*1 JERNIGAN v GENERAL MOTORSCORPORATION 105553, 21, 1988, Docket Nos. 106661. Submitted December at Lans- ing. 16, 1989. appeal applied Decided October to Leave for. Jernigan, formerly Rosa employed by a black woman the Central Foundry Corporation, brought Division of General Motors Saginaw Motors, Circuit Court an action General alleging unlawful on discrimination the basis of race and gender. rejected a mediation evaluation and the subse- quent jury trial resulted in verdict of no cause of action. The court, Joseph McDonald, J., judgment R. entered a consistent verdict, with the denied motions for new trial or a judgment notwithstanding verdict, and awarded to defen- dant, plaintiff’s rejection as a sanction for of the mediation evaluation, attorney appealed. its costs and fees. Plaintiff Appeals The Court of held: instructing 1. The trial court erred when with regard proof by giving to burden the instructions proposed by 105.04, plaintiff defendant rather than SJI which However, requested. reversal is order since the instruc- tions, whole, fairly presented parties’ taken as a to the law, applicable theories and failure to set aside the justice. verdict would not be inconsistent with substantial refusing 2. The court trial did not err in to admit into letter, personnel evidence a written director to plaintiff terminated, employment indicating after her measures subsequent filing plain- taken to lessen discrimination to the properly tiff’s action. trial The ruled such evidence pursuant relating was inadmissible to rule of evidence to subsequent remedial measures. refusing 3. The court did not abuse its discretion present allow at trial certain witnesses not listed References 2d, 891, 894; Appeal Attorneys Am Jur and Error at §§ Law 277 §§ 273; seq.; seq., et 2498; Judgments Evidence Discrimination 57 et § Job §§ 108; 589; § New Trial Trial Witnesses § § §4. Appeal Error; Equal See the Index to Annotations Employment Evidence; Jury; Opportunity; Judg- Instructions Verdict; Notwithstanding Trial; ment New Witnesses. good cause list. Plaintiff failed show on her witness or, suggested by the witnessеs for her failure list court, separate demonstrating importance make a record testimony. the witnesses’ *2 plaintiff’s denying motions not err in 4. The trial court did notwithstanding judgment The a the verdict. for a new trial or pre- against great weight the evidence of verdict was not plaintiff’s prima effectively rebutted since defendant sented showing discrimination.
facie of racial sexual awarding its discretion in 5. The court did not abuse trial presented attorney no evidence fees. Plaintiff by hourly charged support rates defen- of her claims attorney attorney billed were unreasonable and that dant’s duplicated repeated services. for Affirmed. reverse, J., opining dissented and would jury on burden court’s instruction that the trial law, preclusion proof the trial court’s misstated showing prejudice supported not a witnesses was testify, the letter from defen- should those witnesses personnel was admissible under director to dant’s by party-opponents, hearsay exception for admissions fees, court, attorney awarding defendant’s should trial when particular facts a fee on the have determined reasonable based practice. community legal case and of the Appeal. Jury — — 1. Trial Standard Instructions accurate, actions, give of thе trial court to an In civil the failure Jury applicable, properly requested Standard Instruction appeal; not reversal on a should result automatic only do so would vacated where failure to verdict should be (MCR 2.516). justice with substantial be inconsistent Employment — — Rights — 2. Civil Discrimination Race Gender. a employment based on an discrimination action The gender disparate can because of race and claim of treatment by showing prima a facie case discrimination establish Rights protected Act the Civil she of a class is member conduct, that, was treated the same or similar she for gender differently of а different race and than one who was (MCL seq.). seq.; et 37.2101 et MSA 3.548[101] Appeal. Jury — — 3. Trial Instructions is appeal, as a and reversal instructions are read whole On applicable parties required and the if the theories of the not presented jury. fairly to the law were Rights Employment — — — 4. Civil Discrimination Evidence op — Subsequent Remedial Measures Rules Evidence. discrimination, employment In an action evidence of letter employer employee subsequent from to the written to the indicating commencement of the action and that measures inadmissible, have been taken to lessen discrimination is relating subsequent measurеs, the rule of evidence remedial 407). (MRE proof culpable conduct — 5. Trial Witness Lists. witness, A court’s trial decision allow a who was listed not on trial, prior testify the witness list at trial is a matter of appeal discretion and will be reversed an not on absent abuse of discretion. Appeal. — 6. New Trial grant
The or denial of a new trial on the basis that the verdict great weight is a evidence matter within the appeal court’s discretion and will be reversed on absent abuse of discretion. Judgments Judgment Notwithstanding — — 7. the Verdict Evi- *3 dence. judgment notwithstanding appropriate only A the verdict when it, the evidence and the inferences to drawn be from viewed in light opposing party, the most favorable the entitle the moving party judgment law; only as a of matter when reasonable minds could differ in the conclusion favorable moving party may ignored. the the verdict be Attorney Appeal. — — 8. Costs Fees attorney upheld by Appeals An of award fees will be the Court of absent an abuse of the court’s discretion. Attorney — — 9. Costs Fees Reasonableness. determining Factors be taken into consideration in the reason- include, to, attorney ableness of fees are not but limited (1) following: professional standing experience and of the (2) skill, time, (3) attorney; involved; and labor the amount (4) question achieved; difficulty in and the results (5) (6) case; expenses incurred; length and nature and professional relationship with client. Davidson, Doud, Breen & A. Za- (by Craig P.C. not), for plaintiff. 180 Opinion op the Court Page, Hardy, Lewis, P.C. Clark, Pollard & (by Goodman), H. and Neil A. Cattel
Thomas for' de- fendant. Kelly, P.J., and J.
Before: Michael Gribbs JJ. Washington,* appeals Rosa Kelly, P.J. Michael in of action this verdict of no cause from a also ap- case. Plaintiff discrimination employment motions court’s denial her from the circuit peals obstante vere- judgment trial or non for a new dicto, attorney award of fees and from the court’s MCR 2.403. affirm. under We defendant defendant, Divi- Foundry Central sued Corpоration, employ- Motors for of General sion Act, Rights Civil discrimination ment seq. seq.; 3.548(101) et 37.2101 et Plain- MSA MCL woman, sixth level tiff, a black was hired at compensation adjuster workers’ Iron in of 1977. Malleable Plant October Saginaw complaint numerous incidents of alleged Plaintiff’s her due to race treatment disparate she was way gender, mainly her supervisors denying her treated cross-training. Cross- promotion requests exchange jobs training between involved experience. work De- to broaden their employees salaried performance evaluated fendant performance ap- annually. Plaintiffs employees at the 1981 rated her work 1979 to praisals from her resigned from possible rating. Plaintiff highest 1982, claiming had been that she job August *4 discharged. constructively five men complaint alleged that white
Plaintiffs had been where she worked department in the transferred, She al- cross-trained, promoted. or * Appeals by assignment. sitting judge, on the Court Circuit Opinion of the Court leged that she had been discriminated and passed she that for was not considered for or was over promotion cross-training or while other white employees advanced, or male and that she promotion gender. was denied due her race and argued Defendant did not seek promotion cross-training until October of when defendant reduced its salaried work force industry. to an due economic downturn in the auto Defendant maintained that none of the five white employees by plaintiff male mentioned were simi- larly employ- situated with because those employees ees were at least seventh level October, 1979, cross-trained, all had been promoted prior transferred, or to defendant’s re- its duction of salaried work force. four-day jury
After trial, found in judg- favor. The circuit court entered a against plaintiff ment of no cause action judg- denied motion a new notwithstanding Following ment the verdict. favor, verdict defendant moved for an award attorney pursuant of costs and fees to MCR 2.403. The circuit court awarded defendant costs attorney $25,110. fees of $155.55
i argues Plaintiff first the circuit court com- requiring by using mitted error reversal defen- proposed jury dant’s instruction instead SJI requested by plaintiff. 105.04, which was We dis- 2.516(D)(2) agree. provides: MCR portions Michigan Pertinent Standard (SJI) Jury given Instructions must be in each given action which instructions are (a) they are applicable, *5 App 575 op Opinion the Court law, applicable
(b) state the they accurately (c) requested party. by a they are Corbet, 304, 325-327; In Johnson v (1985), Supreme our Court noted NW2d 713 Jury used should be the Standard Instructions 2.516(D)(2), required by requested, MCR аs when "only should be vacated verdict but a comply with MCR 2.516 to when failure in the trial so that or defect’ amounts to 'error be inconsis- the verdict would failure to set aside tent with substantial justice.” plaintiffs applied case, 105.04, to would SJI read: (a) proving that: the burden of Plaintiff has promote to failed to and/or failed train
defendant the (b) plaintiff sex one and/or was race/color or made a difference motives reasons which failing to determining promote to fail and/or in train plaintiff. plaintiff you if will be for find Your verdict promote and/or failed that defendant failed race, color and/or sex train the and that or rеasons which one of the motives made was promote determining fail to and/or difference train the plaintiff. if you for the find Your verdict will be promote did not fail to and/or fail that defendant to the defendant be for plaintiff. train the Your verdict will also you that defendant did fail find plaintiff, fail to train the but that promote and/or race, color and/or sex was not one of motives determining which made a difference or reasons to promote plaintiff. train the fail to and/or fail to jury verbatim, 105.04 to the Rather than read SJI gave following instruction, which requested by had been defendant: The has the burden Opinion op the Court or similаrly employees situated white male promoted or differently cross-trained treated period during plaintiff sought promotions race, cross-training, and that color or sex was one of difference train the motives or reasons made which in determining promote not to or cross- plaintiff, in her treatment *6 defendant. plaintiff, Your verdict will be for the Rosa Jerni-
gan, if you similarly find that white situated or or employees promoted male were or cross-trained during differently period plaintiff treated sought promotions cross-training and and that race, plaintiff’s color or was sex one of the motives or which determining reаsons made a difference promote not to or cross-train her or in her treat- ment by the defendant. you Your verdict will for the if employees be defendant find similarly that situated white or male promoted during
were not or cross-trained period plaintiff sought promotion and cross-train- ing, race, differently, or treated or that color or her sex did not make a difference in determining promote whether not to or or cross- plaintiff train the or in her treatment defendant. argues that in- jury court’s placed
struction of proof additional burden on plaintiff law, misstated so the ver- dict must be We agree overturned. that the in- erroneous, struction disagree was that but reversal At required. parties agreed that SJI applicable. 105.04 was Since the instruction drafted requires completion, party proposed each version of based completed upon instruction nature of claim. complaint alleged
Plaintiffs
that defendant
dis-
of
criminated
her on the basis
her
race
gender
by disparate
treatment.
To establish a
case,
prima
plaintiff
facie
must
she was
show
App
180
575
Mich
op
Opinion
the Court
protection
entitled to
of a class
member
that,
or
statute,
for the same
rights
the civil
conduct,
differently due
she
treated
similar
was
оf the
Regents
or
Sisson v Bd of
gender.
her race
Michigan, 174 Mich
746-
App
University
Co,
(1989);
Zack
Pomranky
v
NW2d
338, 343;
We conclude misstatement require Jury instructions must be read reversal. whole; parties’ is the required a reversal presented applicable fairly law were theories Shuell, to the Solomon v jury. reading A 420 NW2d their in the context entirety,
instructions theories, plaintiff’s plaintiff’s case facts ap- It that error harmless. any us was convinces fairly present that the trial court did pears apрlicable jury. law to parties’ theories unduly was con- We not believe that do a or have reached this instruction would by fused Opinion Court different result had the read SJI merely straight 105.04 from set the book. Failure to aside no cause verdict would not be inconsis- tent with justice. substantial
ii Plaintiff claims court committed error from requiring by excluding reversal evi- dence a letter sent after resignation O’Brien, by Richard General Motors’ Director of Worldwide Personnel Administration. The court excluded this letter under MRE 407 it subsequent because contained references re- medial plaintiff proposed measures which to use to prove defendant’s culpable conduct. Plaintiff ar- gues that the court by excluding erred letter because it was as a admission party admissible 801(d)(2). under MRE We find no error. 801(d)(2) provides
MRE that a is not statement if: hearsay The statement party offered a and is (C) . . . person a statement him by a authorized (D) concerning a subject, make statement or concerning agent statement his or servant scope agency employ- of matter within the ment, of his during made existence relationship ....
However, the court did not rule letter Instead, was inadmissible hearsay. the court ruled the letter was MRE 407 inadmissible subsequent because it referred to remedial mea- which, taken, might sures they had been have enhanced chances promotion *8 cross-training. MRE 407 provides: event,
When, after taken measures are App op Opinion the Court made the which, previously would have if taken occur, likely event less to evidence subse- negli- prove quent is not admissible to measures culpable in with the gence conduct connection or require exclusion of This rule does not event. evidence another offered for subsequent measures when ownership, purpose, such as con- measures, trol, feasibility precautionary controverted, [Emphasis impeachment. added.] that question in does indicate Review of letter subsequent remedial mea- it references contains training taken lessen discrimination sures properly court excluded promotion. The circuit MRE 407. this evidence under
hi
committed
argues
Plaintiff
the circuit court
granting
reversal
defendant’s
requiring
error
wit-
preclude
plaintiffs
motion to
six
pretrial
disagree.
at trial. We
testifying
nesses from
an undisclosed witness
permit
Whether
Elmore
within the trial court’s discretion.
testify is
609, 613;
Ellis,
321 NW2d
App
v
115 Mich
Exploration
(1982); Dehring
Michigan
v Northern
300, 321;
Co, Inc,
We find no abuse of discretion in the court’s actions. Plaintiff did not good state cause for her failure to list large such a number of witnesses until very date, close to the trial nor did plaintiff bother separate make a reсord to demonstrate importance of their testimony. Under these circumstances, the court did not err by excluding these witnesses from testifying.
iv
argues
the trial court
erred
her
denying
motion for a new trial or judgment
notwithstanding
the verdict because
the jury’s
verdict
against
was
great weight
of the evi-
dence. Plaintiff
claims
that defendant
failed to
present
evidence of
intent
nondiscriminatory
rebut
prima facie case.
disagree.
We
grant
Whether
a new trial on the basis that
the verdict
great
is
weight of the
evidence is within the sound discretion of the trial
judge,
judge’s
and the
decision will not be reversed
absent a clear abuse of that discrеtion. Bosak v
Hutchinson,
712,
737;
Mich
We find no error in the plain- court’s denial of 180 op Opinion the Court notwith- judgment for a new trial or tiffs motions standing present prima Plaintiff did the verdict. gender How- case of race or discrimination. facie ever, rebutted effectively of a case with extensive evidence prima facie this request reason nondiscriminatory denying namely, large promotion cross-training, began work force which reductions salaried *10 present of 1979. Plaintiff evi- August any did the motives nondiscriminatory dence to show that for merely pretext by asserted defendant The verdict was not discrimination. The of the trial court great weight
the evidence. trial or properly judgment a new denied notwithstanding the verdict.
v in argues Plaintiff that the trial erred $25,110. fees awarding attorney unreasonable, argues these fees were disagree. MCR and must be reversed. We 2.403(0)(1) (6) provide: and party rеjected If a has evaluation mediation] [a trial, must proceeds party action party’s costs unless the
pay verdict than the opposing actual rejecting party more favorable to the However, evaluation. if the mediation evaluation, a opposing party rejected has also more party only is entitled to costs verdict is party the mediation evalua- favorable to tion. than rule, include purpose For of this actual costs action and a rea- any those costs taxable civil hourly attorney fee on a reasonable sonable or based by judge daily rate as determined rejection of the media- services necessitated tion evaluation. 587 op Opinion the Court upheld attorney
An award of fees this will be Court absent abuse of discretion. Petterman v App Farms, Inc, 30, 32; Haverhill 125 Mich NW2d The factors be considered determining attorney the reasonableness of fees are (1) professional standing experience of the (2) (3) skill, involved; attorney; time and labor achieved; question the amount and the results (4) (5) case; difficulty expenses of the (6) incurred; length the nature and professional relationship the client. with v [Wood
DAIIE,
573, 588;
(1982),
413 Mich
NW2d
Schick,
quoting
Crawley
v
(1973).]
aWhile trial court should consider the Crаwley, lines of in court it is not limited to those factors Further, making its determination. the trial findings specific need not detail its as to each upheld factor considered. The award will be unless appears upon appellate it review that *11 finding court’s on the "reasonableness” issue was an abuse of discretion. [Id.] appeal, plaintiff On claims that defense counsel’s hourly billing rates were unreasonable for the suit, locale of the vices were often that and that defense counsel’s ser-
duplicated repeated. noteWe present regard- any did not evidence ing attorney typical why fees of the lоcale or defense counsel’s fees were Nor did unreasonable. plaintiff present any evidence to the trial court particular establishing which of defense counsel’s repetitive. duplicative services were assertion that the assessed fees were unreasonable Plaintiffs simply supported by not evidence on the record. App 575 J. L. V. Washington, Dissent discretion not did abuse The trial court fees. these awarding defendant Affirmed.
Gribbs, J., concurred. (dissenting). I dissent. error, and because instructional Because of an the exclu- of evidence and the exclusion rulings on deprived plaintiff erroneously sion of witnеsses a full reverse. I jury, would persuade to opportunity error re- prejudicial agree I with the trial court because reversal occurred quiring refused Standard requested applicable, to give proof, burden Instruction on Jury instruction proposed instead used and misstated from the SJI deviated which law. instruction, counsel
Prior to the 105.04 in to use SJI the trial court requested instructing regarding plaintiff’s burden it stated would proof. When and, instead, give would SJI give the instruction applicable plaintiff ob- proposed, the instruc- argued Plaintiff’s counsel jected. con- unduly defendant would proposed tion as fuse as to the issues. provides: 105.04 SJI proving that: has the burden of [discharged/failed to hire/failed
a. defendant train/harassed/ promote/failed _] plaintiff, and origin/age/sex/ [religion/race/color/national b. height/weight/marital was one of status] made a difference or reasons which motives determining to hire/fail [discharge/fail train/harass promote/fail _] plaintiff. *12 Dissent
Your you verdict will be for the if find that [discharged/failed defendant to hire/failed to promote/failed to train/harassed/ plaintiff, the and that -] [reli- gion/race/color/national origin/age/ sex/height/ weight/marital was one of the motives or status] reasons which made determining a difference in tо [discharge/fail to promote/fail hire/fail to to train/harass/_] plaintiff. the
Your will you verdict be for defendant find [discharge/fail the defendant did not to hire/ promote/fail fail to to train/harass/ plaintiff. Your will verdict -] also if you be for defendant find that defen [discharge/fail dant did to hire/fail promote/fail to train/harass/_] plaintiff, but [religion/race/color/national origin/age/ sex/height/weight/marital was not one of status] motives reasons which made a difference in determining to [discharge/fail pro hire/fail mote/fail to train/harass/_] other plaintiff. 105.04,
In reviewing SJI the trial court stated word only that was standard was "defen- dant.” The rest was to the parties be filled according parties’ claims, court stated, adding that pro- instruction defendant posed claims. more fairly stated
The requested instruction which provided: failed give (a)
Plaintiff has the that: burden promote failed to and/or to train failed *13 App 575 by Washington, V. L. J. Dissent (b) the motives was one of race/color and/or sex determining made a difference in or reasons which failing to promote and/or train. to fail to plaintiff you if the find Your verdict will be for promote to and/or failed to that defendant failed race, plaintiff and/or sex train the was one of the and that color motives reasons which made or determining promote in to fail to and/or difference plaintiff. the train if find you the defendant verdict will be for Your promote not and/or fail
that did fail defendant also be for plaintiff. the Your verdict will to train did find that defendant fail you the promote if plaintiff, the but that and/or fail train race, one color and/or sex was not motives determining in or reasons which made a difference plaintiff. promote and/or fail to train the fail to plaintiffs charge The on court’s proof burden of was: that plaintiff has burden of The employees male were
similarly situated white or differently promoted or cross-trained or treated plaintiff sought promotions and during period race, cross-training, color or sex motives reasons which made was one or promote or determining not to cross- difference train the by the plaintiff, or in her treatment defendant. plaintiff, be for the Rosa Jerni- Your verdict will similarly white or or
gan, you find that situated promoted employees or cross-trained male treated during period differently cross-training and that sought promotions plaintiff’s or race, or the motives color sex was one of determining which made a difference reasons her in her treat- promote not to or cross-train or by ment defendаnt. if you find will be for the defendant Your verdict similarly employees or male situated white during promoted or cross-trained were not Dissent
period plaintiff sought promotions and cross-train- ing, differently, plaintiff’s race, treated color or her sex did make a difference in determining promote whether or not to or cross- train or in her treatment defendant.
The
proof
burden
employment
discrimina-
tion
brought
cases
Civil Rights
Act
the same
brought
cases
under Title
VII
seq.
42 USC 2000e et
Rights
the Civil
Act
*14
Dep’t
Burdine,
Texas
of
v
Affairs
Community
In
248,
450
252-253;
1089;
US
101
L
S Ct
67
2d
Ed
(1981),
207
the United
Supreme
States
Court
plaintiffs
proof
stated
burden of
thusly:
First,
plaintiff
the
has
the burden of
by
preponderance
the
the
prima
evidence a
facie
Second,
case of discrimination.
plaintiff
the
suc-
case,
in proving
prima
ceeds
the
facie
the burden
shifts to the
legiti-
defendant "to articulate some
mate, nondiscriminatory
employee’s
for the
reason
Third,
.
rejection.”
. .
should the
carry
defendant
burden,
plaintiff
this
tunity
oppor-
must then
an
have
prove by
preponderance
a
of the evidence
legitimate
reasons
by
offered
the defen-
reasons,
dant
pretext
were
its true
but
a
discrimination.
for
case,
a
discrimination
In
plaintiff
race
estab-
lishes
a prima
by
facie
case of discrimination
(1)
showing
a
plaintiff was
member
of the
act,
(2)
protection
class entitled
under
that,
conduct,
for the same or similar
plaintiff was
treated differently than one
was a
who
member
race. Jenkins v
Michigan
Southeastern
a different
Chapter,
Cross,
American Red
785;
App
141 Mich
v
Regents
Sisson Bd of
(1985);
Similarly, plaintiff (1) showing discrimination sex protection of a class entitled to was a member (2) that, act, similar for the same or conduct, than a differently was treated Co, v Zack Pomranky man. employee Whether an
343; 405 NW2d of fact for the question is a similarly situated jury. failing give
I court erred find that Although the standard instruction jury SJI 105.04. it to the court to tailor require did trial case, required this 2.516 specific facts of MCR the format of the standard trial court to follow Instead, gave instruction. which did proposed, instruction which instruc- not follow the format standard addition, have confused In been jury may tion. that, suggested instruction the instruction. The nondiscriminatory legitimate, if defendant had failing promote to cross-train reason reasons, then to economic whites or males due plaintiff’s nonpro- regarding decision reason. In the identical motion was made for instruction, addition, time stated frame *15 of limiting consideration of evidence jury’s sought period plaintiff pro- discrimination No such cross-training, was erroneous. motion In employ- in 105.04. provided time frame is SJI cases, of discrimina- ment discrimination evidence direct, on plaintiffs rely often rarely tion is In their claims. prove evidence circumstantial (CA 7, Kempiners, Riordan v 831 F2d 698-699 that, 1987), importance given noted (and, in evidence of circumstantial discrimination, a employment disproving) equally, that oc- of evidence of events exclusion blanket alleged discrimination before or after curred Dissent arbitrary. Similarly, limiting jury’s review of arbitrary. Therefore, evidence would be I plaintiff would find that has demonstrated affirmance of the verdict would be "inconsis- plaintiff justice,” tent with substantial should granted be trial. new regarding
toAs the issue the circuit court’s grant pretrial preclude of defendant’s motion to testifying six trial, of witnesses from at pretrial it should be noted that order which plaintiff required defendant claims parties violated discovery to amend their witness lists after completed provided was that failure to do so "may being result in that witness not allowed not testify.” of Five additional witnesses employees were of defendant and with- nonemployee drew the name another witness. proposed Since several witnesses em- ployees defendant, it was nоt shown how defen- prejudiced dant would be if the witness was list separate made, amended. Since no was I am record prop- unable erly determine whether the trial court precluding exercised discretion these testifying. witnesses from this Since I would reverse case, that, I remand, would order on preclusion plain- court reconsider the blanket tiff’s witnesses and determine which of the five any, testify upon witnesses, if should retrial. Additionally, the trial court excluded from evi- sent dence letter from Richard O’Brien, General Motors’ Director Worldwide Administration, November, 1982, Personnel plaintiff’s resignation. about three months after argues pаrty the letter was a 801(d)(2)(D). MRE admission under counters that Defendant properly the letter was excluded subsequent MRE under sure. I 407 as a remedial mea- 801(d)(2)(D) agree plaintiff. pro- with MRE *16 App 575 594 180 Mich L. Dissent V. if it hearsay is not a statement
vides his "a statement by and is party offered concerning within the a matter agent or servant during made his scope agency employment, relationship.” The statements existence were made in O’Brien’s letter contained defendant, they con employee O’Brien as an scope agency a matter within his cerned during made statements employment v Pulte relationship. Moody of that the existence Homеs, Inc, 150, 173-175; 319 378 NW2d Illinois & v Aluminum Chemical Kaiser (1985); (CA Co, 615 470, 8, 1980), C 476 cert G R F2d 249; 66 Ed 116 US 101 S Ct L 2d den 449 Weinstein, Evidence, 801(d)(2)(D)[01], pp (1980); 4 ¶ trial court I conclude that 801-221 801-224. excluding the letter from evidence. erred fees were attorney I find Finally, would a final making "In as assessed. inappropriate fees, trial should attorney award of particular on the determine a reasonable fee based community legal practice.” facts of case and Farms, Inc, v App Mich Haverhill Petterman In Johnston v Detroit 33; 335 NW2d Co, 597, 601; 370 & Crane Hoist (1985), approved this Court NW2d assessing approach which consisted court’s locale under attorney fee reasonable instant case The trial court circumstances. making considered these factors should have determination.
I would reverse.