                         STATE OF MICHIGAN

                           COURT OF APPEALS


LAWRENCE M. CLARKE, INC.,                                         UNPUBLISHED
                                                                  March 20, 2018
              Plaintiff/Counter-Defendant-
              Appellee,

V                                                                 No. 336481
                                                                  Ingham Circuit Court
KIM S. DRAEGER,                                                   LC No. 08-000227-CZ

              Defendant-Appellant,

and

KD EQUIPMENT LEASING, INC., and AIC,
INC.,

              Defendants/Counter-
              Plaintiffs/Third-Party Plaintiffs-
              Appellants,

and

GUARANTEE COMPANY OF NORTH
AMERICA USA and XL REINSURANCE
AMERICA, INC.,

              Third-Party Defendants-Appellees.


Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ.

PER CURIAM.

       In this contractor-subcontractor dispute, defendant Kim Draeger, and two corporations he
controls, KD Equipment Leasing, Inc., and AIC, Inc.,1 appeal as of right the trial court’s

1
  Because of the substantial identity between the individual and corporate defendants, and the
dismissal from the case of the third-party defendants, we emulate the trial court’s practice and
use the singular term “defendant” to refer collectively to the defendants-appellants.

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judgment, on remand from this Court, awarding damages to plaintiff. We affirm in part, vacate
in part, and remand for further proceedings.

                                            I. FACTS

       This case returns to this Court after an earlier decision remanded the case for further
proceedings. Lawrence M Clarke, Inc v Draeger, unpublished per curiam opinion of the Court
of Appeals, issued January 15, 2015 (Docket No. 316194) (“Draeger I”). This Court’s prior
opinion contains the following statement of facts:

                Plaintiff was the general contractor for construction of a portion of a sani-
       tary sewer system in Billings Township. Defendant had earlier encouraged plain-
       tiff to bid on the project, and provided plaintiff with a unit-price proposal cover-
       ing all the projected work. Plaintiff accepted the proposal and, after increasing
       the prices by 12 percent for its own profit, submitted it as its bid. Initially
       plaintiff had expected defendant, as its subcontractor, to provide all the materials
       and do all the work, with plaintiff contributing only some general supervision.

                Defendant arranged with two subcontractors of its own to work on the pro-
       ject. The parties entered into a written subcontract for work to be performed by
       defendant in two sections of the project. Defendant and its subcontractors worked
       on other sections as well, but no additional subcontracts were executed. Plaintiff
       itself tended to some sections as well, in order to fulfill its obligations to the mu-
       nicipality under the general contract.

               But, as the trial court summarized, “the project did not begin, progress, or
       end in a perfect world.” According to plaintiff’s witnesses, defendant and its sub-
       contractors provided less than perfect, competent, or complete work.

                                              * * *

               Plaintiff commenced action in 2008, setting forth several theories of
       recovery, including breach of contract and unjust enrichment. Defendants
       counterclaimed, alleging breach of contract and, alternatively, unjust enrichment,
       and initiated a third-party action for payment bond against plaintiff’s two sureties.
       The trial court summarized the evidence concerning deficiencies in defendant’s
       performance on the project, held that the individual defendant should be per-
       sonally responsible for the corporate defendants’ liabilities in the matter, and
       awarded plaintiff over $900,000 in damages, costs, and interest. The court con-
       cluded that the question of the existence of attendant contracts, and of per-
       formance under them, was “somewhat problematic,” and elected to decide the
       case under the theory of quantum meruit. [Draeger I, p 2.]

       This Court concluded that the trial court erred by (1) resolving the case through
application of the doctrine of quantum meruit, or unjust enrichment, where the court
acknowledged that a written contract covered at least part of the activities at issue, (2)
determining what defendant was entitled to collect on the basis of pay estimates without

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reference to any purported final measurements, and (3) “holding defendant responsible for the
full amounts of payment bond claims that plaintiff in fact settled for lesser amounts,” but that
defendant failed to show that the court otherwise miscalculated damages, or erred in deciding to
pierce the corporate veil. Id., p 12.

         On remand, the trial court reviewed the testimony and exhibits from the lengthy bench
trial, and entertained additional oral and written arguments from the parties. The court recited
that this Court called for a determination of what aspects of the parties’ relationship actually
came under contract and for reevaluation of the evidence under contract law where applicable,
and for use of final measurements in calculating damages by consulting Change Order 4 or better
documentation for that purpose. The court further noted that this Court held that the trial court
erroneously awarded plaintiff “back charges in connection with bond claims in amounts greater
than what plaintiff actually paid.”

         The trial court offered findings in connection with contract law, with no mention of
quantum meruit or unjust enrichment. The court stated that recalculating damages under the
rubric of contract law instead of quantum meruit did not eliminate the problem that only “in a
perfect world damages caused by a party’s breach of the contract could be mathematically and
precisely calculated,” thus underscoring the principle, as reiterated by this Court, that “[w]e do
not, in the assessment of damages require a mathematical precision in situations of injury where,
from the very nature of the circumstances, precision is unattainable,” and instead, “[w]e do the
best we can with what we have.” Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 111; 535
NW2d 529 (1995) (quotation marks and citations omitted). On remand, the trial court concluded
that plaintiff was entitled to a judgment of $696,960.99, plus statutory interest and costs.

        On appeal, defendant argues that the trial court failed to follow this Court’s instructions
on remand in connection with identifying final measurements, and factoring bond claims into
back charges, and asks that the case again be remanded for further proceedings, this time before
a different judge.

                                      II. REMAND ORDER

       Whether a tribunal complied with a remand order presents a question of law subject to
review de novo. Kalamazoo v Dep’t of Corrections (After Remand), 229 Mich App 132, 134-
135; 580 NW2d 475 (1998).

                                 A. FINAL MEASUREMENTS

        An issue in the prior appeal involved the trial court’s decision to measure the work
defendant completed by consulting periodic pay estimates as opposed to any documentation
purporting to indicate final measurements. This Court noted that the subject construction project
was conducted by way of unit price contracts, and also that plaintiff’s vice president testified that
the pay estimates were in fact set forth with real care, elaborating that “[e]verybody pulled the
tape measure when we had an inspector handy,” but admitting that the engineers’ final
measurement was apt to differ somewhat from the total of the pay estimates and in that event
payment would properly reflect the final measurement. This Court further summarized the issue
as follows:

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               Article 10 of the subcontract executed for two sections of the project
       covers payment. Section 10.2 calls for “[p]rogress payments, less retainage” for
       work “satisfactorily performed, no later than seven (7) days after receipt by
       [plaintiff] of payment from Billings Township for Subcontract Work,” then adds,
       “Final payment of the balance due shall be made to Subcontractor no later than
       seven (7) days after receipt by [plaintiff] of final payment from Billings Township
       for subcontract Work.” This provision clearly contemplates a series of payments
       that are not deemed to reflect all payment due until a final payment from the
       municipality allows such a reckoning.

               The trial court looked to the several pay estimates as reflecting how the
       parties managed the progress payments. Plaintiff suggests that the trial court
       properly looked no further to determine how much defendant had earned, but
       defendant insists that the court should have consulted change estimate 4, which
       sets forth the final balancing in relation to plaintiff’s contract with the
       municipality. Plaintiff argues that defendant is not entitled to claim any benefits
       from change order 4, on the ground that defendants were not parties to the
       contract under which it came into being. The trial court apparently agreed with
       defendant, however, in regarding change order 4 as offering a basis for adjusting
       earlier estimates to reflect actual work accomplished, but stated that it “declines to
       make any adjustment to the amount due [plaintiff] based on change order no. 4,
       on the basis the evidence does not establish which party may have been at fault
       for construction delays that apparently led to the assessment of liquidated
       damages.”

               The latter declaration is problematic. Actual work completed, as
       determined by final measurements, is a matter apart from liquidated damages
       resulting from construction delays. Any difficulties in determining responsibility
       for such delays still leaves in plain view change order 4’s detailed listing of work
       done, adjustments made, and amounts due and owing. Further, to the extent that
       plaintiff wished that any adjustments in payments to defendant take into account
       responsibility for liquidated damages resulting from delays, plaintiff bore the
       burden of proving defendant’s liability in the matter. If indeed the trial court was
       not satisfied that the evidence preponderated in plaintiff’s favor in this regard, the
       court should simply have declined to adjust what change order 4 otherwise
       suggested was owed to defendant.

               . . . [T]he trial court should have consulted available final measurements in
       calculating the parties outstanding obligations. We instruct the trial court on
       remand to consult change order 4 for this purpose, or some other documentation
       as is determined, or agreed, to reflect final measurements. [Draeger I, pp 7-8.]

       On remand, the trial court again consulted the pay estimates, to the exclusion of Change
Order 4 or any other documentation promising more accurate final measurements, with the
following explanation:


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               In this court’s opinion, the critical question to be resolved before it
       calculates damages is the amount used for the starting point. In this court’s
       opinion, the amount utilized for a starting point cannot be precisely determined.
       While the pay estimates and/or the quantities described in change order no. 4
       produce an exact, though different, amount due under the contract, that amount is
       only accurate if the court is able to find that defendant satisfactorily completed all
       the restoration work, testing and warranty or repair work included in its unit
       pricing.

               Evidence indicated the engineers “shifted’ quantities from one section of
       the project to another for their own convenience, not necessarily because mistakes
       had been made in the measurements prepared for purposes of the pay estimates.

              [Plaintiff’s] on-the-job foreman also testified members of AIC’s crews
       would routinely take materials [plaintiff] had ordered for installation in those
       sections for which [plaintiff] had assumed responsibility.

              According to [the evidence], about half of [defendant’s] initial bid would
       have been allocated to pricing “baked in” for the restoration, testing and repair
       work.

               According to [the evidence], the final measurements are “about the same”
       as the measurements made during the course of construction.

               Again, this court’s finding, based on all the evidence, is that when [de-
       fendant] was paid in accordance with the pay estimates as the project progressed,
       he was paid for the installation of the pipe together with all the other restoration
       and testing and repair responsibilities he had contracted to perform.

               According to the project engineer, a disinterested witness, [defendant] had
       completed no more than 20 percent and perhaps as little as 10 percent of the
       restoration work in the areas in which he had worked.

       The trial court thus eschewed Change Order 4 in the first instance because of a concern
regarding liquidated damages, which this Court deemed unsatisfactory, then did so on remand on
the ground that Change Order 4 might reflect distortions resulting from the engineers’ or
workers’ disinclination to ensure that all work or materials invested in a given section were
accurately so reported.

        Plaintiff points to testimony from the township’s project engineer indicating that such
liberties were taken. Defendant, in disputing the trial court’s conclusion in this regard, asserts
that the project engineer spoke to only a single instance of a quantity shift, involving “25 feet of
pipe.” However, our review of the record reveals only one instance where the project engineer
used the figure “25 feet,” and there that witness was offering a hypothetical situation to illustrate
a common practice. As plaintiff points out, that witness earlier made clear that liberties were
taken in the attribution of quantities of work or materials as a matter of record-keeping


                                                -5-
convenience. For these reasons, the trial court did not clearly err in determining that Change
Order 4 was not a reliable indicator of final measurements.

        As noted, this Court suggested consulting Change Order 4 or other documentation
determined to be a reliable indicator of final measurements. The trial court in fact presented its
reasons for relying again on the periodic pay estimates, pointing out that the testimony indicated
that they should be fairly accurate, and suggesting that no better indicator of final measurements
was available. In arguing otherwise, defendant suggests that an alternative to Change Order 4
for documentation of final measurements was “the as-built plans,” which took into account “GPS
measurements” taken “[a]fter substantial completion.” However, defendant neither shows that
such as-built plans were suggested to the trial court as a source for final measures, nor explains
on appeal how GPS measurements would have assisted in avoiding the problem of shifting
quantities.

       Because the trial court on remand acknowledged this Court’s directions, and well
explained why, under contract law, it viewed Change Order 4 as a poor reflection of final
measures and considered the periodic pay estimates as the best available source of such
measures, the court’s decision to rely again on the latter instead of the former comported with
this Court’s remand order.

        Defendant additionally argues that the trial court erred in concluding that defendant
completed only 15 percent of the restoration work for which it was responsible. Defendant
admits that the township’s project manager testified that defendant performed only that much of
the restoration work in its sections of the project, and argues that the project manager’s “one
sentence” to that effect “is contrary to the voluminous documentary record” as defendant
interprets it. However, defendant cites no authority for the proposition that a voluminous
documentary record necessarily trumps a sentence of testimony. We remain guided by the well-
established rule according to which conflicts in the evidence and the credibility of witnesses are
matters for the fact-finder to resolve. Dawe v Dr Reuven Bar-Levav & Assoc, PC (On Remand),
289 Mich App 380, 401; 808 NW2d 240 (2010). Therefore, we reject defendant’s claim of error
with respect to this issue.

                                       B. BOND CLAIMS

       The trial court acknowledged that this Court held that it erroneously awarded plaintiff
“back charges in connection with bond claims in amounts greater than what plaintiff actually
paid.” On remand, however, the court repeated, and compounded, that error.

        A party injured by another’s failure to perform under a contract “is not entitled to be
placed in a better position than he would have been had the contract not been broken.” Parmet
Homes, Inc v Republic Ins Co, 111 Mich App 140, 150-151; 314 NW2d 453 (1981). “The
injured party . . . however, must make every reasonable effort to minimize the loss suffered . . . .”
Tel-Ex Plaza, Inc v Hardees Restaurants, Inc, 76 Mich App 131, 134; 255 NW2d 794 (1977).
Accordingly, when awarding damages, “deduction of any saving to the injured party must be
made.” Goodwin, Inc v Orson E Coe Pontiac, Inc (Supplemental Opinion), 62 Mich App 405,
413; 233 NW2d 598 (1975).


                                                -6-
       Defendant conceded below that as the relationship with plaintiff broke down and AIC
ceased working on the project, plaintiff attended to some responsibilities that had originally been
AIC’s. Defendant recognized some of plaintiff’s back charges as legitimate from the beginning,
and has declined to challenge others as determined by the trial court. But defendants challenged
other back charges plaintiff claimed as unsupported, inflated, or duplicative.

       This Court, in its earlier opinion, rejected most, but not all, of defendant’s challenges
concerning back charges, stating:

               The exception is the trial court’s decision to hold defendant responsible
       for the full amounts of certain of defendant’s creditor’s payment bond claims,
       instead of for the lesser amounts for which plaintiff settled those claims. In
       holding defendant to the full amount, the trial court stated, “It is the court’s view
       that [defendant] should not benefit from plaintiff’s successful efforts to
       compromise amounts claimed to be owed by [defendant] and for which the
       creditors of [defendant] asserted bond claims.” Defendant’s objection to this
       reasoning has merit.

                                              * * *

               Defendant reports that plaintiff never requested the full amounts of the
       bond claims below, and we note that plaintiff does not suggest otherwise on
       appeal. . . . [I]t is not clear whether the trial court’s decision to rely on its own
       empirical sense of fairness in this instance, rather than an injured party’s duty to
       mitigate damages, or a court’s duty to adjust awards of damages to reflect
       successful such mitigation, resulted from its decision to eschew contract law in
       favor of the doctrine of unjust enrichment. Regardless, we conclude that the court
       erred in awarding plaintiff back charges in connection with bond claims in
       amounts greater that what plaintiff actually paid. [Draeger I, p 9.]

        In its earlier judgment, the trial court noted that the “bond claims presented by creditors
. . . amounted to $158,465 reduced and compromised through the efforts of counsel for plaintiff
to $79,500.” The court then calculated “amounts paid by [plaintiff] for AIC’s benefit or to its
creditors” as $446,424, which included $158,465 as the “gross amount owed by AIC to those
creditors who submitted bond claims,” which the court set forth with a parenthetical stating that
defendant “should not benefit from plaintiff’s successful efforts to compromise amounts claimed
to be owed.”

          In calculating damages on remand, the trial court declared itself “comfortable with the
figure for back charges it set forth in its original opinion, i.e. $446,424,” thus indicating that it
was adopting its earlier calculation, which itself did not take into account plaintiff’s having
bargained $158,465 in claims down to $79,500, and this time separately included an “adjustment
. . . for bond claims paid by [plaintiff], $79,500.” The trial court thus not only repeated the error
this Court earlier identified of awarding plaintiff back charges reflecting the total original bond
claims, $158,465, instead of the lesser figure plaintiff actually paid, $79,500, but compounded
the error by awarding what plaintiff actually paid in addition to the total originally claimed.


                                                -7-
       In response to this Court’s instructions on remand, the trial court should have awarded
only the $79,500 actually paid instead of the $158,465 originally claimed. Having now in fact
awarded both, the court erred in the amount of $158,465. Accordingly, we vacate that portion of
the judgment below, and remand this case to the trial court with instructions to reduce the
judgment by $158,465.

                             III. REASSIGNMENT ON REMAND

       “A trial judge is presumed to be impartial and the party who asserts partiality has a heavy
burden of overcoming that presumption.” In re MKK, 286 Mich App 546, 566; 781 NW2d 132
(2009). In determining whether a case should be reassigned to a new judge to hear proceedings
on remand, this Court considers whether the original judge should be expected to have
substantial difficulty setting aside earlier views, whether reassignment is needed to preserve the
appearance of justice, and whether the waste and duplication resulting from reassignment would
outweigh any benefit to the preservation of the appearance of fairness. In re Foster Attorney
Fees, 317 Mich App 372, 379; 894 NW2d 718 (2016).

        In this case, our reading of the opinions and orders of the judge below in response to this
Court’s remand does not suggest any disdain for this Court’s judgment, or begrudging of the
need to conform further proceedings to this Court’s instructions. Although the judge again erred
in how he factored bond claims into the calculation of back charges, we see no basis for
ascribing the error to anything beyond mere inadvertence. Further, proceedings on remand
involve only a specific adjustment in the judgment amount. For these reasons, we decline to
order that proceedings on remand take place before a different jurist.

        Affirmed in part, vacated in part, and remanded for further proceedings. We do not retain
jurisdiction.



                                                            /s/ David H. Sawyer
                                                            /s/ Stephen L. Borrello
                                                            /s/ Deborah A. Servitto




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