            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



WEISS CONSTRUCTION CO., LLC,                                       UNPUBLISHED
                                                                   July 18, 2019
              Plaintiff/Counterdefendant-
              Appellee,

v                                                                  No. 340573
                                                                   Wayne Circuit Court
POSEN CONSTRUCTION, INC., and LIBERTY                              LC No. 12-001548-CK
MUTUAL INSURANCE COMPANY,

              Defendants,

and

CITY OF DEARBORN,

              Defendant/Counterplaintiff-
              Appellant.


Before: TUKEL, P.J., and JANSEN and RIORDAN, JJ.

PER CURIAM.

       Defendant, the city of Dearborn (“Dearborn”), appeals as of right the trial court’s order
granting summary disposition in favor of plaintiff, Weiss Construction Co, LLC (“Weiss”),
pursuant to MCR 2.116(C)(10), with respect to Dearborn’s counterclaim for statutory
conversion, MCL 600.2919a. We affirm.

                         I. FACTS AND PROCEDURAL HISTORY

        This action arises from a sewer overflow system construction project in the city of
Dearborn. Defendant Posen Construction, Inc. (“Posen”), was the general contractor for the
project and Weiss was a subcontractor. Weiss filed this action in 2012, alleging it was not fully
paid for its work. At issue in this appeal is Dearborn’s counterclaim against Weiss to recover
equipment that Dearborn allegedly purchased through Posen, but which Weiss refused to turn
over to Dearborn. In earlier proceedings, the trial court granted summary disposition in favor of



                                               -1-
Dearborn on its counterclaims for claim and delivery and common-law conversion, but
dismissed Dearborn’s counterclaim for statutory conversion, MCL 600.2919a. In a prior appeal,
this Court reversed the trial court’s dismissal of Dearborn’s statutory conversion claim, holding
that there was “a question of fact for the fact-finder whether [Weiss’s] use [of Dearborn’s
property] was personal to Weiss’s interests.” Weiss Constr Co, LLC v Posen Constr, Inc,
unpublished per curiam opinion of the Michigan Court of Appeals, issued May 17, 2016 (Docket
No. 325029), p 7 (“Weiss I”). This Court’s prior opinion in Weiss I provides the following
summary of the relevant background facts:

               This case involves claims arising from the construction of a sewer-
       overflow system in the city of Dearborn. The project was called the Dearborn
       CSO Contract No. 2 Project (hereinafter “project”). Dearborn owned the project,
       Liberty provided a payment bond for the project, Posen was the general
       contractor, and Weiss was a subcontractor hired by Posen. Weiss provided and
       installed certain mechanical systems for Posen’s use on the project. Weiss
       alleged that despite its full performance under its agreement with Posen, Posen
       failed to pay Weiss in full.

              Consequently, Weiss filed the present action against Dearborn, Posen, and
       Liberty. In Count I, Weiss asserted a bond claim against Liberty. Weiss alleged
       that Posen provided Dearborn with a payment bond, which listed Liberty as the
       surety. The bond was for the protection of claimants supplying labor and
       materials for the project, which included Weiss. Accordingly, Weiss asserted that
       Liberty is indebted to it for the mechanical systems it provided and installed. In
       Count II, Weiss asserted a breach of contract claim against Posen for failing to
       pay Weiss for the mechanical systems it provided and installed. Finally, in Count
       III, Weiss asserted an unjust enrichment claim against Posen and Dearborn,
       arguing that they were unjustly enriched by Weiss’s installation of the mechanical
       systems.

              Dearborn filed a counterclaim against Weiss, asserting claims for claim
       and delivery, statutory conversion pursuant to MCL 600.2919a, and common law
       conversion arising from property Weiss was in possession of that Dearborn
       alleged belonged to it.

               Dearborn, Posen, and Liberty moved for summary disposition based on res
       judicata, which the trial court granted. Posen had filed a lawsuit against Dearborn
       in 2009 related to construction delays on the project, which was resolved through
       case evaluation. The trial court found that although Weiss’s name was not
       mentioned in the 2009 complaint, exhibit A to the complaint detailed Posen’s
       damages and listed Weiss as part of that claim, which the trial court found was the
       exact claim for damages Weiss asserted in the current litigation. The trial court
       also determined that Dearborn’s counterclaim was barred by the doctrine of res
       judicata, finding that any counterclaims that could have been asserted to Weiss’s
       claim should have been asserted in the 2009 litigation. However, after
       reconsidering its order upon Dearborn’s motion, the trial court granted summary
       disposition in favor of Dearborn on its claim and delivery and common law

                                               -2-
       conversion claims, but dismissed Dearborn’s statutory conversion claim. [Weiss
       I, unpub op at 1-2.]

In the trial court’s November 2014 order granting summary disposition for Dearborn on its
counterclaims for claim and delivery and common-law conversion, the court ordered Weiss to
return the equipment to Dearborn, which it did.

       In Weiss I, Dearborn appealed the trial court’s dismissal of the statutory conversion
claim. This Court held that the trial court erroneously dismissed that claim because there was
record evidence that Weiss held the property as leverage to force Dearborn or Posen to pay for
storage and maintenance of the equipment, and this created a genuine issue of material fact
regarding whether such use was personal to Weiss’s interests. Weiss I, unpub op at 5-7, citing
Aroma Wines & Equip, Inc v Columbian Distribution Servs, Inc, 303 Mich App 441, 449; 844
NW2d 727 (2013).

         On remand, Weiss again moved for summary disposition of the statutory conversion
claim, this time arguing that because the property had been returned, Dearborn could not show
that it incurred “actual damages” under MCL 600.2919a(1)(a). The trial court ordered Dearborn
to submit a copy of its theory of damages to Weiss, which it did. Dearborn argued that although
the property had been returned, it was still entitled to recover the amount it paid for the
equipment, $638,797.42, which should be trebled to $1,916,392.26.

       On August 2, 2017, the trial court issued a written opinion and order granting Weiss’s
motion for summary disposition. The court agreed that in light of Weiss I, the question “whether
Weiss converted the property for its ‘own use’ is a question to be decided by the jury,” but
concluded that Weiss was entitled to summary disposition because “there is no genuine issue of
material fact on the issue of whether Dearborn sustained any ‘actual damages’ under MCL
600.2919a.” The court also determined that Dearborn was not entitled to recover its costs and
attorney fees from Weiss because Dearborn was not a “person damaged” under MCL
600.2919a(1). This appeal followed.

                                    II. LAW OF THE CASE

         Dearborn initially argues that the trial court disregarded this Court’s prior decision in
Weiss I when, on remand, it again granted summary disposition in favor of Weiss with respect to
Dearborn’s counterclaim for statutory conversion because this Court implicitly decided in Weiss
I that it was able to satisfy the “actual damages” element of a claim for statutory conversion,
otherwise this Court would not have remanded the case for further proceedings. We disagree.

        “The law of the case doctrine holds that a ruling by an appellate court on a particular
issue binds the appellate court and all lower tribunals with respect to that issue.” New Props, Inc
v George D Newpower, Jr, Inc, 282 Mich App 120, 132; 762 NW2d 178 (2009) (internal
quotation marks and citations omitted). “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.” Id. (internal quotation marks, brackets, and citations omitted).



                                                -3-
The law of the case applies “only to issues actually decided, either implicitly or explicitly, in the
prior appeal.” Grievance Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000).

        In Weiss I, this Court considered whether the trial court previously erred by dismissing
Dearborn’s claim for statutory conversion, but only addressed whether Dearborn could prove the
statutory requirement under MCL 600.2919a(1)(a) that the converted property be converted “to
the other person’s own use.” Weiss I, unpub op at 6-7. Although this Court held that the
evidence established a question of fact whether Weiss converted Dearborn’s property for Weiss’s
own use, this Court did not conclude that Dearborn was entitled to judgment in its favor on its
claim for statutory conversion. More significantly, this Court never addressed whether Dearborn
would be able to satisfy the “actual damages” element of MCL 600.2919a(1). The “actual
damages” element was not at issue in Weiss I, and thus, there was no reason for this Court to
address or decide that issue. This Court only addressed whether there was evidentiary support
for a finding that Weiss converted the property for its own use, which involved an issue separate
and distinct from the statutory requirement of “actual damages.” Weiss I, unpub op at 6-7.
Under these circumstances, there is no basis for concluding that the statutory requirement of
“actual damages” was implicitly decided in Weiss I.

       Because the law of the case doctrine applies only to issues actually decided in a prior
appeal, and this Court in Weiss I did not decide any issue involving the “actual damages”
element of a claim for statutory conversion, either explicitly or implicitly, the law of the case did
not prohibit the trial court’s plenary consideration of that issue on remand.

                                    III. ACTUAL DAMAGES

         Dearborn argues that the trial court erred by granting Weiss’s motion for summary
disposition pursuant to MCR 2.116(C)(10), with respect to Dearborn’s claim for statutory
conversion. Although Dearborn acknowledges that Weiss returned the disputed property after
the trial court found Weiss liable for common-law conversion, it argues that Weiss’s initial act of
converting the property for Weiss’s own use is alone sufficient to satisfy the requirement of
“actual damages” under MCL 600.2919a(1). We disagree.

        We review de novo a trial court’s decision on a motion for summary disposition. Spiek v
Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR
2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings,
affidavits, depositions, admissions, and any other documentary evidence submitted by the
parties, and view that evidence in the light most favorable to the nonmoving party to determine
whether a genuine issue of material fact exists. MCR 2.116(G)(5); Maiden v Rozwood, 461
Mich 109, 118-120; 597 NW2d 817 (1999). Summary disposition should be granted if, except as
to the amount of damages, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d
834 (1995). “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” Bahri v IDS Prop Cas Ins Co, 308 Mich App 420, 423; 864 NW2d 609 (2014).

       Dearborn’s statutory conversion claim is premised on MCL 600.2919a, which provides in
pertinent part:

                                                 -4-
              (1) A person damaged as a result of either or both of the following may
       recover 3 times the amount of actual damages sustained, plus costs and reasonable
       attorney fees:

              (a) Another person’s stealing or embezzling property or converting
       property to the other person’s own use.

                                                 * * *

             (2) The remedy provided by this section is in addition to any other right or
       remedy the person may have at law or otherwise.

        In MCL 600.2919a, “the Legislature intended to create a separate statutory cause of
action for conversion ‘in addition to any other right or remedy’ a victim of conversion could
obtain at common law.” Aroma Wines, 497 Mich at 340, quoting MCL 600.2919a. The statute
allows a “person damaged” as a result of conduct specified in the statute to recover “3 times the
amount of actual damages sustained, plus costs and reasonable attorney fees.” MCL
600.2919a(1) (emphasis added). At issue here is whether Dearborn can satisfy the requirement
of “actual damages,” as a distinct element necessary to establish a claim for statutory conversion.

         MCL 600.2919a(1) does not define the term “actual damages.” However, In Alken-
Ziegler, Inc v Hague, 283 Mich App 99, 103; 767 NW2d 668 (2009), this Court gave the term its
plain meaning, which is, “the actual loss a complainant suffered as a result of a defendant’s
criminal conduct.” In that case, the defendant embezzled $38,030.63 from his employer, the
plaintiff, and did not pay back any of the funds. Id. The plaintiff’s insurer reimbursed the
plaintiff for all but $5,000 and the trial court modified its judgment by reducing the actual
damages to $5,000. Id. This Court reversed, holding that an insurer’s contractual liability to the
plaintiff did not absolve the defendant of his liability under the statute. Id. This Court reasoned
that “[i]t is the embezzler’s misconduct, not the interplay between the embezzler and the victim’s
insurer, that creates actual damages.” Id. at 103-104.

         Unlike in Hague, there is no dispute that the property at issue has been returned. “If
property is eventually returned after a period of wrongful detention, the owner may nevertheless
be entitled to damages, including damages for the reasonable value of the property’s use during
the period of detention.” Magley v M & W Inc, 325 Mich App 307, 317; 926 NW2d 1 (2018),
citing Maycroft v The Jennings Farms, 209 Mich 187, 192-194; 176 NW 545 (1920) (stating that
when converted property is returned to the owner, either voluntarily or by suit, damages are
measured “not by the value of the property attempted to be converted, but by the deterioration in
value, if any, between the time of the illegal taking and the return to the owner, the reasonable
value of its use . . . during the period of detention, costs and expenses in recovering the same,
and perhaps other items in special circumstances”). Dearborn has not advanced any such theory
at trial or on appeal. Instead, Dearborn maintains that it is entitled to the market value of the
property at the time of conversion. That is not the proper measurement of damages in a case
where property has been returned. Dearborn did not claim, let alone provide evidence to support
a claim that the returned property was damaged or had deteriorated in value between the time of
conversion and its return, or that it was deprived of the reasonable value of its use during the
period of conversion. Instead, the unrebutted evidence shows that progress on the underlying

                                                -5-
sewer project had been stayed during the time that Weiss had possession of the equipment, which
indicates Dearborn was not harmed by its lack of access to the equipment during that period.

        Thus, even when viewing the evidence in the light most favorable to Dearborn, we cannot
say that Dearborn met its burden of establishing a genuine issue of material fact regarding any
“actual damages” to support recovery under MCL 600.2919a(1). Accordingly, we affirm the
trial court’s dismissal of Dearborn’s claim for statutory conversion under MCR 2.116(C)(10).

           IV. RIGHT TO A JURY DETERMINATION OF ACTUAL DAMAGES

         Dearborn argues that it was entitled to have a jury determine if it sustained actual
damages with regard to its claim for statutory conversion. A determination of damages is
ordinarily for the trier of fact to decide. Aroma Wines, 303 Mich App at 449. However, a jury is
charged only with resolving disputed facts, and thus a party is not entitled to a jury trial if no
disputed issues of material fact exist. Moll v Abbott Laboratories, 444 Mich 1, 26-28; 506
NW2d 816 (1993). As indicated, the trial court did not err by ruling that Dearborn failed to
establish a genuine issue of material fact regarding actual damages. Accordingly, Dearborn was
not entitled to submit this claim to a jury. Dearborn also suggests that this Court’s decision in
Weiss I entitled it to a jury determination of its claim for statutory conversion. As explained
earlier, this Court in Weiss I only held that there was an issue for the jury regarding whether
Weiss converted Dearborn’s equipment for its own use. Weiss I, unpub op at 6-7. On remand,
the trial court recognized that, under Weiss I, Dearborn was entitled to a jury determination of
that issue. However, that did not preclude the trial court from determining that Dearborn failed
to establish a genuine issue of material fact and thus obviated the need for a jury trial.

                              V. COSTS AND ATTORNEY FEES

        Dearborn also argues that the trial court erred by refusing to award it costs and attorney
fees under MCL 600.2919a(1). The trial court determined that Dearborn did not qualify as a
“person damaged” under this statute. Issues of statutory interpretation are reviewed de novo as
questions of law. New Props, Inc, 282 Mich App at 139. MCL 600.2919a(1) provides that
“[a] person damaged as a result of” the conversion of its property for another’s use, “may
recover 3 times the amount of actual damages sustained, plus costs and reasonable attorney
fees.” We agree with the trial court; having found that Dearborn could not establish actual
damages, Dearborn was not entitled to recover attorney fees pursuant to the plain language of the
statute. Even though Dearborn was able to recover its equipment, it did so on the basis of its
successful prosecution of its claims for claim and delivery and common-law conversion, which
do not allow for the recovery of costs and attorney fees. Accordingly, the trial court did not err
by refusing to award Dearborn its requested costs and attorney fees.

                      VI. REASSIGNMENT TO A DIFFERENT JUDGE

        Dearborn argues that if this case is remanded to the trial court, it should be reassigned to
a different judge on remand to preserve the appearance of justice. Because we are affirming the
trial court’s order, remand is not necessary. Therefore, it is not necessary to address this issue.

                                      VII. CONCLUSION


                                                -6-
Affirmed.

                  /s/ Jonathan Tukel
                  /s/ Kathleen Jansen
                  /s/ Michael J. Riordan




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