Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Employment discrimination based on race; The Elliott-Larsen Civil Rights Act; MCL 37.2202; Title VII of the Civil Rights Act; 42 USC § 2000e-2; Hecht v. National Heritage Acads., Inc.; Direct evidence; Hazle v. Ford Motor Co.; Circumstantial evidence; McDonnell Douglas Corp. v. Green; Prima facie case; Lytle v. Malady (On Rehearing); Town v. Michigan Bell Tel. Co.; Retaliation; MCL 37.2701(a); Garg v. Macomb Cnty. Cmty. Mental Health Servs.; Causation; Debano-Griffin v. Lake Cnty.; Coincidence in time; West v. General Motors Corp.
Holding that plaintiff-former corrections officer did not establish a genuine issue of fact as to whether her race was a determining factor in defendant-DOC’s termination decision, and that her retaliation claim was also properly dismissed, the court affirmed summary disposition for the DOC. It first determined that the affidavit on which she relied did not constitute direct evidence of discrimination. While the affiant stated that he was in a meeting “where instructions were given to write plaintiff up ‘over any work-rule violation[,]’” the court found that this was not evidence requiring a conclusion she “was targeted because she was African-American. The fact that she was African American was not raised in that affidavit. Plaintiff may have been targeted for scrutiny because she was considered a poor employee or unsafe employee who posed a security risk to the prison.” As to circumstantial evidence, the DOC proffered a nondiscriminatory explanation for terminating her, including that the motivating factors “were that she was a probationary employee who had been disciplined for two major infractions” (inappropriate computer usage and a gate incident) and that she “received a verbal warning for discussing her menstruation, in addition to receiving an unsatisfactory rating for her 12-month performance evaluation.” The court concluded that she did not create a triable issue of fact that these proffered reasons for her discharge “were a mere pretext for race discrimination.” As to her retaliation claim, the issue was causation. She asserted that “near the time when her 12-month performance evaluation was coming due, she asked Captain [D] if her review was completed. When he said that it was not ready, she told him that she believed she was being discriminated against and that was the reason for the delay.” She then filed an internal complaint “claiming that she was being discriminated against because of her gender and race.” She received her unsatisfactory performance evaluation the next day. But “a mere coincidence in time between the protected activity and the adverse employment action is not sufficient—standing alone—to establish a retaliation claim.” Plaintiff did not show that D even knew she had filed the complaint, and the evaluation was actually due when she received it.
Claim for breach of a contract to remediate environmentally contaminated real estate; Statute of limitations; MCL 600.5807(9); Accrual; MCL 600.5827; Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v. Bakshi; Repudiation; Stoddard v. Manufacturers Nat’l Bank of Grand Rapids; Principle that a plaintiff need not know of the invasion of a legal right in order for a claim to accrue; Dewey v. Tabor; Michigan Department of Environmental Quality (MDEQ)
Concluding that the undisputed evidence established that defendant-DH Holdings’ alleged breach occurred in 1999, the court held that the statute of limitations expired before plaintiff-Hutchinson filed its complaint in 2019 alleging breach of contract. Thus, it affirmed summary disposition for DH Holdings. Plaintiff alleged that DH Holdings failed “to remediate environmentally contaminated” property it sold to plaintiff’s predecessor in the 1990s. Pursuant to the parties’ agreement, DH Holdings began “remediation efforts on the property after” the closing in 1996. In 8/98 and 5/99, “the parties communicated about the remediation plan, and DH Holdings indicated that, once it submitted the draft remediation action plan to the MDEQ, it would provide Hutchinson with ‘all written communications’ regarding remediation on the property. It is unclear what (if any) communication” subsequently occurred between the parties. It was also unclear what remediation activities occurred. In “2018, Hutchinson began demanding that DH Holdings achieve closure under the agreement. Importantly, however,” an affidavit of DH Holdings’ vice president supported that its involvement with the property ended in 11/99. Thus, if it “was not engaging in remediation activities or attempting to achieve closure, DH Holdings stopped complying with the relevant terms of the agreement sometime around” 11/30/99. But Hutchinson asserted that since the agreement did not contain “a specific deadline for performance, ‘DH Holdings did not breach’” it until it repudiated it in 12/18. But the court determined that “DH Holdings did not ‘unequivocally declare[] the intent not to perform’ for the first time in” 12/18. Rather, at that time it informed Hutchinson it “believed that it had ‘fully discharged its responsibilities under the Purchase Agreement and that th[e] matter was closed by mutual agreement of the parties in or around 1999.’ Thus, Hutchinson’s argument that the breach occurred in” 12/18 lacked factual support. While it contended it did not know until then “that DH Holdings did not intend to honor the agreement, ‘[a] plaintiff need not know of the invasion of a legal right in order for [a] claim to accrue.’” When the complaint was filed, over 23 years had elapsed since the closing “and DH Holdings had not engaged in any activities relating to the property in over 19 years.”
Sufficiency of the evidence; CSC I involving a person aged 17 or older engaging in sexual penetration with a person under the age of 13; MCL 750.520b(1)(a) & (2)(b); “Sexual penetration”; MCL 750.520a(r); CSC II involving a person aged 17 or older engaging in sexual contact with a person under the age of 13; MCL 750.520c(1)(a) & (2)(b); “Sexual contact”; MCL 750.520a(q); Ineffective assistance of counsel; People v. Sabin (On Second Remand); Trial strategy; People v. Horn; Failure to make a futile objection; People v. Ericksen; Prejudice; People v. Ackley; People v. Carines; Harmless error; People v. Rodriguez; Credibility; People v. Dobek; Relevance; MRE 401 & 402; Unfair prejudice; MRE 403; People v. Feezel; Hearsay; MRE 801(c); Statements made for the purpose of medical treatment; MRE 803(4); People v. Mahone; Reliability; People v. Meeboer; Sentencing; MCL 769.34(10); People v. Lockridge; People v. Schrauben; People v. Anderson; Clerical error
The court held that there was sufficient evidence to support defendant’s CSC and other convictions, that the admission of certain evidence was not erroneous, and that counsel was not ineffective for failing to object. It also rejected his sentencing challenge. He was convicted of CSC I, CSC II, gross indecency, and indecent exposure for sexually molesting his daughter when she was approximately three to seven years old. The trial court sentenced him as a fourth-offense habitual offender to 365 days in jail for indecent exposure and 8 concurrent terms of 47½ to 75 years in prison for the other convictions. On appeal, the court rejected his challenge to the sufficiency of the evidence to support some of his CSC convictions. As to CSC I, it noted that “at least two instances of penile-vaginal and at least two instances of penile-anal penetration were proven.” As to CSC II, it noted there were “at least two sexual touchings of [the victim’s] thighs with defendant’s penis.” The court also rejected his claim that the admission of a detective’s testimony about defendant’s credibility during a police interview was reversible error, and that his attorney was ineffective for failing to object. The “jury heard that defendant himself admitted to being only partially truthful” with the officer, and there was “no reasonable probability that the outcome of the trial would have differed if counsel had objected, . . . as the jury already heard [his] admission that he was not being entirely truthful.” It next rejected his contention that evidence of pornography in his home was improperly admitted, noting that a family friend’s testimony was cumulative to the testimony of the victim’s mother and thus, “no prejudice resulted from admission of the hearsay.” The court further rejected his argument that testimony by four witnesses about out-of-court statements made by the victim were inadmissible hearsay, and that the error was not harmless. In addition, the court rejected all of his related claims that defense counsel was ineffective for failing to object. Finally, his claim that his within guidelines sentences were unreasonable failed, and his clerical error claim was meritless. Affirmed.
Habeas corpus; § 2254(d); The Antiterrorism & Effective Death Penalty Act; Whether the state court’s refusal to give a jury instruction on self-defense violated petitioner’s Sixth & Fourteenth Amendment rights; “Contrary to” federal law; Estelle v. McGuire; Gilmore v. Taylor; Marshall v. Rodgers; Woods v. Donald; Crane v. Kentucky; Stevenson v. United States; Beck v. Alabama; Holmes v. South Carolina; California v. Trombetta; Webb v. Texas; Knowles v. Mirzayance; Cupp v. Naughten; Dowling v. United States; Early v. Packer; “Unreasonable application” of federal law; Greene v. Fisher; Williams v. Taylor; Renico v. Lett; Yarborough v. Alvarado; Eaglin v. Welborn (7th Cir.); Engle v. Issac; Nickerson v. Lee (4th Cir.); Stewart v. Winn; Taylor v. Withrow; Newton v. Million; Phillips v. Million; Parker v. Matthews; Lannert v. Jones (8th Cir,); Bradley v. Duncan (9th Cir.); Hagenno v. Yarborough (9th Cir.); Mathews v. United States; The law of the case doctrine; Arizona v. California; Burley v. Gagacki; Applicability to a certificate of appealability; Gonzalez v. Thaler; Fed.R.App.P. 27(c)
The court affirmed the district court’s denial of habeas relief to petitioner-Keahey, holding that the state court’s denial of a self-defense jury instruction was not contrary to, and did not unreasonably apply, Supreme Court precedent. Keahey was convicted in Ohio state court of attempted murder. He petitioned for habeas relief, arguing that the state court’s refusal to instruct the jury on self-defense violated his Sixth & Fourteenth Amendment rights. The state court had concluded that there was insufficient evidence to justify the instruction. To support his petition, Keahey had to show that the judge in his trial “not only misread state law but also misread it so badly that it violated the Sixth and Fourteenth Amendments. That’s not easy because ‘instructional errors of state law generally may not form the basis for federal habeas relief.’” The court rejected Keahey’s attempts to argue a federal right to a self-defense instruction and to allege the violation of principles of “fundamental fairness.” In Gilmore, the Supreme Court “rejected the argument that ‘the right to present a defense includes the right to have the jury consider it’ because ‘such an expansive reading of our cases would make a nullity of the rule . . . that instructional errors of state law generally may not form the basis for federal habeas relief.’” Moreover, the court found in Taylor “that ‘[t]here is no Supreme Court decision unmistakably setting down th[e] precise rule’ over what to do with a denied self-defense instruction under state law.” The court also rejected Keahey’s law-of-the-case argument, holding that the doctrine does not apply to certificates of appealability.
Dispute over the validity of a condo development; Joinder as a necessary party; MCR 2.205; MCR 3.411(H); Mason Cnty. v. Department of Cmty. Health; Skurski v. Gurski; Rockwood v. Hugg; Effect of misjoinder; MCR 2.207; Establishment of a condo project under the Condominium Act (MCL 559.101 et seq.); MCL 559.104(1) & 172(1); “Condo unit”; MCL 559.104(3); “Common elements”; MCL 559.103(7), 160, & 163; Compliance with the master deed, bylaws, & rules & regulations; MCL 559.165 & 206(1); Tuscany Grove Ass’n v. Peraino; Alteration of condo documents; MCL 559.147 & 190; Expenses; MCL 559.169; Easement; Michigan Dep’t of Natural Res. v. Carmody-Lahti Real Estate, Inc.; Standing; MCL 450.2221; Miller v. Allstate Ins. Co.; Intervention of right; MCR 2.209(A)(3); Permissive intervention; MCR 2.209(B); Timing; Kuhlgert v. Michigan State Univ.; Dean v. Department of Corrs.; WA Foote Mem’l Hosp. v. Department of Pub. Health; School Dist. of Ferndale v. Royal Oak Twp. Sch. Dist. No. 8; Karrip v. Cannon Twp.; Jurisdiction; Wayne Cnty. Chief Executive v. Governor; Altman v. Nelson; Colonial Vill. Townhouse Coop v. City of Riverview; Workers’ Comp. Agency Dir. v. MacDonald’s Indus. Prods., Inc.; Krohn v. Saginaw; Void ab initio; Kim v. JPMorgan Chase Bank, NA; Quality Mkt. v. Detroit Bd. of Zoning Appeal; Declaratory judgment; MCR 2.605; UAW v. Central MI Univ. Trs.
The court held that the trial court abused its discretion by denying appellant-condo association’s motion to intervene, but did not err by denying appellant-township’s motion. It also held that the trial court lacked jurisdiction to declare any portion of the condo development void ab initio, but had jurisdiction over defendants’ other claims. Plaintiff-developer sued defendants-owners seeking to recover possession of one of their three units by forfeiture of the parties’ land contract for nonpayment. Defendants countersued alleging trespass and constructive eviction during the construction of phase II of the project. The trial court entered an order removing their units from the development, granting them an easement over the common elements, and ordering them to pay the developer’s attorney fees. It also denied the township’s and association’s motions to intervene. On appeal, the court agreed with the association that it was a necessary party, noting that, “contrary to the trial court’s reasoning, the [a]ssociation had a ‘real interest in the litigation,’” and was “a party whose presence was required to grant complete relief in the determination of” defendants’ counterclaims. Considering its “rights to the common areas over which [defendants] were granted an easement, as well as [its] interests in the enforcement of the condominium documents and the Condominium Act against all co-owners, including” defendants, the association was “a party ‘having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief.’” As such, it “qualified as a necessary party that should have been joined to the case.” In addition, there was no merit to defendants’ standing argument. However, "given the township’s earlier involvement in the case, its clear knowledge of the issues in dispute in the main action, its ‘hands off approach’ and efforts to be dismissed from the case, and its failure to file a motion to intervene until after entry of the judgment, the trial court did not abuse its discretion by denying” its motion. Finally, the court found that the trial court had jurisdiction over defendants’ claims for breach of contract, fraud, and violation of the Condominium Act. It was also “not persuaded” by the association’s contention that monetary damages were necessarily defendants’ only possible remedy. Affirmed in part, vacated in part, and remanded.
Slip & fall after boarding a bus; Governmental immunity; MCL 691.1407(1); The motor vehicle exception; MCL 691.1405; “Negligent operation” of a motor vehicle; Seldon v. Suburban Mobility Auth. for Reg’l Transp.; Chandler v. Muskegon Cnty.; Martin v. Rapid Inter-Urban Transit P’ship; Effect of a Supreme Court order; DeFrain v. State Farm Mut. Auto. Ins. Co.; Sudden jerks or jolts in stopping to let off & take on passengers & in starting; Sherman v. Flint Trolley Coach; Ottinger v. Detroit United Ry.; Selman v. Detroit; Elements of a negligence claim; Riddle v. McLouth Steel Prod. Corp.; Moning v. Alfono; Blackwell v. Franchi; Principle that carriers of passengers for hire are held to the exercise of the highest degree of care & skill & diligence practically consistent with the efficient use & operation of the mode of transportation adopted; Moore v. Saginaw, T & HR Co.; Trent v. Pontiac Transp. Co.; Takacs v. Detroit United Ry.; Wood v. Detroit; Whether governmental immunity is an affirmative defense; Mack v. Detroit
While the court concluded that the bus at issue was being operated as a motor vehicle at the time plaintiff slipped and fell, it held that he did not “establish a genuine issue of material fact that his injuries arose from the negligent operation of the bus” and thus, he failed to meet MCL 691.1405’s requirements. As a result, the trial court erred in denying defendant-SMART’s motion for partial summary disposition based on governmental immunity. The court first concluded on appeal that the bus “was being operated as a motor vehicle because it was being driven as it provided transportation services to the public, specifically driving away from the curb after picking up plaintiff and his wife, when plaintiff allegedly fell as the bus suddenly accelerated while plaintiff was standing on a wet and slippery portion of the bus floor.” The issue then became whether the bus was negligently operated. The court found that the issue before it was “whether negligence can be shown by the sudden start in combination with the presence of the wet and slippery floor hazard where plaintiff” alleged that those circumstances combined caused his fall. As in Selman, there was no evidence that defendant-Lewis (the bus driver) or SMART knew about the wet and slippery area of floor before plaintiff fell or that it “had been wet and slippery for such a length of time that Lewis or SMART should have had notice or knowledge of its existence.” Thus, the trial court erred in “presuming a question of fact regarding SMART’s negligence solely from the existence of the wet condition and plaintiff’s fall.” Further, while the trial court relied on Ottinger, the court found that case distinguishable. It concluded that “plaintiff’s failure to establish a genuine issue of material fact that Lewis or SMART knew or should have known about the wet condition was fatal to” his claim even though common carriers are held to a higher standard of care. As to his contention that Lewis should have known because it was his duty to know, the cases on which he relied, Wood and Trent, were distinguishable. Further, his argument that governmental immunity is an affirmative defense failed in light of Mack. Reversed and remanded.
Auto negligence; MCL 500.3135(1); McCormick v. Carrier; “Serious impairment of body function”; MCL 500.3135(5); Existence of a genuine issue of material fact; Patrick v. Turkelson; Absence of an express temporal requirement; Piccione as Next Friend of Piccione v. Gillette; Defendants’ reliance on McDanield v. Hemker
Concluding that genuine issues of material fact existed as to “the extent and nature of plaintiff’s injuries, limitations, and ability to lead his normal life[,]” the court reversed summary disposition for defendants and remanded. The record showed “significant contradictions” about the extent and nature of his injuries from the 10/17 accident. Hospital ER records indicated “x-rays taken the day of the accident show plaintiff suffered a three-millimeter fracture to his left elbow. This diagnosis was largely confirmed the next day” in a follow-up appointment with a doctor (G). Further, records from an ER visit as recently as 11/18 also stated he “continued to experience pain when using his left arm.” But his medical records also showed, “even the day after the accident, that plaintiff experienced a normal range of motion with his left elbow and did not require an arm sling for comfort. At a follow-up appointment a month after the accident, the case notes” indicated a full range of motion in his left elbow without pain or discomfort. In light of the contradictory evidence, the trial court erred in proceeding “to address, as a matter of law, the question of whether plaintiff suffered a serious impairment of body function.” The court found that it further “erred by applying the wrong legal standard in assessing the third prong of the McCormick test and” that application of the correct standard showed the existence of a genuine issue of material fact “whether plaintiff’s impairment affects his ability to lead his normal life.” He was self-employed as a handyman at the time of the accident. His medical records revealed “he was unable to work, at all, for a week and” G directed him to limit some “activities for at least two months after the accident.” Records from his 11/18 ER visit indicated he continued “to experience pain in his left elbow and arm, especially when putting pressure on the area. According to plaintiff’s deposition testimony and interrogatory answers, this continued pain required him to self-limit and restrict work and everyday activities after the accident.” In addition, although the time period his “impairment affected his ability to lead his normal life could be as short as two months, or even a week, after the accident, an impairment need not be permanent.”
Auto negligence; MCL 500.3135(1) & (2); “Serious impairment of body function”; MCL 500.3135(5); McCormick v. Carrier; Aggravation of a pre-existing condition; Wilkinson v. Lee; Factual & legal causation requirements; Ray v. Swager; Inadequacy of a causation theory based only on slight evidence; Skinner v. Square D Co.; Mental or emotional injuries as an impairment of body function; Luce v. Gerow
Concluding that plaintiff did not establish an objective impairment of body function and thus, was unable to recover for defendant-driver’s alleged auto negligence, the court affirmed summary disposition for defendant. While backing up, defendant struck a parked vehicle in which plaintiff was a passenger. Plaintiff alleged several impairments – “(1) re-injury to her left knee and left-knee replacement, associated swelling, loss of range of motion, and functional difficulties; (2) acute aggravation of pre-existing neck and back strain; (3) aggravation of sleep dysfunction and nightmares; (4) aggravation of PTSD and associated symptoms; and (5) MRI-confirmed small nonspecific 9 mm defined T1 hypointense/T2 hyperintense lesion with joint effusion.” However, the court held that she did not offer objective evidence that the “accident caused any of these alleged impairments, either physical or mental, in order to establish tort liability.” There was no medical evidence that her back and neck strain “were objectively issues after the accident.” While she testified that they were aggravated after it, she did not have “any tests, scans, or x-rays relating to these alleged aggravations.” There was no mention in the objective medical record after the accident of her “back or neck being a source of concern after the accident, let alone any back or neck pain caused by the accident. Plaintiff’s mere subjective complaints” were insufficient. Further, there was no evidence that her complaints of left knee pain and buckling that led to the MRI being done were related to the accident. The record showed she had “chronic knee pain since 1997, and that her knees had deteriorated so badly that both required a total replacement.” Further, while the objective medical record mentioned the accident, her “subjective complaints of setbacks” in her recovery from the left knee replacement and increased pain after the accident were not supported objectively. A medical exam right after the accident showed no harm to the artificial knee. There was also no evidence that the accident caused “her difficultly sleeping, nightmares, and PTSD symptoms[.]” The court noted that she did not allege the accident caused these issues, but rather “stated that defendant’s behavior after the accident” aggravated her nightmares and PTSD.
Easement by necessity; Charles A Murray Trust v. Futrell; Goodman v. Brenner; Schmidt v. Eger; Location; Wanbun Beach Ass’n v. Wilson; Balancing the easement holder’s reasonably necessary & convenient enjoyment of their property while imposing as little burden on the servient estate as possible; Frey v. Scott; Michigan Department of Environmental Quality (MDEQ)/Michigan Department of Environment, Great Lakes & Energy (EGLE)
Concluding that the trial court did not err in ordering the location of the easement by necessity where it did, the court affirmed its ruling that the easement must occur along the northern or southern border (rather than the center) of defendant-Hawkins’ property. Plaintiffs requested that the easement be located through the center of the property by using and extending an existing forest trail. They asserted that the routes at the northern or southern border were “not convenient routes, but unusable because of wetland regulations.” They relied on the opinion of a wetlands expert (R) who authored a report defendants presented to the trial court. But his report did not support their request. Rather, R “concluded that the MDEQ would prefer not to disrupt the wetland environment, and therefore, the agency would recommend that plaintiffs obtain a permit to continue to access their parcel through federal lands.” He also opined that this option was the most cost-effective. While representations were made about “what the MDEQ, now EGLE, would allow, administrative hearings involving EGLE were occurring, yet plaintiffs did not present documentary evidence to contest” R’s opinion. Thus, they did not show that the routes the trial court selected were inconvenient when compared to their request. They also failed to offer documentary evidence supporting their assertion “that the use of the existing forest trail would not be expensive.” R opined that it “would minimally cost over $200,000 to make the necessary improvements to” the forest trail. Further, the court rejected plaintiffs’ claim “that the trial court did not grant practical access and misapplied equity.” Hawkins used his property for recreational activities, including hunting and skiing. “He created a forest trail that led to his cabin” and had deer blinds off the trail. Thus, he “and his guests would be traversing the trail to engage in these outdoor activities.” There was far less likelihood of a hunting or skiing accident by placing the easement “at the northern or southern border as opposed to the middle of” his property. In addition, the trial court did not award “Hawkins’ rights to the detriment of plaintiffs’ access. Rather, the easement by necessity required balancing plaintiffs’ reasonably necessary and convenient enjoyment of their property while imposing as little burden on” his property as possible.
Dispute over the disbursement of a trust; Settlor’s intent; In re Estate of Herbert Trust; Bill & Dena Brown Trust v. Garcia; In re Miller Osborne Perry Trust; Principle that the terms of the trust prevail over any provision of the Michigan Trust Code (MCL 700.7101 et seq.) with certain enumerated exceptions; MCL 700.7105; Effect of revocability; MCL 700.7603(1); MCL 700.7820a
In this dispute over disbursement of a trust, the court held that the probate court did not err by denying appellant’s motion for reconsideration of the trial court’s order granting summary disposition for appellee, or by granting sanctions against him. Appellant and appellee are siblings. He alleged that appellee failed to follow the terms of two trusts (EJA and Lakeside) regarding disbursement. The trial court granted summary disposition for appellee, finding that “if appellee as the trustee had the authority to amend the Lakeside Trust, then she had the ‘inherent authority of the settlor to distribute trust assets contrary to their terms as set forth in [MCL 700.7808].’” It also found she made the distribution appropriately under both trusts. It denied appellant’s motion for reconsideration and awarded appellee attorney fees. On appeal, the court rejected appellant’s argument that the trial court erred by granting summary disposition for appellee. “[A]pplication and enforcement of the amendment to the Lakeside Trust would have violated MCL 700.1820a by materially changing the beneficial interests of the beneficiaries of the EJA Trust, the terms of which controlled the final distribution.” Similarly, there was no merit to appellee’s arguments “because she had the obligation to comply with the terms of the EJA Trust which controlled the beneficiary trust and established the beneficial interests of the beneficiaries which could not be materially changed by the Lakeside Trust in the manner of her amendment to it.” Nevertheless, she “correctly distributed the assets of the Lakeside Trust.” Further, the trial court “did not err by denying appellant’s motion for reconsideration which made a legally defective argument and failed to demonstrate that the trial court committed a palpable error requiring a different disposition of the case.” Because there was no merit to his motion for reconsideration, the trial court did not err in awarding appellee costs and attorney fees. Affirmed.