Board of County Road Com'rs of Wayne County v. GLS Leasco, Inc., 55280
| Court | Supreme Court of Michigan |
| Citation | 394 Mich. 126,229 N.W.2d 797 |
| Docket Number | No. 55280,55280 |
| Parties | BOARD OF COUNTY ROAD COMMISSIONERS OF the COUNTY OF WAYNE, Michigan, Plaintiff-Appellee, v. GLS LeasCO, INC., Defendant-Appellant. |
| Decision Date | 27 May 1975 |
John P. Cushman, Gen. Counsel, O. George Fedrigo, Detroit, for Bd. of Wayne County Road Commissioners.
Albert Green, Sterling Hgts., for defendant-appellant.
Before the Entire Bench.
The Wayne County Board of Road Commissioners instituted condemnation proceedings against GLS LeasCo, Inc., to acquire land to expand and improve Detroit Metropolitan Airport.
The Board's appraiser valued the property at $145,000. LeasCo's experts set the value at $740,000--$767,000. In closing argument, LeasCo's lawyer requested $750,000 for the property and an additional $750,000 for loss of use.
The jury returned a verdict of $160,000.
LeasCo claims error in (1) the denial of its motions for mistrial based on allegedly improper conduct of the Board's lawyer during trial and closing argument; (2) the denial of its motion for mistrial after an employee of and witness for the Board accompanied the jury to view the property; (3) the admission over objection of evidence of the purchase price of the property; and (4) the failure of the trial court to give a requested instruction regarding jury consideration of uses to which the property might reasonably be adapted.
LeasCo further contends that (5) the verdict was against the great weight of the evidence and (6) the expert witness fees allowed by the trial court were not adequate.
We find that improper conduct of the Board's lawyer deprived LeasCo of a fair trial. Accordingly, we reverse. Our disposition makes it unnecessary to decide the other issues raised by LeasCo. However, because we remand for a new trial, we will address questions likely to arise again.
The Court of Appeals 'disapprove(d) of the conduct and argument of plaintiff's counsel that was objected to,' but affirmed the result because LeasCo did 'not demonstrate affirmatively prejudice' arising from the improper conduct.
LeasCo contends with some justification that 'to recite all such instances (of misconduct) would result in a restatement of the entire record of proceedings.'
The Board's lawyer, despite vigorous objection by Leasco and admonition by the trial court, repeatedly belittled LeasCo's witnesses and lawyer by innuendo and unfounded accusation in an apparent effort to prejudice the jury. Additionally, he made impermissible appeals to the self-interest of the jurors as taxpayers.
While a lawyer is expected to advocate his client's cause vigorously, 'parties are entitled to a fair trial on the merits of the case, uninfluenced by appeals to passion or prejudice.' 1
LeasCo's lawyer continually objected to teh abusive questions and gratuitous remarks of opposing counsel. Not only were these objections consistently sustained, but the court often interjected on its own and reprimanded the Board's lawyer.
The repetitive nature of these unwarranted attacks increased the probability of prejudice: 'One attack (abusing opposing counsel) may not constitute prejudicial error, but where there are many improper remarks concerning counsel for the defense they may, in the aggregate, prove so prejudicial as to require a new trial.' 2
This Court characterized as a 'comedy of errors' a trial where counsel ignored the trial court's repeated admonitions regarding improper questions, arguments and disparaging remakrs, and said: 'As long as attorneys will resort to such methods, unjustifiable either in law or ethics, 3 courts have no alternative but to set the verdicts aside.' Atherton v. Defreeze, 129 Mich. 364, 367, 88 N.W. 886, 887 (1902).
Pertinent are the remarks of this Court in another condemnation case:
'While it is regrettable that this case must be sent back for retrial, with the costs and expenses incident thereto, yet it is of more importance that a cause be properly tried and that a verdict reflect and evaluate the rights of the interested parties.' In re Widening of Woodward Ave., 297 Mich. 235, 246, 297 N.W. 468, 472 (1941). 4
A. Abusive Treatment and Unfounded Attacks on LeasCo's Witnesses
The principal issue in most condemnation proceedings is the amount of 'just compensation' for the land taken. Each side generally has its own appraisers testify and seeks to discredit the valuation made by its adversary. That this 'battle of experts' is essentially a swearing match does not give counsel license to asperse the opponent's witnesses on cross-examination.
One of LeasCo's appraisers was the target of particular abuse by the Board's lawyer. He was belittled ('Look, I think it's time we quit the games'), accused of lying ('Your Honor, the man has been sitting here lying all morning') and sarcastically taunted ( ).
Additionally, the Board's lawyer repeatedly suggested that the appraiser's claim of lack of knowledge of certain matters was false:
A LeasCo executive was similary ridiculed and accused of lying when he testified that LeasCo was entitled to $750,000:
'Q. Your last statement was $750,000?
'A. Yes.
'Q. Now, I presume that that needs to be added to some $800,000 testified to by Mr. MacDonald; is that right?
'A. I do not know what Mr. MacDonald testified to.
'Q. You seriously want us to believe that; that you don't know what Mr. MacDonald testified to?
'A. I was not present.
This witness also was belittled ('But you are a witness who has just coughed up the figure of three quarters of a million dollars') and was accused of being dishonest in his responses. 5
Two other expert witnesses testifying for LeasCo were accused of fabricating evidence. Of one, the Board's lawyer asserted: 'He came in here and built a big story on it.' With the other, he was more direct: 'He is testifying falsely again.'
These comments represent more than the mere reproof of recalcitrant witnesses. They constitute unjustified, direct attacks on the integrity and honesty of LeasCo's witnesses. There is no evidence that these witnesses testified falsely, withheld information when stating that they did not know the answer to counsel's questions, or manufactured false evidence.
Witnesses should not be subjected to personal attacks and unsubstantiated insinuations. Each party is entitled to present its case on the merits, free from remarks of opposing counsel which may prejudice the jury and divert its attention from the real issues. 6 B. Appeal to Jurors' Self-Interest
as Taxpayers
A lawyer representing a condemning authority may not exploit his position as representative of the taxpayers, including the jurors, to the detriment of the landowner. 7 .
A Texas appellate court ordered a new trial where the condemning authority's lawyer argued to the jury that as taxpayers they were 'directly interested in this suit' and would pay any award 'out of (their) own pockets.' West v. State, 150 S.W.2d 363, 364 (Tex.Civ.App., 1941).
In this case, the Board's lawyer impermissibly sought to align the jurors as, in effect, parties on the taxpayers' side. During cross-examination of a witness he said, '* * * I don't want the people of the County of Wayne to get hurt any worse than they have to, I just wonder if you would consider taking over the airport, you know, call it even.' The Court sustained LeasCo's objection, adding: Board's lawyer: 'But in all candor, your Honor, I think $10 million, I might as well give them the airport.' 8 The Court: 'That's argumentative.'
In closing argument, the Board's lawyer reiterated that the interests of his client and the public were identical: 'We are making his property more valuable, the public is, and he wants us to pay him for that.' 9
C. Attacks on LeasCo's Lawyer and Suggestions that he
The integrity of LeasCo's witnesses was further impugned by the relentless attack on Albert Green, LeasCo's lawyer. The lawyer for the Board repeatedly sugggested that Green, together with LeasCo executives, 'bought' testimony.
In closing argument, the Board's lawyer made several unabashed assaults on Green:
'(LeasCo's) witnesses did not even know what after value was. They never even thought about it. The young man from Texas (an appraiser testifying for LeasCo) didn't even know anything about that. Mr. Green didn't tell him about that. * * * They just said we'd like some pretty high figure for you to testify to. * * *
'The only important thing for that young man to do was to come up with a figure for Mr. Lech (a LeasCo executive) and Mr. Green, a figure that they wanted, and he obviously did that.' 10
He also charged a LeasCo executive with shopping for an appraiser who would testify falsely to a high valuation figure. 11
In a similar context, a New York Court said:
'Where, therefore, a lawyer, in his summation, charges that a witness testifying to material facts in a case has been 'bought' by the other side, when there is no basis in the evidence for any such charge, that statement is so highly objectionable and prejudicial as to require a new trial in a case involving sharply contested issues, particularly when the objectionable statement complained of was allowed to stand without prompt judicial rebuke.' Cohen v. Covelli, 276 App.Div. 375, 94 N.Y.S.2d 782, 784 (1950).
The Board's...
To continue reading
Request your trial
-
Guerrero v. Smith, Docket No. 277983.
...questioned him and another witness regarding his past marijuana use. Relying in part on Wayne Co. Bd. of Rd Comm'rs. v. GLS LeasCo, Inc., 394 Mich. 126, 136-138, 229 N.W.2d 797 (1975), plaintiff asserts that "such questioning was irrelevant and prejudicial" and that it evidenced "a delibera......
-
Reetz v. Kinsman Marine Transit Co.
...say that the 'mischief done' was cured by the judge's efforts", then a new trial should be ordered. Wayne County Road Comm'rs v. GLS LeasCo, Inc., 394 Mich. 126, 139, 229 N.W.2d 797 (1975).9 It should be noted here that the trial court has a duty to assure that all parties who come before i......
-
Wilson v. Stilwill
...through questioning and argument, have shown a studied purpose to prejudice the jury. In Wayne County Board of Road Comm'rs v. GLS LeasCo, 394 Mich. 126, 139, 229 N.W.2d 797 (1975), this Court ordered a new trial because the board's attorney repeatedly belittled and harassed witnesses and o......
-
Baun, Matter of
...accepted rules of professional propriety' at trial might be a ground of reversal. Similarly, see Wayne County Board of Road Commissioners v. GLS LeasCo, 394 Mich. 126, 229 N.W.2d 797 (1975).In De Gesualdo v. People, supra, 147 Colo. pp. 432--433, 364 p.2d p. 378, where the district attorney......
-
Trial Proceedings and Motions
...was open for the government’s comments in rebuttal and they were not improper. Board of County Commissioners v. G.L.S. Leasing Co., Inc., 394 Mich. 126, 229 N.W.2d 797 (1975). Counsel’s closing argument in which he accused his opponent of “playing tricks on the jury” and of subornation of p......
-
Trial proceedings and motions
...rebuttal and they were not improper. §203 TRIAL PROCEEDINGS AND MOTIONS 2-16 Board of County Commissioners v. G.L.S. Leasing Co., Inc., 394 Mich. 126, 229 N.W.2d 797 (1975). Counsel’s closing argument in which he accused his opponent of “playing tricks on the jury” and of subornation of per......
-
Trial Proceedings and Motions
...was open for the government’s comments in rebuttal and they were not improper. Board of County Commissioners v. G.L.S. Leasing Co., Inc., 394 Mich. 126, 229 N.W.2d 797 (1975). Counsel’s closing argument in which he accused his opponent of “playing tricks on the jury” and of subornation of p......
-
Trial proceedings and motions
...was open for the government’s comments in rebuttal and they were not improper. Board of County Commissioners v. G.L.S. Leasing Co., Inc., 394 Mich. 126, 229 N.W.2d 797 (1975). Counsel’s closing argument in which he accused his opponent of “playing tricks on the jury” and of subornation of p......