[DENYING DEFENDANT GRATIOT PLACE'S MOTION FOR JNOV OR NEW TRIAL - PARTIES TO AGREE ON FORM OF FINAL JUDGMENT ASAP, OR BRING DISPUTES ON FOR HEARING.]

AT A SESSION OF SAID COURT, HELD AT THE COURTHOUSE IN THE CITY AND COUNTY OF SAGINAW, STATE OF MICHIGAN

THIS 29 DAY OF DECEMBER A.D. 2010.

BEFORE THE HONORABLE JANET M. BOES, CIRCUIT JUDGE.

On June 11, 2010, following an eleven-day trial, the jury returned a verdict in favor of Plaintiffs and against the then-remaining two Defendants: Mary Mroz and Gratiot Place, LLC.[1] Defendant Mroz was dismissed after trial pursuant to a “high-low” agreement. Gratiot Place objected to entry of final judgment on the verdict, arguing that it is entitled to judgment notwithstanding the verdict (JNOV), or, in the alternative, to a new trial. Having considered the mounds of paper filed for and against the Motion[2], having considered the testimony and argument presented at the hearing of the Motion held on September 24, 2010, and having otherwise reviewed the record and applicable law, the Court DENIES both the motion for judgment notwithstanding the verdict, as well as the alternative prayer for a new trial. The jury verdict stands, and judgment should be entered as soon as possible.

THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV)

Gratiot Place first seeks judgment notwithstanding the verdict (in Latin, judgment non obstante veredicto, thus the acronym “JNOV”), pursuant to MCR 2.610. See Motion, Para 1-31. The standard for obtaining a JNOV is well-settled:

“[T]he trial court should grant a JNOV motion only if, reviewing the evidence and all legitimate inferences in favor of the nonmoving party, ‘the evidence fails to establish a claim as a matter of law.’ “Foreman v Foreman, 266 Mich.App 132, 136; 701 NW2d 167 (2005), quoting Wiley v. Henry Ford Cottage Hosp., 257 Mich App 488, 492; 668 NW2d 402 (2003). Furthermore, “[w]hen the evidence presented could lead reasonable jurors to disagree, the trial court may not substitute its judgment for that of the jury.” Id.

Judgment notwithstanding the verdict is a form of judgment as a matter of law. The instant JNOV Motion is the fourth time in this litigation that Gratiot Place has sought dismissal as a matter of law. Defendant filed two motions for summary disposition prior to trial, based upon a “cold” record, as well as a motion for directed verdict after Plaintiffs rested, based upon a “live” record. All prior motions were denied, on this Court's repeated finding that the record before it presented genuine issues of fact that had to be resolved by a jury, not a judge. The Court finds Defendant's latest attempt no more convincing than the earlier three. The Court continues to believe that there were genuine issues of fact on which the jury might have gone either way, and that it would have been, and would be, reversible error for this Court to resolve these issues as a matter of law.[3]

At the hearing on the present Motion, counsel for Gratiot Place stated that he “could not understand” how the jury reached the verdict that it did, and that there was “no way” the jury could not find that any danger its premises presented to Heather Veremis was “open and obvious”. In this, Gratiot Place falls into the same error that led the Court of Appeals to write in Mitchell v Daly, 133 Mich App 414, 427; 350 NW2d 772 (1984),

“Defendant forgets that the jury was just as entitled to believe plaintiff's version of the events as his.”

Setting aside a jury verdict is “a step that should not be taken without sound reasons”. Benmark v Steffen, 9 Mich App 416, 421; 157 NW2d 468 (1968). As our Supreme Court wrote in Gleason v Sutter, 350 Mich 292, 297; 86 NW2d 288 (1957),

“The resolution of disputed questions of fact lies peculiarly within the province of our juries, and when once they have acted, guided by fair and adequate instructions on the law by the court, that should be the end of the line...”

Gratiot Place's motion for judgment notwithstanding the verdict is denied.

ALTERNATIVE MOTION FOR NEW TRIAL

Foreseeing the possibility that Court might not grant its request for JNOV, Gratiot Place moves in the alternative for a new trial pursuant to MCR 2.611. Motion, Para 32-40. Defendant contends it was denied a fair trial “due to bias and improper conduct” by Juror and Jury Foreman Derrick Meyer. Gratiot Place charges:

1 that during the trial, Meyer was in communication with Plaintiffs via the online Facebook website;

2 that Meyer untruthfully stated in voir dire that he had been in a motor vehicle accident not unlike Plaintiffs;

3 that Meyer failed in voir dire to disclose a number of civil lawsuits that had been filed against him, or that he had been discharged in bankruptcy.

Defendant also asserts:

4 that the transcript of a deposition read at trial was improperly sent into the jury room during deliberations.

The Court emphasizes that its consideration of these claims is limited to properly-admissible evidence. The Affidavit of [Juror] Mary Pringle, as well as the attached unsworn statement of Mary Pringle,[4] both purport to relate matters that took place in the jury room, and is not admissible. As stated in the case of Hoffman v Monroe Public Schools,[5]

“We hold that in all cases, whether civil or criminal, once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. After that point, oral testimony or affidavits by the jurors may only be received on extraneous or outside errors (such as undue influence by outside parties), or to correct clerical errors or matters of form.”[6]

Likewise, certain portions of the Affidavit of Derrick Meyer[7] -- Para 7, 8, 10, 11 and 12 - are inadmissible, for the same reason. The Court cannot and does not consider these submissions in deciding this Motion.

The Court will now consider the various misconduct claims in turn.

1 Claim That Juror Meyer “Friended” the Plaintiffs on Facebook Prior to Return of Verdict: As this case shows, the recent entry of the Internet into our lives has great potential to cause problems for the judiciary.[8] In its Motion (Para 39-40), Defendant contends that printouts from Juror Meyer's Facebook page (Motion, Exhibit C) show that Meyer became a “Facebook friend” with Plaintiffs at some time between June 8 at 4:18 PM and June 11 at 7:49 AM. The Court notes that the jury returned its verdict at around 11:30 AM on June 11. Defendant says that pre-verdict communications between the Juror and Plaintiffs tainted the verdict in this case. Plaintiffs admit to communications with the Juror, but only after the verdict and discharge of the jury

Defendant presented the oral testimony of private investigator Thomas Murphy to support its theory of pre-verdict Facebook contacts. Defendant did not - wisely - seek to qualify Murphy as an expert in Facebook or other online communications. Murphy did not display sufficient knowledge of how Facebook operates to prove that the dates and times appearing on Juror Meyer's Facebook printout prove that any plaintiff-juror contacts occurred before the verdict was returned. There was not reliable testimony as to how the times and comments appearing on a Facebook page correlate to the actual times posted.

Both Plaintiffs, their counsel, and Juror Meyer vehemently deny that any communications occurred prior to the verdict.[9] The Court finds that there was no communication between the Plaintiffs and the Juror during the trial, and none of them knew each other previously. The Affidavits and oral testimony give the following account of what happened, which the Court credits.

On June 11, 2010, the verdict was returned, and the Court thanked the Jurors and discharged them from further service in the case. Plaintiffs had numerous exhibits in the courtroom that needed to be carried to their attorney's car. Plaintiffs' attorney, Kurt Hauffe, his father, Irwin Hauffe II, and Tad Veremis assisted in carrying the exhibits to the parking lot. Heather Veremis accompanied them.

After placing the exhibits in Kurt Hauffe's car, Juror Meyer “happened to drive by as if to exit the parking lot”[10]. Meyer, while remaining in his car, greeted the four others and had a brief conversation with Heather and Tad Veremis, which included mention that Tad Veremis and the Juror had similar employments experiences, in that both worked for car dealerships. Meyer asked whether the Veremises were familiar with the online Facebook website, and they discussed further communication through Facebook. Tad Veremis states that it was around 4 PM on June 11 - that is, several hours after the verdict was returned and the jury discharged - that he accepted Meyer's Facebook invitation to become a “Facebook friend”.

Since the Court finds that there was no impropriety whatsoever, Gratiot Place's claim of error fails.[11]

2 Alleged Lying About Motor Vehicle Accident: When counsel for Gratiot Place took his turn in voir dire, he asked potential jurors if anyone was “ever involved in a very minor accident, no injuries, no nothing”? [VD Tr. II 18]. Meyer told of an accident while he was driving down Davenport, where another driver “turned right into me to make a left and spun me out”. On further questioning, Meyer supplied further details about the accident but testified that there was “No injury” from the impact [VD Tr. II 19-20].

Gratiot Place essentially accuses the Juror of making up a story about the accident, stating (Motion, Para 36) that “a review of police records” and the Juror's “driving record” fail to reveal an accident. Defendant's search would appear to have been inadequate. Plaintiffs present as Exhibit 6 to their response a Saginaw City Police Department Traffic Crash Report showing that Juror Meyer was in such an accident in December, 2002. Defendant does not continue to press this argument, either in its Reply Brief or at oral argument, and the Court treats this issue as abandoned.

3 Failure to Disclose Other Lawsuits, or Bankruptcy: It is this Court's practice to begin jury selection by asking some standard questions, then turning questioning over to counsel. In one of those standard questions, the Court asked in this case: “Has any one of you ever been a plaintiff or a defendant in a lawsuit of any type?” [VD Tr. 1 23]. Meyer disclosed that he had been involved in a “landlord/tenant” matter: “I was the landlord”; that he could not recall the name of the presiding judge, and that it had been “a couple years ago” [VD Tr I 23]. Meyer testified that there was nothing about the experience that made him think he “couldn't be fair to both sides in this case” [VD Tr. 1 23].

Defendant attaches documents (Motion, Exhibit F) showing that Meyer was defendant in at least six civil cases in the 70th District Court, with judgments being entered in all cases. Exhibit F also includes documents from a bankruptcy filing by Derrick and his wife, Heidi Meyer. At the evidentiary hearing held on the instant Motion, Juror Meyer conceded that he did not disclose the other legal proceedings in response to the Court's verbal inquiry, but stated that he basically equated “lawsuit” with “trial”; that the other civil cases had been resolved by default judgment. against him; and that he had never physically “gone to court” for a “live” trial in those cases.[12]

The Court rejects Gratiot Place's contention that Juror Meyer's failure to disclose the prior civil proceedings against him, as well as his federal bankruptcy proceeding, justify setting aside a verdict entered after an 11-day trial. The governing rules are well-stated in the early Court of Appeals case of Citizens Commercial & Savings Bank v Engberg.[13] Although noting that “[t]here is no question that a litigant is entitled to a truthful answer from a prospective juror during his voir dire examination”, the Court states:

“However, upon discovery of a juror's false statements after a trial and verdict, a moving party must present to the court something more than the mere fact of the falsity of the answers. There must either be a showing of actual prejudice ... or it must be established to the satisfaction of the trial court that the moving party would have successfully challenged for cause or otherwise dismissed the juror in question had the truth been revealed prior to trial.” (Internal citations omitted.)

The Court wrote in conclusion,

“Absent a showing of actual prejudice or proof that a challenge for cause would properly have been successful, or proof of circumstances that would indicate the moving party would have been more likely than not to have excused the juror on a peremptory challenge, it cannot be said that the trial court abused its discretion in refusing to grant a new trial.” (15 Mich App at 441.)

Defendant does not assert that it could, or should, have been able to excuse Juror Meyer for cause had the prior lawsuits been disclosed. Defendant does assert that, had it been in possession of that information, that it would have exercised a peremptory challenge. The Court finds that Defendant has not shown that it is “more likely than not” that it would have excused Meyer using a peremptory challenge. On the contrary, there were two factors disclosed by Meyer's voir dire answers that weighed in favor of Defendant retaining Meyer on the jury.

First, Meyer testified to having been in a motor vehicle accident but suffering no injuries Gratiot Place took the position at trial that the accident involved was a “minor fender-bender” which could not possibly have resulted in the severe and permanent injuries that Plaintiff alleged. Meyer's experience suggested that he might well be receptive to that argument.

Second, Meyer responded favorably to a question asking if any of the potential jurors thought “there are too many frivolous lawsuits out there” [VD Tr. II 36-38], stating that

“I think a lot of money is spent to solve issues that could be solved otherwise, you know, outside of courtrooms. I mean, I think about, like the coffee spilled in the guy's lap at McDonald's. I mean, you know, stuff like that.” [VD Tr. II 36.]

On further questioning, Meyer characterized his understanding of the McDonald's case as “some coffee spilled” and “a person got more than million [dollars]”. The clear implication was that Meyer thought that something relatively minor had resulted in an excessive award. Again, this suggested that Meyer would be receptive to a defense point of view in considering the evidence at trial. For these reasons, the Court concludes that Defendant has not shown by a preponderance of the evidence that it would have excused Juror Meyer on a peremptory challenge.

Finally, as Plaintiffs point out, Defendant cannot ultimately show any prejudice due to Meyer's presence on the jury. Eight jurors were seated in this case, and all parties stipulated that, rather than excusing two as alternates, that all eight should deliberate, and that concurrence of six jurors would be sufficient for a valid verdict. The verdict eventually returned was joined in by seven jurors, with one juror (the Affiant, Mary Pringle) dissenting. Even if it be assumed that Gratiot Place would indeed have used a peremptory to excuse Meyer, there still would have been six jurors - sufficient for a verdict-- who ultimately concurred in that verdict

4 Presence of Deposition Transcript in Jury Room: Ken Westlund is the principal of the Gratiot Place limited liability company, and was the leading force behind development of the Gratiot Place shopping plaza. Westlund was listed as a witness in this matter. During the discovery phase of this case, his deposition was taken, ostensibly for discovery purposes only. However, Westlund did not attend any part of the trial of this case. It was stated that Westlund was in Florida.

In Westlund's absence, the parties stipulated that the deposition should be redacted in part, and the remaining portions read to the jury, which was done. Significantly, Gratiot Place's attorney - or someone acting at his behest - marked the redacted deposition transcript as an exhibit by affixing a standard exhibit sticker.

During deliberations, the jury sent out a note asking to review certain exhibits. It is this Court's standard policy that, whenever any exhibit is requested, the Court sends in all of the exhibits. Counsel was advised of this procedure at the time the jury began deliberations.

Because of serious prior problems with unauthorized materials being sent to the jury room in the Saginaw County Circuit Court,[14] this Court, and its staff, take great pains to impress upon trial counsel, at the time the jury is sent out to deliberate, that counsel need to get together, go through the stack of alleged exhibits (which normally is resting on the court reporter's desk), and verify that all the materials are indeed properly admitted exhibits and appropriate to give to the jury.[15] Despite this care, none of the attorneys, including Gratiot Place's attorney, objected to the Westlund Deposition transcript's presence in the stack of materials the bailiff took to the jury room.

Despite the absence of any contemporaneous objection, Defendant states in its Motion (Para 41.d. at p 7):

“The jury was improperly given the deposition of Ken Westlund - [and] that the review of portions of this improperly provided document, which had been redacted, was a basis for the decision concerning liability of Gratiot Place.”

Whatever use was or was not made of the deposition once it was in the jury room requires inquiry into the deliberation process. The Court has already ruled that such “evidence” (the Mary Pringle Affidavit, portions of the Derrick Meyer Affidavit) is inadmissible.

Defendant fails to show that the presence of the deposition in the jury room prejudiced its right to a fair trial. Moreover, by its marking of the deposition as an exhibit, and then failing to see that the transcript was retrieved from the stack of proper exhibits before the collection was taken to the jury room, Gratiot Place invited any error and cannot now complain of it.[16]

CONCLUSION

None of Gratiot Place's claims of error stand up to scrutiny. For the reasons set forth above, the Motion for Judgment Notwithstanding the Verdict, or for New Trial, is DENIED.

After the present Motion was submitted for decision, Gratiot Place filed an amended objection to the proposed final judgment presented by Plaintiffs, alleging that any judgment needed to be adjusted to account for certain collateral source payments (Social Security Disability). Counsel should work together and attempt to agree upon a form of judgment. If agreement cannot be reached, Plaintiffs' counsel should submit a proposed judgment and notice the matter for hearing at an early date. Defendant should indicate its objections and writing and present its own counter-proposal for a final judgment.

IT IS SO ORDERED.

JANET M. BOES

(P37714)

JANET M. BOES (P37714)

CIRCUIT COURT JUDGE

A TRUE COPY OF THE FOREGOING SERVED UPON ALL PARTIES OF RECORD PURSUANT TO MCR 8.105(C), MCR 2.107(D) TO:

Kurt P. Hauffe (for Plaintiffs);

John A. Chasnis (for Defendant Gratiot Place LLC)

COUNTER-SIGNED:

<<signature>>

DEPUTY CLERK

Footnotes

[1] The parties stipulated that all eight jurors seated in the case should deliberate, and that six of eight would be sufficient for a verdict. The ultimate verdict was seven in favor, one dissenting (Ms. Mary Pringle). Unless otherwise indicated, in this decision, the term “Defendant” refers to Gratiot Place.

[2] Defendant, Gratiot Place's Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for New Trial (July 9, 2010); Brief in Support of Defendant, Gratiot Place's Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for New Trial (July 9, 2010); Defendant Gratiot Place LLC's Supplemental Brief for Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial (July 21, 2010); Plaintiffs' Reply and Brief in Opposition to Defendant's Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for New Trial - Evidentiary Hearing Requested (August 10, 2010); Reply Brief of Defendant, Gratiot Place Regarding Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial (August 20, 2010). Each date is date of filing with the Clerk as shown by the Register of Actions. The Court does not consider the unpublished case submitted by Gratiot Place on October 19, 2010, for three reasons: (1) the Court's Briefing Schedule specifically provides that no additional submissions were to be made without leave of the Court, which was neither sought nor given; (2) unpublished decisions are not binding in any event; and (3) the published decisions cited in the unpublished opinion were available to Gratiot Place at the time briefing on this Motion was being prepared.

[3] The Court's explanations for denial of the earlier motions for summary judgment, as well as directed verdict, shall be deemed incorporated herein.

[4] Exhibit B to Gratiot Place's original Motion for JNOV or New Trial.

[5] 96 Mich App 256, 261; 292 NW2d 542 (1980).

[6] This is a principle of longstanding in Michigan jurisprudence. See, e.g., Sharp v Merriman, 108 Mich 454; 66 NW 372 (1896) (“It is the universal rule that the affidavits of jurors are not admissible to impeach their verdict by showing misconduct in the jury room”); Hewitt v Chapman, 49 Mich 4; 12 NW 888 (1882) (“When ... the jury retire to deliberate upon their verdict to be given, their conversations and discussions, their deliberations, cannot be inquired into.”).

[7] Exhibit 7 to Plaintiffs' Reply and Brief in Opposition.

[8] See generally, annotation, Prejudicial effect of juror misconduct arising from internet usage, 48 ALR6th 135 (2009); I'm a Bit Flummoxed by Facebook Admits Justice Breyer,posted 11/16/2010 at http:// www.abajournal.com.

[9] See Affidavit of Derrick Meyer, Affidavit of Heather Veremis, Affidavit of Tad Veremis, Affidavit of Irwin F. Hauffe II (father of Plaintiffs' lawyer, and himself a lawyer); Affidavit of Kurt P. Hauffe (Plaintiffs' attorney). The foregoing Affidavits are attached as Exhibit 7 to Plaintiffs' Reply. Heather and Tad Veremis, as well as Derrick Meyer, also briefly testified “live” at the Motion Hearing, and reaffirmed their sworn statements given in the Affidavits. Their demeanor at the hearing indicated how insulted Meyer and the Veremises were at such a serious charge, and all three indicated a willingness to take a polygraph examination to disprove what Heather Veremis termed a “ridiculous” claim.

[10] Affidavit of Irwin F. Hauffe II, Para 4.

[11] The Court is concerned about the Juror's statements to the effect that Defendant, through its attorney, sent its investigator around, including to his place of employment, making inquiries about him in a manner calculated to suggest that he was being investigated for wrongdoing. Jurors, both during and after trial, are under the protection of the Court. As one commentator writes,

“For many years the law has disfavored attorney contacts with jurors after the conclusion of litigation. The courts have long been concerned that, by inquiring into the merits of a jury's deliberations, an area outside of the permissible scope of a motion for a new trial, lawyers would unduly harass jurors and create needless issues for posttrial litigation.” Annotation, Propriety of attorney's communication with jurors after trial, 19 ALR4th 1209 (1983, with updates).

As one opinion states, “... [A]n attorney's contact with jurors that is abusive or harassing in any way would violate ethical rules of conduct and would expose the attorney to unhesitating sanction by the court.” Struski v Big Y Goods, Inc. 28 Conn L Rptr 172; 2000 WL 1429478 (Conn Super Ct, 2000).

[12] Judges and lawyers, who deal constantly with the language of the law, may forget that laypeople can be, and often are, extremely vague in their understanding of basic legal terms such as “lawsuit”, “plaintiff” and “defendant”. See generally, In re Estate of Craigen, 305 SW3d 825 (Tex App, 2010) (layperson may not be familiar with technical legal meanings); Garcia v Attorney-General, 462 F3d 287 (CA 3, 2006) (“a layperson cannot fully understand legal terms of art”); Iannace v Rogers, 2006 WL 2038492 (D NJ, 2006) (“mistaken reading” of legal terms by layperson “understandable”).

[13] 15 Mich App 438, 439-440; 166 NW2d 661, 663 (1969).

[14] The case of Mays v Schell, No. 00-34067-NH-3, was on the docket of this Court's predecessor, Hon. Lynda L. Heathscott, and was tried in this Court's courtroom. During the first trial of that case, the jury was given not only the properly admitted exhibits, but defense counsel's banker's box containing numerous other records, including defense counsel's notes. Judge Heathscott granted a new trial; the Court of Appeals initially reversed, 268 Mich App 432; 706 NW2d 892 (2005). The Supreme Court granted leave, and in a peremptory order, reversed the Court of Appeals and reinstated Judge's Heathscott's order granting a new trial, 474 Mich 1109; 711 NW2d 381 (2006).

[15] There were more than 130 admitted exhibits in this trial. This placed an especially great responsibility upon counsel to review the large collection before it was taken to the jury room.

[16] Under the “invited error” doctrine, a litigant waives the right to claim error “when the party's own conduct directly causes the error”. People v Jones, 468 Mich 345, 352;662 NW2d 376 (2003). “Error requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence.” Phinney v Perlmutter, 222 Mich App 513, 537; 564 NW2d 532 (1997).