High Quality
Open the downloaded document, and select print from the file menu (PDF reader required).
STATE
OF MICHIGAN
MACOMB COUNTY CIRCUIT
COURT SIMONNE
L.
GRABOW;
MARK
H. GRABOW; KIMBERLY
S.
GRABOW
and
BRENTWOOD
LIl'vIOUSINE, INC., a Michigan corporation;Plaintiffs,vs.
Case
No. 2007-0841-CZTOWNSHIP
OF
MACOMB,
,
a Michigan municipal corporation,
I'"~
'.
r~
Defendant.
__________________________________
~I
CP
.'
OPINION
AND ORDER
Defendant Township
of
Macomb moves for costs and attorney fees.
I.
BACKGROUNDAfter contentious and protracted proceedings, a
Consent Judgment
was signed September30, 2008 that provides in pertinent part:
6.
Inspection
of
Buildings at 20077 25-Mile Road.
With the exception
of
the residential structure currently used
by
Simonne Grabow as her home, Plaintiffs[Simonne
L.
Grabow, Mark H. Grabow, Kimberly S. Grabow and BrentwoodLimousine, Inc.] shall permit inspection
of
the buildings located at 20077 25-MileRoad by Macomb Township or its designees for the purpose
of
tax assessment andcompliance with building and zoning regulations.
***
12.
Enforcement.
In the event that a dispute arises out
of
the terms andconditions
of
this Consent judgment, the parties shall meet to discuss enforcement.In the event a resolution is not reached, either party
may
seek to enforce thisjudgment in the Macomb County Circuit Court. The prevailing party shall
be
entitled to recover costs and attorneys' fees necessitated to enforce this judgment.Despite the clear language
of
the
Consent Judgment,
plaintiffs did not arrange and/or permit
1
an inspection
of
the subject property. Hence, defendant was compelled to file a motion to enforcethe inspection provision
of
the
Consent Judgment.
An
Order
dated June
8,
2009 required plaintiffsto allow entry onto the property for purposes
ofthe
inspection within seven days.Defendant now moves for the recovery
of
its costs and attorney fees incurred in enforcingthe
Consent Judgment.
II.
ANALYSIS
In
Laffin
v
Laffin,
280 Mich App 513, 517; 760 NW2d 738 (2008), the court stated:A consent judgment is in the nature
of
a contract, and is to be construed andapplied as such.
Gramer
v
Gramer,
207 Mich App 123, 125; 523 NW2d
861
(1994).
If
no reasonable person could dispute the meaning
of
ordinary and plain contractlanguage, the Court must accept and enforce contractual language as written, unlessthe contract is contrary to law or public policy.
Rory
v
Continental Ins
Co,
473 Mich457,468; 703 NW2d
23
(2005).
In
general, consent judgments are final and bindingupon the court and the parties, and cannot be modified absent fraud, mistake,
or
unconscionable advantage.
Staple
v
Staple,
241
Mich App 562, 564; 616 NW2d 219
(2000); Walker
v
Walker,
155
Mich App 405, 406-407; 399 NW2d
541
(1986).The
Consent Judgment
plainly provides for an award
of
costs and attorney fees to the partyprevailing in enforcing the terms thereof.Plaintiffs Simonne Grabow, (Estate of) Kimberly Grabow and Brentwood Limousine'sobjections based on the validity
of
the
Consent Judgment
have been previously addressed and foundto lack merit. The objections will not be addressed further.While the
Consent Judgment
envisioned the parties would "meet to discuss enforcement",the record is replete with evidence suggesting plaintiffs Simonne Grabow, (Estate of) KimberlyGrabow and Brentwood Limousine failed to respond to any such requests. Plaintiffs SimonneGrabow, (Estate of) Kimberly Grabow and Brentwood Limousine can not frustrate this languageand then rely on it to defeat defendant's claim. Compare
Baith
v
Knapp-Stiles, Inc,
380 Mich 119,126; 156 NW2d 575 (1968).
2
Similarly, defendant Mark Grabow's ''willingness'' to allow an inspection is repudiated byhis
repeated
failures
to
actually schedule an inspection.Hence, defendant
is
entitled to its costs and attorney fees incurred in enforcing the
ConsentJudgment.
In
Morris v Detroit,
189
Mich App 271, 278-279; 472 NW2d 43 (1991), the court stated:We recognize that there
is
no precise fonnula for assessing the reasonableness
of
anattorney's fees. Nevertheless, in
Crawley v Schick,
48 Mich App 728, 737; 211NW2d 217 (1973), this Court enumerated several nonexclusive factors appropriatelyconsidered for such a detennination, including:(1) the professional standing and experience
of
the attorney;(2) the skill, time and labor involved; (3) the amount in question andthe results achieved; (4) the difficulty
of
the case; (5) the expensesincurred; and (6) the nature and length
of
the professionalrelationship with the client.While the trial court should consider these factors, its decision need not
be
limited
to
these guidelines. [Cites omitted.] We believe the trial court may also properlyconsider that the attorney originally agreed to render services on a contingency basis.As evidenced by his affidavit, Gregory
K.
Need is an experienced attorney with an excellentreputation. His hourly rate
of
$150 is reasonable. However, while Need was successful, enforcingthe
Consent Judgment
was a relatively straightforward matter. Some
of
the time spent on the matteris excessive given the lack
of
complexity
of
the issue( s).Defendant seeks
to
recover 6.4 hours
at
$60 per hour for a "clerk/paralegal". However, therecord is devoid
of
any evidence that would pennit an award for the time and labor
of
a legalassistant under MCR 2.626.Defendant also seeks to recover $123.55 for copying costs. However, defendant has failed toproffer any evidence as
to
the number
of
copies to detennine the reasonableness
of
this cost.Therefore, defendant is limited to recovering a reasonable attorney fee of$2,500 and the $20cost
of
filing the motion.III. CONCLUSION
3
Add a Comment