# Nicholas Pavlak v. James Bechtel

> Michigan Court of Appeals · October 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10598627

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** October 8, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10598627

## How later opinions describe it (automated extraction)

- noting that a party’s reliance on a misrepresentation in fraud actions must be reasonable

## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

NICHOLAS PAVLAK and KATHLEEN PAVLAK, UNPUBLISHED
October 08, 2024
Plaintiffs-Appellants, 9:45 AM

v No. 364862
Oakland Circuit Court
JAMES BECHTEL and LEANA A. LEE, LC No. 2019-173661-CK

Defendants-Appellees.

NICHOLAS PAVLAK and KATHLEEN PAVLAK,

Plaintiffs-Appellees,

v No. 365609
Oakland Circuit Court
JAMES BECHTEL and LEANA A. LEE, LC No. 2019-173661-CK

Defendants-Appellants.

Before: BOONSTRA, P.J., and JANSEN and N. P. HOOD, JJ.

PER CURIAM.

These consolidated appeals1 arise from the same trial court proceeding. In Docket No.
364862, plaintiffs Nicholas and Kathleen Pavlak appeal by right the judgment of the trial court
entered after a jury trial. In Docket No. 365609, defendants James Bechtel and Leana A. Lee
appeal by right the trial court’s post-judgment order denying their motion for case evaluation
sanctions. We affirm in both appeals.

1
See Pavlak v Bechtel, unpublished order of the Court of Appeals, entered April 11, 2023 (Docket
Nos. 364862, 365609).

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I. PERTINENT FACTS AND PROCEDURAL HISTORY

The facts underlying both appeals are largely undisputed. In 2018, the Pavlaks purchased
a single-family residence at 693 West Hazelhurst in Ferndale (the house). The house was owned
by Bechtel and Lee, who were divorced; Lee had no involvement in the transaction other than
signing documents that had been prepared by Bechtel. During the process of buying the house,
the Pavlaks were provided with a seller’s disclosure statement (SDS) completed by Bechtel. The
SDS indicated that the seller lived in the house from November 2005 until July 2011, and contained
questions about the property and handwritten answers by Bechtel. The following portions of the
SDS are relevant to the issues on appeal:2

Property conditions, improvements & additional information

1. Basement/Crawlspace: Has there been evidence of water? yes X no

If yes, please explain: as long as gutters are clean and downspouts are
clear, rain stays out

* * *

10. Environmental problems: Are you aware of any substances or products that
may be an environmental hazard such as, but not limited to, asbestos, radon gas,
formaldehyde, lead-based paint, fuel or chemical storage tanks and contaminated
soil on property. [sic]

Unknown yes no X

* * *

Other Items: Are you aware of any of the following:

* * *

5. Settling, flooding, drainage, structural, or grading problems?
unknown yes X no

6. Major damage to the property from fire, wind, floods, or landslides?

unknown yes no X

* * *

2
Bechtel’s handwritten notations are rendered in italics in this opinion.

-2-
If the answer to any of these questions is yes, please explain. Attach additional
sheets, if necessary: Replaced main drain 2008,[sic] [Seller’s Disclosure, pp 1-
2.]

After receiving the SDS, the Pavlaks decided to have the home inspected. The inspection
was performed in March 2018 and an inspection report was prepared for the Pavlaks. Relevant to
the issues on appeal, the inspector noted that due to the house’s age, asbestos could be present in
the building materials; additionally, the inspector noted “[e]vidence of a prior water event” in the
basement, which implicated a “[p]ossible mold concern.” The inspector also noted that the exterior
drainage system of the house needed improvement and that storm water had entered into the
basement in the past; the inspector recommended that the Pavlaks “inspect and verify proper
operation of sewer line from house to main” in order to prevent “continued water entry into
basement.” The inspection report recommended that these issues receive further evaluation, but
indicated that the time periods for such evaluations were “discretionary” rather than “immediate.”

The Pavlaks elected to have the house’s sewer drain and line inspected. Nicholas testified
that the sewer inspection had revealed that the entire main drain had not been replaced; part of the
drain had been replaced, but part had not been. Further, there was some root intrusion into the
drain, and although “it had looked fairly clear” at the time of the inspection, “the reports said it
might be something to look at in the future.”

The Pavlaks prepared a list of issues with the house based on the results of the inspections,
and their real estate agent emailed that list to Bechtel and Lee’s real estate agent, stating that “there
were some items that came up in inspection that [the Pavlaks] feel are beyond the scope of what
they should be expected to do and are asking the Sellers for Concessions at closing so they will
have the funds to complete said repairs.” The email then listed various issues such as improper
wiring in the garage and an inoperable ceiling fan; the email also stated that “[u]pon inspection of
the sewer line from the house to the street we discovered a sizeable root ball intrusion at the cast-
iron to PVC connection.” The email also requested further information concerning previous water
intrusion in the basement:

6. Basement, pages 15 and 16 of 115. There is evidence of previous water intrusion
in the basement which could indicate possible contamination which the Buyers will
need to look into after closing. Do the Sellers have any information that they could
furnish us on this?

The email closed with the following statement: “As a result of these immediate repairs that the
Buyers will need to perform they are asking for Seller’s Concessions of $5,000.00 to be credited
toward prepaids, closing costs and insurance.”

Bechtel testified that he received the Pavlaks’ questions from his real estate agent, and
responded to them via email. Regarding the statement about the root ball found in the sewer line,
Bechtel stated: “Roots in the sewer line can be cleared with a plumber coming out for ~$175 [sic]
(we have had them out before to clear the line).” Regarding the statement and question about
previous water intrusion in the basement, Bechtel stated: “Rain water has entered the basement
due to overfilled gutters or downspouts not being attached at the bend (typically in north west
corner or north east corner). This was on the disclosure sheet. This was remedied by having

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gutters cleaned and/or downspouts re-attached. Additionally dirt was added at the base of the
house to help with runnoff. [sic].” Bechtel instructed his agent to counteroffer the Pavlaks $3,000
in seller’s concessions. According to Bechtel, while he did not specifically instruct his real estate
agent to provide his answers to the Pavlaks, Bechtel “just assumed he would.”

The Pavlaks testified that they never received an answer to their question about previous
water intrusion in the basement. However, they did receive the $3,000 counteroffer, which they
accepted. The Pavlaks closed on the transaction and moved into the house in May 2018.

Nicholas testified that after moving into the house, he developed “really bad” allergies that
required him to take over-the-counter allergy medicine. He also testified that the family dog began
to scratch and lick himself constantly, eventually developing “hot spots” requiring veterinary
treatment.

Approximately two and a half months after the Pavlaks moved into the house, the basement
flooded with both water and raw sewage. Nicholas testified that the flooding covered about 80
percent of the basement area. The Pavlaks engaged ServPro, a cleaning and restoration company,
to deal with the flood damage. Nicholas testified that when ServPro employees removed part of
the baseboard from a basement wall, they found that it was “almost entirely black with mold.”
Mold was discovered on all of the outer walls of the basement. ServPro was not able to complete
the cleaning and restoration until the mold was inspected and tested. ServPro referred the Pavlaks
to TriCor, an environmental testing and home and commercial inspection company, to inspect and
test for mold. The TriCor inspector testified that he found mold behind dry walls, indicating that
the mold had been present before the most recent flood. The inspector also found areas where
water damage appeared to have been covered with paint. The mold in the basement was identified
as being composed of several highly allergenic species of “black molds.” The TriCor inspector
determined that the mold would need to be remediated and instructed ServPro on the necessary
process to perform the remediation. The inspector opined at trial that the mold had likely been
present for several years.

After TriCor’s inspection, testing, and instruction, ServPro began the remediation process
in the basement; however, when ServPro employees began to remove the carpet in the basement,
they discovered tiles that could potentially contain asbestos. A sample of the tile indeed tested
positive for asbestos, requiring that the remediation be halted until the asbestos risk could be
abated. A subcontractor was hired to perform the asbestos abatement, after which the mold
remediation process was completed. The Pavlaks testified that the entire process took several
weeks, during which time they were unable to use their basement, including the laundry room, as
well as portions of the main floor that had been sealed off to allow workers to come in and out
without contaminating the rest of the house. The Pavlaks testified that they had to take several
days off from work as a result of the abatement and remediation process.

The Pavlaks filed suit against Bechtel and Lee in 2019, alleging silent fraud, fraudulent
misrepresentation, negligent misrepresentation, and violation of the seller’s disclosure act (SDA),
MCL 565.960. The trial was adjourned several times due to the COVID-19 pandemic. The parties
underwent case evaluation in July 2020. The case evaluators issued an award of $12,750.00 in
favor of the Pavlaks, which was accepted by Bechtel in August 2020. The Pavlaks never filed an
acceptance or rejection of the award, causing the award to be automatically rejected 28 days after

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they received service of the award. See MCR 2.403(L)(1). In September 2022, the Pavlaks moved
the trial court to add an expert witness on damages. The Pavlaks stated in their motion that they
had sold the house in June 2022, and that their proposed expert was prepared to testify that the sale
price was approximately $20,000 less than the house’s appraised value, or the value of comparable
sales made around the same time. The trial court denied the motion at a motion hearing on
September 14, 2022.

The four-day jury trial on the Pavlaks’ complaint began on September 22, 2022 and
concluded on September 29, 2022. At trial, Bechtel testified that basement of the house had in
fact flooded several times. The basement flooded in 2007 as a result of a burst pipe. The basement
carpet was replaced following the flood; however, Bechtel denied knowing that the tiles under the
carpet contained asbestos. The basement had also flooded in 2011 as a result of water intrusion
from outside. A sewage drain in the basement had clogged and caused sewage backup and
flooding in February 2014. The basement flooded again in either late 2014 or 2015; Bechtel
testified that either he or his brother had removed the carpet, exposing the tile underneath. There
was another sewage backup in 2017. Bechtel testified that he had painted the basement drywall
prior to putting the house up for sale, but denied painting to cover up evidence of mold or water
damage. Bechtel admitted that two tenants had raised concerns that there was mold in the
basement as a result of flooding, which led to his removal of the carpet in late 2014 or 2015.
Bechtel admitted that his answers to questions on the SDS did not specifically disclose any of these
earlier floods, but opined that his answers had disclosed that flooding could happen from water
intrusion. Bechtel also admitted that he did not further elaborate about specific flooding instances
when he responded to his real estate agent’s email with the Pavlaks’ questions.

Nicholas testified that he was offered a job in Atlanta in 2022, requiring the Pavlaks to sell
the house and move. Nicholas stated that the house had to be sold “quickly, you know, to move
for a job.” To prepare the house for sale, Nicholas and his father refinished the basement. The
Pavlaks were required to disclose the history of flooding, mold, and asbestos remediation when
completing their own seller’s disclosure form. Nicholas testified that the house was listed for sale
at $350,000, which the Pavlaks believed was “under value for the market based on comps that
appeared around the area.” Nicholas testified that they believed the low price would cause the
house to sell quickly, but that it actually took over a month to get an offer on the house. The
Pavlaks accepted an offer for $340,000.

Nicholas testified regarding two similar, but smaller, properties on the same block that sold
around the same time. The Pavlaks introduced evidence that these homes sold for $375,000 and
$382,000. When the Pavlaks’ counsel asked Nicholas what he believed the value of the house
would have been “had it not been for the history of the basement,” Bechtel’s counsel objected on
the grounds that there was no evidence that Nicholas was trained in real estate appraisal. Nicholas
testified that there had been homes in the neighborhood that had sold for less than $340,000, but
stated that he believed they were “not very comparable.” Nicholas testified that they were seeking
$35,000 in damages from Bechtel for “the loss of value on the sale of the home.”

Kathleen testified that she and Nicholas were “motivated to get a lot of interest in the
house” when they listed it for sale, and that they discussed the price and decided to list it for
$350,000. She testified that they had a limited time to sell the house and relocate to Atlanta for

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Nicholas to start his new job. She agreed on cross-examination that the house had been listed at
an “intentionally low” price.

The Pavlaks both testified that they had reviewed the home inspection report and sewer
inspection report, including the recommendations for further inspections. The parties stipulated
to having Lee’s deposition testimony read to the jury. The Pavlaks’ counsel told the jury that the
Pavlaks were not seeking any damages against Lee.

The jury delivered a verdict for the Pavlaks as described. Generally speaking with regard
to the various fraud claims, the jury found that Bechtel had knowledge of the previous floods and
sewage backups at the house, as well as “the mold and/or asbestos that existed in the basement”
of the house when he completed the seller’s disclosure, and that he had a duty to disclose these
conditions when he filled out the form, but did not do so; however, the jury also found that the
Pavlaks’ reliance on Bechtel’s omissions or misrepresentations did not cause their damages, and
awarded no damages for those claims. Regarding the violation of the SDA claim, the jury found
that Bechtel had failed to disclose information required by the act and that the Pavlaks had relied
on the information in the SDS; the jury awarded the Pavlaks $7,000 for this claim.

After the judgment on the verdict was entered, the Pavlaks moved the trial court for
judgment notwithstanding the verdict (JNOV), a new trial, or additur, arguing that the trial court
had abused its discretion by denying the Pavlaks’ motion to add an expert witness and by sustaining
an objection to plaintiffs’ testimony, that the jury verdict was inconsistent, and that additur was
appropriate because the jury had not followed its instructions in awarding damages. The trial court
denied the motion. Bechtel subsequently filed a motion for case evaluation sanctions. Bechtel
argued that although MCR 2.403 had been amended before the jury trial, the case evaluation
process had been conducted under the previous version of the court rule, and that version should
apply to his request for sanctions. The trial court denied that motion.

These appeals followed.

II. DOCKET NO. 364862

A. VALUATION EVIDENCE

The Pavlaks argue that the trial court erred by denying their motion to add an expert witness
to testify regarding the value of the house when it was sold, and by refusing to allow the Pavlaks
themselves to testify as to what they believed the sale price of the house would have been had it
not been for the history of mold, asbestos, and flooding. We disagree in both respects.

We review for an abuse of discretion a trial court’s decision to deny a motion to amend a
witness list to add an expert witness. Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51
(1992). The trial court should determine whether the party seeking amendment has demonstrated
good cause for the amendment or whether the opposing party will be prejudiced by the amendment.
Id. at 20-21. We also review for an abuse of discretion a trial court’s decision to admit or deny
evidence. See Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). A trial court abuses
its discretion when its decision falls outside the range of principled outcomes. Id. Even if the trial
court commits an evidentiary error, reversal is only required if the error was prejudicial, viewed in
light of the weight of the other properly-admitted evidence. Craig v Oakwood Hosp, 471 Mich

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67, 76; 684 NW2d 296 (2004); see also Ykimoff v Foote Mem Hosp, 285 Mich App 80, 103; 776
NW2d 114 (2009).

1. MOTION TO AMEND WITNESS LIST

Regarding the Pavlaks’ motion to amend their witness list, the trial court denied the motion
on the grounds that it was untimely. We find no abuse of discretion in this denial.

The purpose of witness lists is to avoid “trial by surprise.” Grubor Enterprises, Inc v
Kortidis, 201 Mich App 625, 628; 506 NW2d 614 (1993) (citation omitted). To that end,
MCR 2.401(I)(1) authorizes the trial court to enter a scheduling order providing a deadline for the
filing and serving of witness lists. MCR 2.401(I)(2) further provides that the trial court “may order
that any witness not listed in accordance with this rule will be prohibited from testifying at trial
except upon good cause shown.” It was therefore the Pavlaks’ burden to demonstrate good cause
for the late addition of a new expert witness. Cox v Hartman, 322 Mich App 292, 315; 911 NW2d
219 (2017).

In this case, the Pavlaks filed their motion to amend their witness list on September 7, 2022,
two weeks before trial, in a case that had been pending for over three years. The hearing on the
motion was set a mere one week before trial. Although the Pavlaks’ motion was based on the sale
of their home, the Pavlaks waited more than two months after the sale of their home was complete
to file their motion to add an expert witness to testify to the alleged loss of value from the sale as
the result of Bechtel’s actions. Moreover, while the Pavlaks had not sold the house when they
filed their complaint, they never amended or sought to amend the complaint following the sale,
and Bechtel had no notice that they intended to seek damages from that alleged loss of value.
Bechtel therefore would have been prejudiced by having to seek to counter or cross-examine an
expert witness testifying regarding an entirely new category of damages on very short notice, or
else be required to seek adjournment of an already extremely elderly case. See Cox, 322 Mich at
316. Under these circumstances, the trial court’s exercise of its discretion not to allow the late
amendment of the Pavlaks’ witness list was within the range of principled outcomes. See Edry,
486 Mich at 639.

2. THE PAVLAKS’ TESTIMONY

The trial court sustained Bechtel’s counsel’s objection to Nicholas testifying to his opinion
of what the house’s value would have been “had it not been for the history of the basement,” which
presumably meant the value of the house if it had not had mold damage, flooding, or asbestos tile.
The trial court sustained the objection on the grounds that such testimony would be speculation.
We find no abuse of discretion in the trial court’s decision.

Neither of the Pavlaks were qualified as experts in the area of home valuation or a related
field. Therefore, their testimony regarding the value of the house if it had not suffered from
repeated floods, mold, or asbestos tile would have been lay witness testimony. Lay witnesses must
testify from personal knowledge, MRE 602, but may offer opinions and inferences based on their
knowledge in certain circumstances. See City of Grand Rapids v HR Terryberry Co, 122 Mich
App 750, 753; 333 NW2d 123 (1983). The admissibility of lay witness opinion testimony is
governed by MRE 701, which provides:

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If a witness is not testifying as an expert, testimony in the form of an opinions is
limited to one that is:

(a) rationally based on the witness's perception; and

(b) helpful to clearly understanding the witness's testimony or to determining a fact
in issue.

This Court has permitted lay witnesses to testify regarding their opinion of their own property’s
value, provided that the opinion was based on personal knowledge. See, e.g., Lee v Lee, 191 Mich
App 73, 75-76; 477 NW2d 429 (1991); Michigan Mut Ins Co v CNA Ins Cos, 181 Mich App 376,
385; 448 NW2d 854 (1989); see also HR Terryberry Co, 122 Mich App at 753 (“A lay witness
will be permitted to testify as to the value of land if he has seen the land and has some knowledge
of the value of other lands in the immediate vicinity.”). But the Pavlaks sought to testify about
much more than the mere value of the house as it stood; they sought to testify to what the value of
the home would have been if it had a different history and if Bechtel had taken different actions to
remedy water intrusion, sewage backup, and asbestos issues. Such testimony would not have been
rationally related to their perception of the market value of their home and the market value of
other homes in the neighborhood. Rather, such hypothetical or speculative opinion testimony as
to the effect of various conditions (or their absence) on a home’s value requires knowledge in an
area that belongs more to an expert than to the common man. See MRE 702; Surman v Surman,
277 Mich App 287, 308; 745 NW2d 802 (2007); see also MDOT v VanElslander, 460 Mich 127,
131-132; 594 NW2d 841 (1999) (permitting an expert appraiser to speculate whether a zoning
variance would be granted and, if so, what the effect on the subject property’s value would be).
Accordingly, the trial court’s decision not to permit such testimony was within the range of
principled outcomes. See Edry, 486 Mich at 639.

3. REVERSAL NOT REQUIRED EVEN IF ERROR OCCURRED

As stated, we hold that the trial court did not abuse its discretion either in denying the
Pavlaks’ motion to amend their witness list or in sustaining Bechtel’s objection to their lay witness
opinion testimony. Additionally, we note that even if the trial court had abused its discretion
regarding either (or both) of these claims of error, reversal would still not be required. The Pavlaks
were in fact permitted to testify regarding the price at which the house sold as well as the sale
prices of two neighboring “comparables” that were sold contemporaneously. Documentary
evidence of the neighboring homes’ sale prices, square footage, and features was admitted into
evidence. They were also permitted to provide the jury with their estimate of the loss of value on
the sale of the house because of Bechtel’s conduct. In short, although their claim was not bolstered
by an expert, they were able to present it to the jury in some detail. Bechtel did not mount a
particularly vigorous defense to this claim, and did not present his own lay or expert witnesses to
testify regarding the house’s value. These facts alone render it doubtful that the lack of additional
speculation from the Pavlaks, or testimony from an expert, would have been outcome-
determinative.

Moreover, and more importantly, the Pavlaks testified that they chose to list the house at
$350,000, rather than seek a higher price, in the hope of selling the home quickly so that they could
move to Atlanta for Nicholas’s new job. Nicholas further testified that they took the first offer that

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they received rather than keep the house on the market longer. In other words, although the
Pavlaks claimed that they could have sold their house for $35,000 more than they did, their own
testimony shows that they never even tried to get that price for it—and further that they were under
significant time pressure that influenced both their pricing decisions and their ability to wait for
better offers to come along. Additional speculation from the Pavlaks, or testimony from an expert,
would not have changed these facts. The jury could easily have concluded that the Pavlaks set a
price designed to sell the house quickly and received nearly that price for the home, and that
Bechtel bore no responsibility for the price they eventually received.

In light of the other properly admitted and unchallenged evidence, even if the trial court
did commit the evidentiary errors claimed by the Pavlaks, reversal would not have been required.
Craig, 471 Mich at 76; Ykimoff, 285 Mich App at 103.

B. JURY VERDICT

The Pavlaks also argue that the trial court erred by denying their motion for JNOV or a
new trial, or additur, because the jury verdict was inconsistent. We disagree. We review de novo
a trial court’s ruling on a motion for JNOV. Attard v Citizens Ins Co of Am, 237 Mich App 311,
321; 602 NW2d 633 (1999). We review for an abuse of discretion a trial court’s decision on a
motion for a new trial or additur. Taylor v Kent Radiology, 286 Mich App 490, 523; 780 NW2d
900 (2009).

Motions for JNOV are “essentially challenges to the sufficiency of the evidence in support
of a jury verdict in a civil case.” Id. at 499. Accordingly, we review the evidence and all legitimate
inferences to be drawn from that evidence in the light most favorable to the nonmoving party. Id.
(citation omitted). A motion for JNOV should only be granted if the evidence, viewed in that light,
fails to establish a claim as a matter of law. Id. A new trial should only be granted if, after
reviewing all of the evidence and giving due deference to the judgment of the jury, we determine
that the evidence preponderates so heavily against the verdict that it would be a miscarriage of
justice to allow it to stand. Sciotti v 36th Dist Court, 482 Mich 1143, 1147; 758 NW2d 289 (2008);
Ellsworth v Hotel Corp of Am, 236 Mich App 185, 194; 600 NW2d 129 (1999).

A jury verdict, even if arguably inconsistent, should not be overturned or set aside “[i]f
there is an interpretation of the evidence that provides a logical explanation for the findings of the
jury.” Granger v Fruehauf Corp, 429 Mich 1, 7, 9; 412 NW2d 199 (1987). In other words, we
will not set aside a jury verdict if there is competent evidence to support it. Allard, 271 Mich App
at 406-407. “[E]very attempt must be made to harmonize a jury’s verdicts. Only where verdicts
are so logically and legally inconsistent that they cannot be reconciled will they be set aside.” Id.
at 407 (quotation marks and citation omitted; alteration in original).

The Pavlaks argue that the jury verdict was inconsistent because the jury found that the
Pavlaks had not relied on Bechtel’s misrepresentations or omissions on the seller’s disclosure form
regarding their fraud claims, but did find that the Pavlaks had relied on those misrepresentations
or omissions in finding Bechtel liable for violation of the SDA and awarding damages. We
disagree. The jury was instructed that the elements of the Pavlaks’ fraud and misrepresentation
claims needed to be proven by clear and convincing evidence, see Hi-Way Motor Co v
International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), while the elements of the

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Pavlaks’ claim for statutory violation needed to be proven only by a preponderance of the evidence,
see Residential Ratepayer Consortium v PSC, 198 Mich App 144, 149; 497 NW2d 558 (1993).
The Pavlaks do not argue that these instructions were incorrect. There is nothing logically
inconsistent about a jury finding that a party had proven an element of a claim by a preponderance
of the evidence, but had not proven a similar element of another claim by a much higher evidentiary
standard. Granger, 429 Mich at 7, 9; Allard, 271 Mich App at 407.

Additionally, the jury’s verdict did not preponderate so heavily against the evidence that it
would be a miscarriage of justice to allow it to stand. Sciotti, 482 Mich at 1147. The jury found
that Bechtel had violated the SDA, but did not find that Bechtel’s actions had risen to the level of
actionable fraud. Specifically, the jury found that the Pavlaks had not established by clear and
convincing evidence that they had reasonably relied upon Bechtel’s statements concerning mold,
water intrusion, and asbestos to their detriment. As discussed, the Pavlaks testified to having home
and sewer inspections done, and receiving recommendations for further evaluation of potential
mold and water intrusion issues, which they did not pursue. The jury could have concluded that
the Pavlaks had not established (or at least, not established by clear and convincing evidence) that
any reliance on Bechtel’s statements was reasonable. See Bergen v Baker, 264 Mich App 376,
389; 691 NW2d 770 (2004) (noting that a party’s reliance on a misrepresentation in fraud actions
must be reasonable). On this record, we see no reason to set aside the jury verdict, either through
JNOV or a grant of a new trial.

In the alternative, the Pavlaks argue that additur is an appropriate remedy, because the jury
failed to award the Pavlaks all of their requested damages (apart from the damages for loss of value
to the house on the sale) despite what they characterize as Bechtel’s failure to challenge the
amounts of any of the damages claimed. We disagree. When reviewing a claim for additur, the
appropriate inquiry is whether the evidence supports the jury’s award. Robertson v Blue Water
Oil Co, 268 Mich App 588, 595; 708 NW2d 749 (2005).

The Pavlaks argue that Bechtel did not challenge the amount of damages claimed;
therefore, they argue, the jury should have awarded them all of their requested damages, apart from
the damages claimed for the loss of value for the sale of the house. While it is true that Bechtel
did not dispute the amounts that the Pavlaks were charged for ServPro or other remediation
companies’ services, or the value the Pavlaks placed on their days of work lost, this fact does not
render the jury’s verdict inconsistent or unsupported by evidence. The jury was asked to determine
Bechtel’s liability as well as the amount of damages that could be attributed to Bechtel’s conduct.
The jury was not required to award 100% of the damages claimed by the Pavlaks simply because
it found Bechtel liable for one of several claims. For example, the jury could have determined that
Bechtel’s conduct rendered him liable for the mold remediation damages, but not damages from
the asbestos remediation—the evidence shows, after all, that Bechtel indicated on the SDS that he
was unaware of any asbestos, not that he affirmatively stated that there was no asbestos on the
property. And the jury form merely asked the jury to find whether Bechtel had “knowledge of the
mold and/or asbestos” that existed in the basement of the house. The jury could also have
determined that the Pavlaks bore responsibility for some of the damages they incurred based on
the evidence that they were advised by a home inspector to perform additional inspections that
were not done. We need not speculate further—the point is that the jury’s award was rationally

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supported by the evidence, and additur is therefore not appropriate. Robertson, 268 Mich App at
596.3

III. DOCKET NO. 365609

In Docket No. 365609, Bechtel argues that the trial court erred by denying his motion for
case evaluation sanctions. We disagree. “A trial court's decision whether to grant case-evaluation
sanctions under MCR 2.403(O) presents a question of law, which this Court reviews de novo.”
Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). “This Court reviews de novo a trial
court's decision on . . . questions of . . . the construction and application of court rules.” Citizens
for Higgins Lake Legal Levels v Roscommon County Bd of Comm'rs, 341 Mich App 161, 176; 988
NW2d 841 (2022). “[H]owever, a trial court's decision whether to apply the ‘interest of justice’
exception” when addressing a court rule amended during litigation, “is reviewed for an abuse of
discretion.” Centria Home Rehab, LLC v Philadelphia Indemnity Ins Co, 345 Mich App 649, 660;
9 NW3d 104 (2023). “An abuse of discretion occurs when the decision results in an outcome
falling outside the range of principled outcomes.” Id. (quotation marks and citation omitted).

MCR 2.403 governs the case evaluation procedure. Prior to its amendment in 2022,
MCR 2.403(O) provided in relevant part:

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 case 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 case evaluation. [MCR 2.403(O)(1), prior to
amendment effective January 1, 2022.]

The amendments to MCR 2.403 became effective on January 1, 2022. Relevant to this appeal,
subsection (O) was removed in its entirety, and the rule no longer provides for case evaluation
sanctions based on the results of a subsequent jury verdict.

It is undisputed that this case commenced under the previous version of MCR 2.403, that
case evaluation was conducted under that rule in 2020, and that the rule was amended nearly ten

3
In their appellate brief, the Pavlaks state that they “postulate” that the TriCor inspector’s
inadvertent mention of insurance during his testimony may have somehow affected the jury’s
award. The Pavlaks do not elaborate on this statement or support it with legal authority or even
citation to the record, and it is unclear whether they intended to make an actual argument regarding
the inspector’s testimony. In any event, the mention of insurance was inadvertent and isolated;
the inspector merely stated that ServPro asked him to “write a small protocol for the insurance
company” regarding mold remediation. The jury was instructed not to consider or speculate
whether any party was insured, and that whether a party was insured had no bearing on any of the
issues under the jury’s consideration. There is no reason apparent from this record to conclude
that the jury did not follow its instructions, see Lenawee Co v Wagley, 301 Mich App 134, 159;
836 NW2d 193 (2013), or that the trial court’s limiting instruction was not sufficient to abrogate
any potential prejudice, Tobin v Providence Hosp, 244 Mich App 626, 641; 624 NW2d 548 (2001).

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months before the jury trial and verdict in this case. Generally, when a court rule is amended
during ongoing litigation, the new rule should be applied to pending actions “unless there is a
reason to continue applying the old rules.” Reitmeyer v Schultz Equip & Parts Co, Inc, 237 Mich
App 332, 337; 602 NW2d 556 (1999), quoting Davis v O’Brien, 152 Mich App 495, 500; 393
NW2d 914 (1986). This reason must be more than the mere fact that a different result would be
reached under the new rule than the old; rather, a court should apply the old rule only if applying
the new rule would “work injustice” on a party. Id., see also MCR 1.102. “[A] new court rule
would ‘work injustice’ where a party acts, or fails to act, in reliance on the prior rules and the
party’s action or inaction has consequences under the new rules that were not present under the
old rule.” Id. (citations omitted). But, because a party’s compliance with the old rule could nearly
always be said to have resulted in “reliance” on that rule, we must not construe this exception so
broadly that it consumes the general rule. Id. at 339.

In this case, at the time Bechtel participated in case-evaluation proceedings and accepted
the award, he did not know whether he would be entitled to seek sanctions under the preamendment
version of MCR 2.403. The Pavlaks could have also accepted the award, which would have
disqualified any potential sanctions and closed the case; alternatively, the Pavlaks could have been
awarded more damages at trial. Bechtel did know whether he could have sought case-evaluation
sanctions (under the prior rule) until nearly ten months after the rule was amended. Although
Bechtel argues that his “reliance” on the availability of case evaluation sanctions influenced his
decision to go to trial, he has not demonstrated that the availability of case evaluation sanctions
was such a motivating factor that it would work an injustice upon him not to apply the prior rule,
especially when he had ample time after MCR 2.403’s amendment and before trial to consider the
effect of the new rule on his chances of receiving such sanctions. Under these circumstances, we
find no injustice in applying the amended version of the court rule. Reitmeyer, 237 Mich App at
337. Accordingly, the trial court did not abuse its discretion by denying Bechtel’s motion. Centria
Home Rehab, LLC, 345 Mich App at 660.

IV. CONCLUSION

We affirm in both appeals.

/s/ Mark T. Boonstra
/s/ Kathleen Jansen
/s/ Noah P. Hood

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10598627. Public record. Not legal advice.