Opinion & Order 073009 2007-0841cz

STATE OF MICHIGAN

MACOMB COUNTY CIRCUIT COURT

SIMONNE L. GRABOW;

MARK H. GRABOW;

KIMBERLY S. GRABOW and

BRENTWOOD LIl'vIOUSINE, INC.,

a Michigan corporation; Plaintiffs, Case No. 2007-0841-CZ

vs. TOWNSHIP OF MACOMB, a Michigan municipal corporation,

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Defendant.

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OPINION AND ORDER

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Defendant Township of Macomb moves for costs and attorney fees.

I. BACKGROUND After contentious and protracted proceedings, a Consent Judgment was signed September 30, 2008 that provides in pertinent part: 6. Inspection of Buildings at 20077 25-Mile Road. With the exception of the residential structure currently used by Simonne Grabow as her home, Plaintiffs [Simonne L. Grabow, Mark H. Grabow, Kimberly S. Grabow and Brentwood Limousine, Inc.] shall permit inspection of the buildings located at 20077 25-Mile Road by Macomb Township or its designees for the purpose of tax assessment and compliance with building and zoning regulations.

*** 12. Enforcement. In the event that a dispute arises out of the terms and conditions of this Consent judgment, the parties shall meet to discuss enforcement. In the event a resolution is not reached, either party may seek to enforce this judgment in the Macomb County Circuit Court. The prevailing party shall be entitled to recover costs and attorneys' fees necessitated to enforce this judgment. Despite the clear language of the Consent Judgment, plaintiffs did not arrange and/or permit

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an inspection of the subject property. Hence, defendant was compelled to file a motion to enforce the inspection provision of the Consent Judgment. An Order dated June 8, 2009 required plaintiffs to allow entry onto the property for purposes ofthe inspection within seven days. Defendant now moves for the recovery of its costs and attorney fees incurred in enforcing the Consent Judgment. II. ANALYSIS In Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008), the court stated:

A consent judgment is in the nature of a contract, and is to be construed and applied as such. Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994). If no reasonable person could dispute the meaning of ordinary and plain contract language, the Court must accept and enforce contractual language as written, unless the contract is contrary to law or public policy. Rory v Continental Ins Co, 473 Mich 457,468; 703 NW2d 23 (2005). In general, consent judgments are final and binding upon the court and the parties, and cannot be modified absent fraud, mistake, or unconscionable advantage. Staple v Staple, 241 Mich App 562, 564; 616 NW2d 219 (2000); Walker v Walker, 155 Mich App 405, 406-407; 399 NW2d 541 (1986). The Consent Judgment plainly provides for an award of costs and attorney fees to the party prevailing in enforcing the terms thereof. Plaintiffs Simonne Grabow, (Estate of) Kimberly Grabow and Brentwood Limousine's objections based on the validity of the Consent Judgment have been previously addressed and found to lack merit. The objections will not be addressed further. While the Consent Judgment envisioned the parties would "meet to discuss enforcement", the record is replete with evidence suggesting plaintiffs Simonne Grabow, (Estate of) Kimberly Grabow and Brentwood Limousine failed to respond to any such requests. Plaintiffs Simonne Grabow, (Estate of) Kimberly Grabow and Brentwood Limousine can not frustrate this language and then rely on it to defeat defendant's claim. Compare Baith v Knapp-Stiles, Inc, 380 Mich 119, 126; 156 NW2d 575 (1968).

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Similarly, defendant Mark Grabow's ''willingness'' to allow an inspection is repudiated by his repeated failures to actually schedule an inspection. Hence, defendant is entitled to its costs and attorney fees incurred in enforcing the Consent Judgment. In Morris v Detroit, 189 Mich App 271, 278-279; 472 NW2d 43 (1991), the court stated:

We recognize that there is no precise fonnula for assessing the reasonableness of an attorney's fees. Nevertheless, in Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973), this Court enumerated several nonexclusive factors appropriately considered for such a detennination, including: (1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. While the trial court should consider these factors, its decision need not be limited to these guidelines. [Cites omitted.] We believe the trial court may also properly consider that the attorney originally agreed to render services on a contingency basis. As evidenced by his affidavit, Gregory K. Need is an experienced attorney with an excellent reputation. His hourly rate of $150 is reasonable. However, while Need was successful, enforcing the Consent Judgment was a relatively straightforward matter. Some of the time spent on the matter is excessive given the lack of complexity ofthe issue( s). Defendant seeks to recover 6.4 hours at $60 per hour for a "clerk/paralegal". However, the record is devoid of any evidence that would pennit an award for the time and labor of a legal assistant under MCR 2.626. Defendant also seeks to recover $123.55 for copying costs. However, defendant has failed to proffer any evidence as to the number of copies to detennine the reasonableness ofthis cost. Therefore, defendant is limited to recovering a reasonable attorney fee of$2,500 and the $20 cost of filing the motion. III. CONCLUSION

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For the reasons set forth above, defendant Township of Macomb's motion for costs and attorney fees is GRANTED. Accordingly, defendant is awarded $2,520 against plaintiffs Simonne L. Grabow, Mark H. Grabow, Kimberly S. Grabow and Brentwood Limousine, Inc., jointly and severally. This Opinion and Order resolves the last pending claim in this matter and closes the case. MCR 2.602(A)(3). IT IS SO ORDERED.

Hon. Diane M. Druzinski, Circuit Co Date:

JUl 3 0 lOO9

DMD/ac cc: Vincent P. Hoyumpa, Esq. Cindy Rhodes Victor, Esq. GregoryK. Need, Esq.

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