                             Court of Appeals, State of Michigan

                                              ORDER

                                                                          Donald S. Owens
Power Play International Inc v Del Reddy                                    Presiding Judge


Docket No.     325805                                                     Stephen L. Borrello


LC No.         2011-123508-CK                                             Cynthia Diane Stephens
                                                                            Judges



               The Court orders that the June 9, 2016 opinion is hereby, VACATED, and a new opinion
is attached.




                        A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on




                                JUL Z6 2016
                                       Date
                          STATE OF MICHIGAN

                           COURT OF APPEALS



POWER PLAY INTERNATIONAL, INC, and                                 UNPUBLISHED
GORDON HOWE,                                                       July 26, 2016

              Plaintiffs-Counter-Defendants-
              Appellees,

v                                                                  No. 325805
                                                                   Oakland Circuit Court
DEL REDDY,                                                         LC No. 2011-123508-CK

              Defendant-Appellant,
and

AARON HOWARD, MICHAEL REDDY, and
IMMORTAL INVESTMENTS, LLC,

              Defendants-Counter-Plaintiffs-
              Appellants.


Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        Following a jury trial, defendants Del Reddy, Aaron Howard, Michael Reddy, and
Immortal Investments, appeal as of right a judgment entered by the trial court in favor of
plaintiffs Power Play International, Inc. (PPI) and Gordon (Gordie) Howe, and against
defendants, jointly and severally, for $3,000,000. The judgment also ordered defendants to pay
$80,765 in attorney fees, plus costs of $4,245.04, as well as statutory interest. We affirm.

                         I. FACTS AND PROCEDURAL HISTORY

         This case arises from allegations that defendants unlawfully retained hockey merchandise
that was in their possession, but belonged to plaintiffs, and used it for their own benefit and
profit. The background facts presented here are drawn from this Court’s opinion in Power Play
Int’l, Inc v Reddy, unpublished opinion per curiam of the Court of Appeals, issued September 22,
2011 (Docket No. 298774), a previous matter involving the same parties.

              The underlying lawsuit was initiated in 2007 and was settled the following
       year. Pursuant to the terms of the parties’ settlement agreement, an injunction
       was issued permanently enjoining defendants from “possessing, using, selling,
                                               -1-
       storing, or in any way profiting from” a comprehensive list of items associated
       with Detroit Red Wing hockey legend Gordie Howe. Also, as set forth in the
       agreement, the court dismissed all remaining claims with prejudice. The
       settlement agreement further required defendants to return numerous items related
       to Howe, his family, and plaintiff Power Play International, Inc [by November 24,
       2008]. Using a 16-foot moving truck and two passenger vans, defendants indeed
       delivered hockey merchandise and memorabilia to plaintiffs as mandated by the
       settlement agreement. However, defendants also gave plaintiffs two invoices
       from a company named “Shred-It” that reflected the destruction of papers, tapes,
       CDs, and DVDs at the request of defendants. An affidavit from an operations
       manager employed by Shred-It confirmed the destruction of the items. There is
       no dispute that the items were associated with Gordie Howe, nor is there a dispute
       that the items were destroyed; rather, defendants contend that the destruction was
       consistent with the settlement agreement, whereas plaintiffs maintained that the
       destruction constituted a violation of the settlement agreement.

               Thereafter, plaintiffs, claiming a violation of the settlement agreement,
       filed a motion for entry of consent judgment seeking the stipulated/liquidated
       damages set forth in ¶ 4 of the settlement agreement, which was in the amount of
       $60,000, plus costs, attorney fees, and any sums improperly received by
       defendants. There is no dispute that ¶ 4 permits the entry of a consent judgment
       upon a violation of the permanent injunction, and a consent judgment and the
       permanent injunction were incorporated into the settlement agreement by way of
       reference and attachments as exhibits to the agreement. The controversy is
       whether the consent judgment can be entered for violation of the settlement
       agreement as opposed to a violation of the permanent injunction. The trial court,
       finding that a violation of the permanent injunction was necessary for plaintiffs to
       collect the stipulated damage award found in the consent judgment, denied
       plaintiffs’ motion with respect to entry of the consent judgment and an award of
       $60,000. The trial court also found, however, that defendants had breached the
       terms of the settlement agreement, and it ordered a hearing to establish the
       amount of damages to be awarded. [Id., p 1-2.]

This Court reviewed the language of the parties’ settlement agreement and the associated consent
judgment language and determined that the terms of the consent judgment are limited to
violations of the permanent injunction. Id. at 2-3. In other words, this Court determined that if
the alleged breach of the settlement agreement is a breach of the permanent injunction, the
aggrieved party may pursue entry of a consent judgment. Id. at 3. However, if the alleged
breach does not involve the permanent injunction, the aggrieved may not pursue entry of a
consent judgment. Id. This Court held that plaintiffs could pursue a claim for breach of the
settlement agreement, but they had to file a separate breach of contract action, and not a motion
for entry of consent judgment. Id. This Court reversed and remanded for further action
consistent with the opinion. Id.

        On remand, plaintiffs filed the current action, claiming breach of the parties’ settlement
agreement. The complaint was premised on the destruction of the items referenced in the Shred-
It invoices and an affidavit from a Shred-It employee. The invoices and affidavit indicate that on

                                               -2-
November 20, 2008, defendants requested that Shred-It destroy 8 bankers boxes containing 402
compact discs (CDs) and 861 tapes and 17 bankers boxes containing paper, and that on
November 22, 2008, defendants requested that Shred-It destroy 9 bankers boxes containing paper
and 3 bankers boxes containing 134 DVDs and 528 tapes.1

       Following motions for summary disposition submitted by both parties, the trial court
granted plaintiffs’ motion for summary disposition regarding liability and denied defendants’
motion for summary disposition regarding damages. After various motions in limine were
addressed by the trial court, the case proceeded to a jury trial on the issue of damages only. The
jury awarded $3,000,000 in damages to plaintiffs. Pursuant to a post-judgment motion and
following an evidentiary hearing regarding reasonableness, the trial court ordered defendants to
pay $80,765 in attorney fees, plus costs of $4,245.04, as well as statutory interest.

                                 II. SUMMARY DISPOSITION

        Defendants first argue on appeal that the trial court erred by granting plaintiffs’ motion
for summary disposition regarding liability and denying defendants’ motion for summary
disposition regarding damages. We review de novo a trial court’s decision regarding a motion
for summary disposition pursuant to MCR 2.116(C)(10), which tests the factual sufficiency of
the complaint, to determine whether the moving party is entitled to judgment as a matter of law.
Maiden v Rozwood, 461 Mich 109, 118-119; 597 NW2d 817 (1999). In doing so, we consider
“the pleadings, admissions, and other evidence submitted by the parties in a light most favorable
to the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868
(2008). Summary disposition is appropriate when there is no genuine issue of material fact. Id.
A genuine issue of material fact exists “when reasonable minds could differ on an issue after
viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital
Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

         Defendants first argue that the trial court erred by granting plaintiffs’ motion for
summary disposition regarding liability because the trial court erroneously relied on its decision
in the previous case, despite the fact that this Court reversed that ruling. Specifically, defendants
reference the trial court’s reliance on its June 3, 2010 order which found that defendants
“breached the settlement agreement by destroying items as evidenced by the two Shred-It
invoices and the affidavit of the employee of Shred-It.” Contrary to defendants’ assertion, this
Court did not reverse the trial court’s factual determinations regarding the breach of the
settlement agreement. Rather, it reversed the trial court’s decision because it concluded that
plaintiffs could not seek damages for breach of the settlement agreement through a motion for
entry of a consent judgment; they had to file a separate action for breach of contract. Power Play
Int’l, Inc, unpub op at 3.




1
  Defendants also filed a counter-complaint against plaintiffs in the current action. Nothing
related to the counter-complaint is being challenged on appeal, and therefore, will not be
discussed.


                                                -3-
        Further, defendants suggest the trial court merely reinstated its decision from the previous
case, but the trial court’s opinion reveals otherwise. In its opinion, the trial court explained that
it based its decision on a review of the record and pleadings in the current action as well as those
in the underlying action. It specifically found that “destroying items (i.e., shredding items) and
failing to turn them over to plaintiff constituted a breach of the settlement agreement.” While it
took into consideration its previous order, there was no error in this regard, particularly where
the facts did not change and plaintiffs supported their motion with the same Shred-It invoices
and employee affidavit.

                                  A. BREACH OF CONTRACT

        Defendants next argue that the trial court erred by granting plaintiffs’ motion for
summary disposition regarding liability, because a reading of the settlement agreement shows
that defendants complied with the agreement when they chose to permanently erase some items
rather than turn them over to plaintiffs. The rules of contract construction and interpretation are
applied to settlement agreements. Reicher v SET Enterprises, Inc, 283 Mich App 657, 663; 770
NW2d 902 (2009). When construing a contract, the court looks to the language and gives the
words used their plain and ordinary meanings. Id. at 664. If a contract provision is
unambiguous, it reflects the parties’ intent as a matter of law and the language is construed and
enforced as written. Id. at 664-665.

       Defendants next argue that, pursuant to ¶ 3(c) of the settlement agreement, not every item
in defendants’ possession that depicted, related to, or pertained to the Howe family had to be
turned over to plaintiffs. Defendants argue that they could opt to permanently erase some items,
and that is exactly what they did with respect to their personal property that “in anyway may
have depicted, related to, or pertained to the Howe family.” Therefore, defendants assert that
they complied with the settlement agreement.

        By its plain language, ¶ 3(b) of the settlement agreement directs defendants to turn over
to plaintiffs “originals and copies of any and all films, CD’s, and other analog, electronic, or
digital media depicting any image of Plaintiffs and/or members of the Howe Family” and “all
personal property depicting, relating, or in any way pertaining to Plaintiffs and/or any member
of the Howe Family, signed or unsigned, personalized or not, including but not limited to . . .any
other item of physical property.” (Emphasis added.) Paragraph 3(c) provides that defendants
must affirm under oath that they will comply with the requirements of ¶ 3(b) and further requires
that defendants must not retain anything in their possession which relates to the Howe Family
and must permanently erase or turn over “all sources of digital or electronic copies.”2



2
  Defendants argue that the trial court misquoted ¶ 3(c) of the settlement agreement in its
opinion, when it quoted ¶ 3(c) as providing that “all sources of digital or electronic copies shall
be permanently erased and turned over to Plaintiff.” (Emphasis added.) Defendants are correct
that the settlement agreement actually reads “all sources of digital or electronic copies shall be
permanently erased or turned over to Plaintiff.” (Emphasis added.) However, despite
defendants’ assertion, the trial court’s decision was not dependent on its misquoting of ¶ 3(c).

                                                -4-
        Defendants equate permanent erasure with destruction, but the agreement does not direct
defendants to destroy any property. Rather, the agreement directs defendants to permanently
erase all sources of digital or electronic copies of materials. While the erasure of digital or
electronic materials may destroy them, the physical destruction of materials by shredding does
not constitute erasure. The Shred-It invoices state that it shredded and destroyed 402 CDs and
861 tapes on November 20, 2008, and 528 tapes and 134 DVDs on November 22, 2008.
Paragraph 3(b) specifically directs defendants to turn over to plaintiffs “any and all films, CD’s,
and other analog, electronic, or digital media depicting any image of Plaintiffs.” (Emphasis
added.) There is no suggestion that the items destroyed by Shred-It were sources of digital or
electronic copies. As plaintiffs point out, defendants maintained websites and other digital
media using plaintiffs’ trademarks and images, which is what ¶ 3(c) directed to be permanently
erased because those items are incapable of being turned over to plaintiffs. Therefore, according
to the settlement agreement, the items in the Shred-It invoices should have been delivered to
plaintiff.

        Defendants also argue that the trial court inferred some type of inventory requirement in
the settlement agreement that required defendants to provide plaintiffs an opportunity to
inventory items before defendants permanently erased or destroyed them. Defendants argue that
the fact that plaintiffs were not given an opportunity to inventory the items on the Shred-It
invoices cannot be a breach of the settlement agreement. However, the trial court’s opinion does
not reference, even implicitly, that it found that defendants breached the settlement agreement by
failing to provide plaintiffs with an opportunity to inventory the property that was destroyed. In
fact, at the hearing on the motion, in response to defendants’ argument that there was no
inventory requirement in the settlement agreement, the trial court specifically stated, “I’m not
saying that the agreement said that you were to give them a shredding list, or what you had
shredded by this shredding company, I agree with you wholeheartedly, there’s nothing in the
agreement that says that you were to do that.” Therefore, this argument is without merit.

        Defendants next argue that the Shred-It invoices do not prove that defendants destroyed
property pertaining to plaintiffs, and therefore there was no evidence that they breached the
settlement agreement. Defendants are correct that plaintiffs have no way of proving exactly
what defendants destroyed. However, this does not preclude a finding that defendants breached
the settlement agreement. Even viewing the evidence in a light most favorable to defendants,
there is no genuine issue of material that defendants destroyed property in violation of the
settlement agreement. Defendants do not contest that they destroyed the items listed on the
invoices, which included CDs, DVDs, and tapes. As discussed earlier, defendants were required
to turn over these types of items to plaintiffs. Additionally, although defendants argue that the
items were their personal property, the settlement agreement is clear that defendants were
required to turn over “all personal property depicting, relating, or in any way pertaining to
Plaintiffs and/or any member of the Howe Family.”

       Further, although defendants attempt to argue on appeal that the destroyed property did
not depict, relate, or pertain to plaintiffs or the Howe family, they did not actually dispute with

Rather, the trial court’s decision was based on the fact that the settlement agreement required
defendants to turn over all physical property to plaintiffs, which they did not do.


                                                -5-
the trial court that the items were associated with plaintiffs or the Howe family. Defendants rely
on the affidavit of Michael Reddy dated February 16, 2012, in which he attests that the property
that was destroyed was defendants’ property and included “personal family recordings, personal
audio voicemail message tapes, personal/privileged court documents, and other documents from
my other businesses that were not in any way related to Plaintiffs’ or the Howe family.”
However, in that same affidavit Reddy attests that he and Aaron Howard had Shred-It shred
“other materials as mandated by the Settlement Agreement” and that he provided plaintiffs with
the two Shred-It invoices to prove that defendants complied with the settlement agreement.

        It appears that Reddy is attesting that only the documents from his business were not
related to plaintiffs. This interpretation is supported by defendants’ response to plaintiffs’
motion for summary disposition, in which defendants reference Reddy’s affidavit and indicate
that it was only the documents from Reddy’s business that had nothing to do with plaintiffs or
the Howe family, and defendants certainly imply that the other items that were destroyed, which
included the tapes, may have related to plaintiffs. For example, in their response, defendants
stated that they complied with the settlement agreement when they took the items to Shred-It and
permanently erased “[d]efendants’ own personal property which may have related to the Howe
Family.” Defendants go on to state that they provided plaintiffs the invoices as evidence that
they “retained nothing in their possession that may relate to the Howe family.” Moreover,
defendants argue in their response that ¶ 3c allowed them to destroy their own property that may
relate to the Howe family. Defendants cannot argue that there is no evidence that items they
destroyed depicted, related, or pertain to plaintiffs or the Howe family, but then argue that they
destroyed the property in accordance with the settlement agreement. Clearly, there would be no
reason to destroy defendants’ personal property and provide plaintiffs with invoices indicating
such if the property did not depict, relate, or pertain to plaintiffs or the Howe family.

         As this Court stated in its prior opinion, “There is no dispute that the items were
associated with Gordie Howe, nor is there a dispute that the items were destroyed; rather,
defendants contend that the destruction was consistent with the settlement agreement, whereas
plaintiffs maintained that the destruction constituted a violation of the settlement agreement.”
Therefore, although plaintiffs could not prove the content of the property destroyed by
defendants, because defendants did not dispute that the items (particularly the tapes, CDs, and
DVDs) were associated with plaintiffs or the Howe family to show that a genuine issue of
material fact exists, the trial court did not err by granting plaintiffs summary disposition on
liability. See Karaus v Bank of New York Mellon, 300 Mich App 9, 17; 831 NW2d 897 (2012)
(stating that once the moving party meets its burden of supporting its position that there is no
factual dispute, the burden shifts to the opposing party to show that a genuine issue of material
fact exists).

        Finally, defendants argue that the Shred-It invoices and affidavit of Aaron Frezza, Shred-
It’s operations manager, are inadmissible, and therefore cannot be used by plaintiffs to evidence
a breach by defendants. First, with regard to the invoices, defendants’ attempt to have them
excluded is disingenuous particularly where they have relied on the invoices to establish that
they destroyed the property in compliance with the settlement agreement. Defendants should not
be permitted to rely on the invoices for their purposes and argue that they are inadmissible for
plaintiffs’ purposes. Additionally, we decline to address defendants’ unsupported argument that


                                               -6-
the invoices are hearsay, particularly where that are likely admissible under MRE 803(6) as a
business record.

        Second, defendants assert that Frezza’s first affidavit is unreliable because in the January
13, 2012 affidavit, he recanted the statements made in the earlier affidavit. However, Frezza did
not recant anything he stated in the first affidavit. He merely provided further explanation with
regard to the statements he made in that affidavit, specifically what type of knowledge he had
regarding the information in the invoices, i.e., whether he simply knew the items listed were in
fact destroyed or whether he knew what exactly was contained on the items that were destroyed.
Therefore, this argument is without merit.

         Accordingly, the trial court did not err by granting summary disposition to plaintiffs on
liability.

                                         B. DAMAGES

        Defendants next argue that the trial court erred by denying their motion for summary
disposition regarding plaintiffs’ inability to prove damages as a result of defendants’ alleged
breach. Damages are an element of a breach of contract claim and “[t]he party asserting a breach
of contract has the burden of proving its damages with reasonable certainty, and may recover
only those damages that are the direct, natural, and proximate result of the breach.” Alan Custom
Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003). Damages cannot be based
on speculation or conjecture, but reasonable certainty does not require mathematical precision.
Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 108; 535 NW2d 529 (1995). Where the fact
of damages has been established and the only question to be decided is the amount, the certainty
requirement is relaxed. Id.

        Plaintiffs presented sufficient evidence to show that there was a genuine issue of material
fact regarding damages. Plaintiffs were not required to prove damages with a mathematical
certainty. Rather, the reasonable inferences from the evidence presented shows that plaintiffs
suffered an injury, see Bergen v Baker, 264 Mich App 376, 387; 691 NW2d 770 (2004) (stating
that circumstantial evidence can be used to determine whether a genuine issue of material fact
exists for summary disposition), and that they could prove damages with reasonable certainty.
Specifically, plaintiffs presented the invoices that showed defendants destroyed numerous tapes,
CDs, and DVDs. Defendants admitted they destroyed the items, and did not contest that they
related to the Howe family. In fact, Michael Reddy stated that he destroyed them to comply with
the settlement agreement—an agreement which required defendants to rid themselves of all
things pertaining to plaintiffs and the Howe family. Mark Howe attested in his affidavit that
plaintiffs did not receive any films of the Howe family in the property returned by defendants,
despite the fact that Aaron Howard and Del Reddy “routinely and systematically filmed, taped,
recorded, and photographed” the Howe family “in virtually every conceivable setting, including
at ice hockey rinks, during appearances, trips, signings, at home, on vacation, with friends, fans
and peers.” Howard Baldwin, a movie producer (and personal acquaintance of Gordie Howe)
who produced a movie about Gordie Howe, also attested in his affidavit that he would have paid
a minimum of six figures for personal footage of the Howes to aid in his movie production about
the life of Gordie Howe. He stated that such footage was “invaluable” and that he had little
available to him. Viewing the evidence in a light most favorable to plaintiffs, the nonmoving

                                                -7-
party, reasonable inferences would permit the jury to find that the items destroyed related to the
Howes and plaintiffs would have received a substantial sum of money from Baldwin for their use
in his movie. Therefore, there was a genuine issue of material fact regarding damages, and the
trial court did not err by denying defendants’ motion for summary disposition regarding
damages.

                        III. QUALIFICATION OF EXPERT WITNESS

        Defendants next argue that the trial court erred by denying its motions for judgment
notwithstanding the verdict (JNOV) and new trial because plaintiffs’ damages expert, Howard
Baldwin, was not qualified to give expert testimony. We review de novo a trial court’s denial of
a motion for JNOV. Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 131; 666
NW2d 186 (2003). The evidence and all legitimate inferences are reviewed in a light most
favorable to the nonmoving party. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000).
A motion for JNOV should only be granted if the evidence fails to establish a claim as a matter
of law. Id. “If reasonable jurors could have honestly reached different conclusions, the jury
verdict must stand.” Morinelli v Provident Life & Accident Ins Co, 242 Mich App 255, 260-261;
617 NW2d 777 (2000).

       Additionally, we review for an abuse of discretion a trial court’s decision to grant or deny
a motion for a new trial, Shuler v Mich Physicians Mut Liability Co, 260 Mich App 492, 509;
679 NW2d 106 (2004), and its ruling regarding a proposed expert’s qualifications to testify,
Kiefer v Markley, 283 Mich App 555, 556; 769 NW2d 271 (2009). “An abuse of discretion
occurs when the decision results in an outcome falling outside the range of principled outcomes.”
Zaremba Equip, Inc v Harco Nat’l Ins Co, 302 Mich App 7, 21; 837 NW2d 686 (2013).

       MRE 702 governs the admissibility of expert testimony and provides:

               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based on sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

As the gatekeeper, “The trial court has an obligation under MRE 702 ‘to ensure that any expert
testimony admitted at trial is reliable.’ ” Clerc v Chippewa County Way Memorial Hosp, 267
Mich App 597, 602; 705 NW2d 703 (2005), quoting Gilbert v DaimlerChrysler Corp, 470 Mich
749, 780; 685 NW2d 391 (2004).

        Notably, although the trial court instructed the jury regarding expert witness testimony,
plaintiffs never moved to qualify Baldwin as an expert at trial and plaintiffs never elicited expert




                                                -8-
testimony from Baldwin.3 Rather, a review of his testimony reveals that Baldwin merely
provided lay witness testimony based on his experience producing a film about Gordie Howe and
other films.

       MRE 701 addresses opinion testimony by lay witnesses and provides:

               If the witness is not testifying as an expert, the witness’ testimony in the
       form of opinions or inferences is limited to those opinions or inferences which are
       (a) rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.

Further, regarding lay witnesses, MRE 602 provides,

               A witness may not testify to a matter unless evidence is introduced
       sufficient to support a finding that the witness has personal knowledge of the
       matter. Evidence to prove personal knowledge may, but need not, consist of the
       witness’ own testimony. . . .

        Baldwin testified that he had been producing films for over 30 years. Movies he has
produced include, Ray, Sahara, Mystery Alaska, and Sudden Death. Baldwin also testified that
he recently produced a film about Gordie Howe in 2012, entitled Mr. Hockey, which was
released in Canada in April 2013. He testified that they had to recreate most of the memorabilia
and footage because the Howe family was unable to supply it. In making Ray, Baldwin testified
that he had access to personal footage of Ray Charles, which was “really helpful” for authenticity
of the movie, especially to recreate scenes. Baldwin testified that having access to home movies
or personal footage also allows the actors to become acquainted with the character they are
playing to learn their mannerisms and particular nuances.

         Baldwin further testified that as a producer he was familiar with production costs. He
testified that he produced at least ten films where he had to acquire “life rights,” and testified that
it could cost anywhere from $500,000 to over $1,000,000 to acquire life rights, memorabilia, and
personal footage and images, depending on the extent that he would use them. In lieu of


3
  Aside from the trial court’s brief reference that “plaintiffs’ expert” (referring to Baldwin) would
be called to testify via Skype, defendants were the only people to refer to Baldwin as plaintiffs’
expert when they attacked his qualifications in their opening statement. Plaintiffs asserted at oral
argument that they did move to qualify Baldwin as an expert and were asked by the trial court to
lay a foundation. However, a review of the record shows that the only time plaintiffs were asked
to lay a foundation was when defendants objected to Baldwin’s testimony regarding the value of
the footage relating to Howe. Defendants’ objections were based on speculation, lack of
foundation (no facts in evidence), and relevance. The trial court never formally declared
Baldwin to be an expert. At most, the trial court and the parties all seemed to act as if he were
qualified as an expert. However, all, or almost all, of his testimony was lay testimony based on
his own experience. As noted in footnote 4, to the extent Baldwin gave expert testimony, its
admission was harmless error.


                                                 -9-
personal footage for Mr. Hockey, he did obtain some playing footage from the National Hockey
League, which was about a minute and a half in length, and which cost him $75,000. Baldwin
testified that normally the NHL charges $150,000, but he received a “friends and family
discount.” When asked what value he would place on the destroyed property, Baldwin testified
that if all of the 1,389 tapes that were destroyed contained images or footage of Gordie Howe
and were available to him for a film, it would be “incredibly valuable” and worth millions of
dollars, given that he paid $75,000 to the NHL (which normally charges $150,000) for one and a
half minutes of playing footage. However, he acknowledged that he could not place an exact
monetary figure on the property without knowing exactly what was on the tapes.

         While Baldwin’s testimony certainly involves some type of specialized knowledge, it did
not rise to the level of expert testimony. Specifically, Baldwin did not provide an opinion as to
the value of the destroyed property containing personal footage of Gordie Howe based on movie
industry standards as a whole, and his testimony did not involve principles and methods. Rather,
he testified what he would have paid for personal footage of Gordie Howe based on his
experience producing a movie about Gordie Howe and other sports celebrities. His testimony
was based on personal knowledge of the matter and was helpful to the determination of a fact in
issue, i.e., the value of personal footage of Gordie Howe. Therefore, the trial court did not err by
denying defendants’ motions for JNOV or new trial on this ground because Baldwin provided
proper lay opinion testimony pursuant to MRE 602 and 701.4

                               IV. IMPEACHMENT EVIDENCE

        Defendants next argue that the trial court prevented them from impeaching Baldwin
regarding his prior deposition testimony, and therefore, it should have granted defendants’
motion for a new trial. Generally, we review for an abuse of discretion a trial court’s decision to
grant or deny a motion for a new trial, Shuler, 260 Mich App at 509, and to admit or exclude
evidence, Barrett v Kirtland Community College, 245 Mich App 306, 325; 628 NW2d 63 (2001).
However, defendants failed to preserve this issue by making an offer of proof at trial. Under
MRE 103(a)(2), the proponent of the excluded evidence must make an offer of proof to preserve
the issue for appeal, unless it is apparent from the context of the questions asked. Phinney v
Perlmutter, 222 Mich App 513, 529; 564 NW2d 532 (1997), overruled on other grounds Garg v
Macomb Co Community Mental Health Servs, 472 Mich 263; 696 NW2d 646 (2005). In this



4
  Even if we were to conclude that Baldwin’s specialized knowledge of film production costs
rendered his testimony expert testimony, the admission of his testimony would be harmless error.
See MCR 2.613(A) (An error in the admission of evidence is not grounds for granting a new trial
or setting aside a verdict “unless refusal to take this action appears to the court inconsistent with
substantial justice”) and Craig v Oakwood Hosp, 471 Mich 67, 85; 684 NW2d 296 (2004)
(noting that reversal on the basis of the trial court’s failure to adequately perform its gatekeeping
obligation to determine reliability of the expert testimony is subject to the harmless error rule of
MCR 2.613(A)). A review of the record shows that Baldwin was qualified to provide expert
testimony regarding the costs associated with film production based on his knowledge and
experience as a film producer for over 30 years. MRE 702.


                                                -10-
case, it is not apparent from the context of the questions asked what the substance of the
impeachment evidence was. Defense counsel never attempted to make a record of the trial
court’s ruling, take issue with the ruling, or ask a substantive question in an attempt to impeach
Baldwin. Rather, the record of the trial implies that defense counsel was satisfied with the ruling
made during the bench conference. It was particularly imperative in this case that defendants
make a record of the alleged error, particularly where they claim that the trial court made a ruling
at the bench conference that prevented them from doing any effective cross-examination of
Baldwin, but the trial court stated that it was merely preventing defense counsel from
questioning Baldwin about his de bene esse deposition, which was stricken from the record at
defendants’ request.

        Further, defendants’ argument that the substance of the evidence was made known in
their motion in limine filed before trial is unavailing. The motion in limine sought to exclude all
testimony of Baldwin and did not involve the impeachment issue at hand. Based on the record, it
appears defendants did not inform the trial court what they wished to impeach Baldwin on until
they filed their motion for a new trial. Without a record, this Court is left to speculate as to what
defendants intended to do at trial and what exactly the trial court ruled on during the bench
conference. Therefore, we decline to address this unpreserved issue.5

                                V. SPOLIATION INSTRUCTION

        Defendants next argue that the trial court erred by giving a spoliation instruction. We
review claims of instructional error de novo, examining the instructions as a whole to determine
whether an error occurred. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
However, the applicability of a jury instruction to a given situation is within the sound discretion
of the trial court, and a trial court’s decision in this regard will be reviewed by this Court for an
abuse of discretion. Jackson v Nelson, 252 Mich App 643, 647; 654 NW2d 604 (2002). “The
instructions should include all the elements of the plaintiff’s claims and should not omit material
issues, defenses, or theories if the evidence supports them.” Case, 463 Mich at 6. “Even if
somewhat imperfect, instructions do not create error requiring reversal if, on balance, the
theories of the parties and the applicable law are adequately and fairly presented to the jury.” Id.




5
  Even if we were to conclude that defendants properly preserved this issue for appeal, any error
in preventing defendants from using the deposition to impeach Baldwin was harmless. See MRE
103(a) (stating that error may not be predicated on a ruling which excludes evidence unless a
substantial right of the party is affected). It appears the primary testimony from Baldwin’s de
bene esse deposition that defendants wished to impeach Baldwin with were his statements
regarding how he calculated the value of the destroyed property. Specifically, he stated, “There
are no facts without actually knowing what was—what we’re talking about here. So everything
is hypothetical. Everything is hypothetical.” Using Baldwin’s deposition to impeach his trial
testimony likely would not have made a difference where Baldwin’s trial testimony makes it
clear that he was giving an estimate of damages and that he could not place a specific monetary
value on the images and footage without knowing the content.


                                                -11-
Reversal is not required unless the failure to do so would be inconsistent with substantial justice.
Id.

        Defendants argue that a spoliation instruction was not warranted because the alleged
spoliation flowed from the same acts that constituted the breach of contract, and spoliation only
occurs when evidence is destroyed after the cause of action accrues. Defendants argue that a
spoliation instruction in this case creates a tort of spoliation which is not recognized under
Michigan law. However, defendants do not cite any case law which states that spoliation only
occurs after the cause of action accrues, and this Court has specifically stated, “[e]ven when an
action has not been commenced and there is only a potential for litigation, the litigant is under a
duty to preserve evidence that it knows or reasonably should know is relevant to the action.”
Brenner v Kolk, 226 Mich App 149, 162, 573 NW2d 65 (1997). Accordingly, defendants’
argument is without merit. The instruction was appropriate so long as it was supported by the
evidence. Case, 463 Mich at 6.

       The trial court instructed the jury as follows:

               Members of the jury, I instruct that Defendants Aaron Howard, Del
       Reddy, Mike Reddy, and Immortal Investments, LLC, in this case, has not offered
       the evidence of the property destroyed. As this evidence was under the control of
       the Defendants and could have been produced by them, and no reasonable excuse
       for Defendants’ failure to produce the evidence was given, you may infer that the
       evidence would have been adverse to the Defendants.

This instruction comports with MI Civ JI 6.01(a). However, defendants argue that MI Civ JI
6.01(d) was the more appropriate instruction, which provides,

       The [plaintiff/defendant] in this case has not offered [testimony of
       [name]/[Identify exhibit.]]. You may infer that this evidence would have been
       adverse to the [plaintiff/defendant] if you believe that the evidence was under the
       control of the [plaintiff/defendant] and could have been produced by [him/her],
       and no reasonable excuse for [plaintiff’s/defendant’s] failure to produce the
       evidence has been shown.

        Defendants argue that this instruction was more appropriate because the trial court never
made any specific finding that defendants lacked a reasonable excuse to destroy the evidence.
However, MI Civ JI 6.01(d) was not appropriate based on the facts of the case. MI Civ JI
6.01(d) is to be read where there is a question of fact regarding a party’s control and reasonable
excuse. It was undisputed that the evidence was within defendants’ control. They admitted that
it was their personal property which may have related to plaintiffs and that they destroyed it.

        The instruction given by the trial court comported with the evidence at trial and does not
require reversal. MI Civ JI 6.01(a) is to be read where the trial court finds that the evidence was
under the party’s control, the party could have produced the evidence, and the party has no
reasonable excuse for failing to produce the evidence. There was no question that defendants did
in fact destroy the property in violation of the settlement agreement. Although defendants argue
that they reasonably thought they were destroying the property in compliance with the settlement

                                                -12-
agreement, Del Reddy also admitted at trial that he destroyed the property, in part, because he
was being vindictive towards Mark Howe. Further, the settlement agreement plainly states that
defendants were required to turn over to plaintiffs all personal property relating to the Howe
family, and as discussed, defendants never contested that the property that was destroyed related
to the Howe family. Accordingly, there is no evidence that defendants had a reasonable excuse
for destroying the property, and therefore, the trial court did not err by reading MI Civ JI 6.01(a).

                                     VI. ATTORNEY FEES

       Defendants next argue that the trial court erred by granting plaintiffs’ post-judgment
motion for contractual attorney fees. Defendants do not challenge the amount or reasonableness
of the attorney fees. They only argue that the attorney fees were part of plaintiffs’ breach of
contract claim and had to be specifically pleaded and proven at trial, not in a post-trial motion.
Whether a party is entitled to attorney fees and costs pursuant to a contract is a question of law
that we review de novo. Fleet Business Credit, LLC v Krapohl Lincoln Mercury Co, 274 Mich
App 584, 588; 735 NW2d 644 (2007).

       Paragraph 5 of the settlement agreement provides in relevant part, “The prevailing party
in any proceeding to enforce this agreement, or any remedy contemplated by this Agreement,
shall be entitled to recover, in addition to any other remedy, actual costs and attorney fees
incurred in the enforcement.”

         This Court has specifically held, “When contract language specifically provides that in
litigation concerning the contract, the prevailing party shall recover attorney fees, attorney fees
are not special damages, and therefore are generally recoverable by the prevailing party even if
there was no specific prayer for the recovery of attorney fees in the complaint.” Fleet Business
Credit, 274 Mich App at 592. While a party is not required to specifically plead an award of
attorney fees under a contractual provision, the party seeking the award of attorney fees still must
do so as part of a claim against the opposing party. Pranksy v Falcon Group, Inc, 311 Mich App
164, 194-195; 874 NW2d 367 (2015). In this case, in the complaint, plaintiffs requested attorney
fees and costs as part of their damages for bringing this action. Therefore, plaintiffs sufficiently
stated a cause of action to recover attorney fees under the contract.

         With regard to whether plaintiffs were required to submit proof of their attorney fees at
trial as part of their damages claim, defendants rely on an unpublished case,6 which cites Zeeland
Farm Servs, Inc v JBL Enterprises, Inc, 219 Mich App 190; 555 NW2d 733 (1996), to support
their argument. In Zeeland, this Court stated that “[a] party claiming the right to recover attorney
fees under a contract must introduce evidence of the reasonableness of the attorney fees to
establish a prima facie case and to avoid a directed verdict.” Id. at 196. However, this Court did
not specifically state that contractual attorney fees must be proven at trial. Rather, Zeeland
involved a debt collection action, in which the plaintiff sought to recover the balance due on the
defendant’s open account and the attorney fees incurred in collecting the debt as permitted by the
credit agreement. Id. at 191-192. It appears that the attorney fees were already incurred in


6
    Unpublished cases are not precedentially binding on this Court. MCR 7.215(C)(1).


                                                -13-
attempting to collect the debt, and the plaintiff was seeking to recover the fees as part of its
claim. Id. at 192-193. Therefore, this Court noted that the plaintiff was required to introduce
evidence of the reasonableness of the attorney fees to avoid a directed verdict. Id. at 196.

        In this case, plaintiffs could not prove at trial that they were entitled to attorney fees or
the reasonableness of those fees, where the contract explicitly states that a party cannot recover
attorney fees until they prevail in the action to enforce the agreement. Plaintiffs did not prevail
in the action to enforce the agreement until the jury decided the issue of damages. In Zeeland,
the credit agreement permitted the plaintiff to recover its attorney fees if defendant breached the
agreement, id. at 199, which is different from this case, where the contract allows either party to
recover attorney fees if they prevail in an action to enforce the agreement. Had defendants in
this case been the prevailing party, they could have sought attorney fees under the agreement,
but, as discussed, this could not be determined until after the jury decided the case. Therefore,
the trial court did not err by holding an evidentiary hearing regarding the reasonableness of
plaintiffs’ attorney fees, and subsequently granting plaintiffs’ post-judgment motion for
contractual attorney fees.

                                       VII. REMITTITUR

       Finally, defendants argue that the trial court erred by denying its motion for remittitur.
We review “a trial court’s decision to deny a motion for remittitur for an abuse of discretion.”
Diamond v Witherspoon, 265 Mich App 673, 692; 696 NW2d 770 (2005). In doing so, we
review the evidence in the light most favorable to the nonmoving party. Id. at 693. Further, this
Court has stated:

       [T]he question of the excessiveness of a jury verdict is generally one for the trial
       court in the first instance. The trial court, having witnessed all the testimony and
       evidence as well as having had the unique opportunity to evaluate the jury’s
       reaction to the proofs and to the individual witnesses, is in the best position to
       make an informed decision regarding the excessiveness of the verdict.
       Accordingly, an appellate court must accord due deference to the trial court’s
       decision and may only disturb a grant or denial of remittitur if an abuse of
       discretion is shown. [Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d
       354 (1989). See also Diamond, 265 Mich App at 692-693.]

       This Court in Diamond thoroughly summarized the law regarding remittitur:

               In determining whether to grant a motion for remittitur a trial court must
       consider whether the evidence supported the jury award. Henry v Detroit, 234
       Mich App 405, 414; 594 NW2d 107 (1999). The trial court’s inquiry is limited to
       objective considerations regarding the evidence presented and the conduct of the
       trial. Palenkas, supra at 532–533; Weiss v Hodge (After Remand), 223 Mich App
       620, 637, 567 NW2d 468 (1997). Remittitur is justified when a jury verdict
       exceeds the highest amount the evidence will support. MCR 2.611(E)(1). When
       determining whether an award is excessive, a court may consider whether the
       verdict was the result of improper methods, prejudice, passion, partiality,
       sympathy, corruption, or mistake of law or fact, whether it was within the limits

                                                -14-
       of what reasonable minds would deem to be just compensation for the injury
       inflicted, and whether the amount actually awarded is comparable to other awards
       in similar cases. Palenkas, supra at 532–533. A verdict should not be set aside
       simply because the method of computation used by the jury in assessing damages
       cannot be determined, unless it is not within the range of evidence presented at
       trial. Green v Evans, 156 Mich App 145, 156–157; 401 NW2d 250 (1985).
       [Diamond, 265 Mich App at 693-694.]

         First, contrary to defendants’ argument, Baldwin was not the only witness to testify
regarding damages and he did not testify that damages were capped at $1,000,000. Baldwin
testified that it could cost anywhere from $500,000 to over $1,000,000 to acquire life rights,
memorabilia, and personal footage depending on the extent that he would use the materials. He
also testified that if all of the 1,389 tapes that were destroyed contained images or footage of
Gordie Howe, it would be worth millions of dollars, given that he paid $75,000 to the NHL
(which normally charges $150,000) for one and a half minutes of playing footage.

       Second, although there was no way to prove what those items contained, especially how
many photographs or videos related to the Howes, the reasonable inferences from the evidence
presented supports the jury’s verdict. Baldwin testified that without the friends and family
discount, film producers would have paid the NHL $150,000 for a one and a half minute clip of
Gordie Howe playing hockey, and seemed to indicate that personal footage is just as valuable,
especially to recreate scenes and aid the actors in their character portrayal. Based on his
testimony, 20 minutes of footage alone would be worth $3,000,000. Additionally, Felix Gatt, a
personal friend of Gordie Howe, testified regarding the numerous times he witnessed Del Reddy
and Aaron Howard videotape Howe’s various appearances and events from 1996 to 2006, which
easily would have surpassed 20 minutes of footage. Gatt also testified that Reddy and Howard
took photographs at these same appearances and events of Gordie Howe, some of which
included other sports celebrities. Testimony by Mark Howe and Marty Howe indicates that
photos of Gordie Howe sell for $100 to $1000 depending on the size and who is pictured with
Howe, and that CDs and DVDs can hold anywhere from hundreds to one thousand photos. Mark
Howe also testified that when defendants returned material to plaintiffs, there were no
photographs or videotapes returned. Instead, defendants presented plaintiffs with the Shred-It
invoices that showed defendants destroyed 1,389 tapes, 402 CDs, and 134 DVDs.

       Defendants also did not contest that the items they destroyed related to the Howes.
Defendants claimed it was mostly their personal property, but Aaron Howard testified that he
took occasional videos relating to the Howes; however, because they were mixed in with his
personal items, and because he was not going to return any of his personal items to the Howes,
everything was destroyed.

        Further, as discussed in Issue V, because this evidence was under defendants’ control and
was destroyed by defendants without a reasonable excuse, the jury was permitted to infer that the
evidence would have been adverse to defendants. Therefore, the jury’s verdict was within the
range of evidence presented at trial. While the jury’s exact calculations may be unknown, a
verdict should not be set aside simply because the method of computation used by the jury in
assessing damages cannot be determined. Green, 156 Mich App at 156–157.


                                              -15-
Affirmed. Plaintiffs, being the prevailing party, may tax costs pursuant to MCR 7.219.



                                                   /s/ Donald S. Owens
                                                   /s/ Stephen L. Borrello
                                                   /s/ Cynthia Diane Stephens




                                      -16-
