legal services;

         (4) the amount involved and results obtained;

         (5) the time limitations imposed by the client or by the circumstances;

         (6) the nature and length of the professional relationship with the client;

         (7) the experience, reputation and ability of the lawyer or lawyers performing the
         services; and

         (8) whether the fee is fixed or contingent. [MRPC 1.5(a).]


                                                  -6-
         or other credible evidence of the legal market. This number should be multiplied
         by the reasonable number of hours expended in the case (factor 1 under MRPC
         1.5[a] and factor 2 under [Wood v Detroit Automobile Inter-Ins Exch, 413 Mich
         571, 588; 321 NW2d 653 (1982)5].) The number produced by this calculation
         should serve as the starting point for calculating a reasonable attorney fee. We
         believe that having the trial court consider these two factors first will lead to
         greater consistently in awards. Thereafter, the court should consider the
         remaining Wood /MRPC factors to determine whether an up or down adjustment
         is appropriate. And, in order to aide appellate review, a trial court should briefly
         discuss its view of the remaining factors. [Smith, 481 Mich at 530-531 (second
         set of brackets in original).]

      Van Elslander cites this section and then argues that the trial court failed to apply this
framework for several reasons. None has merit.

            1. TRIAL COURT’S KNOWLEDGE OF THE TOTAL FEES AWARDED

        First, Van Elslander conclusively asserts “there can be no question” that the fees awarded
bear no relation to the Follises’ out-of-pocket costs. However, in support he offers only the trial
court’s statement that “I haven’t done the math, and I am going to leave the math for you.”
While Van Elslander maintains that this reasoning revealed the appropriate analysis was lacking,
this mischaracterizes the court’s statement. By encouraging the parties to “do the math,” the
court was inviting the parties to estimate for themselves the amount of compensable attorney fees
to be awarded based on the billable hours the court had calculated, which in turn was based on its
extensive findings. Considering that the hearing did not continue for another 13 days after the
court invited the parties to “do the math,” this was not the abdication of any duty. It was a
courtesy. There is no error here.

                                2. REASONABLE HOURLY RATES

       Second, Van Elslander asserts the trial court erred in calculating reasonable hourly rates
because the court relied upon the Follises’ “same faulty criteria,” by which they sought rates at
or above those this Court previously determined excessive. Van Elslander is wrong.

       We previously explained that the “reasonable hourly rate represents the fee customarily
charged in the locality for similar legal services, which is reflected by the market rate for the
attorney’s work.” Van Elslander, 297 Mich App at 230, quoting Smith, 481 Mich at 531. The


5
    The Wood factors include:
                 (1) the professional standing and experience of the attorney; (2) the skill,
         time and labor involved; (3) the amount in question and the results achieved; (4)
         the difficult of the case; (5) the expenses incurred; and (6) the nature and length of
         the professional relationship with the client. [Wood, 413 Mich at 588 (citations
         omitted).]


                                                  -7-
market rate, in turn, “is the rate that lawyers of similar ability and experience in the community
normally charge their paying clients for the type of work in question.” Van Elslander, 297 Mich
App at 230, quoting Smith, 481 Mich at 531. We further emphasized that formal surveys are
essential to resolution of this question, and ruled that the trial court’s failure to “use reliable
surveys or other credible evidence of the legal market” constituted error. Van Elslander, 297
Mich App at 232.

        The trial court could not have more thoroughly complied with our directive. Indeed, the
trial court expressly reviewed each page, category, and grid of both the 2007 and 2010 Surveys
and considered all relevant data as it applied to each attorney individually. The court’s analysis
accounted for objective categories, including the attorneys’ years in practice, firm size, location,
and area of practice, and resulted in the application of a particularized hourly rate for each
attorney, which occasionally varied for each calendar year from 2005 through 2013. Still the
court was not done.

        As the court noted, because the surveys did not expressly account for several
considerations called for in our opinion (such as referral application discounts, the attractive rates
to entice future business, and familial relationships), the court reviewed testimony it considered
credible to include these factors in calculating each attorneys’ annual market rate. Not
surprisingly, the court identified discrepancies among each attorneys’ actual rate (called the
“discounted rate”), each attorneys’ normal rate (called the “undiscounted rate”), and the relevant
rates the court had calculated from the surveys. The court reconciled these discrepancies by
averaging the divergent rates, and applied this rationale consistently, for each attorney, for each
year in arriving at the reasonable annual market rates for this case. In all instances, the court
ultimately calculated rates below the respective rates previously awarded in 2010.

        We are hard pressed to see how this extensive analysis fell outside the range of
reasonable or principled outcomes or was based on clearly erroneous findings. To the contrary,
our review of the trial court’s ruling reveals full compliance with our directives on remand, and
Van Elslander’s arguments impugning the court’s analysis are simply mistaken. Indeed, as
noted, the court did consider the actual fees charged, which is only one relevant factor and is not
dispositive.6 Van Elslander, 297 Mich App at 233-234. The court did consider extensively the
issue of blended fees, concluding they did not apply only after noting that the testimony revealed
there was no blended fee arrangement in this case and after a thorough analysis of no fewer than
“five subjects bearing on Getto’s rate adjudication.”7 Additionally, although the court found



6
  The trial court did not clearly err in determining that certain rates were “outliers” given that the
court’s ultimate determination of billing rates fell well within the parameters outlined in our
previous opinion. For example, while Getto had previously accepted a rate as low as $135 an
hour, he admitted his fees generally range from $200 to $225 an hour. The court set Getto’s
reasonable rate at $208.88, an amount within the range noted in our opinion. Van Elslander, 297
Mich app at 235.
7
  These included Getto’s: (1) “actual discounted rate in this case,” (2) “this Court’s rates deduced
from the surveys,” (3) “the average between the range for undiscounted . . . rates for a complex

                                                 -8-
Zausmer to be an esteemed attorney falling in the 95th percentile of lawyers, the court expressly
declined to assess Zausmer’s “actual rate” as his reasonable market rate in this case.

        In sum, the court’s analysis accounted for all applicable information from the 2007 and
2010 surveys, the attorneys’ actual rates adjusted for discounts, the attorneys alleged normal
rates, the applicability of any “blended fee” arrangement (which the court found to be
nonexistent) or other discounts, and cross-referenced each individual ruling with the applicable
paragraph from our prior opinion. Reversal is not warranted.

                                       C. TIME ENTRIES

       Van Elslander next challenges the trial court’s allowance of certain time entries, again
claiming the court failed to comply with our directives on remand. Again, we disagree.

        In remanding this case, we called particular attention to the trial court’s total acceptance
of the assertions of the Follises’ counsel regarding the hours expended, and pointed specifically
to Getto’s billing 100 hours to verify an insurance payment, the disparity between the hours
billed by Zausmer’s associates during the trials, multiple attorneys working simultaneously on
the same projects, possible double billings or duplicative work, and the effect of the Follises’
demanding behavior in potentially running up fees. Van Elslander, 297 Mich App at 238-240.

        On remand, the court reviewed each and every billing entry, which the parties color-
coded to designate their relevant agreement or objections, and then applied one or more of the
rationales identified previously, all of which the court explained before conducting its
comprehensive analysis.

        In the face of this ruling—which took the court nearly seven hours to deliver by the
way—it appears much of Van Elslander’s problem is that the Follises’ witnesses did not testify
in his favor at the evidentiary hearings held on remand. For example, while we previously
recognized that the trial court erred in failing to consider whether the Follises’ attorneys billed
for duplicative work, Van Elslander takes issue with the fact that none of the Follises’ witnesses
conceded this issue (with two exceptions) and otherwise sought compensation for the balance of
their time. But our remand was directed at the court, not the parties’ witnesses, and it is the trial
court’s responsibility to assess their credibility, not Van Elslander’s.

        Van Elslander similarly asserts that the trial court disregarded the testimony of its expert,
Mr. Jacob. However, while the court claimed not to understand the colored highlighting
attributable to Jacob, the court resolved this issue by reviewing each relevant entry individually
and otherwise explicitly referenced its consideration of Jacob’s testimony in at least one other
context. That the trial court apparently did not find Jacob persuasive is not error. Hill, 276 Mich
App at 308.

        Van Elslander also seizes on several of the issues raised in our prior opinion, arguing that
the trial court erred in calculating billable hours for: Getto, in particular the hours he billed for
case,” (4) “assumption of Getto’s market value,” and (5) blended fees [which the court found
inapplicable].”


                                                -9-
the second trial and other hearings, his review of Zausmer’s work, and the 100 hours billed for
insurance issues; redundant work by multiple attorneys on the same projects; attorneys’
administrative or ministerial tasks; monitoring of other parties’ appeals; investigating Van
Elslander’s claims against third parties; and failing to account for the Follises’ demanding nature
resulting in unnecessary fees. None has merit.

        Indeed, the majority of the trial court’s rulings on these issues were based on its
evaluation of testimony elicited during the evidentiary hearings on remand. And it was this
testimony that in large part undergirded the court’s rationales, which the court variously applied
to each and every billable entry, both to allow and disallow certain time entries. There was no
clear error in the court’s factual findings nor was there an abuse of discretion in granting (or
denying or reducing) the individual time entries.

        For starters, the trial court specifically reviewed every one of Getto’s entries. As for his
hours attributable to the second trial, the court expressly considered the reasonableness of each
billed time increment categorically (such as for hours pertaining to discovery, legal research,
drafting and litigating pleadings) and found all trial-oriented and reasonable. The court likewise
reviewed in detail Getto’s 100 hours regarding the insurance payment before granting those
entries. Given this level of detail, we cannot conclude the court’s analysis was an abuse of
discretion or clearly erroneous. Moreover, it bears emphasis that the court did not categorically
grant all of Getto’s time, particularly as it pertained to his review of Zausmer’s work. Rather, the
trial court acknowledged this Court’s ruling that an associate’s mere review of a partner’s work
is not taxable, but noted that a good portion of the work attributable to Zausmer and Getto’s
different roles as first and second chairs at the second trial and subsequent hearings was proper
on this ground. In making this determination, the court relied upon the testimony of Zausmer as
well as Jacob regarding the necessity of this arrangement. This was not clearly erroneous,
especially where Jacob’s testimony on this point was equivocal and it is the trial court’s role to
assess these witnesses’ credibility.

        As for the remainder of Van Elslander’s concerns, our review of the record reveals that
the trial court expressly disallowed, at least partially, many entries, including those for: the
redundant work of multiple associates,8 certain ministerial tasks or work of assistants, entries that
were not clearly “trial-related,” entries related to the transition of work between law firms,
associates’ duplicative hours, and a junior associate’s review of a senior attorney’s work. The
simple fact that the court distinguished among the individual billing entries and partially granted
some of them is not error where the court identified its rationale and otherwise acknowledged
our directives. For example, the court noted that while some tasks may appear ministerial, a
further review revealed that they in fact comprised legitimate legal work. Accordingly, the court
permitted the relevant entries where appropriate.


8
  Van Elslander asserts that many entries are duplicative, but fails to give specific citations to the
record. It is not our responsibility to scour the record for support of a party’s claim. Ewald v
Ewald, 292 Mich App 706, 726; 810 NW2d 396 (2011) (a claim of error fails absent appropriate
citation to the record or specific, meaningful argument.)


                                                -10-
        Similarly, there was no error in the court’s allowing entries for monitoring co-defendants’
appeals where the court expressly acknowledged that the time entries pertained not to appellate
fees, but rather to trial-oriented issues since Van Elslander’s claims of joint and several liability
were at stake. See Haliw v City of Sterling Heights, 471 Mich 700, 706; 691 NW2d 753 (2005)
(“appellate attorney fees and costs are not recoverable as case evaluation sanctions.”). The same
can be said for the entries regarding investigations of potential third parties, since the court’s
finding that some claims could affect the Follises was not clearly erroneous. Again, we will not
disturb the trial court’s determination of Zausmer’s credibility on both points, especially where
Van Elslander presents only a cursory argument disputing the latter contention’s causal nexus.
Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998).

        Finally, where the trial court expressly considered and concluded that the Follises,
although a demanding couple, did not unnecessarily incur fees, we conclude that its decision not
to disturb its prior finding was not an abuse of discretion. Indeed, the trial court has the superior
vantage point on issues such as this, and the court clarified its ruling on this score about which
we previously expressed concern.

        In short, the trial court’s extensive review and analysis, in which it “scrutinized every
hour of Defendants’ attorneys’ bills and adjudicated [the] same rather than ‘totally accepting the
assertions of Follises’ counsel regarding the hours expended,’ [Van Elslander, 297 Mich App at
238],” coupled with its meticulous cross-references to the relevant portions of our prior opinion,
does not lead us to conclude that the trial court’s ruling fell outside the range of reasonable
outcomes, nor are we left with a definite and firm conviction that a mistake was made with
respect to the factual bases of these rulings. The court’s calculations of these billable time
entries stand.

                     D. PURSUIT OF CASE EVALUATION SANCTIONS

        Next up is Van Elslander’s challenge to the award to the extent it encompassed the
Follises’ pursuit of case evaluation sanctions. Specifically, Van Elslander argues that because
the issues involved in seeking case evaluation sanctions bear no causal nexus to the defense of
his claims, he should not have to bear those costs. See Van Elslander, 297 Mich App at 213-214
(an opposing party’s responsibility for case evaluation sanctions must pertain to costs “directly
flowing” from that party’s theory of liability and damages, and the defense against that theory
must bear a “causal nexus” to the opposing party’s rejection of the award). Van Elslander is
correct.

       On this exact issue, this Court recently disallowed case evaluation sanctions awarded for
a party’s “time devoted to pursuing case evaluation sanctions” because they “were not
necessitated by [the opposing party’s] rejection of case evaluation.” Fraser Trebilock Davis &
Dunlap, PC v Boyce Trust 2350, 304 Mich App 174, 219-220; 850 NW2d 537 (2014).
Underlying this ruling, in part, was the opposing party’s objections to the amount of fees sought,
which “was a close issue, not clearly settled by Michigan caselaw.” Id. at 219.

      While we cannot say that the issues concerning the award of case evaluation sanctions
were unique in this case, it is clear that Van Elslander raised legitimate objections to the award.
A number of those objections were meritorious as our prior opinion acknowledges and ultimately

                                                -11-
resulted in the trial court disallowing on remand many of the fees and costs previously awarded.
It is likewise clear that many of these objections, successful or not, legitimately challenged such
issues as the determination of a reasonable hourly rate because the Follises’ attorneys charged an
actual rate significantly lower than their normal rate. How this bears a causal nexus to any of the
issues raised at either trial is beyond us, and the Follises’ respond with nothing more than
conclusory assertions to the contrary.9

         Thus, like Fraser—which both parties overlooked, incidentally—we do not believe that
the fees and costs associated with the case-evaluation sanctions proceedings (which include
Lippitt’s testimony) were causally connected to Van Elslander’s rejection of the case evaluation
award.10 Indeed, hotly contested issues, such as the determination of a reasonable hourly rate
and propriety of specific billing entries, have nothing to do with Van Elslander’s theories of
liability, and stand in stark contrast to the post-judgment sanctions Fraser otherwise permitted.
Id. at 219 (allowing postjudgment case evaluation sanctions for the opposition to a motion for
new trial, which was nothing more than a “second-bite-at-the-apple”). Accordingly, we vacate
this portion of the trial court’s order and remand for correction of this error.

                                E. EXPERT WITNESS COSTS

        Unlike the award for case evaluation sanctions, the award for costs related to expert
witnesses Melvin and Malzahn does not warrant reversal. The crux of Van Elslander’s attack is
that the Follises’ called neither expert on remand, but instead presented only Getto to explain
those experts’ invoices. But while Van Elslander cites only a brief quote from Getto’s
testimony, our review of the transcript reveals his detailed testimony about these experts’ bills.
Moreover, contrary to Van Elslander’s contention, it appears that Getto had at least some
personal knowledge of these experts’ invoices, which in any event goes to the weight rather than
the admissibility of his testimony. The trial court apparently found at least a portion of this
testimony credible as it granted or denied each expert’s costs after a line-by-line review of their
bills. The apparent reliance on Getto’s testimony was not clearly erroneous, nor was the award
of these experts’ costs an abuse of discretion.




9
  While our prior opinion noted sanctions were appropriate to the extent they related to the
second trial, the lynchpin of that ruling was that sanctions are measured against the “ultimate
verdict,” which had yet to be reached before the second trial. Van Elslander, 297 Mich App at
215. Our most recent opinion therefore does not support the Follises’ position now where the
“ultimate verdict” has already been reached.
10
   Although our Supreme Court’s order in Young v Nandi, 490 Mich 889; 804 NW2d 316 (2011),
contains no concise statement of facts, see Dykes v William Beaumont Hosp, 246 Mich App 471,
483; 633 NW2d 440 (2001) (“an order that is a final Supreme Court disposition of an application
and that contains a concise statement of the applicable facts and reasons for the decision is
binding precedent”) (citation omitted), this has no effect on our conclusion today, especially in
light of Fraser.


                                               -12-
       Van Elslander also argues that the costs awarded for Lippitt’s services before the last
appeal were improper (1) because “it is impossible to ascertain which services are taxable” and
(2) because we previously found this witness to be “clearly interested,” Van Elslander, 297 Mich
App at 233. As for the former, Van Elslander cites not a single instance supporting this
conclusory assertion, and it is certainly not incumbent on us to find Van Elslander’s supporting
evidence. Mudge, 458 Mich at 105. And as for the latter, Lippitt’s interest is one of credibility
and weight, not admissibility. Van Elslander, 297 Mich App at 233. Van Elslander’s arguments
therefore change nothing on this score.

             IV. VAN ELSLANDER’S REQUESTS PERTAINING TO REMAND

       Since correction of the trial court’s award related to the Follises’ pursuit of case
evaluation sanctions is necessary, we now turn to Van Elslander’s two requests regarding
remand. For the following reasons, we decline both.

                                A. DISPENSE WITH REMAND

        First, Van Elslander requests that this Court dispense with remand because the Follises
are not entitled to a third evidentiary hearing. This issue is moot, however, as we have called for
no further evidentiary hearings on remand.

        And, in any event, our prior ruling remanding this case did not reflect a determination
that the Follises’ had failed to shoulder their burden of proof as Van Elslander argues. See id. at
228 (the burden of establishing that attorney fees are reasonable rests with the party requesting
the fees). Instead, an evidentiary hearing was necessary to clarify the record. That the Follises
submitted evidence at the subsequent evidentiary hearing reveals compliance with our ruling
rather than a failure to satisfy their burden of proof in the first instance. Also, Van Elslander’s
assertion that the trial court based its ruling on whether the Follises would obtain a “better panel”
on appeal, without more, is reckless speculation. It is insufficient to preclude remand. See Van
Buren Twp v Garter Belt Inc, 258 Mich App 594, 598; 673 NW2d 111 (2003) (“a party
challenging the impartiality of a judge must overcome a heavy presumption of judicial
impartiality”) (citation omitted).

                      B. ASSIGN THE CASE TO A DIFFERENT JUDGE

        Second, we decline to order the matter assigned to a different judge on remand. To begin
with, the trial court was not “blinded” by its prior preconceptions or errors as Van Elslander
suggests. To the contrary, the trial court’s ruling makes clear that any prior uncertainty the court
may have harbored regarding the scope of its review of the bills played no part in its conclusion,
which the court rendered only after reviewing each and every billing entry. Van Elslander’s
concern here is unfounded. Equally baseless is Van Elslander’s generic reference to the court’s
“repeated statements” that purportedly demonstrate a lack of objectivity. Again, we review
specific arguments, not conclusory generalizations tethered to nothing in the record. Mudge, 458
Mich at 105.

     Finally, as he argued below, Van Elslander accuses the trial court of an alleged ex parte
communication that resulted in bias and created the appearance of impropriety in violation of
MCR 2.003(C). Our review of any factual findings concerning this issue is for an abuse of
                                                -13-
discretion, while our review of the applicability of those facts to the relevant law is de novo.
Cain v Dep’t of Corrections, 451 Mich 470, 503, 503 n 38; 548 NW2d 210 (1996).

         The basis of Van Elslander’s claim is the trial court’s alleged conversation with a non-
participating attorney before its award of case evaluation sanctions in 2010. Apparently, the
non-participating attorney had offered to facilitate mediation. The court agreed, but Van
Elslander didn’t. Regardless of the veracity of these allegations, however, it is undisputed that
Van Elslander was aware of the communications in October 2010, but waited to raise this issue
until after we decided his most recent appeal, over two years later. This is well beyond the 14-
day deadline set forth in MCR 2.003(D)(1)(a). Even worse, Van Elslander does not even
acknowledge that the chief judge denied his appeal on this ground below. We will not consider
it further.

                                        V. CONCLUSION

        We vacate the trial court’s order to the extent it awarded case evaluation sanctions related
to the Follises’ pursuit of those sanctions and remand for correction of the award on that ground.
We affirm in all other respects.11

       No costs, neither party having prevailed in full. MCR 7.219.

       We do not retain jurisdiction.

                                                             /s/ Christopher M. Murray
                                                             /s/ Henry William Saad
                                                             /s/ Joel P. Hoekstra




11
  The Follises’ cite no authority supporting their request that we order the uncontested costs
payable immediately. Regardless, the straightforward nature of this remand does not necessitate
such an order.


                                               -14-
