Butt v. Giammariner

• Citation: 173 Mich.App. 319,433 N.W.2d 360
• Decision Date: 13 January 1989
• Docket Number: 105650,Docket Nos. 97253
• Parties: Gloria BUTT and Norman Butt, Plaintiffs-Appellants, v. Samuel F. GIAMMARINER, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 360

433 N.W.2d 360

173 Mich.App. 319

Gloria BUTT and Norman Butt, Plaintiffs-Appellants, v. Samuel F. GIAMMARINER, Defendant-Appellee.

Docket Nos. 97253, 105650.

Court of Appeals of Michigan.

Submitted May 4, 1988.

Decided Sept. 13, 1988.

Released for Publication Jan. 13, 1989.

Nunneley, Hirt & Rinehart, P.C. by Thomas D. Rinehart, Mt. Clemens, for plaintiffs-appellants.

Hayduk, Dawson, Andrews & Hypnar, P.C. by Robin K. Andrews and Alice M. Rhodes, Detroit, for defendant-appellee.

Before J.H. GILLIS, P.J., and MURPHY and GAGE, ^* JJ.

PER CURIAM.

Plaintiff Gloria Butt sued defendant for damages sustained when she slipped on a patch of ice covered by light snow on a sidewalk outside of defendant's apartment building. Plaintiff Norman Butt sought damages for loss of consortium. The jury found that defendant was not negligent. In Docket No. 97253, plaintiffs appeal as of right from the judgment entered consistent with the jury's verdict as well as the trial court's order denying plaintiffs' motion for a new trial or a judgment notwithstanding the verdict. In Docket No. 105650, plaintiffs appeal as of right from the trial court's order granting defendant costs and attorney fees pursuant to MCR 2.405(D). We affirm.

Plaintiffs first claim that the trial court abused its discretion when it allowed defendant to add Robert MacPhee, a private investigator, to his witness list. At trial, Gloria Butt (hereinafter plaintiff in the singular refers to Gloria Butt) testified that she could not walk without a limp and the aid of a cane, wear heels beyond a certain length, and perform certain chores. Defense counsel hired MacPhee to videotape plaintiff's activities in Arizona. The tape showed plaintiff walking in high heels without the use of a cane, going grocery shopping, driving a car and unloading groceries therefrom. Photographs taken from the videotape were also introduced. We hold that the trial court did not abuse its discretion when it allowed MacPhee to testify during rebuttal for the purpose of impeaching plaintiff's testimony and for laying a foundation for the introduction of the videotape. Cf. Pastrick v. General Telephone Co. of Michigan, 162 Mich.App. 243, 412 N.W.2d 279 (1987); McMiddleton v. Otis Elevator Co., 139 Mich.App. 418, 422-427, 362 N.W.2d 812 (1984), modified 424 Mich. 862, 377 N.W.2d 821 (1985); Elmore v. Ellis, 115 Mich.App. 609, 321 N.W.2d 744 (1982). We believe that Pollum v. Borman's, Inc., 149 Mich.App. 57, 385 N.W.2d 724 (1986), the case relied on by plaintiffs, is distinguishable because plaintiffs in this case were allowed to voir dire and cross examine MacPhee and given the opportunity to present plaintiff's testimony in rebuttal. While the trial court did not allow any other witnesses in rebuttal, plaintiffs did not offer any other witnesses or ask for a continuance to procure such witnesses. In fact, we agree with defendant that while plaintiffs' counsel may have been surprised by the videotape evidence, plaintiff undoubtedly knew what her capabilities were.

Plaintiffs further claim that allowing MacPhee to testify violated the trial court's July 25, 1984, pretrial conference summary order which provided:

"Lists of witnesses necessary for discovery shall be exchanged within thirty (30) days from date of pretrial conference. Any additional witnesses shall be disclosed within thirty (30) days following close of discovery.

* * *

* * *

"Last-minute motions on day of trial will not be entertained except for good cause shown."

Discovery was to end ninety days after the pretrial conference. Plaintiffs filed their witness list on October 26, 1984. Defendant filed his witness list on December 12, 1984. On January 3, 1985, plaintiffs filed their amended witness list to reflect the witnesses listed by defendant. On April 11, 1985, plaintiff was deposed and, on April 25, 1985, MacPhee made his videotape. On July 17, 1985, plaintiff was deposed again and questioned about the extent of her injuries. Trial began on Friday, September 12, 1986. On the following Tuesday, when trial resumed, defendant moved to add MacPhee to his witness list. We fail to see how defendant violated the court's pretrial conference summary order. Defendant could not have disclosed MacPhee's name on his original witness list and, therefore, could properly bring a motion to add MacPhee to his witness list at the time of trial.

Plaintiffs also claim that the trial court erred when it denied their motions for a directed verdict or a judgment notwithstanding the verdict. In reviewing a trial court's denial of a motion for a directed verdict or judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn therefrom in the light most favorable to the nonmoving party. In re Leone Estate, 168 Mich.App. 321, 324, 423 N.W.2d 652 (1988). If there are material issues of fact upon which reasonable minds could differ, the matter is one properly submitted to the jury. Id. If reasonable jurors could disagree, neither this Court nor the trial court has the authority to substitute its judgment for that of the jury. Id. Having reviewed the entire record in this case, we cannot say that the trial court erred when it denied plaintiffs' motions.

Plaintiffs next claim that the trial court erred when it awarded defendant attorney fees and costs under MCR 2.405(D). Although plaintiffs' failure to provide this Court with a transcript of the lower court proceeding could be treated as a waiver of the issues raised by plaintiffs, we believe that the issues may be reviewed because the trial court's opinion provides a sufficient basis for us to do so. See, e.g., Kingston v. Markward & Karafilis, Inc., 134 Mich.App. 164, 176, 350 N.W.2d 842 (1984), lv. den. 422 Mich. 947 (1985).

Plaintiffs first claim defendant was not entitled to tax costs until after this appeal was...