**Court of**  **Appeals, State**  **of Michigan** 

**Power Play**  **International Inc**  **v Del Reddy** 

**Docket No.**  **325805**

**LC No.**  **2011-123508-CK ORDER** 

**Donald S.**  **Owens Presiding**  **Judge**

**Stephen L.**  **Borrello**

**Cynthia Diane**  **Stephens Judges** 

**The Court**  **orders that**  **the June**  **9, 2016**  **opinion is**  **hereby, VACATED,**  **and a**  **new opinion** 
**is attached.** 

**A true**  **copy entered**  **and certified**  **by Jerome**  **W. Zimmer**  **Jr., Chief**  **Clerk, on** 



## JUL Z6 2016

**Date**-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

POWER PLAY INTERNATIONAL, INC, and GORDON HOWE,

Plaintiffs-Counter-DefendantsAppellees, UNPUBLISHED July 26, 2016

v No. 325805
Oakland Circuit Court DEL REDDY, LC No. 2011-123508-CK

Defendant-Appellant,
and

AARON HOWARD, MICHAEL REDDY, and IMMORTAL INVESTMENTS, LLC,

Defendants-Counter-PlaintiffsAppellants.

Before: O WENS , P.J., and B ORRELLO and S TEPHENS , JJ.

P ER C URIAM

.

Following a jury trial, defenda nts Del Reddy, Aaron Howard, Mi chael Reddy, and Immortal Investments, appeal as of right a judgment entered by the trial court in favor of plaintiffs Power Play Internati onal, Inc. (PPI) and Gordon (Gor die) Howe, and against defendants, jointly and severally, for $3,000,000. The judgmen t also ordered defendants to pay $80,765 in attorney fees, plus c osts of $4,245.04, as well as s tatutory interest. We affirm.

I. FACTS AND PROCEDURAL HISTORY

This case arises from allegations that defendants unlawfully r etained hockey merchandise that was in their possession, but belonged to plaintiffs, and u sed it for their own benefit and profit. The background facts presented here are drawn from thi s Court’s opinion in Power Play Int’l, Inc v Reddy , unpublished opinion per curiam o f the Court of Appeals, issue d September 22, 2011 (Docket No. 298774), a previous matter involving the same parties.

The underlying lawsuit was ini tiated in 2007 and was settled t he following year. Pursuant to the terms of the parties’ settlement agreeme nt, an injunction was issued permanently enjoining defendants from “possessing, u sing, selling,-2- storing, or in any way profiting from” a comprehensive list of items associated with Detroit Red Wing hockey legend Gordie Howe. Also, as set forth in the agreement, the court dismissed all remaining claims with prejud ice. The settlement agreement further re quired defendants to return nume rous items related to Howe, his family, and plaintiff Power Play International, In c [by November 24, 2008]. Using a 16-foot moving truck and two passenger vans, de fendants indeed delivered hockey merchandise and memorabilia to plaintiffs as m andated by the settlement agreement. However, defendants also gave plaintiffs two invoices from a company named “Shred-It” that reflected the destruction of papers, tapes, CDs, and DVDs at the request of defendants. An affidavit from an operations manager employed by Shred-It confirmed the destruction of the i tems. There is no dispute that the items were a ssociated with Gordie Howe, nor is there a dispute that the items were destroyed; rather, defendants contend that the destruction was consistent with the settlement agreement, whereas plaintiffs ma intained that the
destruction constitute d a violation of the s ettlement agreement

.

Thereafter, plaintiffs, claiming a violation of the settlement agreement, filed a motion for entry of consent judgment seeking the stipul ated/liquidated damages set forth in ¶ 4 of the settlement agreement, which was in the amount of $60,000, plus costs, attorney fees, and any sums improperly rec eived by defendants. There is no dispute that ¶ 4 permits the entry of a consent judgment upon a violation of the permanent injunction, and a consent jud gment and the permanent injunction were incorporated into the settlement agre ement by way of reference and attachments as exhibits to the agreement. The co ntroversy is whether the consent judgment can be entered for violation of th e settlement agreement as opposed to a violation of the permanent injunction . The trial court, finding that a violation of the permanent injunction was necess ary for plaintiffs to collect the stipulated damage aw ard found in the consent judgme nt, denied plaintiffs’ motion with respect to entry of the consent judgmen t and an award of $60,000. The trial court also found, however, that defendants had breached the terms of the settlement agreement, and it ordered a hearing to establish the amount of damages to be awarded. [ Id ., p 1-2.]

This Court reviewed the language o f the parties’ settlement agr eement and the associated consent judgment language and determined that the terms of the consent judgment are limited to violations of the perm anent injunction. Id. at 2-3. In other words, this Court determined that if the alleged breach of the settlement agreement is a breach of the permanent injunction, the aggrieved party may pursue entry of a consent judgment. Id. at 3. However, if the alleged breach does not involve the permanent injunction, the aggrieved may not pursue entry of a consent judgment. Id. This Court held that plaintiffs could pursue a claim for brea ch of the settlement agreement, but they had to file a separate breach of contract action, and not a motion for entry of consent judgment. Id. This Court reversed and remanded for further action consistent with the opinion. Id.

On remand, plaintiffs filed the current action, claiming breac h of the parties’ settlement agreement. The complaint was premised on the destruction of th e items referenced in the ShredIt invoices and an affidavit from a Shred-It employee. The inv oices and affidavit indicate that on-3- November 20, 2008, defendants requested that Shred-It destroy 8 bankers boxes containing 402 compact discs (CDs) and 861 tapes and 17 bankers boxes containi ng paper, and that on November 22, 2008, defendants reques ted that Shred-It destroy 9 bankers boxes containing paper and 3 bankers boxes containing 134 DVDs and 528 tapes. 1

Following motions for summary disposition submitted by both pa rties, the trial court granted plaintiffs’ motion for summary disposition regarding li ability and denied defendants’ motion for summary disposition regarding damages. After variou s motions in limine were addressed by the trial court, the case proceeded to a jury tria l on the issue of damages only. The jury awarded $3,000,000 in damages to plaintiffs. Pursuant to a post-judgment motion and following an evidentiary hearing regarding reasonableness, the trial court ordered defendants to pay $80,765 in attorney fees, plus costs of $4,245.04, as well as statutory interest.

II. SUMMARY DISPOSITION

Defendants first argue on appeal that the trial court erred by granting plaintiffs’ motion for summary disposition regard ing liability and denying defenda nts’ motion for summary disposition regarding damages. We review de novo a trial court ’s decision regarding a motion for summary disposition pursuan t to MCR 2.116(C)(10), which tes ts the factual sufficiency of the complaint, to determine whether the moving party is entitle d to judgment as a matter of law.
Maiden v Rozwood , 461 Mich 109, 118-119; 597 NW2d 817 (1999). In doing so, we consider “the pleadings, admissions, and other evidence submitted by the parties in a light most favorable to the nonmoving party.” Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition is appropriate when there is no ge nuine issue of material fact. Id. A genuine issue of material fact exists “when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

Defendants first argue that the trial court erred by granting plaintiffs’ motion for summary disposition regarding liability because the trial court erroneously relied on its decision in the previous case, despite the fact that this Court reversed that ruling. Specifically, defendants reference the trial court’s reliance on its June 3, 2010 order which found that defendants “breached the settlement agreement by destroying items as evide nced by the two Shred-It invoices and the affidavit of the employee of Shred-It.” Contr ary to defendants’ assertion, this
Court did not reverse the trial c ourt’s factual determinations regarding the breach of the settlement agreement. Rather, it reversed the trial court’s de cision because it concluded that plaintiffs could not seek damages for breach of the settlement agreement through a motion for entry of a consent judgment; the y had to file a separate actionfor breach of contract. Power Play Int’l, Inc , unpub op at 3.

1 Defendants also filed a counte r-complaint against plaintiffs i n the current action. Nothing related to the counter-complaint is being challenged on appeal, and therefore, will not be
discussed.-4- Further, defendants suggest the trial court merely reinstated its decision from the previous case, but the trial court’s opini on reveals otherwise. In its opinion, the trial court explained that it based its decision on a review of the record and pleadings i n the current action as well as those in the underlying action. It specifically found that “destroyi ng items (i.e., shredding items) and failing to turn them over to plaintiff constituted a breach of the settlement agreement.” While it took into consideration its prev ious order, there was no error in this regard, particularly where the facts did not change and plaintiffs supported their motion with the same Shred-It invoices and employee affidavit.

A. BREACH OF CONTRACT

Defendants next argue that the trial court erred by granting p laintiffs’ motion for summary disposition regarding liability, because a reading of t he settlement agreement shows that defendants complied with the agreement when they chose to permanently erase some items rather than turn them over to plaintiffs. The rules of contrac t construction and interpretation are applied to settlement agreements. Reicher v SET Enterprises, Inc , 283 Mich App 657, 663; 770 NW2d 902 (2009). When construing a contract, the court looks t o the language and gives the words used their plain and ordinary meanings. Id . at 664. If a contract provision is unambiguous, it reflects the parties’ intent as a matter of law and the language is construed and
enforced as written. Id . at 664-665.

Defendants next argue that, pur suant to ¶ 3(c) of the settleme nt agreement, not every item in defendants’ possession that de picted, related to, or pertain ed to the Howe family had to be turned over to plaintiffs. Defendants argue that they could op t to permanently erase some items, and that is exactly what they did with respect to their persona l property that “in anyway may have depicted, related to, or pertained to the Howe family.” T herefore, defendants assert that they complied with the settlement agreement.

By its plain language, ¶ 3(b) of the settlement agreement dire cts defendants to turn over to plaintiffs “originals and copies of any and allfilms, CD’s, and other analog, electronic, or digital media depicting any image of Plaintiffs and/or members of the Howe Family” and “ all personal property depicting, relating, or in any wa y pertaining to Plaintiffs an d/or any member of the Howe Family, signed or unsigned, personalized or not, including but not limited to

. . . any other item of physical property .” (Emphasis added.) Paragraph 3(c) provides that defendants must affirm under oath that they will comply with the requireme nts of ¶ 3(b) and further requires
that defendants must not retain anything in their possession wh ich relates to the Howe Family and must permanently erase or turn over “all sources of digital or electronic copies.” 2

2 Defendants argue that the trial court misquoted ¶ 3(c) of the settlement agreement in its opinion, when it quoted ¶ 3(c) as providing that “all sources o f digital or electronic copies shall be permanently erased and turned over to Plaintiff.” (Emphasis added.) Defendants are correct that the settlement agreement actually reads “all sources of di gital or electronic copies shall be permanently erased or turned over to Plaintiff.” ( Emphasis added.) However, despit e defendants’ assertion, the trial court’s decision was not depen dent on its misquoting of ¶ 3(c).-5- Defendants equate permanent erasure with destruction, but the agreement does not direct defendants to destroy any property. Rather, the agreement dire cts defendants to permanently erase all sources of digital or electronic copies of materials. While the erasure of digital or electronic materials may destr oy them, the physical destructionof materials by shredding does
not constitute erasure. The Shred-It invoices state that it shredded and destroyed 402 CDs and 861 tapes on November 20, 2008, and 528 tapes and 134 DVDs on N ovember 22, 2008. Paragraph 3(b) specifically dir ects defendants to turn over to plaintiffs “ any and allfilms, CD’s, and other analog, electronic, or digital media depicting any image of Plaintiffs.” (Emphasis added.) There is no suggestion that the items destroyed by Shr ed-It were sources of digital or electronic copies. As plaintiffs point out, defendants maintai ned websites and other digital media using plaintiffs’ trademarks and images, which is what ¶ 3(c) directed to be permanently erased because those items are incapable of being turned over t o plaintiffs. Therefore, according to the settlement agreement, the items in the Shred-It invoices should have been delivered to plaintiff.

Defendants also argue that the trial court inferred some type of inventory requirement in the settlement agreement that required defendants to provide pl aintiffs an opportunity to inventory items before defendants permanently erased or destroy ed them. Defendants argue that the fact that plaintiffs were not given an opportunity to inven tory the items on the Shred-It
invoices cannot be a breach of th e settlement agreement. Howev er, the trial court’s opinion does not reference, even implicitly, that it found that defendants b reached the settlement agreement by failing to provide plaintiffs with an opportunity to inventory the property that was destroyed. In fact, at the hearing on the mo tion, in response to defendants’ argument that there was no inventory requirement in the settlement agreement, the trial co urt specifically stated, “I’m not saying that the agreement said that you were to give them a shr edding list, or what you had shredded by this shredding comp any, I agree with you wholeheart edly, there’s nothing in the agreement that says that you wer e to do that.” Therefore, this argument is without merit.

Defendants next argue that the Shred-It invoices do not prove that defendants destroyed property pertaining to plaintiffs , and therefore there was no e vidence that they breached the settlement agreement. Defendants are correct that plaintiffs h ave no way of proving exactly what defendants destroyed. Howev er, this does not preclude a f inding that defendants breached the settlement agreement. Even viewing the evidence in a light most favorable to defendants, there is no genuine issue of mate rial that defendants destroyed property in violation of the settlement agreement. Defendants do not contest that they dest royed the items listed on the invoices, which included CDs, DVDs, and tapes. As discussed ea rlier, defendants were required to turn over these types of ite ms to plaintiffs. Additionally, although defendants argue that the items were their personal property, the settlement agreement is clear that defendants were required to turn over “all personal property depicting, relatin g, or in any way pertaining to Plaintiffs and/or any membe r of the Howe Family.”

Further, although defendants attempt to argue on appeal that t he destroyed property did not depict, relate, or pertain to plaintiffs or the Howe family , they did not actually dispute with

Rather, the trial court’s decision was based on the fact that t he settlement agreement required defendants to turn over all physi cal property to plaintiffs, wh ich they did not do.-6- the trial court that the items were associated with plaintiffs or the Howe family. Defendants rely on the affidavit of Michael Reddy dated February 16, 2012, in w hich he attests that the property that was destroyed was defendants’ property and included “perso nal family recordings, personal audio voicemail message tapes, pe rsonal/privileged court docume nts, and other documents from my other businesses that were not in any way related to Plainti ffs’ or the Howe family.” However, in that same affidavit Reddy attests that he and Aaron Howard had Shred-It shred “other materials as mandated by the Settlement Agreement” and that he provided plaintiffs with the two Shred-It invoices to prove that defendants complied with the settlement agreement.

It appears that Reddy is attesting that only the documents fro m his business were not related to plaintiffs. This interpretation is supported by def endants’ response to plaintiffs’ motion for summary disposition, in which defendants reference R eddy’s affidavit and indicate that it was only the documents from Reddy’s business that had n othing to do with plaintiffs or the Howe family, and defendants ce rtainly imply that the other items that were destroyed, which included the tapes, may have related to plaintiffs. For exampl e, in their response, defendants stated that they complied with t he settlement agreement when th ey took the items to Shred-It and permanently erased “[d]efendants’ own personal property which m ay have related to the Howe Family.” Defendants go on to state that they provided plaintif fs the invoices as evidence that they “retained nothing in their possession that may relate to t he Howe family.” Moreover, defendants argue in their response that ¶ 3c allowed them to de stroy their own property that may relate to the Howe family. Defendants cannot argue that there is no evidence that items they destroyed depicted, related, or p ertain to plaintiffs or the Ho we family, but then argue that they destroyed the property in accordance with the settlement agreem ent. Clearly, there would be no reason to destroy defendants’ personal property and provide pla intiffs with invoices indicating such if the property did not de pict, relate, or pertain to plai ntiffs or the Howe family.

As this Court stated in its prior opinion, “There is no disput e that the items were associated with Gordie Howe, nor is there a dispute that the it ems were destroyed; rather,
defendants contend that the destruction was consistent with the settlement agreement, whereas plaintiffs maintained that the d estruction constituted a violat ion of the settlement agreement.” Therefore, although plaintiffs coul d not prove the content of t he property destroyed by defendants, because defendants did not dispute that the items ( particularly the tapes, CDs, and DVDs) were associated with plaintiffs or the Howe family to sho w that a genuine issue of material fact exists, the trial court did not err by granting p laintiffs summary disposition on liability. See Karaus v Bank of New York Mellon , 300 Mich App 9, 17; 831 NW2d 897 (2012) (stating that once the moving party meets its burden of support ing its position that there is no factual dispute, the burden sh ifts to the opposing party to sho w that a genuine issue of material fact exists).

Finally, defendants argue that the Shred-It invoices and affid avit of Aaron Frezza, ShredIt’s operations manager, are inadmissible, and therefore cannot be used by plaintiffs to evidence a breach by defendants. First, with regard to the invoices, de fendants’ attempt to have them excluded is disingenuous particul arly where they have relied onthe invoices to establish that they destroyed the property in c ompliance with the settlement a greement. Defendants should not be permitted to rely on the invoices for their purposes and arg ue that they are inadmissible for plaintiffs’ purposes. Additionally, we decline to address defe ndants’ unsupported argument that-7- the invoices are hearsay, particularly where that are likely admissible under MRE 803(6) as a
business record.

Second, defendants assert that Frezza’s first affidavit is unr eliable because in the January 13, 2012 affidavit, he recanted the statements made in the earl ier affidavit. However, Frezza did not recant anything he stated in the first affidavit. He merel y provided further explanation with regard to the statements he made in that affidavit, specificall y what type of knowledge he had regarding the information in the invoices, i.e., whether he sim ply knew the items listed were in fact destroyed or whether he knew what exactly was contained onthe items that were destroyed. Therefore, this argument is without merit.

Accordingly, the trial court did not err by granting summary d isposition to plaintiffs on liability.

B. DAMAGES

Defendants next argue that the trial court erred by denying th eir motion for summary disposition regarding plaintiffs’ inability to prove damages as a result of defendants’ alleged breach. Damages are an element of a breach of contract claim a nd “[t]he party asse rting a breach of contract has the burden of proving its damages with reasonab le certainty, and may recover only those damages that are the d irect, natural, and proximate result of the breach.” Alan Custom Homes, Inc v Krol , 256 Mich App 505, 512; 667 NW2d 379 (2003). Damages cannot b e based on speculation or conjecture, bu t reasonable certainty does not require mathematical precision. Hofmann v Auto Club Ins Ass’n , 211 Mich App 55, 108; 535 NW2d 529 (1995). Where the fact of damages has been established and the only question to be dec ided is the amount, the certainty requirement is relaxed. Id.

Plaintiffs presented sufficient evidence to show that there wa s a genuine issue of material fact regarding damages. Plaintiffs were not required to prove damages with a mathematical certainty. Rather, the reasonable inferences from the evidence presented shows that plaintiffs suffered an injury, see Bergen v Baker , 264 Mich App 376, 387; 691 NW2d 770 (2004) (stating
that circumstantial evidence can be used to determine whether a genuine issue of material fact exists for summary disposition), and that they could prove dama ges with reasonable certainty. Specifically, plaintiffs present ed the invoices that showed def endants destroyed numerous tapes, CDs, and DVDs. Defendants admitted they destroyed the items, a nd did not contest that they related to the Howe family. In fact, Michael Reddy stated that he destroyed them to comply with the settlement agreement—an agreement which required defendants to rid themselves of all things pertaining to plaintiffs and the Howe family. Mark Howe attested in his affidavit that plaintiffs did not receive any films of the Howe family in the property returned by defendants, despite the fact that Aaron Howard and Del Reddy “routinely and systematically filmed, taped, recorded, and photographed” the H owe family “in virtually everyconceivable sett ing, including at ice hockey rinks, during app earances, trips, signings, at ho me, on vacation, with friends, fans and peers.” Howard Baldwin, a movie producer (and personal acq uaintance of Gordie Howe) who produced a movie about Gordie Howe, also attested in his af fidavit that he would have paid a minimum of six figures for personal footage of the Howes to a id in his movie production about the life of Gordie Howe. He stated that such footage was “inva luable” and that he had little available to him. Viewing the evidence in a light most favorab le to plaintiffs, the nonmoving-8- party, reasonable inferences would permit the jury to find that the items destroyed related to the Howes and plaintiffs would have r eceived a substantial sum of m oney from Baldwin for their use in his movie. Therefore, there was a genuine issue of material fact regarding damages, and the trial court did not err by denying defendants’ motion for summa ry disposition regarding damages.

III. QUALIFICATION OF EXPERT WITNESS

Defendants next argue that the trial court erred by denying it s motions for judgment notwithstanding the verdict (JNOV) and new trial because plaint iffs’ damages expert, Howard Baldwin, was not qualified to give expert testimony. We review de novo a trial court’s denial of
a motion for JNOV. Sniecinski v Blue Cross & Blue Shield of Mich , 469 Mich 124, 131; 666 NW2d 186 (2003). The evidence and all legitimate inferences ar e reviewed in a light most favorable to the nonmoving party. Wilkinson v Lee , 463 Mich 388, 391; 617 NW2d 305 (2000). A motion for JNOV should only be granted if the evidence fails to establish a claim as a matter
of law. Id. “If reasonable jurors could ha ve honestly reached different c onclusions, the jury
verdict must stand.” Morinelli v Provident Life & Accident Ins Co , 242 Mich App 255, 260-261; 617 NW2d 777 (2000).

Additionally, we review for an abuse of discretion a trial court’s decision to grant or deny a motion for a new trial, Shuler v Mich Physicians Mut Liability Co , 260 Mich App 492, 509; 679 NW2d 106 (2004), and its ruling regarding a proposed expert ’s qualifications to testify, Kiefer v Markley , 283 Mich App 555, 556; 769 NW2d 271 (2009). “An abuse of dis cretion
occurs when the decision results in an outcome f alling outside the range of principled outcomes.” Zaremba Equip, Inc v Harco Nat’l Ins Co , 302 Mich App 7, 21; 837 NW2d 686 (2013).

MRE 702 governs the admissibility of expert testimony and prov ides:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliabl y to the facts of the case.

As the gatekeeper, “The trial court has an obligation under MRE 702 ‘to ensure that any expert testimony admitted at trial is reliable.’ ” Clerc v Chippewa County Way Memorial Hosp , 267 Mich App 597, 602; 705 NW2d 703 (2005), quoting Gilbert v DaimlerChrysler Corp , 470 Mich 749, 780; 685 NW2d 391 (2004).

Notably, although the trial court instructed the jury regardin g expert witness testimony, plaintiffs never moved to qualify Baldwin as an expert at trial and plaintiffs never elicited expert-9- testimony from Baldwin. 3 Rather, a review of his testim ony reveals that Baldwin merely provided lay witness testimony ba sed on his experience producin g a film about Gordie Howe and
other films.

MRE 701 addresses opinion tes timony by lay witnesses and provi des:

If the witness is not testifying as an expert, the witness’ te stimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) h elpful to a clear understanding of the witness’ tes timony or the determination of a fact in issue.

Further, regarding lay w itnesses, MRE 602 provides,

A witness may not testify to a matter unless evidence is intro duced sufficient to support a finding that the witness has personal k nowledge of the matter. Evidence to prove per sonal knowledge may, but need not , consist of the witness’ own testimony. . . .

Baldwin testified that he had been producing films for over 30 years. Movies he has produced include, Ray

, Sahara

, Mystery Alaska , and Sudden Death . Baldwin also testified that he recently produced a film about Gordie Howe in 2012, entitled Mr. Hockey , which was released in Canada in April 2013. He testified that they had t o recreate most of the memorabilia and footage because the Howe family was unable to supply it. I n making Ray , Baldwin testified that he had access to personal foot age of Ray Charles, which wa s “really helpful” for authenticity of the movie, especially to recreate scenes. Baldwin testified that having access to home movies or personal footage also allows the actors to become acquainted with the character they are playing to learn their manne risms and particular nuances.

Baldwin further testified that as a producer he was familiar w ith production costs. He testified that he produc ed at least ten film s where he had to a cquire “life rights, ” and testified that it could cost anywhere from $500,000 to over $1,000,000 to acqu ire life rights, memorabilia, and personal footage and images, depending on the extent that he wo uld use them. In lieu of

3 Aside from the trial court’s brief reference that “plaintiffs’ expert” (referring to Baldwin) would be called to testify via Skype, defendants were the only people to refer to Baldwin as plaintiffs’ expert when they attacked his qualifications in their opening s tatement. Plaintiffs asserted at oral argument that they did move to qualify Baldwin as an expert and were asked by the trial court to lay a foundation. However, a review of the record shows that the only time plaintiffs were asked to lay a foundation was when defe ndants objected to Baldwin’s t estimony regarding the value of the footage relating to Howe. D efendants’ objections were base d on speculation, lack of foundation (no facts in evidence) , and relevance. The trial co urt never formally declared Baldwin to be an expert. At most, the trial court and the part ies all seemed to act as if he were qualified as an expert. However, all, or almost all, of his te stimony was lay testimony based on his own experience. As noted in footnote 4, to the extent Bald win gave expert testimony, its
admission was harmless error.-10- personal footage for Mr. Hockey , he did obtain some playing foot age from the National Hockey League, which was about a minute and a half in length, and whic h cost him $75,000. Baldwin testified that normally the NHL charges $150,000, but he receiv ed a “friends and family discount.” When asked what value he would place on the destroy ed property, Baldwin testified that if all of the 1,389 tapes that were destroyed contained im ages or footage of Gordie Howe and were available to him for a film, it would be “incredibly v aluable” and worth millions of dollars, given that he paid $75,000 to the NHL (which normally charges $150,000) for one and a half minutes of playing footage. However, he acknowledged that he could not place an exact monetary figure on the propert y without knowing exactly what wa s on the tapes.

While Baldwin’s testimony certainly involves some type of spec ialized knowledge, it did not rise to the level of expert testimony. Specifically, Baldw in did not provide an opinion as to the value of the destroyed prope rty containing personal footage of Gordie Howe based on movie industry standards as a whole, and his testimony did not involv e principles and methods. Rather, he testified what he would have p aid for personal footage of Go rdie Howe based on his experience producing a movie about Gordie Howe and other sports celebrities. His testimony was based on personal knowledge of the matter and was helpful t o the determination of a fact in issue, i.e., the value of persona l footage of Gordie Howe. The refore, the trial court did not err by denying defendants’ motions for J NOV or new trial on this groun d because Baldwin provided proper lay opinion testimony pursuant to MRE 602 and 701. 4

IV. IMPEACHMENT EVIDENCE

Defendants next argue that the trial court prevented them from impeaching Baldwin regarding his prior deposition testimony, and therefore, it sho uld have granted defendants’ motion for a new trial. Generally, we review for an abuse of d iscretion a trial court’s decision to grant or deny a motion for a new trial, Shuler , 260 Mich App at 509, and to admit or exclude evidence, Barrett v Kirtland Community College , 245 Mich App 306, 325; 628 NW2d 63 (2001). However, defendants failed to preserve this issue by making an offer of proof at trial. Under MRE 103(a)(2), the proponent of the excluded evidence must make an offer of proof to preserve the issue for appeal, unless it is apparent from the context of the questions asked. Phinney v

Perlmutter

, 222 Mich App 513, 529; 564 NW2d 532 (1997), overruled on other grounds Garg v Macomb Co Community Mental Health Servs , 472 Mich 263; 696 NW2d 646 (2005). In this

4 Even if we were to conclude tha t Baldwin’s specialized knowled ge of film production costs rendered his testimony expert t estimony, the admission of his t estimony would be harmless error. See MCR 2.613(A) (An error in the admission of evidence is not grounds for granting a new trial or setting aside a verdict “unless refusal to take this action appears to the court inconsistent with substantial justice”) and Craig v Oakwood Hosp , 471 Mich 67, 85; 684 NW2d 296 (2004) (noting that reversal on the basis of the trial court’s failure to adequately perform its gatekeeping obligation to determine reliability of the expert testimony is subject to the harmless error rule of MCR 2.613(A)). A review of the record shows that Baldwin was q ualified to provide expert testimony regarding the costs associated with film production b ased on his knowledge and experience as a film producer for over 30 years. MRE 702.-11- case, it is not apparent from the context of the questions aske d what the substance of the impeachment evidence was. Defense counsel never attempted to m ake a record of the trial court’s ruling, take issue with the ruling, or ask a substantiv e question in an attempt to impeach Baldwin. Rather, the record of the trial implies that defense counsel was satisfied with the ruling made during the bench conference. It was particularly imperati ve in this case that defendants make a record of the alleged erro r, particularly where they cla im that the trial court made a ruling at the bench conference that prevented them from doing any effe ctive cross-examination of Baldwin, but the trial court stated that it was merely preventi ng defense counsel from questioning Baldwin about his de bene esse deposition, which was stricken from the record at defendants’ request.

Further, defendants’ argument that the substance of the eviden ce was made known in their motion in limine filed before trial is unavailing. The m otion in limine sought to exclude all testimony of Baldwin and did not i nvolve the impeachment issue at hand. Based on the record, it appears defendants did not inform the trial court what they wis hed to impeach Baldwin on until they filed their motion for a new trial. Without a record, thi s Court is left to speculate as to what defendants intended to do at trial and what exactly the trial c ourt ruled on during the bench conference. Therefore, we dec line to address this unpreserved issue. 5

V. SPOLIATION INSTRUCTION

Defendants next argue that the trial court erred by giving a s poliation instruction. We review claims of instructional error de novo, examining the ins tructions as a whole to determine
whether an error occurred. Case v Consumers Power Co , 463 Mich 1, 6; 615 NW2d 17 (2000). However, the applicability of a j ury instruction to a given situation is within the sound discretion of the trial court, and a trial court’s decision in this regard will be reviewed by this Court for an
abuse of discretion. Jackson v Nelson , 252 Mich App 643, 647; 654 NW2d 604 (2002). “The instructions should include all the elements of the plaintiff’s claims and should not omit material issues, defenses, or theories if the evidence supports them.” Case , 463 Mich at 6. “Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately a nd fairly presented to the jury.” Id.

5 Even if we were to conclude tha t defendants properly preserved this issue for appeal, any error in preventing defendants from u sing the deposition to impeach B aldwin was harmless. See MRE 103(a) (stating that error may not be predicated on a ruling wh ich excludes evidence unless a substantial right of the party is affected). It appears the pr imary testimony from Baldwin’s de

bene esse deposition that defendants wished to impeach Baldwin with were his statements regarding how he calculated the value of the destroyed property . Specifically, he stated, “There are no facts without actually know ing what was—what we’re talki ng about here. So everything is hypothetical. Everything is hypothetical.” Using Baldwin’s deposition to impeach his trial testimony likely would not have made a difference where Baldwin ’s trial testimony makes it clear that he was giving an estimate of damages and that he cou ld not place a specific monetary value on the images and footag e without knowing the content.-12- Reversal is not required unless the failure to do so would be i nconsistent with substantial justice.

Id.

Defendants argue that a spolia tion instruction was not warrant ed because the alleged spoliation flowed from the same acts that constituted the breac h of contract, and spoliation only occurs when evidence is destroyed after the cause of action acc rues. Defendants argue that a spoliation instruction in this case creates a tort of spoliatio n which is not recognized under Michigan law. However, defenda nts do not cite any case law whi ch states that spoliation only occurs after the cause of action accrues, and this Court has sp ecifically stated, “[e]ven when an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should kn ow is relevant to the action.”

Brenner v Kolk , 226 Mich App 149, 162, 573 NW2d 65 (1997). Accordingly, defe ndants’ argument is without merit. The in struction was appropriate so long as it was supported by the
evidence. Case , 463 Mich at 6.

The trial court instruc ted the jury as follows:

Members of the jury, I instruct that Defendants Aaron Howard, Del Reddy, Mike Reddy, and Immortal I nvestments, LLC, in this case, has not offered the evidence of the property destroyed. As this evidence was u nder the control of the Defendants and could have been produced by them, and no rea sonable excuse for Defendants’ failure to produce the evidence was given, you may infer that the
evidence would have been adve rse to the Defendants.

This instruction comports with MI Civ JI 6.01(a). However, def endants argue that MI Civ JI 6.01(d) was the more appropriate instruction, which provides,

The [plaintiff/defendant] in this case has not offered [testimo ny of [name]/[Identify exhibit.] ]. You may infer that this evidence would have been adverse to the [plaintiff/defenda nt] if you believe that the ev idence was under the control of the [plaintiff/defe ndant] and could have been produc ed by [him/her], and no reasonable excuse for [pl aintiff’s/defendant’s] failure to produce the
evidence has been shown.

Defendants argue that this instruction was more appropriate be cause the trial court never made any specific finding that defendants lacked a reasonable e xcuse to destroy the evidence. However, MI Civ JI 6.01(d) was not appropriate based on the fac ts of the case. MI Civ JI 6.01(d) is to be read where there is a question of fact regardi ng a party’s control and reasonable excuse. It was undisputed that the evidence was within defendants’ control. They admitted that it was their personal property w hich may have related to plaint iffs and that they destroyed it.

The instruction given by the tri al court comported with the ev idence at trial and does not require reversal. MI Civ JI 6.01(a) is to be read where the tr ial court finds that the evidence was under the party’s control, the party could have produced the ev idence, and the party has no reasonable excuse for failing to produce the evidence. There w as no question tha t defendants did in fact destroy the property in v iolation of the settlement agr eement. Although defendants argue that they reasonably thought the y were destroying the property in compliance with the settlement-13- agreement, Del Reddy also admitted at trial that he destroyed the property, in part, because he was being vindictive towards Mark Howe. Further, the settlemen t agreement plainly states that defendants were required to tur n over to plaintiffs all persona l property relating to the Howe family, and as discussed, defenda nts never contested that the p roperty that was destroyed related to the Howe family. Accordingly, there is no evidence that def endants had a reasonable excuse for destroying the property, and th erefore, the trial court did not err by reading MI Civ JI 6.01(a).

VI. ATTORNEY FEES

Defendants next argue that the trial court erred by granting p laintiffs’ post-judgment motion for contractual attorney fees. Defendants do not challe nge the amount or reasonableness of the attorney fees. They only argue that the attorney fees w ere part of plaintiffs’ breach of contract claim and had to be specifically pleaded and proven at trial, not in a post-trial motion. Whether a party is entitled to attorney fees and costs pursuant to a contract is a question of law
that we review de novo. Fleet Business Credit, LLC v Krapohl Lincoln Mercury Co , 274 Mich App 584, 588; 735 NW2d 644 (2007).

Paragraph 5 of the settlement agreement provides in relevant p art, “The prevailing party in any proceeding to enforce this agreement, or any remedy cont emplated by this Agreement, shall be entitled to recover, in addition to any other remedy, actual costs and attorney fees
incurred in the enforcement.”

This Court has specifically held, “When contract language spec ifically provides that in litigation concerning the contra ct, the prevailing party shall recover attorney fees, attorney fees are not special damages, and therefore are generally recoverabl e by the prevailing party even if there was no specific prayer for the recovery of attorney fees in the complaint.” Fleet Business

Credit , 274 Mich App at 592. While a party is not required to specif ically plead an award of attorney fees under a contractua l provision, the party seeking the award of attorney fees still must do so as part of a claim against the opposing party. Pranksy v Falcon Group, Inc , 311 Mich App 164, 194-195; 874 NW2d 367 (2015). I n this case, in the compla int, plaintiffs requested attorney fees and costs as part of their damages for bringing this actio n. Therefore, plaintiffs sufficiently
stated a cause of action to recove r attorney fees under the con tract.

With regard to whether plaintiffs were required to submit proo f of their attorney fees at trial as part of their damages c laim, defendants rely on an unp ublished case, 6 which cites Zeeland Farm Servs, Inc v JBL Enterprises, Inc , 219 Mich App 190; 555 NW2d 733 (1996), to support their argument. In Zeeland , this Court stated that “[a] pa rty claiming the right to recov er attorney fees under a contract must introduce evidence of the reasonable ness of the attorney fees to establish a prima facie case and to avoid a directed verdict.” Id. at 196. However, this Court did not specifically state that contractual attorney fees must be p roven at trial. Rather, Zeeland
involved a debt collection acti on, in which the plaintiff sough t to recover the balance due on the defendant’s open account and the a ttorney fees incurred in coll ecting the debt as permitted by the credit agreement. Id. at 191-192. It appears that the attorney fees were already in curred in

6 Unpublished cases are not preced entially binding on this Court . MCR 7.215(C)(1).-14- attempting to collect the debt, and the plaintiff was seeking t o recover the fees as part of its
claim. Id. at 192-193. Therefore, this Court noted that the plaintiff wa s required to introduce
evidence of the reasonableness of the attorney f ees to avoid a directed verdict. Id. at 196.

In this case, plaintiffs could not prove at trial that they we re entitled to attorney fees or the reasonableness of those fees, where the contract explicitly states that a party cannot recover attorney fees until they prevail in the action to enforce the a greement. Plaintiffs did not prevail in the action to enforce the agreement until the jury decided the issue of damages. In Zeeland

, the credit agreement permitted the plaintiff to recover its att orney fees if defendant breached the
agreement, id. at 199, which is different from this case, where the contract allows either party to recover attorney fees if they prevail in an action to enforce the agreement. Had defendants in this case been the prevailing party, they could have sought att orney fees under the agreement, but, as discussed, this could not be determined until after the jury decided the case. Therefore, the trial court did not err by holding an evidentiary hearing r egarding the reasonableness of plaintiffs’ attorney fees, and su bsequently granting plaintiffs ’ post-judgment motion for
contractual a ttorney fees.

VII. REMITTITUR

Finally, defendants argue that the trial court erred by denyin g its motion for remittitur. We review “a trial court’s decision to deny a motion for remitt itur for an abuse of discretion.” Diamond v Witherspoon , 265 Mich App 673, 692; 696 NW2d 770 (2005). In doing so, we review the evidence in the light most favorable to the nonmovin g party. Id. at 693. Further, this
Court has stated:

[T]he question of the excessiveness of a jury verdict is genera lly one for the trial
court in the first instance. The trial court, having witnessed all the testimony and evidence as well as having had the unique opportunity to evalua te the jury’s reaction to the proofs and to the individual witnesses, is in the best position to make an informed decision regarding the excessiveness of the ve rdict. Accordingly, an appellate court must accord due deference to th e trial court’s decision and may only disturb a grant or denial of remittitur i f an abuse of discretion is shown. [ Palenkas v Beaumont Hosp , 432 Mich 527, 531; 443 NW2d 354 (1989). See also Diamond , 265 Mich App at 692-693.]

This Court in Diamond thoroughly summarized the law regarding remittitur:

In determining whether to grant a motion for remittitur a tria l court must consider whether the evidence supported the jury award. Henry v Detroit , 234 Mich App 405, 414; 594 NW2d 107 (1999). The trial court’s inqu iry is limited to objective considerations regarding the evidence presented and the conduct of the
trial. Palenkas

, supra at 532–533; Weiss v Hodge (After Remand) , 223 Mich App 620, 637, 567 NW2d 468 (1997). Remittitur is justified when a jury verdict exceeds the highest amount the evidence will support. MCR 2.61 1(E)(1). When determining whether an award is excessive, a court may consider whether the verdict was the result of improper methods, prejudice, passion, partiality, sympathy, corruption, or mistake of law or fact, whether it was within the limits-15- of what reasonable minds would deem to be just compensation for the injury inflicted, and whether the amount actually awarded is comparabl e to other awards
in similar cases. Palenkas

, supra at 532–533. A verdict should not be set aside simply because the method of computation used by the jury in as sessing damages cannot be determined, unless it is not within the range of evid ence presented at
trial. Green v Evans , 156 Mich App 145, 156–157; 401 NW2d 250 (1985). [ Diamond , 265 Mich App at 693-694.]

First, contrary to defendants’ a rgument, Baldwin was not the o nly witness to testify regarding damages and he did not testify that damages were capp ed at $1,000,000. Baldwin testified that it could cost anywhere from $500,000 to over $1, 000,000 to acquire life rights, memorabilia, and personal footage depending on the extent that he would use the materials. He also testified that if all of the 1,389 tapes that were destroy ed contained images or footage of Gordie Howe, it would be worth millions of dollars, given that he paid $75,000 to the NHL (which normally charges $150,000) for one and a half minutes of playing footage.

Second, although there was no way to prove what those items co ntained, especially how many photographs or videos related to the Howes, the reasonable inferences from the evidence presented supports the jury’s ve rdict. Baldwin testified that without the friends and family discount, film producers would have paid the NHL $150,000 for aone and a half minute clip of Gordie Howe playing hockey, and seemed to indicate that persona l footage is just as valuable, especially to recreate scenes and aid the actors in their chara cter portrayal. Based on his testimony, 20 minutes of footage alone would be worth $3,000,00 0. Additionally, Felix Gatt, a personal friend of Gordie Howe, testified regarding the numerou s times he witnessed Del Reddy and Aaron Howard videotape Howe’s various appearances and event s from 1996 to 2006, which easily would have surpassed 20 minutes of footage. Gatt also t estified that Reddy and Howard took photographs at these same appearances and events of Gordie Howe, some of which included other sports celebrities. Testimony by Mark Howe and Marty Howe indicates that photos of Gordie Howe sell for $100 to $1000 depending on the s ize and who is pictured with Howe, and that CDs and DVDs can hold anywhere from hundreds to one thousand photos. Mark Howe also testified that when defendants returned material to p laintiffs, there were no photographs or videotapes returne d. Instead, defendants presen ted plaintiffs with the Shred-It
invoices that showed defendant s destroyed 1,389 tapes, 402 CDs, and 134 DVDs.

Defendants also did not contest that the items they destroyed related to the Howes. Defendants claimed it was mostly their personal property, but A aron Howard testified that he took occasional videos relating to the Howes; however, because they were mixed in with his personal items, and because he was not going to return any of h is personal items to the Howes, everything was destroyed.

Further, as discussed in Issue V, because this evidence was un der defendants’ control and was destroyed by defendants without a reasonable excuse, the jury was permitted to infer that the evidence would have been adverse to defendants. Therefore, the jury’s verdict was within the range of evidence presented at trial. While the jury’s exact c alculations may be unknown, a verdict should not be set aside simply because the method of co mputation used by the jury in assessing damages cannot be determined. Green , 156 Mich App at 156–157.-16- Affirmed. Plaintiffs, being the prevailing party, may tax cos ts pursuant to MCR 7.219.

/s/ Donald S. Owens /s/ Stephen L. Borrello /s/ Cynthia Diane Stephens