            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                             COURT OF APPEALS



RONNIE DUNN and KEVIN ROSS,                                         UNPUBLISHED
                                                                    August 1, 2019
               Plaintiffs-Appellants,

and

CHARLES BLUE and CLINT BECK,

               Plaintiffs,

v                                                                   Nos. 341907; 341908
                                                                    Genesee Circuit Court
GENESEE COUNTY ROAD COMMISSION,                                     LC No. 13-100253-CD

               Defendant-Appellee.


Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.

PER CURIAM.

        In Docket No. 341907, plaintiffs, Ronnie Dunn and Kevin Ross,1 appeal as of right an
order awarding defendant, the Genesee County Road Commission, $46,645.50 in attorney fees as
case-evaluation sanctions after the jury returned a verdict of no cause of action for plaintiffs’
claim of racial discrimination under the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101
et seq. In Docket No. 341908, plaintiffs appeal by leave granted an order denying their motion
for a new trial. We affirm in Docket No. 341908. In Docket No. 341907, we affirm in part and
remand, while retaining jurisdiction.

                                  I. BACKGROUND FACTS



1
 There were, originally, additional plaintiffs in this case. Their claims were dismissed and are
not at issue in this appeal. The term “plaintiffs” in this opinion refers to Dunn and Ross.



                                               -1-
        Plaintiffs, both black men, were equipment operators in the maintenance department at
the Road Commission and, in 2012, applied for an opening for a maintenance-foreman position
at defendant’s Swartz Creek garage. Defendant’s maintenance director, Anthony Branch,
recommended plaintiffs and seven other applicants for interviews. John Daly, who was in charge
of final hiring decisions for defendant, interviewed five of the nine persons recommended by
Branch: two white male equipment operators from the maintenance department, two white males
from the engineering department, and one black female from the engineering department. He did
not interview plaintiffs. Daly ultimately hired Mike Jaeger, one of the white males from the
engineering department, for the job. Plaintiffs filed suit on April 12, 2013, alleging race-based
discrimination under the ELCRA. 2 Originally, the trial court granted defendant’s motion for
summary disposition, concluding that defendant’s provided reasoning for its hiring process was
not a pretext for discrimination. On appeal, this Court reversed because “there were questions of
fact for the jury . . . .” Dunn v Genesee Co Rd Comm, unpublished per curiam opinion of the
Court of Appeals, issued February 2, 2016 (Docket Nos. 323739 and 323779), p 12.

        Plaintiffs’ primary theory at the ensuing trial was that they were more qualified than
Jaeger for the Swartz Creek position because they knew how to operate heavy equipment and
Jaeger, with his background in engineering, did not. Defendant moved for a directed verdict at
the close of testimony. The trial court grudgingly denied it, stating that multiple witnesses had
averred that Daly never exhibited any signs of racial animosity, had worked closely with and
hired many black individuals, and simply had preferred an engineer—not an equipment
operator—to be the foreman at the Swartz Creek garage. The court stated that any evidence of
racial discrimination was “as thin as it gets” but that it would let the jury decide the issue. The
jury found no cause of action with regard to each plaintiff.

        On appeal, plaintiffs contend that the trial court failed to follow this Court’s directive
from the earlier appeal when it refused to instruct the jury about defendant’s failure to interview
plaintiffs and instructed only about the failure to promote them. They also take issue with
various aspects of the court’s assessment of case-evaluation sanctions.

                                    II. DOCKET NO. 341907

    A. APPLICABILITY OF CASE-EVALUATION SANCTIONS IN AN ELCRA CASE

       Plaintiffs contend that the court should not have assessed case-evaluation sanctions
against them because their lawsuit was based on the ELCRA. They claim that they were
attempting to obtain not just monetary damages but social relief, and that encouraging them to
accept a pretrial monetary settlement by way of the case-evaluation scheme is inappropriate as a
matter of public policy.




2
 Plaintiffs also raised a claim of retaliation. This claim was dismissed and is not at issue in the
present appeal.



                                                 -2-
      This issue is primarily one of law, and this Court reviews questions of law de novo.
DeCosta v Gossage, 486 Mich 116, 122; 782 NW2d 734 (2010).

        MCR 2.403(A)(1) states, “A court may submit to case evaluation any civil action in
which the relief sought is primarily money damages or division of property.”3 MCR 2.403(2)
states, “Case evaluation of tort cases filed in circuit court is mandatory beginning with actions
filed after the effective dates of Chapters 49 and 49A of the Revised Judicature Act, as added by
1986 PA 178.” In Severine v Ford Aerospace & Communications Corp, 118 Mich App 769,
770, 776-777; 325 NW2d 572 (1982), disapproved of on other grounds by Sutherland v
Kenningon Truck Serv, 454 Mich 274; 562 NW2d 466 (1997), the plaintiff filed a claim under
the ELCRA, and this Court, in analyzing a choice-of-law dispute, stated that the “plaintiff’s
claim of employment discrimination is in the nature of a tort action” and referred to the
defendant’s “alleged tortious conduct.”

        Plaintiffs’ ELCRA claim proceeded to case evaluation, which resulted in a proposed
award of $40,000 for each plaintiff. Plaintiffs and defendant rejected the proposed award. Given
the jury’s finding of no cause of action, MCR 2.403(O)(1) provides for an award of costs to
defendant as case-evaluation sanctions. Costs include “a reasonable attorney fee[.]” MCR
2.403(O)(6)(b).

        The record suggests that plaintiffs accepted the possibility that they could be liable for
case-evaluation sanctions, if applicable. MCR 2.403(C) sets forth a procedure to follow if one
objects to having a case submitted to case evaluation. MCR 2.403(C) states:

              (1) To object to case evaluation, a party must file a written motion to
       remove from case evaluation and a notice of hearing of the motion and serve a
       copy on the attorneys of record and the ADR clerk within 14 days after notice of
       the order assigning the action to case evaluation. The motion must be set for
       hearing within 14 days after it is filed, unless the court orders otherwise.

              (2) A timely motion must be heard before the case is submitted to case
       evaluation.

On June 13, 2016, defendant filed a request to schedule a case evaluation, averring that
plaintiffs’ civil-rights case sounded in tort. Plaintiffs did not object to case evaluation as being
inappropriate in this ELCRA case. In fact, the lower court record contains a stipulated order to
adjourn trial and schedule a case evaluation. By acquiescing to the submission of the case to
case evaluation, plaintiffs implicitly acquiesced to pay costs to defendant if warranted under the
case-evaluation rules. A party may not claim as error on appeal something to which the party


3 Plaintiffs assert that they were seeking, in part, declaratory relief, and this is true. In the
second amended complaint, they asked for a declaration that “the aforementioned practices and
actions of Defendant constitute unlawful employment practices in violation of the [ELCRA].”
However, a fair reading of the complaint as a whole shows that the primary relief sought was
money damages.



                                                -3-
acquiesced in the trial court. In re Conservatorship of Brody, 321 Mich App 332, 347; 909
NW2d 849 (2017).

         We note, too, that in Meyer v City of Center Line, 242 Mich App 560, 563; 619 NW2d
182 (2000), the plaintiff filed suit under the ELCRA and the jury returned a verdict of no cause
of action. This Court affirmed sanctions against the plaintiff under MCR 2.403(O). Id. at 577.
This Court also affirmed case-evaluation sanctions against the plaintiff in an ELCRA case in
Hyde v Univ of Mich Regents, 226 Mich App 511, 526; 575 NW2d 36 (1997). See also
Dresselhouse v Chrysler Corp, 177 Mich App 470, 484; 442 NW2d 705 (1989). While the
panels in these cases were not addressing the precise argument being made by plaintiffs (that it
violates public policy and the spirit of the ELCRA to assess case-evaluation sanctions against a
civil-rights plaintiff), the cases provide tangential support for defendant’s position.

        Plaintiffs assert that the fee-shifting provision of the ELCRA and the case-evaluation
court rules are in conflict and that the ELCRA, as a statute enacted by the Legislature, must
prevail. But the fee-shifting provision in the ELCRA states only the following:

                A court, in rendering a judgment in an action brought pursuant to this
       article, may award all or a portion of the costs of litigation, including reasonable
       attorney fees and witness fees, to the complainant in the action if the court
       determines that the award is appropriate. [MCL 37.2802.]

To be awarded fees under this statute, a party must be a prevailing party. Meyer, 242 Mich App
576. “To be considered a prevailing party, a plaintiff must receive at least some relief on the
merits of plaintiff’s claim, such as an award of damages, an injunction, or a declaratory judgment
on a favorable consent decree or settlement.” Id. Plaintiffs obtained no relief at all by way of
their lawsuit. They were clearly not prevailing parties, and therefore under the facts of the
present case there is no conflict between MCL 37.2802 and the case-evaluation court rules
because plaintiffs could not obtain costs under the statute.

         Plaintiffs also cite the statement from Young v Barker, 158 Mich App 709, 726; 405
NW2d 395 (1987), that “the prevailing defendant in a civil rights case may recover attorney fees
only if the trial court, in its discretion, determines that the suit was vexatious, frivolous or
brought to harass.” The Young panel was not discussing the ELCRA in particular. In addition,
the Young panel was discussing general attorney-fee awards in civil-rights actions and was not
dealing with the specific case-evaluation scheme, which is a scheme to encourage settlement.
See Smith v Khouri, 481 Mich 519, 527-528; 751 NW2d 472 (2008). Obtaining a settlement in a
civil-rights case would further the social-justice goals mentioned by plaintiffs just as a favorable
jury verdict would. See, e.g., Varney v Genesee Co Sheriff, 156 Mich App 539, 543-544; 402
NW2d 57 (1986) (mentioning that civil-rights claims are not on a different footing from other
civil claims in terms of settlement issues and that encouraging settlement of such claims does not
deter people from bringing suit).4 The Michigan Supreme Court has mentioned that it is “the


4
  Plaintiffs cite Hescott v Saginaw, 757 F3d 518 (CA 6, 2014), which dealt with a federal
civil-rights claim and a federal settlement rule—FR Civ P 68—that is analogous in some respects



                                                -4-
existing policy of this Court to encourage settlements when feasible.” Brewer v Payless Stations,
Inc, 412 Mich 673, 679; 316 NW2d 702 (1982).

       Considering all the circumstances, plaintiffs have not demonstrated that the trial court
erred by applying the case-evaluation court rules to their ELCRA claim.

               B. SUPPORT FOR AND REASONABLENESS OF THE AWARD

       Plaintiffs contend that the amount of the attorney-fee award was unreasonable and
unsupported, and point to several alleged errors by the trial court. The decision to award
case-evaluation sanctions is reviewed de novo, but “[t]he amount of case evaluation sanctions
awarded is reviewed for an abuse of discretion.” Ayre v Outlaw Decoys, Inc, 256 Mich App 517,
520; 664 NW2d 263 (2003). Some of plaintiffs’ arguments, however, are unpreserved. This
Court reviews unpreserved issues for plain error affecting substantial rights. Demski v Petlick,
309 Mich App 404, 426-427; 873 NW2d 596 (2015). A plain error is one that is “clear or
obvious[.]” Id. at 427 (quotation marks and citations omitted).

                                1. AFFIDAVIT REQUIREMENT

        Plaintiffs take issue with the fact that defendant’s two attorneys did not submit any
affidavits in support of their claimed hours of work. However, plaintiffs did not raise this issue
below. In the trial court, with regard to the affidavit issue, plaintiffs stated only that counsel did
not submit any affidavits in support of the requested hourly rate. Thus, plaintiffs’ argument that
affidavits were needed to support the claimed number of hours expended is unpreserved.

       In support of their argument, plaintiffs cite only unpublished Michigan cases.5 For this
reason alone, plaintiffs have failed to establish a “clear or obvious” error, Demski, 309 Mich App




to the Michigan case-evaluation-sanctions scheme. Plaintiffs point out that, in Hescott, the
federal court stated, as part of its reasoning for denying the defendant an award of sanctions, that
a civil-rights defendant can only recover attorney fees under the civil-rights statute in issue—42
USC 1988—if it is the prevailing party and the plaintiff’s action was frivolous. See id. at 529.
But this federal case, while potentially useful as persuasive authority, see Dresselhouse, 177
Mich App at 484, is not binding with regard to plaintiffs’ state-law claims. In addition, the case
is not on all fours with the present case because the plaintiff in Hescott was a prevailing party,
and the Hescott Court held that FR Civ P 68 “cannot force a prevailing civil-rights plaintiff to
pay a defendant’s post-offer attorneys’ fees.” Id. at 528-529.
5
 Plaintiffs cite one published federal case, Blum v Stenson, 465 US 886; 104 S Ct 1541; 79 L Ed
2d 891 (1984), but do not explain why this federal case should be binding with regard to
case-evaluation sanctions based on state law. In addition, the Court in that case discussed the
production of affidavits to support requested rates. Id. at 895 n 11. The Court stated that “the
critical inquiry in determining reasonableness is now generally recognized as the appropriate
hourly rate.” Id. The parties here stipulated to a rate of $165 an hour.



                                                 -5-
at 427, with regard to the trial court’s calculation of sanctions based on defense counsel’s billing
statements and oral arguments. In addition, one of the defendant’s attorneys signed the motion
in which he set forth the claimed amount of $54,037.50 for the defense, noting that “[a]n
itemization” was “attached as Exhibit 1,” and the statements were indeed attached. The same
defense counsel, in open court, referred to the request for “$54,000” in fees. Under these
circumstances, the trial court had sufficient proofs to analyze the fee issue. See Smith, 481 Mich
at 528-529 (“[T]he burden of proving the reasonableness of the requested fees rests with the
party requesting them.”).

                                     2. TWO ATTORNEYS

        Plaintiffs claim that “despite [their] objection, the trial court sanctioned [plaintiffs] for
duplicative billing for seemingly-identical tasks being performed by two separate attorneys.”
Plaintiffs do not indicate with specificity what these “seemingly-identical tasks” were. A
reasonable inference, however, is that plaintiffs are taking issue with the fact that the defense
billed for defense attorney Wendy Hardt’s attendance at trial, even though it was Thomas
Derderian who performed the on-the-record work.

         The trial took place on June 13, 14, 15, 16, and 19 of 2017, and the defense billed for
both attorneys’ attendance at trial for the first four days only. 6 The court found the
trial-attendance billings for June 13, 14, and 16 reasonable. For the billing statement
encompassing the trial dates of June 13 and 14, it stated, “The [c]ourt has no concerns regarding
trial and travel time and intra-trial week preparations. These are skilled counsel and, as such, it
is commonly known that work does not end when the courtroom lights are dimmed.” For the
billing statement encompassing the trial date of June 16, it again stated, “[T]he [c]ourt finds
reasonable trial and travel time and much of the intra-trial week preparation.” However, the
court reduced the defense’s claimed billings for the trial date of June 15. For that date, the
defense had claimed 10.5 hours for Hardt to attend trial, 10.5 hours for Derderian to defend at
trial, and 2.8 hours for Derderian to prepare for the fourth day of trial. The court stated, “The
[c]ourt reduces by 10.5 hours those entries as apparently simply a double counting.” This
statement by the court is perplexing, because the court did not characterize the billings for June
13, 14, and 16 as “a double counting,” even though fees were sought for both attorneys’
attendance at trial on those dates, too.7 In addition, the transcript for June 15 shows that both
attorneys were present for trial. Because the trial court’s reasoning is inconsistent, we remand



        We also note that the primary unpublished Michigan case relied upon by plaintiffs is
factually distinguishable in that it involved an unsupported, sudden increase in requested fees
and an absence of billing statements. Such circumstances were not present here.
6
  The last day of trial encompassed closing arguments and jury instructions, but no taking of
testimony.
7
  Defendant mentioned both attorneys when seeking fees and attached both attorneys’ resumes to
its motion for fees, and the billing statements themselves delineated, using initials, which
attorney was billing for which hours.




                                                -6-
this case, while retaining jurisdiction, to allow the court to explain why it characterized the
billings for June 15 as a “double counting,” when it did not do so for the other trial dates.

        We also note that in Smith, 481 Mich at 534, the Supreme Court directed the trial court in
that case to consider whether it was “reasonable for plaintiff’s firm to have two lawyers ‘on the
clock’ during the trial.” The trial court in the present case did not make a specific finding
regarding this factor and must do so on remand.

                                    3. “BLOCKS OF TIME”

         Citing a federal district court case that was not reported in the Federal Supplement,
plaintiffs claim that the trial court impermissibly approved of defense counsel’s use of large
blocks of time in its billing statements. Plaintiffs claim that these allegedly large blocks of time
made it impossible to determine the reasonableness of the billings. But plaintiffs point to no
specific billings in making this complaint. An appellant may not leave it up to this Court to
unravel his arguments for him. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 499; 668
NW2d 402 (2003). In their response to defendant’s motion for attorney fees in the trial court,
plaintiffs did point to a specific billing. They stated that for June 13, 2017, Derderian spent 11
hours meeting with Branch and representing defendant at trial, and they complained that it was
not clear “how many hours were attributed to each task.” But the trial court presided over the
trial, so it could easily ascertain how many hours the trial encompassed on June 13. Plaintiffs’
argument about the use of “large blocks of time” is not a basis for any appellate relief.

                                    4. DISMISSED PARTIES

        Plaintiffs claim that the trial court allowed fees for work pertaining to dismissed parties,
Charles Blue and Chip Beck. The billing statement shows this work took place on November 11,
2016. For that date, defense counsel listed 6.5 hours for: “Trial preparation; telephone
conference with Rachel Mullin; review deposition transcript of Charles Blue and Chip Beck;
prepare examination of Charles Blue and Chip Beck.” The trial court approved this billing,
making note of the 6.5 hours spent for “trial preparation/deposition review.” It stated that the
hours claimed were significant yet reasonable, noting that “[c]ounsel was supremely prepared
and effective.” Plaintiffs claim that counsel failed to show that any review of Blue’s or Beck’s
deposition, or any examination of them, was needed to defend against plaintiffs’ case. Yet it is
reasonable to infer that such work—which was only part of the claimed 6.5 hours—was
necessary, given that Blue and Beck were originally plaintiffs in the case and were making
similar claims to those of Dunn and Ross. That counsel did not, in the end, call Blue or Beck as
witnesses is not dispositive with regard to the preparatory work involved. The trial court did not
err by approving this or any other billings involving Blue or Beck.

                                      5. ADJOURNMENTS

       Trial in this case was adjourned twice. The defense’s billing statements show that the
defense billed for 96 hours up to the day-of-trial adjournment on December 7, 2016, an
additional 78.4 additional hours up to the second day-of-trial adjournment on March 28, 2017,
and an additional 153.1 hours through the end of the case. Plaintiffs contend that the additional




                                                -7-
hours that the defense billed after the adjournments were unreasonable because it was for work
that had already been completed.

       The trial court addressed plaintiffs’ claims of redundancy. It noted that the case file was
large and required renewed review after adjournments, but it reduced by one hour the claimed
time for preparing an opening statement on March 13. For additional billings after the December
7 adjournment but before the March 28 adjournment, the court stated, in part:

       Of concern to the [c]ourt, in light of [p]laintiffs’ position, are some 17 hours’
       worth of time concerning deposition review and testimony preparation. To the
       [c]ourt on the information presented, some of this time seems excessive and/or
       duplicative. A balance, however, is needed. Some work had been performed on
       the case in mid-March to a much lesser degree. Skilled counsel, like defense
       counsel, certainly has the ability to quickly return to speed on a case with far more
       than average retention abilities. Accordingly, the [c]ourt sustains in part
       [p]laintiffs’ contention and reduces the 67.8 hours to 52.0 hours, finding that
       amount of time reasonable for the tasks listed. The [c]ourt is especially focused
       on the length of the phone conversations involved.

With regard to the additional billings before the start of trial on June 13, the court stated:

               Plaintiffs’ arguments gain further traction regarding [d]efendant’s June 15,
       2017 invoice for services, which lists some 83 hours, over a time period of 23
       days, with 13 entries. . . . [T]he [c]ourt does have some concerns about the entries
       for deposition review, client and witness meetings, and phone conversations. By
       the [c]ourt’s count, some 25 hours were spent on these matters without much in
       the way of particularization. The [c]ourt reduces these hours by 8. Moreover, a
       June 12, 2017 entry for 7 hours also seems not fully warranted. While some time
       had to be presented to prepare for [p]laintiffs’ “damages” expert, 7 hours is high,
       especially given the rest of the block entry seems repetitive. The [c]ourt reduces
       the request by 3 hours, finding the reduced hours to be reasonable.

The court also reduced by 2.5 hours the additional time claimed for after the start of trial. 8

        We find no abuse of discretion concerning the court’s approach to this issue. As the
court noted, “[S]ome repetition is needed when trials get rescheduled.” It is unreasonable to
assume that counsel, once prepared for trial, would simply remain prepared throughout the
ensuing months. That refreshing of the issues would be needed or additional areas for
exploration might arise is not unusual, and the court did reduce some of the claimed hours. We
find no basis for reversal.

                            6. INTEREST-OF-JUSTICE EXCEPTION


8
 The court also reduced the claimed time by 10.5 hours for “a double counting” as discussed
above in the analysis of plaintiffs’ “two attorneys” arguments.



                                                  -8-
        Plaintiffs argue that the trial court should have employed the interest-of-justice exception
to case-evaluation sanctions. Plaintiffs have established no plain error with regard to this
unpreserved argument. MCR 2.403(O)(11) states, “If the ‘verdict’ is the result of a motion as
provided by subrule (O)(2)(c), the court may, in the interest of justice, refuse to award actual
costs.” MCR 2.403(O)(2) states:

               For the purpose of this rule “verdict” includes,

               (a) a jury verdict,

               (b) a judgment by the court after a nonjury trial,

               (c) a judgment entered as a result of a ruling on a motion after rejection of
       the case evaluation.

The “verdict” here fell under subrule (O)(2)(a), not (O)(2)(c). Thus, there is no clear or obvious
error, Demski, 309 Mich App at 427, concerning the trial court’s failure to apply MCL
2.403(O)(11).

                                     C. JOINT SANCTIONS

        Plaintiffs claim that Dunn and Ross had different qualifications for the foreman position
and different damages calculations as testified to by an economics expert, and therefore
defendant had to tailor its defenses for each plaintiff. They claim that a plaintiff who is being
assessed case-evaluation sanctions is only responsible for fees associated with the defense
against that plaintiff’s theories of liability and evidence of damages, and that the court erred by
assessing case-evaluation sanctions jointly.

        This issue—whether the court could issue one case-evaluation award against two
plaintiffs—is primarily an issue of law. This Court reviews de novo issues of law. DeCosta, 486
Mich at 122.

        Plaintiffs rely on Ayre, 256 Mich App 517, for their argument. In that case, a jury trial
resulted in a verdict of no cause of action against Attwood Corporation for their allegedly
defective manufacturing of a fuel-system component for a boat. Id. at 519. Of the four
plaintiffs, three had accepted the pretrial case-evaluation awards, but one—Susanne Burnside—
had rejected it. Id. The trial court imposed case-evaluation sanctions against Burnside, which
she challenged. Id. at 520. This Court explained:

               The issue here . . . is the scope of one rejecting plaintiff’s liability, by
       operation of MCR 2.403(O), in a multiple-plaintiff action, when the defendant
       prevailed against all the plaintiffs. Is the rejecting plaintiff liable for all of a
       defendant’s attorney fees that accrued after case evaluation, including those
       associated with defending against the claims of the other plaintiffs that were also
       litigated in the same trial? The answer is no. The rejecting plaintiff is only liable
       for those attorney fees that accrued as a consequence of that plaintiff’s rejection,




                                                -9-
       which is determined by examining the rejecting plaintiff’s theories of liability and
       damage claims. [Id. at 522 (emphasis added).]

The Ayre Court went on to discuss the attorney fees associated with the theory of liability,
stating:

                The rejecting plaintiff is only liable for attorney fees associated with the
       defense against that plaintiff’s theories of liability. If coplaintiffs asserted
       different theories of liability than the rejecting plaintiff, only the attorney fees
       associated with the defense against the rejecting plaintiff’s theories of liability are
       taxable. On the other hand, if all the plaintiffs asserted the same theory of
       liability, the rejecting plaintiff is liable for the attorney fees associated with the
       defense against that theory of liability. Here, all the plaintiffs asserted the same
       theory of liability—Attwood manufactured a defective fuel system component.
       Therefore, the attorney fees defendant incurred following case evaluation with
       regard to the liability component of its defense—disproving that its fuel system
       component was defective—are recoverable as case evaluation sanctions against
       the sole rejecting plaintiff, because that is the risk plaintiff assumed by rejecting
       the case evaluation award. [Id. at 522-523 (emphasis added).]

        The Ayre Court then indicated that the theory of liability is only one-half of the analysis,
stating that the issue of damages also needed to be considered:

               However, the analysis does not end with consideration of the liability
       component of the litigation—the damages component must also be considered.
       The attorney fees associated with defending against the rejecting plaintiff’s
       alleged damages must also be determined. The damage claims asserted by
       plaintiffs, especially in personal injury and wrongful death causes of action, are
       necessarily as unique as each plaintiff in the cause of action. Accordingly, the
       rejecting plaintiff is only liable for the attorney fees incurred by the defendant in
       defending against the damages component of that plaintiff’s case. Here, plaintiff
       is not liable for the attorney fees defendant incurred defending against her
       coplaintiffs’ damage claims because defendant assumed that risk by rejecting
       those case evaluation awards.

               The net result of our analysis, then, is that the rejecting plaintiff is only
       liable for the attorney fees the defendant incurred, following case evaluation,
       defending against the rejecting plaintiff’s case only, as if the plaintiff and the
       defendant were the only litigants in the cause of action. One of the virtues of this
       result is its versatility. For example, when more than one rejecting plaintiff is
       liable for a defendant’s attorney fees, the attorney fees associated with defending
       against a single theory of liability would be divided equally between the liable
       plaintiffs, but each plaintiff would be responsible for the attorney fees associated
       with defending against their individual damage claims. However, rejecting and
       liable plaintiffs who pursued different or additional theories of liability would be
       solely liable for the defendant’s attorney fees associated with defending against
       their unique theories of liability, as well as for the fees associated with defending


                                                -10-
        against their individual damage claims. Similarly, when only some of the
        defendants in a multiple-defendant case are entitled to case evaluation sanctions,
        isolating each of the rejecting plaintiffs’ cases, i.e., theories of liability and
        damage claims, permits the proper allocation of liability. Considering each liable
        plaintiff’s case separately also ensures that liability is fairly allocated and
        simplifies the complicated and arduous task of calculating attorney fees—other
        virtues of this analysis. [Id. at 523-524 (emphasis added).]

The Ayre Court summarized its holding as follows:

                In summary, under MCR 2.403(O), a rejecting plaintiff who is liable for a
        defendant’s attorney fees is only liable for those fees that accrued after the case
        evaluation as a consequence of defending against the rejecting plaintiff’s theories
        of liability and damage claims. In this case, plaintiff was ordered to pay all of
        Attwood’s attorney fees that accrued after the case evaluation without regard to
        whether some of the fees were incurred defending against the coplaintiffs’
        damage claims. Accordingly, we vacate the order and remand for reconsideration
        in accordance with this opinion. [Id. at 529-530.]

The Ayre Court stated that cases should be analyzed as if the “party [liable for sanctions] and the
prevailing party were the only two litigants following the case evaluation[.]” Id. at 529.

        Ayre instructs that a court, in multiple-plaintiff cases, assess the theories of liability and
the claims for damages in determining case-evaluation awards. Plaintiffs contend that Dunn and
Ross had different theories of liability because they each had to demonstrate, separately, how
they were qualified for an interview and better-qualified for the foreman position than Jaeger.
Plaintiffs also contend that the damages evidence for each plaintiff was separate. Plaintiffs’
arguments are persuasive. The theory of liability in Ayre—the manufacture of a defective
fuel-system component—was a “singular” and uniform theory that would be identical—and
require an identical defense—no matter which plaintiff espoused the theory. The present case is
different because each plaintiff was proposing that he was qualified in an individualized manner
to be interviewed and hired for the foreman position. In addition, different damages calculations
were made for each plaintiff. For example, at one point defense counsel questioned plaintiffs’
economics expert specifically about Ross’s financial statements and not about Dunn’s. With
regard to damages, the Ayre Court noted that “damage claims” are “as unique as each plaintiff in
the cause of action.” Id. at 523.

         The Ayre Court stated, “[W]hen more than one rejecting plaintiff is liable for a
defendant’s attorney fees, the attorney fees associated with defending against a single theory of
liability would be divided equally between the liable plaintiffs, but each plaintiff would be
responsible for the attorney fees associated with defending against their individual damage
claims.” Id. at 524. Here, based on the substantial similarity between Ross’s and Dunn’s
theories of liability and damages claims, it is tempting simply to indicate that the trial court’s fee
award should be divided equally, because defendant would likely have spent an equal amount of
time on each plaintiff’s claim. But this is largely a fact-based determination based on the
evidence and defenses at trial, and it is a decision for the trial court—not this Court—to make in
the first instance. In addition, the trial court stated in its order that plaintiffs could “ ‘figure . . .


                                                  -11-
out’ ” which plaintiff should pay which portion of the award, and defendant is now arguing on
appeal that the liability for sanctions was joint and several.9 The award is simply not clear. On
remand, the award shall be clarified in accordance with Ayre.10

                                     III. DOCKET NO. 341908

         Plaintiffs contend that the trial court erred by failing to grant their request to instruct the
jury on a “failure to interview” theory of liability instead of instructing them merely about a
failure to promote.

     This Court reviews claims of instructional error de novo. Cox ex rel Cox v Bd of Hosp
Managers for City of Flint, 467 Mich 1, 8; 651 NW2d 356 (2002).

        A threshold question is whether plaintiffs are correct in asserting that the failure to be
interviewed could be the basis for an independent cause of action. In Laitinen v Saginaw, 213
Mich App 130, 131; 539 NW2d 515 (1995), the plaintiff had alleged reverse racial
discrimination under the ELCRA and the state and federal constitutions, but his case was
dismissed for lack of standing. He had obtained an interview for an available position with the
city of Saginaw and had the second-highest interview score. Id. at 131. However, the city’s
affirmative-action officer recommended someone else—a black man with a lower score—for the
job, and a supervisor recommended the highest-scoring candidate—a white man—as his first
choice, with the aforementioned black man as his second choice. Id. at 131-132. The black man
was hired for the position by the city manager. Id. at 132. The trial court concluded that the
plaintiff had no standing to sue because even if the black man had not been hired, the
highest-scoring man would have been hired instead; the trial concluded that the plaintiff could
therefore demonstrate no injury to him based on the defendant’s conduct. Id. at 133.

       This Court disagreed, stating:

               A claim of unlawful discrimination may be based upon loss of equal
       employment opportunity as well as loss of employment. Here, for example,
       plaintiff might establish that he was personally deprived of equal employment
       opportunity to the extent that minority job candidates were accorded preferential


9
  At the attorney-fee motion hearing, after noting that the final attorney-fee amount would be
determined at a later date, the court stated that it was “looking like” the attorney-fee award was
going to be joint and several because “it was a jointly tried case with one basically similar
claim.”
10
   The trial court concluded that the sanctions did not need to be apportioned because plaintiffs’
attorney insisted on trying the cases together and was willing to figure out how to split any award
of damages. The court thus appears to have applied a sort of “waiver” analysis. But merely
because plaintiffs’ attorney acquiesced to a joint trial and joint award of damages does not mean
that he acquiesced to a joint award of case-evaluation sanctions—they are separate
considerations. The court’s “waiver” analysis is unpersuasive.




                                                 -12-
       treatment in the selection process by virtue of the affirmative action officer’s
       recommendation authority. Proof that another job applicant, one that was more
       qualified than the plaintiff and also was discriminated against, would have been
       selected for the job but for the alleged discrimination merely provides a defense to
       certain types of remedies, such as job instatement or back pay. It does not
       necessarily establish a lack of standing or a lack of any right of recovery
       whatsoever, nor does it necessarily defeat plaintiff’s ability to establish a prima
       facie case of discrimination. If the job would have gone to [the highest-scoring
       man] in any event, plaintiff’s entitlement to economic damages would be
       adversely affected. However, plaintiff might still have a claim for noneconomic
       damages that he may have suffered, such as mental or emotional distress.
       Defendant’s determination to offer the position to a less qualified candidate
       because of his race not only foreclosed plaintiff’s opportunity to be considered for
       the available job opening, it also established a precedent that did not bode well for
       advancement in the future. [Id. at 132-133 (citations omitted; emphasis added).]

         Laitinen establishes that plaintiffs are correct in asserting that loss of an opportunity for a
job can be the basis for a discrimination claim under the ELCRA. In Laitinen, the issue was
alleged racial bias in recommendations made by the affirmative-action officer and the supervisor.
Here, the issue (as framed by plaintiffs on appeal) was alleged racial bias in deciding which
persons would be interviewed for the Swartz Creek position. Just as with the plaintiff in
Laitinen, even if Jaeger or another person was going to be ultimately selected for the Swartz
Creek position, plaintiffs could potentially obtain noneconomic damages for the mental distress
of failing to advance to the next level of the job-selection process merely because of their race.
The issue of noneconomic damages was discussed at trial, and in the jury instructions and verdict
form.

        Given that the failure to be interviewed can be the basis for a discrimination claim, the
question becomes whether the trial court erred by failing to give jury instructions on the failure
to interview. Plaintiffs’ strongest argument in this regard is based on the law-of-the-case
doctrine. In Kalamazoo v Dep’t of Corrections, 229 Mich App 132, 135; 580 NW2d 475 (1998),
the Court stated:

                The law of the case doctrine provides that if an appellate court has passed
       on a legal question and remanded the case for further proceedings, the legal
       questions thus determined by the appellate court will not be differently
       determined on a subsequent appeal in the same case where the facts remain
       materially the same. Likewise, a trial court may not take any action on remand
       that is inconsistent with the judgment of the appellate court. Thus, as a general
       rule, a ruling on a legal question in the first appeal is binding on all lower
       tribunals and in subsequent appeals. The law of the case doctrine applies only to
       questions actually decided in the prior decision and to those questions necessary
       to the court’s prior determination. The rule applies without regard to the
       correctness of the prior determination. The primary purpose of the rule is to
       maintain consistency and avoid reconsideration of matters once decided during
       the course of a single lawsuit. [Quotation marks and citations omitted.]



                                                 -13-
        In the prior appeal, a panel of this Court stated that “view[ing the evidence] in a light
most favorable to Dunn and Ross, a rational juror could have concluded that the proffered
reasons [for the hiring process] were a pretext and that race was a factor in defendant’s decision
to exclude Dunn and Ross from the interview process.” Dunn, unpub op at 12 (emphasis added).
The panel also stated that “the proper inquiry [for the trial court] involved determining whether
reasonable minds could differ on whether Dunn and Ross’ race was one factor that played into
defendant’s decision to deny them the opportunity to interview for the foreman position.” Id. at
12 (emphasis added). We acknowledge that the panel also said that “a rational trier of fact could
reasonably conclude that the interviews and ultimately the foreman position were given to
another person under circumstances that give rise to an inference of unlawful discrimination,” id.
at 10 (quotation marks and citation omitted; emphasis added), and that the circumstances “were
sufficient to support that defendant interviewed and hired individuals other than Dunn and Ross
under circumstances that support an inference of unlawful discrimination.” Id. at 11 (emphasis
added). An overall reading of the opinion, however, reveals that the panel was focusing on the
lack of interviews as opposed to the lack of being hired. See id. at 5-6, 11-12.

        The trial court, after remand, concluded that there was no independent cause of action for
the failure to be interviewed, and that this failure was, instead, necessarily connected to the
failure to be promoted. This conclusion is contrary to Laitinen, Dunn, and the law-of-the case
doctrine.

        Yet this does not mean that plaintiffs were necessarily entitled to the failure-to-interview
instruction. A plaintiff’s entitlement to a jury instruction depends on the evidence that is
ultimately presented at trial. See, e.g., Camden Fire Ins Co v Kaminski, 352 Mich 507, 511; 90
NW2d 685 (1958). And even if plaintiffs were entitled to the instruction, the Michigan Supreme
Court has stated that instructional error warrants reversal only if the error resulted in so much
unfair prejudice that failing to vacate the verdict would be inconsistent with substantial justice.
Cox, 467 Mich at 8. In making this pronouncement, the Court cited MCR 2.613(A). Id. This
rule states:

               An error in the admission or the exclusion of evidence, an error in a ruling
       or order, or an error or defect in anything done or omitted by the court or by the
       parties is not ground for granting a new trial, for setting aside a verdict, or for
       vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
       take this action appears to the court inconsistent with substantial justice. [MCR
       2.613(A).]

        There are a number of elements that, viewed collectively, make us question whether
plaintiffs’ requested instruction was appropriate, and ultimately lead us to conclude that failing to
vacate the verdict would not be inconsistent with substantial justice. First, even though this
Court in Dunn, unpub op at 5, referred to plaintiffs’ having brought the case based on the
“den[ial] . . . [of] the opportunity to interview for the foreman position,” a review of the second
amended complaint reveals that, under the pertinent “count,” plaintiffs specifically referred not




                                                -14-
to the failure to be interviewed but to the failure to be promoted.11 Second, the jury instructions
proposed by plaintiffs before trial were for the failure to be interviewed, 12 and on appeal
plaintiffs affirmatively assert that “it was the denial of the interview because of race that was the
adverse [employment] action being challenged.” But despite plaintiffs’ request to assert a cause
of action based solely on the failure to be interviewed, plaintiffs (1) early in the case were
preparing for economic-damages testimony based solely on the economic damages that resulted
from their not being promoted; and (2) were continuing to prepare for this economic-damages
evidence even after this Court’s earlier opinion, as demonstrated by documents referring to
economic-damages witnesses, reports, and documentation for plaintiffs. The preparation of this
evidence suggests that, contrary to plaintiffs’ assertion on appeal, they were indeed challenging,
at least in part, their failure to be promoted and how this impacted their earnings.

        Third, plaintiff’s proposed theory of the case, filed on March 15, 2017, stated, in its
introductory sentence, that “[t]his is a failure to promote case based on racial discrimination,” but
then stated, in conclusion, that plaintiffs “will demonstrate that [d]efendant engaged in unlawful
discrimination . . . by not allowing [p]laintiffs to interview for a position to which they were
qualified for [sic].” The proposed theory also noted that Jaeger was hired “despite not even
meeting the minimum requirements” for the Swartz Creek job. Plaintiffs themselves, therefore,
were conflating the failure to be interviewed and the failure to be promoted.13 This in turn
supports the trial court’s finding that the two claims were inextricably connected. Surely if the
failure to interview was the primary focus—or even one of the primary focuses—plaintiffs
would have, in their proposed theory of the case, focused on others who were interviewed and
not just on the one person (Jaeger) who was hired.

        Lastly, the evidence from plaintiffs themselves was extremely weak in terms of damages
for a “failure to be interviewed” cause of action. While Dunn testified that he felt “defeated” and
“hurt” when he did not get an interview, this bare statement must be read in the context of other
parts of his testimony. Plaintiffs’ attorney asked Dunn why he was hurt about not getting an
interview for the Swartz Creek position when he had not been upset about failing to obtain three
prior promotions, and Dunn answered:

               The person that they selected for the position is Mike Jaeger. I was more
       qualified. Me and [Ross] was more qualified than him because he’s from the


11
  The failure to be interviewed was mentioned in the complaint, but only in the “statement of
facts” section.
12
   Plaintiffs did, during trial, ask for a verdict form encompassing a question about being
interviewed “and . . . hired,” but plaintiffs aver that they included this “hired” language solely to
appease the trial court over its concerns that a failure to be interviewed cannot provide an
independent cause of action.
13
  Plaintiffs admitted in their brief in support of their motion for a new trial that these proposed
instructions were submitted before the trial court ruled in chambers that there was no separate
cause of action for a failure to be interviewed. Accordingly, plaintiffs cannot argue that, in
preparing the instructions, they were influenced by the trial court’s ruling.



                                                -15-
       engineer. It doesn’t have nothing to do with him personally, but it’s just the
       department that he was coming from . . . .

Dunn stated that he initiated the lawsuit because it “didn’t sit right with [him]” that Jaeger was
hired, given that Jaeger was “from the engineer department.” He said that Jaeger did “not hav[e]
the knowledge of running a garage.” Plaintiffs’ attorney asked Dunn what he wanted from the
jurors, and he answered:

               I want them to listen to the case and hear everything that you need to hear
       and decide on if you think it’s worth us being compensated for because of being
       deselected from somebody that wasn’t qualified more than us [sic], me and
       [Ross], for the Swartz Creek position . . . .

       Defense counsel asked Dunn if he had ever “heard Mr. Daly say or do anything other
than not interview you that indicates he doesn’t like black people,” and Dunn answered, “No.”
He admitted that he did not know why Daly chose not to interview him—and had not asked Daly
or anyone else for the reasons—but thought it was based on race because he believed that he and
Ross were more qualified than Jaeger. Defense counsel asked if Dunn was “speculating” that
Daly did not give him an interview because of his skin color, and Dunn replied, “That’s how I
feel.” The following exchange occurred between defense counsel and Dunn:

              Q. Is it your position that Mr. Daly didn’t want an African-American for
       the Swartz Creek position? Is that the position you’re taking in this lawsuit?

               A. It’s my position that I thought he just took me and [Ross] away from
       an interview and gave it to someone less qualified than us.

              Q. Okay, but he just took you and [Ross] away because he didn’t like you
       and [Ross] or because you’re black?

              A. At the time, I felt race was an issue, but more importantly, it’s Mike
       Jaeger not qualified over us. [Emphasis added.]

Defense counsel also asked, “[D]o you have any information to believe that John Daly
eliminated anybody [from the interview process] because of their skin color?” Dunn replied, “I
felt that that’s why he eliminated me and [Ross] because maybe because we wasn’t engineers.”
Earlier in his testimony, Dunn had expressed his concern about engineers being interviewed for
the Swartz Creek position, stating, “I thought to myself, wow, the engineers are really going to
replace us, the regular workers that do the job every day.”

        This testimony is not supportive of damages based on racial discrimination during the
interview process. Dunn did say that he was hurt about failing to be interviewed, but the gist of
his testimony was not that he was hurt because of being discriminated against for his race.
Instead, he was hurt because someone from the engineering department was interviewed and
ultimately selected for the position. While it is true that the earlier panel of this Court found a
genuine issue of material fact for trial regarding racial discrimination during the interview
process, the relevant proofs now are what was elicited at trial, after the earlier Court of Appeals
opinion.


                                               -16-
        Ross testified that it was painful for him to leave his position with the Road Commission,
but he emphasized that his pain was the result of not getting the job. He said that “getting a
foreman position, being recognized for your accomplishments, being recognized for your skills,
it’s an amazing feeling. So, it’s the opposite when it doesn’t happen.” He said that he should
have been given a promotion at the Road Commission. Ross’s testimony with regard to damages
connected to a “failure to be interviewed” cause of action is arguably even weaker than Dunn’s,
because Ross was plainly concerned about the fact that he did not get the job.

       During closing arguments, plaintiffs’ attorney stated:

               Through certain circumstantial evidence, plaintiffs will demonstrate [sic]
       that defendants [sic] engaged in unlawful discrimination based on race by not
       allowing plaintiffs to interview for the position that they were qualified for. This
       is our theory.

Plaintiffs’ attorney was bringing the “interview” issue in front of the jury. If Ross and Dunn had
suffered compensable humiliation, emotional distress, or other damages because of the failure to
be interviewed based on what they perceived as racial discrimination, surely plaintiffs’ counsel
would have elicited this at trial, even knowing that the trial court had ruled that it was going to
instruct the jury solely on the failure to promote.

        A reasonable interpretation of the case as a whole is that the gravamen of plaintiffs’ claim
was the failure to be promoted, with the failure to be interviewed being simply a part of that
claim. It almost seems disingenuous for plaintiffs to argue on appeal that the case was solely
about a failure to be interviewed, when they were clearly preparing for some time for an expert
on economic damages, who ultimately testified about the effects of not obtaining the promotion.
This is simply not a case where the complaint and subsequent documents or proceedings were
focusing on the humiliation or other harder-to-quantify types of damages related to being denied
an interview.14

        Viewing all the circumstances together, we find that it is a close question whether an
instructional error occurred, but even if one did, failing to vacate the jury verdict would not be
inconsistent with substantial justice. Cox, 467 Mich at 8.

                                        IV. CONCLUSION

        In Docket No. 341908, we affirm. In Docket No. 341907, we affirm in part but remand
for the trial court to (1) explain its reasoning for reducing the billing amounts for the date of June
15, 2017, and otherwise clarify its ruling regarding the “two attorneys” argument; and (2) make



14
   Various witnesses indicated that it was very common for a person to apply for promotions at
the Road Commission, fail to obtain them, and later obtain a different promotion. The trial
testimony did not support that the failure to be interviewed for the Swartz Creek position was in
any way prejudicial toward plaintiffs’ future chances for promotion at the Road Commission.



                                                -17-
an apportionment of case-evaluation sanctions between the two plaintiffs. No taxable costs,
neither party having prevailed in full. We retain jurisdiction.



                                                        /s/ Colleen A. O’Brien
                                                        /s/ Karen M. Fort Hood
                                                        /s/ Thomas C. Cameron




                                           -18-
                              Court of Appeals, State of Michigan

                                                ORDER
                                                                               Colleen A. O’Brien
Ronnie Dunn v Genesee County Road Commission                                    Presiding Judge

Docket No.     341907                                                          Karen M. Fort Hood

LC No.         13-100253-CD                                                    Thomas C. Cameron
                                                                                Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

                Proceedings on remand in this matter shall commence within 28 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, we direct the trial court to (1) explain its reasoning for reducing the billing
amounts for the date of June 15, 2017, and otherwise clarify its ruling regarding the “two attorneys”
argument; and (2) make an apportionment of case-evaluation sanctions between the two plaintiffs.. The
proceedings on remand are limited to this issue.

              The parties shall promptly file with this Court a copy of all papers filed on remand.
Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

               The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completion of the proceedings.



                                                            /s/ Colleen A. O’Brien




                                August 1, 2019
