Opinion
Docket No. 99539.
Decided July 22, 1988.
Thurswell, Chayet Weiner (by Milton H. Greenman), for plaintiffs.
Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills Poling, P.C. (by Robert D. Brignall), for defendants.
Plaintiffs appeal as of right and defendants cross-appeal from a May 5, 1987, modified judgment in this malicious prosecution, assault and battery, and false imprisonment case. We reverse in part and affirm in part.
This case arises out of an altercation between plaintiffs and several security guards at DJ's Lounge in the Renaissance Center in Detroit, Michigan.
Plaintiffs raise one issue and defendants raise three issues on cross-appeal. Plaintiffs claim that the trial judge erred by applying Camaj v S S Kresge Co, 426 Mich. 281; 393 N.W.2d 875 (1986), to this case and vacating the treble damages for plaintiffs' malicious prosecution claims. We agree.
Prior to trial, plaintiffs' attorney "elected" to forgo arguing exemplary damages to the jury in order to receive treble damages for plaintiffs' malicious prosecution claims pursuant to MCL 600.2907; MSA 27A.2907. See Abdul-Mujeeb v Sears, Roebuck Co, Inc, 154 Mich. App. 249; 397 N.W.2d 193 (1986); LaLone v Rashid, 34 Mich. App. 193; 191 N.W.2d 98 (1971). On September 25, 1986, the jury rendered a verdict in favor of plaintiffs on their malicious prosecution claims. In accordance with plaintiffs' prior "election" and § 2907, the trial judge trebled the damages for the malicious prosecution claims when he entered judgment on the jury verdict on October 24, 1986. However, between September 25, the date the jury rendered a verdict, and October 24, the date judgment was entered, our Supreme Court decided Camaj on October 7, 1986.
In Camaj, the Court held that "§ 2907 is intended only to reach those actions in which a party brings suit against a person who had instituted proceedings against the current plaintiff in the name of another, without the named person's consent, or where there is no such person known." Id. at 290.
The Court concluded:
Finally, we acknowledge that this decision sets forth a totally new interpretation of § 2907 which has, heretofore, not been advanced by any appellate court in this state. Therefore, in the interest of justice and fairness, we hold that this decision shall have prospective effect only, applicable solely to the instant case and to all cases in which no final decision has been reached in the trial courts before October 7, 1986, the date of the filing of this opinion. Tebo v Havlik, 418 Mich. 350; 343 N.W.2d 181 (1984). [ Camaj, supra at 290-291.]
Both parties agree that, if applicable, the Camaj decision precludes the award of treble damages in the instant case. We believe the operative question to be whether the September 25 jury verdict was a "final decision" reached in the trial court. Defendants argue that a "final decision" is reached in the trial court only when the "final judgment" is entered. In fact, in their brief, defendants use "final decision" and "final judgment" synonymously. We disagree and find that the September 25 jury verdict was a "final decision" within the meaning ascribed those words by the Camaj Court. Had the Court intended the operable date to be the date of entry of judgment, the Court would have so stated using the term final judgment rather than final decision. Moreover, to hold differently would deprive plaintiffs the opportunity to receive either exemplary or punitive damages as plaintiffs elected prior to trial to forgo arguing exemplary damages in order to receive the then allowable trebling of any damages recovered.
Defendants raise three issues on cross-appeal. Defendants first argue that plaintiffs' attorney's remarks during closing argument deprived defendants of a fair trial. Defendants point to two related comments by plaintiffs' counsel.
However, defendants' attorney failed to object to the first remark, and the trial court sustained defense counsel's objection to the second one. We find no error meriting reversal. A curative instruction could have eliminated any prejudicial effect of either comment. Cook v Detroit, 125 Mich. App. 724; 337 N.W.2d 277 (1983). Moreover, the record in this case does not reflect a "studied purpose to prejudice the jury and divert the jurors' attention from the merits of the case." Cook, supra at 737.
Defendants next claim that the trial court erred in refusing to admit into evidence an injury report filed by defendant Smalls following the incident in question.
The admissibility of evidence is within the trial judge's discretion. Guider v Smith, 157 Mich. App. 92; 403 N.W.2d 505 (1987), lv gtd on other grounds 429 Mich. 858 (1987). We find no such abuse in the instant case. The existence of the report was unknown to plaintiffs' counsel, the report was hearsay and not properly submitted as admissible to rebut a charge of recent fabrication.
Defendants last claim error in the trial court's denial of their motion for directed verdict on plaintiff Shirley Sanders' claims of malicious prosecution and false imprisonment.
In considering a motion for a directed verdict, a trial court must
view the testimony and all legitimate inferences in a light most favorable to the nonmoving party. If the evidence establishes a prima facie case, the motion must be denied, Caldwell v Fox, 394 Mich. 401; 231 N.W.2d 46 (1975), Weeks v Feltner, 99 Mich. App. 392; 297 N.W.2d 678 (1980), Wynn v Cole, 91 Mich. App. 517; 284 N.W.2d 144 (1979). In slightly different terms, this Court has held that a motion for directed verdict should be denied when the facts, when viewed in a light most favorable to the nonmovant, are such that reasonable persons could honestly reach different conclusions. [ Hayes v General Motors Corp, 106 Mich. App. 188, 192; 308 N.W.2d 452 (1981).]
Defendants argue a lack of evidence in support of plaintiff's claim that defendants lacked probable cause to prosecute Shirley for assault and battery. However, our review of the record reveals testimony that, if believed, would support a finding that plaintiff's alleged assaultive actions were justified under a "defense of others" defense. See CJI 7:9:09. We therefore find no error in the trial court's denial of defendants' motion.
Affirmed in part, reversed in part and remanded for reinstatement of plaintiffs' treble damages.