text:
    NABKEY v KENT COMMUNITY ACTION PROGRAM, INC
    Docket No. 48169.
    Submitted June 4, 1980, at Grand Rapids.
    Decided July 31, 1980.
    L. Lea Nabkey brought an action in propria persona under the Freedom of Information Act seeking to enjoin Kent Community Action Program, Inc. from withholding certain information in violation of the act, punitive damages, costs, and attorney fees. Following the filing of the action, defendant informed plaintiff that she could review the documents requested and moved for summary judgment, which motion was granted, Kent Circuit Court, Stuart Hoffius, J. The court awarded plaintiff $50 and out-of-pocket costs. Plaintiff appeals. Held:

    1. The Court of Appeals has adopted a "per se” rule that a party moving for summary judgment, pursuant to court rule, must file supporting affidavits, and failure to do so will result in reversal regardless of whether the motion is supported by other proof in the record. Thus, since defendant failed to file supporting affidavits, the trial court erred in granting its motion for summary judgment.
    2. The trial court made a proper award to plaintiff of costs and $50 for disbursements.
    3. The trial court did not err in denying plaintiff attorney fees as provided by statute, since plaintiff was not represented by an attorney.
    4. An award of punitive damages of $500 is mandated by statute to a prevailing plaintiff where the trial court determines that the defendant’s refusal or delay in disclosing the requested information constitutes an arbitrary and capricious violation of the act. Since the trial court did not address the question of whether defendant so delayed in complying with plaintiffs request, the action is remanded for a determination on this issue.

      References for Points in Headnotes
    [1, 4] 66 Am Jur 2d, Records and Recording Laws §§ 2, 23, 32.
    [2] 73 Am Jur 2d, Affidavits §§ 16, 17.
    [3] 20 Am Jur 2d, Costs § 77.
    Construction and application of Freedom of Information Act provision (5 USCS § 552(a)(4)(E) concerning award of attorney fees and other litigation costs. 36 ALR Fed 530.
    [4] 22 Am Jur 2d, Damages § 236 et seq.

      Reversed in part, affirmed in part and remanded.
    1. Administrative Law — Freedom of Information Act — Public Body — Statutes.
    An offer by a public body to make its records available to a person desiring to review them is all that is required of it for compliance with the Freedom of Information Act (MCL 15.231 et seq.; MSA 4.1801[1] et seq.).

    2. Judgments — Summary Judgment — Supporting Affidavits.
    A party moving for summary judgment, pursuant to court rule, must file supporting affidavits, and failure to do so will result in a reversal, regardless of whether the motion is supported by other proof in the record (GCR 1963, 117.2[3]).
    3. Attorney and Client — Attorney Fees — Statutory Provisions.
    No award of attorney fees is possible where a prevailing plaintiff under the Freedom of Information Act, otherwise entitled to such fees, is not represented by an attorney, and a denial of such fees by a trial court does not constitute error (MCL 15.240[4]; MSA 4.1801[10][4]).
    4. Damages — Punitive Damages — Freedom of Information Act — Statutes.
    An award of punitive damages to a prevailing plaintiff is mandated by the Freedom of Information Act where the trial court determines that the defendant’s refusal or delay in disclosing the requested information constitutes an arbitrary and capricious violation of the act (MCL 15.240[5]; MSA 4.1801[10][5]).
    L. Lea Nabkey, in propria persona.

    South Kent Law Center (by William R. Farley), for defendant.
    Before: R. B. Burns, P.J., and Mackenzie and J. T. KALLMAN, JJ.

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

   Per Curiam.

In this action, plaintiff, L. Lea Nabkey, alleged that defendant, Kent Community Action Program, had refused her written request to review certain of its files in violation of the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. Plaintiff sought an order enjoining defendant from withholding this information and an award of punitive damages, costs, and attorney fees.

Upon the filing of this action, defendant advised plaintiff by letter that she could review the documents which she had previously requested. Plaintiff acknowledged receipt of this letter in her answer to defendant’s interrogatories. Defendant then moved for summary judgment on the ground that plaintiff had access to the requested records and that the court, therefore, need not issue any disclosure order. The court granted defendant’s oral motion on the basis that the records are available to plaintiff and that the offer to make the records available is all that is required under the Freedom of Information Act. The court stated, that the disclosure offer by defendant was to be a continuing offer and plaintiff was awarded $50 in addition to her out-of-pocket costs which she had expended in bringing this in propria persona action. Plaintiff appeals.

On appeal, plaintiff contends that the trial court committed error in denying plaintiff a fair trial, a fair and impartial jury, and punitive damages. Plaintiff complains that: "The trial was strangely handled and was treated more as a Motion than a trial. Defendant’s witnesses were not present and plaintiff-appellant was denied her right to testify.” Plaintiff also argues that because she performed for herself the services which an attorney would have performed on her behalf, the trial court erred by not awarding her attorney fees.

Much of plaintiff’s difficulty with this action appears to be the result of plaintiffs pursuing this action unaided by counsel. The normal motion procedures which occurred seemed "strange” to plaintiff and "puzzled and perplexed” her. In that respect, this Court cannot remedy the "wrongs” plaintiff alleges transpired. However, we believe that three issues merit discussion.

The first issue we consider is the trial court’s granting of summary judgment pursuant to GCR 1963, 117.2(3) when the moving party failed to file supporting affidavits. This Court has adopted a "per se” rule that a party moving for summary judgment pursuant to GCR 1963, 117.2(3) must file supporting affidavits, and failure to do so will result in reversal regardless of whether the motion is supported by other proof in the record. Based on this "per se” rule the trial court erred in granting defendant’s motion for summary judgment.

The second issue we consider is the trial court’s denial of attorney fees. Under § 10(4) of the act, MCL 15.240(4); MSA 4.1801(10)(4), plaintiff, as a prevailing plaintiff, was entitled to an award of "reasonable attorneys’ fees, costs, and disbursements”. Though the trial court erroneously viewed this award as a matter of discretion, the court nonetheless made a proper award to plaintiff of costs and $50 for disbursements. Since plaintiff was not represented by an attorney, no award of attorney fees was possible, and the trial court did not err in denying such fees.

The third issue which we consider involves plaintiff’s request for an award of punitive damages. Subsection 10(5) of the act, MCL 15.240(5); MSA 4.1801(10)(5), mandates an award of punitive damages in the amount of $500 to a prevailing plaintiff where the trial court determines that the defendant’s refusal or delay in disclosing the requested information constitutes an arbitrary and capricious violation of the act.

The trial court in the present action never addressed the question of whether defendant "arbitrarily and capriciously” delayed in complying with plaintiffs request. We, therefore, remand the action for a determination on this issue.

Reversed in part, affirmed in part, and remanded for further consideration in accordance with this opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v KEMP
    Docket No. 78-3803.
    Submitted December 5, 1979, at Detroit.
    Decided March 7, 1980.
    Defendant, Edward R. Kemp, was convicted in Wayne Circuit Court of knowingly or intentionally possessing cocaine, Peter B. Spivak, J. Defendant appeals, alleging that the trial judge improperly admitted evidence without a proper foundation first being laid. Specifically, defendant points to substantial defects in the chain of custody of the evidence. The arresting officers could not positively identify the evidence which was admitted by the trial judge nor could they prove that the condition of the evidence was substantially unchanged. Defendant also claims the trial court committed error by admitting into evidence a statement that the defendant made wherein he stated that he knew he had cocaine in his possession. Held:

    1. Breaks in the chain of custody do not automatically require exclusion of the proffered evidence. To be admissible, the prosecution must merely lay a foundation identifying the articles as what they are purported to be and showing that they are connected with the crime or the accused. When offering real evidence, an adequate foundation for admission requires testimony that the object offered is the object which was involved in the incident, and further, that the condition of the object is substantially unchanged. The prosecution in this case failed to establish an adequate foundation.
    2. The trial court weighed carefully all the testimony at the Walker hearing before determining that defendant had waived his Miranda rights. Thus, no error was committed by admitting into evidence defendant’s statement that he knew he had cocaine in his possession.
    Reversed and remanded.
    Criminal Law — Evidence — Admissibility — Foundation.
    A break in the chain of custody does not automatically require exclusion of proffered evidence; the evidence is admissible if a foundation is first laid which identifies the article as what it is purported to be and showing that it is connected with the crime or the accused and that the condition of the article is substantially unchanged, taking into consideration the nature of the article, the circumstances surrounding the preservation and custody of it, and the possibility that the article may have been tampered with.

      Reference for Points in Headnote
    [1] 29 Am Jur 2d, Evidence § 774.

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

      Daniel Burress, for defendant.
    Before: B. B. Mackenzie, P.J., and V. J. Brennan and D. F. Walsh, JJ.
   Per Curiam.

Defendant, Edward Russell Kemp, was charged with knowingly or intentionally possessing a controlled substance, .351 grams of powder containing cocaine, MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). A jury found him guilty as charged on May 11, 1978. He was sentenced to three years probation and appeals as of right.

At about 2:40 a.m. on January 20, 1978, Livonia Police Officers Ronald Kugler and Michael Bremenour were on routine patrol in a marked police car when they stopped a car driven by defendant for straddling lanes. Christopher Tague was also occupying the car. Officer Bremenour approached the vehicle on the driver’s side while Officer Kugler approached on the passenger’s side. In the course of requesting a driver’s license and registration, Kugler noticed a plastic bag containing suspected marijuana in the glove compartment which defendant had opened. Officer Kugler opened the passenger door, requested Tague and the defendant to step out, placed both under arrest, and confiscated from the glove compartment the plastic bag and a clear glass vial with a white plastic cap containing a short piece of a plastic straw with white substance on the inside of the glass. Bremenour searched the defendant and found an amber-colored vial containing white powder with a small silver spoon attached to its wooden cap.

Over objections of defense counsel, the amber vial and its contents were admitted into evidence. On appeal, defendant challenges this ruling, arguing that the prosecutor did not lay an adequate foundation for the admission of the amber vial. Specifically, defendant points to substantial defects in the chain of custody. We find defendant’s allegation of error well-taken.

There was substantial inconsistency between the officers’ trial testimony and that taken at the preliminary examination. At trial, Officer Kugler identified the amber vial as one that Officer Bremenour had shown him at the time of defendant’s arrest. He stated that he had put his initials on the bottle’s cap, and, indeed, the bottle cap did contain Kugler’s initials. Officer Kugler further stated that he sealed the evidence bag into which the amber vial and its contents were placed and gave it to Officer Bremenour who deposited it in the evidence bin. This contradicted his preliminary examination testimony that he, not Officer Bremenour, put the lock-seal bag into the evidence bin.

At the preliminary examination, Officer Bremen-our stated that the vial was clear and that he initialed it before sealing it in the evidence bag which he then deposited in the evidence bin. When the lock-seal envelope was later opened at the preliminary examination, the vial contained therein was amber and did not contain this officer’s initials. At trial, however, Bremenour testified differently. He identified the amber vial as the one he seized from defendant’s vest pocket and stated that he had initialed both the bottle and the cap. In fact, Officer Bremenour’s initials only appeared on the wooden cap. The vial itself bore no indication of any previous markings. He stated that Officer Kugler had sealed the lock-seal evidence bag containing the vial but he (Bremenour) deposited it in the evidence bin. When the inconsistencies between the trial and preliminary examination testimony were pointed out, Officer Bremenour admitted that he was "mixed up”, and didn’t know who sealed the bag.

During cross-examination Bremenour admitted that at the time of the original arrest he observed the vial which he seized, saw it again in the police car and saw it again in the police station and that these observations formed the basis of his testimony but that he changed his testimony after opening the envelope at the preliminary examination. Since the vial bore none of Officer Bremen-our’s markings, nor any identifying date, Bremen-our admitted that he was unable to say whether it was the same bottle he had seized.

Livonia Police Officer John Hoye testified that the day after defendant’s arrest he opened the evidence bag, removed a clear amber vial with a silver spoon attached to its wooden cap, a clear white vial and a bag containing suspected marijuana. He then opened the amber vial, conducted a fluid test on a small portion of the substance contained therein, and returned the evidence to the evidence bag which he then placed in his evidence locker. There is no indication that Officer Hoye resealed the bag.

Officer Hoye further testified that on January 24, 1978, he removed the evidence bag from his evidence locker, withdrew all of the evidence except the vial, resealed the evidence bag and gave it to Dr. Donald Plautz, a chemist employed by the Michigan State Police Crime Lab. Officer Hoye then put the other seized evidence into his evidence locker and subsequently delivered it to the crime lab on February 8, 1978.

On January 24, 1978, Dr. Plautz conducted tests on the evidence he had received. He testified that he did not observe any ink marks on the vial and that the evidence bag was taped secure and did not appear to have been opened after it was so taped. Along with the amber vial, Dr. Plautz was also given evidence pertaining to two other cases. Although he usually did the work in the order received, Dr. Plautz acceded to Hoye’s request and proceeded to analyze and return the evidence as soon as possible. Following his analysis, the evidence was placed in a State Police lock-seal evelope.

Breaks in the chain of custody do npt automatically require exclusion of the proffered evidence. To be admissible, the prosecution must merely lay a foundation identifying the articles as what they are purported to be and showing that they are connected with the crime or the accused. People v Kremko, 52 Mich App 565, 573; 218 NW2d 112 (1974), People v Burrell, 21 Mich App 451, 456-457; 175 NW2d 513 (1970), and People v Stevens, 88 Mich App 421, 424; 276 NW2d 910 (1979).

When offering real evidence, such as the amber vial at issue here, an adequate foundation for admission requires "testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged”, People v Beamon, 50 Mich App 395, 398; 213 NW2d 314 (1973), citing McCormick, Evidence (2d ed), § 212, p 527. Those facts to be considered in making this determination include the nature of the article, the circumstances surrounding the preservation and custody of it, and the possibility of intermeddlers tampering with it. If, after considering such factors, the trial judge is reasonably satisfied that the article is the object involved in the incident or has not been changed in important respects, he may permit its introduction into evidence. Beamon, supra, 398-399.

Applying these principles, our review of the present record indicates insufficient foundation testimony to support admission of the vial. Officer Bremenour first testified that the confiscated vial was clear but changed his testimony when, at the preliminary examination, the vial turned out to be amber-colored. Although there was testimony that the vial had been initialed, no such markings nor any indication that the vial had been so marked were apparent. Thus there was testimony that, if the amber vial was the one confiscated, it was not in the same condition at trial as when taken from the defendant at the scene. Admission of the amber vial without proper foundation was error.

Defendant also says the trial court committed error when it admitted into evidence defendant’s statement concerning his knowledge that the substance in the vial was cocaine. Our review of the record indicates the trial court weighed carefully all the testimony at the Walker hearing before determining that defendant had waived his Miranda rights. We find no error in this finding.

Reversed and remanded for reasons above set forth.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965) .

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966) .


text:
    IN THE MATTER OF THE CONTEMPT OF EVELYN NATHAN (PEOPLE v TRAYLOR)
    Docket Nos. 48818, 48819.
    Submitted June 20, 1980, at Detroit.
    Decided July 31, 1980.
    Evelyn R. Nathan was held in contempt of court in Recorder’s Court of Detroit, Henry Heading, J. During the preliminary examination in the case of People v Anthony Traylor, a police officer allegedly overheard Miss Nathan threaten the complaining witness. The incident took place outside the courtroom. A hearing was subsequently held although no affidavit was filed. Miss Nathan appeals, alleging that this was error. Held:

    Absent a waiver, any proceeding to charge a contempt not committed in the presence of the court must be initiated by an affidavit of the person witnessing the act or having personal knowledge of the acts charged. There was no waiver here.
    Reversed.
    Contempt — Affidavits — Court Rules.
    Any proceeding to charge a contempt not committed in the presence of the court must be initiated by an affidavit of the person witnessing or having personal knowledge of the acts charged unless the affidavit requirement is waived (GCR 1963, 760.1).
    References for Points in Headnotes
    [1] 17 Am Jur 2d, Contempt § 82.
    Constructive contempt, necessity of affidavit or sworn statement as foundation for. 41 ALR2d 1263.
    Use of affidavits to establish contempt. 79 ALR2d 657.

      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 Recorder’s Court Judge._

      Carl Ziemba, for the contemner.
    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.

Evelyn R. Nathan was held in contempt of court, MCL 600.1711; MSA 27A.1711, in connection with an alleged threat made to a complaining witness in a criminal case and received a one-day sentence. Her appeal rests upon three bases, only one of which we deem meritorious: that the order of contempt should be reversed because no affidavit was filed in support of the charges as is required by GCR 1963, 760.1.

Miss Nathan contends that, when allegations of contempt which occurs outside of the presence of the court are made, there must be an affidavit in support of the charges under MCL 600.1711(2):

"When any contempt is committed other than in the immediate view and presence of the court, the court may punish it by fine or imprisonment, or both, after proof of the facts charged has been made by affidavit or other method and opportunity has been given to defend.”

Although this section of the statute seems to provide for other means in lieu of an affidavit and order to show cause, GCR 1963, 760.1 reads as follows:

"Initiation of Proceeding. For contempts not committed in the immediate view and presence of the court, upon a proper showing on ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some reasonable time, to be therein specified, why he should not be punished for the alleged misconduct, or shall issue a bench warrant for the arrest of such party.”

While there seems to have been some confusion as to the distinction between these two provisions, it appears to us that in reality there is very little difference between the two. And if there is any, it is that GCR 1963, 760.1 sets forth the proper method for initiating contempt proceedings, and that MCL 600.1711(2) is concerned with the manner in which contempt charges may be proven. In fact, in his commentary to MCL 600.1711(2), Professor Carl Hawkins has stated that the procedure for such contempt is regulated by GCR 1963, 760.1, that is, by the filing of a motion supported by affidavits showing the facts on which the charges are based. See 5 Honigman & Hawkins, Mich Court Rules Annotated (2d ed), Author’s Comment 5A, p 331. Furthermore, in the case of a true conflict between a general court rule and a statute —which we do not here believe to be the situation —the general court rule governs. See GCR 1963, 16.

In the case before us, the alleged contempt was not committed in the presence of the court, an affidavit was not filed, nor was an order to show cause issued. The Michigan Supreme Court has held that an alleged contemner’s voluntary appearance in court to defend against contempt charges waived the procedural irregularities that occurred in initiating proceedings where no affidavit was filed. In re Huff, 352 Mich 402; 91 NW2d 613 (1958). While we would agree that such a voluntary appearance might provide the "other method” mentioned in the statute, here it can not truly be said that Miss Nathan appeared voluntarily, as she was taken back into the courtroom by a policeman who overheard the allegedly contemptuous remarks she made to the complainant in the court corridor.

Absent waiver, any proceeding to charge a contempt not committed in the presence of the court must be initiated by an affidavit of the person witnessing such act or having personal knowledge of the acts charged. In re Wood, 82 Mich 75; 45 NW 1113 (1890), In re Rosender, 39 Mich App 62; 197 NW2d 132 (1972). See also In re Henry, 25 Mich App 45; 181 NW2d 64 (1970) which holds that a court charging a contempt not committed in its immediate presence does not have jurisdiction over the matter if there has not been a valid affidavit initiating the action.

In view of the absence of an affidavit and an order to show cause to initiate contempt proceedings, and because we cannot ñnd true voluntariness and thus a waiver of the requirements of GCR 1963, 760.1, we hereby reverse the order of contempt of court.


author: T. Gillespie, J.

text:
    COLE LAKES, INC v LINDER
    Docket No. 78-2774.
    Submitted May 8, 1980, at Lansing.
    Decided August 25, 1980.
    In 1967, James Cole purchased by land contract 3,000 acres in Alcona County. Through this land flowed a stream known as Comstock Creek. Cole’s intent was to dam Comstock Creek creating a lake. He planned to develop the remaining land into residential lots. To carry out this project he formed a corporation, in which he was the sole shareholder, known as Cole Lakes, Inc. Norman McIntyre, a contractor, worked with Cole and started the actual construction on this project. Orville Meier, a developer, worked with Cole before and invested money in this project. Cole assigned his land contract to Cole Lakes. In early 1970, Cole found that he could not do the project for lack of capital and conveyed his stock to McIntyre and Meier in exchange for the release of his indebtedness to them. In May, 1970, the land contract was foreclosed, but an extension was negotiated to allow for redemption until September 5, 1970. In early summer of 1970, Max Linder, a real estate salesman, learned of the property and obtained permission to try to sell it. About a week before September 5, 1970, Linder interested Robert Benton in the project. Benton recruited Robert Beltz, and Linder, Benton and Beltz raised $100,000. On September 4 and 5, 1970, Linder, Benton and Beltz met with Meier and McIntyre to purchase the latter’s redemption rights in the land contract. Also present at that meeting were Bill Cottrill and Carl Brownell. Cottrill and Brownell had the experience of developing a similar project known as Lakewood Shores in Oscoda and were advising Benton and Beltz. Attorney James Cook of Harrisville was present, representing McIntyre and Meier, and actually drafted the documents. On September 5, the project was sold to Benton, Beltz and Linder, who paid over $100,000, and the contract was redeemed. About a week after September 5, 1970, Brownell and Cottrill bought the interest of Benton, Beltz and Linder in the contract. There were further negotiations resulting in Brownell and Cottrill, doing business as a partnership known as Conel Enterprises, being assigned the interest of Benton, Beltz and Linder in the September 5th contract. Cottrill and Brownell were unable to make the project go and forfeited the land contract in May, 1976, after investing between $400,000 and $500,000 in it and unsuccessfully trying to resell it. At the time that the land was forfeited, there was a balance due on the contract of September 5th to Cole Lakes. In July, 1976, when Cole Lakes and the others who had paid money to Cole Lakes for options to purchase lots once the lands were developed and platted and who released their claims in return for an assignment of a share of the lawsuit, filed a complaint against Linder, Beltz, Benton, Brownell and Cottrill in the Genesee Circuit Court, Phillip C. Elliott, J. The trial resulted in a judgment for the defendants. Defendants claimed that, at the meeting of September 4 and 5, 1970, Meier and McIntyre made material representations of fact which were false, including the following: (1) that a valid dam permit from the DNR had been obtained which would allow the holder to build an artificial lake with 18 to 20 miles of shoreline at an elevation of 872.5 feet above sea level; (2) only one dam was necessary, which would cost $50,000 to construct; (3) a necessary bay excavation called "Garvey’s Bay” could be accomplished at a cost of $10,000 to $14,000; and (4) water impounded by the dam would naturally reach Garvey’s Bay; and that such representations were false since they had been involved in the project for three years and were familiar with the land and engineering for the project, McIntyre participated in lake level hearings in circuit court and both parties knew from a prior attempt to sell the project that additional dams and dikes would be required. The trial judge found that Meier and McIntyre were "the agents of Cole Lakes, desperate to salvage their investment which would be lost in 24 hours if they did not sell the project, [who] deliberately misled the defendants about the true cost of the lake in order to sell the project. In these circumstances, [I am] satisfied that McIntyre and Meier, on behalf of plaintiffs, made material misrepresentations, which were false, and known to be false, in order to induce the defendants to buy this land. Defendants Benton, Beltz and Linder did buy the land and they would not have done so if the false representations had not been made. Defendants Cottrill and Brownell also heard the false representations and relied on them when they agreed to buy out and take over the obligations of the original purchaser. All defendants suffered some financial injury as a result.” Plaintiffs appeal. Held:

      References for Points in Headnotes
    [1] 37 Am Jur 2d, Fraud and Deceit § 12.
    [2] 5 Am Jur 2d, Appeal and Error § 839.
    [3] 5 Am Jur 2d, Appeal and Error § 841.
    [4, 5] 37 Am Jur 2d, Fraud and Deceit § 158.
    [5] 37 Am Jur 2d, Fraud and Deceit § 247. et seq.

    [6] 37 Am Jur 2d, Fraud and Deceit § 417.
    [7] 37 Am Jur 2d, Fraud and Deceit § 338.
    [8] 27 Am Jur 2d, Equity § 138.

      1. The general rule is that to constitute actionable fraud it must appear that: (1) the defendant made a material representation; (2) it was false; (3) when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) he made it with the intention that it should be acted upon by the plaintiff; (5) the plaintiff acted in reliance upon it; and (6) he thereby suffered injury. The testimony was equivocal and credibility was an important factor for the factfinder. Appellate courts, in reviewing controverted issues of fact in a nonjury law case, do not consider the case de novo and will reverse the judgment of the trial court only where the judgment is against the clear preponderance of the evidence. In this case there was no error.
    2. Representations concerning drainage, topography and features concerning land can be actionable if false. The misrepresentations were made by people having superior knowledge and concerned matters which would not have been revealed through visual examination of the property. The trial court’s decision was not erroneous.
    3. One seeking to defend on the grounds of fraud must rescind promptly. The issue of promptness is a question of fact, and the court’s conclusion is not against the clear preponderance of the evidence.
    4. Plaintiffs are barred from recovering on the theory of unjust enrichment because of the fraudulent inducement of their agents and predecessors.
    Affirmed.
    1. Fraud — Elements of Action.
    The general rule is that to constitute actionable fraud it must appear that: (1) the defendant made a material representation; (2) it was false; (3) when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) he made it with the intention that it should be acted upon by the plaintiff; (5) the plaintiff acted in reliance upon it; and (6) he thereby suffered injury.
    2. Appeal — Nonjury Cases — Issues of Fact — Review.
    Appellate courts, in reviewing controverted issues of fact in a nonjury law case, do not consider the case de novo as if it were in equity.
    3. Appeal — Nonjury Cases — Evidence.
    Appellate courts do not reverse the judgment of the trial court in a nonjury case unless the judgment is against the clear preponderance of the evidence.
    4. Fraud — Real Property — Misrepresentations — Drainage.
    Misrepresentations concerning drainage, topography, and features concerning land may be actionable.
    5. Fraud — Due Diligence.
    A defrauded party owes to the party who defrauded him no duty to use diligence to discover the fraud.
    6. Fraud — Contracts — Recission — Timeliness of Recission — Question of Fact.
    A party defending a contract action on the grounds of fraud must have rescinded promptly; whether or not a recission was within a reasonable time is a question of fact for the trier of fact.
    7. Fraud — Defenses — Contracts — Recission — Status Quo.
    Fraud is a defense in either a legal or equitable proceeding; one seeking to rescind a contract on the ground of fraud must restore the other party to the status quo insofar as it is possible to do so.
    8. Equity — Clean Hands.
    One seeking the aid of equity must come with clean hands; one who claims rights acquired by fraud will not prevail.

      Brown & Winckler, for plaintiffs.

      Currie, Kendall, Keith, Larkin, Pommerville & Merrill, P.C., for defendants, Brownell and Cottrill.

      Richard J. Behm, for defendants Benton, Beltz and Linder.
    Before: Cynar, P.J., and M. J. Kelly and T. Gillespie, JJ.

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

   T. Gillespie, J.

In 1967 a land speculator by the name of James Cole purchased by land contract 3,000 wooded acres in Alcona County. Through this land there flowed a stream known as Com-stock Creek. Cole’s intent was to dam Comstock Creek creating a lake which he would name Lake Kewanee. He then planned to develop the remaining land into residential lots. To carry out this project he formed a corporation in which he was the sole shareholder, known as Cole Lakes, Inc., hereafter referred to as Cole Lakes. Norman McIntyre was a contractor who had worked with Cole and who started the actual construction on this project. Orville Meier was a developer who had worked with Cole before and invested money in this project. Cole assigned his land contract to Cole Lakes. He found in early 1970 that he could not do the project for lack of capital and conveyed his stock to McIntyre and Meier in exchange for the release of his indebtedness to them.

In May, 1970, the land contract was foreclosed, but an extension was negotiated to allow for redemption until September 5, 1970. Meier and McIntyre unsuccessfully attempted to sell the project to two development corporations. In early summer of that year a Flint real estate salesman by the name of Max Linder learned of the property and obtained permission to try to sell it.

About a week before September 5, 1970, Linder interested Robert Benton, a Flint attorney, in the project. Benton recruited his law partner, Robert Beltz, and Linder, Benton and Beltz raised $100,-000.

Much of the case centers about a meeting in Alcona County on September 4th and 5th, 1970, at which time Linder, Benton and Beltz met with Meier and McIntyre to purchase the latter’s redemption rights in the land contract. Also present at that meeting were Bill Cottrill, a real estate land developer formerly from Flint, and Carl Brownell, another Flint attorney. Cottrill and Brownell had the experience of developing a similar project known as Lakewood Shores in Oscoda and were advising Benton and Beltz.

Attorney James Cook of Harrisville was present representing McIntyre and Meier and actually drafted the documents.

On September 5th, the project was sold to Benton, Beltz and Linder, who paid over $100,000, and the contract was redeemed.

Brownell and Cottrill, by virtue of being present at the negotiations, became interested in the property. About a week after September 5, 1970, Brownell and Cottrill bought Benton, Beltz and Linder’s interest in the contract. There were further negotiations between the Flint group and McIntyre and Meier resulting in Brownell and Cottrill, doing business as a partnership known as Conel Enterprises, being assigned the interest of Benton, Beltz and Linder in the September 5th contract.

Cottrill and Brownell tried for three or four years to make the project go but were unable to do so and forfeited the land contract in May, 1976, after investing between $400,000 and $500,000 in it and unsuccessfully trying to resell it. At the time that the land was forfeited there was a balance due on the contract of September 5th to Cole Lakes.

Nothing in particular occurred until July, 1976, when Cole Lakes and the balance of the plaintiffs, who were persons who had paid money to Cole Lakes for options to purchase lots once the lands were developed and platted and who released their claims in return for an assignment of a share of the lawsuit, filed a complaint against Linder, Beltz, Benton, Brownell and Cottrill.

The trial in April, 1978, before Judge Phillip C. Elliott in Genesee County resulted in a judgment for the defendants.

The plaintiffs appeal and the following claims were raised.

The trial court erred in ñnding that a novation had occurred whereby the parties mutually agreed to the substitution of defendants Brownell and Cottrill for defendants Linder, Benton and Beltz as obligors under a contract.

This issue was decided favorably for defendants Linder, Benton and Beltz by the trial court in a bifurcated trial. As it turned out later in the trial, this issue became moot when the court found fraud. We do not find error in the decision of the trial court in its determination that there was fraud in the inducement and it therefore is unnecessary for this court to comment on this claim.

The trial court erred in concluding that defendants were fraudulently induced to purchase property by material misrepresentations of fact made by plaintiff’s agents.

Defendants claim Meier and McIntyre made material representations of fact at the meeting of September 4th and 5th, 1970, which were false, including the following: (1) that a valid dam permit from the DNR had been obtained which would allow the holder to build an artificial lake with 18 to 20 miles of shoreline at an elevation of 872.5 feet above sea level; (2) only one dam was necessary, which would cost $50,000 to construct; (3) a necessary bay excavation called "Garvey’s Bay” could be accomplished at a cost of $10,000 to $14,000; and (4) water impounded by the dam would naturally reach Garvey’s Bay. McIntyre and Meier knew that such representations were false, since they had been involved in the project for three years and were familiar with the land and engineering for the project. McIntyre participated in lake level hearings in circuit court and both parties knew from a prior attempt to sell the project that additional dams and dikes would be required. The false representations were made with the intention of inducing action by defendants and defendants relied on the misrepresentations. Damages resulted.

"The general rule is that to constitute actionable fraud it must appear: (1) [t]hat defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.”

Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919). See also A & A Asphalt Paving Co v Pontiac Speedway, Inc, 363 Mich 634, 639; 110 NW2d 601 (1961), Marshall v Ullmann, 335 Mich 66, 73-74; 55 NW2d 731 (1952), Waldbauer v Hoosier Casualty Co, 285 Mich 405, 408-409; 280 NW 807 (1938).

The plaintiffs’ first position is that the actions of Meier and McIntyre were not consistent with the actions of a party seeking to defraud another and point out that Meier offered $72,000 to redeem the land contract and McIntyre offered to complete the dam for $50,000 and to excavate Garvey Bay for $17,000.

The representations that were made and their falsity were fact questions. The trial judge found that: Meier and McIntyre were "[t]he agents of Cole Lakes, desperate to salvage their investment which would be lost in 24 hours if they did not sell the project, [who] deliberately misled the defendants about the true cost of the lake in order to sell the project. * * * [I]n these circumstances, we are satisfied that McIntyre and Meier, on behalf of plaintiffs, made material misrepresentations, which were false and known to be false, in order to induce the defendants to buy this land. Defendants Benton, Beltz and Linder did buy the land and they would not have done so if the false representations had not been made. Defendants Cottrill and Brownell also heard the false representations and relied on them when they agreed to buy out and take over the obligations of the original purchasers. All defendants suffered some financial injury as a result.”

In this case credibility was an important factor. Credibility is for the trier of the fact. Appellate courts, in reviewing controverted issues of fact in a nonjury law case do not consider the case de novo as in equity and will not reverse the judgment of the trial court unless the judgment is against the clear preponderance of the evidence. Baith v Knapp-Stiles, Inc, 380 Mich 119; 156 NW2d 575 (1968).

The trial court complied with GCR 1963, 517 and the decision was supported by sustantial evidence and there was no error.

Plaintiffs next argue that the representations of McIntyre and Meier pertained to future conditions and cite several Michigan cases which hold that promises of future action, promises that future events will occur, statements of expected profits, value and opinion will not support an action of fraud.

In this case some of the representations were concerning topography of the land. McIntyre and Meier represented that a lake with a shoreline of 18 to 20 miles would be formed by the erection of a single dam costing $50,000. McIntyre had been familiar with the property all his life. Both Meier and McIntyre had worked on the project for three years. They well knew that the topography would not create such a lake without a series of dams for which there were no permits and which would cost more than $50,000. Representations concerning drainage, topography and features concerning land can be actionable if false. LeRoy Construction Co v McCann, 356 Mich 305; 96 NW2d 757 (1959), Haener v McKenzie, 188 Mich 27; 154 NW 59 (1915), Jackson v Armstrong, 50 Mich 65; 14 NW 702 (1883).

The record supports the trial judge’s finding that the representations were concerning existing conditions and his conclusion was not erroneous.

The plaintiffs also raise the defense that defendants had a duty to make their own examination of the facts rather than relying on the representations of McIntyre and Meier. In making such argument plaintiffs rely on Sutton v Benjamin, 231 Mich 153; 203 NW 667 (1925), and Achenbach v Mears, 272 Mich 74; 261 NW 251 (1935).

Sutton states the law that representations of value are usually regarded as matters of opinion unless (a) the purchaser has had no opportunity to examine the property or (b) the seller has peculiar knowledge of the uses of the property which the purchaser does not have. Achenbach is distinguished from this case in that in Achenbach the purchaser had ample opportunity to make an investigation.

The law as to such contention is set forth in Smith v McDonald, 139 Mich 225, 229; 102 NW 738 (1905):

"* * * This contention assumes that the defrauded party owes to the party who defrauded him a duty to use diligence to discover the fraud. There is no such obligation. One who perpetrates a fraud cannot complain because his victim continues to have a confidence which a more vigilant person would not have.
"The rule contended for by plaintiff, which requires the same diligence from all persons, has no application to cases of fraud. If it had, the very persons, viz., the credulous and unwary, who are the usual victims of fraud, would be at a disadvantage, and would often be denied redress.”

The issue arose in another case, Sautter v Ney, 365 Mich 360, 364; 112 NW2d 509 (1961), and the Court stated:

"* * * Starting with the leading and steadily cited case of Eaton v Winnie, 20 Mich 156 (4 Am Rep 377), and continuing through Matteson v Weaver, 229 Mich 495, 499, the rule is settled that (quotation from Eaton, p 166):
" 'Where one assumes to have knowledge upon a subject of which another may well be ignorant, and knowingly makes false statements regarding it upon which the other relies, to his injury, we do not think it lies with him to say that the party who took his word and relied upon it as that of an honest and truthful man, was guilty of negligence in so doing, as to be precluded from recovering compensation for the injury which was inflicted upon him under cover of the falsehood. If a party’s own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of that quality and produced a false sense of security.’ ”

In this case the rule requiring independent examination by the purchaser could not apply where negotiations were rushed by the requirement to sell the property before the redemption period expired on September 5, 1970, and when the misrepresentation concerned matters which would not be revealed through visual examination of the property and were made by McIntyre and Meier who had superior knowledge.

Defendants should be barred from relying on fraud as a defense to a contract action because they acquiesced in the fraud and are unable to return plaintiff to the status quo.

Defendants Brownell and Cottrill did have the property for a long time and the law requires that one defending on the grounds of fraud should rescind promptly.

As pointed out in Dorgan v Birney, 272 Mich 145, 151; 261 NW 278 (1935):

" 'This court has many times held that one seeking relief for fraud must act promptly after its discovery. Draft v Hesselsweet, 194 Mich 604; Bowen v Stocklin, 215 Mich 341. The mere lapse of time, however, is not sufficient to constitute laches. Backus v Backus, 207 Mich 690; Walker v Schultz, 175 Mich 280; Humiston, Keeling & Co v Yore, 181 Mich 629. The delay in moving may always be explained, and, if satisfactorily accounted for, relief will be granted, notwithstanding the lapse of time. Mulheron v Henry S Koppin Co, 221 Mich 187;’ Bayley v Friedberg, 226 Mich 125.
" 'The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. If he acts with reasonable promptness thereafter, it is sufficient. The law of laches should be used as a shield and not a sword.’ Barron v Myers, 146 Mich 510, 514.
"See, also, Zadel v Simon, 221 Mich 180, Sweet v Martin, 233 Mich 655.”

Dorgan further stands for the proposition that whether a recission was within a reasonable time is a fact question to be decided by a jury (or the trier of the fact) in view of all the facts and circumstances.

Fraud is a defense in either a legal or equitable proceeding. Kahoun v Metropolitan Life Ins Co, 37 Mich App 511; 195 NW2d 1 (1972), 37 Am Jur 2d, Fraud and Deceit, § 340, p 455.

It is true that one seeking to rescind on the grounds of fraud must put the other party in status quo but only insofar as it is possible to do so. Mesh v Citrin, 299 Mich 527, 538; 300 NW 870 (1941), Dorgan, supra.

Under the circumstances here existent the property had been lost by foreclosure and it was not possible for the defendants to return it to plaintiffs. In such case the court will still grant cancellation even though the consideration could not be returned "where the clearest and strongest equity imperatively demands it”. McIntosh v Fixel, 297 Mich 331, 345; 297 NW 512 (1941).

Defendants Linder, Benton and Beltz were unjustly enriched at the expense of plaintiffs.

Plaintiffs seek equitable enforcement of the September 5, 1970, agreement.

The trial court found that plaintiffs (1) accepted a novation and (2) their agents and predecessors in title were guilty of fraudulent inducement.

Plaintiffs are barred from relying on the doctrine of unjust enrichment because of the fraudulent inducement of their agents and predecessors.

A case recently decided by the Michigan Supreme Court, in which the facts have much similarity to the instant case, found that one who claims rights acquired by fraud simply will not be heard in court for one seeking the aid of equity must come with clean hands. Stachnik v Winkel, 394 Mich 375; 230 NW2d 529 (1975).

The judgment of the circuit court is affirmed.


author: M. F. Cavanagh, J. Beasley, J.

text:
    PEOPLE v PORTER
    Docket Nos. 78-3088, 43377.
    Submitted May 8, 1980, at Detroit.
    Decided August 25, 1980.
    Julius T. Porter, Jr., pled guilty to second-degree murder and was sentenced to life in prison, Recorder’s Court of Detroit, Robert L. Evans, J. The Court of Appeals affirmed. Defendant subsequently requested appointment of counsel by the Supreme Court for his appeal to that Court on the basis of indigency. The Supreme Court ordered Detroit Recorder’s Court to appoint counsel if defendant was found to be indigent. 399 Mich 1039 (1977). Defendant was so found, and counsel was appointed. Defendant then moved for a new trial or, alternatively, for resentencing. Judge Evans denied the motion for a new trial, but granted resentencing. Defendant appeals the resentencing.
    Defendant separately filed a delayed application for leave to appeal the Court of Appeals affirmation of the trial court’s conviction with the Supreme Court, which application was granted, the Court reversing defendant’s conviction and remanding the case to the Court of Appeals. 404 Mich 822 (1979). The appeals were consolidated by the Court of Appeals on its own motion. Held:

    The trial judge was required to make some further effort to explain to defendant his right to confront his accusers during trial after he stated at the plea-taking that he did not understand the court’s original explanation. In light of this failure, defendant’s guilty plea fails to exhibit the understanding and voluntary nature required of such pleas, and reversal is mandated.
    Plea of guilty vacated, and the cause remanded for trial.
    Beasley, J., dissented. He would hold that the defendant’s conviction should not be reversed on the grounds that the defendant did not understand his right to confront his accusers based on one negative reply made by the defendant at the plea-taking in response to an inquiry by the trial judge as to the defendant’s understanding of the technical meaning of the right to cross-examine witnesses, and where the trial judge failed to give a further explanation. Rather, an evaluation should be made of the voluntariness of the defendant’s plea within the context of the full plea-taking. He would affirm.

      References for Points in Headnotes
    [1-4] 21 Am Jur 2d, Criminal Law §§ 485, 487.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

      Opinion of the Court
    1. Criminal Law — Guilty Pleas — Confrontation of Witnesses — Explanation of Rights.
    The failure of the trial court at a plea-taking to further explain to a defendant in a criminal case his right to confront witnesses after the court had given an explanation which the defendant stated he did not understand mandates reversal.
    2. Criminal Law — Guilty Pleas — Explanation of Rights — Courts.
    A more detailed explanation by the trial court at a plea-taking in a criminal case is required where a defendant indicates a lack of understanding of the fundamental rights originally explained by the court, prior to accepting a plea of guilty; however, such detailed explanation is not required where the defendant affirmatively indicates that he understands the rights he is abandoning and such understanding may be inferred from the record.
    3. Criminal Law — Guilty Pleas — Pleading — Voluntariness.
    The rule that the court shall not accept a guilty plea in a criminal case unless it is convinced that it is voluntarily made should require some further inquiry or explanation prior to acceptance of the plea by the court where a defendant indicates that he does not understand one of the rights he is waiving.
    Dissent by Beasley, J.
    4. Criminal Law — Guilty Pleas — Pleading — Grounds for Reversal.

      A conviction of a defendant in a criminal case on a plea of guilty should not be reversed on the grounds that the defendant did not understand his right to confront his accusers where the trial court, during the plea-taking, advised the defendant that he could bring his own witnesses into court, and where, upon receiving a negative reply in response to the court’s inquiry as to defendant’s understanding of the technical meaning of his right to cross-examine witnesses, the court failed to give a further explanation; rather, an evaluation should be made of

      the voluntariness of the plea within the context of the full plea-taking.

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Beasley, P.J., and M. F. Cavanagh and W. A. Porter, JJ.

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

   M. F. Cavanagh, J.

Defendant’s guilty plea in this case fails to exhibit the understanding and voluntary nature required of guilty pleas as set forth in People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).

In the present case the issue is not whether the trial judge’s original statement informing the defendant of his right to confront witnesses was adequate, but whether the judge was required to make some further effort to explain that right after the defendant stated that he did not understand the original explanation. The failure of the trial judge to explain the confrontation right further mandates reversal.

In People v Dukes, 48 Mich App 268, 270; 210 NW2d 266 (1973), lv den 392 Mich 814 (1974), while refusing to reverse a guilty plea under the facts there present, this Court stated:

"The defendant also argues that although the trial court did inform him of his privilege against self-incrimination, his right to trial by jury, and right to confrontation as required by People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), nevertheless his plea should be set aside because a 'fleeting reference’ to those rights should be deemed inadequate. While defense counsel expressly disavows a requirement that trial judges give each defendant a brief course in constitutional law, he does feel that a trial judge should 'take a minute or two * * * to explain [things] to the defendant’. While a more detailed explanation would certainly be required when a defendant indicates a lack of understanding of these fundamental rights, this tribunal is not prepared to require a detailed explanation of those rights when the defendant affirmatively indicates that he understands the rights he is abandoning.” (Emphasis added.)

In People v Matheson, 70 Mich App 172, 184; 245 NW2d 551 (1976), this Court reversed a guilty plea because the responses of the defendant "manifested a state of confusion which belied the claimed voluntariness of his plea”.

The instant record is distinguishable from the record of People v Anderson, People v Harrel, and People v Howell in the Guilty Plea Cases, 395 Mich 96, 123, 124; 235 NW2d 132 (1975). In Anderson, the defendant was advised merely as to his right to confrontation. In Harrel and Howell, the defendants were informed of the right to question witnesses against them. As the explanations made to the defendants used language commonly understood, and the defendants gave no indication that they didn’t understand their rights, the record created an inference or supported a conclusion that the defendants understood their rights and intentionally waived them. As the Court said in Guilty Plea Cases, supra, 124:

"In each case the judge informed the defendant of the constitutional and other rights delineated in the rule in such manner as reasonably to warrant the conclusion that the defendant understood what a trial is and that by pleading guilty he was knowingly giving up his right to a trial and the rights and incidents of a trial.”

The defendant in the present case never did acknowledge that he understood his right of confrontation. There is nothing in the record to indicate that the defendant’s protests that he did not understand his rights were made in bad faith. On earlier occasions, when the defendant initially stated that he did not understand a right, the defendant indicated that he understood after a brief explanation by the judge. The rule that the court shall not accept a guilty plea unless it is convinced it is voluntarily made should require some further inquiry or explanation when a defendant indicates that he does not understand one of the rights he is waiving. The defendant’s plea of guilty is hereby vacated and the cause is remanded for trial.

W. A. Porter, J., concurred.

Beasley, J.

(dissenting). On October 21, 1974, defendant, Julius T. Porter, Jr., pled guilty to second-degree murder and was sentenced to life in prison.

The plea was made with advice of counsel pursuant to a plea bargain under which a charge of first-degree murder was dismissed. Defendant appealed as of right, and, on December 23, 1975, his conviction was affirmed by this Court, citing the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

Defendant requested appointment of counsel by the Supreme Court on the basis of alleged indigency, and, on February 14, 1977, the Supreme Court ordered the Recorder’s Court to appoint counsel for defendant at public expense if he was found indigent. 399 Mich 1039 (1977). The Recorder’s Court so found and appointed counsel for defendant. Defendant then reattacked the plea, which motion was denied except that defendant was given an opportunity for allocution, after which, on May 12, 1978, he was resentenced, this time to not less than 15 nor more than 30 years in prison.

On June 8, 1978, defendant filed a delayed application for leave to appeal with the Supreme Court. On January 8, 1979, the Supreme Court granted defendant’s application and reversed this Court’s order affirming defendant’s conviction and, under what the Supreme Court designates "actions on applications for leave to appeal from the Court of Appeals”, entered an order, without opinion, remanding the case to this court for a "formal submission of the first issue stated in the defendant’s brief in support of his application for leave to appeal”. 404 Mich 822 (1979).

Presumably, that issue is whether the trial judge failed to establish that defendant understood his right to confront his accusers.

The part of the plea-taking that defendant finds offensive to the court rules is as follows:

"THE COURT: In a trial you would have the right to bring witnesses to court if you had any to testify in your behalf. In other words, you could bring your witnesses to testify the same as the prosecution could bring witnesses, and if you wished the court would issue a court order or subpoena. Have you ever heard of a subpoena?
"THE DEFENDANT: No.
"THE COURT: A subpoena, Mr. Porter, that would require your witnesses to appear and testify in your behalf; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Mr. Porter, the prosecutor would have to bring any witnesses he had, anybody who said they had any facts in this case would have to be brought in court to testify against you and you could cross-examine those witnesses. Do you understand the right to cross-examine your witnesses in court?
"THE DEFENDANT: No.
"THE COURT: Mr. Porter, did anyone threaten you or tell you what the sentence would be if you plead guilty?
"THE DEFENDANT: People in my cell did.”

Careful reading of the foregoing indicates two questions concerning which defendant gave negative answers. They are:

"Have you ever heard of a subpoena?
"THE DEFENDANT: No.”

The court then went on and explained to defendant what a subpoena was. We do not find this portion reversible error.

Second, is the question:

"Do you understand the right to cross-examine your witnesses in court?
"THE DEFENDANT: No.”

Defendant’s answer that he did not understand what was meant by "cross-examine” came immediately following an explanation by the court that the prosecutor would have to bring witnesses into court to testify. Already the trial judge had also advised defendant that he could bring his own witnesses into court with the court’s assistance. While it may have been wiser practice for the trial judge to attempt to explain further the technical meaning of cross-examine, I am not prepared to find that upon that one answer defendant did not "understand his right to confront his accusers”.

The foregoing matter may only properly be understood and evaluated within the context of the full plea-taking, which I have reviewed in full. Consideration of this full plea-taking indicates that this was not a prefunctory plea-taking, that defendant’s rights were carefully described to him, and that he gave a full recital of what occurred. Under these circumstances, I would affirm defendant’s conviction under the Guilty Plea Cases, supra.


author: M. F. Cavanagh, P.J.

text:
    PEOPLE v JENKINS
    Docket No. 78-3398.
    Submitted April 15, 1980, at Detroit.
    Decided August 25, 1980.
    Robert J. Jenkins was convicted of assault with intent to commit murder and felony-firearm in Recorder’s Court of Detroit, Joseph E. Maher, J. Defense counsel left the courtroom during voir dire of the jury and indicated he would take the first twelve jurors picked. Defense counsel’s cross-examination in most instances was damaging to the defendant and was interrupted by his sporadic fits of laughter. Defendant appeals, alleging ineffective assistance of counsel. Held:

    Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations, and where defense counsel has not performed at a minimal level of competence, harmless error tests are not applied. A defendant’s failure to establish prejudice by the ineffective representation is not a necessity for reversal of a conviction. The term "ineffective” is most probably an understatement when applied to the representation afforded the defendant in this case.
    Reversed and remanded.
    Criminal Law — Defense Counsel — Minimum Competence — Reversal.
    Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations, and where defense counsel has not performed at a minimal level of competence, harmless error tests are not applied, and a defendant’s failure to establish prejudice by the ineffective representation is not a necessity for reversal of a conviction.
    Reference for Points in Headnote
    [1] 21 Am Jur 2d, Criminal Law § 315.

      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.

      Melvin Turner, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. E. Walsh, JJ.
   M. F. Cavanagh, P.J.

Following trial by jury, defendant was convicted of assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). He now appeals as of right.

The sole issue raised on appeal is whether or not defendant was denied the effective assistance of counsel. In People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), the Michigan Supreme Court adopted the test outlined in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974), which states:

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations.”

Where defense counsel has not performed at a minimal level of competence, harmless error tests are not applied in Garcia, supra. Beasley v United States, supra, 696. Thus, failure to establish prejudice by the ineffective representation is not a necessity.

Rarely does the trial record so graphically depict a defense counsel falling short of the standard as in the instant case. It would serve no useful purpose to quote excerpts from the trial transcript to support our conclusion. Suffice it to say, that the term "ineffective” is most probably an understatement when applied to the representation afforded the defendant in this case. Defense counsel left the courtroom during voir dire of the jury and indicated magnanimously that he would take the first 12 jurors picked just to save time. He also absented himself from the courtroom during a portion of the prosecutor’s closing argument. His cross-examination in most instances was damaging to the defendant and it was interrupted only by his sporadic fits of unexplained laughter. To say his conduct was bizarre during the trial, is to state the obvious. At the time of sentencing, defendant indicated that he had wanted to testify at trial, originally wanted to plead to a lesser offense, had wished to present available witnesses on his own behalf, but was told he would be unable to do so by defense counsel.

We are aware that the evidence of the defendant’s guilt in this case was overwhelming. Nonetheless, even under the old "sham trial” and "farce and mockery” standards, reversal would be required in this case. Our disposition, however, does not end with our reversal and remand for a new trial. In addition, we herewith order defendant’s trial counsel to remit to the County of Wayne any monies he received in connection with this case. Finally, by copy of this opinion, we invite the State Bar Grievance Board to review the conduct of defense counsel in this cause.

Reversed and remanded for a new trial.


author: D. C. Riley, J. Mackenzie, P.J.

text:
    PEOPLE v PRATTO
    Docket No. 78-3509.
    Submitted May 12, 1980, at Detroit.
    Decided August 25, 1980.
    Philip G. Pratto pled guilty to breaking and entering an occupied dwelling with intent to commit larceny and was sentenced to probation. Subsequently he was found guilty of larceny under $100, in violation of the terms of his probation. His probation was subsequently revoked, Wayne Circuit Court, John H. Hausner, J. He appeals, alleging the court erred in accepting his plea of guilty of violation of probation without advising him of his right to a contested hearing and without obtaining an admission that he had violated his probation. Held:

    Defendant was informed of his right to a contested probation violation hearing through a bench warrant, and received the full assistance of counsel prior to entering his plea of guilty to violation of probation. He admitted his violation by his previous plea of guilty to the larceny offense which precipitated revocation of probation, and may not now collaterally attack that guilty plea.
    Affirmed.
    Mackenzie, P.J., dissented. She would hold that the sentence imposed subsequent to defendant’s guilty plea should be vacated and the case remanded to the trial court for a new hearing since the record indicates that the defendant, although represented by counsel, was not directly or indirectly aware of his right to a contested probation hearing and did not admit to the substance of all the charges prior to the entry of the plea. She would vacate the sentence and remand to the trial court for a new hearing.
    References for Points in Headnotes
    [1-6] 21 Am Jur 2d, Criminal Law § 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.
    [3, 4, 6] 21 Am Jur 2d, Criminal Law § 484 et seq.

      Opinion op the Court
    1. Criminal Law — Probation — Right to Hearing.
    A trial judge need not specifically inform a defendant accused of violating the terms of his probation of his right to a contested probation hearing if the defendant is informed of this right through other means such as through a bench warrant.
    2. Criminal Law — Violation op Probation — Procedural Due Process.
    The procedural due process rights of a defendant accused of violating the terms of his probation are adequately protected where a defendant is informed of his right to a contested probation hearing, directly or indirectly, is fully represented by counsel, and admits his violation of probation.
    3. Criminal Law — Plea op Guilty — Collateral Attack.
    A plea of guilty to a crime which precipitates revocation of probation may not be collaterally attacked by a defendant accused of violating the terms of his probation by his insistence that such plea was not an admission of a violation of a term of his probation.
    Dissent by Mackenzie, J.
    4. Criminal Law — Right to Hearing — Court Rules.

      A defendant, accused of violating the terms of his probation, while not entitled to the full panoply of rights under the guilty plea rule, does have the right to a contested hearing before pleading guilty (GCR 1963, 785.7).

    5. Criminal Law — Probation — Right to Hearing.

      A defendant accused of violating the terms of his probation need not be directly informed by the trial judge of his right to a contested hearing as long as he is made aware of that right in some manner.

    6. Criminal Law — Plea of Guilty — Sentences.

      A sentence imposed subsequent to an entry of a plea of guilty by a defendant accused of violating the terms of his probation should be vacated, and the case remanded to the trial court for a new hearing, where the defendant, although represented by counsel, was not directly or indirectly aware of his right to a contested probation hearing and did not admit to the substance of all the charges prior to the entry of the plea of guilty.

      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.

      Vincent D. Giovanni, for defendant on appeal.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   D. C. Riley, J.

In 1975, defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He was sentenced to three years probation, assessed payment of $540 in court costs and ordered to obey certain conditions. In 1977, he was accused of violating his probation. The Wayne County Circuit Court subsequently revoked his probation and sentenced him to 5 to 15 years imprisonment. Defendant now appeals as of right, claiming that the court reversibly erred by accepting his plea of guilty to violation of probation without advising him of his right to a contested hearing and without obtaining an admission that he had violated his probation.

A trial judge need not specifically inform a defendant of his right to a contested probation hearing if the defendant is informed of this right through other means, Le., through a bench warrant. See People v Hooks, 89 Mich App 124; 279 NW2d 598 (1979), People v Darrell, 72 Mich App 710; 250 NW2d 751 (1976). When a defendant is informed of this alternative to pleading guilty, is fully represented by counsel and admits his probation violation, we are satisfied that his procedural due process rights have been adequately protected. See Hooks, supra, Darrell, supra.

In the instant case, defendant was informed of his right to a contested probation violation hearing through the bench warrant. He received the full assistance of counsel and decided, after conferring with counsel, to plead guilty to violating probation. Defendant "admitted” his violation by his previous plea of guilty to larceny under $100, MCL 750.356; MSA 28.588, the offense which precipitated revocation of probation. He may not, now, collaterally attack that guilty plea. People v Clements, 72 Mich App 500, 503-504; 250 NW2d 100 (1976).

After carefully considering the record below, we conclude that defendant’s due process contention must fail.

Affirmed.

Bashara, J., concurred.

Mackenzie, P.J.

(dissenting). I would reverse and remand.

Defendant appeals as of right an order revoking his probation and sentencing him to 5 to 15 years imprisonment. His sole argument on appeal is that the trial court erred in accepting his guilty plea without advising him of his due process right to a contested hearing and without obtaining an admission from him that he had in fact violated probation.

While a defendant, accused of violating his probation, is not entitled to the full panoply of rights under the "guilty plea” rule, GCR 1963, 785.7, he does have the right to a contested hearing before pleading guilty. People v Hardin, 70 Mich App 204, 206-207; 245 NW2d 566 (1976), construing Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973).

Certain panels of this Court have disagreed regarding what must appear on the record to satisfy this requirement. It is now clear that the defendant need not be directly informed by the trial judge of his right to a contested hearing, as long as he is in some manner made aware of that right. People v Brooks, 91 Mich App 624, 626; 283 NW2d 817 (1979). In Brooks, the Court held that the record must disclose that the defendant was indeed aware of that right. Notwithstanding, other panels have held the defendant’s rights were adequately safeguarded where he was served with a bench warrant mentioning his right to a violation hearing, People v Darrell, 72 Mich App 710, 713; 250 NW2d 751 (1976), or where, under the totality of the circumstances, the defendant was given sufficient notice of the probation violation and, fully represented by counsel, admitted her violations to the Court, People v Hooks, 89 Mich App 124, 129; 279 NW2d 598 (1979).

In the instant case, defendant was served with an order to show cause why the probation order should not be revoked and terminated. However, that document did not inform defendant of his right to a contested hearing. Nor is it clear that defendant was served with a copy of the bench warrant which noted his right to a "violation hearing”.

Further, although defendant was represented by counsel at the probation revocation hearing on March 1, 1978, and the sentencing hearing on March 10, 1978, on neither occasion did the judge inform defendant of his right to a contested hearing before pleading guilty.

Nor did defendant admit the substance of the probation violations at either time. According to the bench warrant, there were three violations:

"1. Contrary to the provision #1 of the Order of Probation which states that 'the probationer shall not, during the term of his probation, violate any criminal law or ordinance of any state or of the United States or any of their subdivisions,’ he has violated this in that on January 5, 1977, he was found guilty of Larceny under $100 under St. Clair Shores Municipal Court Docket No. 354144.
"2. Contrary to provision #3 which states that, 'he shall report to the probation officer as often and in such manner as the latter may require,’ he was failed * * * to report in June, July, and August of 1977.
"3. Contrary to provision #5 which states that, 'he shall pay Court costs in the amount of $540.00 at the rate of $15.00 per month,’ he has failed to pay $15.00 per month, he has paid nothing to date.”

At the probation revocation hearing defendant’s counsel stated that defendant did not actually contest these violations but that the reason he had not reported to his probation officer for three months was he was in the army at that time. Additionally, at the sentencing hearing, the following colloquy occurred between the trial judge and defendant:

"DEFENDANT PRATTO: Well, your honor, that larceny thing was something about gas siphoning. Somebody siphoned gas from the neighbor’s car and I was working next door at the time it happened and there was nobody else around so the police got me, that larceny under $100.00.
"THE COURT: But you were convicted, were you not?
"DEFENDANT PRATTO: I just said, they told me they would take the $25.00 that I put up for bond and that was that, and I said, 'okay, I will give you $25.00’.
"THE COURT: But you pled guilty?
"DEFENDANT PRATTO: Yes, your Honor.”

Since the facts recited above give no indication that defendant was aware of his right to a contested hearing or that he admitted all the charges, I would vacate the sentence and remand to the trial court for a new hearing.


author: D. F. Walsh, P.J.

text:
    SHEFFIELD DEVELOPMENT COMPANY v CITY OF TROY
    Docket No. 78-4303.
    Submitted May 13, 1980, at Lansing.
    Decided August 25, 1980.
    Leave to appeal applied for.
    Sheffield Development Company requested a zoning change from the City of Troy. The request was denied by the city council. Sheffield then brought an action to enjoin the city from enforcement of its zoning ordinance as it applied to the land in question. Sheffield requested the depositions of several members of the Troy city council, who refused to answer certain questions on the basis that the questions related to the reasons or motivations for the council members’ individual vote on the rezoning request. The Oakland Circuit Court, Francis X. O’Brien, J., granted Sheffield’s motion to compel answers, and the city appeals by leave granted. Held:

    The scope of judicial review of a municipal rezoning decision is limited by the constitutional provision for separation of powers. A rezoning decision is legislative in nature and not subject to judicial review except in the presence of abuse of discretion, excessive use of power or error of law. This limited review also applies to an inquiry into the motives behind the decisions of the legislators. The questions to which Sheffield seeks answers relate directly to the individual motivations of the council members. There are no allegations of fraud, personal interest or corruption. The order compelling answers is therefore improper.
    Order vacated.
    1. Zoning — Legislative Acts — Judicial Review.
    The rezoning of a parcel of land by a township or municipality is an act that is legislative in nature and is not subject to judicial interference absent an abuse of discretion, excessive use of power or error of law.
    References for Points in Headnotes
    [1] 82 Am Jur 2d, Zoning and Planning § 338.
    [2] 73 Am Jur 2d, Statutes §§ 46, 270.
    [3, 4] 82 Am Jur 2d, Zoning §§ 76, 77.

      2. Courts — Legislative Acts — Judicial Review — Motives of Legislators.
    Courts are limited to consideration of the legislation itself and other documented legislative history when reviewing a challenge to a legislative enactment; however, the motive of the legislators may be examined where fraud, personal interest or corruption is alleged.
    3. Zoning — Purpose of Zoning — Judicial Review.
    A court may inquire into the purpose of a zoning ordinance where discriminatory, unreasonable or spot zoning is alleged.
    4. Zoning — Constitutional Law — Separation of Powers — Motives.
    Inquiry relating directly to the individual motivations of members of a city council in passing on applications for zoning changes is precluded, in an action based upon the denial of an application, by the constitutional provision respecting the separation of powers (Const 1963, art 3, § 2).

      Schlussel, Lifton, Simon, Rands, Kaufman, Lesinski & Jackier (by Mark E. Schlussel and Joseph F. Galvin), for plaintiff.

      William S. Wolanin, City Attorney, for defendant.
    Before: D. F. Walsh, P.J., and Bashara and K. B. Glaser, JJ.

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

   D. F. Walsh, P.J.

Defendant appeals the entry of a pretrial discovery order which directed municipal officials to answer questions concerning the reasons behind their decisions in acting upon zoning applications.

In the fall of 1975, Sheffield Development Company, the owner of 160 acres of undeveloped land (zoned in part "single family residential” and "commercial”), petitioned for the rezoning of this parcel. After a public hearing, the Troy Planning Commission recommended to the Troy City Council that the proposed rezoning be denied. By a vote of 3 to 3, the council subsequently refused to conduct a public hearing on the petitioned amendment, thereby denying Sheffield’s request for a rezoning.

In September, 1976, Sheffield instituted an action against the City of Troy, its officers, employees and agents. The following three claims were alleged: (1) the single family residential classification was unreasonable, arbitrary, capricious, discriminatory and confiscatory; (2) the city council abdicated its statutory duties in its decision-making by acquiescing in the local homeowners associations’ opposition to the proposed rezoning; and (3) certain restrictive covenants on the land entered into between Sheffield and Troy were void.

During pretrial discovery, plaintiff noticed the depositions of several Troy officials, including the mayor, the city manager and at least 3 or 4 council members. At the depositions, the officials refused to answer certain questions on the basis that the inquiry related to the reason or motivation for their individual vote on the rezoning request. Plaintiff then moved to compel answers to deposition questions and the circuit court granted the motion. On August 21, 1978, the court entered an order which provided:

"1. That Arthur Molinar [a council member] and other Troy city officials deposed in this case, be, and hereby are ordered to answer questions relating to criteria generally applied by Troy city officials to zoning applications.
"2. That Arthur Molinar and other Troy city officials deposed in this case, be, and hereby are ordered to answer questions relating to specific statements made by Troy officials to one another with respect to pending zoning applications to the extent, and only to the extent, that such statements relate to the criteria applied by Troy city officials to zoning applications.”

The narrow question at issue centers on whether city officials can be compelled to answer questions concerning the reasons underlying the denial of a proposal for rezoning.

GCR 1963, 302.2(1), which governs the scope of examination by deposition, provides for discovery of any matter not privileged which is admissible under the rules of evidence and relevant to the subject matter. MRE 402 provides that all relevant evidence is admissible except as otherwise provided by the constitution or other evidentiary rule. The applicable constitutional provision in the present case is that providing for the separation of powers. Const 1963, art 3, § 2.

The rezoning of a specific parcel of land by a township or municipality constitutes an act that is legislative in nature. Kirk v Tyrone Twp, 398 Mich 429, 441; 247 NW2d 848 (1976). Due to the limitations inherent in the constitutional separation of powers, this legislative function is not subject to judicial interference absent an abuse of discretion, excessive use of power or error of law. TiremanJoy-Chicago Improvement Assoc v Chernick, 361 Mich 211; 105 NW2d 57 (1960). This limited judicial review also applies to any inquiry into the legislators’ motives behind their decisions. In People v Gibbs, 186 Mich 127, 134-135; 152 NW 1053 (1915), the Supreme Court stated:

"Courts are not concerned with the motives which actuate members of a legislative body in enacting a law, but in the results of their action. Bad motives might inspire a law which appeared on its face and proved valid and beneficial, while a bad and invalid law might be, and sometimes is, passed with good intent and the best of motives.
" 'Nothing is better settled than the rule that the motives of a legislature or of the members cannot be inquired into, for the purpose of determining the validity of laws.’ People v Gardner, 143 Mich 104; 106 NW 541 (1906).”

Accord, Grand Trunk Western R Co v Detroit, 326 Mich 387, 396-397; 40 NW2d 195 (1949), 8A McQuillin, Municipal Corporations (3d ed), § 25.278, 3 Rathkopf, The Law of Zoning and Planning (4th ed), Chapter 52, Anno., 71 ALR2d 568.

In reviewing a challenge to a legislative enactment, courts are thereby limited to a consideration of the legislation itself and other documented legislative history. Motive of the legislators may be examined, however, when fraud, personal interest or corruption is alleged in the complaint. 3 Rathkopf, supra, 52-53. Also, it is generally recognized that courts may inquire into the purpose of the legislation, especially where discriminatory, unreasonable or spot zoning is alleged. Id. 52-56. In Glen Cove Theatres, Inc v City of Glen Cove, 36 Misc 2d 772, 773; 233 NYS2d 972, 974 (1962), the New York Supreme Court distinguished motive and intent or purpose in the following manner:

"In the field of legislation, motive and intent have different connotations and, in the instant case, each must be separately considered for a proper disposition of some of the arguments propounded. The former may be defined as the impelling force or reason which induces action and precedes it. The latter signifies the intendment and meaning of the enactment, the purpose it seeks to accomplish, its construction, all as gathered from the text of the law itself, legislative studies, etc.”

However, even when testimony with regard to "purpose” is deemed admissible, it is generally given by those in an administrative, rather than legislative, capacity. Anderson v Town of Forest Park, 239 F Supp 576 (D Okla, 1965) (mayor), Rammar Assoc, Inc v Incorporated Village of Westbury, 59 Misc 2d 875; 300 NYS2d 698 (1969) (mayor), Clary v Borough of Eatontown, 41 NJ Super 47; 124 A2d 54 (1956) (president of planning board).

In Mazzara v Town of Pittsford, 54 Misc 2d 600; 283 NYS2d 165 (1967), a land owner filed a complaint alleging the invalidity of an amendment to a zoning ordinance. The plaintiff sought the depositions of all members of the town board, the planning board and the zoning board with regard to the standards and guidelines applied in the enactment. In modifying this broad discovery request, the New York court prohibited the depositions of the members of the town board. The court stated that the motives, promptings and procedures of this local legislative body were beyond the proper scope of any judicial inquiry.

As expressed in the order entered in the instant case, plaintiff seeks answers to questions concerning the council members’ individual criteria in passing on zoning applications and specific statements by Troy city officials with regard to pending zoning applications. These questions relate directly to the individual motivations of the council members that induced their legislative decision-making. Such inquiry fits squarely within the proscriptions set forth in Gibbs, supra, and Grand Trunk, supra. While such answers may be relevant to plaintiff’s contention that the council was influenced by the disapproval voiced by the homeowners associations, the limitations mandated by the constitutional provision with respect to the separation of powers precludes this pretrial discovery. The collective or individual motives of a legislative body are not discoverable.

We note that the complaint contains no allegations of fraud, personal interest or corruption. Furthermore, even if this inquiry can be characterized as related to legislative "purpose” rather than the legislators’ "motive”, the questioning of council members would still be improper. Administrative officials can adequately answer the questions concerning the purpose of zoning regulations.

The order of the lower court is vacated.