*1 Allied SERVICES, BURTKA v ALLIED INTEGRATED DIAGNOSTIC INC 28, 1988, Docket No. 101111. Submitted June at Detroit. Decided 20, 1989. March brought wrongful discharge James Burtka in action Oakland Services, against Integrated Diagnostic Circuit Court Inc. stipulatеd jury At the defendant to the admission of an prepared by plaintiff plaintiff’s exhibit which calculated dam- $135,000. ages consisting pay of lost to be returned a $3,877 plaintiff’s damages. in favor and awarded alternative, or, Plaintiff filed a motion for additur a new court, Thorburn, J., trial. The trial James S. denied the motion. appealed. Appeаls The Court of held: clearly inadequate contrary verdict was so so great weight judicial of the evidence that it shocks the conscience. Plaintiff’s evidence toas was uncontro- regarding verted at trial. Defendant offered no evidence dam- ages mitigation damages. or Reversed and remanded a new trial limitеd to the issue of damages. J., Waeshawsky, dissented and would hold that the presented by plaintiff was free to disbelieve evidence and that denying the trial court therefоre did not abuse its discretion the motion for additur or a new trial since the verdict was not grossly inadequate great weight contrary and so Waeshawsky Judge evidence as to shock the conscience. would affirm. Appeal. — — — 1. Motions and Orders Additur New Trial appeal grant The standard of review in an from a or denial of a motion for additur in the a new trial is whether clearly grossly inadequate the verdict is so and so pertaining of the evidence _to References 2d, Appeal 850-852, Am Jur and Errоr §§ Appellate power court’s to increase amount of verdict or party’s over either refusal or failure to consent to addition. 56 ALR2d 255. App 175 op Oрinion the Court conscience; judicial as shock motion is left to discretion or denial of such appeal absent a not be disturbed on court and will (MCL [E]). palрable 2.611[A] abuse that discretion — Additur.
2. Motions and Orders *2 damages jury ignores uncontroverted verdict Where plaintiff, must and be reversed. the verdict is (by Levin, Richard E. Levin, & Dill Garvett Mobló), plaintiff. for Malach, defendant. H. for
Steven Kelly, P.J., Before: Michael J. and Maher JJ. Warshawsky,* five-day trial, P.J. After a Kelly, Michael jury Allied Inte- circuit court found defendant discharg- grated Diagnоstic Services, Inc., liable ing plaintiff employment his Burtka from jury James plaintiff that without cause. also found The damages $3,877. had in the amount of sustained notwithstanding judgment Plaintiff movеd for partial additur trial, new circuit court denied. which the right. appeals reverse, of We this denial as of for a limited to issue remand damages. by employed in 1980 аnd Plaintiff was defendant supervisor until worked as a lab administrator and his According discharge August to of he cause violation was fired without personnel denied that the сompany’s manual. Defendant supervi-
personnel applied to manual According plaintiff plaintiff. defendant, sors like problems, discharged in- of was because several reports. complete cluding three Plain- failure pay tiff that for lost were claimed his * assignment. sitting judge, Appeals Court of Circuit on the Opinion Court tоtaling figure by $135,000. Plaintiff reached this subtracting wages he would have earned and compensation, pay, unemployment severance stipu- wages At defendant other received. 19 in Exhibit lated to the introduction damages. plaintiff calculated these which had that the burden was The was instructed plaintiff upon prove failed to had defendant damages. mitigate instructed was also its bur- it could find that defendant satisfied plaintiff failed to den if defendant showed diligence to obtain a substan- exercisе reasonable tially equivalent position. (1) personnel manual found that: (2) plaintiff; just
applied cause defendant lacked (3) discharged plaintiff; to fire was nоt (4) personnel manual; and accordance with the plaintiff receipt $3,877. After plaintiff timely verdict, of this notwithstanding moved for *3 alternative, in
the verdict the partial or a new triаl. The circuit court additur denied these motions. argues by the trial court erred denying plaintiffs or, in the motion for additur partial alternative, where the ver- substantially uncоn- dict was troverted less than wage agree. loss. We 2.611(A) provides pertinent part: MCR (1) granted or some of may A new trial be to all issues, parties, on all or of the whenever the their substantial some affected, rights materially are following any of the reasons:
(d) inadequate or clearly grossly A verdict or excessive.
(e) against great weight A verdict or decision the contrary of the evidence or to law. App 777 175
780 Opinion of the Court provides 2.611(E), Additur, Remittitur and MCR part: in the (1) only the error If the finds cоurt of the inadequacy or excessiveness the trial verdict, is on trial motion for new may deny it a nonmoving party days 14 the that within condition in an writing entry in found consent amount (if thе the to be lowest by the court (if highest the verdict inadequate) or
verdict was was excessive) support. evidence will amount the appeal from an standаrd of review or, in the for additur of a motion or denial verdict is so a new is whether contrary inadequate grossly "clearly and so pertaining of the evidence thе damages plaintiff as to shock Spangler, judicial 401 Mich Moore v conscience.” (1977). This determination 360, 373; 258 34 NW2d and will the trial court to the discretion of is left not be disturbed appeal palpable abuse absent p Arnold, Id., 372; Brown v of that discretion. (1942). It is well 627; 6 NW2d Mich settled that where troverted” inadequate ignores "uncon- verdict is supra, р Moore, and must be reversed. Harris, 381; 286 372; NW Zielinski v agree verdict was We with great clearly so judicial weight it the evidence that shocks plain- 19 calculated consсience. Plaintiff’s Exhibit un- $135,000. This evidence was tiff’s at It defendant’s burden at trial. was controverted *4 employment equivalent that establish substantial rea- failed to use available and that was seeking diligence in such sonable care and due employment. & Blue Blue Cross Reithmiller v by Wabshawsky, M. J. Dissent 188, 194; Michigan, of App Shield meet this did not Defendant NW2d regarding no evidence Defendant offered burden. in fact damages, of mitigation of Exhibit introduction stipulated for judge’s reasons regard With for for additur or motions denying plaintiffs are not discerni- these reasons we note deny- order below. court’s from record ble upon it was based plaintiffs motion states ing placed on the of reasons court’s statement 8, of 1987. That statement reasons April record expositive the court’s assess- liner —not is one or the defendant’s burden ment of the evidence only: The court stated proof. opinion that the court’s of the proofs range deny will
was within the motion. discretion is a judge’s mystery exercise of
The trial left Since wе are this record is concerned. as far as the dark as court’s completely additur, is proper remedy only refusal limited to the for a new trial this case to remand of damages. issue consis- proceedings and remanded
Reversed opinion. with tent this J.,
Maher, concurred. (dissenting). I Warshawsky, respectfully I in this matter. opinion majority dissent from the grossly verdict was so agree not do to shock the conscience. the evidence as calculated Exhibit which Although plaintiffs *5 App 782 777 by Wakshawsky, Dissent plaintiffs damages, was rеceived into evidence stipulation counsel, of defense the record does not support conclusion that defendant stipulated to the acсuracy or veracity of the exhibit or to the amount damages. See Farm Bureau Mutual Wood, Ins Co v 9, 165 App 18; Mich (1987). NW2d 408 cross-examination,
On testified that he derived no income from his construction company in 1984 1985, but that he earned approxi- $4,000 mately $5,000 However, in 1986. when asked whether he any had financial statements verify the 1984, income 1985, dеrived 1986, plaintiff indicated that he did not.
The mere fact that plaintiff testified in this regard did not "conclusively irrefutably” es- tablish plaintiff’s damages as uncontroverted. See Mоore Spangler, 375; 258 NW2d The jury was free to disbelieve appears and it they were not impressed as to his candor. The jury sat on this case for five days and had ample opportunity evaluate the testimony and credibility the witnesses. We are thus bound to afford considerable respect to the jury Moore, verdict. supra, p 378. I
Accordingly, conclude that judge did not abuse his discretion in denying plaintiff’s mo- tion for additur or new trial.
I would affirm the circuit court.