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07/07/95 THOMAS A. FISCHER v. CHEZ AMI LANES

COURT OF APPEALS OF MICHIGAN


July 7, 1995

THOMAS A. FISCHER, AND DONNA J. FISCHER, PLAINTIFFS-APPELLEES,
v.
CHEZ AMI LANES, AND SCALICI DEVELOPMENT CO., JOINTLY AND SEVERALLY, DEFENDANTS-APPELLANTS.

Before: McDonald, P.j., and Connor and P.h. Chamberlain,* JJ.

The opinion of the court was delivered by: Connor

CONNOR, J.

Defendants appeal as of right from the trial court's order denying their motion for sanctions pursuant to MCR 2.405. On appeal, defendants claim that the amount of plaintiffs' setoff, *fn1 like plaintiffs' comparative negligence, *fn2 must be deducted in computing the adjusted verdict amount for purposes of offer of judgment sanctions. We affirm.

The jury verdict awarded plaintiffs an amount that exceeded the average offer. Nevertheless, defendants argue that they should have been awarded sanctions pursuant to MCR 2.405 because, after deducting the $30,000 setoff, the final judgment of $27,512.53 was less than the average offer. The trial court, in denying defendants' motion for sanctions, ruled that the plain language of the court rule reflects an intention by the drafters to use the verdict only, not the final judgment, as the basis for sanctions. We agree.

MCR 2.405(D) provides for the payment of costs if an offer is rejected, using the adjusted verdict as the basis for comparison. The court rule specifically defines "adjusted verdict" as "the verdict plus interest and costs from the filing of the complaint through the date of the offer." MCR 2.405(A)(5). Pursuant to the court rule, an adjusted verdict does not include deductions of any setoff paid by another party to the lawsuit. MCR 2.405(A)(5); see Warden v Fenton Lanes, Inc, 197 Mich. App. 618, 623; 495 N.W.2d 849 (1992). Consequently, we believe the trial court used the proper method in calculating the adjusted verdict for purposes of determining sanctions.

Defendants have presented no authority to rebut the case law that consistently supports the trial court's ruling. See Warden, pp 622-623; Freeman v Consumers Power Co, 437 Mich 514, 519; 473 N.W.2d 63 (1991); Parkhurst Homes, Inc v McLaughlin, 187 Mich. App. 357, 362-366; 466 N.W.2d 404 (1991).

Accordingly, we find the trial court's decision and reasoning with respect to defendants' request for sanctions was proper.

Affirmed.

/s/ Michael J. Connor

/s/ Gary R. McDonald

/s/ Paul H. Chamberlain


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