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STATE OF MICHIGAN
COURT OF APPEALS


ROBERT BOLOGNA and LINDA BOLOGNA, Plaintiff-Appellees, v DENISE PEVARNEK, Defendant-Appellant.

UNPUBLISHED November 29, 2007

No. 267244 Wayne Circuit Court LC No. 04-434504-CZ

and CHESTER DAMIANI and RED CARPET KEIM REALTY, Defendants.

Before: Smolenski, P.J., and Wilder and Zahra, JJ. PER CURIAM. Defendant Denise Pevarnek appeals as of right, challenging the trial court's orders denying her motion to set aside a default and entering a default judgment against her, denying her motion for relief from the default judgment, and denying her motion for sanctions against plaintiffs' counsel. We affirm. I A 1 On November 8, 2004, plaintiffs filed this action alleging that defendants trespassed on their land, located at 24850 East River Road, in Grosse Ile, on October 12, 2004, and cut down trees and branches to increase the value of Pevarnek's adjacent property by adding a view of the Detroit River. Plaintiffs alleged that the destruction reduced the value of their property and exposed a view to Pevarnek's unsightly neighboring property. Plaintiffs alleged that Damiani was defendant's agent. Plaintiffs alleged damages in excess of $28,000 and requested that they be trebled, pursuant to MCL 600.2919; thus, they requested damages of $84,000. -1-


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Pevarnek had signed a purchase agreement on October 4, 2004, to buy the property adjacent to plaintiffs' property, and closed on the purchase on October 28, 2004. The property purchased by Pevarnek (7750 Grosse Ile Parkway), was listed by Red Carpet Keim Realty (Red Carpet), and Chester Damiani was the real estate agent. Damiani had durable power of attorney from defendant regarding the real estate dealings with the property. B On November 24, 2004, Gary Fishman, plaintiffs' process server, filed a return of service, stating that on Saturday, November 22, 2004, at 7:22 a.m., he served process (a summons and a copy of the complaint) on Pevarnek at 28765 Brook Circle, Grosse Ile, in addition to interrogatories, a request for admissions, and a request for production of documents. The return of service states that Fishman swore to these facts before Dawn Zielinski, a notary public, on November 22, 2004. Fishman had served Damiani and Red Carpet on November 18, 2004. Pevarnek did not respond to the summons and complaint.1 On December 16, 2004, plaintiffs filed an application for default against Pevarnek. Although the court clerk did not sign the "default entry" space on the application, the parties do not dispute that Pevarnek was defaulted. On January 6, 2005, plaintiff's counsel issued a subpoena to all three defendants to appear at court to testify at deposition on January 26, 2005. The subpoena was sent via certified mail to Pevarnek at 7750 Grosse Ile Parkway. On January 26, 2005, plaintiffs filed a motion for alternative service of process upon Pevarnek, for service of the subpoena for deposition. The motion stated that Pevarnek's last known address was 7750 Grosse Ile Parkway, and stated that plaintiffs' counsel believed that address was current. Attached to the motion is an affidavit of attempted service by P.C. Petrovich. Petrovich swore that he attempted to serve Pevarnek at 7750 Grosse Ile Parkway on three occasions. On the first, on January 18, 2005, at 4:20 p.m., a young boy said Pevarnek was not home and that he did not know when she would be home. On the second, at 6:25 p.m. later that day, Petrovich got no answer at that address, and left a card, but received no response to the card. On the third, the following day, at 7:25 p.m., Petrovich received no answer at that address. Petrovich concluded that personal service of process could not reasonably be perfected. Also on January 26, 2005, plaintiffs moved the trial court for a subpoena compelling Pevarnek to appear for deposition. On January 31, 2005, the trial court entered a subpoena to Pevarnek to appear personally for deposition on February 17, 2005. Also on January 31, 2005, the trial court entered an order for alternate service, stating that the court allowed service of the summons and complaint (and a copy of the order) via first class mail to Pevarnek at 7750 Grosse

1

Red Carpet and Damiani answered the summons and complaint on December 7, 2004.

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Ile Parkway, by tacking or firmly affixing to the door at that address, and by certified mail. This order was actually not intended for service of the summons and complaint, but for service of the subpoena for Pevarnek's deposition. On February 7, 2005, plaintiffs filed a motion for default judgment against Pevarnek. Plaintiffs attached to their motion the application for default, an affidavit of Linda Bologna of substantial length (stating, inter alia, that she noticed that the view of her back yard was suddenly opened up and Pevarnek's unsightly home, located at 7750 Grosse Ile Parkway, was now in full view), an affidavit of Derek Light (who installed a privacy fence for plaintiffs), and an affidavit of Steve McCollum. McCollum swore that the pruning of trees on plaintiffs' property had exposed the view to the neighbors' property to the west, and that the cost of landscape restoration was $24,050. Linda Bologna further stated that she contacted the police on October 12, 2004, who informed Damiani of the damage that same day. She said that she personally spoke to Damiani on October 13, 2004, who stated that Pevarnek had inquired about a landscaping service to have some of the trees trimmed, and believed that Greg Warren, of Grosse Ile Lawn and Maintenance, did the work. Linda swore that Warren told her that Damiani made the inquiry and that he performed no work. Linda also testified in her affidavit that Pevarnek called her on October 15, 2004, and said she had been informed of the problems and would do what it took to make the situation right. The total actual and statutory (treble) damages (under MCL 600.2919) sought by plaintiffs in their motion were $77,730. Pevarnek began taking action to defend. On February 11, 2005, plaintiffs filed a renotice of hearing on the motion for default judgment, postponing the hearing to March 11, 2005. The caption for the renotice lists Kenneth J. Camilleri as Pevarnek's attorney. On February 15, 2005, Camilleri filed a general appearance on Pevarnek's behalf. On February 24, 2005, Pevarnek filed a motion to set aside the default. Pevarnek contended that she was not personally served with the complaint, and that none of the codefendants informed her that she was a defendant. Pevarnek also asserted that she did not cut or remove any trees or branches from plaintiffs' property, did not hire or direct someone to do so, and did not know who did. Pevarnek denied that she told Linda Bologna that she would take responsibility for the damage. Plaintiffs responded that Pevarnek had long known about the lawsuit. She was informed on October 15, 2004, when she spoke to Linda Bologna that plaintiffs had hired an attorney, was personally served with the complaint in November 2004, was mailed plaintiffs' application for a default in December 2004, and she signed the mail receipt for her deposition subpoena on February 4, 2005. Plaintiffs argued that Pevarnek could not establish good cause to set aside the default. Plaintiffs also argued that Pevarnek did not have a meritorious defense because she was the only one who benefited from the destruction, as she was the only one with an active interest in the property at the time of the destruction, and Damiani would not have been trespassing on plaintiffs' property in the early morning except at Pevarnek's behest. At the hearing on the motions, Pevarnek argued that good cause was shown because she was not served with process. Pevarnek also argued, inter alia, that her affidavit set forth several meritorious defenses including that she did not own the property on October 12, 2004. Although -3-


she signed the purchase agreement on October 4, 2004, the seller did not sign it until October 13, 2004. Fishman appeared and testified that he personally served defendant on November 20, 2004. Fishman also identified defendant, sitting in court, as the person he served. When asked to describe defendant's home, Fishman stated that there were front steps to the door and it was surrounded by foliage. The trial court ruled in plaintiffs' favor, expressly finding that Pevarnek was served, and that Pevarnek did not have a meritorious defense: I believe [Pevarnek] was served. And even if she wasn't, I still don't really see a meritorious defense in this case. Because even if she didn't directly cut down the branches and the bushes and whatever trees were involved, she either directed it or had some involvement in it because she was the purchaser of the property and she was the only one to stand to gain from the new view that's created. And the facts should reflect, I don't think there's much dispute about this, that the plaintiffs' property sits on Grosse Ile, they have a nice river view. . . . And their property also has a number of trees on it that also gave them privacy from the rear and other parts of the house. And these trees that were trimmed or cut down is the only thing--not the only thing, but something that blocked the view of the river from the premises that [Pevarnek] purchased. And in getting a river view, being able to see over to Canada and all of those kind of things, cutting those trees down gave [Pevarnek] that view. Thus, the trial court denied Pevarnek's motion to set aside the default and granted plaintiffs' motion for a default judgment. The judgment awarded plaintiffs treble damages of $77,730. On May 12, 2005, Pevarnek filed a motion for relief from judgment under MCR 2.612(C)(1)(c), (e), and (f). Pevarnek argued, inter alia, that she was deprived of a jury trial on damages and of an opportunity to present evidence on damages. In a supplement to her motion, Pevarnek argued that, under MCL 600.6304, she was liable for only the portion of damages that represented her percentage of fault. Thus, she was entitled to have the judgment set aside or its enforcement stayed pending the resolution of the case against the other defendants and a determination by the trial court regarding allocation of fault. Plaintiffs responded that Pevarnek had not preserved her right to a jury trial because she did not file an answer. Thus, she only had a right to a hearing, which was held on March 11, 2005, at which she chose not to oppose plaintiffs' damages or present any evidence on the issue. Therefore, plaintiffs contended, Pevarnek was not entitled to revisit the damages issue. Plaintiffs further asserted, inter alia, that the only way the trial court could properly stay the default judgment was if defendant posted a bond in the amount of the damages awarded. The trial court stated that even though Pevarnek and Damiani denied that Pevarnek directed Damiani to cut the trees, it found that claim hard to believe, and circumstantial evidence suggested that Pevarnek did not have a meritorious defense. The trial court denied Pevarnek's -4-


motion, including her request for a stay. On June 6, 2005, Pevarnek filed an (interlocutory) application for leave to appeal, which we denied. Bologna v Pevarnek, unpublished order of the Court of Appeals, entered August 2, 2005 (Docket No. 263111). Meanwhile, on June 3, 2005, the trial court entered a default judgment against Red Carpet. Plaintiffs pursued collection activity against Pevarnek, including garnishments to her employer and bank. On September 28, 2005, the trial court entered an order for administrative closing due to a bankruptcy stay. The order states that the case is closed for administrative purposes, without prejudice, as to Pevarnek only. On November 29, 2005, the trial court entered an order dismissing Damiani with prejudice, pursuant to a stipulation between counsel for plaintiffs and Damiani. On December 16, 2005, Pevarnek filed a claim of appeal with this Court. II A Pevarnek first argues that the trial court abused its discretion in failing to grant relief from the default and the default judgment, because service of process was not effected (causing the trial court to lack personal jurisdiction over Pevarnek), because there was newly discovered evidence (indicating a lack of service of process), and because she presented good cause and a meritorious defense. On each point, we disagree. 1 We review for an abuse of discretion a trial court's decision to grant or deny a motion for relief from judgment. Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 404; 651 NW2d 756 (2002). We also review for an abuse of discretion a trial court's decision to enter or to set aside a default or default judgment. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638 (1999); Sturak v Ozomaro, 238 Mich App 549, 569; 606 NW2d 411 (1999). "[A]n abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes." Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). This Court reviews for clear error a trial court's findings of fact that support its ruling. MCR 2.613(C). To the extent that the default judgment issue involves questions of court rule interpretation, this Court considers such questions of law de novo. ISB Sales Co v Dave's Cakes, 258 Mich App 520, 526; 672 NW2d 181 (2003). Although Pevarnek frames her issues as challenging only the trial court's decision on her motion for relief from judgment, her arguments also address the trial court's denial of her motion to set aside the default. The standard of review, in any event, is the same. Alken-Ziegler, Inc, supra. 2 "Although the law favors a determination of a claim on the basis of its merits, the policy of this state is generally against setting aside defaults and default judgments that have been properly entered." ISB Sales Co, supra at 526. With respect to the entry of defaults and default judgments in civil actions, MCR 2.603 provides, in relevant part:

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(A) Entry of Default; Notice; Effect. (1) If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, and that fact is made to appear by affidavit or otherwise, the clerk must enter the default of that party. (2) Notice that the default has been entered must be sent to all parties who have appeared and to the defaulted party. If the defaulted party has not appeared, the notice to the defaulted party may be served by personal service, by ordinary first-class mail at his or her last known address or the place of service, or as otherwise directed by the court. *** (B) Default Judgment. *** (3) Default Judgment Entered by Court. . . . [T]he party entitled to a default judgment must file a motion that asks the court to enter the default judgment. *** (4) Notice of Entry of Default Judgment. The court clerk must promptly mail notice of entry of a default judgment to all parties. The notice to the defendant shall be mailed to the defendant's last known address or the address of the place of service. The clerk must keep a record that notice was given. *** (D) Setting Aside Default or Default Judgment. (1) A motion to set aside a default or a default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed. (2) Except as provided in MCR 2.612, if personal service was made on the party against whom the default was taken, the default, and default judgment if one has been entered, may be set aside only if the motion is filed (a) before entry of a default judgment, or (b) if a default judgment has been entered, within 21 days after the default judgment was entered. (3) In addition, the court may set aside a default and a default judgment in accordance with MCR 2.612. [Emphases added.] -6-


Michigan courts construe court rules in the same way that we construe statutes. Marketos v American Employers Ins Co, 465 Mich 407, 413; 633 NW2d 371 (2001); Kloian v Domino's Pizza, 273 Mich App 449, 458; 733 NW2d 766 (2006). "`Well-established principles guide this Court's statutory [or court rule] construction efforts. We begin our analysis by consulting the specific . . . language at issue.'" Id., quoting Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 10; 654 NW2d 610 (2002). This Court gives effect to the rule maker's intent as expressed in the court rule's terms, giving the words of the rule their plain and ordinary meaning. Kloian, supra at 458, citing Willett v Waterford Charter Twp, 271 Mich App 38, 48; 718 NW2d 386 (2006). If the language poses no ambiguity, this Court need not look outside the rule or construe it, but need only enforce the rule as written. See Ayar v Foodland Distributors, 472 Mich 713, 716; 698 NW2d 875 (2005); Kloian, supra at 458. This Court does not interpret a court rule in a way that renders any language surplusage. See Pohutski v City of Allen Park, 465 Mich 675, 684; 641 NW2d 219 (2002); Kloian, supra at 458. The plain language of MCR 2.603(D)(1) indicates that a defendant may seek to set aside a default or default judgment by showing a lack of personal jurisdiction, but that absent such a showing, a defaulted defendant must both show good cause and file an affidavit of facts indicating a meritorious defense. Here, Pevarnek fails to satisfy these requirements, for the reasons discussed below. "The good cause requirement of MCR 2.603(D)(1) may be satisfied by demonstrating a procedural irregularity or defect or a reasonable excuse for failing to comply with the requirements that led to the default judgment." ISB Sales Co, supra (emphasis added). "[I]f a party states a meritorious defense that would be absolute if proven, a lesser showing of `good cause' will be required than if the defense were weaker, in order to prevent a manifest injustice." Alken-Ziegler, Inc, supra at 233-234. MCR 2.612(C) states: (1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds: (a) Mistake, inadvertence, surprise, or excusable neglect. (b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B). (c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. (d) The judgment is void. (e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.

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(f) Any other reason justifying relief from the operation of the judgment. [Emphasis added.] Pevarnek filed her motion for relief from judgment pursuant to subsections MCR 2.612(C)(1)(b), (c), (e), and (f). 3 Pevarnek asserts various bases challenging the trial court's refusal to set aside the default and default judgment. a First, Pevarnek argues that the trial court abused its discretion in refusing to set aside the default judgment, because plaintiffs' complaint failed to state a cause of action. We disagree. The complaint does not fail to state a cause of action. The complaint contains wellpleaded allegations of fact stating a trespass claim. For example, the complaint states: On or about October 12, 2004, Defendants wrongfully and unlawfully trespassed on Mr. and Mrs. Bolognas' property, intentionally and maliciously destroying, cutting and removing over 265 limbs and branches from Plaintiffs' trees and cutting down and removing two large cedar trees . . . . The complaint also alleges that the purpose of the cutting was to enhance the value of the property listed by Red Carpet and Damiani, and purchased by Pevarnek, by adding a water view. The complaint is precise, concise and specific. On the particular pleadings before us, we hold that the complaint does not fail to state a claim on which relief may be granted. (Regarding whether such a failure would be sufficient to set aside the default or default judgment, see below.) b Pevarnek next argues that the trial court clearly erred in making factual findings that an agency relationship existed of sufficient scope that Pevarnek could be held liable for Damiani's actions, and that the trial court abused its discretion in failing to set aside the default judgment on this basis. We disagree. In this regard, Pevarnek first argues that the complaint alleged no agency relationship between her and Damiani. We disagree. The complaint alleged: ". . . Defendant Pevarnek purchased the property through her agent, Defendant Damiani." Thus, the complaint alleged that an agency relationship existed between Damiani and Pevarnek. Further, the complaint alleged that defendants committed the trespass. It did not allege that Damiani alone committed the trespass. Pevarnek contends that where a complaint would have been subject to dismissal under MCR 2.116(C)(8), a default judgment entered on such complaint must be set aside. However, since we have found that the complaint in this case in fact did state a viable cause of action, we need not address this claim. -8-


Pevarnek further argues that the trial court abused its discretion in refusing to set aside the default judgment, because the trial court made a finding of fact (that Damiani was acting as Pevarnek's agent) lacking in evidentiary support. We disagree. The bases for setting aside a default judgment do not include that it was based on a finding of fact that has weak evidentiary support. MCR 2.612(C). A default judgment is not a judgment from a trial, with conflicting evidence and fact-finding. Quite the contrary; it is a judgment entered because a defendant's failure to defend has prevented a trial (with fact-finding) or other procedure for resolving the dispute. MCR 2.603(A)(1). c Next, Pevarnek argues that the trial court made clearly erroneous factual findings that a river view was created and that only Pevarnek had something to gain from the alleged trespass. Pevarnek argues that the trial court abused its discretion in failing to set aside the default judgment. The only authority cited by Pevarnek in support of this argument is People v Johnson, 382 Mich 632, 649; NW2d (1969), which states that arguments of counsel are not evidence. We reject Pevarnek's argument. While it is true that arguments of counsel are not evidence, Pevarnek cites no authority to the effect that factual findings by a trial court that have weak evidentiary support are a sufficient basis requiring a setting aside of a default judgment. Pevarnek's theory would render MCR 2.603 and MCR 2.612(C) surplusage. Therefore, we must reject Pevarnek's argument. See Pohutski, supra at 684. Moreover, we defer to the credibility determinations of the fact finder. In addition, even if Pevarnek is correct that she was not the only person who stood to gain from the trespass and destruction of trees, this fact does not establish both good cause and a meritorious defense sufficient to set aside the default judgment, MCR 2.603(D)(1). d Pevarnek argues that the trial court abused its discretion in denying relief from the default judgment because the trial court lacked jurisdiction over her (i.e., personal or "in personam" jurisdiction), because, in light of newly discovered evidence, she was not served with process. This argument also lacks merit. (i) First, by making a general appearance in the action below (failing to file a limited appearance only for the purpose of challenging jurisdiction), Pevarnek submitted to the court's jurisdiction. Penny v ABA Pharmaceutical Co (On Remand), 203 Mich App 178, 181; 511 NW2d 896 (1993) (a defendant "who enters a general appearance and contests a cause of action on the merits submits to the court's jurisdiction and waives service of process objections"). Accordingly, the trial court did not err in concluding that it acquired personal jurisdiction over Pevarek. Therefore, the trial court's decision to deny Pevarnek's motions to set aside the default and default judgment was not an abuse of discretion.

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(ii) Alternatively, we find that the trial court did not clearly err in finding, as a fact, that Pevarnek was served with process. In connection with this holding, we hold that the trial court did not abuse its discretion in denying relief from the default judgment on the basis of newly discovered evidence. Fishman filed a proof of service swearing that he served Pevarnek on Saturday, November 20, 2004, at 7:22 a.m. Fishman also testified live below and identified Pevarnek in court as the person he served. In response, Pevarnek presented (in conjunction with her motion for reconsideration regarding the trial court's decision not to set aside the default), a revised affidavit stating that she was out of town at the time of the alleged service. Pevarnek also presented an affidavit from Eugene Campbell, indicating Pevarnek was with him at the time process was allegedly served. Pevarnek also attached, to her reply brief for her motion for relief from judgment, Fishman's criminal history, including convictions for crimes involving dishonesty. This criminal history is the (allegedly) newly discovered evidence. Pevarnek argues that her evidence presented below proves that she was not served with process, and that she was therefore entitled to relief from judgment under MCR 2.612(C)(1)(b) on the basis of newly discovered evidence (the evidence of Fishman's convictions). We disagree. In order to be granted relief on the basis of newly discovered evidence, the newly discovered evidence must not have been discoverable through due diligence in time to have moved for a new trial under MCR 2.611(B). MCR 2.612(C)(1)(b). MCR 2.611(B) states that a motion for a new trial must be made within 21 days after the judgment is entered. Thus, in order to be considered newly discovered, the information must not have been discoverable through due diligence before April 1, 2005, 21 days after the default judgment was entered on March 11, 2005.2 We are presented with no substantial reason why Fishman's criminal history could not have been discovered through due diligence before April 1, 2005. Therefore Pevarnek did not establish newly discovered evidence as a basis for relief from the default judgment. Although Campbell's affidavit and Pevarnek's revised statement were filed with the trial court on March 23, 2005, they were subject to the trial court's credibility assessment. The trial court credited Fishman's sworn proof of service, in-court testimony and in-court identification, and disbelieved Pevarnek and Campbell. We respect the province of the trier of fact (here, the trial court judge) to make credibility determinations, which this Court affords great deference. In re Clark Estate, 237 Mich App 387, 395-396; 603 NW2d 290 (1999). In accordance with this respect and deference, we find that the trial court did not clearly err in concluding that Pevarnek was served with process (and that the trial court thereby acquired personal jurisdiction over her). Therefore, the trial court did not abuse its discretion in denying relief from the default judgment on the basis of lack of service of process.

This timeframe comports with the time limitation for moving to set aside a default judgment. MCR 2.603(D)(2)(b).

2

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Because the assertion of lack of personal jurisdiction was without merit, Pevarnek was required to show both good cause and a meritorious defense in order to have the default set aside. MCR 2.603(D)(1). Pevarnek asserted no other bases for good cause. Therefore, the trial court's denial of Pevarnek's motion to set aside the default was not an abuse of discretion. e By arguing that the trial court clearly erred in finding that there was an agency relationship between Pevarnek and Damiani, and in finding that a water view was created by the destruction of the trees, Pevarnek is challenging the trial court's conclusion that Pevarnek had no meritorious defense. But as just noted, Pevarnek does not challenge the trial court's decision that she had no good cause. Therefore, the issue of whether she had a meritorious defense is moot, because Pevarnek failed to meet one of the two non-jurisdictional requirements for setting aside a default (i.e., the good cause requirement). Thus, even if the trial court erred in finding that Pevarnek had not shown a meritorious defense, it did not abuse its discretion when it denied Pevarnek's motion to set aside the default. B Pevarnek next argues that the trial court abused its discretion in failing to grant relief from the default judgment, because the trial court made several erroneous decisions regarding damages. We reject Pevarnek's arguments. 1 This Court reviews de novo whether defendant had a right to a jury trial on the issue of damages. In re MCI Telecom Corp Complaint, 240 Mich App 292, 311; 612 NW2d 826 (2000). This Court also reviews de novo questions of statutory interpretation. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). 2 a Pevarnek argues that the trial court abused its discretion in failing to grant relief from the judgment on the grounds that it was error not to hold a trial on damages. We disagree. A default settles the issue of liability, but not damages. Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573, 578; 321 NW2d 653 (1982). Under Mink v Masters, 204 Mich App 242, 246; 514 NW2d 235 (1994), "once one party has filed a jury demand, all other parties may rely on that jury demand and need not independently file their own demand for a jury trial."3 See also Marshall Lasser, PC v George, 252 Mich App 104, 106; 651 NW2d 158 (2002). In this case, plaintiffs filed a jury demand. MCR 2.508(B)(1). Thus, Pevarnek had a right to rely on it.

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Entry of a default or default judgment does not waive the defaulting party's right to a jury trial on damages. Zaiter v Riverfront Complex, Ltd, 463 Mich 544, 554; 620 NW2d 646 (2001). Rather, Pevarnek had to specifically waive her right. Mink, supra at 247. She did not. However, Pevarnek only had a right to a jury trial if a hearing on damages was held. Zaiter, supra at 554, 556. In this case, a hearing on the damages issue was not held. The March 11, 2005, hearing was on the parties' motions. Therefore, Pevarnek was not entitled to a jury trial on damages. In default cases, whether to hold a hearing on damages is within the trial court's discretion. MCR 2.603(B)(3)(b) (if it is necessary for the court to determine damages, it may conduct a hearing); Wood, supra at 486. Pevarnek does not argue that the trial court abused its discretion in not holding a hearing. Pevarnek only argues that the trial court erred in failing to give her an opportunity to contest the damages. But Pevarnek could have contested damages at the March 11, 2005, hearing, or in a motion in opposition to plaintiffs' motion for entry of default judgment. Pevarnek did not do so. Thus, Pevarnek had an opportunity to contest damages, but failed to do so. b Pevarnek next argues that the trial court abused its discretion in failing to grant relief from the judgment on the grounds that the trial court applied the wrong measure of damages. Pevarnek argues that the cost of replacement measure of damages was inappropriate because the requirements for using that method were not met. We disagree. The law is: Where the wrong consists of a trespass to property resulting in an injury to the land, the general measure of damages is the diminution in value of the property if the injury is permanent or irreparable. If the injury is reparable, or temporary, the measure of damages is the cost of restoration of the property to its original condition, if less than the value of the property before the injury. The rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, whatever method is most appropriate to compensate a plaintiff for the loss may be used. [Kratze v Independent Order of Oddfellows, 442 Mich 136, 149; 500 NW2d 115 (1993) (citations omitted; emphasis added).] Given that plaintiffs' trees could be restored, it was proper for the trial court to use the cost-ofrestoration method. Use of the cost-of-restoration method was not outside the range of reasonable and principled outcomes. Saffian, supra at 12. Accordingly, the trial court did not abuse its discretion in failing to grant relief from the judgment based on the measure of damages used. c Pevarnek next argues that the trial court abused its discretion in failing to grant relief from the judgment on the grounds that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. We disagree.

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Plaintiffs submitted to the trial court the affidavit of Steve McCollum, who swore that, in order to return the property to its pretrespass condition, i.e., no view of defendant's property, 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730. This amount was equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of the privacy fence. In other words: ($24,050 + $1,860) x 3 = $77,730. Pevarnek argues that the trial court erred in accepting plaintiffs' "expert's" affidavit regarding damages without inquiring how he calculated the damages. We disagree. McCollum stated that he was a graduate forester and the president and owner of Floral City Tree Service. He personally viewed plaintiffs' property, assessed plaintiffs' needs, specifically listed the work to be done, and listed the cost for his business was to complete it. Thus, McCollum put forth a reasonable basis for his computation, which is sufficient. Berrios v Miles, Inc, 226 Mich App 470, 478-479; 574 NW2d 677 (1997). Furthermore, as a forester and owner of a tree service, McCollum had independent knowledge of the cost of the work. Therefore, the trial court did not abuse its discretion when it did not require McCollum to give in-court testimony regarding his damages assessment. The trial court did not abuse its discretion in failing to grant relief from the judgment on the grounds that the trial court adopted the alleged damages without sufficient foundation. d Pevarnek next argues that the trial court abused its discretion in failing to grant relief from the judgment on the grounds that the trial court erred in refusing to allocate damages based on percentage of fault. Defendant argues that the trial court should have at least stayed enforcement of the default judgment until the liabilities of the other defendants and their percentages of fault were decided. We disagree. MCL 600.2957(1) states: In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person's percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action. [Emphasis added.] MCL 600.6304 states, in pertinent part: (1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following: -13-


(a) The total amount of each plaintiff's damages. (b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action. (2) In determining the percentages of fault under subsection (1)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed. (3) The court shall determine the award of damages to each plaintiff in accordance with the findings under subsection (1), subject to any reduction under subsection (5) or section 2955a or 6303, and shall enter judgment against each party, including a third-party defendant, except that judgment shall not be entered against a person who has been released from liability as provided in section 2925d. (4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6), a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1). This subsection and section 2956 do not apply to a defendant that is jointly and severally liable under section 6312. *** (8) As used in this section, "fault" includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party. In their complaint, plaintiffs alleged that Chester Damiani was the agent of Pevarnek and Red Carpet Keim Realty. Further, plaintiffs alleged that defendants wrongfully trespassed on plaintiffs' property and caused property damage. Thus, Pevarnek could be liable either as an actual trespasser or vicariously liable as the principal of the actual trespasser. The entry of default against Pevarnek established Pevarnek's liability. Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573, 578; 321 NW2d 653 (1982). Further, Pevarnek is directly responsible for her own share of comparative fault and is vicariously liable for Damiani's share. See Rogers v JB Hunt Transport, Inc, 466 Mich 645, 650-651; 649 NW2d 23 (2002); see also Restatement Torts, 3d Apportionment of Liability,

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