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STATE OF MICHIGAN 

COURT OF APPEALS 

ESTATE of FRANKLIN A. DENISON, SR., by 

DENNIS DELONG, Personal Representative, 

 Plaintiff/CounterDefendant/Appellant/CrossAppellee, 

UNPUBLISHED 

January 21, 2016 

v No. 323594 

Allegan Circuit Court 

PALM BEACH POLO HOLDINGS, INC., LC No. 05-038095-CH 

 Defendant/CounterPlaintiff/Appellee/Cross-Appellant, 

and 

KK AGGREGATES, INC., 

 Defendant/Counter-Plaintiff. 

Before: BECKERING, P.J., and GLEICHER and M. J. KELLY, JJ. 

PER CURIAM. 

 In a prior appeal, this Court reversed the trial court’s judgment of no cause of action for 

the plaintiff estate’s unjust enrichment claim and remanded for entry of a damages award 

consistent with the estate’s evidence. Denison Estate v Palm Beach Polo Holdings, Inc, 

unpublished opinion per curiam of the Court of Appeals, issued June 24, 2010 (Docket No. 

284444) (Denison Estate I). On remand, the trial court entered an award in the estate’s favor, but 

denied the estate’s request for attorney fees and costs. The trial court erroneously concluded that 

its jurisdiction was so limited by our remand as to preclude consideration of such an award. 

Accordingly, we reverse that portion of the lower court’s order and remand for consideration of 

the estate’s request. 

 Palm Beach Polo Holdings, Inc. cross-appeals, contending that interest should not accrue 

on the judgment beyond May 25, 2012, the date on which it tendered a settlement offer to the 

estate. Palm Beach further contends that the unjust enrichment award should have been reduced 

by half because the estate owned only 50% of the subject leasehold, the other half belonging to 
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Franklin Denison’s spouse’s trust. We discern no error in these regards and therefore affirm the 

interest award and the judgement amount. 

I. BACKGROUND 

 In the 1990s, the deceased and his wife—the Denisons—owned property along the 

Kalamazoo River in Saugatuck, which they leased to their company, Broward Marine. In 1998, 

Palm Beach purchased Broward and took over the lease, paying $25,240 in annual rent to the 

Denisons. Denison Estate I, unpub op at 1. At some point, the Denisons died; Mr. Denison’s 

half of the leasehold interest flowed into his estate and Mrs. Denison’s into her trust. And in 

2002, Palm Beach moved its business to Florida. Id. at 1-2. 

 The Master Lease did not describe the property, reciting only the address. Id. at 1. In 

2002, Palm Beach filed suit against the estate, as well as Mrs. Denison’s trust, seeking a judicial 

declaration regarding the property’s dimensions. During that suit, Palm Beach subleased the 

property for $100,000 annually. The sublease described the property as including 575 feet of 

river frontage and held Palm Beach harmless in the event the court reached a different 

conclusion in its suit against the estate. Id. at 2. 

 The trial court eventually ordered reformation of the sublease to reflect that the property 

was 3.08 acres with 235 feet of riverfront, rather than 5.1 acres with 575 feet of river frontage. 

The court reduced the sublessee’s rent obligation by 25% and made the order retroactive to May 

2005. Palm Beach therefore owed the sublessee a refund of rents. The sublessee was thereafter 

evicted from the property but Denison Estate I is silent regarding the reason and party behind the 

eviction. Id.

 The estate and Mrs. Denison’s trust apparently owned the remaining 340 feet of 

riverfront and 2.02 acres of land free from any leasehold interest. In July 2005, the estate filed 

the suit underlying this appeal and raised claims of breach of contract, unjust enrichment, 

constructive trust, and trespass. The estate sought that portion of the rent paid for the land 

outside the leasehold, as well as unpaid rents under the original agreement with Palm Beach. It 

also sought damages for Palm Beach’s improper assignment of part of its interest to KK 

Aggregates. The estate accused Palm Beach of a continuing trespass and damage to property 

outside the leasehold, in connection with actions by the sublessee. Id.

 Early in the proceedings, the court granted partial summary disposition in the estate’s 

favor in relation to unpaid rents amounting to $76,350. Following a bench trial, the court ruled 

that Palm Beach had breached its contract and committed three trespassory acts, but awarded 

only $5. The court found no cause of action as to the constructive trust claim. Id. In relation to 

unjust enrichment, the court held that Palm Beach “was unjustly enriched, as a matter of fact.” 

Id. However, the court found no cause of action because the estate “failed to submit any 

evidence” regarding damages. Id. at 2-3. 

 In Denison Estate I, the estate appealed the trial court’s judgment. This Court concurred 

with the estate that it presented evidence regarding the extent of Palm Beach’s unjust enrichment 

before May 2005—25% of the rent paid by the sublessee based on Palm Beach’s incorrect 
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description of the property. Id. at 4. This Court affirmed the trial court’s rulings in relation to 

the constructive trust and trespass claims. Id. at 5-7. 

 While the appeal in Denison Estate I was pending, the trial court entertained the estate’s 

motion for attorney fees and costs. The Master Lease provided, “The prevailing party in any 

litigation hereunder shall be entitled to recover its reasonable attorneys’ fees and costs, including 

any appeals.” The trial court identified the estate as the prevailing party in the suit. 

Accordingly, the court awarded the estate $97,027.42 in attorney fees and costs. The December 

9, 2008 order provided, “All rulings herein are made without prejudice to [the estate’s] right to 

seek further reimbursement from [Palm Beach] for other attorneys’ fees and costs incurred by 

[the estate].” The court “retain[ed] jurisdiction to consider and rule on any such further 

requests.” 

II. POST-APPEAL PROCEEDINGS 

 Following our resolution of Denison Estate I, the trial court heard argument on the issue 

of the estate’s unjust enrichment damages. Palm Beach contended that the estate was entitled to 

only half of any calculated damages because it possessed only a 50% interest in the property and 

Mrs. Denison’s trust was not a party to the suit. The court rejected that argument as untimely 

raised and then valued the damages at $65,031.25. The court also ordered that prejudgment 

interest applied, over Palm Beach’s objection, and calculated that award at an additional 

$110,515.09. 

 On remand, the estate also sought additional attorney fees and costs incurred after the 

December 2008 award, including those fees and costs amassed during the first appeal. The trial 

court denied the estate’s request, noting first that this Court held in Denison Estate I, unpub op at 

7: “No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.” Further, 

awarding fees and costs incurred after the first appeal went beyond the scope of the remand, the 

trial court concluded. 

 Both parties have now appealed the trial court’s orders entered after the first appeal. The 

estate contends that the trial court should have continued assessing attorney fees and costs after 

its December 2008 order. Palm Beach contends that it made a bona fide offer of settlement on 

May 25, 2012, and it was improper to calculate interest beyond that date. Palm Beach also 

continues to assert that the estate is entitled to only 50% of the unjust enrichment award. 

III. ATTORNEY FEES AND COSTS 

 The trial court erred in determining that it lacked jurisdiction to consider and award 

continuing attorney fees and costs. Our remand order did not prevent the court from acting and 

our refusal to tax costs under MCR 7.219 is not dispositive of the estate’s contract-based request. 

 Whether a court possesses jurisdiction over a matter presents a question of law that we 

review de novo. In re Contempt of Dorsey, 306 Mich App 571, 580-581; 858 NW2d 84 (2014). 

The trial court granted the estate’s request for attorney fees and costs as permitted by the Master 

Lease on December 9, 2008. Palm Beach did not file its brief as appellee in Denison Estate I

until nearly a month later. Palm Beach did not seek to file a cross-appeal in the prior appeal, nor 

did it challenge the application of the contractual attorney fee provision. As a result, our 
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decision in Denison Estate I makes no mention of that award and reaches no conclusion on that 

issue. The Master Lease provision permitting the assessment of attorney fees and costs and the 

trial court’s reliance on that provision simply were not on our radar; we had no reason to include 

specific language permitting the trial court to continue considering the issue on remand. 

Therefore, the trial court read Denison Estate I too narrowly in determining that it lacked 

jurisdiction over this issue. 

 Furthermore, the trial court specifically retained jurisdiction to consider future requests 

for accumulating attorney fees and costs. Again, our opinion in Denison Estate I in no way 

questioned or cut off that jurisdiction. In fact, the attorney fees and costs in this matter are an 

element of damages, and this Court remanded for the trial court to consider the proper damages 

connected to the unjust enrichment judgment. See Denison Estate I, unpub op at 4. See also 

Fleet Business Credit v Krapohl Ford Lincoln Mercury Co, 274 Mich App 584, 589; 735 NW2d 

644 (2007) (“[A]ttorney fees awarded under such contractual provisions are considered damages, 

not costs.”). 

 In Denison Estate I, unpub op at 7, we did decline to tax costs under MCR 7.219 as

neither party had prevailed in full. That is not dispositive here. It is well established that to tax 

appellate costs under the court rule, a party must have prevailed in full. But to collect attorney 

fees and costs under contractual provisions and statutes, and even under other court rules, the bar 

is not so high to be considered a prevailing party. For example, this Court has only required a 

prevailing party to “fully” prevail for purposes of collecting attorney fees when the statute 

underlying the award requires such resounding success. See Peters v Gunnell, Inc, 253 Mich 

App 211, 222-223; 655 NW2d 582 (2002) (in which this Court denied the plaintiff attorney fees 

under the sales representative commissions act because the act defined a “prevailing party” as 

one “who wins all the allegations of the complaint or on all of the responses to the complaint”). 

The current contract did not require a party to prevail in full in order to collect attorney fees and 

costs and so the estate is entitled to continuing reimbursement. Our rejection of taxed costs in 

the prior appeal is, however, the law of the case. See Ashker v Ford Motor Co, 245 Mich App 9, 

13; 627 NW2d 1 (2001). Accordingly, although we reverse the trial court’s judgment denying 

continuing attorney fees and costs and remand for further consideration, the trial court may not 

award those costs accrued during the prior appeal that are listed in MCR 7.219(F) and (G). 

IV. PREJUDGMENT INTEREST 

 We discern no error, however, in the trial court’s assessment of prejudgment interest as 

Palm Beach did not make a “bona fide, reasonable” offer of settlement that was rejected by the 

estate. 

 We review de novo the trial court’s interpretation and application of MCL 600.6013. See 

Castillo v Exclusive Builders, Inc, 273 Mich App 489, 492; 733 NW2d 62 (2007). MCL 

600.6013 provides, in relevant part: 

 (9) If a bona fide, reasonable written offer of settlement in a civil action 

based on tort is made by the party against whom the judgment is subsequently 

rendered and is rejected by the plaintiff, the court shall order that interest is not 
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allowed beyond the date the bona fide, reasonable written offer of settlement is 

filed with the court. 

* * * 

 (15) As used in this section: 

 (a) “Bona fide, reasonable written offer of settlement” means either of the 

following: 

 (i) With respect to an offer of settlement made by a defendant against 

whom judgment is subsequently rendered, a written offer of settlement that is not 

less than 90% of the amount actually received by the plaintiff in the action 

through judgment. 

 On May 25, 2012, after this Court held that plaintiff was entitled to unjust enrichment 

damages but before the trial court calculated those damages on remand, Palm Beach served on 

the estate an offer to stipulate to an entry of judgment which included $64,309.85 for unjust 

enrichment and $20,000 in attorney fees, for a total of $84,309.85. The estate rejected that offer. 

At that time, the trial court had already ordered Palm Beach to pay the estate $97,027.42 in 

attorney fees. Palm Beach’s offer to settle the attorney fee issue was less than 20% “of the 

amount actually received by the plaintiff in the action through judgment.” The offer to settle the 

unjust enrichment damages was comparable to the $65,031.25 ultimately calculated by the court. 

As correctly noted by the trial court, however, the total judgment in this case includes a 

combination of the two awards, and the settlement offer was far below that figure—the 

settlement was only 52.02% of the combined judgment to be exact. Accordingly, Palm Beach 

cannot avoid the accrual of prejudgment interest under the statute. 

V. JUDGMENT AMOUNT 

 Finally, Palm Beach contends that the trial court should have reduced the unjust 

enrichment damages award by 50% because the estate held only a half interest in the leasehold. 

We review a trial court’s damage award in a bench trial for clear error. Marshall Lasser, PC v 

George, 252 Mich App 104, 110; 651 NW2d 158 (2002). “Clear error exists where, after a 

review of the record, the reviewing court is left with a firm and definite conviction that a mistake 

has been made.” Id. In this case, however, the trial court determined that the issue was legally 

barred by waiver, a question which we review de novo. See Angott v Chubb Group Ins, 270 

Mich App 465, 469-470; 717 NW2d 341 (2006). 

 Palm Beach waived its challenge because it failed to assert this defense in its responsive 

pleading at the outset of this litigation. MCR 2.111(F)(2)-(3) provide that a defendant must state 

all defenses, affirmative or otherwise, in its responsive pleading, or the issue will be deemed 

waived. See Electrolines, Inc v Prudential Assurance Co, 260 Mich App 144, 164; 677 NW2d 

874 (2003). In Palm Beach’s affirmative defenses, it stated that the estate had failed to include 

all necessary parties, but did not identify those parties who should have been added. This was 

insufficient to preserve Palm Beach’s challenge on the eve of judgment. Palm Beach did not 

identify Gerturde Denison or her trust as a part owner of the leasehold, despite that she was listed 

as a named party on the Master Lease. The pleading therefore did not suffice to place the estate 
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on notice of this defense. See Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 318; 

503 NW2d 758 (1993) (“Just as the plaintiff must plead something beyond a general the 

‘defendant injured me,’ the defendant must plead something more specific than ‘I deny I’m 

liable.’ ”). 

 Even if the issue were not deemed waived, we would find that Palm Beach had 

abandoned it. In its 2006 response to the estate’s first motion for partial summary disposition 

related to Palm Beach’s alleged failure to remit its rent obligations, Palm Beach noted that the 

estate would not be entitled to 100% of the rents because it was only a “co-landlord.” The trial 

court implicitly rejected that argument when it awarded the estate $73,350 in unpaid rents, the 

full amount requested. Despite this adverse ruling, Palm Beach did not file a cross-appeal or 

challenge that ruling during the prior appeal. Palm Beach abandoned its challenge by failing to 

include it in that appeal. See English v Blue Cross Blue Shield of Mich, 263 Mich App 449, 458-

459; 688 NW2d 523 (2004). 

 We affirm in part, reverse in part, and remand for further proceedings consistent with this 

opinion. We do not retain jurisdiction. As the estate prevailed in full in this appeal, it may now 

tax costs pursuant to MCR 7.219. 

/s/ Jane M. Beckering 

/s/ Elizabeth L. Gleicher 

/s/ Michael J. Kelly