                          STATE OF MICHIGAN

                           COURT OF APPEALS



BEVERLY GARVIN,                                                     UNPUBLISHED
                                                                    June 16, 2015
               Plaintiff-Appellee/Cross-Appellant,

v                                                                   No. 319557
                                                                    Wayne Circuit Court
DETROIT BOARD OF EDUCATION,                                         LC No. 08-120224-NO

               Defendant-Appellant,

and

MARY ANDERSON, ROSA JACKSON, LAURI
WASHINGTON, and DEBRA WILLIAMS,

               Defendants-Appellants/Cross-
               Appellees.


Before: MARKEY, P.J., and OWENS and GLEICHER, JJ.

PER CURIAM.

        Following a jury trial, a $721,400 judgment was entered in favor of plaintiff in this
employment retaliation action that was pursued pursuant to 42 USC 1983 for violations of
plaintiff’s right to free speech. The trial court also entered an order awarding plaintiff attorney
fees of $225,913 and costs of $6,139.59. Defendants appeal as of right. We vacate both the
judgment and the order awarding attorney fees and costs and remand for a new trial on the §
1983-First Amendment claim with respect to the individual defendants.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

        This case is before us for the second time. In the prior appeal, this Court summarized the
basic facts, in part, as follows:

              In plaintiff’s complaint, she alleged that young male students had targeted
       young female students and forced them to perform fellatio and other acts of
       sexual degradation at a public middle school where plaintiff was employed as a
       teacher. Plaintiff further alleged that she reported “the sexual assaults . . . to
       proper school authorities, who, apparently and unfortunately, did not want to be

                                                -1-
          ‘hassled’ by such matters, so they declined to take specific and definitive
          action[.]” According to the complaint, plaintiff, in the face of defendants’ apathy,
          “reported the sexual assaults to non-school public officials, including, but not by
          way of limitation, Child Protective Services [(CPS)].” As part of the CRA
          [Michigan Civil Rights Act, MCL 37.2101, et seq.] claim in count I of the
          complaint, plaintiff asserted that the civil rights of the young female victims to
          enjoy public schools and places of accommodation were violated through “the
          sexual assaults of the boy . . . perpetrators and by the apathy of the public school
          officials in not taking measures to protect the girls.” Plaintiff claimed that as a
          result of her conduct in opposing the violations, she was subjected to adverse
          employment actions taken by defendants, including the eventual termination of
          her employment. Plaintiff sought damages under the CRA for defendants’
          wrongful conduct in harassing, disciplining, and firing plaintiff because of “her
          efforts to prevent the young school girls from being sexually assaulted.”

                  In count II of the complaint, plaintiff alleged that she was engaged in
          protected activity under the First Amendment when she raised matters of public
          concern by way of petitioning defendants and other public agencies to take proper
          action to protect the young female students and voiced opposition to sexual
          assaults and gender harassment and discrimination. Plaintiff, in making a claim
          for damages under 42 USC 1983 as to count II, contended that defendants
          violated her First Amendment rights by terminating her employment in retaliation
          for exercising those rights. [Garvin v Detroit Bd of Ed, unpublished per curiam
          opinion of the Court of Appeals, issued February 26, 2013 (Docket No. 298838),
          slip op pp 1 – 2.]

        After reviewing an appeal from defendants1 regarding the trial court’s denial of
defendants’ motions for summary disposition and for directed verdict with respect to plaintiff’s
employment retaliation action that was pursued on the basis of the CRA and the First
Amendment of the United States Constitution through the conduit of 42 USC 1983, this Court
reversed and remanded for “(1) entry of an order of dismissal on the CRA claim2 with respect to
all defendants; and (2) for a new trial on the § 1983-First Amendment claim with respect to the



1
    In the prior opinion, this Court stated:
          Plaintiff, by using the acronym “a/k/a,” captioned her complaint as if the Detroit
          Public School District, the Detroit Board of Education, and the Detroit Public
          Schools are all one in the same entity; they are not, as the school board and school
          district are distinct legal entities. See MCL 380.3(3) and MCL 380.6(1). We
          shall refer to these defendants as the “entity defendants” for purposes of this
          opinion. [Garvin, unpub op p 1, n 1.]
2
  We will not address this Court’s prior decision regarding the CRA claim because it is not
relevant to the present appeal.


                                                  -2-
individual defendants, but for entry of an order of dismissal in regard to the entity defendants.”
Garvin, unpub op p 25.

         With respect to the § 1983-First Amendment claim, this Court rejected defendants’
argument that plaintiff’s speech in response to defendants’ handing of the sexual assault incident
was not constitutionally protected speech. This Court held that “plaintiff’s speech in calling CPS
to report the assault, in communicating with the superintendant’s [sic] office to express her
displeasure, and in voicing dissatisfaction at staff meetings, all constituted protected speech as a
matter of law for purposes of plaintiff’s § 1983-First Amendment claim.” Garvin, unpub op p
20. Although the Court concluded that the constitutional claim was properly left for the jury to
decide, it could not “allow the judgment of liability to stand” because it “could only speculate as
to whether the jury even addressed the § 1983-First Amendment claim.” Id. at 20. Specifically,
the first question on the jury verdict form asked whether defendants retaliated against plaintiff in
violation of the CRA or the First Amendment, to which the jury responded, “yes.” Id. at 6
(emphasis added). Therefore, this Court stated that “we have absolutely no way to determine
whether the jury found liability on the basis of the CRA claim, the § 1983-First Amendment
claim, or on both claims.” Id. The jury awarded plaintiff $750,000 in damages, including
$490,000 in punitive damages against all defendants, but the verdict form also did not distinguish
which claim the punitive damages were based on. Id. Accordingly, this Court concluded that a
remand for a new trial on the § 1983-First Amendment claim was mandated. Id. at 20.

         This Court also addressed arguments “posed by defendants that either need resolution at
this juncture or beg for guidance to avoid errors in the new trial.” Garvin, unpub op p 21. Of
particular relevance to the present appeal is this Court’s discussion of defendants’ argument that
the trial court abused its discretion in limiting the time for examining witnesses:

       For purposes of remand, we provide the following guidelines for the trial court to
       abide by if it again decides to set time limits. MRE 611(a) provides:

                       The court shall exercise reasonable control over the mode
               and order of interrogating witnesses and presenting evidence so as
               to (1) make the interrogation and presentation effective for the
               ascertainment of the truth, (2) avoid needless consumption of time,
               and (3) protect witnesses from harassment or undue
               embarrassment.

               Placing time limits on the examination of witnesses is a discretionary
       decision by the trial court, but the decision must be consistent with the parameters
       set forth in MRE 611(a). Barksdale v Bert’s Marketplace, 289 Mich App 652,
       655-657; 797 NW2d700 (2010). A trial court abuses its discretion when it
       imposes utterly arbitrary time limitations that are unrelated to the nature and
       complexity of a given case or the length of time consumed by the testimony of
       other witnesses. Id. at 657. We direct the trial court to abide by these principles
       on remand, explaining any time constraints in relationship to the factors
       enunciated in MRE 611(a). [Garvin, unpub op pp 24 - 25; footnote deleted.]



                                                -3-
                                        II. THE RETRIAL

        Plaintiff’s counsel called the first witness, defendant Mary Anderson, as an adverse
witness. After plaintiff’s counsel cross-examined Anderson for what the trial court announced to
be one hour and 15 minutes,3 the trial court took a recess. Following the recess, the trial court
announced that it would allot defense counsel as much time for cross-examination of Anderson
as plaintiff’s counsel received for direct examination, but that going forward the court was
limiting the examination of each witness to two hours – one hour each for direct examination and
cross examination. Defense counsel objected to the one-hour time limitation, arguing that it was
unreasonable and unfair and would not be a sufficient amount of time to cross-examine plaintiff.
Defense counsel asserted that he needed to cross-examine plaintiff regarding eight or nine hours
of prior testimony including her depositions, the prior trial, and the disciplinary hearing.
Defense counsel also asserted that during the first trial he had not been able to finish cross-
examining plaintiff, and he offered to submit an offer of proof to demonstrate why the time
allotted would not be sufficient. The trial court overruled defense counsel’s objection, simply
stating, “I made a (inaudible) decision I have that discretion under the rules of evidence, the
Court rules. So going for 2 hours per witness. Up to a [sic] hour each side.”

         After the conclusion of Anderson’s testimony, plaintiff’s counsel began his direct
examination of plaintiff. The direct examination of plaintiff encompassed 41 pages of transcript.
Defense counsel’s cross-examination of plaintiff began at page 143 of transcript, and the court
recessed for the day during defense counsel’s cross-examination at page 183 of the transcript.
When the trial recommenced the next day, the trial court announced that defense counsel had
used up his one-hour of cross-examination and that plaintiff’s counsel had 14 minutes remaining
for redirect examination. Defense counsel again raised an objection to the time limitation for
examining witnesses; he asserted that he had not yet introduced records, had not cross-examined
plaintiff regarding the merits of her claim and the exhibits he intended to introduce, and had not
yet impeached plaintiff’s credibility regarding prior inconsistent statements she made during two
depositions and the prior trial. Defense counsel indicated that he would need at least two
additional hours to complete his cross-examination of plaintiff. Despite this, the trial court stated
that it had set the time limits and the court refused to allow defense counsel to conduct additional
cross-examination of plaintiff.

         Plaintiff’s counsel resumed the redirect examination of plaintiff, after which the plaintiff
rested. When defense counsel called his first witness, the trial court stated, without explanation,
that, “[t]here is no time limit on this one.” When defense counsel called his second witness, the
court made no mention of a time limitation. But when defense counsel called his third witness,
the trial court stated, “This will be a maximum of two hours.”




3
 Plaintiff’s counsel’s examination of Anderson began at page 64 of the transcript, and the court
called a recess at page 112 of the transcript.


                                                -4-
                                         III. MRE 611(a)

       Defendants challenge as improper the trial court’s limit of one hour for the examination
of witnesses who testified after Anderson. They assert that the time limit was arbitrary and
denied defense counsel the opportunity to fully cross-examine plaintiff. We review for an abuse
of discretion a trial court’s exercise of its power to control the interrogation of witnesses.
Barksdale v Bert’s Marketplace, 289 Mich App 652, 655; 797 NW2d 700 (2010).

        MRE 611(a) provides that “[t]he court shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation
and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue embarrassment.” In the prior appeal in
this case, this Court directed the trial court to explain any time constraints on the examination of
witnesses in relationship to the factors enunciated in MRE 611(a). On retrial, the trial court
announced the time limitation after the direct examination of plaintiff’s first witness and stated
that the time limit would begin with the next witness, which was plaintiff. Defense counsel had
not yet questioned any witnesses. The court did not provide any explanation as to why the time
limitation it imposed was justified under MRE 611(a). The next day, when defense counsel
again challenged the trial court’s time limitation, the trial court stated that the trial had been
“reduced to one count,”4 but again offered no justification for its decision in relationship to the
factors enunciated in MRE 611(a). Indeed, the trial court offered no justification whatsoever for
imposing a time limitation. The record lacks any indication that curtailing counsel’s time for
witness examinations was necessary to “avoid needless consumption of time,” or to “protect
witnesses from harassment or undue embarrassment.” MRE 611(a)(2). The arbitrary time limit
imposed by the trial court prevented defendants from completing their cross-examination of
plaintiff, the primary witness in the case.5 Under these circumstances, we find that the trial court
abused its discretion by imposing an utterly arbitrary time limit without explaining how the time
parameter it selected advanced the trial-management goals set forth in MRE 611(a). Barksdale,
289 Mich App at 657.

        Although not raised as an issue by defendants, we are also troubled by the trial court’s
failure to allow defense counsel to present an offer of proof. In Barksdale, 289 Mich App at 657,
this Court held that:




4
  The court’s comment clearly referred to the fact that the first trial in this case involved two
counts.
5
  We are troubled by the fact that the trial court appeared to choose which witnesses the one-hour
time limit would be imposed upon. For example, the trial court did not allow defense counsel to
finish the cross-examination of plaintiff and imposed the time limit on defendant Williams, but
did not impose a time limit on Nina May Sanders or Nina Sanders.


                                                -5-
                 The trial court further abused its discretion by ignoring or misapplying
         MRE 103(a)(2) when it precluded plaintiff’s counsel from presenting an offer of
         proof. “The trial court’s need to complete witness testimony, however, urgent,
         does not absolve it from its obligation to permit an offer of proof in accordance
         with MRE 103(a)(2).” Alpha Capital Mgt [v Rentenbach], 287 Mich App [589]
         at 619; 792 NW2d 344 [2010].

As in Barksdale, 289 Mich App at 657, the arbitrary time limit prevented defense counsel from
completing his cross-examination of plaintiff. The trial court’s preclusion of an offer of proof
concerning potential additional areas of inquiry further prejudiced defendants’ substantial rights.
MCR 2.613(A). Under these circumstances, and given the fact that this Court previously
cautioned the trial court about imposing arbitrary time limits, we cannot deem these errors
harmless. Consequently, we vacate the judgment and remand for a new trial on the § 1983-First
Amendment claim with respect to the individual defendants. Because we are vacating the
judgment on which the trial court’s award of attorney fees and costs was based, we also vacate
the award of fees and costs.6

                                    IV. INDEMNIFICATION

        Although the remainder of the issues raised by defendants are rendered moot by our
ruling, we will address one argument posed by defendants to avoid error in the new trial.
Evidence that the individual defendants might be indemnified for any judgment entered against
them is not admissible, just as evidence of the existence or nonexistence of liability insurance is
not admissible under MRE 411.7 The issue of indemnification, like the issue of liability
insurance, is irrelevant because it “‘tends to influence and prejudice jurors by imparting to them
the information that whatever verdict they may render will be immaterial to the defendant, since
he will not have to pay for it.’” Id. at 521-522, quoting 29 Am Jur 2d, Evidence, § 404, p 458.
See Felsner v McDonald Rent-A-Car, Inc, 173 Mich App 518; 434 NW2d 178 (1988). If a party
raises an objection to another party’s attempt to question a witness about indemnification, the
appropriate remedy is a curative instruction advising the jury that the question of indemnification
has no bearing on any issue in the case and that it must refrain from any inference, speculation,
or discussion about indemnification.

                                       V. CROSS-APPEAL


6
 A plaintiff may recover attorney fees and costs pursuant to 42 USC 1988 if the plaintiff is the
prevailing party.
7
    MRE 411 provides:
                  Evidence that a person was or was not insured against liability is not
         admissible upon the issues whether the person acted negligently or otherwise
         wrongfully. This rule does not require exclusion of evidence of insurance against
         liability when offered for another purpose, such as proof of agency, ownership, or
         control, if controverted, or bias or prejudice of a witness.


                                                -6-
       Plaintiff seeks leave amend her complaint pursuant to MCR 2.118(C). Because plaintiff
did not preserve this issue below, this Court’s review is limited to plain error. Kloian v
Schwartz, 272 Mich App 232, 242; 725 NW2d 671 (2006).

       MCR 2.118(C) addresses amendments to conform to the evidence and provides,

               (1) When issues not raised by the pleadings are tried by express or implied
       consent of the parties, they are treated as if they had been raised by the pleadings.
       In that case, amendment of the pleadings to conform to the evidence and to raise
       those issues may be made on motion of a party at any time, even after judgment.

               (2) If evidence is objected to at trial on the ground that it is not within the
       issues raised by the pleadings, amendment to conform to that proof shall not be
       allowed unless the party seeking to amend satisfies the court that the amendment
       and the admission of the evidence would not prejudice the objecting party in
       maintaining his or her action or defense on the merits. The court may grant an
       adjournment to enable the objecting party to meet the evidence.

        Plaintiff argues that the evidence presented at the second trial showed that the DPS was
liable for the actions of the individual defendants because of a policy or custom and, therefore,
that she should be allowed to amend her complaint to conform to the proofs pursuant to MCR
2.116(C)(8). However, the law of the case doctrine bars plaintiff's claim. “The law of the case
doctrine provides that if an appellate court has decided a legal issue and remanded the case for
further proceedings, the legal issue determined by the appellate court will not be differently
decided on a subsequent appeal in the same case where the facts remain materially the same.”
Grace v Grace, 253 Mich App 357, 362; 655 NW2d 595 (2002).

         In the prior appeal, this Court dismissed the § 1983-First Amendment claim against the
entity defendants, which included the DPS, and remanded for a new trial as to the individual
defendants only. Garvin, unpub op p 25. In doing so, the Court noted that plaintiff “pursued the
entity defendants on the basis of vicarious liability under the doctrine of respondeat superior,”
and “never alleged or argued that the entity defendants were liable on the § 1983-First
Amendment claim because of a policy or custom.” Id. at 13. This Court noted that school
districts could only be held liable under § 1983 “when an official policy or a government custom
was responsible for a deprivation of constitutional rights.” Id. at 12. Thus, they could not be
held liable under § 1983 based on a respondeat superior theory. Id.

        Given this Court’s statement that plaintiff “never alleged or argued that the entity
defendants were liable on the § 1983-First Amendment claim because of a policy or custom,”
and this Court’s dismissal of the entity defendants from the action, plaintiff’s claim is barred.8




8
  Our Supreme Court denied plaintiff’s leave to appeal in Garvin, in which plaintiff raised this
same issue—that this Court should have permitted her to amend her pleadings to conform to the

                                                -7-
        We vacate the judgment and the order awarding attorney fees and costs and remand this
case to the trial court for a new trial. We do not retain jurisdiction.




                                                         /s/ Jane E. Markey
                                                         /s/ Donald S. Owens
                                                         /s/ Elizabeth L. Gleicher




evidence pursuant to MCR 2.118(C) because plaintiff introduced evidence at the first trial
regarding the DPS’s liability based on policy or custom.


                                             -8-
