Barksdale v. Bert's Marketplace

797 N.W.2d 700, 289 Mich. App. 652
CourtMichigan Court of Appeals
DecidedAugust 31, 2010
DocketDocket No. 290329
StatusPublished
Cited by9 cases

This text of 797 N.W.2d 700 (Barksdale v. Bert's Marketplace) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barksdale v. Bert's Marketplace, 797 N.W.2d 700, 289 Mich. App. 652 (Mich. Ct. App. 2010).

Opinion

Per Curiam.

In this action alleging sexual harassment, MCL 37.2103(i); MCL 37.2202(1)(a), and retaliation, MCL 37.2701(a), plaintiff, Laneeka Barksdale, appeals as of right the trial court’s entry of a judgment of no cause of action that effectuated the jury’s verdict. We reverse and remand for a new trial.

Plaintiff worked as a waitress and bartender at defendant Bert’s Marketplace from May 10, 2007, until she resigned approximately two months later. During this brief period of employment, plaintiff also worked at Bert’s on Broadway. Bert Dearing owned both establishments. His son, defendant Jai-Lee Dearing, managed Bert’s Marketplace. Plaintiff alleged that Jai-Lee Dearing sexually harassed her by touching her inappropriately, commenting on her legs, and propositioning her “as if she was a prostitute.” Plaintiff claimed that after she reported Jai-Lee Dearing’s conduct to Bert Dearing, defendants retaliated by not scheduling her for work.

[654]*654Trial commenced on December 10, 2008, with jury selection and arguments relating to several motions in limine. According to the court reporter’s notes, these prehminary events consumed 1 hour and 13 minutes of the court’s time. On the second day of trial, counsel gave brief opening statements during an abbreviated morning session.1 Plaintiff testified as the first trial witness. The transcript of her direct and cross-examinations required fewer than 100 pages.

When trial resumed at 11:24 a.m. the next day, plaintiff called Bert Bearing for examination. On the twenty-fourth transcript page of Dealing’s examination, the trial court announced, “It’s [defense counsel’s] turn, go ahead.... Time’s up.” Plaintiffs counsel protested, “[L]et me put on the record that I’m not finished with this witness and if you would like for me to stop now even though I haven’t done all of the testimony I need, I would like to place that objection on the record so that on appeal — ” The trial court interrupted, advising plaintiffs counsel, “Each side gets a half hour with this witness.” After defense counsel examined Dearing, plaintiffs counsel requested an opportunity to ask redirect questions, which prompted the following colloquy:

[Plaintiff’s counsel]: Well, I’ve got kind of a couple questions. I don’t get a redirect?
The Court: No, no. The rule is I announce the time and when the time’s up, the questions stop.
[.Plaintiff’s counsel]: Okay.
I just wanted to ask if I can make an offer of proof on the record?
[655]*655The Court-. No.
You’ve made an objection, that’s sufficient for appeal. I’ve been taken up on appeal on this issue many, many times. You’ve made an objection, that’s all you have to do.

Plaintiff then sought to introduce the deposition testimony of Roy Lawhorn, who provided security for Bert’s Marketplace. The trial court ruled that Lawhorn’s testimony about plaintiff’s out-of-court statements constituted inadmissible hearsay, and plaintiff opted not to read the deposition. The defense called no witnesses. The jury found that defendants had not sexually harassed or retaliated against plaintiff.

Plaintiff first challenges as improper the trial court’s limitation of the total time for Bert Dealing’s examinations. Plaintiff further asserts that the trial court erred in a related fashion by denying her an opportunity to make an offer of proof describing the testimony that counsel would have elicited had the court permitted more time. We review for an abuse of discretion a trial court’s exercise of its power to control the interrogation of witnesses. Alpha Capital Mgt, Inc v Rentenbach, 287 Mich App 589, 615; 792 NW2d 344 (2010). To the extent that our inquiry requires an examination of the Michigan Rules of Evidence, we consider de novo the legal issues presented. Id.

Pursuant to MRE 611(a), “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” In Hartland Twp v Kucykowicz, 189 Mich App 591, 595; 474 NW2d 306 (1991), this Court emphasized that “[t]he mode and order of admitting proofs and interrogating witnesses rests within the discretion of the trial court.” The trial court in Hartland Twp, on the fifth day of a trial, [656]*656limited witness examinations to one hour each for direct and cross-examinations, but later amended its ruling to permit defense counsel more time with one expert witness. Id. at 596. On appeal, this Court held, “The record shows that the trial court properly exercised its discretion in limiting the time for examination of witnesses.” Id.

We again upheld a trial court’s decision to limit witness examination in Alpha Capital Mgt. There, the trial court permitted the plaintiffs counsel around 41/2 hours for the direct examination of a witness. Id. at 616. After the witness’s testimony concluded, the court “limited the entire time for additional witness examinations to 11/2 hours, 45 minutes for each side.” Id. at 617. We explained in Alpha Capital Mgt, that “[u]nder the specific circumstances presented,” the trial court’s decision to limit the examination of two witnesses did not amount to an abuse of discretion. Id. at 618. Our decision rested on the following dispositive findings:

The record reveals that counsel had adequate time to develop the facts and issues at the center of the parties’ dispute. Moreover, the trial court permitted [Alpha Capital Management, Inc.] more than three horns for its examination of Burrell on the basis of counsel’s pledge that he could complete the rest of the witness examinations in a half hour.12
[Id. at 618 n 12.]

[657]*657We find this case readily distinguishable from Alpha Capital Mgt. The record reveals that counsel wasted no time in picking a jury or delivering opening statements. Plaintiffs counsel conducted her examination of plaintiff expeditiously, without repetitive or irrelevant questions. Given this record, we discern no reasonable basis for the trial court’s determination that limiting witness examinations to 30 minutes for each side advanced the trial-management goals set forth in MRE 611(a). The record lacks any indication that curtailing counsel’s time for witness examinations was necessary to “avoid needless consumption of time” or to “protect witnesses from harassment or undue embarrassment.” MRE 611(a)(2). Moreover, the trial court entirely failed to explain how the severely restrictive time parameter it selected “ma[d]e the interrogation and presentation [of witnesses] effective for the ascertainment of the truth.” Id. Accordingly, we conclude that the trial court abused its discretion by imposing an “utterly arbitrary” time limit “unrelated to the nature and complexity of [the] case or the length of time consumed by other witnesses.” Alpha Capital Mgt, 287 Mich App at 618 n 12.

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Cite This Page — Counsel Stack

Bluebook (online)
797 N.W.2d 700, 289 Mich. App. 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barksdale-v-berts-marketplace-michctapp-2010.