TROY EDDINGS JR V TALLEN FLEMING
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
TROY EDDINGS JR.,
UNPUBLISHED
March 23, 2001
Plaintiff-Appellant,
v
TALLEN FLEMING and WALTER SAKOWSKI,
Personal Representative of the Estate of CALVIN
WESSON, Deceased,
No. 214987
Wayne Circuit Court
LC No. 96-621067-NO
Defendants-Appellees.
Before: Smolenski, P.J., and Holbrook, Jr. and Gage, JJ.
PER CURIAM.
Plaintiff brought this assault and battery action against defendants, Tallen Fleming and
Calvin Wesson,1 for injuries plaintiff sustained during a shooting incident on June 26, 1995.2
The trial court granted Wesson’s motion for a directed verdict and submitted the case against
Fleming to the jury. The jury returned a verdict in Fleming’s favor, finding that he shot plaintiff
in self-defense. The trial court entered judgment in favor of both defendants. Plaintiff appeals as
of right. We affirm.
Plaintiff first argues that the trial court erroneously granted Wesson’s motion for a
directed verdict. This Court reviews de novo a trial court’s ruling on a motion for a directed
verdict. Thomas v McGinnis, 239 Mich App 636, 643; 609 NW2d 222 (2000); Meagher v
Wayne State University, 222 Mich App 700, 707-708; 565 NW2d 401 (1997).
In reviewing the trial court’s ruling, this Court views the evidence
presented up to the time of the motion in the light most favorable to the
nonmoving party, grants that party every reasonable inference, and resolves any
conflict in the evidence in that party’s favor to decide whether a question of fact
existed. A directed verdict is appropriate only when no factual question exists
1
Calvin Wesson died approximately two months before trial.
2
Plaintiff also asserted claims of malicious prosecution, gross negligence, false arrest and false
imprisonment. Only plaintiff’s assault and battery claim remains at issue on appeal.
-1-
regarding which reasonable minds may differ.
(citations omitted).]
[Thomas, supra at 643-644
Viewing the evidence in the light most favorable to plaintiff and resolving any conflicts
in the evidence in plaintiff’s favor, we conclude that plaintiff did present sufficient evidence from
which the jury could have concluded that Wesson committed an assault and battery against him.
In Smith v Stolberg, 231 Mich App 256, 260; 586 NW2d 103 (1998), this Court stated the
elements for an action alleging assault and battery:
An assault is ‘any intentional unlawful offer of corporal injury to another
person by force, or force unlawfully directed toward the person of another, under
circumstances which create a well-founded apprehension of imminent contact,
coupled with the apparent present ability to accomplish the contact.’ This Court
defined battery as ‘the wilful and harmful or offensive touching of another person
which results from an act intended to cause such contact.’ [Citations omitted.]
We conclude that the trial court erroneously directed a verdict for Wesson. Plaintiff
testified that he saw two guns and that two guns were discharged at him. Plaintiff suffered
twelve gunshot wounds, some that were graze wounds and some that were pass-through wounds.
Although the treating physician was unable to determine how many times plaintiff had been shot,
trial evidence established that Fleming fired his weapon only four times. It is possible that
Fleming’s four shots caused all of plaintiff’s injuries because each bullet could have caused more
than one wound, while shell casings and other debris could have caused other wounds. However,
the jury could also have interpreted the evidence to find that both Fleming and Wesson fired at
plaintiff. This evidence, considered in conjunction with plaintiff’s testimony that two men shot
at him and that Wesson had threatened to kill him five days before the incident, was sufficient to
defeat the motion for a directed verdict on the assault and battery claim against Wesson.
Nevertheless, reversal is not required in light of the jury’s verdict that Fleming shot
plaintiff in self-defense.
An error in the admission or the exclusion of evidence, an error in a ruling
or order, or an error or defect in anything done or omitted by the court or by the
parties is not ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take his action appears to the court inconsistent with substantial justice. [MCR
2.613(A).]
“A claim of self-defense or defense of others first requires that a defendant has acted in
response to an assault.” City of Detroit v Smith, 235 Mich App 235, 238; 597 NW2d 247 (1999).
Further, Michigan recognizes the “defense of others” defense. Sanders v Westin Hotel, Inc, 172
Mich App 161, 166; 431 NW2d 414 (1988). The jury found that Fleming acted in self-defense
when he shot plaintiff. Therefore, the jury necessarily believed defense testimony that plaintiff
pointed a gun at Fleming before he fired at plaintiff. Fleming and Wesson sat side by side in a
van when the shootings occurred. Therefore, even if the evidence supported a finding that
Wesson also fired at plaintiff and caused some of his injuries, Wesson’s actions would have been
-2-
similarly justified by self-defense or defense of others. In light of the jury’s determination that
Fleming acted in self-defense, the trial court’s directed verdict in Wesson’s favor does not
require reversal.
Plaintiff next argues that the trial court abused its discretion by refusing to admit samples
of his signature into evidence and by refusing to allow plaintiff’s counsel to recall him to testify
about his signature on his statement to police. “A trial court’s decision to admit or exclude
evidence is reviewed for an abuse of discretion.” Ellsworth v Hotel Corp of America, 236 Mich
App 185, 188; 600 NW2d 129 (1999). This Court reviews “decisions regarding the admission of
rebuttal testimony for an abuse of discretion.” Winiemko v Valenti, 203 Mich App 411, 418; 513
NW2d 181 (1994).
During his case in chief, plaintiff testified that he had no memory of making a statement
to police. Plaintiff’s counsel could have addressed the authenticity of plaintiff’s signature on the
police statement at that time, but did not. Because the challenge to the authenticity of plaintiff’s
signature could have been properly admitted during plaintiff’s case in chief, the trial court did not
abuse its discretion in precluding this evidence as rebuttal. See Winiemko, supra at 418-419.
Furthermore, even if the trial court did err in this regard, we would find that error harmless.
Plaintiff’s signature was submitted to the jury on discovery documents that were properly
admitted. Therefore, the jury had the opportunity to compare plaintiff’s signature on those
documents to the signature on the statement. Accordingly, plaintiff was not prejudiced by the
exclusion of evidence of his signature on his driver’s license and social security card and by the
trial court’s refusal to allow plaintiff to testify in rebuttal. We find no abuse of discretion.
Plaintiff next argues that the trial court abused its discretion in sustaining defense
objections to the admission of portions of Dr. Horst’s deposition testimony, in which she read
from the operative report prepared by another physician. “A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” MRE 602. In her deposition, Horst indicated that she had no
independent recollection of her treatment of plaintiff’s injuries. Horst also stated that her chief
resident prepared and dictated the operative report. We find no abuse of discretion in the trial
court’s exclusion of that portion of Horst’s testimony where she read from the operative report,
of which she had no personal or independent knowledge. See Van Every v SEMTA, 142 Mich
App 256, 262-265; 369 NW2d 875 (1985); Citizens Nat’l Bank of Cheboygan v Mayes, 133
Mich App 808, 812; 350 NW2d 809 (1984). Further, even if the trial court did err in this regard,
we would find that error harmless. Plaintiff’s hospital records were admitted into evidence in
their entirety, including the operative report. Therefore, the jury had the opportunity to review
the report at issue.
Finally, plaintiff argues that the trial court abused its discretion in refusing to allow him
to amend his witness list to include Jacquetta Ford and in refusing to allow her to testify in
rebuttal. “This Court will not disturb a trial court’s decision regarding whether to permit a
witness to testify, after a party has failed to comply with a deadline for submission of a witness
list, absent an abuse of discretion.” Carmack v Macomb Co Community College, 199 Mich App
544, 546; 502 NW2d 746 (1993). Furthermore, “[t]he scope of rebuttal in civil cases is within
-3-
the sound discretion of the trial court.” Taylor v BCBSM, 205 Mich App 644, 655; 517 NW2d
864 (1994). We find no abuse of discretion.
MCR 2.401(I)(2) governs the filing of witness lists: “[t]he court may order that any
witness not listed in accordance with this rule will be prohibited from testifying at trial except
upon good cause shown.” Plaintiff failed to establish good cause for failing to list Ford as a
witness. Ford testified at plaintiff’s criminal trial in March, 1996. Plaintiff’s trial attorney in the
instant case functioned as his defense counsel in that criminal trial. Plaintiff filed his witness list
in the instant case on December 11, 1996. He moved to amend his witness list to include Ford in
July, 1998, just before trial. We agree with the trial court that plaintiff did not show good cause
for failing to include Ford on his witness list.
Furthermore, the trial court did not abuse its discretion in prohibiting Ford from testifying
in rebuttal. In Gillam v Lloyd, 172 Mich App 563, 584; 432 NW2d 356 (1988), the trial court
prohibited the plaintiff from calling a witness in his case in chief who was not listed on the
plaintiff’s witness list. The plaintiff later attempted to call the witness in rebuttal. Again, the
trial court refused to allow the witness to testify because he was not a listed witness. This Court
affirmed the trial court’s rulings. Id. at 584. Similarly, we find no abuse of discretion in the
instant case.
Affirmed.
/s/ Michael R. Smolenski
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.