Skiver v. Durga

• Decision Date: 13 October 2022
• Docket Number: 358830,358931
• Parties: SHELLY K. SKIVER, Plaintiff-Appellee, v. GREGORY DURGA, Defendant, and SILVER SHORES MHC, LLC, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

SHELLY K. SKIVER, Plaintiff-Appellee,
v.
GREGORY DURGA, Defendant,

and SILVER SHORES MHC, LLC, Defendant-Appellant.

Nos. 358830, 358931

Court of Appeals of Michigan

October 13, 2022

UNPUBLISHED

Grand Traverse Circuit Court LC No. 20-035420-NO

Before: Markey, P.J., and Sawyer and Boonstra, JJ.

PER CURIAM.

In Docket No. 358830, defendant Silver Shores MHC, LLC (Silver Shores) appeals the judgment entered after a jury trial finding Silver Shores liable for injuries that plaintiff suffered when she was attacked by a dog that was owned by Silver Shores's lessee, defendant Gregory Durga (Durga).^[1] In Docket No. 358931, Silver Shores appeals the trial court's order awarding costs to plaintiff. These appeals were administratively consolidated by this Court.^[2] We affirm in both dockets.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

In July 2020, plaintiff filed suit against Durga and Silver Shores for injuries she suffered in May 2020 while she was walking her son's dog in a common area of the mobile home

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community operated by Silver Shores. Plaintiff, who was then approximately 61 years of age, alleged that she suffered a vertebral compression fracture and other injuries when Durga's pit bull, Emma, broke free from her restraint and attacked plaintiff (and the dog she was walking) as they walked by Durga's home. Plaintiff asserted that Durga had negligently kept Emma and was responsible for plaintiff's injuries. Plaintiff also asserted that Silver Shores was responsible for her injuries as the proprietor of the mobile home community. More specifically, plaintiff alleged that Silver Shores could be held liable under ordinary negligence and premises liability theories for failing to take any steps to enforce its own rules governing pets.

Plaintiff presented evidence at trial that the previous community manager for Silver Shores, Yvonne Stieve, knew that Durga kept Emma on the premises, even though he had not registered her with Silver Shores, and despite the fact that Silver Shores did not permit pit bulls. Plaintiff presented evidence from several witnesses who testified that Emma had, on more than one occasion, escaped from Durga's home and run loose in the mobile home park. One resident, Joshua Austin, testified that on one occasion Emma had cornered him in his shed and scared him. Austin stated that he thought that Emma was going to attack him, so he grabbed a piece of lumber to defend himself. He stated that he reported the incident to Stieve.

Deputy Matthew Karczewski testified regarding an incident in which he and two other officers responded to Silver Shores after receiving a report that a pit bull was aggressively chasing park residents. He testified that the officers chased Emma, but were unable to subdue her even after an officer sprayed her with pepper spray. The evidence suggested that Stieve was aware of that incident and helped contact Durga's son Kyle, who then got Emma under control.

The former field manager for the Silver Shores mobile home park, Tim Edgar, also testified that he was generally aware that Durga kept Emma. He told the jury that Emma had escaped several times. He was aware that several residents had complained about Emma to Silver Shores.

Silver Shores's current manager, Amy Miller, testified in defense of Silver Shores. She stated that she was unaware of Emma until the incident at issue, and that she commenced eviction proceedings against Durga after the incident. Durga also testified at trial and stated that he kept Emma despite being told by Silver Shores staff that he could not do so and that he hid Emma from Silver Shores staff.

After hearing all the evidence, the jury rejected Silver Shores's contention that it had no actual or constructive knowledge that Emma was on the premises and that it therefore was not responsible for plaintiff's injuries. The jury found that Durga and Silver Shores were both negligent and that their negligence had proximately caused plaintiff's injuries; it also found that plaintiff was not negligent. It then apportioned 40% of the fault to Durga and 60% of the fault to Silver Shores. The jury found that plaintiff had suffered $75,000 in past economic damages and would suffer $40,000 of economic damages each year for the next five years for a total of $200,000 in future economic damages. The jury found that plaintiff had suffered $37,500 in past noneconomic damages and would suffer $18,000 in future noneconomic damages for the next 23 years for a total of $414,000 in future noneconomic damages.

The trial court entered a judgment in plaintiff's favor in September 2021. The judgment awarded Plaintiff $290,600 against Durga, and $435,900 against Silver Shores. The trial court

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also entered an order awarding plaintiff more than $7,200 in costs. The order provided that Durga and Silver Shores were jointly and severally liable for the costs.

These appeals followed.

II. DENIAL OF MOTION FOR SUMMARY DISPOSITION

Silver Shores argues that the trial court erred by denying its motion for summary disposition. We disagree.

A. ISSUE PRESERVATION

As a threshold issue, we note that several of the arguments Silver Shores makes on appeal were not made before the trial court. To preserve an issue for appellate review, the party asserting the claim of error generally must establish that the issue was raised in the trial court. See Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227; 964 N.W.2d 809 (2020). In its motion for summary disposition, Silver Shores argued that the trial court should dismiss plaintiff's common-law negligence claim because it had no knowledge that Emma was vicious or had any dangerous propensities-indeed, it argued that it did not know that Emma existed at all. It similarly argued that it could not be liable under a premises liability theory for the same reasons. Finally, it argued that plaintiff was not a party to the lease and that the duty arising under MCL 554.139 therefore did not apply to her.

However, Silver Shores did not argue before the trial court-as it now argues on appeal--that plaintiff had to prove that Silver Shores knew that Emma was vicious-as opposed to merely dangerous-and did not argue that a "should have known" standard did not apply. It also did not argue that plaintiff had to show that Silver Shores had knowledge about Emma closer in time to the date of the incident at issue. Silver Shores also did not argue that the trial court should disregard this Court's decision in Klimek v Drzewiecki, 135 Mich.App. 115; 352 N.W.2d 361 (1984),^[3] and conclude that an animal cannot be a condition on the land.

Accordingly, three of Silver Shores's claims of error regarding the trial court's denial of its motion were not, in fact, raised in that motion. Moreover, although Silver Shores did raise the issue of notice in its motion, it did not argue that the requisite notice had to be notice of viciousness. Similarly, Silver Shores tangentially noted that it did not own or possess Emma when discussing the common-law duty involving animals, but it did not state that the common-law action could only apply to persons who owned or possessed the animal. These issues were therefore only partially preserved. The only issue that was fully preserved was whether plaintiff had a contractual relationship with Silver Shores that implicated MCL 554.139.

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In a civil case, when a party fails to preserve an issue for appellate review by raising it in the trial court, this Court generally treats such failure as a waiver. See Bailey v Schaaf (On Remand), 304 Mich.App. 324, 344-345, 345 n 5; 852 N.W.2d 180 (2014), vacated in part on other grounds 497 Mich. 927 (2014). Although this Court has the discretion to review unpreserved claims of error, our Supreme Court has cautioned that this Court must do so only sparingly and only to prevent a miscarriage of justice. See Napier v Jacobs, 429 Mich. 222, 233-234; 414 N.W.2d 862 (1987). An erroneous jury verdict that results in an award of damages does not constitute a miscarriage of justice that would warrant the exercise of this Court's discretion to review an unpreserved claim. Id. (stating that the loss of a favorable jury verdict does not amount to a manifest injustice, even though it cost the appellant $60,000). Given our Supreme Court's guidance, we decline to consider Silver Shores's unpreserved arguments as a ground for reversing the trial court's decision on the motion for summary disposition.

Notwithstanding its failure to preserve several of these arguments, Silver Shores suggests that this Court can consider these arguments because this Court's standard of review is de novo. But our Supreme Court has stated that courts are not the research assistants of the litigants; rather, it is the duty of the parties to present fully their legal arguments to the court for resolution. Walters v Nadell, 481 Mich. 377, 388; 751 N.W.2d 431 (2008). And although this Court reviews de novo a trial court's decision on a motion for summary disposition, see Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009), this Court's authority to review such motions is circumscribed. This Court must review the motion in the same manner as it was presented to the trial court. See Jackhill Oil Co v Powell Prod, Inc, 210 Mich.App. 114, 117; 532 N.W.2d 866 (1995). This Court is not at liberty to expand the record to include evidence and arguments that were never presented to the trial court. See Barnard Mfg, 285 Mich.App. at 380-381. Indeed, as our Supreme Court has stated, "there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right." Napier, 429 Mich. at 228-229 (quotation marks and citation omitted). Accordingly, we reject Silver Shores's attempt to expand our review of its motion for summary disposition to include arguments and evidence not raised...