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Michigan Law of Damages and Other Remedies

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Current to 01/24/14

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I. Overview §26.1 The legislature permits the victims of some wrongdoing to recover double or treble damages. The wrongdoing may be criminal, such as odometer fraud or concealing stolen property. It may be tortious, such as forcible ejection or waste. Or it may be a breach of a contractual obligation, such as the refusal to honor a mobile home warranty or the failure to return a security deposit. In many instances the wrongdoing takes the form of a violation of a regulatory statute, such as the Motor Vehicle Service and Repair Act, MCL 257.1301 et seq.; the Polygraph Protection Act of 1981, MCL 37.201 et seq.; and the railroad regulation act, MCL 462.2 et seq. Some multiple damages statutes predate statehood; others have been enacted by the legislature in more recent years. II. General Principles A. Historical Background §26.2 The first multiple damages statute may have been the Statute of Gloucester, enacted in 1278, fixing the punishment for waste at forfeiture and treble damages. See Camden Trust Co v Handle, 132 NJ Eq 97, 26 A2d 865 (1942). Since the early days of Michigan’s jurisprudence, multiple damages statutes have been held constitutional, whether or not the conduct to which they apply is defined as a willful wrong. Lane v Ruhl, 103 Mich 38, 61 NW 347 (1894) (statute authorizing treble damages in action to recover possession of premises is constitutional; treble damages may be awarded despite defendant’s good faith); Shepard v Gates, 50 Mich 495, 15 NW 878 (1883) (statute authorizing treble damages for injuries to highways and bridges is constitutional; it applies only to active misconduct and not to mere negligence). B. Conduct Resulting in Multiple Damages §26.3 The Michigan Supreme Court has described three common statutory patterns of conduct imposing liability for multiple damages: We have a number of statutes conferring the right to double or treble damages. By the terms of certain of them, the act done must be willful; others, after giving the right in general terms, provide that if it appear that the act was casual or involuntary, single damages only are recoverable; while others provide in general terms for the recovery, and do not in express terms make such recovery dependent upon the willfulness of the act, or except instances of casual or involuntary conduct. Lane v Ruhl, 103 Mich 38, 39, 61 NW 347 (1894). If the statutes provide no indication of whether http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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liability for multiple damages is mandatory or discretionary, these damages, being punitive in nature, should be imposed only in cases of willful or flagrant conduct. Heath v Alma Plastics Co, 121 Mich App 137, 328 NW2d 598 (1982) (violation of minimum wage law). The language of the particular statute is controlling, however. It is within the legislature’s power to impose multiple damages for intentional conduct without requiring a showing of malice or bad faith. Kenneth Henes Special Projects Procurement, Mktg & Consulting Corp v Continental Biomass Indus (In re Certified Question), 468 Mich 109, 659 NW2d 597 (2003). C. Pleadings §26.4 It is important for the plaintiff to allege all facts necessary to prove multiple damages under a particular statute. The plaintiff’s complaint should refer to the statute and demand double or treble damages, as provided in the statute. 2 Michigan Pleading and Practice §22.73 (2d ed rev 1995). See MCR 2.112(H) (pleading a statute) and MCR 2.112(I) (pleading special damages). A plaintiff’s negligence may be a defense under some multiple damages statutes. See, e.g., United States Fire Ins Co v Grand Trunk W Ry Co, 344 Mich 270, 73 NW2d 905 (1955) (contributory negligence defense; violation of railroad act). D. Derivative Actions §26.5 Violations of statutes providing for multiple damages may support a derivative cause of action for loss of consortium. Ledsinger v Burmeister, 114 Mich App 12, 318 NW2d 558 (1982) (public accommodations law); Rivers v Ex-Cell-O Corp, 100 Mich App 824, 300 NW2d 420 (1980) (malicious prosecution). Whether damages for loss of consortium may be multiplied depends on the language of the particular statute. Id. E. Exemplary Damages §26.6 In Camaj v SS Kresge Co, 426 Mich 281, 393 NW2d 875 (1986) (malicious prosecution), the Michigan Supreme Court left unresolved a conflict among panels of the court of appeals as to whether a verdict that includes exemplary damages may be trebled. Cases on both sides are cited in the Camaj opinion of the court of appeals, 143 Mich App 604, 372 NW2d 359 (1985). F. Repeal of a Multiple Damages Statute After a Verdict §26.7 If a multiple damages statute is repealed after a verdict but before judgment is entered, multiple damages may not be recovered. Bay City & East Saginaw RR Co v Austin, 21 Mich 390 (1870) (failure to maintain fence along railroad line); Bejger v Zawadzki, 252 Mich 14, 232 NW 746 (1930) (dog bite statute). But see Hurt v Michael’s Food Ctr, 249 Mich App 687, 644 NW2d 387 (2002) (repeal of statute does not take away vested right, which remains enforceable despite repealer, overruling Bejger in part by implication). G. Interest §26.8 Interest recoverable as an element of damages also may be doubled or trebled. Gates v Comstock, 113 Mich 127, 71 NW 515 (1897) (trebling interest on diminution in value of plaintiff’s property); Lane v Ruhl, 103 Mich 38, 61 NW 347 (1894) (trebling interest on rent due plaintiff). However, costs may not be multiplied. MCR 2.625(I)(3). Under the judgment interest statute, MCL 600.6013, the judgment for double or treble damages earns judgment interest on the full amount from the date the complaint is filed to the date the judgment is satisfied. Bass v Spitz, 522 F Supp 1343 (ED Mich 1981) (malicious prosecution); Meehan v Michigan Bell Tel Co, 174 Mich App 538, 436 NW2d 711 (1989) (same). MCL 600.6013(8) directs that in medical malpractice actions arising on or after March 28, 2013, interest on costs or attorney fees awarded under a statute or court rule is not to be calculated for any period before the entry of the judgment. 2012 PA 609. http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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III. Double Damages A. Embezzlement or Conversion of a Deceased Person’s Property §26.9 One who embezzles or wrongfully converts the money, goods, chattels, or effects of a deceased person before letters of authority are granted, or who refuses without colorable claim of right to transfer possession of the deceased person’s property to the personal representative upon demand, is liable for double the value of the property embezzled, converted, or withheld. MCL 700.1205(4). The action must be brought by the personal representative of the estate for the benefit of the estate. Id. In an action for double damages under a similar statute, now repealed, judgment for the defendant was held to be proper when the plaintiff was not the personal representative of the decedent’s estate. Glover v Glover, 18 Mich App 323, 171 NW2d 51 (1969). The doubling of damages is mandatory rather than discretionary. Heath v Alma Plastics Co, 121 Mich App 137, 144, 328 NW2d 598 (1982) (also interpreting similar statute that has now been repealed). B. Failure to Pay Earned Sales Commissions §26.10 Remedies, including double damages, are available to terminated sales representatives who are not paid earned commissions. Under the Sales Representatives’ Commission Act (SRCA), MCL 600.2961, all commissions that are due at the time the contract between the sales representative and the principal is terminated must be paid within 45 days of the termination. Commissions that become due after the termination date must be paid within 45 days after the date on which the commissions become due. If the principal intentionally fails to pay the commission when due, the principal is liable for actual damages plus an additional payment equal to two times the amount of commissions not paid or $100,000, whichever is less. Id.; see also Peters v Gunnell, Inc, 253 Mich App 211, 655 NW2d 582 (2002) (no finding of bad faith was required for the assessment of penalty damages); HJ Tucker & Assocs v Allied Chucker & Eng’g Co, 234 Mich App 550, 555–556, 595 NW2d 176 (1999). In addition to these damages, the court is required to award a reasonable attorney fee to a prevailing party in an action brought under this section. A party is the prevailing party if it prevails on at least one theory. Tucker, 234 Mich App at 560–561. The statute calls for actual damages plus a single double-commissions penalty, not a penalty on each unpaid commission. In other words, the defendant may be held liable for one single penalty of double the amount of commissions due up to $100,000 in addition to the actual damages sustained by the plaintiff. Thus, in Kenneth Henes Special Projects Procurement v Continental Biomass Indus, 86 F Supp 2d 721 (ED Mich 2000), aff’d, No 00-1267, 2003 US App LEXIS 13252 (6th Cir June 26, 2003) (unpublished), the correct calculation of damages was the total amount of commissions owing to plaintiff on each count ($12,493 + $35,000 + $50,200 + $37,500, for a total of $135,193), and, since doubling that amount would exceed $100,000, an additional $100,000 penalty. The court in Linsell v Applied Handling, Inc, 266 Mich App 1, 697 NW2d 913 (2005), agreed with and adopted the reasoning in Kenneth Henes: damages pursuant to the penalty provision in MCL 600.2961(5)(b) are limited to a single award of double the amount of commissions due but unpaid or $100,000, whichever is less. A principal may not exceed the 45 days for payment of sales representative commissions required by MCL 600.2961(4) for the purpose of ensuring it receives property owed it by the sales representative. The statute provides only for payment of the commissions due within the statutory period and does not make exceptions for deductions for amounts that might later be deemed owed to the principal. Peters, 253 Mich App 211. In Peters, defendant failed to pay plaintiff the commission owed because it wanted to ensure plaintiff’s return of defendant’s equipment. The court found this impermissible under the statute. It also found that defendant’s withholding of plaintiff’s commissions was intentional, subjecting defendant to penalty damages under MCL 600.2961(5)(b). Defendant also was ordered to pay fees and costs to plaintiff, the prevailing party. A provision in a contract between a principal and a sales representative that purports to waive any rights under this statute is void. MCL 600.2961(8). In Walters v Bloomfield Hills Furniture, 228 Mich App 160, 577 NW2d 206 (1998), the court examined a contract provision between the parties that cut off plaintiff’s right to any commission on furniture he sold that was delivered after his termination. The http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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court found that if the provision would prevent plaintiff from receiving commissions he was owed, it would be contrary to the portion of the statute concerning post-termination receipt of commissions and would be void. The court remanded for resolution of disputed issues. But note that in Reicher v SET Enters, 283 Mich App 657, 770 NW2d 902 (2009), the court found that a settlement agreement compromising a disputed SRCA claim falls outside the scope of the SRCA provision precluding a “provision in a contract between a principal and a sales representative purporting to waive any right under” the SRCA. MCL 600.2961(8). As a result, the court held, the SRCA does not void the waiver of a claim to SRCA penalty damages and attorney fees contained in a settlement agreement. The court then turned to the terms of the settlement agreement at issue to determine whether the release contained in that agreement barred plaintiff’s subsequent effort to collect penalty damages and attorney fees under the SRCA. The court found that it did. C. Misrepresented Pullets §26.11 Sellers of certified started pullets who misrepresent their age, condition, or state of health are liable to the buyer for twice the damages suffered. MCL 287.175. D. Arrest of an Exempt Person §26.12 One who makes or procures the civil arrest of a person statutorily exempt from arrest is liable for double the damages sustained by the person arrested. The doubling of damages is mandatory. Heath v Alma Plastics Co, 121 Mich App 137, 144, 328 NW2d 598 (1982). However, an officer or any other person making the arrest is not liable for damages if the person exempt from arrest fails to claim the exemption. MCL 600.1821. E. Waste by a Tenant of an Estate in Land §26.13 A tenant who “commits or suffers” any waste to an estate in land is liable for double the amount of actual damages. MCL 600.2919(2). Potentially liable parties under the statute include life tenants, tenants for years, joint tenants, and tenants in common. The statute has been construed as providing for liability for physically damaging land and structures and probably for removing equipment without authorization, but not for failing to pay taxes or losing a commercial use of the premises. Stevens v Mobil Oil Corp, 412 F Supp 809 (ED Mich 1976), aff’d, 577 F2d 743 (6th Cir 1978). Damages for waste generally are measured by the diminution in value of the property resulting from the waste. Alternatively, damages can be measured by the cost of restoring the property if the damage is easily reparable and the cost of repair is readily ascertainable. Annotation, Measure of Damages in Landlord’s Action for Waste Against Tenant, 82 ALR 2d 1106. Many jurisdictions draw a distinction between commissive (voluntary, active) waste and permissive (negligent, passive) waste, and limit multiple damages to the former category. Dorsey v Speelman, 1 Wash App 85, 459 P2d 416 (1969); Annotation, Construction and Effect of Statutory Provision for Double or Treble Damages Against Tenant Committing Waste, 45 ALR 771. In Michigan, the statutory language “commits or suffers” provides that double damages are recoverable whether the waste is commissive or permissive in nature. See the Committee Notes to MCL 600.2919. On the other hand, the court in Heath v Alma Plastics Co, 121 Mich App 137, 144, 328 NW2d 598 (1982), said that multiple damages are available only when the waste is willful and flagrant. F. Failure to Return a Security Deposit §26.14 Under the Landlord and Tenant Relationships Act, MCL 554.601 et seq., a landlord who fails either to return a security deposit or to commence an action for damages within 45 days after the tenant terminates occupancy is liable for double the amount of the security deposit retained. MCL 554.613. For a case in which double the security deposit amount was awarded to a former tenant because the landlord retained a security deposit but failed to bring suit within 45 days after the tenant terminated occupancy, see Hovanesian v Nam, 213 Mich App 231, 539 NW2d 557 (1995). G. Violation of the Minimum Wage Law http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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§26.15 An employer who pays less than the amount mandated by the Minimum Wage Law of 1964, MCL 408.381 et seq., is liable for the difference between the amount paid and the minimum wage and an equal additional amount as “liquidated damages,” together with reasonable attorney fees. MCL 408.393. The liquidated damages are punitive in nature and may be imposed only for willful or flagrant violations. Heath v Alma Plastics Co, 121 Mich App 137, 144, 328 NW2d 598 (1982). The court may deny liquidated damages if the act or omission giving rise to the cause of action was made in good faith and the employer had reasonable grounds to believe it was not violating the minimum wage law. Saginaw Firefighters Ass’n, Local 422 v Saginaw, 137 Mich App 625, 357 NW2d 908 (1984). This interpretation is consistent with the Wages and Fringe Benefits Act, MCL 408.471, which provides that if the employer flagrantly or repeatedly violates the act, the Department of Labor is authorized to order the employer to pay an employee “exemplary damages” equaling twice the amount of wages and fringe benefits due. MCL 408.488. H. Violation of the Motor Vehicle Service and Repair Act §26.16 A person who suffers damage or injury as a result of a willful and flagrant violation of the Motor Vehicle Service and Repair Act, MCL 257.1301 et seq., may recover double damages, plus reasonable attorney fees. MCL 257.1336. Presumably, damages can include recovery for personal injuries and property damage suffered in a collision resulting from misrepresented repairs. See, e.g., Hengartner v Chet Swanson Sales, Inc, 132 Mich App 751, 348 NW2d 15 (1984) (reversing grant of defendant’s motion for summary judgment). I. Violation of the Polygraph Protection Act §26.17 An employee discharged in violation of the Polygraph Protection Act of 1981, MCL 37.201 et seq., shall recover double the wages lost due to the discharge and also is entitled to recover reasonable attorney fees. MCL 37.207. The Michigan Court of Appeals has said that similar language in a predecessor statute clearly provided that double damages were mandatory rather than discretionary. Heath v Alma Plastics Co, 121 Mich App 137, 144, 328 NW2d 598 (1982). J. Violation of the Railroad Regulation Act §26.18 A common carrier that violates the provisions of the railroad regulation act, MCL 462.2 et seq., is liable for double the amount of damages sustained as a result of the violation. MCL 462.19. Damages for excessive rates generally are measured by the amount of money exacted in excess of what was authorized by law, plus interest. Gorham Bros Co v Ann Arbor RR Co, 228 Mich 273, 200 NW 287 (1924). However, if discriminatory rates ruined the plaintiff’s business as a going concern and forced the plaintiff to liquidate the property at a loss, damages may be measured by the difference between the true value of the property and the sale price received. Federal Gravel Co v Detroit & Mackinac Ry Co, 263 Mich 341, 248 NW 831 (1933). The doubling of damages under this statute is discretionary and should not be done absent malicious purpose or intentional misconduct on the part of the defendant, Gorham Bros, 228 Mich at 286, or if the defendant believed it was operating within its legal rights, Federal Gravel, 263 Mich at 365. But see Heath v Alma Plastics Co, 121 Mich App 137, 144, 328 NW2d 598 (1982) (suggesting, without consideration of authority, that this statute makes liability for multiple damages mandatory). K. Payment of Dishonored Check or Order for Payment §26.19 A maker of a check or other order for payment who fails to make payment on the payee’s written demand after the check or order for payment has been dishonored and who has been found responsible for payment in a civil action is liable to the payee for (1) the full amount of the check, draft, or order; (2) civil damages of two times the amount of the dishonored check, draft, or order or $100, whichever is greater; and (3) costs of $250. MCL 600.2952(4). If the maker pays the amount due plus a processing fee and reasonable costs before trial, he or she may avoid payment of the double damages. The statute does not apply to lawsuits by “payday lenders” (those seeking to collect on checks given to them by payday loan companies to repay loans) based on checks dishonored for insufficient funds, in http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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light of the Deferred Presentment Service Transactions Act, MCL 487.2122 et seq.Michigan Deferred Presentment Servs Ass’n, Inc v Ross, 287 Mich App 326, 788 NW2d 842 (2010). L. Damage to Research Crops §26.20 If a person intentionally damages or destroys all or part of a field crop that is produced for crop research or testing purposes, the plaintiff crop owner is entitled to damages of twice the market value of the field crop damaged or destroyed, along with costs and fees and, if applicable, the value of the crop research or testing. MCL 600.2973. IV. Treble Damages A. Conversion of Logs §26.21 Under an 1846 statute still in effect, one who converts floating or drifting logs or planks without the owner’s consent is subject to treble damages. MCL 426.174. Another statute imposes treble damages against any person who interferes with marks on floating logs, timber, or lumber. MCL 426.156. B. Odometer Fraud §26.22 One who furnishes a false odometer reading or alters a vehicle’s odometer mileage, with the intent to defraud, is liable for three times the amount of actual damages sustained or $1500, whichever is greater, plus reasonable attorney fees. MCL 257.233a(15). In Harvey Cadillac Co v Rahain, 204 Mich App 355, 514 NW2d 257 (1994), the trial court entered a default judgment in the plaintiff’s favor on a claim for odometer fraud and awarded damages and attorney fees pursuant to MCL 257.233a(15) and 15 USC 1989(a)(1) (now 49 USC 32710(a)). However, the court found that an award of damages and attorney fees in a default judgment fell within the court’s discretion and refused to treble the damages and award attorney fees for a related garnishment, injunction, and bond. The court of appeals reversed that portion of the opinion, ruling that the trial court erred in failing to award the treble damages and attorney fees when both the Michigan and federal statutes clearly provide for recovery of treble damages, costs, and reasonable attorney fees when odometer fraud is committed. C. Transactions in Stolen, Embezzled, or Converted Property §26.23 A person damaged as a result of either (1) another person’s stealing or embezzling property or converting property to the other person’s own use, or (2) another person’s buying, receiving, possessing, concealing, or aiding in the concealment of stolen, embezzled, or converted property when the person knew that the property was stolen, embezzled, or converted may recover three times the amount of actual damages sustained, plus costs and reasonable attorney fees. MCL 600.2919a. Under this statute the damages remedy is three times the amount of actual damages sustained, not treble damages in addition to actual damages. Thus, in New Props v Newpower, 282 Mich App 120, 762 NW2d 178 (2009), where actual damages were $100,000, plaintiffs were entitled to an award of $300,000, not $100,000 plus $300,000. MCL 600.2919a was enacted to allow the victim of a theft or embezzlement to bring a civil action for treble damages against the “fence” or person who bought, received, or concealed the stolen property. As originally enacted, the statute did not specifically mention that an action could be brought against the person who committed the original theft, and in Marshall Lasser, PC v George, 252 Mich App 104, 112, 651 NW2d 158 (2002), the court of appeals ruled that the statute did not apply to the defendant who committed the act of conversion. However, effective June 16, 2005, MCL 600.2919a was amended to include the person who commits the theft, embezzlement, or conversion of another’s property. In Alken-Ziegler, Inc v Hague, 283 Mich App 99, 767 NW2d 688 (2009), the court of appeals held that “actual damages” under MCL 600.2919a were the “actual loss a complainant suffered as a result of a defendant’s criminal conduct,” relying on Black’s Law Dictionary’s definition of “actual damages.” Alken-Ziegler, 283 Mich App at 103. In so holding, the court rejected defendant’s argument that any http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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portion of the loss plaintiff recovered through insurance coverage was not subject to recovery under MCL 600.2919a, much less trebling. The court explained that MCL 600.2919a is a punitive statute that provides for punitive damages. Letting a wrongdoer benefit from a plaintiff’s wherewithal in purchasing insurance coverage would controvert public policy. Id. A separate award for exemplary damages is not appropriate in an action brought under MCL 600.2919a, but compensation for mental distress is allowable as part of a plaintiff’s actual damages. Christie v Fick, No 285924, 2010 Mich App LEXIS 423 (Mar 2, 2010) (unpublished). D. Malicious Prosecution §26.24 The statute providing for recovery of treble damages for malicious prosecution, MCL 600.2907, has been interpreted to apply only to actions prosecuted in the name of another person without consent, or in the name of an unknown person. Camaj v SS Kresge Co, 426 Mich 281, 393 NW2d 875 (1986). Because the vast majority of reported malicious prosecution cases do not involve a “straw party,” it is questionable whether MCL 600.2907 will apply to many future actions for malicious prosecution. Also, the statute does not apply to actions for abuse of process. Mitchell v Cole, 176 Mich App 200, 439 NW2d 319 (1989). The Camaj court left unresolved a conflict among panels of the court of appeals on whether a verdict that includes exemplary damages may be trebled. Earlier cases had held that damages for mental anguish, embarrassment, and humiliation flowing from the malicious prosecution could be trebled under this statute. Pauley v Hall, 124 Mich App 255, 335 NW2d 197 (1983); Camaj v SS Kresge Co, 143 Mich App 604, 372 NW2d 359 (1985), rev’d on other grounds, 426 Mich 281, 393 NW2d 875 (1986). A spouse’s derivative claim for loss of consortium, however, cannot be trebled, because the statute limits the filing of treble damages claims to the “person so arrested, attached or proceeded against.” Rivers v Ex-Cell-O Corp, 100 Mich App 824, 840, 300 NW2d 420 (1980). Legal fees incurred in defending against the malicious prosecution are an element of damages to be trebled under the statute, which permits recovery of treble the amount of “damages and expenses” sustained and incurred. Interest on a loan obtained to pay legal fees is not a distinct element of damages because prejudgment interest compensates for the loss of use of money. Bass v Spitz, 522 F Supp 1343, 1347 (ED Mich 1981). Regardless of whether the purpose of the treble damages statute is to punish or to compensate, the statute was intended to apply to persons who actually caused or procured the malicious prosecution. Thus, damages against a municipality held vicariously liable for the actions of its employees are not to be trebled. Barnier v Szentmiklosi, 810 F2d 594 (6th Cir 1987). Under the judgment interest statute, MCL 600.6013, interest may be recovered on the full trebled amount of damages from the date the complaint is filed to the date the judgment is paid. Meehan v Michigan Bell Tel Co, 174 Mich App 538, 436 NW2d 711 (1989). E. Forcible Entry and Detainer §26.25 One who is forcibly and unlawfully ejected from land or is kept out by force is entitled to recover three times the amount of actual damages or $200, whichever is greater. MCL 600.2918(1). The treble damages provision applies only in cases in which personal violence or force is used or threatened. United Coin Meter Co v Lasala, 98 Mich App 238, 296 NW2d 221 (1980). A commercial tenant in lawful possession of the premises is entitled to recover lost profits if he or she is ejected. A holdover tenant not in lawful possession cannot recover lost profits because the landlord had a right to reenter. Damages in the latter case are limited to recovery for items such as lost, destroyed, or damaged equipment, spoiled goods, and extra expenses directly incurred due to the landlord’s improper use of self-help. The plaintiff’s damages are tripled if it is determined that the ejection was done forcibly and unlawfully. Deroshia v Union Terminal Piers, 151 Mich App 715, 391 NW2d 458 (1986). See §23.7.

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F. Injury to a Bridge or Highway §26.26 One who injures any public bridge or highway is liable for three times the amount of damages recoverable for the injury. MCL 230.7. Although the language of the statute is not so limited, treble damages have been held applicable only to cases in which active injury or willful misconduct is involved. Struble v Republic Motor Truck Co, 216 Mich 299, 185 NW 792 (1921). G. Injury to a Canal or Harbor §26.27 Treble damages are recoverable for the willful obstruction or injury of a canal, harbor, dock, wharf, or other similar fixture. MCL 485.12. H. Trespass on State Land §26.28 Protection of state lands is covered by MCL 324.2155 et seq. Under MCL 324.2156, an unauthorized person “shall not enter upon, or induce or direct any person to enter upon, any state owned land and cut, or induce or direct to be cut, or remove, or induce or direct to be removed, any logs, posts, poles, ties, shrubs, or trees, or any other forest product.” In addition to the fines and criminal penalties that apply for cutting and removing forest products or injuring or removing buildings, minerals, or other property on state-owned land (see MCL 324.2157), a person convicted of violating the act is also liable to the state in a civil action for a sum of up to three times the actual damages that were caused by the unlawful act, but not less than $50, along with costs and attorney fees. MCL 324.2158. Additionally, the state may seize any material that was cut or removed from the state lands and may seize and dispose of any equipment used in violating the act. Id. I. Trespassory Damage to Land 1. In General §26.29 A landowner may recover treble damages from one who, without permission, 1. injures trees; 2. digs up or carries away stone, ore, gravel, clay, sand, turf, mold, roots, fruits, or plants; or 3. cuts down or carries away grass, hay, or grains. MCL 600.2919(1). The statute does provide for single damages if the trespass is shown to be “casual and involuntary” or if the defendant had cause to believe the land was its own. In Thiele v Detroit Edison Co, 184 Mich App 542, 458 NW2d 655 (1990), the court stated that there is no fixed and inflexible rule for measuring damages in a trespass case. The damages-to-the-freehold measure may, but does not always, accurately measure the harm to the property owner’s interest. Szymanski v Brown, 221 Mich App 423, 562 NW2d 212 (1997), an intentional trespass case, held that for the purposes of determining whether sanctions were appropriate under the offer of judgment rule, MCR 2.405(D), the “verdict” is the amount that results after the jury’s finding of actual damages is trebled by the trial court as required by the statute, MCL 600.2919(1). 2. Difference in Value §26.30 Damages under MCL 600.2919(1) are to be measured by the loss of the value of the freehold interests of the owner as a result of the trespass. Miller v Wykoff, 346 Mich 24, 77 NW2d 264 (1956). Generally this is computed as the difference in the value of the land before and after the harm, but there are no fixed rules for determining what sum will compensate for the invasion of the owner’s interests. Whatever approach is most appropriate in a particular case should be adopted. Schankin v Buskirk, 354 Mich 490, 93 NW2d 293 (1958). Thus, damages for the unauthorized cutting down of trees may be measured by the number and size of the trees cut and their per-inch value at the stump. Wolverine Elec Coop, Inc v Sagman, 11 Mich App 495, 161 NW2d 433 (1968) (affirming trial court’s award of $4 per tree multiplied by 175 trees, then http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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trebled). If damages are measured by the value of the timber cut, damages to be trebled may include the cost of cleaning up the treetops and the debris left on the property, as well as the cost of filling stump holes. Miller. 3. Cost of Restoration §26.31 In appropriate cases, damages may be measured by the cost of restoration. Weisswasser v Chernick, 77 Mich App 681, 259 NW2d 357 (1977), on reh’g, 82 Mich App 149, 266 NW2d 691, opinion on reh’g rev’d, 403 Mich 843, 271 NW2d 533 (1978). In Kelly v Fine, 354 Mich 384, 92 NW2d 511 (1958), the owners of residential property that was bought for $13,600 were entitled to recover $3,750, representing treble the cost of replacing 544 cubic yards of topsoil taken despite the owners’ objections. No evidence concerning diminution in value was offered. In Schankin v Buskirk, 354 Mich 490, 93 NW2d 293 (1958), owners of a wooded homesite recovered treble damages of $2,700. The award was based in part on the replacement cost of ornamental shade trees, although the stumpage value of the wood taken was only $25.50 and the trees added nothing to the market value of the property. And, in Bologna v Pevarnek, No 267244, 2007 Mich App LEXIS 2689 (Nov 29, 2007) (unpublished), the landowners were entitled to recover treble damages of $77,730, representing the cost of planting new trees, replanting trees, removing trees, repairing the lawn, and erecting a privacy fence to obscure the landowners’ view of the unsightly adjacent property. In contrast, plaintiff in Governale v Owosso, 59 Mich App 756, 229 NW2d 918 (1975), was not entitled to recover the replacement cost of $200 per tree for 60 mature trees because the land from which the trees were taken was unimproved and marshy and the trees were short-lived softwoods. The court held that in this type of case, the diminution in value of the land was a more appropriate measure of damages. Whether damages should be measured by difference in value or cost of restoration can become a million-dollar issue when damages are trebled, as illustrated by Markstrom v US Steel Corp, 437 Mich 936, 467 NW2d 310 (1991). In Markstrom, because plaintiffs were willing to allow defendant to enter the land and remove the trespass (an encroaching rock pile), the supreme court allowed as damages either actual restoration of the property to its preinjury condition or payment of a jury verdict, which apparently was based on restoration costs in the amount of $342,000. When trebled, the verdict totaled $1,026,000. It is interesting to note that the court of appeals had reversed the jury verdict, holding that the proper measure of damages was the difference in value before and after the injury, which had been calculated at approximately $300. 182 Mich App 570, 452 NW2d 820 (1989). In an intentional trespass action involving destruction of trees on a private nature preserve, the court of appeals held that the jury was properly instructed that it could award restoration costs instead of the diminution in value. However, the amount awarded could not exceed the property’s value before the trespass. Because the only evidence of market value in this case was $27,500, the jury verdict of $37,000 was unsupported by the evidence. The court remanded the case for remittitur to $27,500. Szymanski v Brown, 221 Mich App 423, 562 NW2d 212 (1997). 4. Damages That May Not Be Trebled §26.32 MCL 600.2919(1) addresses the removal of or damage to enumerated materials and makes no provision for business interruption losses due to the trespass. Thus, damages for loss of customers and goodwill may not be trebled. Peaslee v Dietrich, 365 Mich 338, 112 NW2d 562 (1961). Similarly, it is doubtful that mental anguish and loss of use and enjoyment of the property constitute proper elements of damage. See Kelly v Fine, 354 Mich 384, 92 NW2d 511 (1958). The statute exposes a trespasser to liability “to the owner of the land”; thus, the statute does not entitle the holder of an easement to treble damages. Tittiger v Johnson, 103 Mich App 437, 303 NW2d 26 (1981). Nor may recovery be had on behalf of the trees. Fisher v Lowe, 122 Mich App 418, 419, 333 NW2d 67 (1983) (“We thought that we would never see / A suit to compensate a tree. A suit whose claim in tort is prest / Upon a mangled tree’s behest”). 5. Casual and Involuntary Trespass §26.33 If the defendant had probable cause to believe that the land was its own, or if the trespass was casual and involuntary, judgment must be given in the amount of single damages only. One who http://www.icle.org/modules/books/chapter_print.aspx?Chapter=26&book=2002552310&lib=litigation

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proceeds with reckless disregard of an owner’s objections, however, acts willfully and is liable for treble damages. Governale v Owosso, 59 Mich App 756, 229 NW2d 918 (1975). Stevens v Creek, 121 Mich App 503, 509, 328 NW2d 672 (1982), describes the parties’ respective burdens of proof as follows: The burden is on the plaintiff to prove that the cutting was done without permission of the owner. Weisswasser v Chernick, 399 Mich 653; 252 NW2d 766 (1977); Padman v Rhodes, 126 Mich 434; 85 NW 1130 (1901). In order to avoid treble damages, the defendant has the burden of proving that the trespass was casual and involuntary rather than willful. See Hart v Doyle, 128 Mich 257; 87 NW 219 (1901). Padman, supra. Treble damages do not require a showing of malice or an intent to do injury, but may not be awarded if the trespass was merely negligent. Iacobelli Constr Co v Western Cas & Sur Co, 130 Mich App 255, 343 NW2d 517 (1983). 6. Damages Ancillary to an Injunction §26.34 May damages sought ancillary to an injunction action to restrain the trespass be trebled? Cases decided before the merger of law and equity answered “no” to this question on the grounds that the statute authorizes treble damages in actions at law only and that it would be unfair to impose a penalty as damages. Fractional Sch Dist v Hedlund, 330 Mich 73, 47 NW2d 19 (1951); Diefenbaker v Post, 276 Mich 514, 267 NW 652 (1936). A leading postmerger case to the contrary is IHP Corp v 210 Cent Park South Corp, 12 NY2d 329, 239 NYS2d 547, 189 NE2d 812 (1963), affirming an award of exemplary damages in an amount twice that of actual damages ancillary to injunctive relief against trespass. See Annotation, Punitive Damages: Power of Equity Court to Award, 58 ALR 4th 844. 7. When a Verdict May Not Be Trebled §26.35 A general verdict that does not segregate damages recoverable under MCL 600.2919(1) from other damages recoverable for common-law trespass cannot be trebled. Peaslee v Dietrich, 365 Mich 338, 112 NW2d 562 (1961). Similarly, a verdict that does not specify whether the trespass was “casual and involuntary” or “intentional and with knowledge that it was without right” may not be trebled, nor may a verdict be trebled that may have been based on a theory of liability other than trespass. Embrey v Weissman, 74 Mich App 138, 141 253 NW2d 687 (1977) (complaint asserted liability based on trespass, breach of contract, negligence, conversion, and unjust enrichment; $50,000 general verdict should not have been trebled). Although a finding that the trespass was “deliberate and intentional” permits trebling of an award of damages, it also may have the unfortunate consequence of absolving the trespasser’s liability insurer from an obligation to pay any part of the resulting judgment. Iacobelli Constr Co v Western Cas & Sur Co, 130 Mich App 255, 343 NW2d 517 (1983). J. Refusal to Honor a Mobile Home Warranty §26.36 A manufacturer or dealer of mobile homes who knows or should know that a defect is covered by the warranty provided by the Uniform Mobile Homes Warranty Act, MCL 125.991 et seq., and willfully or by gross negligence fails to take corrective action may be liable for treble damages. MCL 125.996. K. Antitrust Violations §26.37 Actual damages sustained because of a violation of the Michigan Antitrust Reform Act, MCL 445.771 et seq., may be increased up to three times if the trier of fact finds the violation to be flagrant. Reasonable attorney fees are recoverable for all violations. MCL 445.778. According to the commentary to the Uniform State Antitrust Act, on which the Michigan act is based, the intent is “to provide a punishment commensurate with the degree of guilt rather than a bludgeon which strikes with equally devastating force in both clear and doubtful cases.” Uniform State Antitrust Act Comment to MCL 445.778.

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L. Debt Collection §26.38 If a collection agency’s method, act, or practice is found to be a willful violation of the act regulating collection agencies, the court may award not less than three times actual damages or $150, whichever is greater, plus reasonable attorney fees. If the violation is not willful, actual damages or $50, whichever is greater, are recoverable. MCL 339.916. A similar provision, MCL 445.257, applies to a regulated “person” (other than a collection agency) who collects debts. M. Denial of Equal Public Accommodations §26.39 A proprietor or agent who refuses, withholds, or denies equal public accommodations on account of race, color, religion, national origin, sex, or blindness is liable to the injured party for treble damages. MCL 750.147. N. Violation of Electronic Funds Transfers Act §26.40 A person injured by a violation of certain sections of the Electronic Funds Transfers Act may bring an action to recover treble damages and reasonable attorney fees. MCL 488.28. O. Violation of Nursing Home Admission Statute §26.41 MCL 333.21765a(1) and (2) preclude a nursing home from requiring waiver of Medicare or Medicaid as a condition of admission and from requiring specific minimum periods of private pay, or gifts or donations, to qualify for admission or continued residency. A person who violates either subsection is liable to an applicant or patient in a civil action for treble the amount of actual damages or $1,000, whichever is greater, plus costs and reasonable attorney fees. MCL 333.21799c(2). P. Violation of Sex Offenders Registration Act §26.42 A person whose registration under the Sex Offenders Registration Act, MCL 28.721 et seq., is revealed other than as provided in the act may bring an action against the responsible party for treble damages. MCL 28.730(5). Q. Disclosure of Records Under Office of Child Support Act §26.43 An entity, whether governmental, public, or private, that makes a willful, wrongful disclosure of records or information under the Office of Child Support Act, MCL 400.231 et seq., is liable for treble damages or $3,000, whichever is greater, plus costs and reasonable attorney fees. MCL 400.234(4). V. Other Multiple Damages §26.44 A person who commits an act of retail fraud in violation of MCL 600.2953, and who fails to comply with a written demand for payment, “is liable to the merchant for the full retail price of the property, unless the property was recovered in salable condition, plus civil damages of 10 times the retail price of the property but not less than $50 or more than $200, and costs of the action, including reasonable attorney fees.” MCL 600.2953(4).

Footnotes 1 The authors acknowledge Shari M. Oberg for her work on earlier versions of this chapter.

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Multiple Damages  

This chapter from Michigan Law of Damages and Other Remedies (ICLE) covers multiple-damages statutes. Product information is at: http://www...

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