Taxing costs; MCR 2.625(F)(3); Whether an objection was timely; Whether a late objection can be considered; Theophelis v Lansing Gen Hosp; Harmless error; MCR 2.613(A); Prejudice; What costs were taxable; Expert witness’s trial preparation when there was no trial; MCL 600.2164(1); Carlsen Estate v Southwestern MI Emergency Servs PC; Home-Owners Ins Co v Andriacchi; Survey costs; Sundry costs under MCL 600.2441

The court held that the trial court erred in considering plaintiffs’ untimely objection to defendants’ bill of costs, but the error was harmless because the costs incurred to obtain the property surveys were not taxable. It also concluded that the trial court abused its discretion in failing to tax $40 in sundry costs. The case involved a property dispute. After a joint survey undertaken pursuant to a court order, the trial court granted defendants summary disposition. While plaintiffs’ motion for reconsideration was pending, defendants filed a bill of costs that “included sundry costs under MCL 600.2441 ($20 for proceedings before trial and $20 for a motion resulting in a dismissal or judgment); disbursements under MCL 600.2529 ($40 for motion fees); and ‘other costs’ consisting of $3,200 for” surveys they obtained before the litigation (the True North surveys), $2,399 for their half of the court-ordered survey, and $300 for their share of mediation. The trial court awarded them $340. On appeal, the court concluded that even if the bill of costs could have been stayed until the trial court ruled on plaintiffs’ reconsideration motion, as the trial court suggested, their objection was still untimely. Defendants cited Theophelis for “the proposition that late-filed objections to a bill of costs cannot be considered.” While that decision was vacated, the court found that its “reasoning, which was rooted in the court rule’s plain language, was sound.” But it determined that the procedural error here did “not independently warrant appellate relief.” It held that, even if the case had gone “to trial, the True North surveyor would not have earned an expert witness fee” given that there was no evidence “the surveys were in anticipation of litigation, or that testimony preparation occurred[.]” Further, the parties later “agreed that they would rely on the independent joint survey.” No statutory authority supported taxing costs for the True North surveys. And defendants’ portion of the “joint survey was not a taxable cost because it was incurred pursuant to a court order” reflecting the parties agreed to be equally responsible for the cost. As to the sundry costs, the trial court provided no reason for denying them. Affirmed in part and remanded for entry of an amended order.