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Fansler v. Richardson2/24/2005
UNPUBLISHED
Defendant Mike Gibler, d/b/a MG & Company (Gibler), and defendant Thermogas Company, Inc. (Thermogas) appeal as of right from the trial court order denying their request for costs pursuant to MCR 2.625 against co-defendant Independence Professional Fireworks, Inc. (IPF). We affirm.
This consolidated action arose following an explosion at the IPF plant that killed five employees (plaintiffs' decedents). Before consolidation, plaintiffs originally filed separate complaints against IPF, but did not name Gibler or Thermogas as defendants. However, IPF filed a notice of nonparty fault under MCR 2.112(K), alleging that Gibler and Thermogas were at fault in causing the deaths of plaintiffs' decedents because they negligently installed, serviced or maintained a water heater that was thought to be the initiating cause of the explosion. Thereafter, plaintiffs filed an amended complaint adding Gibler and Thermogas as defendants.
After being named as defendants in plaintiffs' wrongful death action, Gibler and Thermogas moved for summary disposition, and the trial court granted the motion, in part because there had been a "spoliation of evidence" because IPF apparently lost the water heater at issue and could not locate it. At the hearing on Thermogas' spoliation of evidence motion, the court acknowledged that because none of the experts could examine the water heater, any expert testimony regarding causation would be mere speculation and conjecture that did not meet the standards for expert testimony under MRE 702.
After the trial court granted their motion for summary disposition, defendants Gibler and Thermogas moved to tax costs against co-defendant IPF. Thermogas argued that pursuant to MCR 2.625(A) and (F), IPF should pay its costs because IPF brought Thermogas into its suit with plaintiffs by filing the notice of nonparty fault. Gibler argued that he and his company were entitled to costs because he was a "prevailing party" against IPF under MCR 2.625.
In response, IPF argued that neither Gibler nor Thermogas were entitled to costs because under MCR 2.625 they were not a "prevailing party" in an "action" against IPF because the notice of nonparty fault did not create a cause of action between IPF and Thermogas. The trial court, in its opinion and order denying Gibler's and Thermogas' motion for costs, held that Gibler and Thermogas could not be prevailing parties entitled to costs under MCR 2.625 because neither party had any vested right of action or right of recovery against IPF.
On appeal, defendants Gibler and Thermogas argue that under MCR 2.625, they are entitled to costs from co-defendant IPF regardless of whether a cause of action existed between them and IPF. We disagree.
This Court reviews a trial court's ruling on a motion for costs under MCR 2.625 for an abuse of discretion. Klinke v Mitsubishi Motors Corp,219 Mich App 500, 521; 556 NW2d 528 (1996), aff'd 458 Mich 582 (1998). The determination whether a party is a "prevailing party" for the purpose of awarding costs under MCR 2.625 is a question of law which this Court reviews de novo. Id. at 521.
The relevant provisions of MCR 2.625 provide as follows:
(A) Right to Costs.
(1) In General. Costs will be allowed to the prevailing party in an action, unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action.
(B) Rules for Determining Prevailing Party.
(2) Actions With Several Issues or Counts. In an action involving several issues or counts that state different causes of action or different defenses,
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