Marshall Lasser, PC v. George, Docket No. 226920.

• Decision Date: 02 July 2002
• Docket Number: Docket No. 226920.
• Citation: 651 N.W.2d 158,252 Mich. App. 104
• Parties: MARSHALL LASSER, PC, Plaintiff-Appellant, v. Patricia May GEORGE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

651 N.W.2d 158

252 Mich. App. 104

MARSHALL LASSER, PC, Plaintiff-Appellant, v. Patricia May GEORGE, Defendant-Appellee.

Docket No. 226920.

Court of Appeals of Michigan.

Submitted January 16, 2002, at Detroit.

Decided July 2, 2002, at 9:00 a.m.

Released for Publication September 24, 2002.

Fred S. Findling, Royal Oak, for the plaintiff.

Riecker, Van Dam, Barker & Black, P.C. (by Philip Van Dam and Wendy Davis Kanar), Midland, for the defendant.

Before: WHITBECK, C.J., and WHITE, P.J., and HOLBROOK, JR., J.

PER CURIAM.

In this statutory conversion action, plaintiff appeals as of right from a default judgment entered by the circuit court against defendant. We affirm.

In October 1997, plaintiff filed a civil complaint, including a timely demand for a jury trial. When defendant failed to file an answer, a default judgment was entered in plaintiff's favor. The court denied defendant's subsequent motion to have the default judgment set aside. During the next sixteen months, at five separate proceedings, evidence was presented to the court on the issue of damages. During this time, neither party objected to the proceedings, and both actively and vigorously participated in presenting their cases to the court. Before the entry of the default judgment, defendant had paid $166,000 in restitution to plaintiff. The trial court awarded plaintiff an additional $6,291 plus interest. Subsequently, the court denied plaintiff's motion for reconsideration.

Plaintiff first argues that the trial court erred in denying its motion for reconsideration. Plaintiff asserts that because it never explicitly withdrew its original demand for a jury trial, the court erred in proceeding with a bench trial on the issue of damages. We disagree.

The right to a jury trial in a civil action is permissive, not absolute. Const 1963, art 1, § 14; McKinstry v. Valley Obstetrics-Gynecology Clinic, PC, 428 Mich. 167, 183, 405 N.W.2d 88 (1987). MCR 2.508 sets forth the procedures to be followed by a party making a demand for a jury trial in a civil case. MCR 2.001. Plaintiff followed these procedures, making a proper demand for a jury trial in its two-count complaint. Plaintiff's general jury demand was for all facts and issues involved, which would necessarily include the issues of liability and damages. See Wood v. DAIIE, 413 Mich. 573, 582, 321 N.W.2d 653 (1982). Defendant was entitled to rely on plaintiff's jury demand. Mink v. Masters, 204 Mich.App. 242, 246, 514 N.W.2d 235 (1994). Pursuant to MCR 2.603(B)(3)(b), defendant's default on the issue of liability did not extinguish either party's right to a jury trial on the issue of damages. Mink, supra at 246-247, 514 N.W.2d 235. Once the right to trial by jury was secured, plaintiff needed defendant's consent to waive or withdraw the right to have the jury hear and decide the issue of damages. MCR 2.508(D)(3); Mink, supra at 247, 514 N.W.2d 235. Defendant does not argue on appeal that she did not agree to have the issue of damages decided by the court.

Both MCR 2.508(D)(3) and MCR 2.509(A)(1)¹ specify that once a proper demand for a jury trial has been made, an agreement of the parties to have all or some of the issues tried by the court must be expressed "in writing or on the record...." Resolution of plaintiff's first issue on appeal turns on how this six-word phrase is to be read. "The construction and interpretation of court rules is a question of law that we review de novo." Barclay v. Crown Building & Development, Inc., 241 Mich.App. 639, 642, 617 N.W.2d 373 (2000). "The rules governing the interpretation of statutes apply with equal force to the interpretation of court rules." Yudashkin v. Holden, 247 Mich.App. 642, 649, 637 N.W.2d 257 (2001).

These court rules clearly indicate that an agreement to waive a previously demanded jury trial can be accomplished by the filing of a writing memorializing the agreement. Such writing was not filed in the case at hand. The court rules also indicate that such an agreement can be expressed "on the record." We believe this phrase is ambiguous. While it could mean that the agreement can be orally entered into the record, the language does not necessarily limit the method of expression to a verbal declaration or exchange. We believe the "on the record" language also encompasses an expression of agreement implied by the conduct of the parties.

Indeed, the court rules themselves acknowledge that the waiver of the right to a jury trial can be implied by conduct under certain circumstances. For example, MCR 2.603 indicates that a party is subject to a default judgment if the party fails to appear at trial, even if the right to trial by jury had been previously secured. Under such circumstances, the failure to appear constitutes a waiver of a jury trial on the issue of liability, although the question of damages remains an issue for the jury. Wood, supra.

This does not mean, however, that the parties cannot also waive the remaining right to a jury trial on the issue of damages. It simply means that the right remains untouched by the failure to appear. Clearly, this right could also be waived if an agreement to do so had been reached. The right is that of the parties, not the judiciary.

We hold that, consistent with the court rules, the subsequent waiver of a properly demanded jury trial can be inferred from the conduct of the parties under a "totality of the circumstances" test. We caution that this examination must always be informed by an awareness of the importance trial by jury plays in our system of justice. See Dimick v. Schiedt, 293 U.S. 474, 485-486, 55 S.Ct. 296, 79 L.Ed. 603 (1935).²

As previously stated, plaintiff and defendant fully and actively participated in the bench trial on the issue of damages. The trial ranged over a period of sixteen months, and was addressed in five separate hearings. Both parties were given notice that the court would be deciding the damage issue. The defendant and the plaintiff's representative were present and both were represented by counsel. There is no indication in the record that plaintiff or defendant ever objected to the bench trial, nor is there any indication that either party proceeded under protest. Under the circumstances of this case, we believe both parties' acquiescence to the bench trial evidenced an agreement to waive the secured right. Southland Reship, Inc. v. Flegel, 534 F.2d 639, 644 (C.A.5, 1976). Plaintiff cannot now be heard to complain about the lack of a jury trial on the issue of damages, when by its own unequivocal conduct it waived this right. Id.; Bass v. Hoagland, 172 F.2d 205 (C.A.5, 1949). This is also in keeping with our longstanding rule against harboring error as an appellate parachute. See, e.g., Dresselhouse v. Chrysler Corp., 177 Mich.App. 470, 477, 442 N.W.2d 705 (1989) ("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."). Further, it would simply be unfair to allow a party to make a demand for a jury trial, participate without objection in a bench trial, and then attempt to overturn the results by claiming error based on the jury demand.

We also disagree with plaintiff's assertion that the trial court erred in the actual amount of damages awarded. Plaintiff argues that it presented evidence to support its claim of damages in the amount of $325,000. Where a court following a bench trial has determined the issue of damages, we review the award for clear error. Meek v. Dep't of Transportation, 240 Mich.App. 105, 121, 610 N.W.2d 250 (2000). We will not "set aside a nonjury award merely on the basis of a difference of opinion." Id. Clear error exists where, after a review of the record, the reviewing court is left with a firm and definite conviction that a mistake has been made. Jackson Co. Hog Producers v. Consumers Power Co., 234 Mich.App. 72, 91, 592 N.W.2d 112 (1999).

Plaintiff asserts that it provided sufficient proof of the amount claimed and that defendant's testimony regarding the amount embezzled should not be believed. This is a credibility argument, and we defer to the trial court's superior position to observe and evaluate witness credibility. Attorney General ex rel Director of Dep't of Natural Resources v. Acme Disposal Co., 189 Mich.App. 722, 724, 473 N.W.2d 824 (1991).

In any event, after reviewing the record, we are not left with a firm and definite conviction that the trial court erred. We agree with the trial court that plaintiff has not met its burden of proof. In effect, plaintiff argued in large part below that because defendant is an admitted wrongdoer, a presumption should be raised that her testimony on the amount taken was incredible, and that plaintiff was accordingly due the damages claimed. The trial court was free to reject this position.

We also agree with the trial court that plaintiff's other proofs were too speculative to satisfy the award it was seeking. For example, plaintiff asserted that because its postage costs increased during the years defendant worked for plaintiff and decreased after she was fired, she necessarily must have stolen postage during the years of her employment. The trial court was free to reject this argument as too speculative to support plaintiff's claim of damages related to stolen postage. It does not address any of the other myriad of potential variables that could have affected the increase during the years of defendant's employment. It is also fallacious to argue that simply because some event occurred after another (a decrease in postage rates following the termination of defendant's employment), the former is responsible for the latter.

Plaintiff's claim of lost opportunity costs is similarly speculative. In support of this claim plaintiff presented the testimony of a certified public accountant. However, the accountant's calculations were entirely based...