Joann Nortley v. Art Van Furniture Inc ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
JOANN NORTLEY, UNPUBLISHED
May 19, 2016
Plaintiff-Appellant,
v No. 327542
Washtenaw Circuit Court
ART VAN FURNITURE, INC., ARCHIE A. LC No. 12-000554-NI
VANELSANDER, trustee of the ARCHIE A.
VANELSANDER TRUST, and JOHN DOE,
Defendants-Appellees.
Before: GLEICHER, P.J., and SAWYER and M. J. KELLY, JJ.
PER CURIAM.
In this premises liability suit, plaintiff, Jo Ann Nortley, appeals by right the judgment
entered by the trial court after her jury returned a verdict in favor of defendants, Art Van
Furniture, Inc., Archie A. Vanelsander, the trustee of the Archie A. Vanelsander Trust, and John
Doe (collectively Art Van). We conclude that Nortley has not adequately raised any claim of
error on appeal. Accordingly, we affirm.
I. BASIC FACTS
In May 2012, Nortley sued Art Van for damages that she alleged she sustained in June
2009 after she lost her balance and fell while shopping at Art Van’s furniture store in Ann Arbor,
Michigan. The trial court held a jury trial over three days in March 2014.
Allen Vanderhoof testified that he had worked for Art Van for 24 years and that he
managed the Ann Arbor store in 2009. He examined several photos of the area at issue—the
recliner area—and stated that the photos accurately depicted the ramp and steps leading to and
from that area. He said the furniture would have been different at the time of the fall, but the
“steps and the structure . . . everything’s the same.” Vanderhoof agreed that the steps had black
and yellow stripes in 2009; he also related that the store’s carpeting was replaced in December
2011. The trial court admitted the photos by stipulation.
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Nortley testified that she went to the store with a friend to shop for furniture. She walked
up into the recliner area along a ramp on one side, but left the area by way of the ramp on the
other side. As she walked down, she did not notice that there was a step down to the floor at the
end. She lost her balance when she put out her left foot and it had “nowhere to go.” She was
holding the railing, but it was too large to grip. She lost her balance, fell, and later realized she
was injured. She first saw that there was a “drop-off” at the end of the ramp when she stood
after her fall. She did not recall there being a bright stripe on the edge of the step and stated that
the carpet was different at the time of her fall—it was darker and “tended to blend in with the
tile” at the end of the ramp.
At trial, Nortley’s lawyer called an expert, Steven Ziemba, who works as a safety
consultant. The trial court took Ziemba’s testimony outside the presence of the jury in order to
determine whether he could testify. Ziemba stated that he was familiar with several safety
issues, including the phenomena of the single-step hazard and safe handrail design, which were
implicated in the present case. He opined that the handrail and steps were flawed and inherently
dangerous. He also testified that the steps and rail did not comply with the building code.
The trial court determined that Ziemba’s testimony would not aid the jury in determining
a question at issue. The trial court explained that Ziemba could not offer an opinion on the
safety of the steps and railing because that opinion would invade the jury’s role as the finder of
fact. He also could not testify that the steps and rail did not comply with the building code
because the code was silent as to platform steps.
After the close of proofs, the parties submitted a special verdict form to the jury and the
jury answered “no” to the first question, which asked whether Art Van was negligent. The trial
court entered a judgment in favor of Art Van in April 2015.
Nortley now appeals in this Court.
II. ANALYSIS
Nortley prepared and submitted an appellate brief on her own behalf and stated that she
had three questions on appeal. The first question, she wrote, involves the “actual date” of the
“changes made to the recliner” area at issue. For her second and third questions, she states
“Accident[t]/incident report of recliner [cinema] prior to my fall” and “My health condition
related prior to my fall and health condition present.” Nortley’s statement of questions involved
does not comply with the requirements stated under MCR 7.212(C)(5). Indeed, the statement
does not implicate any particular act or omissions by anyone, let alone the trial court. Because
she failed to state her claims of error, there is nothing for this Court to consider. See Busch v
Holmes, 256 Mich. App. 4, 12; 662 NW2d 64 (2003).
Even reading Nortley’s brief as a whole and searching for a claim of error, we cannot
discern any claim capable of meaningful review. Nortley’s brief has a total of 18 pages
(counting the cover page and proof of service), but the majority of those pages are copies of
exhibits and pages from transcripts; only four pages include anything of substance. She wrote
two pages that she characterized as a statement of facts. She did not, however, present a “clear,
concise, and chronological narrative” of the “material facts, both favorable and unfavorable” and
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“without argument or bias.” MCR 7.212(C)(6). Rather, she merely asserts that she fell as a
result of a “dangerous ramp and step system inside the store.” She then intimates that
Vanderhoof did not testify truthfully because the photos submitted at trial do not in fact “depict
the recliner cinema area where [she] fell in June 2009.”
It appears that Nortley has some concern about Vanderhoof’s testimony and the fact that
the photos submitted at trial did not depict the area at issue in exactly the way that it appeared
when she fell, but she does not argue that the trial court erred in some way by allowing the
evidence. Moreover, a fair appraisal of the record shows that the jury was aware that the photos
did not depict the area at issue in exactly the same way that it appeared on the day of Nortley’s
fall. Vanderhoof testified that the photos accurately showed the steps and other “structures” at
issue, but he acknowledged that the carpeting had been replaced, that furniture was different, and
that the stripes on the edge of the steps were different. The jury also heard Nortley testify that
the lighting was dim and that the carpeting was darker and blended with the tile, which is why
she did not see the step. Generally, it is for the jury to assess the weight and credibility of the
evidence and resolve any disputes. See Dawe v Bar-Levav & Assoc (On Remand), 289 Mich
App 380, 401; 808 NW2d 240 (2010). And Nortley has offered no reason to question either the
admission of this evidence or the jury’s finding.
Nortley also notes in her facts that the trial court did not allow Ziemba to testify that the
step system and railing were unsafe. She does not, however, argue at any point that the trial
court erred by precluding him from testifying. She purports to summarize her own testimony on
the second page of the facts and finds fault with some remarks that Art Van’s lawyer made
during closing arguments. But she again fails to offer any analysis or citation to law that even
suggests that the comments amount to error warranting relief. As for the third page, Nortley
reiterates that the photos did not depict the recliner area as it appeared in June 2009. Finally, she
asks this Court to, on the basis of her “continued physical pain and suffering,” reverse the jury’s
verdict.
We are sympathetic to Nortley’s circumstances as a pro se appellant; nevertheless, we
must conclude that her failure to identify any claim of error, or otherwise make any effort to
comply with the requirements stated under MCR 7.212(C), amounts to the abandonment of her
appeal. This Court is an error correcting court. Burns v Detroit (On Remand), 253 Mich. App.
608, 615; 660 NW2d 85 (2002). By failing to identify any error in the lower court proceedings,
Nortley has left this Court with nothing to review. See Derderian v Genesys Health Care Sys,
263 Mich. App. 364, 381; 689 NW2d 145 (2004) (stating that this Court will not even consider
granting relief when an appellant fails to challenge the basis of the trial court’s ruling). As our
Supreme Court explained more than fifty years ago, an appellant must make some effort to
identify and support his or her claim of error before this Court will be called to action:
It is not enough for an appellant in his brief simply to announce a position or
assert an error and then leave it up to this Court to discover and rationalize the
basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position. The appellant himself
must first adequately prime the pump; only then does the appellate well begin to
flow. [Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959).]
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There being no errors for this Court to review, we affirm.
Affirmed. As the prevailing party, Art Van may tax its costs. MCR 7.219(A).
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Michael J. Kelly
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