JAMALL DUFFEY V KASIEM PIERCE
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STATE OF MICHIGAN
COURT OF APPEALS
ERIC BRAVERMAN, Conservator of the Estate
of JAMALL DUFFEY, a Minor,
UNPUBLISHED
January 31, 2008
Plaintiff-Appellee/Cross-Appellant,
v
No. 274165
Wayne Circuit Court
LC No. 04-404393-NI
KASIEM PIERCE and AMTECH LIGHTING
SERVICES,
Defendants-Appellants/CrossAppellees,
and
CITY OF DETROIT,
Defendant.
Before: Murray, P.J., and Hoekstra and Wilder, JJ.
PER CURIAM.
In this automobile negligence action, defendants appeal as of right the trial court’s order
granting plaintiff’s motion for additur and amending a judgment previously entered in favor of
plaintiff following a jury trial. Plaintiff cross-appeals from this same order. Because we
conclude that the basis for the trial court’s decision to grant additur, i.e., that the jury
misunderstood the effect of inflation on its award of future damages, is not supported by
evidence produced at trial, we reverse and remand.
I. Basic Facts and Procedural History
The facts underlying and relevant to this appeal are not in dispute. While attempting to
cross a busy intersection in June 2003, Jamall Duffey was struck by a vehicle owned by
defendant Amtech Lighting Services (Amtech) and being driven by its employee, defendant
Kasiem Pierce. It was not disputed that cognitive and attentional deficits already suffered by
Duffey, who was ten years old at the time of the accident, were exacerbated as a result of the
accident. The primary issues at trial were thus the extent of, and fault for, these increased
deficits. At trial, both parties presented evidence concerning the circumstances of the accident.
Through his witnesses, plaintiff generally asserted that Duffey was struck by Pierce while
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rightfully attempting to cross the intersection. The witnesses who testified on behalf of
defendants, however, asserted that Pierce had the right of way and that Duffey abruptly ran out in
front of him from behind a parked truck. At the close of trial, the jury found Duffey to be thirty
percent at fault for his injuries and awarded him $300,000 in past non-economic damages and
$30,000 per year for each of the years 2006 through 2056 in future non-economic damages. The
parties subsequently agreed to entry of a judgment, reduced to present value and accounting for
interest and comparative fault, in the amount of nearly $760,000.
Plaintiff thereafter moved for additur or a new trial pursuant to MCR 2.116(A)(1)(c) and
(d) on the ground that the jury’s verdict was inadequate. In support of his motion plaintiff
asserted, among other things, that the jury failed to account for inflation by awarding future noneconomic damages in the unwavering amount of $30,000 per year, and that additur should be
granted or a new trial limited to the issue of damages should be held.
The motion was heard by the trial court in conjunction with a motion by defendants for
case evaluation sanctions pursuant to MCR 2.403(O). At the hearing, defendants argued that
they were entitled to the imposition of sanctions in the form of costs and attorney fees because
they had improved their position at case evaluation by more than ten percent. The trial court,
however, first addressed plaintiff’s motion, indicating that it was “absolutely persuaded” that
additur should be granted because the jury did not understand the effect of inflation on its award
of future damages and thus rendered a verdict in an amount less than it intended. Thus, the trial
court ordered that the judgment be amended by increasing the jury’s award of future noneconomic damages at the rate of five percent for each year of the award. Indicating that its
decision to grant additur may well render defendants’ motion for costs and attorney fees moot,
the court thereafter declined to rule on that matter until entry of a final order amending the
judgment for additur.
When the parties later reconvened to discuss entry of an order granting additur and
amending the judgment to award Duffey more than $1,309,000 in present value cash and
interest, the trial court declined to condition its grant of additur on defendants’ written consent.
The court thus struck from the proposed order the language agreed by the parties to be required
by MCR 2.611(E) before entering the order. The court further ruled that “the issue of costs and
attorney’s fees based on the case evaluation acceptance rejection is moot because . . . the
judgment with . . . additur is proper.” These appeals followed.
II. Analysis
A. Additur
Defendants first argue that the trial court erred in granting additur. Specifically,
defendants assert that the reason cited by the trial court for having granted such relief, i.e., that
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the jury misunderstood the effect of inflation on its award of future damages, is an improper
basis on which to grant additur and, further, is not supported by the evidence at trial.1 We agree.
A trial court’s decision regarding the grant or denial of additur is accorded deference and
will not be reversed on appeal absent an abuse of discretion. Setterington v Pontiac Gen Hosp,
223 Mich App 594, 608; 568 NW2d 93 (1997); see also MCL 600.6098(4). Although a trial
court may grant a new trial whenever a party’s substantial rights have been materially affected,
such as where the jury’s verdict is clearly or grossly inadequate, see MCR 2.611(A)(1)(c) and
(d), where the only error found by the court is the inadequacy of the verdict, the court may deny
a motion for new trial on condition that the non-moving party consents to additur in the lowest
amount supported by the evidence, MCR 2.611(E).2 In doing so, however, the court must limit
its inquiry to objective considerations of the evidence and conduct of the trial, because the
primary consideration in deciding a motion for additur is whether the jury award is supported by
the evidence. See Palenkas v Beaumont Hosp, 432 Mich 527, 532; 443 NW2d 354 (1989)
(“[t]he only consideration expressly authorized by MCR 2.611(E)(1) . . . is whether the jury
award is supported by the evidence”).
Here, the trial court considered neither the evidence nor the conduct of the trial. Rather,
the court concluded on the basis of the jury verdict form that the jury failed to understand the
effect of inflation on an award of future damages and, as a result, awarded future non-economic
damages in an amount less than it intended. The trial court’s failure to limit its considerations to
the evidence and conduct at trial itself arguably renders its decision an abuse of discretion. See
Bynum v ESAB Group, Inc, 467 Mich 280, 283; 651 NW2d 383 (2002) (a trial court’s
misapplication of the law in reaching its decision may constitute an abuse of discretion); see also
Stepp v Dep’t of Natural Resources, 157 Mich App 774, 779; 404 NW2d 665 (1987) (finding
that the trial court’s misunderstanding of the legal basis for its ruling resulted in an abuse of
discretion). More importantly, however, the basis for the trial court’s grant of additur is simply
not supported by the evidence.
1
Defendants also argue that the trial court’s grant of additur was intended to circumvent the
statutory requirement that an award of future non-economic damages be reduced to “gross
present cash value.” See MCL 600.6306(1)(c); see also MCL 600.6306(2) (defining “gross
present cash value” as the “total amount of future damages reduced to present value at a rate of
5% per year for each year in which those damages accrue”). While it is clear that this was the
effect of the trial court’s ruling, which awarded additur at a rate of 5% per year for each year that
the jury found that plaintiff would suffer future damages, the record simply does not support an
intent on the part of the trial court to circumvent or otherwise nullify reduction of the award to
present cash value. To the contrary, the court expressly recognized the statutory reduction
requirement as a “concept” separate from that of ensuring that the judgment reflected the amount
the jury truly intended to award.
2
While defendants argue that the trial court failed to find that verdict was inadequate, we
conclude that the court’s conclusion that the jury intended to award an amount greater than it did
equates to such a finding.
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At trial, economist Michael Thompson testified on behalf of plaintiff regarding the
concept of inflation and its effect on an award of future damages. Using a number of graphical
aides, Thompson clearly and concisely explained to the jury that if it sought to award future
damages and wished the purchasing power of that money to stay the same over the years, the
award must be adjusted for inflation. Additionally, we note that the jury was expressly
instructed by the trial court that it could consider the effect of inflation in determining the
damages to be awarded for future losses, but that the amount to be awarded was within its
“solemn judgment.” As recognized by the trial court at the hearing on the parties’ motion to
enter the amended judgment, the jury could have awarded damages in the manner they did for a
multitude of reasons.3 Under these circumstances, we conclude that the trial court’s finding that
the jury did not understand the effect of inflation is speculative and, as explained, not supported
by the evidence. Accordingly, the trial court abused discretion in granting additur on that
ground.4
B. Case Evaluation Sanctions
Defendants also argue that the trial court erred in failing to grant their motion for case
evaluation sanctions pursuant to MCR 2.403(O). Again, we agree.
Defendants moved for case evaluation sanctions pursuant to MCR 2.403(O) on the
ground that both parties had rejected the case evaluation award of $2,650,000 and that plaintiff
failed to obtain a verdict more than ten percent greater than the award, while defendants in fact
improved their position by more than that percentage. However, following its grant of additur,
the trial court denied defendants’ motion as moot. “A trial court’s decision whether to grant
case-evaluation sanctions under MCR 2.403(O) presents a question of law, which this Court
reviews de novo.” Campbell v Sullins, 257 Mich App 179, 197; 667 NW2d 887 (2003).
MCR 2.403(O)(1) provides:
If a party has rejected an evaluation and the action proceeds to verdict, that party
must pay the opposing party’s actual costs unless the verdict is more favorable to
the rejecting party than the case evaluation. However, if the opposing party has
3
Specifically, the court stated:
Sometimes juries do things illogically, which in my view this jury did in relation
to the future damages. And sometimes they say, give everybody a break. And . .
. they could have said, well the kid was only 10 years old and we don’t know if he
was running or not, but we’ll discount our verdict against him.
4
Because the basis on which the trial court found the verdict to be inadequate was improper, a
new trial on that ground is also precluded. See MCR 2.611(A)(1); see also MCR 2.611(E).
Accordingly, we need not address defendants assertion that it was entitled to reject additur and
opt for a new trial. For this same reason, it is unnecessary for us to address plaintiff’s claim that
the trial court erred in precluding him from inquiring into defendant Pierce’s employment history
at trial, which we interpret as a request to address whether such testimony should be admitted in
the event that this Court’s decision results in a new trial.
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also rejected the evaluation, a party is entitled to costs only if the verdict is more
favorable to that party than the case evaluation.
To determine whether a verdict is more favorable to a party for purposes of MCR 2.403(O)(1),
the verdict must first be adjusted by adding to it assessable costs and interest. MCR 2.403(O)(3).
Further, any award of future damages must be adjusted to present cash value. Id. After these
adjustments, the verdict is considered more favorable to a plaintiff if it is more than ten percent
above the evaluation and more favorable to the defendant if it is more than ten percent below the
evaluation. Id.
Here, it is not disputed that after the required adjustments the verdict (both as rendered by
the jury and as altered by the trial court’s grant of additur) is less favorable to plaintiff, but more
favorable to defendants, than the case evaluation award within the meaning of MCR
2.403(O)(1).5 Thus, given that both parties rejected the case evaluation award, defendants are, as
a matter of law, entitled to case evaluation sanctions. Great Lakes Gas Transmission Ltd
Partnership v Markel, 226 Mich App 127, 130; 573 NW2d 61 (1997) (applying the clear
language of MCR 2.403(O)(1) and holding that the rule’s “use of the word ‘must’ indicates that
the award of costs is mandatory, not discretionary”). Consequently, regardless of whether
additur was improperly granted, the trial court erred as a matter of law in failing to grant
defendants’ motion for sanctions pursuant to MCR 2.403(O).6
5
Indeed, the ten percent difference to be used in determining whether the verdicts were more or
less favorable to the parties equates to only $265,000, i.e., ten percent of the case evaluation
award of $2,650,000. The verdict as rendered by the jury and adjusted for costs, interest, and the
present cash value of the award of future damages, approximately $760,000, was nearly
$1,900,000 less than the case evaluation award—well within the range for requiring the
imposition of sanctions pursuant to MCR 2.403(O). The $1,341,000 difference between the
$1,309,000 verdict resulting from the trial court’s grant of additur and the $2,650,000 case
evaluation award was also well within the range for requiring the imposition of sanctions
pursuant to MCR 2.403(O). See MCR 2.403(O)(2) (providing that “a judgment entered as a
result of a ruling on a motion after rejection of the case evaluation” is a “verdict” for purposes of
MCR 2.403(O)).
6
We decline to address plaintiff’s assertion that the question of sanctions is moot because neither
of the individuals who have served as his conservator are liable to pay the sanctions. As already
indicated, where the requirements for the imposition of sanctions pursuant MCR 2.403(O) have
been met, imposition of sanctions is mandatory. Great Lakes, supra. Thus, whether an award of
sanctions is legally or practically enforceable in this particular case is irrelevant. The only issue
presented at this time is whether the trial court erred by denying defendants a judgment pursuant
to MCR 2.403(O). The enforceability of that judgment is a distinctly separate question not ripe
for decision by this Court.
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Reversed and remanded for entry of a judgment reinstating the verdict as rendered by the
jury and further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
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