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STATE OF MICHIGAN
COURT OF APPEALS


SHERWIN WILNER, Plaintiff-Appellee, v JEFFREY JOHN STEIN, Defendant-Appellant.

UNPUBLISHED June 1, 2001

No. 218175 Oakland Circuit Court LC No. 96-517771-NO

Before: Markey, P.J., and Jansen and Zahra, JJ. PER CURIAM. Defendant appeals as of right from the trial court's order entering judgment in favor of plaintiff following a jury verdict in favor of plaintiff regarding his assault and battery claim. We affirm. Defendant, who was residing in California at the time of trial, first argues that the trial court abused its discretion when it denied defendant's motion for an adjournment because his wife and two children were ill.1 This Court reviews a trial court's decision to grant or deny an adjournment for an abuse of discretion. Zerillo v Dyksterhouse, 191 Mich App 228, 230; 477 NW2d 117 (1991). MCR 2.503(C)(2) directs that: An adjournment may be granted on the ground of unavailability of a witness or evidence only if the court finds that the evidence is material and that diligent efforts have been made to produce the witness or evidence. Cases upholding a trial court's denial of an adjournment motion have involved a combination of factors that include numerous past adjournments, no showing of diligence by the movant, and lack of injustice to the movant. Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1992). A trial court's denial of a motion to adjourn based on the absence of a witness is proper "where the movant fails to provide an adequate explanation and show that diligent efforts were made to secure the presence of the witness." Id.
1

Because defendant was not present at trial, his deposition was read to the jury.

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Although this was defendant's first request for an adjournment, defendant merely submitted an unsigned letter that stated that his wife and children were suffering from the flu. Without additional documentation, this letter did not constitute an adequate explanation or demonstration that defendant had made diligent efforts to appear in court. Further, the request to adjourn came only three days before trial. Consequently, the trial court did not abuse its discretion when it denied defendant's motion for an adjournment. Defendant next argues that the trial court committed error requiring reversal when it refused to instruct the jury on mutual affray. The defense of mutual affray provides that "[i]f plaintiff voluntarily engaged in a fight with defendant for the sake of fighting and not as a means of self-defense, then plaintiff may not recover for an assault or battery unless the defendant beat the plaintiff excessively or used unreasonable force." SJI2d 115.06. We review de novo claims of instruction error. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). A trial court must give a standard instruction when requested by a party provided the instruction accurately states the law and applies to the facts of the case. MCR 2.516(D)(2); Pontiac School Dist v Miller Canfield Paddock & Stone, 221 Mich App 602, 622; 563 NW2d 693 (1997). Jury instructions should be examined in their entirety to determine whether there is error requiring reversal. Case, supra, p 6. The instructions should include all the elements of the claims and should not omit material issues, theories, or defenses if the evidence supports them. Id. "Even if somewhat imperfect, the instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury." Id. In this case, the evidence adduced at trial indicated that defendant became angry after plaintiff allegedly cut him off in traffic. Subsequently, defendant followed plaintiff and threw an ice cream cone at plaintiff's vehicle. Defendant followed plaintiff into a parking lot, grabbed plaintiff from his vehicle, and threw him to the ground causing serious injury to plaintiff. The evidence demonstrated that defendant was thirty-one years old and plaintiff was fifty-six years old at the time of the incident. Moreover, three disinterested eyewitnesses to the altercation in the parking lot testified that defendant was the aggressor and that plaintiff was acting defensively. The trial court did not commit error requiring reversal when it refused to instruct the jury on the defense of mutual affray because the evidence did not support it. Lastly, defendant challenges the trial court's award of mediation sanctions to plaintiff under MCR 2.403(O)(1). The application and construction of court rules is a question of law that this Court reviews de novo. Barclay v Crown Bldg & Development, Inc, 241 Mich App 639, 642; 617 NW2d 373 (2000). This Court reviews de novo a trial court's decision to award mediation sanctions and the amount of the sanctions for an abuse of discretion. Elia v Hazen, 242 Mich App 374, 376-377; 619 NW2d 1 (2000). In the present case, both parties rejected a unanimous mediation evaluation in July 1997. In June 1998, defendant submitted an offer of judgment to plaintiff for the same amount as the mediation evaluation. Plaintiff did not respond to the offer of judgment, maintaining that the offer was not bona fide. Defendant now contends that MCR 2.405(D)(2) prohibited plaintiff from recovering costs under MCR 2.403 because plaintiff failed to make a counteroffer.

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MCR 2.403(O)(1) provides for the imposition of mandatory sanctions when both parties reject a unanimous mediation evaluation, and states: If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation. MCR 2.405(D)(2), which addresses offers of judgment, provides: 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 unless the offer was made less than 42 days before trial. MCR 2.405(E), which explains the relationship between MCR 2.405 and MCR 2.403, was amended effective October 1, 1997, and provides that costs may not be awarded in a case that has been submitted to mediation under MCR 2.403 unless the mediation award was not unanimous.2 In amending MCR 2.405(E) to abolish offer of judgment sanctions in situations where an offer of judgment follows a unanimous mediation award, our Supreme Court "was attempting to eliminate the gamesmanship of using the offer of judgment rules as a way to avoid mediation sanctions while opening the possibility for offer of judgment sanctions, without having the good faith intent to settle the case." Reitmeyer v Schultz Equipment & Parts Co, Inc, 237 Mich App 332, 342; 602 NW2d 596 (1999). Here, defendant's offer of judgment was made after the amended version of MCR 2.405(E) became effective. Because the offer of judgment was made after the amendment to MCR 2.405(E) became effective, no injustice will result from application of the amended version of MCR 2.405(E). See Reitmeyer, supra, p 342. According to the amended version of MCR 2.405(E), the award of costs under MCR 2.405(D)(2) is not applicable to this case because the mediation award was unanimous. Accordingly, the costs provisions of MCR 2.403(O)(1) control. Under the plain language of MCR 2.403(O)(1) and (7), the trial court was required to award costs to plaintiff because both parties rejected the unanimous mediation award and because the verdict was more favorable to plaintiff than the mediation award. As such, the trial court did not err when it awarded costs pursuant to MCR 2.403 to plaintiff.
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Before the 1997 amendment, MCR 2.405(E) stated in pertinent part: In an action in which there has been both the rejection of a mediation award pursuant to MCR 2.403 and a rejection of an offer under this rule, the cost provisions of the rule under which the later rejection occurred control, except that if the same party would be entitled to costs under both rules costs may be recovered from the date of the earlier rejection.

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Defendant also challenges the reasonableness of the attorney fee awarded to plaintiff. However, defendant's failure to request an evidentiary hearing or otherwise challenge the reasonableness of the attorney fee in the trial court precludes appellate review. Sanders v Monical Machinery Co, 163 Mich App 689, 694-695; 415 NW2d 276 (1987); see also, Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 113; 593 NW2d 595 (1999) (a trial court should normally hold an evidentiary hearing when the opposing party challenges the reasonableness of the attorney fee request). Affirmed. /s/ Jane E. Markey /s/ Kathleen Jansen /s/ Brian K. Zahra

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