            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



 BOSQUETT & COMPANY,                                                 UNPUBLISHED
                                                                     January 14, 2020
                Plaintiff-Appellee/Cross-Appellant,

 v                                                                   No. 345615
                                                                     Macomb Circuit Court
 STERLING BENEFITS LLC,                                              LC No. 2016-000218-CB

                Defendant-Appellant/Cross-
                Appellee.


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

PER CURIAM.

        Following a bench trial, defendant Sterling Benefits LLC (“Sterling”) appeals as of right
the trial court’s order that plaintiff Bosquett & Company (“Bosquett”) is entitled to money
damages and statutory interest on its breach of contract claim against Sterling. Sterling also
appeals the trial court’s grant of additional damages to Bosquett. Bosquett has cross-appealed on
those same issues. For the following reasons, we affirm the trial court.

                            I. FACTS & PROCEDURAL HISTORY

        This case arises out of the sale of a business. Bosquett was an insurance agency owned
by David Fischer. In 2009, Fischer sold Bosquett to Sterling, a company owned by Joe Haney
and Paul Mattes, in what Fischer described as a “fire sale.” The parties entered into an asset
purchasing agreement (the “APA”) on September 4, 2009. Under the terms of the contract,
Sterling agreed to pay Bosquett for certain assets. In particular, this dispute involves Bosquett’s
personal lines of business, commercial lines, and a benefits book. Each of these items represents
a revenue stream of commissions generated by Bosquett’s book of business.

       Regarding the personal lines, Sterling agreed to pay $350,000 total, with $150,000 due up
front and the remaining $200,000 payable over two years in $50,000 installments every six
months. Each of those installments was conditioned on Sterling meeting a certain “benchmark.”
This benchmark required that certain accounts be reviewed and if more than 88% of those
accounts were retained, then Sterling would pay the installment, but if less than 70% of the
benchmark was retained, then no such payment was due, and the purchase price was reduced by


                                                -1-
this $50,000.00. The APA also provided that Bosquett was “entitled to regular reports from
carriers as to commissions received by [Sterling] in connection with the purchased books.”

      Regarding the commercial lines and benefits book, the APA provided that Sterling would
pay Bosquett in the following manner:

                 45% of commissions actually received for any type of insurance sold to
                 customers from the Commercial Book and 35%· of commission
                 actually received for any type of insurance sold to customers in the
                 Benefits Books by [Sterling] during the subsequent three (3) years,
                 based on the Commercial Book and the Benefit Book as determined
                 from insurance provider reports for the year preceding September 1,
                 2009.

       Bosquett filed a complaint in January 2016, alleging breach of contract and requesting an
accounting and specific performance of the contract.1 Bosquett contended Sterling breached the
APA by failing to pay it as agreed despite the achievement of the APA’s benchmarks, by failing
to provide periodic reports pursuant to the APA, and by failing to pay commissions on the
commercial lines and benefits book.

         At trial, the parties presented evidence regarding the value of the benchmark. Sterling
contended that the benchmark value was $800,000 based on the book of business report provided
by Bosquett during negotiations. Bosquett maintained that the benchmark was $315,000 based
on the summary page for Bosquett’s personal lines business in the 14 months before the sale,
which was provided to Sterling at closing. In addition, the trial court considered Sterling’s
internal reports demonstrating the amount of business that was generated from Bosquett’s former
clients.

        Fischer testified that he sold Bosquett to Sterling because his license was being
suspended and he wanted to ensure that his clients had continuity of coverage. During
negotiations with Sterling, Bosquett provided a “book of business report” in order to give
Sterling an approximation of the volume of Bosquett’s clients. He said that at the time of the
sale, the benefits book business size alone was worth between $30,000 to $80,000 and it was
impossible for that business to drop to zero overnight. Fischer testified that he never received
notice from Sterling that the benchmarks had not been met, that there were any claims against his
errors and omissions coverage, or that the commercial line clients had left Sterling. Fischer
reviewed the reports that Sterling had submitted as evidence of the commissions on the
commercial lines and he believed that the reports were incomplete. Several months after closing,
Fischer also testified, he received a Bosquett phone bill of $10,000, which he paid at his
attorney’s behest. However, he believed that Sterling was obligated to repay him.




1
 Bosquett initially filed a complaint in 2012, which was dismissed without prejudice in August
2014, due to a conflict of interest by Bosquett’s attorney.


                                               -2-
        Sterling’s Haney testified that he ran reports on the commissions generated on the
personal lines and Sterling did not hit any of the benchmarks. Haney admitted that the book of
business report was inaccurate and that the numbers that were included on many of the line items
to get to $800,000 “were simply wrong.” Regarding the commercial lines, Haney could not
recall generating any reports, but he believed that Sterling did not owe Bosquett any payments.
Internal reports by Sterling, however, demonstrated that it had received over $143,000 on
commissions from former Bosquett clients. Haney explained that no money was owed on these
commissions because they were actually not Bosquett’s clients. Several Bosquett employees
transferred to Sterling as independent contractors at the time of the sale, and accordingly to
Haney, the clients associated with these “producers” were not Bosquett’s clients because they
belonged to the producers. Additionally, some of Bosquett’s former clients had left Sterling, but
had returned after concerted efforts by Sterling and therefore they no longer could be classified
as belonging to Bosquett. Other clients had left Sterling and were owed a refund, which Sterling
took out of the money owed to Bosquett.

        Haney further testified that one client in particular, Hartford, believed that Bosquett owed
Hartford money, and Sterling had made a separate deal with Hartford allowing it to keep some
portion of commissions otherwise due to Sterling as a payment on Bosquett’s behalf. Another
client, Wireless Vision, had been listed as an excluded asset in the APA because, at the time of
the sale, Sterling was a small company and had not intended to purchase that relatively large
account, but had intended instead for it to stay with the producer who was servicing that client,
Patrick Parke. However, Sterling’s internal reporting system had designated Wireless Visions as
a Bosquett client through a clerical error.

         Mattes also testified that Sterling “never came close” to hitting the benchmark on the
personal lines, but admitted that Sterling’s reports might be inaccurate. Regarding the
commercial lines, Wireless Vision had been listed as an excluded asset because it was Parke’s
book of business and Sterling did not have enough money at the time of the sale to buy
Bosquett’s book of business along with Parke’s account. While Fischer initially helped Sterling
try to retain clients, Mattes said that Fischer stopped returning calls and emails. Due to Fischer’s
lack of cooperation, Mattes believed that Bosquett was not entitled to any portion of the
commissions on the commercial lines.

       Barry Paulsell, who worked selling insurance at Bosquett and then Sterling, testified that
he maintained his own book of business during his transition from Bosquett to Sterling, and his
accounts were not Bosquett’s to sell. However, Paulsell admitted that most of the benefits
accounts were his, but “there were identifiable cases that were benefits to Bosquett.” Paulsell
also admitted that he had an outstanding debt he owed to Sterling for approximately $37,000.

        The trial court awarded Bosquett $162,678.37 in connection with its claims and statutory
interest. The trial court held that the benchmark was $315,243.75, but because Bosquett did not
provide evidence that the benchmark had been met, it failed to establish that it was entitled to
recover any additional sums in connection with the personal lines.

        The trial court further held that, although the APA provided that Bosquett was entitled to
certain reports, it did not place any burden on Sterling to furnish them, and because the parties
had similar access to that information, Bosquett was not entitled to relief on this claim. The trial

                                                -3-
court then turned to the issue of the commercial lines and the benefits book. It determined that,
contrary to Sterling’s assertions, the commissions were not contingent on Bosquett’s assistance
in retaining the accounts. The unrebutted evidence showed that 45% of the total commissions,
reduced by the $50,000 already paid, totaled $228,672.06. The trial court reduced this amount
by subtracting $65,993.69 to reflect the excluded Wireless Vision account. It rejected Sterling’s
argument that the amount should be further reduced by the exclusion of the Hartford account due
to Hartford’s allegations that Bosquett had breached an agreement with Hartford. The trial court
reasoned that because the APA required Sterling to notify Bosquett of Hartford’s allegations, and
allow Bosquett to defend the claim, and because Sterling failed to do so and had settled the claim
with Hartford instead, Sterling breached the APA, and therefore, was not entitled to a reduction.
For this same reason, i.e., failure to notify, the trial court rejected Sterling’s argument that it was
not required to pay commissions in connection with the Asmar account due to Bosquett’s debts
owed on that account. The trial court also rejected Sterling’s argument that it was not required to
pay commissions on accounts managed by independent contractors or lapsed accounts because
the accounts were listed in the APA, and Sterling failed to identify any exception that would
apply anywhere in the APA. Bosquett also was denied damages in connection with the benefits
book because it failed to provide evidence establishing that any commissions were owed.

        Bosquett’s claim that Sterling was required to reimburse it for a $10,000 phone bill was
denied because Bosquett failed to provide evidence that it had actually paid the bill and that
Sterling had any obligation to repay it. Finally, the trial court denied Bosquett’s request for
$200,000 in precomplaint interest pursuant to the terms of the promissory note as incorporated
into the APA. The trial court found that the APA only provided for payment of this sum in
connection with the personal lines, and because Bosquett failed to establish that it was entitled to
payment for the personal lines, it was not entitled to this sum either. Both Bosquett and Sterling
sought to recover attorney fees, and the APA provided for such recovery by the prevailing party.
Because Sterling was obligated to pay Bosquett a substantially lesser amount than what Bosquett
had sought, the trial court determined that neither party had prevailed and neither party was
entitled to have the other pay its attorney fees.

        Bosquett moved for a new trial, and alternatively, to amend the judgment pursuant to
MCR 2.116(A)(2)(c). The trial court denied the motion for a new trial, but granted in part
Bosquett’s motion to amend the judgment. The trial court found that the APA did not provide
for the exclusion of the Wireless Vision account in its entirety as expressed by the plain language
of the agreement, and as evidenced by the conduct of the parties. It therefore found that
Bosquett was entitled to recover $65,993.69 in connection with that account, plus statutory
interest. The trial court denied Bosquett’s claims regarding the personal lines, pre-judgment
interest, and attorney fees.

       Bosquett requested case evaluation sanctions pursuant to MCR 2.403(O). Sterling
conceded that Bosquett was entitled to sanctions, but disputed the reasonableness of the
requested attorney fees. After reviewing the factors set forth in Smith v Khouri, 481 Mich 519,
529; 751 NW2d 472 (2008), the trial court granted Bosquett’s motion, but reduced the sanction
amount for attorney fees to $46,907.50, from the requested amount of $119,867.50.




                                                 -4-
        This appeal followed on the issues of whether the trial court committed error requiring
reversal regarding the amounts payable for (1) the personal lines, (2) the commercial lines and
benefits book, (3) precomplaint interest, and (4) attorney fees.

                                 II. STANDARD OF REVIEW

        Questions involving the proper interpretation of a contract or the legal effect of a
contractual clause are reviewed de novo, McDonald v Farm Bureau Ins Co, 480 Mich 191, 197;
747 NW2d 811 (2008), as are the interpretation and application of court rules, Kernen v
Homestead Dev Co, 252 Mich App 689, 692; 653 NW2d 634 (2002). However, whether to
award precomplaint interest as an element of damages is a discretionary decision to be made by
the trier of fact and is reviewed for an abuse of discretion. Militzer v Kal-Die Casting Corp, 41
Mich App 492, 496–97; 200 NW2d 323 (1972).

                                     III. PERSONAL LINES

      Bosquett argues that the trial court committed error requiring reversal when it held that
Bosquett was not entitled to any payments in connection with the personal lines. We disagree.

        The goal in contract interpretation is to give effect to the intent of the parties, which is
determined first and foremost by the plain and unambiguous language of the contract itself.
Kendzierski v Macomb Co, 503 Mich 296, 311-312; 931 NW2d 604, 612 (2019). “If the
contractual language is unambiguous, courts must interpret and enforce the contract as written,
because an unambiguous contract reflects the parties’ intent as a matter of law.” Id. “However,
if the contractual language is ambiguous, extrinsic evidence can be presented to determine the
intent of the parties.” Id. “A fundamental tenet of our jurisprudence is that unambiguous
contracts are not open to judicial construction and must be enforced as written.” Id. (quotation
marks and citations omitted, emphasis in original).

       The terms of the APA are unambiguous. Article 1.4 states in relevant parts:

       (a) The price to be paid for the Purchased Assets (“Purchase Price”) prior to
       adjustment is [$350,000], based primarily on personal lines commissions (the
       “Personal Lines Book”) received by [Bosquett] for the year immediately
       preceding August 1, 2009 (“Benchmark”) as evidenced by the commission
       statement and production reports of the carriers as adjusted on audit by carriers
       excluding only those policies sold to clients who have advised [Bosquett] that the
       client will not be renewing the policies, as further adjusted below.

       (b) The Purchase Price (and Note) shall be adjusted post-Closing based upon a
       proportionate decrease related to the percentage decrease in retention of the
       amount of commissions received by [Sterling] from the Personal Lines Book
       during the subsequent 24 months from August 1, 2009. In addition to the
       $100,000 paid at closing and the $50,000 paid after disclosures are made, four
       additional [$50,000] payments may be made, one every six months, subject to a
       possible adjustment based upon a retention rate as of the date of the installment.
       There shall be no adjustment made if the retention rate exceeds 88% of the

                                                -5-
       Benchmark as of the first and second installment and 85% of the Benchmark as of
       the third and fourth installments. However if the retention rate falls below 70%
       on any installment date, then no payment shall be made for that period and the
       amount shall represent a reduction in the Purchase Price. . . . .

       The only dispute is whether the four payments of $50,000 were required under the APA.
The APA clearly states that no payment is required “if the retention rate falls below 70% [of the
benchmark] on any installment date.” The trial court correctly concluded that whether the
benchmark was properly set at $800,000 or $315,000 was immaterial because Bosquett presented
no evidence that the benchmark had been met at all.

         Bosquett contends the trial court improperly placed the burden of proof on it because it
was in Sterling’s interest to prove that a downward adjustment was applicable and because
Sterling was the only party with access to the relevant reports regarding the benchmark. This
argument fails because, as the trial court correctly noted, a plaintiff bears the burden of
establishing the elements of its claim. AFT Michigan v Michigan, 303 Mich App 651, 660; 846
NW2d 583 (2014). Here, Bosquett claimed a breach of the APA, but submitted no evidence that
the benchmark was ever met, which would trigger Sterling’s requirement to pay. Bosquett’s
failure to present evidence that the benchmark had been met is fatal to its claim.

        Bosquett also argues its only obligation was to sit back and wait for either a payment, or a
reason for nonpayment. However, this assumes that Sterling had a duty to make periodic reports
to Bosquett. As the trial court correctly held, the APA imposes no such reporting requirement.
Section 1.4(g) of the APA merely states that Bosquett “shall be entitled to regular reports from
carriers as to commissions received by [Sterling] in respect to the purchased books.” The
“regular reports from carriers” more reasonably indicates that Bosquett could approach the
carriers directly and request commission reports, rather than rely on reporting from Sterling.
Nothing in that section, or any other section in the APA, imposes on Sterling the sort of reporting
obligation proposed by Bosquett. We cannot “look past the plain and unambiguous terms of a
contract to impose an obligation on a party that has not been clearly delineated in the parties’
agreement.” Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 549; 904 NW2d 192
(2017).

        Additionally, Bosquett argues that it produced evidence that the benchmarks had been
met for two of the six-month periods. However, as the trial court properly recognized, those
reports included accounts that were not within the purview of the APA as evidenced by the book
of business, and once those sums were subtracted, the totals were insufficient to meet the
benchmark for those periods. Bosquett contends the reason those reports could be deemed
unreliable was because Sterling produced them after-the-fact and late during the discovery
period. However, the trial court was aware of the nature of the reports, and when they were
produced and found that Bosquett provided no evidence to rebut them. Bosquett now argues that
it did not have a chance to address this evidence due to Sterling’s “sandbagging” and submitting
this evidence in a post-trial brief. However, all of the exhibits, including the reports at issue, that
the trial court relied on were properly admitted during the bench trial. Therefore, Bosquett’s
argument is unpersuasive.



                                                 -6-
        Accordingly, the trial court did not err when it found that Bosquett was not entitled to
relief on this issue because it failed to present evidence that the benchmark had been met.

                     IV. COMMERCIAL LINES AND BENEFITS BOOK

      The parties contend that the trial court erred when it calculated the commissions due to
Bosquett in connection with the commercial lines and the benefits book. We consider the
arguments in turn, and reject them all.

        First, Sterling argues that payment of commissions was conditioned on Fischer’s
assistance with retaining existing customers, which is not a requirement included in the APA.
Section 1.7 states:

       [Fischer] will also assist [Sterling] in the transition of [Bosquett’s] clients and
       their existing Business to [Sterling] and generally retain the commercial and
       benefits insurance business (the “Commercial Book” and the “Benefits Book”).
       During the three (3) years period, ending August 31, 2012, [Sterling] will
       compensate [Bosquett] in all amount equal to 45% of commissions actually
       received for any type of insurance sold to customers from the Commercial Book
       and 35% of commissions actually received for any type of insurance sold to
       customers in the Benefit Book by [Sterling] during the subsequent three (3) years,
       based on the Commercial Book and the Benefits Book as determined from
       insurance provider reports for the year preceding September 1, 2009. …
       Payments for commercial and benefits accounts retained shall be based on audited
       insurance provider reports. . . . Commissions earned hereunder before August 31,
       2012, shall be payable to [Bosquett] if received within ninety (90) days. Any
       adjustment up or down will be retained by [Sterling].

        Although Sterling argues that it would have been in Bosquett’s best interest for Fischer to
provide assistance, and section 1.7 places on Fischer an obligation to assist, Fischer’s assistance
is not a precondition for payment of the commissions from Sterling to Bosquett. Thus, the trial
court did not err in its interpretation of the APA.

       Next, Sterling contends that the trial court erred when it amended its judgment to not
exclude the Wireless Vision account in its entirety. Schedule 1.2 lists the excluded assets as
follows:

       Wireless Vision, LLC

               Commissions associated with this account, if consummated, shall be
               assigned to Patrick F. Parke, who is currently employed by [Sterling].
               However, [Sterling] will be responsible for delinquent amounts owed to
               Auto Owners Insurance, to a maximum amount of [$9,000]. An amount
               paid in excess of the maximum amount shall be offset against payments to
               [Bosquett].




                                                -7-
       Customers in the Personal Lines Book Insured by Chubb Group of Insurance
       Companies.

       All tangible personal assets of [Bosquett] except the data storage server.

       Causes of action and claims against Gordon St. John, Conrad Conti, Craig Aiken,
       Jill Presley, Karen Brody and the Ralph C. Wilson Agency for breach of
       noncompete agreements, overpayments and tortious interference except for the
       right to obtain injunctive relief for breach of noncompetition agreements which
       will be held jointly and severally by [Bosquett] and [Sterling]. [Emphasis added.]

         Although Wireless Vision appears on the schedule as an excluded asset, the description
immediately following the entry indicates that the parties contemplated that Wireless Vision
would transfer to Sterling, and that in that event, “if consummated,” the commission “shall be
assigned to [Parke].” Thus, there is textual support in the APA for the trial court’s conclusion
that Wireless Vision was not intended to be excluded in its entirety. Sterling’s suggested
interpretation, that the entire commission was meant to go to Parke, also is reasonable.
However, even if this were sufficient to create an ambiguity, the trial court properly resolved it
by considering the conduct of the parties, e.g., the status of the other listed assets on schedule
1.2. See Lansing Mayor v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004) (a
contract is ambiguous when a term “is equally susceptible to more than a single meaning”)
(emphasis in original); Shay v Aldrich, 487 Mich 648, 660; 790 NW2d 629 (2010) (“[I]f the
language of a contract is ambiguous, courts may consider extrinsic evidence to determine the
intent of the parties.”); Klapp v United Ins Group Agency, Inc, 468 Mich 459, 470; 663 NW2d
447 (2003) (where the language of the contract is ambiguous, to aid in ascertaining the parties’
intent, the court can look to such extrinsic evidence as the parties’ conduct, the statements of its
representatives, and past practice) (citation omitted).

        Next, Sterling argues that the trial court erred when it included the Hartford account in
the commercial lines because Bosquett did not have the authority to sell this account, and
because the trial court’s decision results in an unfair outcome. As the trial court noted, the APA
provided an avenue for Sterling to seek recovery for Hartford’s claim against Bosquett.
Specifically, section 7.2 required Sterling to notify Bosquett of any claim and allow Bosquett to
defend the claim. It is undisputed that Sterling failed to properly notify Bosquett, and Sterling
cannot now complain that it suffers an unfair result due to its own failure to adhere to the terms
of the APA.

        Next, Sterling argues that Bosquett failed to carry its burden that it was entitled to the
commissions. The APA permits Bosquett to request the carrier reports directly from the
insurance companies, and Sterling contends that Bosquett failed and/or refused to obtain the
reports, and therefore, failed to carry its burden. Indeed, section 1.7 requires that “[p]ayments
for commercial and benefits accounts retained shall be based on audited insurance provider
reports.” However, the trial court relied on reports provided by Sterling, which demonstrated
that Sterling received payments subject to the 45% commission agreement under the APA.
Despite the admission by Mattes that Sterling’s records might be inaccurate, the reports
nonetheless demonstrated that Sterling received payments subject to the 45% commission under
the APA and Sterling cannot now rely on that evidence to avoid its liability. Additionally, the

                                                -8-
APA requires that the payments must be “based on audited insurance provider reports” but that
does not limit the trial court to considering only those types of reports. Rather, it was within the
province of the trial court to conclude that Sterling’s reports were also “based on audited
insurance provider reports.”

        Bosquett argues that the trial court erred in concluding that it did not produce evidence
regarding the benefits book because Fischer testified that this business represented by the
benefits book accounted for $30,000 to $80,000 annually before the sale, and that it was
impossible for this amount to reach $0 after closing. Further, Paulsell testified that “there were
identifiable cases that were benefits of Bosquett” in the benefits book. When evaluating the trial
court’s factual findings, we defer to the trial court’s superior ability to judge the credibility of the
witnesses who appeared at trial. Brooks v Rose, 191 Mich App 565, 570; 478 NW2d 731 (1991).
Although Bosquett correctly notes that the trial court received some testimony regarding the
benefits book, it clearly did not find that testimony credible. We will not disturb that credibility
determination.

      Accordingly, the trial court did not commit error requiring reversal when it calculated the
amount of commissions owed to Bosquett with regard to the commercial lines and the benefits
book.

                                    V. PRETRIAL INTEREST

      Bosquett argues that the trial court erred when it denied Bosquett’s request for
precomplaint interest. We disagree.

       Michigan has long recognized the common-law doctrine of awarding interest as
       an element of damages. The doctrine recognizes that money has a “use value” and
       interest is a legitimate element of damages used to compensate the prevailing
       party for the lost use of its funds. Furthermore, the decision whether to award
       interest as an element of damages is not dependent upon a contractual promise to
       pay interest.... [T]he pivotal factor in awarding such interest is whether it is
       necessary to allow full compensation. [Gordon Sel-Way, Inc v Spence Bros, Inc,
       438 Mich 488, 499; 475 NW2d 704 (1991) (citations omitted).]

       The trial court declined to award any precomplaint interest due to Bosquett’s delay in
bringing this action. Although the court had no discretion regarding interest after the date the
complaint was filed, we find no abuse of discretion in the denial of precomplaint interest as an
element of damages, particularly when plaintiff delayed in filing suit for almost a year and a half
from the dismissal of its initial complaint.

                                      VI. ATTORNEY FEES

       Bosquett argues that the trial court improperly denied its request for attorney fees
pursuant to the terms of the APA. We disagree.

        Attorney fees are generally not recoverable as costs from the losing party in the absence
of a statute or court rule authorizing an award of attorney fees. Haliw v Sterling Hts, 471 Mich

                                                  -9-
700, 706-707; 691 NW2d 753 (2005). However, an exception exists when parties specifically
contract for the payment of attorney fees. Grace v Grace, 253 Mich App 357, 370-371; 655
NW2d 595 (2002); Watkins v Manchester, 220 Mich App 337, 342; 559 NW2d 81 (1996).
When the provisions of a contract specifically contemplate attorney fees, they become part of the
damages awardable under the contract for breach of the contract. Central Transport, Inc v
Fruehauf Corp, 139 Mich App 536, 548-549; 362 NW2d 823 (1984).

       In this case, section 8.11 of the APA provides:

       In the event any suit of other legal proceeding is brought for the enforcement of
       any of the provisions of this Agreement, the parties agree that the prevailing party
       or parties shall be entitled to recover from the other party or parties upon final
       judgment on the merits reasonable attorney fees ....

       The parties dispute whether Bosquett is a “prevailing party” under the APA. The
contract does not define the term, and we must therefore give the term its ordinary meaning.
Barton-Spencer v Farm Bureau Life Ins Co of Michigan, 500 Mich 32, 39; 892 NW2d 794
(2017) (we give contractual terms their ordinary meaning when those terms are not defined in the
contract itself) (citation omitted). The dictionary provides the legal definition of “prevail” as “to
obtain substantially the relief or action sought in a lawsuit.” Merriam-Webster Online
Dictionary, <http://www.merriam-webster.com> (accessed December 20, 2019). Additionally,
Black’s Law Dictionary (11th ed) defines “prevailing party” as “[a] party in whose favor a
judgment is rendered, regardless of the amount of damages awarded.”

        Here, Bosquett successfully recovered a portion of the damages it sought in connection
with the commercial lines, but recovered nothing in connection with the benefits book, personal
lines, the phone bill, or prejudgment interest. Although the plain language definitions do not
require Bosquett to prevail in full, Bosquett falls far short of obtaining “substantially the relief
sought” in the present lawsuit. Thus, the trial court properly denied Bosquett’s request for
attorney fees pursuant to the APA.

        Sterling argues that because the trial court erred in its amendment which increased the
amount recoverable by Bosquett, it erred in granting case evaluation sanctions. We disagree.
Because the trial court did not commit error, as discussed supra, it properly granted attorney fees
as part of case evaluation sanctions pursuant to MCR 2.403(O).

                                       VII. CONCLUSION

        We conclude that the trial court did not commit error requiring reversal when it held (1)
that Bosquett was not entitled to payments in connection with the personal lines, (2) that
Bosquett was entitled to payments for commissions related to the commercial lines, including the
Wireless Vision account, but not for the benefits book, (3) that Bosquett was not entitled to
pretrial interest, and (4) that Bosquett was entitled to reasonable attorney fees as part of case
evaluation sanctions pursuant to MCR 2.403(O) but not attorney fees under the APA.

       Affirmed.


                                                -10-
       /s/ Michael J. Riordan
       /s/ David H. Sawyer
       /s/ Kathleen Jansen




-11-
