Stallworth v. Hazel

• Decision Date: 19 April 1988
• Docket Number: Docket No. 96789
• Citation: Stallworth v. Hazel, 421 N.W.2d 685, 167 Mich.App. 345 (Mich. App. 1988)
• Parties: Camille STALLWORTH, Plaintiff-Appellant, v. William HAZEL, Defendant-Appellee.
• Court: Court of Appeal of Michigan

Page 685

421 N.W.2d 685

167 Mich.App. 345

Camille STALLWORTH, Plaintiff-Appellant, v. William HAZEL, Defendant-Appellee.

Docket No. 96789.

Court of Appeals of Michigan.

Submitted Dec. 16, 1987.

Decided March 21, 1988.

Released for Publication April 19, 1988.

Monash, Monash & Goldberg, P.C. by Harold B. Goldberg, Detroit, for plaintiff-appellant.

Gerald A. Sniderman, Southfield, for defendant-appellee.

Before WALSH, P.J., and McDONALD and NICOLICH, ^* JJ.

McDONALD, Judge.

Plaintiff appeals as of right from the trial court's denial of her motion for judgment notwithstanding the verdict, for new trial, and for relief from judgment. MCR 2.610, 2.611, 2.612. We affirm.

On December 17, 1984, plaintiff filed a paternity complaint against defendant, alleging that defendant was the father of Jennifer Hazel, who was born on February 28, 1982, and conceived on or about June 15, 1981. Defendant denied paternity, claiming that his son, Leroy Hazel, was the child's father. At a pretrial hearing the parties stipulated that Leroy would submit to a blood test and polygraph examination, and Leroy consented to this arrangement. However, no blood test or polygraph was administered to Leroy prior to trial.

At trial defendant testified that he and plaintiff did not have intercourse after March 1, 1981, the night he allegedly found plaintiff and his son, Leroy, in bed together. According to defendant, plaintiff and Leroy began living together. Sometime in July plaintiff allegedly phoned defendant and told him that she and Leroy were having a baby and that defendant was going to pay for it. Plaintiff then told defendant that if he paid Leroy $5,000 and plaintiff $2,500 she would not "press it."

Plaintiff testified that she met defendant in 1979 and began living with him in January, 1981. She lived with defendant on and off until November 13, 1981. Plaintiff denied having intercourse with anyone else while living with defendant and denied having intercourse on any occasion with Leroy. Plaintiff introduced into evidence the results of a blood test which indicated a 99.9 percent probability that defendant, as compared to a random man, was the father of Jennifer Hazel.

Leroy Hazel testified that he never had intercourse with plaintiff and that in January, 1984, defendant asked him how much it would cost defendant for Leroy to say that the child was Leroy's. Defendant allegedly suggested that Leroy claim the child because child support would be considerably less based on Leroy's income than on defendant's. Leroy stated that he did not take the blood test because he became suspicious of plaintiff's attorney and because he became aware that the person who was to administer the polygraph examination had been convicted of taking bribes.

A note written to plaintiff by defendant, which suggested that plaintiff and defendant were cohabiting at the time the note was written, was introduced into evidence. Defendant admitted that he wrote the note but denied putting the date, 10/22/81, on it.

The jury found that defendant was not the father of Jennifer Hazel. Plaintiff's motion for judgment notwithstanding the verdict was denied. Plaintiff also moved for a new trial, pursuant to MCR 2.611, and for relief from the judgment, pursuant to MCR 2.612. At this time, plaintiff produced the results of a blood test which excluded Leroy Hazel as the father of Jennifer Hazel. Plaintiff also produced the opinion of a handwriting analyst that the date 10/22/81, appearing on the letter which was introduced into evidence, was written by defendant.

The court denied plaintiff's motions. It ruled that the blood test results and the handwriting analysis could have been discovered before trial by the exercise of due diligence. It also ruled that the verdict of the jury was not against the great weight of the evidence.

Plaintiff now appeals from the denial of her motions for judgment notwithstanding the verdict, for a new trial, and for relief from judgment. We affirm.

In reviewing a trial court's denial of judgment notwithstanding the verdict, this Court should inquire whether the jury's verdict was against the great weight of the evidence, Beard v. Detroit, 158 Mich.App. 441, 404 N.W.2d 770 (1987). Furthermore, the decision of the trial court is afforded great deference because the trial judge, having heard the witnesses, is uniquely qualified to judge the jury's assessment of the witnesses' credibility. Beard, supra. If reasonable minds could differ as to whether plaintiff satisfied her burden of proof, judgment notwithstanding the verdict would have been improper. Production Finishing Corp v. Shields, 158 Mich.App. 479, 405 N.W.2d 171 (1987). In this case, reasonable minds could differ as to whether plaintiff proved by a preponderance of the evidence, Huggins v. Rahfeldt, 83 Mich.App. 740, 269 N.W.2d 286 (1978), that defendant was the father of Jennifer Hazel. Defendant testified that he did not have intercourse with plaintiff after March 1, 1981. Plaintiff estimated that the child was conceived on June 15 or 16, 1981. Defendant further testified that he had seen plaintiff engage in intercourse with defendant's son, Leroy Hazel, and that plaintiff had told defendant "Leroy and I are going to have a baby." Although a blood test indicated a 99.9 percent probability that defendant was the father as compared to any random man, a genetics expert testified that similar numbers might be generated in blood tests of male relatives of defendant, due to the genetic similarity between relatives. No analysis of Leroy Hazel's blood was submitted at trial.

Plaintiff's testimony was diametrically opposed to that of defendant. She testified that she had intercourse with defendant on June 15 or 16, 1981, and that she lived with him until November 13, 1981. Plaintiff and Leroy Hazel both testified that they had not engaged in intercourse.

The conflicting testimony in this case required the jury to judge the credibility of the parties, and that jury decided in favor of defendant. The trial court's judgment of the jury's assessment of the credibility of the witnesses should not be disturbed on appeal.

MCR 2.611(A)(1) provides for a new trial for the following reasons:

"(a) Irregularity in the proceedings of the court, jury, or prevailing party, or an order of the court or abuse of discretion which denied the moving party a fair trial.

"(b) Misconduct of the jury or of the prevailing party.

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"(e) A verdict or decision against the great weight of the evidence or contrary to law.

"(f) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at trial.

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"(h) A ground listed in MCR 2.612 warranting a new trial."

Plaintiff has asserted on appeal that a new trial should have been granted pursuant to MCR 2.611(A)(1)(a), (b), (e) and (h). She thus claims that a new trial should have been granted because of irregularities in the proceedings which denied her a fair trial, because of defendant's misconduct, and because the jury's verdict was against the great weight of the evidence.

Misconduct of Defendant

At the hearing on the motion for a new trial, plaintiff produced blood test results which indicated that Leroy Hazel was excluded as the father of Jennifer Hazel. Plaintiff thus concludes that defendant's testimony concerning the sexual relationship between plaintiff and Leroy Hazel was a deliberate misrepresentation, resulting in fraud and requiring a new trial.

The blood test does indicate that Leroy Hazel is not the father of Jennifer Hazel. However, it does not prove that defendant testified falsely when he stated he saw plaintiff and Leroy engaging in sexual intercourse. The claim that defendant's misconduct in so testifying requires a new trial is therefore without merit.

Next, plaintiff asserts that defendant perjured himself by stating that the date 10/22/81, on a note from defendant to plaintiff, was not written by defendant. At the hearing on the motion for a new trial, plaintiff produced the opinion of a document examiner that the date on the letter was written by defendant.

The discovery that testimony introduced at trial was perjured may be grounds for ordering a new trial, People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977). In Barbara, supra, the defendant's claim that trial testimony had been perjured was based on newly discovered evidence, specifically statements by two new witnesses that a trial witness had lied. The Court in Barbara discussed the standard for granting a new trial based on newly discovered evidence. See also People v. Bell, 74 Mich.App. 270, 253 N.W.2d 726 (1977); People v. Louis Williams, 77 Mich.App. 119, 258 N.W.2d 68 (1977).

In this case too, plaintiff's claim that defendant perjured himself is dependent upon newly discovered evidence, specifically a handwriting analysis indicating that the date on the letter admitted at trial was, contrary to defendant's testimony, written by defendant. Because plaintiff's claim that defendant perjured himself is dependent upon newly discovered evidence, the motion should be treated as one based on new evidence. A motion for a new trial based upon newly discovered evidence could be granted only if the newly discovered evidence "could not with reasonable diligence have been discovered and produced at trial," MCR 2.611(A)(1)(f). The trial court's denial of a new trial will not be reversed on appeal unless it was an abuse of discretion. Willett v. Ford Motor Co., 400 Mich. 65, 253 N.W.2d 111 (1977).

The trial court did not abuse its discretion in denying a new trial in this case. Plaintiff could have produced at trial the evidence which was presented in a posttrial motion. Because plaintiff could have, with due diligence, produced the opinion of a document examiner at trial, the posttrial production of the evidence does not warrant a new trial.

Procedural Irregularities

Plaintiff apparently argues...