author: Per Curiam. T. M. Burns, J.

text:
    PEOPLE v SCHIEDA
    Docket No. 78-4977.
    Submitted February 19, 1980, at Detroit.
    Decided August 13, 1980.
    Defendant, Vincent P. Schieda, was convicted of obtaining money over $100 by false pretenses in the Wayne Circuit Court, Maureen P. Reilly, J. The evidence adduced at trial revealed the following facts. Defendant was hired by the City of West-land to install sewer pipes at 13 locations. Defendant billed and was paid for completing the 13 jobs when, in fact, he had completed only 9 of them. An engineering firm employed by the city to oversee the construction certified the work to be completed. However, the firm had evidence in its files indicating that all the work billed for had not been completed. Defendant appeals, alleging the trial court abused its discretion in denying a motion for a directed verdict for failure to provide evidence that the city relied upon his false representations in making payment. Held:

    The crime of false pretenses is committed where money is obtained from a municipality by a misrepresentation made and in fact relied upon by municipal officers even though due diligence in inspection of hvailable records would have revealed the misrepresentation.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that the knowledge possessed by a municipal corporation about a particular matter is, as a general rule, the sum total of all of the knowledge that its officers and agents acquire while acting under and within the scope of their authority, and that, since the engineering firm knew the work had not been completed, the city was charged with that knowledge and could not have relied on defendant’s representations. He would reverse.
    References for Points in Headnotes
    [1] 32 Am Jur 2d, False Pretenses § 53.
    [2] 75 Am Jur 2d, Trial § 550.
    [3, 5] 32 Am Jur 2d, False Pretenses § 49.
    [4] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 865.

      Opinion of the Court
    1. False Pretenses — Misrepresentation — Municipal Corporations — Reliance — Due Diligence.
    The crime of false pretenses is committed where money is obtained from a municipality by a misrepresentation made and in fact relied upon by municipal officers even though due diligence in inspection of available records would have revealed the misrepresentation.
    Dissent by T. M. Burns, J.
    2. Criminal Law — Acquittal — Directed Verdict.
    A criminal trial judge, when ruling on a motion for a directed verdict of acquittal, must consider whether all of the evidence presented by the prosecutor, if viewed in a light most favorable to the prosecutor, would be sufficient to permit a rational trier of fact to find that all essential elements of the crime were proven beyond a reasonable doubt.
    3. False Pretenses — Reliance — Burden of Proof — Knowledge.
    The prosecutor must show that the person sought to be deceived relied upon the false pretenses to his detriment in order to sustain a conviction for obtaining money under false pretenses; knowledge that the representation is false negates reliance upon the representation.
    4. Municipal Corporations — Reliance — Imputed Knowledge — False Pretenses.

      The knowledge possessed by a municipal corporation about a particular matter is, as a general rule, the sum total of all of the knowledge that its officers and agents acquire while acting under and within the scope of their authority.

      5. False Pretenses — Misrepresentation — Municipal Corporations — Reliance — Due Diligence.

      The crime of false pretenses is not committed where money is obtained from a municipality by a misrepresentation made and in fact relied upon by certain municipal officers where due diligence in inspecting the available records would have revealed the truth.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.

      Thomas J. Wing, for defendant.
    Before: Bashara, P.J., and D. F. Walsh and T. M. Burns, JJ.
   Per Curiam.

Defendant, Vincent Paul Schieda, was convicted of obtaining money over $100 by false pretenses. MCL 750.218; MSA 28.415. He was sentenced to a term of one year probation and ordered to pay $500 in court costs. He appeals and we affirm.

The relevant facts are these: defendant was hired by the City of Westland to install sewer pipes at 13 locations in the city; defendant billed and was paid for completing the 13 sewer leads, but, in fact, he had completed only 9 of them.

At issue in this appeal is whether the trial court erred when it denied defendant’s motion for a directed verdict at the close of the people’s proofs. Defendant argues that the prosecutor failed to produce at trial any evidence tending to show that the City of Westland relied upon his false representations. This argument is based upon the fact that an engineering firm employed by the city to inspect the sewer construction and insure that all work was done had evidence in its files on the date that defendant was paid which indicated that all of the work billed had not been completed. From the fact that the agents of the city could have discovered the defendant’s misrepresentation by careful inspection of their own records the defendant concludes that the city could not have justifiably relied upon his statement that all the work was completed when it authorized payment. We disagree.

The issue is not whether the officers of the City of Westland could have in the exercise of due diligence and by careful inspection of their own records discovered the fraudulent misrepresentation made by the defendant but rather whether the officers duly authorized to make payment for the city in fact relied upon the defendant’s misrepresentation in approving payment of his invoice. People v Luttermoser, 122 Mich 562, 566; 81 NW 565 (1900).

Although Mr. Keast, an experienced engineering aide for the city, may have acted imprudently in approving defendant’s invoice without checking the inspection reports, that fact is not a defense to prosecution. In the criminal law the relevant issue is whether there was in fact reliance. See People v Johnson, 28 Mich App 10, 18; 183 NW2d 813 (1970). From the earliest times it has been recognized that the very purpose for the false pretenses statute is to protect the negligent, the unwary, the unlearned, and the credulous from the deceit of those who would take advantage of another’s carelessness or incompetence. People v Summers, 115 Mich 537, 545; 73 NW 818 (1898).

In our judgment the evidence presented by the prosecution prior to the time that the motion for a directed verdict was made, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact beyond a reasonable doubt, People v Hampton, 407 Mich 354, 268; 285 NW2d 284 (1979), that neither Mr. Witala, the superintendent of the Department of Public Services for the city, nor Mr. Keast, the engineering aide who approved defendant’s invoice, nor Mr. Matzo, the city treasurer who paid it, had knowledge that only 9 of the 13 jobs invoiced by defendant had been completed and, further, that all of these agents of the city relied upon defendant’s representation that he had completed all 13 jobs in approving payment. This evidence was sufficient to sustain the conviction.

Affirmed.

T. M. Burns, J.

(dissenting). Defendant Schieda appeals of right his July 31, 1978, jury conviction of obtaining money over $100 by false pretenses. MCL 750.218; MSA 28.415. On August 18, 1978, he was sentenced to a term of one year probation and ordered to pay $500 in court costs. I would reverse defendant’s conviction.

The sole issue raised in this appeal is whether the lower court judge erred when she denied defendant’s motion for a directed verdict at the close of the people’s proofs. Defendant argues in this Court, as he did below, that the prosecutor failed to produce at trial sufficient evidence to show that the City of Westland relied upon his false pretenses.

It appears from the record that defendant was hired by the City of Westland to install sewer pipes at 13 locations in the city. Defendant billed and was paid for completing the 13 sewer leads but, in fact, he had done only 9 of them. Although the city agent who actually paid defendant seems not to have known that he had completed only 9 of the 13 sewer leads, an engineering firm employed by the city to inspect the sewer construction and insure that all work was done, had evidence in its files on the date that defendant was paid which showed that all of the work had not been done. Thus, defendant argues that the city could not have justifiably relied upon his statement that all work was completed when it paid him. I agree.

When ruling on a motion for a directed verdict of acquittal, a trial judge must consider whether all of the evidence presented by the prosecutor, if viewed in a light most favorable to the prosecutor, would be sufficient to permit a rational trier of fact to find that all essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). To sustain a conviction for obtaining money by false pretenses the prosecutor must show that the person sought to be deceived relied upon the false pretenses to his detriment. People v Larco, 331 Mich 420, 429; 49 NW2d 358 (1951), People v Wilde, 42 Mich App 514; 202 NW2d 542 (1972).

The pertinent question before us is whether the City of Westland should be deemed to have possessed all knowledge within the ken of its officers, employees and agents. If so, then the evidence is insufficient to support the crime of obtaining money by false pretenses because an agent of the city, the engineering firm that it employed to oversee the construction work, was aware that defendant had not completed all work as he claimed.

As a general rule, the knowledge possessed by a corporation about a particular matter is the sum total of all of the knowledge that its officers and agents acquire while acting under and within the scope of their authority. People v Wilde, supra. In Dundas v City of Lansing, 75 Mich 499, 504; 42 NW 1011; 13 Am St Rep 457 (1889), the Supreme Court held:

"The individual knowledge of officers or agents of a municipal corporation, who in such capacity have powers or duties conferred upon them with reference to a given matter, is the knowledge of the corporation, and notice to such officers or agents is notice to the corporation, and the corporation is bound or affected by such knowledge or notice.”

See also, Thornton v City of Flint, 39 Mich App 260, 270; 197 NW2d 485 (1972).

The crucial question, of course, is not whether certain individuals employed by the City of West-land relied on the representations of defendant, but whether the City of Westland, through its agents, could have so justifiably relied thereon. Thus, as the complainant in this case is the City of Westland, it is irrelevant that any particular agent of the city was deceived by defendant if the city, through other duly authorized agents, was not so deceived. To the extent that the majority opinion focuses on the knowledge of only certain city employees, and not the composite knowledge acquired by all city employees while acting within the scope of their employment, I believe that the majority opinion is wrongly decided.

In this case, the City of Westland must be charged with the knowledge possessed by the engineering firm that it hired to oversee the construction work. That knowledge concerned facts pertaining to the instant matter over which the engineering firm had been delegated responsibility. I would hold that the city could not have justifiably relied on defendant’s false pretense when it tendered to him payment for work that he had not completed. Lacking proof of such reliance, the crime of false pretenses has not been established by the prosecutor. Therefore, the trial judge erred when she denied defendant’s motion for a directed verdict of acquittal.

I would reverse defendant’s conviction.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v HILL
    Docket No. 44831.
    Submitted April 14, 1980, at Detroit.
    Decided August 13, 1980.
    Leave to appeal denied, 410 Mich 863.
    Timothy J. Hill was convicted, following a jury trial, of attempted breaking and entering an occupied dwelling with intent to commit a larceny, Wayne Circuit Court, Harry J. Dingeman, Jr., J. During the trial the prosecution was permitted to inquire of defendant whether he had previously broken into an apartment by use of a crowbar, to which the defendant answered in the affirmative. No further development was made of the issue of the prior act. The nature of the evidence of the case at bar was that the defendant was trying to open the doors and peering in the windows of the subject premises. Defendant appeals. Held:

    In order to admit evidence of similar acts for the purpose of showing a defendant’s motive, intent or the absence of mistake or accident on the defendant’s part or the defendant’s scheme, plan or system in doing the act at issue, there must first be a showing that such evidence would be probative of one of those noted purposes and that one of those purposes is material to a question in the case at bar. Since the evidence of the prior act was cursory and undeveloped and the prosecution failed to demonstrate any distinctive similarity between the prior act and the act at issue, the evidence of the prior act was wholly lacking in probative value for the purpose of establishing the defendant’s specific intent relative to the case at bar. The evidence of this prior similar act, thus, was not properly admitted under the similar acts statute, and the erroneous admission of that evidence was not harmless error.
    Reversed and remanded for a new trial.
    1. Criminal Law — Evidence — Similar Acts — Purpose — Probative Value — Material to Issue — Statutes.
    Evidence of a criminal defendant’s prior similar acts may be admitted to show the defendant’s motive, intent or the absence of mistake or accident on his part or his scheme, plan or system in doing the acts, provided that it is established that the evidence sought to be introduced is probative of the noted purposes and one or more of those purposes is material to a matter at issue in the case (MCL 768.27; MSA 28.1050).

      Reference for Points in Headnotes
    [1, 2] 29 Am Jur 2d, Evidence §§ 324-326.

      2. Criminal Law — Evidence — Similar Acts — Degree op Similarity — Intent — Statutes.
    Evidence of a defendant’s prior attempt to break and enter is not properly admissible under the similar acts statute for the purpose of showing the defendant’s specific intent where there is no showing that there were distinguishing similarities between the prior act and the acts giving rise to the case at bar such that evidence of the fact of the defendant’s prior act would be of probative value relative to the question of the defendant’s intent with respect to the act at issue (MCL 768.27; MSA 28.1050).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Michael Lehto, Assistant Prosecuting Attorney, for the people.

      Lawrence R. Green, for defendant.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. F. Walsh, JJ.
   Per Curiam.

The defendant was found guilty by jury of attempting to break and enter an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, MCL 750.92; MSA 28.287. He was sentenced to two to five years imprisonment and appeals as of right.

The defendant contends that the evidence of the defendant’s prior breaking and entering, introduced by the prosecution at trial, was erroneously admitted under the similar acts statute. We agree and reverse defendant’s conviction.

The defendant was apprehended outside the complainant’s house following the complainant’s call to the police. The complainant testified that the defendant was trying to open the doors of the house and was peering into her windows. She was naturally apprehensive that the defendant would break in. The defendant had been attending a party that evening in the complainant’s neighborhood, and there was testimony that the defendant had been drinking heavily and was intoxicated to the point of stupor. The police told a different story. While one officer noted the smell of liquor on the defendant’s breath, neither apprehending officer noted any overt signs of excessive intoxication. No sobriety test was administered.

Evidence of similar acts may be admitted in any criminal case, to show a defendant’s "motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question”. MCL 768.27; MSA 28.1050. Under the holding of People v Major, 407 Mich 394, 400; 285 NW2d 660 (1979), there are two prerequisites to admitting such evidence:

"D It must be probative of one or more of the statutorily specified purposes, and 2) one or more of those purposes must be material, that is, a proposition 'in issue’ in the case.”

The prosecution’s introduction of similar acts evidence was cursory and undeveloped, the prosecution merely asking the defendant if he had broken into the apartment of another named person with a crowbar approximately a year and a half before. The defendant answered affirmatively. The prosecution, during closing arguments, did, however, emphasize this evidence as tending to nullify the defense of intoxication negating specific intent. We view the evidence so admitted as wholly lacking in probative value under the standard set forth in Major, supra, and by this Court in such cases as People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), lv den 403 Mich 849 (1978), People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979), People v Bolden, 92 Mich App 421; 285 NW2d 210 (1979), and People v Bates, 94 Mich App 568; 288 NW2d 655 (1980).

In Major, the Court stated:

"It is the distinguishing characteristics which constitute the acts as similar within the meaning of MCL 768.27 and MRE 404(b), not the fact that all constitute the same crime or are violative on the same statute. The distinguishing, peculiar or special characteristics which are common to the acts and thus personalize them are said to be the defendant’s 'signature’ which identifies him as the perpetrator, or, if his identity is not contested, negates the suggestion that his behavior in performing the challenged act was unintended, accidental, a mistake, or otherwise innocent.” Major, supra, 398-399.

While the defendant’s intent is clearly in issue here, there has been no requisite showing that the defendant’s prior act is probative in demonstrating defendant’s intent in committing the offense charged in the instant case. See Wilkins, supra, 267. It is not enough merely to show that the defendant made an earlier attempt to break and enter, as specific intent on an earlier occasion is not in itself probative in proving specific intent on the present occasion.

What is required is a showing that the defendant’s "signature” on an earlier offense is "distinguishing, peculiar or special enough” to demonstrate that defendant held the specific intent to commit larceny in the instant case. The degree of specificity required is substantial. See Bolden, supra, Bates, supra. Certainly that burden was not met by evidence that the defendant previously entered another dwelling with a crowbar. In the instant case, no tools were found on the defendant at the time of his apprehension. The prosecution demonstrated no similarities between the two offenses that could indicate the defendant’s specific intent in the case at bar. Such evidence was admitted in error. Not finding the error to be harmless beyond a reasonable doubt, we reverse the defendant’s conviction.

The defendant further contends that the evidence was not sufficient to support the verdict that the defendant held the specific intent to commit larceny. The question is a close one; however, we are persuaded the evidence was sufficient to justify a rational trier of fact in finding guilt beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).

Reversed and remanded for a new trial.


author: Per Curiam. Cynar, J.

text:
    SCRASE v BANTLE
    Docket No. 45564.
    Submitted March 5, 1980, at Detroit.
    Decided August 13, 1980.
    Leave to appeal applied for.
    Laurie E. Scrase, administratrix of the estate of Steven J. Scrase, deceased, brought a wrongful death action against Roxann Bantle and Michael J. Aiello arising out of an automobile accident in the State of Florida in which plaintiffs decedent was killed. The first hearing of the case resulted in a mistrial, and, after the matter was again noticed for trial and further adjournments occurred, the trial judge, on his own motion, directed mediation, which resulted in an award for plaintiff which defendants accepted, but which was rejected by plaintiff. A mandatory settlement conference was then scheduled, pursuant to local court rule, and trial was noticed. However, upon failure to hold the settlement conference on the date scheduled, the court informed the parties that the conference would be held on the date originally set for trial. No settlement was subsequently reached, and the court directed the parties to return the following day, at which time defendants increased their offer to plaintiff, which was rejected. The Macomb Circuit Court, George R. Deneweth, J., upon being informed that additional authority would have to be obtained from a review committee at the home office of defendants’ insurer prior to raising the settlement offer, ordered the insurer to provide someone with authority to settle to appear in court the same day, and, upon failure of defendants’ insurer to so provide, entered a default judgment for plaintiff. After proofs on damages were taken, damages and interest were awarded to plaintiff. Defendants’ motion to set aside the default judgment was denied. Defendants appeal, alleging the trial court’s granting of a default judgment was an abuse of discretion. Held:

      References for Points in Headnotes
    [1, 2] 20 Am Jur 2d, Courts §§ 69, 79.
    46 Am Jur 2d, Judgments §§ 18, 682, 1158, 1180.
    Opening default or default judgment claimed to have been obtained because of attorney’s mistake as to time or place of appearances, trial, or filing of necessary papers. 21 ALR3d 1255.
    [3] 46 Am Jur 2d, Judgments § 682.
    [4] 22 Am Jur 2d, Death §2 et seq.

      The trial court relied on Kiefer v The Great Atlantic & Paciñc Tea Co, Inc, 80 Mich App 590 (1978), which held that a court does not abuse its discretion where it enters a default judgment for nonappearance pursuant to a local court rule. The rule in question provided that a representative of the defendant with authority to settle must be present at a scheduled settlement conference, but defendant did not comply. Thus, the trial court did not abuse its discretion by granting default judgment.
    Affirmed.
    Cynar, J., dissented. He would hold that Kiefer, which held that deliberate efforts to avoid mandatory proceedings will result in the harsh consequences of a default judgment, is distinguishable from the case at bar, since a representative of defendants’ insurer with actual authority to settle the claim up to a specified limit was available for immediate appearance. In addition, insurance representatives were present for prior settlement conferences on several occasions, but were not consulted. Thus, there was no deliberate effort to avoid the settlement conference, and it was error for the trial court to enter a default judgment, since, if settlement was not possible, either side had a right to have the matter tried on the merits. He would reverse.
    Opinion of the Court
    1. Judgments — Default Judgment — Judicial Discretion — Local Court Rules.
    A trial court does not abuse its discretion where it enters a default judgment for nonappearance of a representative of a party with authority to settle at a mandatory settlement conference as required by a local court rule.
    Dissent by Cynar, J.
    2. Judgments — Default Judgment — Judicial Discretion — Local Court Rules.

      A trial court does not abuse its discretion where it enters a default judgment upon the failure of a representative of a party with authority to settle at a mandatory settlement conference as required by a local court rule.

    3. Judgments — Default Judgment — Error — Reduction of Claim.

      It would be error to enter a judgment of a default against a plaintiff for not reducing his demand for settlement in a wrongful death action.

      4. Actions — Wrongful Death — Right to Trial.

      A party to a wrongful death action has a right to have the matter tried on the merits where settlement is not possible.

      Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Steven G. Silverman), for plaintiff.

      Harvey, Kruse & Westen, P.C. (by Mark D. Shorys), for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   Per Curiam.

Plaintiff sued defendants in a wrongful death action arising out of an automobile accident in the State of Florida, in which plaintiffs decedent was killed. Defendants appeal as of right from a default judgment entered against them.

In granting default judgment against defendants the trial court relied upon Kiefer v The Great Atlantic & Pacific Tea Co, Inc, 80 Mich App 590; 264 NW2d 71 (1978). An examination of the record and briefs indicates that Kiefer, supra, was properly applied to the facts in this case and that the trial court did not abuse its discretion by granting default judgment.

Affirmed.

Cynar, J.

(dissenting). This matter was first noticed for trial on July 27, 1978, with a settlement conference scheduled one week prior to the trial date on July 20, 1978. The schedule of cases for trials and settlements set for Thursday, July 20, 1978, had the following notice printed at the bottom of the schedule:

"By the direction of the Honorable George R. Deneweth, the Plaintiff personally and a representative of the Defendant with authority to settle MUST be present at the scheduled settlement conference.”

The parties appeared in court, with a representative of defendant’s insurance carrier being present. The case was not settled, and trial commenced on July 27, 1978, but resulted in a mistrial.

The matter was then noticed for trial on November 8, 1978. The parties appeared, and, prior to trial commencing, plaintiff brought on a motion in limine which was argued and granted. Judge Deneweth then ordered the parties to appear one week later on November 14, 1978, for trial, but, because of a death in plaintiff’s counsel’s family, an adjournment was granted. Judge Deneweth, on his own motion, directed that the matter be placed on the mediation docket. The mediation conference took place on January 29, 1979, and plaintiff received an award of $130,000. Defendants accepted the mediation award. However, plaintiff rejected it.

Defense counsel was advised that a mandatory settlement conference was scheduled for May 4, 1979, while trial was noticed for May 10, 1979. The settlement conference did not take place on May 4, 1979. The court informed the parties that a settlement conference, rather than trial, would be conducted on May 10, 1979. On May 10, 1979, defense counsel and a representative from the Insurance Company of North America were present to discuss a settlement. While plaintiff’s counsel appeared, plaintiff was not present. Plaintiff’s demand on May 10, 1979, was $145,000. The trial judge indicated to defendants that if they could not secure authority to settle for $145,000 by the following day, trial would commence at 8:30 a.m. on May 11, 1979.

On the morning of May 11, 1979, the defendants increased their offer to $135,000, which was rejected. At Judge Deneweth’s request, James Schloegel, insurance claims supervisor, called and advised the judge that a review committee in Philadelphia, Pennsylvania, had to be contacted to secure additional authority to settle the claim for a greater amount. Judge Deneweth ordered the committee to appear in court the same day. Schloegel advised the judge that he lacked authority to compel the committee to come to Michigan from Philadelphia. The judge indicated that he was following the doctrine laid down in Kiefer v The Great Atlantic & Pacific Tea Co, Inc, 80 Mich App 590; 264 NW2d 71 (1978), and entered the default of the defendants for failure to have present, in accordance with the court’s blanket order, a representative of the defendant with authority to settle.

After proofs on damages were taken, the trial court found damages totalling $163,464 and interest totalling $28,558.50 and entered a judgment to that effect on May 23, 1979. The motion to set aside the default judgment was denied.

In Kiefer, plaintiff brought suit against A & P for injuries sustained in a parking lot shared by A & P with other business establishments. Pursuant to Wayne County Court Rule 13.1, as then in effect, the case was noticed for settlement conference. At the conference, plaintiff settled with all defendants except A & P. A & P was represented by the conference by an attorney with authority to settle for $7,500. When plaintiff rejected the A & P settlement offer, the trial court ordered A & P’s attorney to make the insurance adjuster responsible for the claim available to continue the settlement negotiations. The insurance adjuster failed to appear when notified and the trial court entered a default against the defendant. The Kiefer Court concluded:

"The trial court did not abuse its discretion in granting default here. At the time the adjuster was contacted by A & P’s attorney, he was but seven blocks from the location of the conference. The trial court found that the refusal to appear was a 'deliberate effort’ to avoid the settlement conference. Deliberate efforts to avoid mandatory proceedings will result in the harsh consequence of a default judgment.” 80 Mich App 594-595.

The facts and circumstances in this case are not the same as in Kiefer. Here an insurance claims representative was personally present on each and every date except on the morning of May 11, 1979, since, on that date, defendants were under the impression trial would commence. All the same, on May 11, 1979, Mr. Schloegel, the local insurance claims supervisor, was available for an immediate appearance. However, the court ordered the appearance of the claims committee from the home office in Philadelphia. On several occasions, insurance representatives were present for settlement conferences, although they were not con-suited. The insurance claims representative was extended actual authority to settle the matter in the amount of $135,000. There was no "deliberate effort” to avoid the settlement conference.

It would be error to default plaintiff for not reducing the demand to settle to $140,000 or $135,-000. If settlement was not possible, either side had a right to have the matter tried on the merits. Much settlement discussion took place in this matter. Each side was represented by highly recognized as well as respected counsel. Both sides were strong in their position to go to trial on the matter unless the settlement was according to their respective terms.

I respectfully maintain the defendant should not have been subjected to the harsh consequences of a default judgment under the facts in this case, and I would reverse.

       For the language of the local court rule as in eifect on the date the settlement conference was held in Kiefer, see Kiefer, supra, 592 n 1. Wayne County Court Rule 13.1 now provides:
      "A mandatory settlement conference must precede the trial of a civil action. It is to be held immediately before the trial is scheduled to commence. Written notice that the settlement conference is to be held must be sent to the attorneys or parties in propria persona. The notice must contain the name of the judge to whom it is assigned and the time and date of the conference.
      "The attorneys who will be trying the action, the litigants, and, if the defendant has an insurance carrier, a representative of defendant’s insurance carrier with authority to settle must be present at this conference. If the action is not settled at the settlement conference, trial will commence immediately following the conference unless a trial judge is unavailable. If a trial judge is unavailable, the action must be returned to the 'Spin-OfF calendar.”


text:
    PEOPLE v JIMMY WASHINGTON
    Docket No. 46324.
    Submitted June 10, 1980, at Detroit.
    Decided August 13, 1980.
    Jimmy Washington was convicted of armed robbery in Recorder’s Court of Detroit, Verne C. Boewe, J. The defendant appeals, alleging that the trial court erred in submitting to the jury the issue of whether the prosecutor exercised due diligence in attempting to produce a res gestae witness. Held:

    1. The nonproduction of a res gestae witness at trial requires the trial judge to ascertain whether the prosecution exercised due diligence in its attempts to produce the witness and it is error to submit the issue of due diligence to the jury.
    2. The failure by a defendant to preserve the issue of whether the trial judge erred in submitting to the jury the question of whether the prosecutor exercised due diligence in attempting to produce a res gestae witness will foreclose appellate consideration where the defendant did not object to the jury submission nor move for a hearing on due diligence unless, absent review, manifest injustice will result. Here, in light of the overwhelming evidence of the defendant’s guilt and the lack of any prejudice that resulted to the defendant due to the submission, no manifest injustice will occur if the defendant’s conviction is not reversed.
    Affirmed.
    1. Witnesses — Res Gestae — Nonproduction — Due Diligence.
    The nonproduction of a res gestae witness at trial requires the trial judge to ascertain whether the prosecution exercised due diligence in its attempts to produce the witness; and it is error to submit the issue of due diligence to the jury.
    2. Appeal —■ Preserving Question — Witnesses — Res Gestae Witness.
    The failure by a defendant to preserve the issue of whether the trial judge erred in submitting to the jury the question of whether the prosecutor exercised due diligence in attempting to produce a res gestae witness will foreclose appellate consideration where the defendant did not object to the jury submission nor move for a hearing on due diligence unless, absent review, manifest injustice will result.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 180.
    63 Am Jur 2d, Prosecuting Attorneys § 27.
    [2] 5 Am Jur 2d, Appeal and Error § 618.
    75 Am Jur 2d, Trial § 906.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.

      Simmons & Richards, for defendant on appeal.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

On May 1, 1979, defendant was found guilty by a jury of armed robbery, contrary to MCL 750.529; MSA 28.797. He was sentenced to an imprisonment term of 10 to 15 years and now appeals as of right.

Defendant advances a plethora of arguments, only one of which we need address. He contends that the lower court wrongly submitted the issue of due diligence to the jury. We agree.

If a res gestae witness is not produced at trial, then it must be ascertained whether the prosecution exercised due diligence in its attempts to produce the witness. People v Brooks, 96 Mich App 96; 292 NW2d 139 (1980). In the past, this determination could be made by either the trial judge or the jury. See People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976), People v Yarborough, 61 Mich App 303; 232 NW2d 394 (1975), People v Eugene Harris, 43 Mich App 531; 204 NW2d 549 (1972). See also CJI 5:2:14. However, this dual approach was recently rejected by the Supreme Court in People v Willie Pearson, 404 Mich 698; 273 NW2d 856 (1979). Because the jury normally does not disclose its findings, only the trial judge can make reviewable findings and conclusions on the issue of due diligence. Thus, it is error to submit the due diligence issue to the jury. Id. at 722, fn 6. Since Pearson was released several months prior to the instant trial, the trial judge erred by presenting this question to the jury.

Although this oversight would normally mandate reversal, this is not necessary here. Defendant did not object to the jury submission nor did he move for a court hearing on due diligence. The failure to preserve this issue will normally foreclose appellate consideration, Pearson, supra at 721-723, unless, absent review, manifest injustice will result. People v Phillips, 75 Mich App 690, 694; 255 NW2d 733 (1977). In light of the overwhelming evidence of defendant’s guilt and the lack of any prejudice that resulted to defendant due to the submission, we conclude that no manifest injustice will occur if we do not reverse in this case.

Affirmed.


text:
    ZMUDCZYNSKI v LEAGUE GENERAL INSURANCE COMPANY
    Docket No. 46577.
    Submitted June 11, 1980, at Detroit.
    Decided August 13, 1980.
    Roy H. Zmudczynski was injured in an automobile accident and was unable to work for a period of four months. League General Insurance Company, his insurer under a policy of no-fault automobile insurance, calculated its work-loss benefits by subtracting from the statutory maximum work-loss benefit amount the amount which Zmudczynski received as sick and accident benefits from other sources because Zmudczynski had purchased coordinated benefits coverage. Zmudczynski brought an action against League General, alleging that the statutory amount is the amount payable after deductions rather than before. League General moved for and was granted summary judgment, Wayne Circuit Court, William J. Giovan, J. Zmudczynski appeals. Held:

    The amount payable, where the insured has purchased coordinated benefits coverage, is calculated by subtracting the amount of benefits from other sources from the statutory maximum.
    Affirmed.
    Insurance — Automobiles — No-Fault Insurance — Work-Loss Benefits — Statutes.
    The amount payable as work-loss benefits under a policy of no-fault automobile insurance, where the insured has purchased "coordinated benefits” coverage at a lower premium, is calculated by subtracting the amount of sick and accident benefits which the insured receives from other sources from the statutory maximum amount of work-loss benefits (MCL 500.3107b, 500.3109a; MSA 24.13107[b], 24.13109[1]).
    References for Points in Headnote
    [1] 7 Am Jur 2d (Rev), Automobile Insurance § 361.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.
    Lopatin, Miller, Bindes, Freedman, Bluestone,

      Erlich & Rosen (by Steven G. Silverman), for plaintiff.

      Zweig & Harkness, P.C., for defendant.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Plaintiff brought this action contesting the computation of benefits paid by defendant, a no-fault automobile insurer. From summary judgment, pursuant to GCR 1963, 117.2(1), in favor of the defendant, plaintiff appeals.

Plaintiff was injured in an automobile accident which resulted in his inability to work for approximately four months. Defendant admits that it is liable for work-loss benefits under the no-fault insurance policy. The controversy concerns interpretation of MCL 500.3109a; MSA 24.13109(1), which states:

"An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payble to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.”

and MCL 500.3107b; MSA 24.13107(b), which states in part:

"The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed [$1,285.00], which maximum shall apply pro rata to any lesser period of work loss.”

There is no dispute that the plaintiff purchased "coordinated benefits” coverage from defendant pursuant to MCL 500.3109a. Plaintiff admits that he received $205 per week sickness and accident benefits from sources other than the defendant. The defendant computed benefits owing to plaintiff by subtracting $205 per week from the $1,285 monthly maximum.

Plaintiff contends that the defendant’s computation was in error. He alleges that his wages were substantially more than $1,285 per month at the time of the accident. He concludes that his wage loss is the base figure from which the other benefits should be deducted. He argues that the $1,285 per month maximum is the maximum amount payable after deductions rather than before.

The trial court held that defendant’s method of computing coordinated benefits under the policy and the statute was correct. The judge ruled that "benefits payable”, as used in the statute, plainly means the maximum amount payable by the insurer, in this case $1,285. Therefore, it is from that figure that the deductibles must be subtracted, rather than from the plaintiff’s actual wage loss.

Plaintiff argues that the method of computation adopted by the defendant and approved by the trial court results in a windfall to the defendant. We disagree. At the hearing on the motion for summary judgment, it was agreed that plaintiff pays a lesser premium for coordinated benefits coverage. It is only fair that his benefits be reduced accordingly.

In O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979), the Court held that the no-fault act did not violate the Equal Protection Clause of the state and Federal constitutions by requiring set-off of governmental benefits but not private benefits. By so providing, the Legislature allowed persons with incomes exceeding the maximum benefits payable under the no-fault act to purchase the extra coverage by paying extra premiums. The Court stated:

"It was finally resolved that these persons with extra needs would directly bear the burden of those needs; none of that burden would be borne by the no-fault system. The payment of extra premiums would pay in full for the extra coverage. Therefore, there would be no discrimination in this totally voluntary option.” Id., 548-549.

In the case at bar, the plaintiff chose to pay a lesser premium for coordinated benefits coverage. Certainly, had he wished to pay a greater premium and receive the maximum benefits payable in order to meet his greater needs, he could have done so.

Affirmed, costs to defendant.


text:
    PEOPLE v KILDOW
    Docket No. 47588.
    Submitted May 8, 1980, at Lansing.
    Decided August 13, 1980.
    Jay H. Kildow was convicted, on his plea of guilty, of burning of insured property in Oakland Circuit Court, Gene Schnelz, J. At the time of plea taking there was no factual recitation from the defendant regarding whether the automobile which was set on fire was insured for loss against fire or that the defendant shared or was aware of the intent of the owner of the vehicle to injure and defraud the insurer. Defendant appeals. Held:

    1. A conviction on a defendant’s guilty plea will be remanded where no factual recitation was heard from the defendant relative to the elements of the offense, since a sufficient factual basis could not be established.
    2. Generally, a rule of procedure is not to be given retroactive application in Michigan.
    3. The Michigan statute prohibiting "good time” reduction from a minimum sentence applies only to criminal offenses that were committed after the effective date of the statute. The defendant is entitled to "good time” reduction from his minimum sentence if it is required following remand.
    4. The plea bargain struck between the defendant and the prosecutor was valid, with actual benefit to the defendant since the prosecutor offered to forbear from filing a supplemental habitual offender information and the offer was made promptly and was a functional equivalent of prompt filing of charges in a situation where no plea bargain was offered, sought, or accepted.
    Remanded with instructions.
    1. Criminal Law — Guilty Pleas — Factual Recitation.
    A conviction on a defendant’s guilty plea will be remanded where no factual recitation was heard from the defendant relative to the elements of the offense, since a sufficient factual basis could not be established.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 492, 494.1.
    [2, 3] 16A Am Jur 2d, Constitutional Law § 634 et seq.

    20 Am Jur 2d, Courts § 85.
    [3] 73 Am Jur 2d, Statutes § 347 et seq.

      2. Criminal Law — Procedural Rules — Retroactivity.
    Generally, a rule of procedure is not to be given retroactive application in Michigan.
    3. Criminal Law — Good Time — Sentences — Statutes.
    The Michigan statute prohibiting "good time” reduction from a minimum sentence applies only to criminal offenses that were committed after the effective date of the statute (MCL 791.233b; MSA 28.2303[3]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Lawrence J. Bunting, Assistant Prosecuting Attorney, for the people.

      Fain tuck, Shwedel, Wolfram, McDonald & Zipser (by Harriet B. Rotter), for defendant on appeal.
    Before: Cynar, P.J., and M. J. Kelly and T. Gillespie, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant pled guilty to burning of insured property, MCL 750.75; MSA 28.270, and was sentenced to three to ten years imprisonment, with credit for 114 days served prior to sentencing. Defendant appeals as of right.

On appeal, defendant first claims that an insufficient factual basis was established to support his plea. Specifically, defendant argues that there is nothing in the record to establish that the automobile which was set on fire was insured for loss against fire, or that defendant shared or was aware of the intent of the owner of the vehicle to injure and defraud the insurer, which the statute under which defendant was charged enumerates as elements of the offense.

We conclude that no factual recitation was heard from defendant relative to these elements. Thus, a sufficient factual basis was not established. Consequently, we follow the well-established rule that a remand is required. As stated by the Court in Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), the correct procedure on remand is as follows:

"On remand the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion.” Id., 129.

In spite of our disposition of this issue, we address defendant’s remaining contentions in order to determine whether error is present therein.

Defendant next argues that the trial court erred in announcing that defendant was not entitled to "good time” reduction from his minimum sentence. Defendant argues that MCL 791.233b; MSA 28.2303(3), added pursuant to initiative petition, proposal B, ratified at the general election of November 7, 1978, (which initiated measure is permissible under Const 1963, art 2, § 9), was intended to apply only to criminal offenses which were committed after the effective date of the legislation, viz., December 10, 1978. In support of his argument, defendant cites OAG, 1979, No. 5583 (October 16, 1979).

In that opinion, the Attorney General concluded that the initiated law applies only to persons who committed the offenses enumerated in the statute after the effective date thereof, viz., on or after 12:01 a.m., December 10, 1978. While attorney general opinions are not binding authority, Garcia v City of Warren Civil Service Comm for Police and Fire Dep’ts, 78 Mich App 603, 608; 261 NW2d 19 (1977), we are in agreement with the conclusion contained in the opinion cited to us by defendant. Any other rule of application would produce inconsistent and unfair results, for example, as to two defendants identically situated with respect to the date on which they committed an offense but who were tried one before and one after December 10, 1978. To avoid such happenstance, a clear line of demarcation such as defined in OAG, 1979, No. 5583 offers the best method of uniform application. Thus, we conclude that defendant is entitled to "good time” reduction from his minimum sentence, if it is required following remand.

Alternatively, since the judgment of sentence contains no proviso eliminating "good time” reduction from defendant’s minimum sentence, we conclude that defendant’s sentence was not so circumscribed.

Finally, defendant argues that the plea bargain struck with the prosecutor was illusory, as habitual offender charges were not filed simultaneously with the information charging defendant with the substantive offense in the case at bar. Thus, defendant concludes, there was no valid habitual offender charge from which the prosecutor could forbear from prosecuting, and the bargain was of no actual benefit to defendant. In so arguing, defendant urges a retroactive application of People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), to the case at bar.

We do not find Fountain applicable to this case. This panel has concluded, in a separate opinion, that Fountain should not be given any retroactive effect. People v Wilson, 99 Mich App 348; 296 NW2d 110 (1980). We believe that Fountain in effect amounts to a change in a procedural rule. The weight of Michigan authority is against any retroactive application of a rule of procedure. As stated by our Supreme Court in language appropriate to the case at bar, "However, if trial courts are to be effectively guided by our appellate pronouncements, a rational dependence on our decisions currently in effect must be encouraged”. People v Rich, 397 Mich 399, 405; 245 NW2d 24 (1976). In the face of such language, the argument for retro-activity is considerably weakened. Therefore, we must look to the law as in effect on the date defendant’s plea was accepted, June 29, 1979, as that date established the time the plea agreement was consummated.

Under the law then in force, the prosecutor was required to file any habitual offender charges "promptly”, viz., before conviction, as he was possessed of reliable information relative thereto before defendant’s plea was tendered in this case. People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).

Since the essence of the plea bargain in the instant case was forbearance from filing a supplemental habitual offender information, and since such offer to forbear was made "promptly” or timely under Hendrick, supra, we conclude that the bargain struck between defendant and the prosecutor was a valid one, with actual benefit to defendant. The prompt offer to forbear was the functional equivalent of prompt filing of charges in a situation where no plea bargain was offered, sought, or accepted.

The cause is remanded to the court below for further proceedings consistent with this opinion.


author: Per Curiam. N. J. Kaufman, P.J.

text:
    PEOPLE v ROJEM
    Docket No. 47707.
    Submitted June 17, 1980, at Detroit.
    Decided August 13, 1980.
    Richard N. Rojem, Jr., was convicted of three counts of criminal sexual conduct in the first degree in Macomb Circuit Court, Kenneth N. Sanborn, J. Defendant appeals. Held:

    1. A conflict between identification testimony and alibi testimony does not render a finding of guilty improper. The conflicting alibi testimony did not make the identification testimony legally insufficient to support the conviction, rather such conflict raised a question of the relative weight to be accorded the conflicting accounts. It was for the jury to determine where the truth lay on the basis of the jury’s determination of the credibility of the witnesses. The Court of Appeals will not substitute its judgment for that of the jury where there was sufficient evidence upon which the jury could rationally find guilt beyond a reasonable doubt.
    2. The defendant was not denied his constitutional right to confrontation by the trial court having limited, pursuant to statutory mandate, the extent to which he could undertake to make inquiries of the complaining witness relative to her history of prior sexual contacts. The state’s interest in protecting the victim of criminal sexual conduct from irrelevant and immaterial cross-examination outweighs the right of the defendant to make inquiries concerning the victim’s prior sexual conduct.
    3. The question of the propriety of the trial court’s admission into evidence of the semen-stained clothing of the complaining witness was not preserved for appellate review, since defense counsel failed to object below to the admission of that evidence. The admission into evidence of the defendant’s semen-stained clothing did not result in reversible error, since such evidence illuminates the previous expert testimony that had been admitted without objection. It cannot be said that such evidence was so irrelevant or prejudicial as to be able to conclude that the trial court clearly erred in admitting the same.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 834.
    30 Am Jur 2d, Evidence § 1124.
    [2, 7] 65 Am Jur 2d, Rape § 82.
    Modern status of admissibility, in forcible rape prosecutions, of complainant’s prior sexual acts. 94 ALR3d 257.
    [3, 4] 5 Am Jur 2d, Appeal and Error §§ 601, 602.
    [5] 29 Am Jur 2d, Evidence § 288.
    [6] 5 Am Jur 2d, Appeal and Error §§ 624-627.

      4. Despite the fact that the complaining witness was not able to positively identify the knife sought to be introduced into evidence as the knife used in the sexual assault, that knife was nevertheless properly admitted into evidence. The inability to positively identify the proffered exhibit as being the knife used in the crime goes only to the weight to be accorded such evidence, not to its admissibility.
    5. Since any prejudicial effect caused by the prosecution’s closing arguments could have been cured by a timely cautionary instruction by the trial court, the failure to object below to the prosecution’s statements precluded appellate review.
    Affirmed.
    N. J. Kaufman, P.J., concurred in the result reached by the Court. He would hold that the defendant’s right to confrontation was not violated in the present case, not because the reason for the statutory limitations on the extent of cross-examination justify the impingement upon the defendant’s right to confrontation, but rather, because the limitations set by the trial court in the instant case did not, in fact, operate to limit the extent of the cross-examination of the complaining witness desired by the defendant.
    Opinion of the Court
    1. Criminal Law — Evidence — Witnesses — Alibi — Sufficiency of Evidence — Jury Questions — Appeal.
    A conflict between identification testimony and alibi testimony does not render a finding of guilty improper on the basis of insufficient evidence of a defendant’s guilt, since the question of the relative weight to be accorded the conflicting accounts is a question to be resolved by the jury on the basis of the credibility of the witnesses; the Court of Appeals will not substitute its judgment for that of the jury where there is sufficient evidence upon which the jury could rationally find guilt beyond a reasonable doubt.
    2. Constitutional Law — Criminal Law — Criminal Sexual Conduct — Right of Confrontation — Prior Sexual Conduct of Victim — Relevancy — Statutes.
    A defendant in a criminal sexual conduct trial is not denied his constitutional right to confrontation where the trial court limits the examination of the complaining witness relative to her prior sexual activities to an inquiry as to origin of seminal stains as permitted by statute; the state’s interest in protecting the victim of criminal sexual conduct from irrelevant and immaterial cross-examination outweighs the right of a defendant to make inquiries as to the victim’s prior sexual conduct (MCL 750.520j; MSA 28.788[10]).
    3. Appeal — Evidence — Admissibility of Evidence — Objection — Rules of Evidence.
    The question of the admissibility of semen-stained clothing of a complaining witness in a criminal sexual conduct trial is not preserved for appellate review where there was no objection at trial claiming that the admission of such evidence would be inordinately prejudicial (MRE 103[a][l]).
    4. Appeal — Evidence — Admissibility of Evidence — Trial Court — Clearly Erroneous.
    The admission into evidence of the semen-stained clothing of a defendant in a criminal sexual conduct trial will not mandate reversal where the admission of such evidence illuminates previous expert testimony which was admitted without objection and it cannot be said that such evidence was so irrelevant or prejudical that the trial court clearly erred in admitting it.
    5. Criminal Law — Evidence — Weapons — Identification with Crime — Admissibility of Evidence.
    The inability of a victim of criminal sexual conduct to positively identify a knife as being the knife used in the sexual assault made upon her does not preclude the admission of the knife into evidence; such uncertainty goes to the weight rather than the admissibility of such evidence.
    6. Criminal Law — Prosecutor’s Remarks — Prejudice — Objection — Curative Instruction.
    The failure to object at trial to a prosecution’s closing statement precludes appellate review where the prejudicial effect of such prosecutorial arguments is not so great that the prejudice could not have been cured by a timely cautionary instruction.
    Concurrence by N. J. Kaufman, P.J.
    7. Constitutional Law — Criminal Law — Criminal Sexual Conduct — Right of Confrontation — Prior Sexual Conduct of Victim — Statutes.

      A defendant in a criminal sexual conduct trial is not denied his

      constitutional right to confrontation by the application of the provision in the criminal sexual conduct act which limits the extent of cross-examination of a victim relative to her prior sexual contacts where, despite limitations imposed by the trial court, the defendant was able to cross-examine the complaining witness as fully as defendant wished (MCL 750.520j; MSA 28.788[10J).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Alice F. Sage, Assistant Prosecuting Attorney, for the people.

      Robert E. Novitke, for defendant.
    Before: N. J. Kaufman, P.J., and Cynar and J. E. Townsend, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

The defendant was convicted of three counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and was sentenced to three concurrent terms of from 6 to 15 years imprisonment. He appeals as of right from the trial court’s order denying his motion for a new trial.

The defendant first claims that the trial court erred in determining that there was sufficient evidence set forth at trial to sustain the jury’s finding of guilty on all three counts. Specifically, the defendant claims that there was insufficient evidence set forth at trial for a rational trier of fact to conclude that he sexually assaulted the complainant, as five witnesses testified that they were either with or saw defendant during the time period in which the complainant alleged she was sexually assaulted. However, the complainant described her assailant to police within an hour of being assaulted. Upon hearing the complainant’s description, an acquaintance of the defendant was able to tell the authorities that the description matched the defendant’s. The complainant immediately picked the defendant out of a photographic show-up, and a raffle ticket from the same sequence of tickets as was found in the defendant’s pocket was found at the scene of the crime. In People v Smalls, 61 Mich App 53, 58; 232 NW2d 298 (1975), and in People v Flippo, 70 Mich App 652, 660; 247 NW2d 321 (1976), the defendants claimed error on similar grounds: that, because of their alibi defenses, there was insufficient evidence presented at trial to support the jury’s verdicts of guilty. Quoting from Smalls, supra, this Court in Flippo, supra, 660 held as follows:

"In People v Smalls, 61 Mich App 53, 57; 232 NW2d 298 (1975), this Court clearly stated that a question of this kind is one for the jury:
" 'On appeal defendant first contends that the evidence produced at trial was insufficient to support a finding of guilty beyond a reasonable doubt. Defendant argues that the identification by the teller and the assistant manager of the bank should not have been believed and that, in light of the testimony of his alibi witness, the evidence was insufficient. Claims of mistaken identification by a witness and alibi are matters which deal with the credibility of witnesses and such questions are generally to be decided by the jury. People v Boynton, 46 Mich App 748; 208 NW2d 523 (1973); People v Hughes, 26 Mich App 355; 182 NW2d 631 (1970). After listening to the testimony and observing the demeanor of the witnesses, the jury chose to disbelieve defendant. We shall not substitute our judgment for theirs.’ ”

Similarly, we believe the issue in this case to be one of credibility which was properly left to the jury. Based upon the complainant’s testimony and the circumstantial evidence supporting such testimony, we find that there was sufficient evidence for a rational jury to conclude that defendant was guilty beyond a reasonable doubt. Therefore, the trial court did not abuse its discretion in denying the defendant’s motion for a new trial on such grounds.

The defendant also claims his limited ability to cross-examine complainant as to her past sexual conduct denied him his constitutional right to confrontation. MCL 750.520j; MSA 28.788(10) allows a defendant charged with criminal sexual conduct to cross-examine a complainant about her prior sexual conduct in order to establish the source of semen so long as such cross-examination is material to a fact at issue. Inasmuch as a criminologist testified as to finding semen stains on the complainant’s underwear, which could have been up to three months old, the trial court did not abuse its discretion in allowing defense counsel to question complainant only as to the last time she had had sexual intercourse within a three-month period. In People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), and in People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), this Court held that such a procedure does not deny a defendant his right of confrontation, as the state’s interest in prosecuting sex crimes outweighs the importance of allowing irrelevant and immaterial cross-examination regarding a victim’s prior sexual conduct. Such reasoning applies here. The limitation as to the questioning of complainant was proper.

The defendant’s third claim of error is that the trial court erred in admitting the complainant’s semen-stained clothing into evidence as exhibits. Since defense counsel failed to make a proper objection, claiming the introduction of such to be inordinately prejudicial to his client, the issue has not been properly preserved for review. MRE 103(a)(1). Defense counsel did, however, object to the admission of defendant’s semen-stained clothing and a kitchen knife found by police officers who were investigating the case as being more prejudicial than probative. Because the criminologist had already testified that she had found semen stains on defendant’s clothing, the introduction of such an exhibit served only to illuminate her unobjected-to testimony. It cannot be said that the clothing was so irrelevant or prejudicial that the trial court clearly erred in allowing such to be admitted. People v McKinney, 88 Mich App 715; 278 NW2d 728 (1979).

The defendant claims the knife should not have been admitted as an exhibit because it had not been positively identified by the complainant and because the complainant had testified that she guessed that the defendant had laid the knife on the ground while forcing her to engage in fellatio, vaginal intercourse and anal intercourse. Complainant testified that defendant held a knife to her neck and chest to get her to the location of the alleged rape. She identified the knife as being similar to the one used by defendant. In People v Stanley Mitchell, 37 Mich App 351, 357; 194 NW2d 514 (1971), this Court, quoting from 22A CJS, Criminal Law, § 709, pp 949-951, stated:

" 'To justify their admission, a proper foundation must be laid, and such articles must be identified as the articles they are purported to be, and shown to be connected with the crime of with accused; however, such identification is not required to be positive, absolute, certain, or wholly unqualified, and where there is some evidence for this purpose, objections to its sufficiency go to the weight rather than to the admissibility of the articles in question.’ ”

Similarly, the fact that defendant may have laid down the knife during the commission of the criminal sexual acts and the fact that the complainant did not positively identify the knife go to the weight of the evidence rather than its admissibility. Khan, supra, 609-610.

Defendant’s final predication of error, that the prosecutor’s closing statement unduly prejudiced defendant, was not properly preserved for appellate review as it was not objected to at trial. As defense counsel made no objection to the prosecutor’s remark, appellate review is precluded unless the prejudicial effect was so great that it could not have been cured by a timely cautionary instruction. People v Tenbrink, 93 Mich App 326, 332; 287 NW2d 223 (1979), People v Blassingame, 59 Mich App 327, 335; 229 NW2d 438 (1975). We do not find that such degree of prejudice resulted from the prosecutor’s statement in the instant case.

Affirmed.

N. J. Kaufman, P.J.

(concurring). I concur separately as I was the author of the dissenting opinion in People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977). In this case, however, I feel the 6th Amendment rights of defendant were not violated. There was a lengthy cross-examination of complainant by defense attorney. The defendant was also allowed to recall complainant for further cross-examination. Because everything about which the defendant wished to cross-examine the complainant was permitted by the trial court, I concur in the result of this opinion.


text:
    PEOPLE v JOSHWAY
    Docket No. 47874.
    Submitted June 12, 1980, at Detroit.
    Decided August 13, 1980.
    Robert S. Joshway was convicted, on his plea of guilty, of armed robbery, Kalamazoo Circuit Court, Donald T. Anderson, J. Defendant appeals, alleging that the trial court’s denial of his motion to reconsider the sentence was an abuse of discretion. The defendant claimed that he was prejudiced because he was represented by different attorneys at the plea proceeding and at the sentencing. Held:

    1. Defendant’s attorney at sentencing was properly allowed to review the presentence report.
    2. Consideration of portions of the defendant’s past juvenile record by the sentencing judge was proper.
    Affirmed.
    1. Criminal Law — Sentencing — Presentence Report — Different Attorney at Trial and Sentencing — Court Rules.
    A defendant’s attorney at the sentencing proceeding is to be granted access to and an opportunity to comment on the presentence report where the defendant is represented by different attorneys at trial and at sentencing (GCR 1963, 785.12).
    2. Criminal Law — Sentencing — Juvenile Records.
    It is permissible for a sentencing judge to consider portions of an adult defendant’s past juvenile record.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 583.5.
    Defendant’s right to disclosure of presentence reports. 40 ALR3d 681.
    [2] 21 Am Jur 2d, Criminal Law § 585.
    Consideration of accused’s juvenile court record in sentencing for offense committed as adult. 64 ALR3d 1291.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart,
      Prosecuting Attorney, and Stephen M. Wheeler, Principal Appellate Attorney, for the people.

      Dandert, Tucker & Basch, for defendant on appeal.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, and was sentenced to a term of 10 to 15 years.

The sole contention on appeal is that the trial judge abused his discretion in denying defendant’s motion to reconsider sentence. Defendant claims that he was prejudiced because the attorney who represented him at the plea proceeding was not the same one representing him at sentencing.

Our review of the record reveals that the court carefully discussed the fact of substitute counsel with defendant. Defendant clearly indicated that he had no objection. The presentence report, which contained information on defendant’s juvenile record, was reviewed by defendant’s attorney at sentencing. This comported with what we view as the proper procedure under GCR 1963, 785.12, that a defendant’s attorney at sentencing rather than merely his trial attorney, receive access to and have an opportunity to comment on the presentence report. See People v Grable, 56 Mich App 221, 222-223; 223 NW2d 656 (1974).

In his discussion with counsel, the trial judge explained that he would not take into account defendant’s past juvenile record except as to those events which resulted in his entry into the Boy’s Training School and the fact that defendant was in the custody of the Department of Social Services as a result of prior delinquent acts. Such consideration is permissible. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973). The trial judge did not abuse his considerable discretion in denying the motion for reconsideration of sentence. See People v Martin, 393 Mich 145; 224 NW2d 36 (1974).

Affirmed.


text:
    PEOPLE v WILLIAMS
    Docket No. 48777.
    Submitted June 11, 1980, at Detroit
    Decided August 13, 1980.
    Leave to appeal applied for.
    Lester D. Williams was charged with felonious assault and possession of a firearm in the commission of a felony. Defendant waived a jury trial. Recorder’s Court of Detroit, Robert L. Evans, J., found him guilty of felonious assault, but not guilty of the felony-firearm charge. Defendant appeals, alleging the verdicts are inconsistent, entitling him to a reversal. Held:

    The conviction of the charge of felonious assault cannot stand since the weapon necessary to support the conviction was the same weapon which would have led to a conviction under the felony-firearm charge. The firearm-weapon was never introduced in evidence, and, thus, the trial court found that it had a reasonable doubt as to the defendant’s guilt on the felony-firearm charge. The verdicts are inconsistent.
    Reversed and defendant discharged.
    1. Criminal Law — Inconsistent Verdicts — Reversal.
    Michigan follows the minority view in requiring reversal on appeal where verdicts on separate charges in a criminal case are inconsistent.
    2. Criminal Law — Inconsistent Verdicts — Felony-Firearm — Felonious Assault.
    A conviction of a charge of felonious assault cannot stand where the weapon necessary to support such a conviction is the same weapon which would lead to a conviction of the same defendant under a felony-firearm charge arising out of the same incident, and such weapon is not introduced in evidence, resulting in an inconsistent verdict of not guilty on the felony-firearm charge.
    References for Points in Headnotes
    [1, 2] 76 Am Jur 2d, Trial § 1156.
    Inconsistency of criminal verdict as between different counts of indictment or information. 18 ALR3d 259.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan,
      Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

      Robert E. Slameka, for defendant on appeal.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant was charged with felonious assault, MCL 750.87; MSA 28.282, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). At a bench trial, he was found guilty of felonious assault but not guilty of the felony-firearm charge.

The verdicts are inconsistent. The only weapon which could support a conviction of felonious assault was the same weapon which would lead to a finding of guilt under the felony-firearm charge. The trial court found, since the firearm was never introduced in evidence, that it had a reasonable doubt as to the defendant’s guilt of the felony-firearm charge. There is ample Court of Appeals authority that the conviction of felonious assault, therefore, cannot stand, inter alia, People v Vaughn, 92 Mich App 742; 285 NW2d 444 (1979), People v Lewis, 94 Mich App 752; 290 NW2d 73 (1980).

However, we add a caveat. The prosecutor accurately notes that, although the Michigan view of inconsistent verdicts is well established in numerous decisions of the Michigan Court of Appeals, that view is the minority American view; Anno: Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR3d 259. He, therefore, suggests that this court abandon the present rule as to inconsistent verdicts, a suggestion which we decline in view of the many appellate- decisions of this state supporting the present view. However, at least in a jury trial, if not in a bench trial, we recognize that the Supreme Court may see fit to change the rule. In People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), the Supreme Court cited the opinion of Justice Holmes in Dunn v United States, 284 US 390; 52 S Ct 189; 76 L Ed 356 (1932), Dunn is perhaps the leading authority for the majority view that inconsistent verdicts in criminal cases do not require reversal. The philosophy behind the lesser-included offense analysis found in Chamblis is also consistent with that view. The opinion of Judge Kelly, dissenting in Lewis, supra, also suggests that counsel may wish to preserve the point for review in appropriate cases.

Conviction reversed and defendant discharged.


text:
    IN THE MATTER OF ARTHUR C EVANS
    Docket No. 45604.
    Submitted March 11, 1980, at Detroit.
    Decided July 24, 1980.
    Arthur C. Evans was a minor. The Wayne County Probate Court, James E. Lacey, J., granted a motion of the prosecutor to waive jurisdiction over Evans and allowed him to be tried as an adult in Recorder’s Court of Detroit on charges of armed robbery and felony-firearm. Evans appealed and the Wayne Circuit Court, Horace W. Gilmore, J., reversed. The prosecutor appeals by leave granted. Held:

      A probate court order waiving jurisdiction of a juvenile defendant to a criminal court and binding him over for criminal prosecution will be affirmed on appeal where the judge’s findings, based upon substantial evidence and upon thorough investigation, show that the juvenile is not amenable to treatment or that, despite his potential for treatment, the nature of his difficulty is likely to render him dangerous to the public if he is released at age nineteen or likely to disrupt the rehabilitation of other children in the juvenile program prior to his release. The probate court considered the proper factors and made findings of fact based on substantial evidence. The circuit court erred in substituting its judgment for that of the probate court.
    Reversed.
    Appeal — Probate Courts — Infants — Juvenile Jurisdiction — Waiver of Jurisdiction — Seriousness of Offense.
    A probate court order waiving jurisdiction of a juvenile defendant to a criminal court and binding him over for criminal prosecution will be affirmed on appeal where the judge’s findings, based upon substantial evidence and upon thorough investigation, show that the juvenile is not amenable to treatment, or that, despite his potential for treatment, the nature of his difficulty is likely to render him dangerous to the public if he is released at age nineteen or likely to disrupt the rehabilitation of other children in the juvenile program prior to his release; however, the seriousness of the offense committed may not alone be used to determine the likelihood that a potentially amenable juvenile will endanger the public or other children in the rehabilitation program.

      Reference for Points in Headnote
    [1] 47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children § 19.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Helen M. Kleinplatz, for Arthur Evans.
    Before: Bronson, P.J., and V. J. Brennan and T. M. Burns, JJ.
   Per Curiam.

On February 20, 1979, the Wayne County Probate Court granted a motion of the Wayne County prosecutor to waive juvenile court jurisdiction over defendant in order that defendant could be tried as an adult in Detroit Recorder’s Court on charges of armed robbery and possession of a firearm during the commission of a felony. Defendant appealed the probate court order and, on May 24, 1979, the Wayne County Circuit Court reversed the probate court order waiving juvenile court jurisdiction over defendant. The people now appeal to this Court, having been granted leave to do so in an order of July 6, 1979. We reverse.

We find the instant case to be nearly indistinguishable in its pertinent aspects from People v Schumacher, 75 Mich App 505; 256 NW2d 39 (1977). In Schumacher, as in the instant case, the crime involved was armed robbery, the defendant had very limited prior contacts with juvenile authorities, more than one criminal act was committed within a very short period of time, in one of the criminal acts a victim was struck with a weapon, nearly every expert who testified at the waiver hearing recommended against waiver of jurisdiction to the adult criminal court and the probate judge waived jurisdiction concluding that the available juvenile rehabilitative programs were inappropriate to the defendant’s needs.

The appropriate standard for reviewing an order waiving jurisdiction in a juvenile proceeding was stated in Schumacher, supra, 511-512:

"Accordingly, we hold that an order waiving jurisdiction will be affirmed whenever the judge’s findings, based upon substantial evidence and upon thorough investigation, show either that the juvenile is not amenable to treatment, or, that despite his potential for treatment, 'the nature of his difficulty is likely to render him dangerous to the public, if released at age [nineteen] or to disrupt the rehabilitation of other children in the program prior to his release’. People v Fields (On Rehearing), 391 Mich 206, 242, 216 NW2d 51 fn 13; (1974) (Levin, J., dissenting), quoting State v Gibbs, [94 Idaho 908; 500 P2d 209 (1972)].” (Footnotes omitted.)

The probate judge in this case waived juvenile court jurisdiction over defendant after finding that "the nature of his behavior renders him dangerous to the public if released * * * at his 19th birthday”. The judge also found defendant’s chances for rehabilitation were greater in the adult system where the "level of education and vocational teaching is better than the juvenile system”. Finally, after considering the defendant’s education level and his lack of a marketable vocational skill, the judge concluded that defendant’s chances for rehabilitation would be much greater in the adult system where a longer time could be taken to help him than in the juvenile justice system where the type of treatment provided was not the sort of program needed by defendant.

Upon consideration of the probate judge’s findings, we cannot say that the judge erred in waiving juvenile court jurisdiction over defendant. As a consequence, we believe that the circuit court erred in substituting its judgment for that of the probate judge. Therefore, the February 15, 1979, order of the probate court granting waiver of jurisdiction over defendant is reinstated.

Reversed and remanded.


text:
    MICHIGAN CONSOLIDATED GAS COMPANY v PUBLIC SERVICE COMMISSION
    Docket Nos. 47523, 47524.
    Submitted May 31, 1980, at Lansing.
    Decided July 30, 1980.
    Leave to appeal applied for.
    Michigan Consolidated Gas Company applied to the Public Service Commission for a rate increase. The commission granted an increase which was substantially less than that requested. Michigan Consolidated then filed a complaint against the commission in Ingham Circuit Court, alleging certain errors in the commission’s setting of the rates and seeking an injunction and an order allowing collection of surcharges during the pendency of the action. The court granted a preliminary injunction and order allowing collection of the surcharges. The commission and the Attorney General each sought leave to appeal to the Supreme Court, which remanded the matter to the circuit court but retained jurisdiction. 405 Mich 803 (1979). Upon reconsideration, the circuit court, Thomas L. Brown, J., ordered a refund of a portion of the surcharges but allowed Michigan Consolidated to continue collecting the remainder of the surcharges. The Public Service Commission and the Attorney General each appealed from this order to the Supreme Court, which remanded to the Court of Appeals for consideration as on leave granted and dissolved its prior order by which it retained jurisdiction. 405 Mich 803, 804 (1979). Held:

    1. The circuit court, in the post-remand hearing and order, complied in all respects with the Supreme Court’s remand order. The circuit court stated findings in some detail and applied the proper standard of review of the commission’s procedures and findings.
    2. There was no requirement that the circuit court support the preliminary injunction by citation to case law.
    3. The circuit court has not substituted its judgment for that of the commission because if the court should decide that the commission’s rate order was confiscatory or unreasonable the court must refer the matter back to the commission to establish new rates.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 776.
    [2] 42 Am Jur 2d, Injunctions § 26.
    [3] 64 Am Jur 2d, Public Utilities §§ 281, 282.
    [4] 64 Am Jur 2d, Public Utilities § 132.

      4. The circuit court did not abuse its discretion in granting the preliminary injunction and order allowing collection of the surcharges. There is probable cause to believe that the commission may have erred as alleged by the plaintiff. Through its order, the circuit court has protected the plaintiff as well as the rate payers.
    Affirmed and remanded for further proceedings.
    1. Courts — Circuit Courts — Remand — Language of Decisions.
    A circuit court issuing an opinion in a case on remand from an appellate court does not err by not utilizing in its opinion the exact wording set forth in the remand order where the circuit court applies the proper standard of review and where its findings are sufficiently detailed.
    2. Injunctions — Public Utilities — Rates — Case Law.
    There is no requirement that a circuit court support a preliminary injunction in a utility rate case by citation of case law.
    3. Public Utilities — Circuit Courts — Rates — Remand.
    A circuit court which finds that a rate order made by the Public Service Commission is confiscatory or unreasonable cannot set new rates but must refer the matter back to the commission to establish proper rates.
    4. Injunctions — Public Utilities — Rates — Judge’s Discretion.
    A compelling case must be made before a circuit court may grant injunctive relief allowing a utility company to collect a surcharge while awaiting a decision on a request for a rate increase; however, the grant or denial of a temporary injunction is a question of discretion which will not be disturbed on appeal except on a showing of probable abuse of discretion.

      Gary L. Cowan, David P. VanNote, and Daniel L. Schiffer; and Foster, Swift, Collins & Coey, P.C. (by Webb A. Smith and William K. Fahey), for Michigan Consolidated Gas Company.

      Arthur E. D’Hondt, Assistant Attorney General, for the Michigan Public Service Commission.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, and Hugh B. Anderson and Roderick S. Coy, Assistants Attorney General, for intervening defendant Attorney General.

      John M. Veale, for intervening defendant General Motors Corporation.

      Mill, Lewis, Adams, Goodrich & Tait (by Douglas H West), for intervening defendant Great Lakes Steel, Division of National Steel Corporation.
    Before: D. F. Walsh, P.J., and Bashara and K. B. Glaser, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

This case is before the Court for plenary consideration as on leave granted. The history and factual background of the case is long and complex.

On March 11, 1977, plaintiff filed an application with the Michigan Public Service Commission (PSC) seeking to raise its rate for the sale of gas by approximately $100,000,000 annually. Later in 1977, plaintiff moved for partial and immediate rate relief in the amount of $65,000,000 annually. In January, 1978, the PSC granted plaintiff interim rate relief in the amount of $16,046,000 annually to be collected under bond.

Thereafter, on September 28, 1978, approximately 19 months after filing the March, 1977, application, the PSC issued a rate order which inter alia provided for a rate increase of $19,729,-000 annually or $3,683,000 over and above the interim rate increase of January, 1978. Bond for the interim rate increase was cancelled.

Following issuance of the rate order, plaintiff timely filed a complaint against the PSC in Ingham County Circuit Court pursuant to MCL 462.26; MSA 22.45. The complaint was filed October 6, 1978. Plaintiff sought an injunction and order to show cause why a preliminary injunction should not issue. Plaintiff claimed the rate order deprived it of $22,885,000 annually. Plaintiff alleged that the PSC erred in setting the rate by including revenue and expenses associated with plaintiff’s interstate storage business, including anticipated interstate gas sales, allowing a certain amount below that requested for uncollectible accounts, disallowing an inflation factor request for certain operating and maintenance expenses and by setting a rate of return on common equity at 12.5%.

Pending the outcome of the circuit court action, plaintiff requested that it be allowed to collect the requested annual surcharge subject inter alia to keeping separate accounts of the surcharges and filing bond to ensure refunds with interest of any portion of the surcharges which were ultimately found to be in excess of a reasonable and lawful level.

Following a hearing in October 1978, the circuit court issued an opinion from the bench in favor of plaintiff. On October 31, 1978, the circuit court entered a preliminary injunction and order allowing plaintiff to collect the requested surcharges during pendency of the suit and until a final determination was made or until further order of the court. The preliminary injunction and order also provided for separate accounting, bond and refunds if necessary.

The PSC and Attorney General separately appealed to this Court by filing applications for leave to appeal, motions for immediate consideration and motions for stay. Briefs were also filed by other intervening defendants. This Court granted the motions for immediate consideration, denied the applications for immediate appellate review and denied the motions for stay. (Docket Nos. 78-4590, 78-4618, November 13, 1978.)

The PSC, Attorney General and various other intervening defendants appealed to the Supreme Court. The Supreme Court remanded the matter back to the Ingham County Circuit Court with instructions and retained jurisdiction. 405 Mich 803 (1979).

Within the time specified in the remand order, the circuit court reheard the matter. Upon reconsideration, the circuit court, in an opinion from the bench, on February 16, 1979, rejected plaintiffs allegation that the PSC erred with respect to its decision regarding anticipated gas sales and return on common equity. A refund of the surcharges with respect to those issues representing $9,928,000 annually was ordered with interest at the rate of 10.6% compounded semiannually, which represented the cost to plaintiff of short-term borrowing. Plaintiff states that the refunds have been substantially completed. In all other respects, the circuit court affirmed its prior decision thereby allowing plaintiff to collect surcharges of $12,957,000 annually during the pendency of the suit and until issuance of a final determination or until further order of the circuit court. These latter surcharges represent the amounts related to plaintiffs allegations of error which were not vacated by the circuit court.

A modified preliminary injunction and refund order was entered on May 11, 1979, which formally carried out the terms of the circuit court’s bench opinion. Regarding the continuing surcharges, the order provided for separate accounts, an independent audit and bond and refund provisions if necessary.

In the meantime, on October 17, 1978, which was approximately two weeks prior to the issuance of the first preliminary injunction, plaintiff filed an application with the PSC for a general rate increase and for partial and immediate rate relief. At the hearing on this application before the PSC in February, 1979, plaintiff, through counsel, stated it would ask the circuit court to prospectively discontinue the court-ordered surcharge in its entirety effective at the same time partial and immediate rate relief became effective.

On March 20, 1979, the PSC granted in part plaintiff’s request for partial and immediate rate relief. The relief amounted to approximately $20,000,000 annually. The PSC took cognizance of plaintiff’s statement respecting discontinuance of the surcharges and stated that it (PSC) expected plaintiff to abide by the representation and that the PSC would review the effect of the court-ordered surcharge in its final order.

Upon motion of plaintiff, the circuit court, on May 24, 1979, entered an order providing that plaintiff cease collecting all remaining surcharges authorized by the preliminary injunction and order of October 31, 1978, and by the modified preliminary injunction and refund order of May 11, 1979. The order was effective nunc pro tunc for gas service rendered by plaintiff to its customers on and after March 21, 1979. Plaintiff indicates it ceased applying temporary surcharges to its gas bills on March 21, 1979. This would be one day after the grant of partial and interim rate relief by the PSC. Plaintiff also indicates that between November 1, 1978, and March 21, 1979, approximately 7.6 million dollars were collected in surcharges which represent the level authorized by the preliminary injunctions. This apparently is the fund at issue in the present appeal.

Notwithstanding the nunc pro tunc order terminating the collection of further surcharges, the PSC and Attorney General appealed the circuit court’s preliminary injunction and order of May 11, 1979, to the Supreme Court. On September 26, 1979, the Supreme Court remanded the case to this Court for plenary consideration as on leave granted and dissolved the prior order by which it retained jurisdiction. 405 Mich 803, 804 (1979).

Given the procedural history set forth above, the circuit court has yet to rule on the merits of the alleged errors relating to revenue and expenses purportedly associated with plaintiffs interstate storage business, the provision for uncollectible accounts and the request by plaintiff for an inflation factor on certain operating and maintenance expenses.

The threshold question before this Court is whether the circuit court complied with the terms of the January 17, 1979, remand order of the Supreme Court.

We have carefully compared the circuit court’s 32-page bench opinion and subsequent orders with the terms of the Supreme Court remand order and find that the circuit court complied in all respects.

The circuit court stated in some detail that it found probable cause to believe the PSC erred and stated with preliminary certainty how the PSC erred.

The circuit court applied the applicable constitutional standard of review, Const 1963, art 6, § 28, and did not err by additionally referring to the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Consumers Power Co v Public Service Comm, 78 Mich App 581; 261 NW2d 10 (1977).

Further, the circuit court’s opinion in the present case is at least as detailed as that cited with approval in the remand order. The arguments that the circuit court erred by not utilizing the precise wording set forth in the remand order are without merit. These arguments deal with semantics only and not substance.

The arguments suggesting that the circuit court erred by failing to cite case authority are likewise without merit. We have not found, nor has any authority been cited, which requires citation of case law by the circuit court in order to support a preliminary injunction in a utility rate case. That portion of another circuit court’s decision in a utility rate case cited with approval by the Supreme Court contained no citation of case law authority. We can perceive of no reason for requiring such citation.

Having concluded that the circuit court found probable cause to believe the PSC erred and sufficiently stated with preliminary certainty how the PSC erred, we also find the circuit court did not simply recite the issues and conclude probable cause existed.

Although not disputed by the parties, it is similarly apparent that the circuit court related each dollar amount of the temporary increase to a specific preliminary finding of error and properly found there was a satisfactory showing by plaintiff of irreparable harm.

We find the arguments related to the alleged substitution of judgments by the circuit court for that of the PSC and the collateral argument implying a violation of the separation of powers doctrine to be without merit for the reason that, in the event the circuit court ultimately decides the PSC rate order was confiscatory or unreasonable, the circuit court will not set the rates but must refer the matter back to the PSC to establish other rates. Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973). Nor do we find that the trial court erred by reviewing and referring to the findings of the administrative law judge. Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974).

The second area of inquiry is whether or not the circuit court abused its discretion by issuing the modified preliminary injunction and refund order to allow plaintiff to continue collecting part of the requested surcharge pending final determination in the court. The outcome of this inquiry turns upon whether there is merit in the underlying allegations of error raised by plaintiff which were not reversed by the circuit court at the post-remand hearing.

Before a circuit court grants even temporary injunctive relief of the type sought here, a compelling case must be made. By the same token, however, the grant or denial of a temporary injunction is a question of discretion which will not be disturbed on appeal except on a showing of probable abuse. Michigan Consolidated Gas Co, supra.

The circuit court has yet to make a final ruling on the underlying allegations of error raised by plaintiff. Given the interlocutory status of these issues, we express no opinion on the merits. Suffice it to say at this point that we have carefully examined the extensive arguments by the parties pertaining to the underlying issues not reversed by the circuit court at the post-remand hearing and find that there is probable cause to believe the PSC may have erred in the manner alleged by plaintiff.

Further, we note that through its order the circuit court has protected plaintiff against irreparable harm which would stem from the inability of utility rates to be made retroactive and at the same time has protected the rate payers through provisions for separate accounting, independent audit, bond, refund in the event the PSC order is upheld and the like. This practice has been approved upon a showing such as made by plaintiff in the present case. Michigan Consolidated Gas Co, supra.

For the reasons set forth above, we find no abuse of discretion on the part of the trial court in the post-remand proceedings.

The preliminary findings of the circuit court are affirmed and the case is remanded to the circuit court for a decision on the merits. Following a final determination on the merits by the circuit court, the parties may in a subsequent appeal to this Court raise any of the underlying issues finally decided by the trial court.