If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

KIM T. CAPELLO and JODI A. CAPELLO,

Plaintiffs-Appellants,

UNPUBLISHED

December 7, 2023

v No. 364006

Oakland Circuit Court

KEVIN WALTON and MELISSA WALTON, LC No. 2021-190542-CH

Defendants-Appellees.

Before: BOONSTRA, P.J., and GADOLA and MALDONADO, JJ.

BOONSTRA, P.J. (concurring in part and dissenting in part).

I generally concur with the majority except to the extent it holds that remand is required 

for the trial court to consider plaintiffs’ interest-of-justice argument. On that issue, I respectfully 

dissent.

Contrary to the majority opinion, I do not believe that the trial court’s statements at the two 

motion hearings indicated that it may have been unaware of the interest-of-justice exception. The 

initial motion hearing involved extensive discussions of MCR 2.405, the court rule in which the 

exception may be found. See MCR 2.405(D)(3)(i). Although plaintiffs did not raise the issue of 

the interest-of-justice exception in their initial briefing, or argue it at the first motion hearing, the 

trial court, in setting the matter for an evidentiary hearing, specifically told plaintiffs “if you do 

have any other arguments you want to bring as to what might protect you from 2.405, the sanctions 

imposed there, then you could—you could submit that in advance and argue it at that time.” The 

trial court allowed supplemental briefing, and plaintiffs in fact raised an extensive interest-ofjustice argument in that briefing. At the evidentiary hearing, plaintiff Kim Capello, representing 

plaintiffs, did not specifically refer to the interest-of-justice argument, but he was given the 

opportunity to do so; in fact, when given the opportunity to present additional argument, Capello 

stated, “Your Honor, I’m just going to rely on my brief and my supplemental brief. . . . Everything 

in there is true and accurate, and I would rely upon that as my testimony.” The trial court 

subsequently issued an opinion and order addressing the operation of MCR 2.405 and holding that 

plaintiffs had not stipulated to the offers of judgment within 21 days—and had therefore rejected 

them—entitling defendants to actual costs and a reasonable attorney fee.
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Although the trial court did not specifically state that it had rejected plaintiffs’ interest-ofjustice argument, its opinion displays a thorough understanding of MCR 2.405, under which the 

trial court held that defendants were entitled to certain costs and attorney fees. The trial court’s 

order therefore, by necessary implication, rejected plaintiffs’ argument concerning the interest-ofjustice exception. It is not unusual for a trial court to deny arguments by reasonable implication—

in fact, MCR 2.119(F)(3) provides that generally “a motion for rehearing or reconsideration which 

merely presents the same issues ruled on by the court, either expressly or by reasonable 

implication, will not be granted.” MCR 2.119(F)(3) (emphasis added). I would hold that the trial 

court’s grant of defendants’ motion for costs and fees under MCR 2.405 necessarily encompassed 

a rejection of plaintiffs’ interest-of-justice exception argument.

The majority concludes otherwise, based on its reading of Simcor Constr, Inc v Trupp, 322 

Mich App 508; 912 NW2d 216 (2018). But Simcor does not compel a different result. In that 

case, the trial court held that an arbitrator’s award was not a “verdict” for the purposes of 

MCR 2.405. Id. at 513-514. This Court held that the trial court erred by doing so and concluded 

that remand was appropriate “because the district court did not reach the issue of whether the 

‘interest of justice’ exception applies in its order” denying the defendant’s motion. Id. at 522 

(quotation marks, citations, and alterations omitted). In other words, because the interest-of-justice 

exception is “the exception to a general rule,”1see AFP Specialties, Inc v Vereyken, 303 Mich App 

497, 518; 844 NW2d 470 (2014), the trial court in Simcor had never reached the issue of whether 

the exception applied, because it had preliminarily held that the arbitrator’s award did not satisfy 

the first necessary element of the general rule—that there be a “verdict” that was more favorable 

to the offeror than the average offer. Simcor, 322 Mich app at 513-514. Remand was therefore 

appropriate to allow the parties to address the interest-of-justice issue before the trial court in the 

first instance. Id. at 522.

In this case, by contrast, the trial court, after being provided with plaintiffs’ interest-ofjustice argument via supplemental briefing, determined that the general rule of MCR 2.405(D) 

applied without exception. I believe the majority reads Simcor too broadly—Simcor did not 

establish a bright-line rule that trial courts, in granting a defendant’s motion for costs under MCR 

2.405(D), must always explicitly state that they have considered the interest-of-justice exception 

and have rejected it. Rather, this Court in Simcor simply recognized that the relevant analysis 

under MCR 2.405(D) had not occurred in that case because it had been cut off by the trial court’s 

finding that the arbitrator’s award was not a verdict. Because the circumstances of this case are 

distinguishable from those in Simcor, I would hold that Simcor does not compel a remand in this 

case.

 

1 MCR 2.405(D) provides for the imposition of costs following rejection of an offer of judgment, 

and MCR 2.405(D)(1) states that “[i]f the adjusted verdict is more favorable to the offeror than the 

average offer, the offeree must pay to the offeror the offeror’s actual costs incurred in the 

prosecution or defense of the action.” If the adjusted verdict is more favorable to the offeror than 

the average offer, the trial court “shall determine the actual costs incurred” but “may, in the interest 

of justice, refuse to award an attorney fee under this rule.” MCR 2.405(D)(3).
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Having determined that the case need not be remanded, I would affirm the trial court’s 

grant of defendants’ motion. The interest-of-justice exception “should not be applied absent 

unusual circumstances.” AFP Specialties, 303 Mich App at 518-519 (quotation marks and citation 

omitted). “The unusual circumstances necessary to invoke the ‘interest of justice’ exception may 

occur where a legal issue of first impression is presented, or ‘where the law is unsettled and 

substantial damages are at issue, where a party is indigent and an issue merits decision by a trier 

of fact, or where the effect on third persons may be significant.” Simcor, 322 Mich App at 521-

522 (quotation marks, citation, and alterations omitted). “Factors such as the reasonableness of 

the offeree’s refusal of the offer, the party’s ability to pay, and the fact that the claim was not 

frivolous are too common to constitute the unusual circumstances encompassed by the ‘interest of 

justice’ exception.” Derderian v Genesys Health Care Sys, 263 Mich App 364, 391; 689 NW2d 

145 (2004).

This case did not present an issue of first impression. Although plaintiffs argue that a novel 

issue was raised in the post-summary disposition arguments concerning the effect of recent 

amendments to MCR 2.403 on potential case evaluation sanctions, the actual litigation that resulted 

in the offers of judgment and the rejection of those offers was a breach of contract and fraud case 

involving a real estate deal gone wrong. The case was resolvable using long-standing principles 

of the law of contracts, fraud, and summary disposition, and there was no issue of first impression 

presented. Further, no party has argued that plaintiffs were indigent, or that the issue merited 

decision by a trier of fact, or that the effects of the case on third persons would be significant. 

Simcor, 322 Mich App at 521-522.

Additionally, defendants’ offers were made at a time when it seemed quite possible, even 

likely, that they would prevail at summary disposition. Plaintiffs had failed to identify any 

evidence that they had suffered any damages as a result of defendants’ alleged breach of contract. 

Defendant Melissa Walton was further protected from liability by a provision in the purchase 

agreement releasing brokers from liability arising from a failure to close the sale. Plaintiffs have 

therefore not established that defendants’ offers of judgment were de minimis or the result of 

gamesmanship. See AFP Specialties, 303 Mich App at 519-520. Accordingly, I would hold that 

the trial court did not abuse its discretion by granting defendants’ motion for costs and attorney 

fees under MCR 2.405(D). Id. at 516.

Although I conclude that the trial court impliedly rejected plaintiffs’ interest-of-justice 

argument,2I note that even if the trial court improperly failed to address this argument, a remand 

is not necessarily required. Under the general rules of issue preservation, plaintiffs did not preserve 

the issue of the trial court’s alleged failure to consider their interest-of-justice argument by raising 

it before the trial court. See Richard v Schneiderman & Sherman, PC (On Remand), 297 Mich 

App 271, 273; 824 NW2d 573 (2012) (holding that the plaintiff’s argument that the trial court 

failed to rule on his motion to amend his complaint was not preserved for appellate review because

the plaintiff “did not raise these claims of error before the trial court”). Plaintiffs have therefore 

waived appellate review of this issue. Tolas Oil & Gas Exploration Co v Bach Serv & 

 

2 As I have discussed, I do not believe that Simcor established a rule mandating that trial courts 

expressly address such arguments.
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Manufacturing, LLC, ___ Mich App ___; ___ NW2d ___ (2023) (Docket No. 359090), slip op at 

2-3 (noting that, in civil cases, Michigan follows the “raise or waive” rule of appellate review, and 

that a party seeking appellate review of a claim of error must generally “show that the same basis 

for the error claimed on appeal was brought to the trial court’s attention”) (citations omitted). And 

even if this Court were to disregard its issue preservation requirements, see id. at ___, slip op at 3, 

the record shows, as I have stated, that the interest-of-justice exception does not apply in this case, 

and plaintiffs accordingly cannot show any error requiring reversal.

For these reasons, I concur in part and respectfully dissent in part, and would affirm the 

trial court’s order granting costs and attorney fees under MCR 2.405(D).

/s/ Mark T. Boonstra