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03/09/76 MESHRIY v. SUN OIL COMPANY

March 9, 1976

MESHRIY
v.
SUN OIL COMPANY



Appeal from Macomb, Frank E. Jeannette, J.

Leave to appeal applied for.

Danhof, P. J., and V. J. Brennan and M. J. Kelly, JJ.

SYLLABUS BY THE COURT

1. Appeal and Error -- Briefs -- Abandonment of Issues.

Any issues which are neither raised nor briefed on appeal are considered abandoned.

2. Constitutional Law -- Due Process of Law -- Trial.

Due process of law requires a fair trial and a fair determination of a controversy.

3. Trial -- Trial Judges -- Prejudice -- Appeal and Error.

Actual proof of claimed prejudice must be shown when an appellate court is reviewing the activities, whether judicial or nonjudicial, of a trial Judge, and when none is forthcoming the appellate court must find that no violation of due process has occurred; where an appellant claims to have been prejudiced by a letter sent to and read by the trial Judge but the appellant has failed to show that the trial Judge was influenced by anything other than the evidence duly entered on the record, no violation of due process has occurred.

The opinion of the court was delivered by: Danhof

Complaint by William Meshriy and Mursell Meshriy, his wife, against Sun Oil Corporation seeking reformation of a lease. Plaintiffs' motion for a new trial, made after trial but prior to judgment, was granted. The trial court later vacated the order for a new trial, sua sponte, and entered a judgment of no cause of action in favor of the defendant. Plaintiffs appeal.

On April 17, 1968, the plaintiffs brought the present action seeking reformation of a lease that they entered into with the defendant. Subsequent to the trial, but before judgment was entered in this matter, the plaintiffs filed a motion for a new trial on January 29, 1973. The motion was granted by the trial court in an order filed May 14, 1973. However, on November 1, 1973, the trial court vacated the above order sua sponte and entered a judgment of no cause of action as to the plaintiffs. The plaintiffs then made a second motion for a new trial, which was denied by the trial court on April 21, 1975.

The plaintiffs next moved the trial court pursuant to GCR 1963, 812.2(a) to permit the plaintiffs to transmit less than the full transcript of testimony on appeal. In the motion, the plaintiffs stated they would appeal from the order denying their second motion for a new trial. Further, the plaintiffs indicated they would limit the appeal to three questions. Finally, only those transcripts subsequent to the plaintiffs' first motion for a new trial were requested for this appeal. *fn1 The trial court granted the plaintiffs' motion for the record on appeal.

The plaintiffs have raised three issues on appeal. *fn2 For obvious reasons, responding to the third issue answers the first two. Any issues not expressly abandoned on appeal by the above actions of the plaintiffs will be considered abandoned in any event because plaintiffs have neither raised nor briefed and supported further issues. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). See also Opal Lake Association v Michaywe Limited ...


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