Herrera v. Levine

In Herrera v. Levine, 176 Mich App 350, 357; 439 NW2d 378 (1989), the circuit court called the case for trial after it had been on standby for trial for ten months and, because the plaintiffs were unable to proceed to trial, the court dismissed the case with prejudice, awarding costs to the defendant. Id. at 355. On appeal, the plaintiffs challenged the trial court's award of $ 1,500 in costs to the defendant, arguing that the complaint was dismissed before trial, and that no testimony was taken from the defense experts at trial or otherwise. Id. at 356. The Court upheld the award of $ 1,500, noting that: The language "is to appear" in 2164 applies to the situation at bar in which the case was dismissed before defendant had a chance to call its proposed expert witnesses at trial. Furthermore, the trial court was empowered in its discretion to authorize expert witness fees which included preparation fees. Fireman's Fund American Ins Cos v. General Electric Co, 74 Mich App 318, 329; 253 NW2d 748 (1977). The trial court's award of $ 1,500 in costs was approximately half of the amount requested by defendant as costs for the preparation fees of his expert witnesses, notwithstanding that neither the fact nor the amount of those expenses was challenged by plaintiffs. We find that the award of $ 1,500 in costs was proper even if the trial court had considered only the expenditure for expert witnesses. Herrera, supra at 357-358. Under Herrera, the circuit court could properly order enhanced compensation under the statute for the expert witness' preparation.