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### STATE OF MICHIGAN

COURT OF APPEALS

TAHMOURES SHEKOOHFAR and SIYAVOOSH SHEKOOHFAR, a/k/a SIYAVOOSH SHEKOOFHAR,

Plaintiffs/Counter-DefendantsAppellees, UNPUBLISHED January 27, 2015

v No. 316702 Wayne Circuit Court VIRGINIA LA ROSA, individually and as Personal Representative of the Estate of JOSEPH VIVONA, LC No. 09-028480-CZ

Defendants/Counter-PlaintiffsAppellants.

TAHMOURES SHEKOOHFAR and SIYAVOOSH SHEKOOHFAR, a/k/a SIYAVOOSH SHEKOOFHAR,

Plaintiffs/Counter-DefendantsAppellants,

v No. 319118 Wayne Circuit Court VIRGINIA LA ROSA, individually and as Personal Representative of the Estate of JOSEPH VIVONA, LC No. 09-028480-CZ

Defendants/Counter-PlaintiffsAppellees.

Before: B ECKERING , P.J., and J ANSEN and B OONSTRA , JJ.

P ER C URIAM

.

In Docket No. 316702, defendants/c ounter-plaintiffs Virginia L a Rosa, in her individual capacity and as personal representative of the estate of Joseph Vivona (hereinafter collectively-2- referred to as “defendants”), appeal as of right the trial cour t’s May 23, 2013 order denying their request for prejudgment interest pursuant to MCL 600.6013(7) on a $215,378.24 jury verdict entered against plaintiffs/count er-defendants, Tahmoures Shekoo hfar and Siyavoosh Shekoohfar (hereinafter “plaintiffs”). In Docket No. 319118, plaintiffs a ppeal as of right the trial court’s September 30, 2013 order granting case evaluation sanctions to defendants. These appeals were consolidated pursuant to this C ourt’s November 27, 2013 order. Shekoohfar v La Rosa

, unpublished order of the Court of Appeals, entered November 27, 2013 (Docket Nos. 316702; 319118). We affirm in both cases.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

These consolidated appeals aris e from a dispute involving the purchase of certain real property on land contract. Plaintiffs agreed to purchase on la nd contract commercial property located at 18510 Moross Road in Detroit from Joseph Vivona, Ste ve Vivona, Lean Vivona, and defendant Virginia La Rosa (formerly known as Virginia Vivona). 1 The terms of the land contract provided for a down payment, monthly payments with 9% interest, and a balloon payment after a term of years. The balloon payment was due in February 2004; however, plaintiffs did not make the payment and a closing did not take place at that time. Plaintiffs alleged that La Rosa made no effort to facilitate the completio n of the purchase; La Rosa alleged that plaintiffs failed to make th e payment on time despite her requests.

Plaintiffs continued to make monthly payments after the schedu led closing date passed. According to their complaint, they believed that those payments would be credited toward the remaining balance due on the la nd contract. I n early 2006, pla intiffs obtained a pproval for a loan in order to satisfy the remaining balance on the land contract. The parties scheduled a closing date in April 2006, but closing did not occur. According to pl aintiffs, La Rosa was not ready to close at that time, and the day before the scheduled closing da te, La Rosa contacted the title company and cancelled the schedule d closing. Plaintiffs allege d that defendants did not have clear title to the property beca use the property was subject to an ongoing probate dispute involving the heirs of Joseph Vi vona, one of the original selle rs. Plaintiffs alleged that the disputes regarding title to the property caused La Rosa to canc el the scheduled closing. La Rosa alleged that plaintiffs were responsible for the failure to clo se, asserting that despite several requests for payment, plaintiffs failed to comply.

On November 18, 2009, plaintiffs i nitiated the instant proceed ings by filing a complaint against defendants for breach of contract. On December 21, 200 9, defendants filed a countercomplaint, alleging breach of contract against plaintiffs for t heir alleged failure to comply with
the terms of the land contract.

After case evaluation and negotiations failed to yield a settl ement, the matter proceeded to a jury trial on October 30, 2012. Following trial, the jury found that both plaintiffs and defendants breached the land contract. The jury determined that plaintiffs were not entitled to damages because defendants’ breac h was “not substantial.” The jury determined that defendants

1 La Rosa is the only survivi ng seller of t he property.-3- were entitled to $215,378.24 in damages for plaintiffs’ breach. The verdict form asked the jury to determine “the amount of damages incurred through today [Nov ember 14, 2012] . . . as a result of the [plaintiffs’] breach[.]” In the corresponding bl ank where the jury was to write in a damage award was a handwritten figure, $215,378.24, along with the note, “closing as of
4/2006.”

Following the jury’s verdict, defendants moved for entry of ju dgment, contending that in addition to the $215,378.24 award, they were entitled to intere st on the judgment pursuant to MCL 600.6013(7). They argued that t hey were entitled to intere st on the judgment that began to accrue from the date the case was filed—November 18, 2009—at th e rate provided for in the land contract—9% per annum.

At a hearing held on April 5, 2 013, defense counsel argued tha t, pursuant to MCL 600.6013(7), the trial court was re quired to award interest on the judgment from the date the instant proceedings began at th e rate of 9% per annum, as this was the rate set forth in the parties’ land contract. At a rate of 9%, defendants calculated the amount of interest owed at $76,315.63.

The trial court expressed concern over whether the jury’s verd ict accounted for such interest, noting that defendants asked the jury, both during th eir case-in-chief and closing argument, to award interest from the date of the breach of the contract until the date of the verdict. In addition, the verdict form indicates that the jury awarded damages for plaintiffs’ breach of contract “through today,” meaning November 14, 2012. Defense counsel explained that “[t]here was a closing that took place in 2006 and then we got the trial and my client asked for interest all the way up to 2006 and until the date of trial . The jury didn’t award that.” The trial court asked defense counsel how he knew the jury’s award did not include interest, and counsel explained his reasoning:

Well the verdict that the jury came back with, it’s pretty cle ar that the numbers they awarded my client is [sic] the number that was alw ays [sic] 2006, very specific number. $215,000 and some change. I had asked f or late fees and interest of $400,000-plus. So the jury awarded some contractua l interest up to 2006 and that award included interest but nothing beyond that. And I know the jury didn’t receive any instruction about judgment interest bec ause judgment interest is statutory; it sh all be applied on our judgment.

Plaintiffs’ counsel argued that the jury considered and reject ed defendants’ request for interest beyond April 2006. Plain tiffs’ counsel noted that at trial they had presented testimony and a report from an expert witness who explained the amount of interest that defendants had requested in the case. Plaintiffs’ counsel contended that to a llow defendants to make a renewed request for that same interest would give defendants “a second bite at the apple” and would prejudice plaintiffs. Counsel a rgued that, had he known defend ants were also going to request statutory prejudgment interest, plaintiffs would have addressed the interest issue differently with the jury and the jurors may have reduced their award even furth er so as to effectuate the award they deemed appropriate.-4- The trial court found that defendants, by asking the jury to c onsider and award interest on
the contract from the date of the breach until the date it ente red its verdict, the defendants had allowed the jury to determine whether enforcement of the nine p ercent interest clause in the
contract was warranted under the circumstances presented, and t hat by seeking that same percentage rate from the trial court pursuant to MCL 600.6013(7 ), they were attempting to have a “second bite” at the apple. The court explained:

Ms. La Rosa asked for the contract interest as part of [defend ants’] damages in their closing argument. The jury heard that argumen t, came back with an award of x-number of dollars, which means that the verdict t ook into account the request for that interest a nd basically said, [“]no[”] or r educed it down
somewhat. So we are in a situation now where I think he is ask ing the court to second-guess the award of the ju ry and award interest where the y chose not to.

* * *

. . . The jury has already consid ered the nine percent and th ey said, [“]no[”] or at least reduced it down. The judgment reflects wh atever they believe that was appropriate in ter ms of the nine percent.

The trial court concluded that a warding statutory pre-judgment interest at the rate set forth in the parties’ contract was inappropriate, but that defe ndants were nonetheless entitled to

some interest on the judgment awar d. In response, defense counsel conceded that if the jury had actually awarded his clients the nine percent interest rate, re questing statutory interest on top of that would be “double-dipping,” and although he alleged it woul d be proper, he would not do so. Counsel acknowledged the judge’s conclusion that some type of i nterest under the statute was appropriate, and said that “we just have to figure out what it is. The statute says it’s the interest that’s in the land contract but you are saying—,” at which poin t the trial court interrupted and
concluded:

The jury has already considere d and said [“]no[”] or at least given you part of it. For all we know that $200-some-thousand dollars could h ave reflected the nine percent and they discounted the substance of the amount of damages by whatever and they have already given you the nine percent. How do we know they didn’t give . [sic] You the nine percent?

* * *

Just to summarize. The judgment interest issue was resolved o r considered by the jury at that nine percent rate that was reque sted. They came up with a number. Either they awarded part interest; something re duced; they considered it. The number that we have, we can’t say for a fac t what portion of that award was interest, what portion of it was the actual paym ents that were due and owing apart from the interest, we don’t know. But, the jur y considered it in light of the argument of the plaintiff [sic] to them requesting it. So we are not going to second-guess the jury’s cal l as to their consideration of the nine percent,-5- which is basically what the plai ntiff is asking that the court do. So we are not going to set that in addition to w hat they have already ruled o n.

Thereafter, the trial court rule d that defendants would be ent itled to “regular judgment interest” pursuant to MCL 600.6013(8). On May 23, 2013, the tr ial court entered an order stating that prejudgmen t interest would be calculated pursuant to MCL 600.6013(8) from November 18, 2009—the date plaintiffs’ complaint was filed—unti l the date of the entry of the judgment. The trial court determined that the prejudgment inte rest to which defendants were entitled was $20,127.21 as of April 19, 2013, plus “$10.83 per day until this judgment is entered by the Court.” Concerning post-judgment interest, the trial co urt ordered that the interest rate to
which defendants were entitled was the 9% rate set forth in the land contract. It is from this order that defendants now appeal as of right in Docket No. 3167 02.

II. DOCKET NO. 3167 02—INTEREST

Defendants argue that the trial court erred by awarding prejud gment interest pursuant to MCL 600.6013(8) rather than MCL 600.6013(7). “We review de nov o the award of prejudgment interest pursuant to MCL 600.6013[.]” Beach v State Farm Mut Auto Ins Co , 216 Mich App 612, 623-624; 550 NW2d 580 (1996).

“MCL 600.6013 . . . entitles a prevailing party in a civil act ion to prejudgment interest from the date the complaint was filed to the entry of judgment. ” Id. at 624. See also MCL 600.6013(1) (“Interest is allowed on a money judgment recovered in a civil action, as provided in this section.”). “The purpose of this statue is to compensa te the prevailing party for loss of use of the funds awarded as a money judgment and to offset the cost s of litigation.” Farmers Ins
Exch v Titan Ins Co , 251 Mich App 454, 460; 651 NW2d 428 (2002). “ MCL 600.6013 i s remedial in nature and thus should be liberally construed in fa vor of the prevailing party.” Markley v Oak Health Care In vestors of Coldwater, Inc , 255 Mich App 245, 258; 660 NW2d 344 (2003).

Defendants contend that prejudgment interest should be awarded pursuant to MCL 600.6013(7), which provides:

For a complaint filed on or af ter July 1, 2002, if a judgment i s rendered on a written instrument evidencing indebtedness with a specified int erest rate, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate specified in the instrument if the rate wa s legal at the time the
instrument was executed. If the rate in the written instrument is a variable rate,
interest shall be fixed at the r ate in effect under the instrum ent at the time the complaint is filed. The rate und er this subsection shall not e xceed 13% per year compounded annually.

As used in the statute, the term “written instrument” refers to formal written documents, such as
contracts. See Yaldo v North Pointe Ins Co , 217 Mich App 617, 621; 552 NW2d 657 (1996), aff’d 457 Mich 341 (1998).

The trial court rejected the application of MCL 600.6013(7), c oncluding that the jury had already considered the issue of prejudgment interest, at the ra te specified in the instrument, from-6- the date of the filing of the complaint to the date of the judg ment because defendants’ counsel asked for such interest during his case-in-chief and during clo sing argument. After rejecting an award of prejudgment interest pursuant to MCL 600.6013(7), the trial court concluded that prejudgment interest should be awarded pursuant to MCL 600.6013 (8), which provides, in pertinent part:

Except as otherwise provided in subsections (5) and (7) and sub ject to subsection (13), for complaints filed on or after January 1, 1987, interes t on a money judgment recovered in a civil action is calculated at 6-month i ntervals from the date of filing the complaint at a rate of interest equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certifiedby the state treasurer, and compounded annually, according to this section. Interest under this subsection is calculated on the entire amount of the money judg ment, including attorney fees a nd other costs.

The issue in this case involves an analysis of judgment intere st, which is statutory pursuant to MCL 600.6013, and interest as an element on damages . As explained by this Court
in Vannoy v City of Warren , 26 Mich App 283, 288; 182 NW2d 65 (1970), aff’d 386 Mich 686 (1972), interest as an element of damages “is awarded by the ju ry as part of the general verdict. [Statutory interest] is computed on and added to the general ve rdict. Yet, both types of interest serve the same basic function: to compensate the plaintiff for the loss of the use of funds.” Generally, the prejudgment intere st statute should not be appli ed in a manner that would permit a double recovery. See Holloway Constr Co v Oakland Co Bd of Co Rd Comm’rs , 450 Mich 608, 618; 543 NW2d 923 (1996) (disallowi ng an award of statutory int erest where it appeared that an arbitration panel already consid ered such interest). The purpo se of prejudgment interest is only to make the injured party whole; it is not intended to provide a double recovery to the injured party. See id; Vannoy , 26 Mich App at 288.

We find that in this case, where defendants’ trial counsel exp ressly asked the jury to
calculate and award interest at the contractual 9% rate from th e date of the breach through the date of the verdict as an element of damages, a portion of whic h would have included the same
interest awardable under MCL 600.6013(7), the trial court corre ctly ruled that defendants were not entitled to statutory interest at the rate specified in the contract pursuant to MCL 600.6013(7). Defendants’ entitlement to the 9% contractual int erest rate was clearly before the jury. It is undisputed that defendants asked for interest on t he contract through the date of the jury’s verdict and presented the jury with an exhibit that calc ulated interest due on the balloon payment through the date of the jury’s verdict. In addition, t he verdict form asked the jury to award defendants damages “through today,” meaning through the d ate of the jury’s verdict on November 14, 2012. Therefore, it appears the jury considered a nd rejected the clause of the parties’ contract that provided f or 9% interest on overdue paym ents. 2 This was the same interest

2 Or, rather than rejecting the interest clause, the jury may ha ve reached a compromise verdict and awarded a lesser amount than what was requested by defendan ts, then added 9% interest to-7- rate that defendants sought to impose on the judg ment pursuant to MCL 600.6013(7). Implicit in the jury’s verdict was that it either rejected the clause of th e land contract concerning 9% interest or that it granted an award and then added 9% interest on that amount. Where the jury already considered such interest, defendants should not be given the op portunity to take a second bite at the apple by asking the trial court for the very interest the j ury already considered. See Auto
Club Ins Ass’n v Williams , 179 Mich App 401, 408; 446 NW2d 321 (1989) (a party “is not entitled to a second bite at the apple.”). See also Holloway Constr Co , 450 Mich at 618 (prohibiting a double recovery). Because defendant asked the j ury to consider and incorporate in
its verdict defendants’ entitlement to interest at the 9% contr actual rate, to award defendants statutory pre-judgment interest pursuant to MCL 600.6013(7) wou ld risk running afoul of the prohibition against awardi ng double interest. See id. The purpose of MCL 600.6013(7) is to award the prevailing party intere st for the loss of use of fund s. Farmers Ins Exch , 251 Mich App at 460. Here, the jury was asked to award damages that would h ave accomplished this very

purpose.

Moreover, defendants should not now be heard to protest this m atter when, as noted above, they expressly requested the jury’s determination of bot h the pre-complaint interest and the interest due from the date of filing of the complaint to th e date of the verdict at the rate set
forth in the contract. See Moody v Homes Owners Inc Co , 304 Mich App 415, 438; 849 NW2d 31 (2014), quoting People v Jones , 468 Mich 345, 352 n 6; 662 NW2d 376 (2003) (“Under the invited-error doctrine, appe llate relief is generally not a vailable because ‘when a party invites the error, he waives his right to seek appellate review, and an y error is extin guished.’ ”).

Plaintiffs contend that defendants are not entitled to any statutory prejudgment interest pursuant to either MCL 600.6013(7) or MCL 600.6013(8). As an a lternative, they contend that,
to the extent defendants are ent itled to prejudgment interest, the amount to which they are entitled should be reduced by the amount of interest that accru ed during periods of delay that were not caused by plaintiffs. Plaintiffs have not filed a cro ss-appeal. Where an appellee seeks
“a decision more favorable than th at rendered by the lower trib unal” the appellee is required to file a cross appeal in order for the issue to properly be befor e this Court. Cheron, Inc v Don Jones, Inc , 244 Mich App 212, 221; 625 NW2d 93 (2000). “Generally, failu re to file a cross appeal precludes an appellee fr om raising an issue not appealed by the appellant.” Kosmyna v Botsford Comm Hosp , 238 Mich App 694, 696; 607 NW2d 134 (1999). Here, plaintiffs seek a decision more favorable than that rendered by the trial court. As such, they were required to file a cross appeal, and their failure to do so means that we need n ot consider these issues. Cheron,

Inc , 244 Mich App at 221; Kosmyna , 238 Mich App at 696.

III. DOCKET NO. 319118—CASE EVALUATION SANCTIONS

In Docket No. 319118, plaintiffs appeal as of right from the t rial court’s September 30, 2013 order granting $35,539.98 in case evaluation sanctions to defendants.

that amount through the date of its verdict. We note that the jury found both plaintiffs and
defendants had breached the contract.-8- Before this matter proceeded to trial, the parties participate d in case evaluation. On December 20, 2010, a case evaluation panel issued an award of $ 100,000 for plaintiffs on their complaint against defendants. On the counterclaim, the case ev aluation panel awarded $200,000 to defendants against plaintiffs . Defendants rejected the awar ds. Plaintiffs filed what they termed a “limited acceptance” to the award, subject to the foll owing two conditions: (1) “Free and clear title to the subject property commonly known as 18150 Moross Road, Detroit, Michigan 48224 is conveyed to t he Plaintiffs by all opposing pa rties”; and” (2) “All opposing parties accept the Case Evaluation Award in its entirety.” The trial court found that plaintiffs’ purported limited acceptance was not in conformity with the cou rt rules; thus, the trial court deemed the limited acceptance a rejection of the case evaluatio n award. The trial court, finding that the jury’s verdict, when combined with interest and costs, was more favorable to defendants by at least 10%, awarded sanctions to defendants.

The decision whether to award case-evaluation sanctions is a q uestion of law that this
Court reviews de novo. Van Elslander v Thomas Sebold & Assoc, Inc , 297 Mich App 204, 211; 823 NW2d 843 (2012). Within 28 days of the panel’s evaluation, each party “shall file a written acceptance or rejection of the panel’s evaluation . . . .” MCR 2.403(L)(1). A party who rejects the panel’s evaluation is subject to sanctions if he or she fai ls to improve upon his or her position
at trial. Van Elslander , 297 Mich App at 212. MCR 2.403(O )(1) provides that:

If a party has rejected an evaluation and the action proceeds t o verdict, that party must pay the opposing party’s act ual costs unless the verdict i s more favorable to the rejecting party than the cas e evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party th an the case evaluation.

In determining whether a verdict is “more favorable” for purpos es of MCR 2.403(O)(1), a verdict “must be adjusted by a dding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the cas e evaluation . . . .” MCR 2.403(O)(3). “After this adjustmen t, the verdict is considered more favorable to a defendant if it is more than 10 percent below the evaluation, and is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation.” MCR 2.403(O) (3). The purpose of case evaluation sanctions “is to shift or impose the burden of litig ation costs upon the party who insists upon trial by rejecting a mediation award. This is con sistent with the intent behind requiring litigants to engage in case evaluation in an effort t o encourage settlement and deter protracted litigation.” Van Elslander , 297 Mich App at 212-213 (citation and quotation marks omitted).

The only dispute in this case is whether plaintiffs accepted o r rejected the case evaluation award. As noted above, plaintiffs purported to file a “limited acceptance” to the case evaluation award. In cases such as this where there are multiple parties, additional rules apply to the acceptance and rejection of case evaluation awards. See MCR 2. 403(L)(3). Where there are multiple parties, each party has the option of accepting all of the awards covering the claims by or against the party, or of accepting some of the awards and re jecting others. MCR 2.403(L)(3)(a). Pertinent to this case, MCR 2.403(L)(3)(b) pro vides for a limited acceptance as
follows:-9- A party who accepts all of the awards may specifically indicate that he or she intends the acceptance to be effective only if

(i) all opposing partie s accept, and/or

(ii) the opposing parties accept as to specified coparties.

If a party makes a “limited acceptance” under MCR 2.403(L)(3)(b ) “and some of the opposing parties accept and others reject , for the purposes of the cost provision of subrule (O) the party who made the limited acceptance is deemed to have rejected as t o those opposing parties who accept.” MCR 2.403(L)(3)(c).

In construing MCR 2.403(L)(3)(c) , this Court has observed that :

MCR 2.403(L)(3)(c) specifies that “the party who made the limit ed acceptance is deemed to have rejected as to those opposing parties who accept ” (emphasis added). This part of the court rule would be rendered nugatory , contrary to the rules of construction, if the limited acceptance party was also deemed a rejecting party with respect to opposing parties who reject. Further, the purpose of the
mediation sanction rule is to enc ourage settlement and deter pr otracted litigation by placing the burden of litigation costs upon the party that r equired that the case proceed toward trial by rejecting the mediator’s evaluation. . . . [U]nder the language of MCR 2.403(L)(3)(c), a party who makes a limited acc eptance of an award is deemed to have rejected it only with respect to those opposing parties who accepted, but not with respect to those who rejected, the a ward. [ Dykes v William Beaumont Hosp , 246 Mich App 471, 484-485; 633 NW2d 440 (2001).]

We find that the trial court correctly ruled that plaintiffs’ purported “limited acceptance”
did not conform with the court rules and therefore constituted a rejection of the panel’s case evaluation award. “When a party ’s response [to a case evaluati on award] does not conform to the court rules, the trial cour t should deem it a rejection.” Merc Bank Mtg Co, LLC v NGPCP/BRYS Centre, LLC , 305 Mich App 215, 224; 852 NW2d 210 (2014). See also Bush v Mobil Oil Corp , 223 Mich App 222, 227; 565 NW2d 921 (1997), overruled on othe r grounds CAM Constr v Lake Edgewood Condo Ass’n , 465 Mich 549, 557; 640 NW2d 256 (2002) (holding that a conditional response that does not comply with the court rules is deemed a rejection of the case evaluati on award). Plaintiffs’ response to the case evaluation award placed two conditions on acceptance: (1) free and clear title to the p roperty was conveyed to plaintiffs; and (2) all opposing parties accept the case evaluation award i n its entirety. Pursuant to MCR 2.403(L)(3)(b), the second condition imposed by plaintiff, i.e. , that all opposing parties accept, was an appropriate condition under the court rules in a case, s uch as this one, involving multiple parties. However, plaintiffs have not cited, nor does there ex ist, a provision of the court rules that would permit plaintiffs’ first condition, i.e., that free and clear title to the property pass to plaintiffs. Such a conditional acceptance was invalid under th e court rules and constituted a rejection of the case evaluation award. See Bush , 223 Mich App at 226 (“The court rules do not provide for conditional acceptance.”). See also Mercantile Bank Mtg Co , 305 Mich App at 224 (explaining that an improper response to a case evaluation awar d constitutes a rejection of the award). Because plaintiffs’ re sponse was appropriately deemed a rejection of the case evaluation-10- award, and because there is no dispute that defendants received a more favorable result at trial, the trial court was required to impose case evaluation sanction s. See MCR 2.403(O)(1).

Affirmed.

/s/ Jane M. Beckering
/s/ Kathleen Jansen
/s/ Mark T. Boonstra