Michigan Court of Appeals; Docket # 342268; Unpublished
Judges Gadola, Servitto, and Redford; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision following a jury verdict entered in favor of the defendant in the underlying third-party automobile negligence action, the Court of Appeals affirmed the jury’s verdict as well as the trial court’s reduction of attorney fees awarded to the defendant. The Court of Appeals determined that the trial court did not abuse its discretion by denying the plaintiff’s motion for a new trial after several prospective jurors expressed their aversion to personal injury lawsuits, generally because the jurors were excused for cause and their statements were not so poisonous as to warrant a mistrial. The Court of Appeals next determined that the trial court did not err by limiting the plaintiff’s counsel to only 30 minutes in total for its closing argument and rebuttal, because the plaintiff’s counsel was able to effectively argue its theory of the case in that allotted amount of time. Lastly, the Court of Appeals determined that the plaintiff was not denied a fair trial despite prejudicial or politically-charged phrases repeated by the defense counsel in opening and closing statements, such as “alternative facts” and describing the plaintiff’s counsel as “a devil’s advocate.” With regard to the defendant’s cross-appeal, Court of Appeals upheld the trial court’s reduction of its award of attorney fees and costs to the defendant—from more than $85,000, collectively, to less than $34,000, collectively—because the trial court followed the proper procedure for determining attorney fees and costs and found the lower number to be proper.
The plaintiff in this case, Wendy Talan, was injured after being struck by a car while walking her dogs on the side of the road. Ultimately, the jury found the defendant driver, Sheilah Marie Stewart, not negligent, and Talan filed a motion for a new trial “on the basis of alleged irregularities that occurred during the jury trial.” The trial court denied Talan’s motion, and Stewart filed her own motion for reasonable attorney fees and costs, noting that the parties had rejected case evaluation. The trial court granted Stewart’s motion, but reduced the amount awarded.
On appeal, Talan first contended that the trial court abused its discretion by denying her motion for a new trial based on the fact that one juror was an admitted non-resident, and on the fact that an “obvious atmosphere of bias” was created by several previous comments made by jurors who had already been excused. The Court of Appeals determined that Talan’s counsel did not sufficiently inquire as to the residency status of the non-resident juror, and that no evidence had been presented to suggest that the non-resident juror prejudiced Talan’s case. Moreover, the Court of Appeals determined that prejudicial comments made by several excused jurors, highlighting their general aversion to personal injury lawsuits, were not so poisonous as to require a mistrial.
While the record supports plaintiff’s assertions that jurors made some comments that were not supportive of personal injury law in general, plaintiff has failed to provide a factual basis for her assertions that the comments were so poisonous that the trial court, even without a motion from plaintiff, should have sua sponte ordered a mistrial. The comments were not related to the parties in this case, the circumstances in this case, or the evidence in this case. As the party seeking reversal on appeal, plaintiff is responsible for providing this Court with a factual basis for her argument. Petraszewsky v Keeth, 201 Mich App 535, 540; 506 NW2d 890 (1993). Because plaintiff has failed to provide a factual basis, she has not met her burden and established error on the part of the trial court.
Talan next argued that the trial court erred when it limited her counsel to only 30 minutes in total for its closing argument and rebuttal. The Court of Appeals disagreed, finding that Talan’s counsel was able to efficiently and effectively argue its theory of the case in the time allotted, and that counsel’s requested 45 minute allotment was not necessary.
Our review of plaintiff’s closing argument shows that plaintiff’s counsel effectively argued plaintiff’s theory of the case, that plaintiff was standing on the side of the road visible to traffic but was run down because of defendant’s lack of due care, referenced specific witness testimony buttressing his argument, and did so efficiently in the time allotted. Further, plaintiff’s counsel presented an effective rebuttal countering defendant’s argument by referencing testimony, medical records, and reiterating plaintiff’s theory of the case. On this record, we conclude that plaintiff has not shown that the trial court was biased against her or denied plaintiff a fair trial when it limited the time for closing arguments to 30 minutes. Stevens, 498 Mich at 172.
Lastly, Talan argued that the defense counsel made improper comments in opening and closing statements that denied her a fair trial. Those comments included politically-charged phrases such as “alternative facts,” and a likening of Talan’s counsel to “a devil’s advocate.” The Court of Appeals disagreed that the defense counsel’s conduct was so egregious as to warrant reversal of the jury verdict.
Put simply, counsel’s conduct was not “truly egregious” and did not exceed the bounds of what is permissible and appropriate. Badalamenti, 237 Mich App at 289. Plaintiff is therefore hard-pressed to assert that she was prejudiced by any alleged errors or that the alleged errors impacted the outcome of the jury’s verdict. Accordingly, alleged improper comments by defense counsel did not deny plaintiff a fair trial and interference with the jury’s verdict is not warranted.
On cross-appeal, Stewart argued that the trial court abused its discretion by reducing its requested attorney fees and costs of $85,555 and $6,964.25, respectively, to $27,500 and $5,975.50. The Court of Appeals determined, however, that the trial court followed the correct procedure for calculating the amount to be awarded and did not err in its determination that the lower amounts were more reasonable.
In the present case, in a nine-page written opinion, the trial court explicitly acknowledged that its determination of the reasonableness of defendant’s request for attorney fees was subject to the procedure outlined in Smith before proceeding to conduct an examination of the listed factors. The trial court began its analysis by determining a reasonable hourly rate for defense counsel, based on length of practice, expertise, practice area, as well as various mean billing rates for attorneys with similar attributes and experiences in the area. The trial court reduced the number of hours based on the time and labor required and the lack of novelty of plaintiff’s case after finding that defendant’s requested number of hours was excessive. Additionally, the trial court reduced the award of costs for expert witness Brown, finding a portion of the costs not compensable as expert fees. While the trial court could have provided even more detail to assist this Court’s review of its fees and costs determination on appeal, we cannot conclude on this record that the trial court abused its discretion when it awarded defendant attorney fees in the amount of $27,500 and costs in the amount of $5,975.50 after determining that such an amount was reasonable.
