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### STATE OF MICHIGAN

COURT OF APPEALS

THEODORE CADWELL and GLENN QUAKER

Plaintiffs-Appellees, UNPUBLISHED May 28, 2015

v No. 318430 Wayne Circuit Court CITY OF HIGHLAND PARK, LC No. 10-012583-NO

Defendant-Appellant.

Before: T ALBOT , C.J., and C AVANAGH and M ETER , JJ.

P ER C URIAM

. In this claim brought, in part, under the whistleblower protec tion act (WPA), MCL 15.361 et seq ., defendant Highland Park appeal s as of right the judgment of the trial court, after a jury trial, awarding damages to plaintiffs Theodore Cadwell and Glenn Quaker. We affirm in part, reverse in part, and remand f or further proceedings consi stent with this opinion.

Defendant first argues that the trial court erred in denying d efendant’s summary disposition motion concerning plaintiff’s WPA claim because no “protected activity” occurred. We disagree. A grant or denial of summary disposition is revie wed de novo on appeal. Walters v Nadell , 481 Mich 377, 381; 751 NW2d 431 (2008). As the Michigan Supr eme Court explained in Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999):

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a moti on for summary disposition brou ght under this subsection, a trial court considers affidavits, pleadings, depo sitions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), i n the light most favorable to the party opposing the motion. Where the proffere d evidence fails to establish a genuine issue regarding any material fact, the movi ng party is entitled to judgment as a matter of law.

“Issues of statutory constructi on involve questions of law that[this Court] review[s] de novo.” Cuddington v United Health Servs
, Inc , 298 Mich App 264, 271; 826 NW2d 519 (2012).

MCL 15.362 states:

An employer shall not discharge, threaten, or otherwise discri minate against an employee regarding the employee’s compensation, term s, conditions,-2- location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verballyor in writing, a violation or a suspected violatio n of a law or regulation or ru le promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the rep ort is false, or because an employee is requested by a public body to participat e in an investigation, hearing, or i nquiry held by that public body, or a court action.

From this statutory language, the Michigan Supreme Court has id entified three elements that establish a viola tion of the WPA:

(1) The employee was engaged in one of the protected activiti es listed in the provision.

(2) [T]he employee was discharged, threatened, or otherwise discriminated against regarding his or her compensation, terms, conditions, location, or privileges of employment.

(3) A causal connection exists between the employee’s protect ed activity and the employer’s act of disch arging, threatening, or otherwis e discriminating against the employee. [ Wurtz v Beecher Metro Dist , 495 Mich 242, 251-252; 848 NW2d 121 (2014).]

“The protected activities listed in the act consist of reporti ng or being about to report a violation of a law, regulation, or rule, or being requested by a public body to participate in an investigation, hearing, i nquiry, or court action.” Id . at 251 n 13; see also MCL 15.362. Where the protected activity is the ac t of reporting a violation of l aw, that report must be made to a “public body” as that term is defined in the WPA. MCL 15.362; see also Brown v Mayor of Detroit , 478 Mich 589, 594; 734 NW2d 514 (2007) (“[t]he WPA protects a n employee who reports or is about to report a vi olation or suspected violatio n of a law or regulation to a public body ”). Pursuant to MCL 15.361(d), a “public body” includes:

( i ) A state officer, employee, agency, department, division, bure au, board, commission, council, authority, or other body in the executive branch of state government.

( ii ) An agency, board, commission, council, member, or employee of the legislative branch of state government.

( iii ) A county, city, township, vill age, intercounty, intercity, or regional governing body, a council, school dis trict, special district, o r municipal corporation, or a board, department, commission, council, agenc y, or any member or employee thereof.

( iv ) Any other body which is created by state or local authority o r which is primarily funded by or through state or local authority, or any member or employee of that body.-3- ( v ) A law enforcement agency or any member or employee of a law enforcement agency.

( vi ) The judiciary and any member or employee of the judiciary.

“The language of the WPA does not provide that this public body must be an outside agency or higher authority. There is no c ondition in the statute that an employee must report wrongdoing to an outside agency or higher authority to be protected by the WPA.” Brown , 478 Mich at 594. Thus, “[i]t does not matter if the public body to which the sus pected violations were reported was also the employee’s employer.” Id . at 595.

Here, Quaker, the deputy chief of police for defendant’s polic e department, reported a suspected violation of criminal laws by Gregory Yopp (Gregory), the son of defendant’s mayor, Hubert Yopp (Mayor Yopp), to Cadwell, who was at that time the chief of police for defendant’s police department. Because the definition of a “public body” i ncludes “[a] law enforcement
agency or any member or employee of a law enforcement agency [,]” MCL 15.361(d)( v ) (emphasis supplied), Quaker’s act was a protected activity. Se e Brown , 478 Mich at 595 (where a plaintiff reported suspected violations to the chief of polic e, he had engaged in a protected activity under the WPA). Thus, as it pertained to Quaker, the trial court correctly denied the motion.

With regard to Cadwell, the trial court ruled that a question of fact existed because Cadwell held a supervisory role in the police department and, a ccordingly, “would have had some oversight of the operation and in reporting the arrest to the Wayne County Prosecutor.” Again, Cadwell was the chief of police at the time of the arres t. Lynesha Jones testified that she was the officer in charge of the investigation into Gregory’s arrest and that she forwarded the case to the Wayne County Prosecutor. According to Jones, forwa rding the case was solely her responsibility. While acknowledging that she worked under Quak er and Cadwell, Jones denied having any conversations with either regarding Gregory’s prosec ution. However, evidence was submitted creating a question of fact regarding whether Cadwell participated in a protected activity under the WPA. Cadwe ll testified that Mayor Yopp

made an indication that because the narcotics – there was not a large amount of narcotics seized, that we should not have submitted that information to the Wayne County Prosecutor, but that we should have handled that in-house. And we explained to him, you know, as an Investigator he knows, when y ou do an Investigator’s write-up, you put all the facts in and the Prose cutor, who’s writing the Warrant, makes that determination. You know, we can’t just , arbitrarily not submit evidence or indications of evidence. [Emphasis added.]

Viewed in the light most favorable to plaintiffs, Cadwell’s tes timony supports a reasonable inference that he was involved in the submission to the Wayne C ounty Prosecutor of the evidence concerning Gregory’s su spected violation of criminal l aws. Although Cadwell’s use of the term “we” could arguably be understood as referring to the police department generally, it could also reasonably be understood to express that he was invo lved at least in a supervisory role in submitting the evidence to the prosecutor. Cadwell’s testim ony that “we” explained to Mayor Yopp the reason why the informa tion was submitted to the prosec utor lends further support to-4- the view that Cadwell had some level of involvement in the deci sion to forward the information to the prosecutor.

Further, MCL 15.362 does not require the report to be made by the individual bringing the WPA claim. The statute specifically prohibits an employer from taking retaliatory action against an employee “because the employee, or a person acting on behalf of the employee
, reports . . . a violation or a suspected violation of law . . . to a public body . . . .” MCL 15.362 (emphasis supplied). It is undisputed that Jones was the offic er who forwarded Gregory’s case, along with the evidence against him, to the Wayne County Prosec utor’s Office. However, Cadwell’s testimony quoted above supports a reasonable inferenc e that he was involved in the decision to forward the information. Certainly, the Wayne Coun ty Prosecutor’s Office would be a “public body” under the WPA. See MCL 15.361(d); see also Ernsting v Ave Maria College
, 274 Mich App 506, 515-518; 736 NW 2d 574 (2007) (the federal Dep artment of Education is a public body under MCL 15.361(d)( v ) because it has the “power t o conduct civil and criminal investigations in order to enf orce the laws under its purview”)

. Plaintiffs presented evidence that they reported suspected illegal activity to a public body, and thus, defendant was not entitled to summary disposition with regard t o plaintiffs’ claims under the WPA.

Defendant next argues that the trial court erred when it denie d defendant’s motions for a directed verdict and for judgment notwithstanding the verdict ( JNOV) on the same underlying issue discussed above, i.e., whether plaintiffs engaged in a pr otected activity. We disagree. A trial court’s decision on a moti on for a directed verdict or JN OV is reviewed de novo. Sniecinski v Blue Cross & Blue Shield of Mich , 469 Mich 124, 131; 666 NW2d 186 (2003). This Court must “‘review the evidence and all legitimate inferences in the light most favorable to the nonmoving party.’” Id ., quoting Wilkinson v Lee , 463 Mich 388, 391; 617 NW2d 305 (2000). The motion “should be granted only if the evidence viewed in th is light fails to establish a claim as a matter of law.” Sniecinski , 469 Mich at 131.

Defendant first moved for a directed verdict after plaintiffs concluded their opening statement. As this Court stated in Fenton Country House
, Inc v Auto-Owners Ins Co , 63 Mich App 445, 448-449; 234 NW2d 559 (1975):

As a starting point, this Court must recognize that this method of disallowing a party from presenting its case to the jury is a limited and dis favored one. That view of such directed verdicts has developed because the openin g statement is only for the jury’s benefit, and must be made using simple lang uage a jury likely will understand. Only the very general nature of the case need be described. [Citations omitted.]

“The specific test to be used in examining the opening statemen t is whether it encompassed all of the ultimate facts proposed to be proven and essential to plain tiff’s . . . cause of action.” Id . at 449 (quotation marks and citation omitted). The test is a “ver y loose test which must be used to judge the offer of proof found i n the opening statement . . . . ” Id

. Defendant argued that a directed verdict was warranted because plaintiffs’ opening statement made no reference to any evidence that would satisfy the first element of a WPA claim—the existence of a protected activity. Defendant’s argum ent centers on a statement by-5- plaintiffs’ attorney in which he summarized the case as one in which defendant retaliated against plaintiffs for failing to prevent Gregory’s prosecution. Howev er, defendant ignores the rest of plaintiffs’ opening statement. Plaintiffs’ attorney asserted that Quaker reported Gregory’s arrest to Cadwell. Plaintiffs’ attorney also asserted that Gregory’s case was forwarded to the Wayne County Prosecutor’s Office. As was discussed in the previous i ssue, these acts are protected activities under the WPA. Accordingly, a directed verdict was not warranted on the basis of plaintiffs’ opening statement. See id . at 448-449.

Defendant moved for a directed verdict on the fourth day of tr ial, arguing that no evidence had been presented that demonstrated that either plaintiff participated in a protected activity under the WPA. The tri al court denied the motion. De fendant renewed the motion the following day, and it was again denied. Following trial, defen dant moved for a JNOV, again arguing that no evidence of a protected activity was presented at trial. This motion was also denied. On appeal, defendant ar gues that the trial court erred because no evidence was presented demonstrating that plaintiffs participated in a protected activ ity. However, evidence had been presented that Quaker reported Gr egory’s arrest to Cadwell. Ca dwell testified at trial that he reviewed the investigator’s report that was prepared and sent t o the Wayne County Prosecutor’s Office and that he directed Jones to forward the case to the pr osecutor, and Quaker testified that Jones’s investigative report was prepared under his supervision . In accordance with our analysis above, this evidence demonstrated that plaintiffs participated in a protected activity under the WPA—that being reporting illegal activity to a public body. Ac cordingly, the trial court correctly denied defendant’s motio ns for a directed verdict and JNOV.

Defendant next argues that the trial court erred when it denie d defendant’s motion for remittitur or a new trial regarding damages. “The grant or den ial of a motion for a new trial or remittitur is reviewed for an abuse of discretion.” Landin v Healthsource Saginaw, Inc , 305 Mich App 519, 546; 854 NW2d 152 (2014), lv granted ___ Mich ___ ; 860 NW2d 927 (2015). “When reviewing such motions, this Court views the evidence in the light most favorable to the nonmoving party, giving due defer ence to the trial court’s deci sion because of its ability to evaluate the credibility of th e testimony and evidence presente d to the jury.” Id . A trial court abuses its discretion when its decision falls outside the range of principled outcomes. Radeljak v DaimlerChrysler Corp , 475 Mich 598, 603; 719 NW2d 40 (2006).

A trial court may grant a new trial under MCR 2.611(A)(1)(e) i f “[a] verdict or decision [is] against the great weight of the evidence or contrary to law.” If competent evidence exists to support a jury’s verdict, the verdict should not be set aside s imply because the trial court would weigh the evidence differently. Bd of Co Rd Comm’rs of Kalamazoo Co v Bera , 373 Mich 310, 314; 129 NW2d 427 (1964). The motion should be granted only if the jury’s verdict is “manifestly against the clear weight of the evidence.” Ellsworth v Hotel Corp of America , 236 Mich App 185, 194; 600 NW2d 129 (1999) (quotation marks and cit ation omitted). The verdict must be upheld if there is any interpretation of the evidence t hat logically explains the jury’s findings. Allard v State Farm Ins Co , 271 Mich App 394, 407; 722 NW2d 268 (2006).

Remittitur is governed by MCR 2.611(E), which states, in part:

(1) If the court finds that the only error in the trial is the inadequacy or excessiveness of the verdict, it may deny a motion for new tria l on condition that-6- within 14 days the nonmoving part y consent in writing to the en try of judgment in an amount found by the court to be the lowest (if the verdict w as inadequate) or highest (if the verdict was exces sive) amount the evidence will support.

To determine whether remittitur is appropriate, “a trial court must decide whether the jury award was supported by the evidence.” Silberstein v Pro-Golf of America, Inc , 278 Mich App 446, 462; 750 NW2d 615 (2008). This Cour t described the factors to be considered in Freed v Salas
, 286 Mich App 300, 334; 780 NW2d 844 (2009):

(1) whether the verdict was the result of improper methods, pre judice, passion, partiality, sympathy, corruption, or mistake of law or fact; (2 ) whether the verdict was within the limits of what r easonable minds would deem just compensation for the injury sustained; and (3) whether the amount actually award ed is comparable with awards in similar cases both within the state and in other jurisdictions.

The WPA allows a plaintiff to r ecover “actual damages . . . .” MCL 15.363(1). Damages for emotional distress are encompassed within this term. Phinney v Perlmutter , 222 Mich App 513, 559-560; 564 NW2d 532 (1997), abrogated in part on other g rounds by Garg v Macomb Co Community Mental Health Servs , 472 Mich 263; 696 NW2d 646 (2005), amended 473 Mich 1205 (2005). “A plaintiff asserting a cause of action has the burden of proving damages with reasonable certainty, and damage s predicated on speculation and conjecture are not recoverable.” Health Call of Detroit v Atrium Home & Health Care Servs
, Inc , 268 Mich App 83, 96; 706 NW2d 843 (2005). Uncertainty regarding the fact of damages is fatal to recovery, while uncertainty regarding only the amount of damages is not. Wolverine Upholstery Co v Ammerman , 1 Mich App 235, 244; 135 NW2d 572 (1965).

Defendant first argues that the jury’s award of damages for fu ture lost wages was not supported by the evidence. Defendant’s argument appears to be that this award was improper because no documentary evidence was admitted to support it. De fendant offers no authority for such a requirement and, accordingly, has abandoned the issue. Flint City Council v Michigan
, 253 Mich App 378, 393 n 2; 655 NW2d 604 (2002) (“this Court wil l not search for authority to support a party’s position, and the failure to cite authority i n support of an issue results in its being deemed abandoned on appeal”) . Further, as d efendant ackn owledges, both plaintiffs testified that they would have r emained employed for an additio nal seven years had they not been laid off and that they were unable to obtain employment. Plaintiffs’ testimony established the fact of damages due to future lost wages. Defendant’s argu ment is without merit.

Defendant also argues that the trial court abused its discreti on when it denied the motion for a new trial or remittitur because the jury’s award of $500, 000 to each plaintiff for emotional distress was not supported by th e evidence. We agree. After r eviewing the trial testimony, we have found insufficient evidence that either plaintiff suffered from emotional distress. Significantly, plaintiffs themselves point to no such testimony in their brief on appeal. Rather, plaintiffs argue that the jury c ould infer that such damages oc curred because Mayor Yopp implied that plaintiffs were involved in stealing money from th e police department. In essence, plaintiffs argue that it was permissible for the jury to simply speculate that plaintiffs suffered from emotional distress. However, a plaintiff must prove the f act of damages, not simply rely on-7- speculation that damages might have occurred. Health Call of Detroit , 268 Mich App at 96; Wolverine Upholstery Co , 1 Mich App at 244.

Remittitur is appropriate here because the jury’s award was no t supported by the evidence. Silberstein , 278 Mich App at 462. As MCR 2.611(E)(1) contemplates, the on ly error was the excessiveness of the jury’s verdict. The factors discu ssed in Freed weigh in favor of granting remittitur. It appears that the “verdict was the resu lt of . . . [a] mistake of law or fact . . . .” Freed , 286 Mich App at 334. In addition, the verdict was not “withi n the limits of what reasonable minds would deem just compensation for the injury su stained,” id ., given the insufficiency of the evidence.

Accordingly, we reverse in part the trial court’s opinion and order denying defendant’s motion for a new trial or remittitur and remand with instructio ns that the trial court, pursuant to MCR 2.611(E)(1), “deny [the] mot ion for new trial on condition that within 14 days the nonmoving party consent in writi ng to the entry of judgment in an amount . . . the evidence will support.” Because the only portion of the award not sufficient ly supported by the evidence was the award of $500,000 to each plaintiff for emotional distress, plaintiffs should be provided 14 days to consent to a judgment reduced by this amount.

Plaintiffs also argue on appeal that the trial court erred whe n it limited their recovery of future lost wages to a period of seven years after their discharge, and ask that this Court remand the case to allow the trial court to award these additional dam ages. However, plaintiffs did not file a cross-appeal, and as appellees, they may not obtain a de cision more favorable than was provided below. In re Herbach Estate , 230 Mich App 276, 284; 583 NW2d 541 (1998). Thus, this Court may not provide plaintiffs the relief they seek. Mo reover, plaintiffs have abandoned the issue. Plaintiffs argue that the trial court’s limitation was erroneous because, “[u]nder applicable case law, [p]laintiffs should have been allowed to r ecover damages based upon their life expectancies . . . .” Plaintiffs, however, fail to cite a ny such “applicable case law . . . .” “[T]his Court will not search for authority to support a party’ s position, and the failure to cite authority in support of an issue results in its being deemed ab andoned on appeal.” Flint City Council , 253 Mich App at 393 n 2. Furth er, plaintiffs point to no evi dence presented at trial regarding their life expectan cies. Plaintiffs are not entitled to appellate relief.

Affirmed in part, reversed in part, and remanded for further p roceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Mark J. Cavanagh /s/ Patrick M. Meter