Dresselhouse v. Chrysler Corp.

• Citation: 442 N.W.2d 705,177 Mich.App. 470
• Decision Date: 27 July 1989
• Docket Number: Docket Nos. 92747,95882 and 101333
• Parties: Cindy DRESSELHOUSE, Plaintiff-Appellant, v. CHRYSLER CORPORATION, a corporation, Defendant-Appellee, and Dario G. Verdugo, Defendant. 177 Mich.App. 470, 442 N.W.2d 705
• Court: Court of Appeal of Michigan (US)

Page 705

442 N.W.2d 705

Cindy DRESSELHOUSE, Plaintiff-Appellant, v. CHRYSLER CORPORATION, a corporation, Defendant-Appellee, and Dario G. Verdugo, Defendant.

Docket Nos. 92747, 95882 and 101333.

177 Mich.App. 470, 442 N.W.2d 705

Court of Appeals of Michigan.

Submitted April 4, 1989.

Decided June 7, 1989.

Released for Publication July 27, 1989.

[177 MICHAPP 472] Kelman, Loria, Downing, Schneider & Simpson (by Michael L. Pitt), Detroit, for plaintiff-appellant.

Dickinson, Wright, Moon, Van Dusen & Freeman by Thomas G. Kienbaum and Elizabeth Hardy, Detroit, for Chrysler Corp.

Schureman, Frakes, Glass & Wulfmeier by Charles F. Glass and J. Kelly Carley, Detroit for Dario Verdugo.

Before DANHOF, C.J., and WAHLS and GRIFFIN, JJ.

PER CURIAM.

Plaintiff, Cindy Dresselhouse, has filed two appeals as of right and one appeal by leave granted in this sexual harassment action against her employer, Chrysler Corporation and her former boyfriend and supervisor at Chrysler, Dario G. Verdugo. We have consolidated the appeals for review.

The record reveals that plaintiff, a receptionist in Chrysler's International Finance Division, filed this action in June, 1982, alleging, among other things, that her supervisor at Chrysler, with whom she had previously shared a lengthy romantic relationship, had sexually harassed her at work and that Chrysler, after being notified of the harassment, failed to take prompt corrective action as required by the Elliot-Larsen Civil Rights Act, M.C.L. Sec. 37.2201 et seq.; M.S.A. Sec. 3.548(201) et seq. Apparently, several derogatory memoranda written by different people regarding plaintiff's work habits were made a part of plaintiff's employment record. The case was mediated on November 16, 1983, resulting in an [177 MICHAPP 473] evaluation of $12,500 to be paid jointly by Chrysler and Verdugo. Plaintiff rejected the evaluation and the matter proceeded to trial.

After twelve days of trial, the jury was charged and deliberations began. At about 4:30 p.m. on February 20, 1986, the jury was brought back into the courtroom after having sent a note to the trial court inquiring, "Can we add a proviso to question number ten on the verdict form?" ¹ The transcript records the following discussion:

The Court: You may be seated.

Members of the jury, we received your inquiry. I have discussed this with the attorneys, and we've decided to ask you to come out and clarify your question ... or your inquiry.

So, the question that we received says: "Can we add a provisio [sic] to question number ten on the verdict form?"

Have you selected a foreperson?

Juror Number Eight: (Manoyian) Yes. We were discussing the fact that we feel both Parties are guilty ... or all three Parties are guilty, but we don't feel that the monetary awards should be as high as what has been recommended. The provisio [sic] was that the work records of Cindy be removed or that Chrysler Corporation would pay $100,000.00. We wondered if we could have an "either/or" situation.

The Court: Do you gentlemen understand the inquiry?

Mr. Keinbaum [attorney for Chrysler]: I think I do, Your Honor.

The Court: Mr. Pitt?

Mr. Pitt [attorney for plaintiff]: Yes, I do, Your Honor.

The Court: Mr. Glass?

[177 MICHAPP 474] Mr. Glass [attorney for Verdugo]: I think I understand it, Your honor.

The Court: Okay. Did you want to have a meeting outside and then come back and let us know, we'll just keep the jury here, what your pleasure is? Do you want to use my chambers or ...?

Juror Number Eight: Well, excuse me ... or would it be your decision to overrule whatever we decide?

The Court: Oh no, I can't overrule. You are the jury.

Juror Number Eight: Okay, I see. It's all new to me.

The Court: Yes, you are the jury.

Mr. Glass: I think it would be appropriate to excuse the jury and let us discuss this matter for a moment.

The Court: All right, very good.

You may go back and continue deliberations.

You don't have any objections if they continue deliberations, do you?

Mr. Glass: Pardon?

The Court: You don't have any objections if they continue?

Mr. Glass: No.

Mr. Keinbaum: Not at all.

The jury then returned to the jury room, and the attorneys and the court tried to determine the proper instruction to be given to the jury. Although counsel for defendants unsuccessfully moved for a mistrial, all the attorneys ultimately agreed that it would be acceptable for the court to simply inform the jury that it had already been adequately instructed to render a verdict. The jury was then brought back into the courtroom and the court stated:

Members of the jury, we have been discussing your last inquiry as to whether or not you could add an [sic] proviso to question Number Ten on [177 MICHAPP 475] the verdict form. The Court has decided that the proper instruction at this time is to advise you that you have been instructed by the Court, you've heard the arguments of the attorneys, you've heard the evidence, so it is your responsibility at this point, without further response to your question as to whether or not you could add a proviso to question Ten or not.

The jury then retired and a short time later rendered a verdict finding that Verdugo had sexually harassed plaintiff and that Chrysler had negligently failed to take prompt corrective action after being notified by plaintiff of claims of sexual harassment. The jury awarded zero damages to plaintiff against Verdugo and provided that Chrysler was to pay plaintiff's court costs and legal fees and remove the derogatory letters from plaintiff's employment record or pay plaintiff $100,000. In Chrysler's appellate brief it is stated that "the documents were in fact removed from Plaintiff's file immediately after trial." At post-trial hearings, counsel for Chrysler contended that the entry of a judgment providing zero damages to plaintiff would be appropriate because Chrysler had already removed the derogatory letters from plaintiff's employment record. At an April 11, 1986, hearing on a motion for entry of judgment, counsel for Chrysler stated that "we have removed the documents from our files because we're not stupid, and the Court has my word on that." Counsel opined that, in view of Chrysler's removal of the derogatory letters from plaintiff's employment record, the language in the jury's verdict regarding Chrysler's obligation either to remove the letters from plaintiff's file or to pay $100,000 constituted mere "surplusage." In addition, Chrysler filed a motion for a judgment notwithstanding the verdict.

[177 MICHAPP 476] Ultimately, counsel for Chrysler suggested that the court enter a judgment in accordance with the jury verdict providing for payment of no damages but requiring Chrysler to pay plaintiff's court costs and attorney fees. Plaintiff's counsel consented in open court to the entry of such a judgment. Accordingly, the court denied Chrysler's motion for a judgment notwithstanding the verdict and entered a judgment on April 30, 1986, conforming to the terms accepted by counsel. Thereafter, Chrysler and Verdugo moved for judgments awarding mediation sanctions, since plaintiff had rejected a $12,500 mediation evaluation in November, 1983, and, they contended, had failed to improve her position by ten percent at trial, as required by the applicable court rule. Plaintiff, on the other hand, argued that mediation sanctions could not properly be imposed because she had improved her position by more than ten percent when considering the attorney fees payable to her from Chrysler, pursuant to the lower court's judgment, and also allegedly from Verdugo, under the Elliot-Larsen Civil Rights Act, M.C.L. Sec. 37.2802; M.S.A. Sec. 3.548(802). On August 25, 1986, the court awarded Chrysler $34,675 in mediation sanctions pursuant to MCR 2.403, and on September 22, 1986, it awarded Verdugo $14,950 in mediation sanctions pursuant to that same court rule.

On appeal, plaintiff, citing Ass'n Research & Development Corp v. CNA Financial Corp, 123 Mich.App. 162, 333 N.W.2d 206 (1983), lv. den. 419 Mich. 881 (1984), first argues that the trial court, in issuing its April 30, 1986, judgment, erred "by striking as surplusage the assessment of damages in the amount of $100,000 as to defendant Chrysler Corporation." Our review of the record reveals, however, that plaintiff's counsel consented in open court to the entry of a judgment providing, first, that zero damages be paid by Chrysler and, second, [177 MICHAPP 477] that plaintiff's court costs and attorney fees be paid by Chrysler. Now, on appeal, plaintiff argues that the judgment should have included language awarding her $100,000 in damages against Chrysler. A party is not allowed to assign as error on appeal something which his or her own counsel deemed proper at trial since to do so would permit the party to harbor error as an appellate parachute. Joba Construction Co., Inc. v. Burns & Roe, Inc., 121 Mich.App. 615, 629, 329 N.W.2d 760 (1982); People v. Roberson, 167 Mich.App. 501, 517, 423 N.W.2d 245 (1988). Moreover, consent judgments properly entered on the record in open court are binding on the parties absent a satisfactory showing of mistake, fraud or unconscionable advantage. Michigan Nat'l Bank of Detroit v. Patmon, 119 Mich.App. 772, 327 N.W.2d 355 (1982); Siegel v. Spinney, 141 Mich.App. 346, 350, 367 N.W.2d 860 (1985). In this case, plaintiff alleges no mistake, fraud or unconscionable advantage.

Second, plaintiff argues on appeal that "the trial court erred in entering orders assessing mediation penalties because the verdict was more favorable to the plaintiff than the mediation evaluation."

As already noted, this case was mediated on November 16, 1983, and resulted in an evaluation of $12,500 to be paid jointly by Chrysler and Verdugo. The judgment entered by the lower court provided that Chrysler pay plaintiff's costs and attorney fees. Plaintiff, however, never moved for determination and payment of her costs and attorney...