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Staunch Republican appeals panel awards defendant sanctions including attorney fee greater than insurer paid

Kendall and Louise Boutwell sued their neighbors, the Smiths, after the Smiths used a bulldozer to clear the property line.  No one claimed that the Boutwells had actually given the Smiths permission to enter their property and knock down trees, and the Boutwells sought statutory treble damages for the damages the Smiths caused.  The Smiths claimed that the Boutwells' failure to object to their plan constituted implied consent and the Smiths' insurer defended the trespass claim brought by the Boutwells.

A jury placed a value of only $2600 on the damage caused by the Smiths' bulldozer and the damages were not trebled under the statute.  Because this value was less than 90 percent of the case evaluation procedure value, the Smiths' insurer sought recovery of their attorneys' fees.  The attorneys charged $135-$150 per hour, so the judge awarded the latter amount in sanctions, even though he considered that $250 per hour would also be a reasonable charge.

Both parties appealed these outcomes.  Unfortunately for the Boutwells, they drew an appellate panel composed of Christopher Murray, Jane Markey and William Whitbeck, all staunch Republican conservatives who believe that the justice system is an impediment on commerce.  Judge Murray, in particular, virtually always rules in favor of wealthy "special interest" defendants like insurance companies, health care providers and the like.

Not only did the appellate panel uphold the jury's decision on damages and its failure to award statutory damages, it also reversed the trial judge and awarded $250.00 per hour in attorney fee sanctions.  The trespassers will be rewarded for entering the Boutwells' property by a recovery of an additional 67% on top of their insurers' attorneys' fees.  One doubts whether the Boutwells believe that justice was served in this case and it is hard to blame them.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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