                           STATE OF MICHIGAN

                            COURT OF APPEALS



ANDY J. EGAN CO., INC.,                                               UNPUBLISHED
                                                                      June 19, 2018
               Plaintiff/Counter-Defendant-
               Appellant/Cross-Appellee,

v                                                                     No. 336358
                                                                      Oakland Circuit Court
PRO SERVICES, INC., and MICHAEL                                       LC No. 2010-114555-CK
VANDEMAELE, JR.,

               Defendants/Counter-Plaintiffs-
               Appellees/Cross-Appellants.



Before: CAMERON, P.J., and FORT HOOD and GLEICHER, JJ.

FORT HOOD, J. (dissenting in part and concurring in part).

        I respectfully dissent from the majority’s conclusion that vacating the trial court’s
judgment as to Pro Services and remand for further proceedings is necessary in this case. This
appeal and cross-appeal followed (1) not one, but two, lengthy jury trials that encompassed
highly complex factual issues and resulted in the expenditure of considerable trial court
resources, (2) as well as a lengthy evidentiary hearing on the issue of attorney fees that spanned
several days. In one fell swoop, the majority has wiped out the capable factual determinations
and damage awards of two separate juries in both trials, as well as the trial court’s well-reasoned
decision with respect to the attorney fees awarded in this case. In my opinion, the trial court’s
reliance on Mink v Masters, 204 Mich App 242; 514 NW2d 235 (1994) in denying the motion of
plaintiff/counter-defendant Andy J. Egan Co., Inc. (Egan) to strike the jury demand of
defendant/counter-plaintiff Pro Services, Inc. (Pro Services) was reasonable under the particular
circumstances of this case. I would affirm the trial court’s judgment in all respects.

        In Mink, this Court, interpreting the language of MCR 2.508(D)(3), held that the court
rule required the consent of all parties before a jury demand could be withdrawn, as opposed to
just the consent of the party filing the jury demand. Mink, 204 Mich App at 246. Accordingly,
this Court stated that “[o]nce one party has filed a jury demand, all other parties may rely on that
jury demand and need not independently file their own demand for a jury trial.” Id. at 247. The
Mink Court recognized, “[t]hus, where a plaintiff has filed a jury demand, the defendant need do
nothing further to preserve its right to a trial by jury. Rather, any future waiver of a jury trial by
the plaintiff can only be done with the defendant’s consent.” Id.

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       Therefore, we conclude that because defendants had a right to rely upon
       plaintiff’s demand for a jury trial, their right to a jury trial was preserved absent
       their own waiver of the right to a jury trial. . . .

                Accordingly, absent an express waiver by defendants of the right to a jury
       trial, the trial court was obligated to honor defendants’ right to a jury trial on the
       issue of damages. [Id.]

         I acknowledge that in this case, unlike the defendants in Mink, Pro Services did enter into
the subcontractor agreements which allow for waiver of its right to a jury trial. However, at the
time that the trial court decided Egan’s motion seeking to strike Pro Services’ jury demand, Pro
Services had filed an amended counter-claim alleging that Egan’s failure to perform pursuant to
the terms of the subcontract agreements had resulted in an abandonment of the contracts
altogether. Additionally, Pro Services had requested that the trial court order the contractual
agreements void. Accordingly, whether the parties’ dispute was indeed subject to a jury waiver
was an open question at the time the trial court addressed this issue. Moreover, as Pro Services
points out in its brief on appeal, where Egan sought to recover against defendant/counter-plaintiff
Michael VandeMaele, Jr. personally for a violation of the Michigan Builder Trust Fund Act
(MBTFA), MCL 570.151 et seq., and under a conversion theory, the issues that were being
adjudicated with respect to the breach of contract claims that Egan and Pro Services filed against
each other were essential to VandeMaele’s defenses against Egan, and needed to be determined
before VandeMaele’s liability could be decided. Put another way, the issues for which
VandeMaele demanded a jury trial were very much entwined with the issues pertaining to the
liability of both Pro Services and Egan. Particularly where the trial court’s ruling reflected its
concern that all of the claims in this complex and lengthy case, which were all based on the same
facts, be considered by the jury together to promote judicial economy and clarity for the jury, I
am simply not persuaded that the trial court’s decision to allow Pro Services to rely on
VandeMaele’s jury demand was erroneous and warrants reversal.

        With regard to Egan’s MBTFA claims, while I disagree with the majority’s determination
that the trial court erred in submitting Egan’s MBTFA claim against Pro Services to the jury and
that remand is required, I concur with the majority opinion’s conclusion that the trial court
properly denied Egan’s motion for judgment notwithstanding the verdict (JNOV) regarding its
MBTFA claim against VandeMaele.



                                                             /s/ Karen M. Fort Hood




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