Case evaluation sanctions; Award of attorney fees in an amount greater than what defendants’ counsel was actually paid; A “reasonable attorney fee”; MCR 2.403(O)(6)(b); Cleary v Turning Point; Failure to hold an evidentiary hearing on the request for case evaluation sanctions; Effect of the trial court’s failure to follow the analysis required in Smith v Khouri

The court held that the trial court did not abuse its discretion by awarding attorney fees in an amount greater than what defendants’ counsel was actually paid. It also did not abuse its discretion by failing to conduct an evidentiary hearing on defendants’ request for case evaluation sanctions. Finally, the trial court’s failure to specifically discuss any of the Smith factors in reaching its decision was harmless error under the specific circumstances of this case. As to plaintiff’s challenge to the amount awarded, the court noted that defendants’ “counsel billed for 765.7 hours. Using that number, the $115,000 award would calculate to a rate of just over $150 for all 765.7 hours, or $158.46 per hour with the removal of 40 hours for postverdict evaluations. Defendants’ motion for sanctions set forth the professional standing and experience of each of the attorneys who billed hours on the case and set forth a reasonable fee. In addition, attached to defendants’ amended bill of costs were” attorney affidavits “setting forth their qualifications and stating that the rates of $450 for senior partners, $350 for partners, and $200 for associates were reasonable.” There was no evidence to support plaintiff’s claim that $160 per hour or $115,000 was “an amount greater than either the amount actually charged or the amount the insurance company actually paid.” The court was “aware that some of the lack of evidence resulted from the trial court’s determination that plaintiff was not entitled to know the rates and total amount of attorney fees charged by defendants’ counsel and ultimately paid by the insurance company.” But these numbers were not required to decide a reasonable fee. The court noted that reasonable fees under MCR 2.403(O) “are not equivalent to the actual fees charged.” Thus, to the degree that there was “any record evidence to support that the trial court’s award of $115,000 was greater than the amount defendants’ counsel charged or received from the insurance company, that evidence is not sufficient, by itself, to justify a determination that the trial court abused its discretion.”