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### STATE OF MICHIGAN

COURT OF APPEALS

LARRY A. SPEET and S’TEL GROUP, LLC,

Plaintiffs/Counter DefendantsAppellants/Cross Appellees, UNPUBLISHED May 11, 2017

v No. 330168 Kent Circuit Court SINTEL, INC, LC No. 12-009225-CK

Defendant/Counter PlaintiffAppellee/Cross Appellant.

Before: W ILDER , P.J., and B OONSTRA and O’B RIEN , JJ.

P ER C URIAM

.
In this contractual dispute over sales commissions, plaintiffs -counter defendants Larry A. Speet (Speet) and S’Tel Group, LLC (S’Tel) (collectively, plain tiffs), appeal as of right the trial court’s judgment in favor of plai ntiffs following a bench trial . Defendant-counter plaintiff, Sintel, Inc (Sintel), claims its cross-appeal from that same ju dgment. We affirm in part, reverse in part, and remand for entry of an amended judgment consistent with this opinion.

I. FACTUAL BACKGROUND

This case arises out of contractual agreements executed betwee n the parties both before and after a change of management at Sintel. In March 2001, Sin tel sent a proposed memorandum agreement (the 2001 agreement) to Speet, offering to pay him varying sales commissions for the generation of certain new business, and Spe et accepted. In pertinent part, the 2001 agreement contained a termination clause, which provid ed, “THIS COMMISSION ARRANGEMENT MAY BE TERMINATED BY EITHER PARTY UPON 90 DAYS WRITTEN NOTICE. SINTEL IS RESPO NSIBLE FOR PAYING COMMISSIONS O NLY ON SHIPMENTS THAT OCCUR WITH IN [ sic] 90 DAYS AFTER TERMINATION.”

After they entered the 2001 agreement, the parties’ contractua l relationship endured for over a decade unchanged. In N ovember 2011, however, Sintel was purchased by new owners, and Nicholas Kulkarni became Sintel’s president and chief execu tive officer. Following this change in Sintel’s ownership and management, the parties began to renegotiate the terms of their agreement. Ultimately, the parties executed a new memorandum a greement, drafted by Speet (the 2012 agreement), which added S’Tel as a party to the contr act. The 2012 agreement provided, among other things, “I [i.e., Speet] will support the parts/project(s) as project liaison-2- (sales rep.) and retain the acc ount for the life of the project but no later than April of 2014 at which time I would like to renegotiate and renew the terms and conditions of this contract.” Unlike the 2001 agreement, the 2012 agreement did not contain a termination clause.

Speet and Kulkarni gave confli cting testimony regarding the substance of the negotiations leading up to the execution of the 2012 agreement. According to Speet, the parties decided to entirely void the 2001 agreement and to replace it w ith a new, fully integrated expression of their intent. As evidence, Speet produced his Ma rch 30, 2012 email to Kulkarni, in which Speet wrote, “I’m in total agreement to immediately VOID the contract I have with the previous owners of Sintel and see if we can agree on a new one. ” Contrastingly, Kulkarni testified that the 2012 agreement was intended as an “update” t o the 2001 agreement—not a replacement—further testifying th at he never agreed to “void” the 2001 agreement, and that he explained to Speet that the termination clause from the 2001 ag reement was important to Sintel and that Kulkarni wanted it to r emain a part of the parties’ ag reement.

Roughly a month after the parties executed the 2012 agreement, Sintel sent notice to Speet that it was terminating th e parties’ agreement—pursuant t o the termination clause in the 2001 agreement—for reasons not germane on appeal. For 90 days after the date of the termination notice, Sintel cont inued to pay commissions to Spee t, thereby attempting to comport with the terms of the termina tion clause in the 2001 agreement.

Plaintiffs subsequently instituted this action, alleging a sin gle count against Sintel— breach of contract—while requesting several remedies, including ongoing “commissions on all sales made by Plaintiffs to a ny accounts originally procured (d irectly or indirectly ) by Plaintiffs,” double damages under the penalty provision of the sales represe ntatives’ commissions act (SRCA), MCL 600.2961, 1 and statutory attorney fees under the SRCA. Among other alleg ations in their amended complaint, plaintiffs alleged (1) that the par ties had “agreed to void” the 2001 agreement entirely and “negotiate a contract with a specific te rm,” (2) that under the terms of the 2012 agreement, plaintiffs were entitled to the payment of comm issions from Sintel through April 2014, (3) that Sintel’s termination contravened the terms of the 2012 agreement, and (4) that Sintel’s failure to pay plaintiffs the commissions owed wi thin 45 days of the date they became due was a violation of the penalty provision of the SRCA . Sintel answered plaintiffs’ amended complaint and alleged sev eral counterclaims, including one for breach of contract.

The parties subsequently filed competing motions for summary d isposition of all claims and counterclaims in the action, citing documentary evidence in support of their varying positions. After considering the matter, the trial court denie d the parties’ respective motions for summary disposition, reasoning as follows:

1 Although it comprises one section of the revised judicature act of 1961 (RJA), MCL 600.101 et
seq ., MCL 600.2961 is commonly referred to as the sales representatives’ commissions act (SRCA). See, e.g., Frank W Lynch & Co v Flex Technologies, Inc , 463 Mich 578, 579; 624 NW2d 180 (2001).-3- In most complex commercial cases with substantial paper trails , the competing sides usually can agree on many of the facts underlyi ng their dispute. Here, in contrast, the competing parties do not seem to agree o n anything. Not surprisingly, the muddled and hotl y-contested record renders it impossible to grant summary disposition under MCR 2.116(C)(10) to either side

. Consequently, the Court must c onduct a trial to bridge the chas m between the two sides’ positions.

The matter was submitted to cas e evaluation, which resulted ina unanimous evaluation of $55,000 in plaintiffs’ favor. Plainti ffs rejected the case eva luation, whereas Sin tel accepted it.

On December 30, 2013, the trial court issued a notice instruct ing the parties and their counsel to appear for a settlement conference on March 10, 2014 . The notice conspicuously stated the following:

IMPORTANT: READ THIS CAREFULLY

“ALL PARTIES ARE TO APPEAR WITH THEIR COUNSEL AND, IN THOSE CASES WITH INSURANCE COVERAGE, AN INSURANCE COMPANY REPRESENTATIVE AUTHORIZED TO ENGAGE IN MEANINGFUL SETTLEMENT NEGOTIA TIONS. NOTE: FAILURE TO ATTEND THIS CONFERENCE WILL LIKELY RESULT IN A DEFAULT OR DISMISSAL OF THIS CASE P URSUANT TO MCR 2.401(G)(1).”

Nevertheless, neithe r Sintel’s counsel nor any representative o f Sintel appeared f or the settlement conference. In response, plaintiffs’ counsel orally requested that a default be entered against Sintel pursuant to MCR 2.401(G)(1 ). The trial court set the ma tter for a hearing, ordering Sintel and its counsel to appear and show cause why a default should n ot enter against it.

Before the ensuing show-cause hearing, plaintiffs submitted a memorandum to the trial court arguing that the proper remedy for S intel’s failure to attend the settlement conference was a default. At the hearing, Sintel’s counsel accepted responsibil ity, stating that Sintel’s failure to appear was attributable to a calendaring error. After entertai ning more than an hour of oral argument, the trial court held that it would take the matter un der advisement. The court later issued a reasoned, five-page order, refusing to enter a default against Sintel but awarding plaintiffs, as sanctions, their reasonable attorney fees relate d to preparing for and attending both the settlement conference and show-cause hearing, plus any rela ted travel expenses or lost income suffered by Speet.

After a six-day bench trial, the court rendered its verdict. With regard to the parties’ competing breach of contract claims, the court ruled in plainti ffs’ favor, but not concerning all of-4- the allegations in plaintiffs’ complaint. 2 Based on both an examin ation of the contractual language and parol evidence of the parties’ intent, the trial c ourt determined that the termination clause from the 2001 agreement “survived” the 2012 “revision” o f that agreement. The trial court further determined that th e termination clause obligated Sintel to pay Speet commissions for 90 days following the notice of termination. Noting that K ulkarni had admitted as much while testifying, the trial cour t found that Sintel had failed to fully meet its obligations under the termination clause because it had issued one commission check that was “inadequate” and failed to pay any of the commissions owed to Kulkarni for August 2012. On that basis, the trial court held that Sintel had breached the parties’ agreement, awarding Speet $6,865.72 in unpaid commissions.

Turning to the SRCA aspect of pl aintiffs’ claim, the trial cou rt found that Sintel’s failure to timely pay some of the commissions owed under the terminatio n clause was a “mistake” that “was truly inadvertent, rather than intentional in any sense of the word.” Hence, the court held that plaintiffs were unentitled t o double damages under the pen alty provision of the SRCA, MCL 600.2961(5)(b). On the other hand, t he trial court held that p laintiffs were entitled to reasonable costs and attorney fees under the SRCA, having satisfied the “n arrow” definition of “prevailing party” set forth in MCL 600.2961(6). The court reasoned that p laintiffs were the “prevailing party” because Speet “ha[d] won on the merits of his claim agai nst Sintel for post-termination commissions, he ha[d] obtained an award of damages to compensat e him for those unpaid commissions, and he ha[d] won on e very counterclaim advanced by Sintel.”

After the trial court rendered its verdict in favor of plainti ffs, they filed a motion seeking payment of their reasonable costs and attorney fees under the S RCA. Sintel filed a competing motion seeking its reasonable costs and attorney fees as case e valuation sanctions. After considering the matter, the trial court decided that plaintiffs were entitled to statutory attorney fees of $179,057.50, 3 plus costs of $4,112.42 and sanctions of $577.50 (for Speet’s travel to the settlement conference), for a total award of $183,747.42. The trial court also decided, however, that Sintel was entitled to case evaluation sanctions of $167,8 31.17, reasoning that, even after adjustment for costs and interest, the verdict of $6,865.72 in plaintiffs’ favor was more favorable to Sintel than the case evaluation award because the adjusted v erdict was more than 10% below the case evaluation of $55,000. In so deciding, the trial cour t did not consider the statutory attorney fees awarded to plaintiffs to be part of the adjusted “verdict” for case evaluation purposes. After offsetting the case evaluation sanctions award ed to Sintel against the statutory costs, statutory attorney fees, and sanctions awarded to plaint iffs, the trial court awarded plaintiffs a total of $15,916.25 in costs and fees. Adding to that amount its verdict of $6,865.72, the trial court ultimately entered a judgment of $22,781.97 in plaintiffs’ favor.

2 The court rejected all of Sint el’s counterclaims, including th e breach of contract claim, reasoning, in pertinent part, that there was “no basis whatsoev er” to find that plaintiffs breached the parties’ agreement.

3 This figure was inclusive of the $17,167.50 of attorney fees t he trial court had previously awarded plaintiffs as sanctions f or Sintel’s failure to attend a settlement conference.-5- The parties’ instant appeals ensued.

II. STANDARDS OF REVIEW

The several issues raised on appeal implicate several standard s of review. We review de novo whether a trial court properl y construed and applied the a ppropriate statutes, In re Bibi Guardianship , 315 Mich App 323, 328; 890 NW2d 387 (2016), and court rules, Garrett v Washington , 314 Mich App 436, 450; 886 NW2d 762 (2016). We also review d e novo a trial court’s decision regarding a mo tion for summary disposition. Heaton v Benton Constr Co , 286 Mich App 528, 531; 780 NW2d 618 (2009).

A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. Summary disposition is approp riate under MCR 2.116(C)(10) if th ere is no genuine issue regarding any mate rial fact and the moving party is entitled to judgment as a matter of law. In reviewing a motion under MCR 2 .116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to t he nonmoving party to determine whether any genuine issue of material fact e xists to warrant a trial. A genuine issue of mater ial fact exists when the record , giving the benefit of reasonable doubt to the opposing party, leaves open an issue up on which reasonable minds might differ. [ Zaher v Miotke , 300 Mich App 132, 139-140; 832 NW2d 266 (2013) (quotations marks and citations omitted).]

“This Court is liberal in finding genuine issues of material fa ct.” Jimkoski v Shupe , 282 Mich App 1, 5; 763 NW2d 1 (2008). With regard to summary dispositio n, “we must limit our review to the evidence presented to the trial court at the time [the] motion was decided.” Peña v Ingham Co Rd Comm , 255 Mich App 299, 313 n 4; 660 NW2d 351 (2003).

“Following a bench trial, we review a trial court’s factual fi ndings for clear error and its conclusions of law de novo,” Scholma v Ottawa Co Rd Comm , 303 Mich App 12, 16; 840 NW2d 186 (2013), including its conclu sions about whether a contract exists and, if so, how that contract is properly interpreted, Kloian v Domino’s Pizza LLC , 273 Mich App 449, 452; 733 NW2d 766 (2006). “A finding is clearly err oneous if there is no evident iary support for it or if this Court is left with a definite and firm conviction that a mistake has bee n made.” Chelsea Investment Group LLC v City of Chelsea , 288 Mich App 239, 251; 792 NW2d 781 (2010). “The trial court’s findings are given great deference because it is in a b etter position to examine the facts.” Id

. “We review a trial court’s decision regarding sanctions for an abuse of discretion.” Kaftan v Kaftan , 300 Mich App 661, 668; 834 NW2d 657 (2013). Similarly, “[a]l though this Court reviews de novo a trial cour t’s decision to grant case-ev aluation sanctions, the amount awarded as reasonable attorney fees is reviewed for an abuse of discretion.” McNeel v Farm Bureau Gen Ins Co of Mich , 289 Mich App 76, 97; 795 NW2d 205 (2010). “A trial court abu ses its discretion when it chooses an outcome falling outside the r ange of reasonable and principled outcomes, or when it makes an error of law.” Thomas M Cooley Law Sch v Doe 1 , 300 Mich App 245, 263; 833 NW2d 331 (2013) (footnote omitted).-6- III. ANALYSIS

A. SUMMARY DISPOSITION

Sintel first argues that the trial court erred by denying Sint el’s motion for summary disposition under MCR 2.116(C)(10). We disagree.

The basis for Sintel’s instant claim of error is its contentio n that the trial court erred by considering parol evidence whether the 2012 agreement was inten ded as an amendment or a replacement of the 2001 agreement. It is true that “[p]arol ev idence is generally not admissible to vary or contradict the terms of a clear and unambiguous contract.” Smith v Smith , 292 Mich App 699, 702; 823 NW2d 114 (2011). One exception, however, is that “parol evidence of prior or contemporaneous agreements or negotiations is admissible on the threshold question whether a written contract is an integrated instrument that is a comple te expression of the parties’ agreement.” UAW-GM Human Resource Ctr v KSL Recreation Corp , 228 Mich App 486, 492; 579 NW2d 411 (1998) (emphasis added). See also Schmude Oil Co v Omar Operating Co , 184 Mich App 574, 580; 458 NW2d 659 (1990) (“A prerequisite to the application of this rule [i.e., the parol evidence rule] . . . is a finding that the parties in tended the written instrument to be a complete expression of their agreement. Thus, extrinsic eviden ce of prior or contemporaneous agreements or negotiations is admissible as it bears on the thr eshold question of whether the written instrument is . . . integ rated[.]”). In other words, b efore it can decide whether a written agreement is unambiguous and thus subject to the parol evidence rule, a court must first determine what, exactly, constitutes that agreement. Here, the 2012 agreement contains no integration clause, and the parties cited conflicting parol evi dence about whether they intended the 2012 agreement to be fully integrated—i.e., whether the 201 2 agreement was intended as an amendment or a superseding replacement of the 2001 agreement. Such conflicting evidence yielded a genuine issue of materia l fact for resolution at tria l. Consequently, the trial court did not err by denying Sintel’s moti on for summary disposition unde r MCR 2.116(C)(10).

B. VERDICT

In varying ways, both plaintiffs and Sintel argue that the tri al court either misinterpreted or misapplied the parties’ agreement following trial, further arguing that the trial court’s verdict relied on clearly erroneous fact ual findings. We disagree in a ll respects.

As we have already clarified, it was appropriate for the trial court to consider parol evidence on the threshold question of whether the 2012 agreemen t was fully integrated, and we reject plaintiffs’ argument to the contrary. After duly consid ering such evidence at trial, the court decided that the parties intended the 2012 agreement as a n amendment to the 2001 agreement, not a replacement. We perceive no clear error in th e trial court’s finding in that respect. Indeed, given the c onflicting testimony of Speet and Kulkarni on this topic, the trial court’s finding represents a cre dibility determination that we will not displace on appeal. See Richards v Richards , 310 Mich App 683, 694; 874 NW2d 704 (2015) (“[T]his Court def ers to a trial court’s findings of fact stemming from credibility determ inations.”). For that same reason, we also defer to the trial court’s finding that Speet did not b reach the parties’ agreement before Sintel did so. Although Kulkarni testified that Speet failed t o perform, both Speet and a representative from one of Sintel ’s corporate customers testifi ed to the contrary. Considering the-7- inherent credibility determina tions underlying the trial court’ s finding that Speet did perform, we will not replace our judgment, formed by reviewing the one-dime nsional text of a trial transcript, for that of the trial court, which was formed while observing l ive testimony over the course of several days.

Furthermore, we perceive no erro r in the trial court’s ultimat e interpretation of the parties’ agreement. “When inter preting a contract, this Court’ s primary task is to determine the intent of the contracting partie s. If a contract’s language is not ambiguous, this Court will construe the contract and enforce its terms as written.” Trader v Comerica Bank , 293 Mich App 210, 215-216; 809 NW2d 429 (2011). “[W]hen parties enter into multiple agreements relating to the same subject-matter, we must read those agreements together to determine the parties’ intentions.” Wyandotte Elecric Supply Co v El ectrical Technology Sys, Inc , 499 Mich 127, 148; 881 NW2d 95 (2016). However, “where the parties expressly modi fy their previous contract, rescission of the terms of the prior agreement is a necessary i mplication. By the clear expression of the parties, contradictory provisions in the prior agreement are waived .” Quality Products & Concepts Co v Nagel Precision, Inc , 469 Mich 362, 373; 666 NW2d 251 (2003) (first emphasis added).

Turning to the facts of this ca se, after deciding that the par ties intended the 2012 agreement to serve as an amendment of the 2001 agreement, it wa s proper for the trial court to conclude that the 2001 agreement’s termination clause survived as part of the parties’ contract. Because the 2012 agreement did not cover the subject of termina tion, the 2001 agreement’s termination clause was consistent with—and not waived by—the te rms of the 2012 agreement. Therefore, Sintel was entitled to terminate the parties’ agreem ent at will but, after doing so, was required to compensate plaintiffs for commissions on shipments that occurred within 90 days following termination.

Nor is this construction inconsistent, as plaintiffs argue, wi th the portion of the 2012 agreement which indicated that Speet would “retain the account for the life of the project but no later than April of 2014. . . .” Plaintiffs’ argument attempts to create dissonance between two provisions that are harmonious. The termination clause provide d that the parties’ agreement could be terminated 90 days aft er written notice was provided, which is in no way inconsistent with the parties’ agreement that Speet would retain the account for the life of the project. The termination provision merely afforded the parties an option to shorten the duration of their agreement, regardless of the l ifespan of any projects it covere d.

C. STATUTORY ATTORNEY FEES UNDER THE SRCA

Sintel argues that the trial court erred by deciding that plai ntiffs were the “prevailing party” for SRCA purposes pursuan t to MCL 600.2961(1)(c). We ag ree.
As part of the RJA, the SRCA “is remedial in character, and sh all be liberally construed to effectuate the intents and purposes thereof.” MCL 600.102. However, such rules of liberal construction “are employed to resolve ambiguities , not negate the import of clear statutory requirements.” Rakestraw v Gen Dynamics Land Sys, Inc , 469 Mich 220, 233 n 12; 666 NW2d 199 (2003) (emphasis added). When the statutory language “is c lear and unambiguous, the plain meaning of the statute reflects the legislative intent and judi cial construction is not permitted.”-8- Tryc v Michigan Ve terans’ Facility , 451 Mich 129, 136; 545 NW2d 642 (1996). “Normally, this Court will accord an undefined statutory term its ordinary and commonly used meaning. However, where the Legislature uses a technical word that has a cquired a particular meaning in the law, and absent any contrary legislative indication, we con strue it ‘according to such peculiar and appropriate meaning.’ ” Grange Ins Co of Mich v Lawrence , 494 Mich 475, 493; 835 NW2d 363 (2013) (footnote omitted), quoting MCL 8.3a. “[W]hen a sta tute specifically defines a given term, that definition alone controls.” Tryc , 451 Mich at 135.

Attorney fees provided under the SRCA are a statutory exceptio n to the general rule followed by Michigan Courts, i.e. , the “American rule,” under w hich attorney “fees are not generally recoverable unless a statute, court rule, or common-l aw exception provides otherwise.” See Silich v Rongers , 302 Mich App 137, 147-148; 840 NW2d 1 (2013). See also Matras v Amoco Oil Co , 424 Mich 675, 695; 385 NW2d 586 ( 1986) (“Attorney fees ordinarily are not recoverable at common law, but may be recoverable where a statu te specifically so provides.”). Exceptions to the American rule are narrowly construed. Fleet Bus Credit v Krapohl Ford Lincoln Mercury Co , 274 Mich App 584, 589; 735 NW2d 644 (2007).

Likewise, the exception provided by the SRCA is narrowly draft ed. Peters v Gunnell, Inc , 253 Mich App 211, 223; 655 NW2d 582 (2002). As the Peters Court explained, in MCL 600.2961(1)(c) “the Legislature chose to severely limit the ins tances where reasonable attorney fees and costs are awarded,” and hence “a party cannot be deeme d a prevailing party entitled to reasonable attorney fees and court costs unless that party is f ound to have prevailed fully on each and every aspect of the claim or defense asserted under the SRC A.” Peters , 253 Mich App at 223.

As a preliminary matter, the trial court erred by determining that plaintiffs’ victory with regard to “every counterclaim advanced by Sintel” was pertinent to the question of whether plaintiffs were the prevailing parties for SRCA purposes. See id . at 225 (“Because the attorney fees provision of the SRCA relates only to prevailing parties o n original causes of action under the SRCA and responses to those actions, we conclude that the d isposition of defendant’s countercomplaint has no bearing on plaintiff’s entitlement to a ttorney fees and costs under the SRCA.”).

The trial court further erred by deciding that plaintiffs had satisfied the narrow definition of “prevailing party” provided by subsection (1 )(c). Contrary to plaintiffs’ argument on appeal, the narrowness of this statutory definition must not deter us f rom faithfully interpreting the statutory language. See State Farm Fire & Cas Co v Old Republic Ins Co , 466 Mich 142, 149; 644 NW2d 715 (2002) (“It is not the role of the judiciary to se cond-guess the wisdom of a legislative policy choice; our c onstitutional obligation is to interpret—not to rewrite—the law.”). In this case, plaintiffs did not prevail regarding either each and every aspect of their SRCA cause of action or all responses filed to it. On the contrary, the trial court specifi cally rejected plaintiffs’ allegations (1) tha t the parties had “agreed to voi d” the 2001 agreement entirely and “negotiate a contract with a specific term,” (2) that under the terms of the 2012 agreement, plaintiffs were entitled to the payment of commissions from Sin tel through April 2014, (3) that Sintel’s termination of the agreement contravened the 2012 agre ement, and (4) that Sintel’s failure to pay plaintiffs the commissions owed within 45 days o f the date they became due was a violation of the penalty provision of the SRCA. Furthermore, t he trial court’s rejection of those-9- allegations naturally had the equal and opposite effect; it con stituted acceptance of several of Sintel’s responses and defenses to plaintiffs’ amended complaint. Therefore, plaintiffs were not the “prevailing party” entitled to attorney fees under the SRCA

. 4 By holding otherwise, the trial court erred.

D. SETTLEMENT-CONFERENCE SANCTIONS

Sintel contends that the trial court abused its discretion by awarding plaintiffs attorney fees and costs related to Sintel ’s failure to appear at a settl ement conference. We disagree.

“[T]rial courts possess the inh erent authority to sanction lit igants and their counsel, including the power to dismiss an action.” Maldonado v Ford Motor Co , 476 Mich 372, 376; 719 NW2d 809 (2006). “This power is not governed so much by ru le or statute, but by the control necessarily vested in courts to manage their own affair s so as to achieve the orderly and expeditious disposition of cases.” Id . However, trial courts are also invested with the power to sanction by both statute and court rule. Id . Of particular note in this case are MCL 600.611 (“Circuit courts have jurisdic tion and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.”), MCR 2.504(B)(1) (“If a party fails to comply with these rules or a court or der, upon motion by an opposing party, or sua sponte, the court may enter a default against the noncomplyi ng party or a dismissal of the noncomplying party’s action or claims.”), and MCR 2.401(G), w hich provides as follows:

(G) Failure to Atte nd or to Participate.

(1) Failure of a party or the party’s attorney or other repres entative to attend a scheduled conference or to have information and author ity adequate for responsible and effective partic ipation in the conference for a ll purposes, including settlement, as directed by the court, may constitute a default to which MCR 2.603 is applicable or a ground for dismissal under MCR 2.5 04(B).

(2) The court shall excuse a f ailure to attend a conference or to participate as directed by the court, and shall enter a just order other th an one of default or dismissal, if the court finds that

4 We find plaintiffs’ reliance on HJ Tucker & Assoc, Inc v Allied Chucker & Engineering Co

, 234 Mich App 550, 560-561; 595 NW2d 176 (1999), misplaced. HJ Tucker is distinguishable because the question at issue there is not at issue here. In HJ Tucker , the question was whether a plaintiff who pleaded several cla ims—both related and unrelated to the SRCA—and failed to prevail on all claims , could nevertheless be considered the “prevailing party” under MCL 600.2961(1)(c). Id . at 555-561. Contrastingly, in this case, as in Peters , the analysis involves only a single claim—one pursued under the SRCA—and thus the issue is drawn t o a finer point: whether a plaintiff must prevail on all allegations in support of its SRCA cause of action to be the prevailing part y under MCL 600.2961(1)(c).-10- (a) entry of an order of default or dismissal would cause mani fest injustice; or

(b) the failure was not due to the culpable negligence of the party or the party’s attorney.

The court may condition the order on the payment by the offendi ng party or attorney of reasonable expenses as provided in MCR 2.313(B)(2).

Because “[d]ismissal is a drastic step that should be taken cautiously,” “[b]efore imposing such a sanction, the trial court is required to carefully evaluate all available options on the record and conclude that the sanction of dismissal is just and proper.” Vicencio v Ramirez , 211 Mich App 501, 506; 536 NW2d 280 (1995). In deciding whether dismissal i s an appropriate remedy, the trial court should—on the recor d—consider the following nonexhaustive list of factors:

(1) whether the violation was wilful or accidental; (2) the par ty’s history of refusing to comply with previous court orders; (3) the prejudic e to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sancti on would better serve the intere sts of justice. [ Id . at 507.]

Here, Sintel contends that the trial court abused its discreti on by awarding plaintiffs costs and attorney fees not directly related to the settlement conference. In other words, Sintel argues that plaintiffs were unentitled to costs and attorney fees accr ued in preparing for and attending the show-cause hearing. Sintel is incorrect. At the time plai ntiffs initially requested a default, they had no way of knowing whether the failure of Sintel and it s counsel to appear for the settlement conference was inadvertent, nor did the trial court have such knowledge when it scheduled the show-cause hearing. Indeed, the purpose of that hearing was for Sintel to show cause why a default should not enter against it, and the trial court was required to hold suc h a hearing to determine the proper sanction for Sintel’s failure t o appear. See id . Given the trial court’s discretion to grant a default against Sintel, it was en tirely reasonable for plaintiffs to advocate for that remedy. That the trial court ultimately decl ined to issue a default does not detract from the propriety of plaintiffs’ request for one. 5 The length of time that the trial court spent on this matter and the depth of its analysis demonstrate that plaintiffs’ position was not frivolous. Hence, the trial court did not abuse its discretion by granting plaintiffs sanctions inclusive of all fees incurred as a consequence of Sintel’s fai lure to attend the settlement conference.

5 We do not suggest that a request for a default under MCR 2.401 (G) will always be reasonable, only that plaintiffs’ request in this case was reasonable based on the surrounding facts and circumstances.-11- E. CASE EVALUATION SANCTIONS

On the topic of case evaluation sanctions, the parties present us with several competing claims of error. We reject each.

1. ATTORNEY FEES AS PART OF THE CASE EVALUATI ON “VERDICT”

Positing that the statutory attorney fees awarded under the SR CA should have been included as part of the adjuste d verdict for case evaluation purposes under MCR 2.403(O), plaintiffs contend that the tri al court erred by deciding that Sintel was entitled to case evaluation sanctions. 6 Because we conclude that plaintiffs were not entitled to cos ts and fees under the SRCA, plaintiffs’ instant claim of error necessarily fails. It also fails because, even if plaintiffs could demonstrate their entitleme nt to the statutory attorney f ees in question, there is no record evidence indicating that such fees were considered by the case evaluators as part of their valuation; rather, the relevan t evidence supports the opposite conclusion. See Ivezaj v Auto Club , 275 Mich App 349, 366; 737 NW2d 807 (2007) (“[I]n the absence of evidence to the contrary, we assume that the case evaluators did not include th e value of these attorney fees in their valuation of the case. Therefore, the award of attorney fees should not be included as part of the “verdict” when determini ng if a party is liable for case evaluation sanctions.”).

2. AMOUNT OF ATTORNEY FEES AWARDED

As aptly described by the trial court, this case represents “t he hypertrophy of attorney-fee litigation,” with the combined filings on that issue in the low er court tipping the scales at over 30 pounds. On appeal, both plaintiffs and Sintel continue to disp ute the reasonableness of the attorney fees awarded to Sintel. Plaintiffs contend that the amount awarded was “grossly excessive,” whereas Sintel conte nds that it should have been aw arded additional fees for having a second attorney represent it at trial. We disagree in both r espects.

“[T]he burden of proving the reasonableness of the requested f ees rests with the party requesting them.” Smith v Khouri , 481 Mich 519, 528-529; 751 NW2d 472 (2008). In determining a reasonable fee, “a trial court should begin its a nalysis by determining the fee customarily charged in the locality for similar legal services, ” using “reliable surveys or other credible evidence of the legal market” to do so. Id . at 530-531. The trial court should then multiply the reasonable hourly rate “by the reasonable number o f hours expended in the case,” and the product “should serve as the starting point for calcula ting a reasonable attorney fee.” Id

. at 531. “Thereafter, the court should consider . . . whether a n up or down adjustment is appropriate” based on the two nonexhaustive lists of factors se t forth in Smith , several of which are overlapping. Id . at 529-530.

6 Plaintiffs do not argue that the trial court should have inclu ded their SRCA attorney fees as “assessable costs” under MCR 2.403( O)(3), instead correctly not ing that any such argument is undone by the contrary holding in Dessart v Burak , 470 Mich 37, 42; 678 NW2d 615 (2004).-12- In the instant case, after consulting the 2014 Economics of Law Practice Survey, the trial court determined a reasonable hourly rate for each of the five attorneys Sintel had employed since case evaluation. Plaintiffs offer no argument or evidenc e that those hourly rates were unreasonable.

Next, the trial court engaged in a thoughtful analysis of the reasonable number of hours spent by each of Sintel’s attorn eys since it received notice of the results of case evaluation. The trial court allowed the majority of the billings but disallowed others as unreasonable, including time spent in preparation for the settlement conference that Si ntel failed to attend, time billed by attorney Ryan that the court f ound to be “either redundant or s imply fabricated,” time spent transferring Sintel’s case from one law firm to another, the ti me billed for attorney Ryan’s presence as “second chair at trial,” and time billed for support staff whose professional qualifications had not been proven by record evidence. By mult iplying each attorney’s reasonable number of hours work ed by his or her reasonable hour ly rate, the trial court arrived at a total of $167,747.75.

Thereafter, the trial court c onsidered the nonexhaustive facto rs iterated by Smith and decided that there was “no basi s to either increase or decrease the calculated amount” of fees. The court reasoned that the figur e at which it had arrived was reasonable “in every sense,” further reasoning that “the atto rney fees incurred by Sintel after the plaintiffs rejected the caseevaluation award line up consis tently with the attorney fees cl aimed by the plaintiffs for that same period of time.”

We perceive no abuse of discret ion in the trial court’s ruling . “An abuse of discretion is not simply a matter of a difference in judicial opinion,” Augustine v Allstate Ins Co , 292 Mich App 408, 419; 807 NW2d 77 (2011), and plaintiffs offer no concr ete analysis of how the trial
court should have ruled—or why it should have ruled differently—instead mer ely announcing that the fees awarded to Sintel were grossly excessive. Upon p lenary review of the record, however, we find nothing to indica te that the trial court’s dec ision regarding th e reasonableness of Sintel’s fees fell outside the range of reasonable and princ ipled outcomes.

Furthermore, we are unconvinced by Sintel’s argument that it s hould have received attorney Ryan’s fees for servi ng as second chair at trial. For case evaluation purposes, a reasonable fee does not always equate to the actualfee. Smith , 481 Mich at 528. While it “may” be reasonable in a given case to permit fees for multiple representation at trial, see, e.g., Attard v Citizens Ins Co of America , 237 Mich App 311, 329-330; 602 NW2d 633 (1999), it does not follow that dual trial representation is always reasonable. Quite the opposite, when determining the number of hours reasonably spent on a case, a trial court has discretion to exclude billings that it deems excessive or duplicative. Van Elslander v Thomas Sebold & Assoc, Inc , 297 Mich App 204, 239; 823 NW2d 843 (2012). Here, while ackn owledging that it understood why Sintel decided to have two attorneys present, th e trial court held that it was only reasonable to award fees for representation by a single attorne y at trial. Given the trial court’s intimate familiarity with the proceedings below, it was uniquel y qualified to determine whether Sintel’s use of dual counsel was actually necessary to try this case or was merely redundant, and we do not question the court’s j udgment in that regard. Sintel has not demonstrated that the trial court’s decision landed afiel d of the range of reasonable and p rincipled outcomes.-13- IV. CONCLUSION

We affirm in part, reverse in part, and remand for entry of an amended judgment consistent with this opinion. No costs may be taxed by the par ties pursuant to MCR 7.219, none having prevailed in full. We do not retain jurisdiction.

/s/ Kurtis T. Wilder /s/ Mark T. Boonstra /s/ Colleen A. O’Brien