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### STATE OF MICHIGAN

COURT OF APPEALS

STUART D. ROEDER,

Plaintiff/Counter-DefendantAppellee, UNPUBLISHED June 13, 2017

v No. 330874 Kent Circuit Court GLOBAL EXPRESS SERVICES, LLC, LC No. 14-002845-CK

Defendant/Counter-PlaintiffAppellant.

Before: G ADOLA , P.J., and T ALBOT , C.J., and G LEICHER , J.

P ER C URIAM

. At issue in this case is a commercial property lease. The lan dlord sought to retake possession of the building while the tenant sought the right to remain in house for a ten-year period. The trial court ruled in the landlord’s f avor and the tenant appeals, raising multiple claims of error. Because none merit relief, we affirm.

I. BACKGROUND

Stuart Roeder owns commercial property in Grand Rapids. On No vember 7, 2012, Roeder executed a lease with Glo bal Express Services, a company owned and operated by Ashtin Raad and his wife, Linda A kkari. The lessees opened a r estaurant at the site. The lease term began December 15, 2012 and ran for one year. Global Expr ess had the option to extend the lease for nine additional one -year terms. To extend the le ase, Global Express was required to notify Roeder in writing not le ss than 60 days before the lease expired.

Global Express contends that Ro eder misrepresented that the bu ilding was up to code to serve as a restaurant. As a result, Global Express was require d to make unexpected and expensive renovations to the property. Global Express then wan ted to protect its investment. Accordingly, Raad claims that he notified Roeder in writing of his intent to extend the lease for the entire 10-year period. To support this claim, Raad present ed a letter dated January 7, 2013. Roeder denied receiving the letter. On November 7, 2013, Roede r notified Global Express that its lease would expire December 15 and he expected the tenants to vacate. Global Express responded by providing the January 7 letter. Roeder indicated that he had not timely received that notice and the lease t erm would not be renewed.-2- Roeder filed suit seeking posse ssion of the building and accus ing Global Express of materially breaching the lease in several ways. Global Express filed a countercomplaint, claiming that Roeder breached its right to quiet enjoyment of t he building by placing rental and sale signs in the restaurant’s window and placing an Internet a d to sell the building.

As the case proceeded, Global Express exhibited disregard for deadlines set by the court. It belatedly filed an incomplete witness list, leading the court to limit Global Express’s trial witnesses to Raad and Akkari. Global Express filed its trial b rief late and the court advised that no new evidence would be allowed at trial. Global Express also violated the court’s order compelling production of the computer on which its letter to ex tend the lease was prepared, evidence necessary to resolve the parties’ dispute regarding th e letter’s actual drafting date.

At the conclusion of the bench trial, the court denied Roeder’ s and Global Express’s cross claims for damages related to the other’s alleged breache s of the lease. Specifically, regarding Global Express’s count erclaim, the court found that R oeder had breached the lease but that Global Express had not proven its damages with reasonable certainty. The court awarded possession of the building to Roe der after determining that Glo bal Express had not sent the renewal letter on January 7, 2013 and therefore that the lease had expired on December 15. The court also awarded Roeder one -half of his a ttorney fees.

II. PRESENTATION OF WITNESSES

Global Express first argues that the trial court erred in deny ing its motion to extend the deadline set forth in the schedu ling order for the disclosure o f expert and lay witnesses. We review a trial court’s decision regarding a motion to extend di sclosure dates for an abuse of discretion. See Decker v Trux R Us, Inc , 307 Mich App 472, 478; 861 NW2d 59 (2014). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes. Maldonado v Ford Motor Co , 476 Mich 372, 388; 719 NW2d 809 (2006).

A trial court should “enter a scheduling order setting time li mitations for the processing of the case and establishing da tes when future actions should b egin or be completed in the case,” MCR 2.401(B)(1)(c), including dates for the completion of disco very and the exchange of witness lists. MCR 2.401(B)(2)(a)( iii ), ( iv ). The scheduling order in this case required Global Express to disclose its expert witnesses by August 4, 2014, and citing MCR 2.302(B)(4)(a)( i ), “to state the subject matter a bout which the expert is expected to testify, and to state the substance of the facts and opini ons to which the expert is expe cted to testify and a summary of the grounds for each opinion.” The order required Global Expre ss to present a list of all lay witnesses 28 days before the close of discovery, which was Octo ber 3, 2014. In relation to lay witnesses, the court ordered Global Express to “name each propo sed witness, provide an address (residence or business), and sta te briefly what he or she is expected to say.”

On October 9, 2014, after retaining new counsel, Global Expres s moved to extend the discovery deadline. Global Express asserted that much discover y still needed to be done, including the taking of Roeder’s deposition. Global Express al so requested that the witness disclosure deadline be extended. At the hearing, however, Glob al Express identified only its need to depose Roeder in support of its motion to extend the de adlines in the scheduling order. The trial court granted Global E xpress additional time in whichto depose Roeder but stated, “I-3- don’t think otherwise we need to change . . . any dates.” The trial court did not abuse its discretion in impliedly denying Global Express’s motion to exte nd the witness disclosure deadline. Global Express never stated a reason necessitating a n extension and abandoned this request at the motion hearing by a sking only for “permission to take that last deposition.”

In a related argument, Global Express challenges the trial cou rt’s exclusion of its proffered witnesses at trial. T rial was scheduled for October 5, 2015. On September 4, Roeder filed a preemptive motion to exclude any witness proffered by G lobal Express as it had yet to file any witness list. Ten days later, Global Express finally filed a list of expert and lay witnesses, but the court excluded th eir testimony at trial.

“This Court reviews for an abuse of discretion a trial court’s decision to bar witness testimony after a party has failed to timely submit a witness l ist.” Duray Dev, LLC v Perrin , 288 Mich App 143, 162; 792 NW2d 749 (2010). “Once a party has fail ed to file a witness list in accordance with the scheduling order, it is within the trial co urt’s discretion to impose sanctions against that party. These sanctions may preclude the party fro m calling witnesses.” Id . at 164. When deciding how to sanction a party, a court must carefully c onsider what sanction would be “just and proper” under the circumstances and evaluate the vari ous factors outlined in Dean v Tucker , 182 Mich App 27, 32-33; 451 NW2d 571 (1990):

“(1) whether the violation was w ilful or accidental; (2) the pa rty’s history of refusing to comply with discovery requests (or refusal to discl ose witnesses); (3) the prejudice to the [other party]; (4) actual notice to the [o ther party] of the witness and the length of time prior to trial that the [other p arty] received such actual notice; (5) whether there e xists a history of [the party ’s] engaging in deliberate delay; (6) the degree of compliance by the [party] w ith other provisions of the court’s order; (7) an attempt by the [party] to timely c ure the defect, and (8) whether a lesser sanction would better serve the interests of j ustice.” [ Duray Dev
, 288 Mich App at 165, quoting Dean , 182 Mich App at 32-33.]

It appears that Global Express’s failure to timely provide witness lists was likely accidental rather than willful. In response to interrogatories , Global Express identified several potential witnesses. It is likely that Global Express thought these responses complied with the disclosure requirements. However, Global Express did not timel y cure its failure to provide witness lists. Global Express waited until two weeks before tr ial to present actual lists, more than a year after the deadline in the scheduling order, and onl y did so in response to a motion to exclude. Global Express delayed despite that it had previously sought to extend the deadline for filing its witness lists, belying any claim of ignorance. More over, the information regarding potential witnesses produced dur ing discovery was incomplete; G lobal Express never provided necessary details about the proposed experts’ testimony to allo w Roeder to adequately prepare for trial.

Global Express also exhibited a history of failing to comply w ith discovery requests. For example, during discovery, Roeder requested production of the l aptop computer on which Raad had drafted the letter requestin g extension of the lease. Roed er intended to establish from the metadata connected with the file that Raad had not drafted the letter in January 2013. Raad claimed that he no longer had access to the computer because Akkari had taken it with her on a-4- visit to Lebanon and then sold it. When the court ordered Glob al Express to produce the laptop, Raad presented a computer disk h olding the letter and its conne cted metadata. Raad recently had this information pulled from the computer’s hard drive but neve r adequately explained how he gained access to the computer t hat had allegedly been sold.

Ultimately, the court determined that Roeder was greatly burde ned by the delay in presenting the witness lists. The proceedings had been going o n for more than 20 months at that point. Roeder was carrying the financial burden of the delay; Global Express’s monthly rent obligation was being paid into escrow rather than to the landlo rd. And even two weeks before trial, Roeder could not know what Global Express’s proffered ex perts would testify to. Under these circumstances, we cannot conclude that the trial court ac ted outside its discretion in preventing Global Express’s witn esses from testifying at trial.

III. EXCLUSION OF DOCUMENTARY EVIDENCE

At the onset of trial, Roeder moved to exclude any exhibits pr offered by Global Express at trial. Roeder sought this san ction as punishment for Global Express’s belated fi ling of its trial brief. Roeder further accused Global Express of failing to mak e its trial exhibits available for inspection one week before trial as required by the court; rath er, Global Express provided copies of these exhibits to Roeder fiv e days before trial. The court denied Roeder’s motion to strike Global Express’s trial exhibits. However, the court ruled, “if there are exhibits which have not previously been seen or utilized in these proceedings, I would entertain an objection to their being used in this trial on the grounds of unfair surprise and lack of prior notice.”

Global Express challenges the t rial court’s ruling, but cites no exhibit that was excluded from trial because it had “not previously been seen or utilized in these proceedings.” Global Express emphasizes five points during the trial when Roeder rai sed objections, but identifies no exhibits that were excluded as a result. Indeed, even when the court agreed with Roeder that Global Express had produced no documentation establishing damag es prior to trial, Global Express did not attempt to present or even identify any evidenc e in its possession. As Global Express can point to no evidence that was excluded, there is no thing for this Court to review.

IV. INTERPRETER

Akkari is from Lebanon and speaks limited English. Accordingl y, on the first day of trial, Global Express requested that the court appoint an inter preter for her. The judge advised Global Express to contact the clerk’s office for assistance in securing a certified interpreter. On the third trial day, Global Express informed the court that “an interpreter, who is court certified” would arrive at 11:00 a.m. Akkari t estified that day with the interpreter’s assistance.

On the fourth day of trial, couns el for Global Express placed “commentary” on the record regarding the interpreta tion of the previous day:

And I did want to make one commentary regarding the translator yesterday. And that was a trans lator that was provided by the court. I don’t know that he really translated verba tim as required what he was supp osed to - - everything that Ms. Akkari said. He had conversations with her , and then he kind of reported what she said.-5- * * *

And I think the gist of what sh e said came out. I just wanted for the record to note that it wasn’t a verbatim translation. And we - - we c ontacted the office here at the court that provides translation services, and they indicated that I guess he wasn’t, quote unquote, “certified,” but he was the one that was available for - - for us that the court provided. S o I just wanted to note that for the record.

Global Express did not request that Akkari be allowed to testif y again with a replacement interpreter. On appeal, Global E xpress presents an affidavit f rom Raad comparing his translation of Akkari’s testimony to that of the interpreter. If accurate, this affidavit demonstrates that the interpreter’s translation was cl umsy, but not necessarily inacc urate. Just as counsel indicated at trial, the affidavit supports that the interpreter’s translatio n was not word-for-word, but the “gist” of Akkari’s statements was conveyed.

The parties later learned that the interpreter was not certifi ed or properly qualified to translate the proceeding. But Roeder raises no argument in thi s regard. Instead, he posits that Global Express waived any challenge by selecting this interpret er and by failing to immediately object during Akkari’s testimony. However, Global Express sele cted the interpreter used at trial because the court clerk provided his name as someone qualified to provide translation services. Counsel advised the court of the interpreter’s shortcomings as soon as he could after discussing the issue with Raad, who speak s both Arabic and English.

And the trial court—the clerk’ s office acting in conjunction w ith the trial judge—violated the court rules governing the appo intment of interpreters. MCR 1.111(B)(1) requires the court to appoint “a foreign language inter preter” upon request if “neces sary for the person to meaningfully participate in the case or the court proceeding.” An interpreter appointed by the court must be “a certified forei gn language interpreter wheneve r practicable.” MCR 1.111(F)(1). A “certified interprete r” is one who has “passed a foreign lang uage interpreter test” approved by SCAO, meets all criteria establish ed by SCAO for interpreter cl assification, and is registered with SCAO. MCR 1.111(A)(4). “If a certified . . . interpreteris not reasonably available, and after considering the gravity of the proceedings and whether th e matter should be rescheduled, the trial court may appoint a qua lified foreign language interp reter.” MCR 1.111(F)(1). A “qualified . . . interpreter” is a “person who pr ovides interpr etation services” or who works for an interpretation service and meets SCAO requirements to be classi fied as an interpreter. MCR 1.111(A)(6). Only if neither a cer tified nor qualified interpr eter is reasonably available may the court consider appointing someone else. Before doing so, the c ourt must “determine[] through voir dire” that the person “is capable of conveying the intent and content of the speaker’s words sufficiently to allow the court to conduct the proceeding witho ut prejudice to the limited English proficient person.” MCR 1.111(F)(2).

It appears that Global Expre ss did not know until after Akkari testified that the interpreter was neither certified nor qualif ied under the court rule. Beca use the clerk’s office withheld information, Global Express lacked the knowledge it needed to a sk the judge to conduct voir dire. As a result of the court’s own errors, Global Express di d not know before Akkari testified whether the interpreter was “capable of conveying the intent an d content of the speaker’s words sufficiently to allow the court to conduct the proceeding witho ut prejudice” to Akkari.-6- The court’s error was harmless, however. See MCR 2.613(A). G lobal Express admitted at trial that the substance of Akkari’s testimony was conveyed. Our review of Raad’s affidavit retranslating Akkari’s testimony supports that statement. Acco rdingly, Global Express was not prejudiced and a new trial is not warranted.

V. ADVERSE INFERENCE

As noted, Roeder requested production of the laptop computer o n which Raad allegedly drafted his January 7, 2013 lett er notifying Roeder of Global E xpress’s intent to extend its lease. The trial court ordered the la ptop’s production and Global Expr ess did not comply. Global Express contends that the trial court improperly made an advers e presumption that metadata on the laptop would have established that Raad actually drafted th e letter in November 2013 in response to Roeder’s eviction notice. 1

Following a bench trial, the cou rt must find the facts, state its conclusions of law, and direct entry of an appropriate judgment. MCR 2.517(A)(1). Her e, after hearing all the evidence, the court found that the subject letter was not mailed in January 2013. The trial court based its finding on three factors: (1) the re was no credible reason for Global Express to extend the lease only one month after it had taken possession of the building as notice to extend was not required until October 2013; (2) the letter was never mentioned in any s ubsequent correspondence between Roeder and Raad; and (3) the floor plan, which Raad tes tified he sent with the renewal letter, had never been folded to fit into an envelope. The tri al court did not rely on any adverse inference against Global Express based on its failure to produc e the laptop. Accordingly, Global Express’s complaint is without merit.

VI. LEASE RENEWAL

Global Express also challenges the trial court’s conclusion th at it did not renew the lease for nine additional one-year terms. Following a bench trial, w e review a trial court’s conclusions of law de novo and its factual findings for clear error. Waisanen v Superior Twp , 305 Mich App 719, 723; 854 NW2d 213 (2014). “A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been mad e, even if there is evidence to support the finding.” In re Bennett Estate , 255 Mich App 545, 549; 662 NW2d 772 (2003).

As noted, the court first surmised that there was no credible reason for Global Express to extend the lease for nine additional years only one month after it had taken possession of the building as notice to extend was not required until October 201 3. Raad testified that he and Akkari decided that Global Express would extend the lease for n ine years because of the extent of work needed to bring the res taurant up to code. Extending t he lease for the full 10 years, Raad asserted, protected Global Expres s’s investment and provided Ro eder assurances that the renovations would not be in vain. Raad also claimed that Roede r had made comment about

1 Global Express actually contends that the court improperly gav e a spoliation of the evidence instruction to the jury. This was a bench trial, and so the pr oper inquiry is whether the court made the inference permitted by the instruction.-7- selling the building. By extendi ng the lease, Global Express c ould protect its legal right to retain possession after the sale. Although these explanations seem re asonable on paper, the trial court had the best opportunity to view Raad’s demeanor and assess his credibility. See Stoudemire v Stoudemire , 248 Mich App 325, 339; 639 NW2d 274 (2001). Questions of cre dibility and intent are for the trier of fact. Triple E Produce Corp v Mastronardi Produce, Ltd , 209 Mich App 165, 174; 530 NW2d 772 (1995). We will not second guess the court’s finding in this regard.

The trial court next opined that the lease renewal letter was not actually sent in January 2013 as the parties were in constant contact via email at that time and yet the letter was never mentioned. As Roeder disputed that the lease allowed Global Ex press to renew the lease for a nine-year term, rather than year-to-year, the court found it li kely that Roeder would have clarified the lease terms if he had received the letter. Raad presented no email in which he discussed the renewal letter withRoeder and we discern no grou nd to interfere with the court’s assessment of the facts.

At trial, Raad testified that he folded a floor plan for the b uilding and placed it in the envelope with the renewal letter. The final reason cited by th e court for finding that the letter was not actually mailed in January 2013 is that the floor plan presented by Raad as the one he mailed to Roeder (and later reviewed in person with Roeder) did not appear to have been folded at any point in time. We have reviewed a photocopy of this tri al exhibit. There appears to be a single fold line approximately one-third down the page, but the re are no other apparent fold lines on the paper. Accordingly, we cannot conclude that the trial c ourt clearly erred in finding that Raad did not send the letter in January 2013. As notice was no t timely sent, Raad did not renew Global Express’s lease for a second year and Roeder was entitle d to retake possession of the building. Given this conclusion, we need not consider the tria l court’s alternate ground for ruling in Roeder’s favor—that the lease only allowed Global Express to renew the lease for nine additional one-year terms , not for one nine-year term.

VII. ATTORNEY FEES

Finally, Global Express challenge s the trial court’s grant of attorney fees to Roeder. Global Express contends that as R oeder breached the lease, he c ould not enforce the lease’s attorney-fee provision. The int erpretation of a contract and t he legal effect of its provisions are questions of law reviewed de novo. Rory v Continental Ins Co , 473 Mich 457, 464; 703 NW2d 23 (2005); Klapp v United Ins Group Agency, Inc , 468 Mich 459, 463; 663 NW2d 447 (2003).

Michigan follows the “American rule” regarding the payment of attorney fees and costs. Haliw v Sterling Heights , 471 Mich 700, 706; 691 NW2d 753 (2005). Under this rule, a p arty is required to pay its own attorney fees unless a statute or court rule authorizes otherwise. Id. at 707. Parties may also contractua lly agree to shift attorney fe es. Pransky v Falcon Group, Inc

, 311 Mich App 164, 194; 874 NW2d 367 (2015). Because the trial court’s authority to award fees arises from the contract, the award is a type of general d amages. Id.

The lease provided th at “[i]f Landlord comm ences an action to enforce this Lease, Tenant agrees to pay Landlord’s reasonable costs and attorney fees.” Roeder leased the building to Global Express for one year. The lease began on “the Commencem ent Date and expire[d] on the Termination Date, unless otherwise terminated or extended as pr ovided in this Lease.” To-8- extend the lease, Global Express was required to notify Roeder in writing not less than 60 days before the lease terminated. T hus, Global Express only had the right to possess the building past the termination date if it gave timely written notice of its in tent to extend the lease. Global Express did not give timely notice of its intent to extend the lease and yet refused to vacate, leading Roeder to file this action “to enforce” the lease. The refore, the attorney-fee award was authorized under the contract as an element of damages.

Global Express contends that the award was not permitted despi te the contractual provision. A party who first comm its a substantial contractual breach cannot maintain an action against the other for its subsequent breach or failure to perfo rm. Able Demolition, Inc v Pontiac

, 275 Mich App 577, 585; 739 NW2d 696 (2007). “[T]he application of such a rule can be found only in cases where the breach has effected such a change in es sential operative elements of the contract that further performan ce by the other party is thereby rendered ineffective or impossible, such as the causing of a complete failure of consideration or t he prevention of further performance by the other party.” Baith v Knapp-Stiles, Inc , 380 Mich 119, 126; 156 NW2d 575 (1968) (quotation marks and citations omitted). To succeed in its challenge to the attorney-fee provision, Global Expres s would have to show that Roeder’s act of temporarily placing a for-sale sign in the restaurant’s window completely prevented Global Exp ress from operating its restaurant. The restaurant remained open and Global Express ti ed no lost profit to Roeder’s actions. Accordingly, Global Expr ess cannot avoid the award of attorney fees.

We affirm. Roeder, as the prevailing party, may tax costs pur suant to MCR 7.219.

/s/ Michael F. Gadola /s/ Michael J. Talbot /s/ Elizabeth L. Gleicher