RAY A CARLSON V WAYNE CO ROAD COMM
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STATE OF MICHIGAN
COURT OF APPEALS
RAY A. CARLSON, Individually and as Personal
Representative of the Estate of TAMARA R.
CARLSON, Deceased, and as Next Friend and
Conservator of RAYMOND CARLSON, a Minor,
and DONALD FULLERTON, Individually and as
Personal Representative of the Estate of MICHAEL
FULLERTON, Deceased,
UNPUBLISHED
May 21, 1999
Plaintiffs-Appellees/Cross-Appellants,
v
No. 185022
Wayne Circuit Court
LC No. 92-228180 NI
WAYNE COUNTY ROAD COMMISSION,
Defendant-Appellant/Cross-appellee.
RAY A. CARLSON, Individually and as Personal
Representative of the Estate of TAMARA R.
CARLSON, Deceased, and as Next Friend and
Conservator of RAYMOND CARLSON, a Minor,
and DONALD FULLERTON, Individually and as
Personal Representative of the Estate of MICHAEL
FULLERTON, Deceased,
Plaintiffs-Appellees,
v
No. 210966
Wayne Circuit Court
LC No. 92-228180 NI
WAYNE COUNTY ROAD COMMISSION,
Defendant-Appellant.
Before: Kelly, P.J., and Holbrook and Murphy, JJ.
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KELLY, P.J. (concurring).
I concur in result only. Absent unusual circumstances, issues not raised before the trial court
may not be raised on appeal. Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521
NW2d 499 (1994). The record does not show that the particular issue upon which defendant now
relies, whether the trial court should have questioned the jurors at all when deciding the motion for new
trial, was raised in the trial court. Had it been properly preserved I would hold the questioning improper
based on Hoffman v Spartan Stores, Inc, 197 Mich App 289; 494 NW2d 811 (1992).
Defendant’s initial response to plaintiffs’ motion for new trial opposed a new trial based on
plaintiffs’ alleged inability to show prejudice. At the first hearing on the motion, the trial court, without
objection, stated that it would have the jurors in question brought into court for questioning. At the next
hearing, the only specific “legal” objection by defendant was that the questions should come from the
court and not be leading in nature. After questioning, the arguments focused on the issue of prejudice,
not whether the questioning was proper. Defendant’s supplemental brief in support of the motion for
new trial addressed the issue of prejudice, but made no claim that the jurors could not be questioned.
At best, the record shows that defendant wanted the trial court, rather than the parties’ counsel, to
question the jurors.
Based on the fact that defendant’s claim is unpreserved for review by this Court, I concur in the
result reached by the majority.
/s/ Michael J. Kelly
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