ROSEMARY ELAINE TOLBERT V ROLAND BROCKRIEDEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ROSEMARY ELAINE TOLBERT and ROBERT
WILLIAM CARL TOLBERT,
October 27, 1998
Genesee Circuit Court
LC No. 93-025993 NO
ROLAND BROCKRIEDE and BROCKRIEDE
Before: Kelly, P.J., and Holbrook, Jr., and Murphy, JJ.
This case arises from a sexual harassment claim filed by plaintiffs1 against defendants pursuant to
the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Defendants appeal as
of right from the trial court’s order entering judgment on the jury verdict in favor of plaintiff Rosemary
Tolbert.2 We affirm.
First, defendants argue that the trial court abused its discretion in excluding various pieces of
evidence at trial. We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. Davidson v Bugbee, 227 Mich App 264, 266; 575 NW2d 574 (1997). However, in
order to preserve an evidentiary issue for review, a party seeking admission of excluded evidence is
obliged to make an offer of proof to provide the trial court with an adequate basis on which to make its
ruling and to provide this Court with the information it needs to evaluate the claim of error. In re Green
Charitable Trust, 172 Mich App 298, 329; 431 NW2d 492 (1988). In this case, defendants made an
offer of proof with respect to only one of the trial court’s decisions to exclude evidence. Thus, because
defendants waived the remaining claims of alleged error by failing to preserve the lower court record
with an offer of proof as to the proposed testimony, we decline to address those issues. MCR
7.210(A)(3); MRE 103(a)(2).
The remaining evidence that defendants claim the trial court improperly precluded the jury from
hearing was testimony from both plaintiffs that they had engaged in illegal drug use during the time
plaintiff was employed by defendant. Although plaintiffs objected immediately to this line of questioning,
defendants made an offer of proof as to their proposed testimony for the court’s consideration. Both
plaintiffs admitted that they had engaged in illicit drug use on a few occasions; however, it never
occurred at Rosemary’s place of employment or during work hours. Defendants apparently believed
that the use of such evidence was permissible character evidence under MRE 404(b) and intended to
use the testimony to establish that Rosemary was not the person that she portrayed herself to be. They
argued that the exclusion of such evidence left the jury with an incomplete picture of Rosemary and her
actions. The trial court found otherwise and held that plaintiffs’ testimony had nothing to do with
defendants or the precise event charged in the complaint. Accordingly, it sustained plaintiffs’ objection
and the evidence was excluded.
We initially note that while the issue was preserved, defendants have essentially abandoned this
issue by failing to cite legal authority or analysis in support of their position. We are not obliged to
search for authority to support a party’s position on appeal, nor is it our responsibility to discover and
rationalize the basis for the claims. MCR 7.212(C)(7); Wilson v Taylor, 457 Mich 232, 243; 577
NW2d 100 (1998). Nevertheless, we agree with the trial court that the use of such evidence was
irrelevant and collateral. Moreover, given the remoteness of the conduct, and the fact that such activity
never occurred at the workplace, any probative value of the evidence is outweighed by the highly
prejudicial nature of the evidence. MRE 403. Nor do we find that the evidence would have been
admissible as impeachment evidence under MRE 608 because the testimony did not relate to the
character trait of truthfulness or untruthfulness as required by the rule.3 Thus, because the proffered
evidence has no relevance to the issue to be resolved in this case, we conclude that the trial court’s
decision to exclude the evidence was not an abuse of discretion.
Defendants’ next two arguments pertain to the trial court’s award of attorney fees to plaintiff
under the Civil Rights Act, MCL 37.2802; MSA 3.548(802), and the court’s subsequent denial of
costs and attorney fees to defendants under MCR 2.405. However, neither of these issue have been
preserved for appeal because defendants failed to provide the transcripts of the hearing conducted on
this matter, and thus, there is no lower court record for this Court to review. “Without the record of the
trial court’s ruling from the bench, it is simply not possible for us to determine whether the trial court
abused its discretion or properly exercised it.” McLemore v Detroit Receiving Hosp & Univ
Medical Center, 196 Mich App 391, 401-402; 493 NW2d 441 (1992). Therefore, appellate review
of these issues is precluded.
/s/ Michael J. Kelly
/s/ Donald E. Holbrook, Jr.
/s/ William B. Murphy
Plaintiff Rosemary Tolbert alleged various claims including sexual harassment, constructive discharge,
and other violations of the Civil Rights Act, MCL 37.2802; MSA 3.548(802). Her husband, plaintiff
Robert Tolbert, also sued for mental anguish, humiliation, and loss of consortium.
The jury awarded damages in the amount of $7,000 to plaintiff Rosemary Tolbert; however, the jury
determined that no cause of action existed with respect to plaintiff Robert Tolbert’s claim.
Because defendants failed to cite a court rule, rule of evidence, or case law to support its argument
that the evidence should be admitted, we presume that they intended to argue for admission under MRE
404(b) or MRE 608. However, as we indicated in the text, the evidence would not be admissible
under either of these theories.