International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Dorsey

273 Mich. App. 26
CourtMichigan Court of Appeals
DecidedNovember 16, 2006
DocketDocket No. 248412
StatusPublished
Cited by6 cases

This text of 273 Mich. App. 26 (International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Dorsey) 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
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Dorsey, 273 Mich. App. 26 (Mich. Ct. App. 2006).

Opinion

PER CURIAM.

In this fraud and misrepresentation case, defendants Helen Dorsey, Pat Choate, and Edward Miller and third-party plaintiff Kay Casey1 appealed as of right the denial of their motion for a new trial or judgment notwithstanding the verdict (JNOV) in favor of plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and United Broadcasting Network, Inc. (UBN), and third-party defendants Daniel Sherrick, Frank Joyce, and Roy Wyse.2 We reversed and remanded. 268 Mich App 313; 708 NW2d 717 (2005). Our Supreme Court reversed that portion of the decision granting a new trial “for the reasons stated in the partial dissent....” 474 Mich 1097 (2006). Our reversal was based on a determination that the trial court erred in admitting the Miller divorce hearing transcripts into evidence because the transcripts were a part of a sealed record. The dissent argued that reversal was not warranted because (1) the divorce transcripts were not part of the sealed record and (2) even if the divorce [29]*29transcripts were a part of the sealed record, the use of the transcripts constituted unfair surprise only to defense counsel, not to defendant Miller himself.

On remand, we must determine (1) whether the transcripts were used not as impeachment evidence but as an “improper assault on Miller’s character”; (2) whether the “Harder memos” were properly admitted; (3) whether a treatise was properly used to impeach defendant’s expert, John Olsen; and (4) whether there was error requiring reversal in a reference during closing argument to settlement negotiations. We affirm the trial court’s decision on each of these issues, but we remand the case for reinstatement of mediation sanctions pursuant to our Supreme Court’s order.

I. IMPEACHMENT EVIDENCE

Defendants argue that even if this Court were to find that the use of the transcripts did not violate Judge Ross Campbell’s order sealing the transcripts, the manner in which they were used went so far beyond the bounds of zealous advocacy that a new trial is required. We disagree.

A. STANDARD OF REVIEW

The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004).

B. ANALYSIS

The trial court properly allowed the impeachment of Miller’s credibility. MRE 607 allows the credibility of any witness to be attacked by any party. MRE 613 acknowledges that a witness may be asked about prior [30]*30inconsistent statements. Plaintiffs’ counsel questioned Miller about his job at UBN and asked whether he had ever been fired by the National Center for Manufacturing Sciences (NCMS) and whether he had a business relationship with Dorsey in the summer of 1996. Miller responded that he had never been fired by NCMS, had worked for UBN beginning in April 1996, and had a business relationship with Dorsey during the summer of 1996. Plaintiffs’ counsel then introduced the divorce transcripts in order to show that Miller’s testimony during those proceedings was exactly contrary to the responses given at trial during the present case.

Miller was then given the opportunity to explain the discrepancy. Our Supreme Court commented on this type of testimony in Ruhala v Roby, 379 Mich 102; 150 NW2d 146 (1967), when it stated:

“We agree with the view stated in McCormick on Evidence, § 39, p 75:
“ ‘If the prior statement of the witness is contradictory of his present story on the stand, the opportunity for testing the veracity of the 2 stories by the 2 parties through cross-examination and re-examination is ideal. Too often the cross-examiner of a dubious witness is faced by a smooth, blank wall. The witness has been able throughout to present a narrative which may be false, yet is consistent with itself and offers no foothold for the climber who would look beyond. But the witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common-law practice of cross-examination and re-examination was invented to explore. It will go hard, but the 2 questioners will lay bare the sources of the change of face, in forgetfulness, carelessness, pity, terror or greed, and thus reveal which is the true story and which the false. It is hard to escape the view that evidence of a previous inconsistent statement, when the declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony.’ ” [Id. at 122 [31]*31(opinion by BRENNAN, J.), quoting Schratt v Fila, 371 Mich 238, 245-246; 123 NW2d 780 (1963).]

Thus, the use of the transcripts to impeach Miller’s credibility was proper, and the trial court did not abuse its discretion in admitting the transcripts for that purpose.

H. ADMISSION OF THE HARDER MEMOS

The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Craig, supra at 76.

The Harder memos were a group of memos written by Charles Harder to Choate and Miller during the time that UBN began assuming leadership of Harder’s radio network. These memos included many of Harder’s complaints about the way the new management, specifically Choate and Miller, were handling UBN. This information was relevant to defendants’ claim of a breach of fiduciary duty and their allegations that all the financial difficulties at UBN were the result of plaintiffs’ mismanagement.

Plaintiffs sought the admission of these memos to counter testimony from Sherrick and Miller that Harder believed at the time of trial that plaintiffs were the ones who caused Harder problems at UBN. Plaintiffs wanted to admit the documents not for the truth of their contents, but to show that Miller had a motive to get rid of Harder because the memos were derogatory of Miller. Further, plaintiffs wanted to use the memos to [32]*32show that it was not plaintiffs with whom Harder was upset shortly before he left, but Miller and Choate. Finally, plaintiffs wanted to admit the memos to impeach Miller’s testimony that the vast majority of Harder’s complaints in these memos related to problems Harder was having with censorship, when in fact the memos did not reflect this.

Defendants argued that the memos should not be admissible to show Miller’s motivation, but could be used to rebut Miller’s position that most of the memos blamed plaintiffs and censorship for Harder’s problems with UBN. However, defendants asserted that the trial court should not project images of the memos in the courtroom for the jury to observe, but should instead ask Miller to review the memos and then question him about whether they contained references to censorship.

The trial court agreed to admit the Harder memos, stating:

All right. Just a moment. Seems to me that, yesterday, the witness stated — he was asked in many different ways —that the primary complaint of Mr. Harder was censorship, and this was reflected in his writings. To that extent, the Court will allow plaintiffs attorney to use these documents to impeach him, all right.
Secondly, as to the state of mind of Mr.

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Bluebook (online)
273 Mich. App. 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-union-united-automobile-aerospace-agricultural-implement-michctapp-2006.