Opinion
Docket No. 142323.
Submitted January 18, 1994, at Detroit.
Decided April 5, 1994, at 9:00 A.M.
Jewell Jewell (by William R. Jewell and Howard J. Anderson), for the plaintiff.
Kallas Henk, P.C. (by Scott L. Feuer), for the defendant.
Defendant appeals as of right from the trial court's judgment and denial of defendant's motion for offer of judgment sanctions. We remand for further consideration.
The facts of this case are not in dispute. Plaintiff filed a complaint in January 1989 against defendant for injuries sustained when she tripped on a loose or defective floorboard on the approach to a bowling lane. On February 23, 1990, defendant submitted an "Offer of Judgment/Settlement" for $20,000. Plaintiff did not respond. On November 23, 1990, plaintiff submitted a "Rejection of Defendant's Offer of Judgment/Settlement and Counter-Offer" for $60,000. Defendant did not respond. The case proceeded to trial, and the jury rendered a verdict in favor of plaintiff in the amount of $20,080, finding plaintiff fifteen percent comparatively negligent. The trial court denied defendant's motion for offer of judgment sanctions, and this appeal followed.
The issue on appeal is whether defendant is entitled to recover its actual costs, pursuant to MCR 2.405. That court rule provides, in relevant part, as follows:
(A) Definitions. As used in this rule:
(1) "Offer" means a written notification to an adverse party of the offeror's willingness to stipulate to the entry of a judgment in a sum certain, which is deemed to include all costs and interest then accrued. If a party has made more than one offer, the most recent offer controls for the purposes of this rule.
(2) "Counteroffer" means a written reply to an offer, served within 21 days after service of the offer, in which a party rejects an offer of the adverse party and makes his or her own offer.
(3) "Average offer" means the sum of an offer and a counteroffer, divided by two. If no counteroffer is made, the offer shall be used as the average offer.
(4) "Verdict" means the award rendered by a jury or by the court sitting without a jury, excluding all costs and interest.
(5) "Adjusted verdict" means the verdict plus interest and costs from the filing of the complaint through the date of the offer.
* * *
(C) Acceptance or Rejection of Offer.
(1) To accept, the adverse party, within 21 days after service of the offer, must serve on the other parties a written notice of agreement to stipulate to the entry of the judgment offered, and file the offer, the notice of acceptance, and proof of service of the notice with the court. The court shall enter a judgment according to the terms of the stipulation.
(2) An offer is rejected if the offeree
(a) expressly rejects it in writing, or
(b) does not accept it as provided by subrule (C) (1).
A rejection does not preclude a later offer by either party.
(3) A counteroffer may be accepted or rejected in the same manner as an offer.
(D) Imposition of Costs Following Rejection of Offer. If an offer is rejected, costs are payable as follows:
(1) If 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.
(2) If the adjusted verdict is more favorable to the offeree than the average offer, the offeror must pay to the offeree the offeree's actual costs incurred in the prosecution or defense of the action. However, an offeree who has not made a counteroffer may not recover actual costs. [MCR 2.405, as amended effective March 31, 1990.]
At the time the complaint was filed, the court rule provided that a "`[c]ounteroffer' means a written reply to an offer in which a party rejects an offer of the adverse party and makes his or her own offer." Former MCR 2.405(A)(2). (In all other respects, the relevant portions of the rule are identical.) However, in light of the provision of subrule C that an offer is rejected by silence after twenty-one days, and the provision of subrule A that a counteroffer must include a written rejection, we believe that even under the former rule, a counteroffer must be made within twenty-one days.
Hence, we conclude that, regardless of which version of the court rule applies, plaintiff's document of November 23, 1990, was an offer, and not a counteroffer, despite being labeled a counteroffer. See Myers v Jarnac, 189 Mich. App. 436, 440-443; 474 N.W.2d 302 (1991); 2 Martin, Dean Webster, Michigan Court Rules Practice (3d ed), 1993 Supplement, p 141. (We reject defendant's "reasonable reliance" argument, because defendant was on notice that any response to its offer at this late date could not constitute a counteroffer.)
Accordingly, each party made an offer, and neither party made a counteroffer. Thus, the "average offer" with respect to each party was that party's own offer. That is, plaintiff's "average offer" was $60,000, and defendant's "average offer" was $20,000. It follows that plaintiff may only recover costs if the adjusted verdict is greater than $60,000, and defendant may only recover costs if the adjusted verdict is less than $20,000. MCR 2.405(D)(1) and (2).
Subrule D(2) precludes the award of costs where an offeree fails to make a counteroffer. We conclude that this subrule does not apply where, as here, each party is an offeror.
We are unable to determine from the record whether the adjusted verdict in this case was greater or less than $20,000, because the trial court's opinion is inconsistent with its final judgment. We acknowledge that both parties appear to concede that the adjusted verdict was less than $20,000; however, this question was not considered in the parties briefs. Because we believe that justice requires this issue to be addressed, we remand to the trial court for a determination of the adjusted verdict, and a calculation of the costs, if any, to be awarded to defendant. MCR 7.216(A) (7); Paschke v Retool Industries (On Rehearing), 198 Mich. App. 702, 705; 499 N.W.2d 453 (1993), lv gtd 444 Mich. 866 (1993).
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.