text:
    PEOPLE v KERLEY
    Docket No. 78-3883.
    Submitted December 6, 1979, at Grand Rapids.
    Decided January 22, 1980.
    Leave to appeal applied for.
    Bruce W. Kerley was convicted of first-degree murder, Calhoun Circuit Court, Stanley Everett, J. Defendant appeals, alleging that the trial court should have granted defendant’s motion for a directed verdict of acquittal, that the trial court failed to define adequately the terms premeditation and deliberation, that the trial court should have allowed defendant to testify to the decedent’s general reputation for violence and erroneously limited the detail to which defendant could testify as to specific acts of violence by the decedent, and that the trial court erred in its instructions to the jury on self-defense. Held:

    1. Sufficient evidence was presented on the elements of premeditation and deliberation to avoid a directed verdict of acquittal; when the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.
    2. The instruction given regarding premeditation and deliberation was adequate.
    3. The defendant had lived in the community and known the decedent for too short a time to be qualified to testify as to the decedent’s general reputation in the community for violence. Defendant was allowed to testify about specific acts of violence by the decedent which the defendant had heard about. The limitation which the trial court placed on this testimony was not an abuse of discretion.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial §§ 548-550, 552-554.
    [2, 3] 29 Am Jur 2d, Evidence § 343.
    40 Am Jur 2d, Homicide § 301 et seq.

    Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide. 1 ALR3d 571.
    [4] 75 Am Jur 2d, Trial §§ 727, 728, 925.
    [4, 5] 40 Am Jur 2d, Homicide §§ 519, 520.
    Duty of trial court to instruct on self-defense, in absence of request by accused. 56 ALR2d 1170.

      4. The trial court’s instruction on self-defense adequately conveyed to the jury that the defendant’s actions were to be judged from the circumstances as they appeared to the defendant, which is the proper standard by which an instruction on self-defense is to be considered.
    5. The' defendant alleges that an instruction on communicated withdrawal should have been given even though it was not requested. In this case the testimony was conflicting as to whether the defendant was withdrawing from the conflict in which he was involved or whether he had reasonably informed his adversary, the decedent, of his intention to withdraw. An instruction on communicated withdrawal was not necessary.
    Affirmed.
    1. Criminal Law — Directed Verdict of Acquittal.
    The proper standard to be employed in ruling on a motion for a directed verdict of acquittal is that the evidence presented by the prosecution up to the time the motion is made is to be viewed in a light most favorable to the prosecution and that a determination be made as to whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.
    2. Homicide — Evidence — Reputation of Decedent.
    A defendant in a trial for homicide was not qualified.to testify as to the general reputation of the decedent in his community where the defendant had known the decedent only three weeks and had lived in the same community as the decedent for only those three weeks prior to the killing.
    3. Homicide — Evidence — Decedent’s Acts of Violence.
    A defendant in a trial for homicide was properly allowed to testify about specific acts of violence on the part of the decedent which the defendant had heard about and which he claimed led to his being afraid of being harmed by the decedent.
    4. Criminal Law — Defenses — Self-Defense — Instructions to Jury.
    The test of whether or not a jury instruction on self-defense is proper is whether the language of the instruction, when read as a whole, makes it clear that the defendant’s conduct is to be judged from the circumstances as they appeared to the defendant, not as they would have appeared to a third party.

      5. Criminal Law — Defenses — Self-Defense — Aggressors — Withdrawal From Conflict — Instructions to Jury.
    An aggressor or initiator of a conflict, in order to revive his right to assert a defense of self-defense, must not only have withdrawn from the conflict but must also have clearly communicated his withdrawal to his adversary; where the testimony is conflicting as to whether the defendant had withdrawn from a conflict or had reasonably informed his adversary of his intent to withdraw an instruction to the jury on "communicated withdrawal” is not necessary in the absence of a request for such an instruction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James D. Norlander, Prosecuting Attorney, and Samuel I. Durham, Jr., Assistant Prosecuting Attorney, for the people.

      Peter Jon Van Hoek, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   Allen, J.

Following a three-day trial by jury, defendant was found guilty of first-degree murder contrary to MCL 750.316; MSA 28.548. On June 28, 1979, he was sentenced to prison for life, and he appeals of right. He raises four claims of error.

On Friday evening, September 30, 1977, defendant shot and killed his brother-in-law, Lyn Amos. The shooting occurred in the kitchen of defendant’s sister, Denise, where Denise and Amos had been living since their marriage some two weeks earlier. There was friction between the deceased and defendant over an alleged beating inflicted on Denise by the deceased. Defendant had arrived at the apartment earlier that evening with records. Present was the deceased, his 15-year-old brother, Phillip, and his 13-year-old sister, Jennell. Following some drinking by the deceased and defendant, and what defendant alleged were antagonistic comments by the deceased, defendant left the apartment and went to his home where he secured a shotgun. He returned to the apartment but first left the gun in some bushes outside the building. He found Lyn and the two children in the living room.

Shortly thereafter defendant went back outside, secured the gun, and returned to the living room where he announced, "I heard you want to kick my ass”, or words to that effect. The deceased responded by rising from the chair. At this point the testimony becomes conflicting. Defendant testified that when the deceased got up, he quickly retreated to the kitchen intending to go out the back door which he knew would jam unless opened slowly, that he had his back to the kitchen and was attempting to open the back door when he looked backward, saw the deceased six feet away coming towards him, and fired in self-defense. On the other hand, Jennell testified that when defendant, entered the living room "he had the gun and pointed it at Lyn”. Jennell also testified that after the defendant got to the kitchen, he goaded the deceased by calling to deceased, "come on, come on out”. Both young people stated the shot was fired while defendant was standing in the back door with his foot holding the door open. According to Jennell, while defendant was holding the door open, he was aiming the gun at the deceased.

1. Proper Standard for Ruling on Motion for Directed Verdict of Acquittal.

Defendant contends that the evidence of premeditation and deliberation was so insufficient that defendant’s motion for a directed verdict of acquittal should have been granted. We disagree. While there has been a division of opinion as to the proper standard to be employed in ruling on a motion for a directed verdict of acquittal, e.g., compare People v Milton, 81 Mich App 515, 517; 265 NW2d 397 (1978), with People v Royal, 62 Mich App 756, 757-758; 233 NW2d 860 (1975), the Supreme Court in People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), defined the proper standard as follows:

"[T]he trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made, [People v] Garcia, [398 Mich 250; 247 NW2d 547 (1976)], view that evidence in a light most favorable to the prosecution, People v Vail, 393 Mich 460, 463; 227 NW2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, Jackson, [v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979)].”

Viewing the evidence in the light most favorable to the prosecution in the instant case, the record indicates that sufficient evidence was presented by the prosecution on the elements of premeditation and deliberation to avoid a directed verdict of acquittal under the standard set forth above.

2. Adequacy of Trial Court’s Deñnition of the Terms ’’Premeditation” and ”Deliberation”, in Absence of Objection.

Though it would have been better had the trial court followed the CJI in defining the terms premeditation and deliberation, we find the instruction given was adequate. In support of our conclusion herein we refer to People v Bodley, 38 Mich App 27, 31-32; 195 NW2d 803 (1972), People v Fields, 64 Mich App 166, 169-170; 235 NW2d 95 (1975), People v Collins, 43 Mich App 259, 269; 204 NW2d 290 (1972). Milton, supra, is distinguishable on the instruction issue since there, unlike the instant case, the basic error was the trial court’s failure to distinguish first-degree murder from second-degree murder.

3. CJI 7:9:10 — General Reputation and Speciñc Acts of Past Violence of Deceased.

Defendant contends that the trial court erred when it (a) prevented defendant from testifying as to the deceased’s general reputation for violence in Battle Creek, and (b) limited the detail to which the defendant could testify as to specific acts of violence committed by decedent, which acts gave defendant reason to fear the deceased. Defendant had only lived in the community of Battle Creek three weeks, had only known deceased for three weeks and had not talked with anyone concerning decedent in Lansing where defendant had lived prior to coming to Battle Creek. Based on these facts, defendant was obviously disqualified to testify about decedent’s general reputation, and the court so held. People v Walters, 223 Mich 676; 194 NW 538 (1923), People v Perez, 66 Mich App 685, 693; 239 NW2d 432 (1976), lv den 397 Mich 824 (1976), 1 Wharton’s Criminal Evidence (13th ed), § 236, pp 511-512.

After making a separate record without the jury being present, the court did allow defendant to testify about specific acts of violence which defendant had heard about from defendant’s family. Defendant stated he only heard about specific acts of violence from his own family. This testimony was properly admitted by the trial judge. People v Walters, supra, People v Knott, 59 Mich App 105, 108-110; 228 NW2d 838 (1975). See People v Cellura, 288 Mich 54, 64; 284 NW 643 (1939). The court excluded only one incident, that being an occasion when deceased, while intoxicated, had taken defendant’s mother, father, and sister on a high-speed car ride and threatened that he was taking them to hell. We do not find the omission of this single incident prejudicial. Nor do we find that the trial court’s exercise of discretion, in limiting the detail with which the specific acts of violence could be described, constituted reversible error.

4. CJI 7:9:01 — Self Defense, and CJI 7:9:04— Communicated Withdrawal, Adequacy of Instructions Thereon in Absence of Objection.

Defendant contends that in its instructions to the jury on self-defense, the trial court erred in four particulars, despite the fact that no objection was made and no alternate instruction was requested. We find defendant’s claim without merit as to items (B) and (D). However, the alleged error as to claims (A) and (C), and in particular (A), present close questions. The trial court’s instruction on item (C) was:

"In justification of the offense here charged against the defendant, he has interposed a plea of self defense. To make the plea available it must appear that the defendant was without fault on his part. If he, himself, was the aggressor in the conflict, he cannot invoke the doctrine of self defense as an excuse for the killing, unless at that time he reasonably believed in his own mind that he was in imminent danger of losing his own life or suffering from grievous bodily injury, and there was no way for him to retreat, as he saw it, and his only safety lie [sic] in firing the shot which caused the death of Lyndale Amos. The degree of danger which must be feared is serious bodily harm or death.” (Emphasis added.)

Citing CJI 7:9:01(3) and the commentary thereto at pages 191-194, defendant argues that error was committed because the court used the words "reasonably believed” rather than "honestly believed”. See also People v Robinson, 79 Mich App 145, 156-161; 261 NW2d 544 (1977). For many years, Michigan case law alternately approved instructions using either the term "reasonably believed”, People v Shelton, 64 Mich App 154, 156; 235 NW2d 93 (1975), People v Perez, supra, or "honestly believed”, People v Burkard, 374 Mich 430, 438; 132 NW2d 106 (1965), People v Robinson, supra. But as appears from the commentary to CJI, it is not the magic words "honestly” or "reasonably” which determine whether the instruction is proper. Instead, the test is whether the language, when read as a whole, makes it clear that defendant’s conduct is to be judged from the circumstances as they appeared to the defendant rather than as they would appear to a third party. As was stated in Perez, supra:

"Without deciding whether the instructions given were reversibly erroneous, we think that two aspects of self-defense should be consistently emphasized in the instructions upon retrial. First, the self-defense justification for homicide is based upon the circumstances as they appeared to defendant, and not as they actually existed, [citations omitted] Second, those circumstances as they appeared to the defendant must result in a reasonable belief that he, the defendant, is in danger of death or serious bodily harm.” 66 Mich App at 692.

The language used by the court was "reasonably believed in his own mind”. As such, and given the fact that, unlike the situation in Robinson, no objection was made, we believe the jury understood that defendant’s justification for firing the gun was to be based on the circumstances as they appeared ("in his own mind”) to the defendant.

A more difficult question is posed as to item (A). Defendant’s theory was that he took the gun to deceased’s apartment, not because he intended to shoot his brother-in-law, but because he feared the deceased’s violent temper, and that as soon as deceased rose, threatening, from his chair, defendant retreated to the kitchen where he was trying to get out the back door when deceased advanced towards him and he shot in self-defense. Defendant argues that the jury may well have believed that when defendant entered the living room armed with the gun, he was the aggressor and therefore the jury was misled by the court’s instruction that if the defendant was the aggressor, "he cannot invoke the doctrine of self-defense”. Defendant asserts that even if he were the aggressor in the first instance, the doctrine of self-defense may still be invoked if the aggressor subsequently withdraws from any further encounter with his victim and reasonably makes the fact of his withdrawal known to the victim. In legal parlance this is known as the doctrine of "communicated withdrawal after provocation of conflict”. A jury instruction reflecting this doctrine is set forth in CJI 7:9:04. The issue before us is whether a CJI 7:9:04 instruction should have been given by the trial court even though no request was made.

In People v Peoples, 75 Mich App 616, 620; 255 NW2d 707 (1977), this Court in a 2-1 opinion held that on the facts of that case, a communicated withdrawal instruction should have been given even in the absence of a request therefor, and in the absence of an objection to the instruction given. The evidence of that defendant’s withdrawal was clear and uncontested. In the case before us it is certainly not clear that defendant had abandoned his assault on deceased with a gun. According to the two other witnesses to the shooting, defendant had opened the door and was holding it open with his foot. Nothing prevented him from going out the door. Even if one assumes that defendant was retreating, and in good faith had given up the initial assault, there is no evidence that defendant effectively communicated this intent to the deceased.

We refuse to extend the holding in Peoples to a situation where, as here, the testimony is conflicting as to whether the defendant was withdrawing from the conflict or had reasonably informed his adversary of his intent to withdraw. The doctrine of communicated withdrawal may not be invoked unless the aggressor’s intent to withdraw is clearly made known to his victim.

"The aggressor in or initiator of the conflict, in order to revive his right to self-defense, must not only withdraw, he must also announce or otherwise communicate his withdrawal or desire for peace to his adversary. In other words, the initial aggressor must withdraw or abandon the conflict in such a way that the fact of withdrawal is perceived by his opponent, so that his adversary is aware that he is no longer in any danger from the original aggressor.” 3 Am Jur, Proof of Facts 2d, § 3-705, p 712.

"Nor is this all; the aggressor must inform his antagonist of his purpose to withdraw from the conflict. If the circumstances are such that he cannot do this, it is attributable to his own fault and he must abide by the consequences. A mere momentary cessation of hostilities with no bona fide, clearly expressed intention to withdraw from the conflict is not sufficient to justify the original aggressor in killing in self-defense.” 40 Am Jur 2d, Homicide, § 150, pp 438-439.

The majority opinion in Peoples concluded by stating that a communicated withdrawal instruction (CJI 7:9:04) was only necessary "where the particular factual situation supports such an instruction”. 75 Mich App at 624-625. In our judgment, the facts in the instant situation do not support such an instruction.

Affirmed.

       Defendant’s brief subdivides this issue into components A, B, C and D as follows: (A) failure of the court to instruct sua sponte on withdrawal; (B) failure to define the terms “aggressor” and "assault”; (C) defendant’s belief of death or harm must be an honest rather than a reasonable belief; (D) the cumulative effect of errors A-B-C resulted in manifest injustice even though no objection was made at trial.

       For discussion of the doctrine of communicated withdrawal see citations and authorities set forth in footnote 3 of People v Peoples, 75 Mich App 616, 621; 255 NW2d 707 (1977).

       Defendant Peoples and the deceased had been drinking with friends in a private home. They went outside and engaged in a fistfight. Upon reentering the home, defendant fired a shot over the deceased’s head. After the shot was fired, the other persons present separated the two and persuaded defendant to leave the home. The deceased was restrained from going out to face defendant. Some one to five minutes after defendant left the house, the deceased was allowed to leave. In the instant case, the defendant had not left and only seconds intervened between the argument in the living room and the fatal shooting in the kitchen.


source: Caselaw Access Project

author: M. J. Kelly, J.

license: Public Domain

text:
    PINE-WOOD LIMITED v DETROIT MORTGAGE & REALTY COMPANY
    Docket No. 78-4672.
    Submitted November 21, 1979, at Detroit.
    Decided January 22, 1980.
    Leave to appeal applied for.
    Plaintiff Pine-Wood Limited, a limited partnership, engaged defendant, Detroit Mortgage and Realty Company, to obtain financing for a construction project. Plaintiff submitted an application to defendant’s mortgage correspondent, the Aetna Life Insurance Company, for a $2.55 million loan. Plaintiff and defendant executed an agreement whereby defendant would receive a $12,750 fee upon: 1) closing of the loan; 2) failure to close after acceptance of a loan commitment; or 3) rejection or a tender of a loan commitment in accordance with the terms of the application. Plaintiff tendered a $12,500 application fee to defendant in accordance with the agreement. The fee would either be applied against the standby deposit required upon acceptance of a commitment or refunded if no commitment was obtained within 30 days. No commitment was so obtained. However, defendant continued its efforts to secure financing, allegedly pursuant to an oral request by plaintiff. Defendant secured a commitment from Aetna for approximately $2.45 million and presented it to plaintiff. Plaintiff claimed it only agreed to review the commitment; defendant claimed plaintiff orally agreed to modify its application and accept the commitment’s terms. The commitment was never accepted and plaintiff secured financing, in the original amount, from another source.. Plaintiff filed suit in the Oakland Circuit Court against defendant to secure the return of the application fee. Defendant alleged it was entitled to keep the fee pursuant to the executed agreement as orally modified. The court, James S. Thorburn, J., granted summary judgment for plaintiff on the ground that defendant failed to state a valid defense, finding that the statute of frauds barred any oral modifications of the agreement and that the defenses of promissory estoppel, party admission and full performance of the contract as orally modified, all equitable doctrines, were inapplicable to real estate commission cases. Defendant appeals. Held:

      References for Points in Headnote
    12 Am Jur 2d, Brokers § 41 et seq.

    Agreement between brokers as within statute requiring agreement for commissions for the sale of real estate to be in writing. 44 ALR2d 741.

      1. Provisions of the statute of frauds requiring that an agreement to pay a commission for the sale of an interest in real estate be in writing applies only to agreements not fully executed and may not be applied to afford recovery of a commission paid incident to a fully consummated transaction.
    The Court specifically refused to address the applicability of the equitable defenses of promissory estoppel and party admissions.
    Reversed and remanded.
    Frauds, Statute op — Agreement of Pay Commissions — Executed Agreements
    Provisions of the statute of frauds requiring that an agreement to pay a commission for the sale of an interest in real estate be in writing applies only to agreements not fully executed and may not be applied to afford recovery of a commission paid incident to a fully consummated transaction (MCL 566.132[e]; MSA 26.922[e]).

      Kerr, Russell & Weber (by Robert R. Nix, II and John N Seibel), for plaintiff.

      Barris, Sott, Denn & Driker (by Eugene Driker and David K. McDonnell), for defendant.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   M. J. Kelly, J.

Plaintiff, Pine-Wood Limited, brought this action in Oakland County Circuit Court to recover a $12,500 mortgage loan application fee. The trial court granted plaintiffs motion for summary judgment pursuant to GCR 1963, 117.2(2), finding that defendant had failed to state a valid defense to plaintiffs claim. Defendant now appeals that judgment as a matter of right.

During 1976 plaintiff contacted defendant, Detroit Mortgage and Realty Co., to obtain mortgage loan financing for the construction of a multi-million dollar office building. Plaintiff submitted a mortgage application to defendant’s mortgage correspondent, the Aetna Life Insurance Company, seeking a $2,550,000 loan. Contemporaneously, the parties executed a letter agreement dated September 16, 1976, setting forth the manner in which defendant was to be compensated for its services.

The agreement provided that the defendant was to receive a fee of $12,750 upon the occurrence of any one of three conditions:

"* * * closing of the loan, failure to close after acceptance of a commitment for the loan, or upon rejection of our tender of a commitment in accordance with the terms of the application.”

The agreement further required the plaintiff to pay $12,500 to the defendant as an application fee. It was provided that:

"This fee * * * will be applied against the standby deposit required upon acceptance of a commitment. If a commitment is not obtained within 30 days after the date of the application, the application fee will be refunded.”

Defendant concedes that it failed to obtain a mortgage commitment that complied with the terms of the application within the 30-day period. Despite the expiration of the 30-day period, the defendant continued its efforts to secure financing. Defendant alleged that this was pursuant to an oral request by the plaintiff that defendant extend the 30-day period and continue its efforts to secure a mortgage commitment.

Thereafter, the defendant was able to secure a commitment from Aetna for approximately $100,-000 less than the original request in plaintiff’s loan application. In October, 1976, this commitment was presented to the plaintiff. It is plaintiff’s position that it merely agreed to review this commitment. It is defendant’s position that plaintiff orally agreed to modify its loan application and to accept the terms proposed by Aetna.

The commitment was never accepted by the plaintiff. Rather, plaintiff sought and secured financing from another source upon terms consistent with its original application with Aetna. On December 13, 1976, plaintiff told defendant that the Aetna commitment would not be accepted, and requested that the application fee be refunded. The defendant refused.

Plaintiff, thereafter, brought the present action, alleging that the commitment issued by Aetna deviated from that requested in the application and that, accordingly, it was entitled to a refund. The defendant asserted that it was entitled to retain the fee, claiming that it had earned it as a commission by timely obtaining an acceptable mortgage commitment. The defendant relied on two alleged oral agreements: (1) an oral agreement of the plaintiff to extend the 30-day period, and (2) an oral agreement to modify the terms of the loan application.

Plaintiff moved for summary judgment on the ground that the defendant failed to state a valid defense to the claim. GCR 1963, 117.2(2). Plaintiff argued that the agreement between the parties was subject to the statute of frauds and that the alleged oral modifications were barred thereby. Defendant responded, raising the defenses of promissory estoppel, party admissions and full performance of the contract as orally modified. The trial court found these equitable doctrines inapplicable to real estate commission cases and granted plaintiffs motion for summary judgment based upon defendant’s failure to state a valid defense.

The pertinent provisions of the statute of frauds pertaining to commissions for the sale of land or an interest therein provide in part as follows:

"In the following cases an agreement, contract or promise shall be void, unless that agreement, contract, or promise, or a note or memorandum thereof is in writing and signed by the party to be charged therewith

* * *

"(e) An agreement, promise, or contract to pay a commission for or upon the sale of an interest in real estate.” MCL 566.132(e); MSA 26.922(e), Aetna Mortgage Co v Dembs, 13 Mich App 686; 164 NW2d 771 (1968).

An agreement to obtain a mortgage upon real estate is an agreement concerning an interest in real estate. Wardell v Williams, 62 Mich 50, 60; 28 NW 796 (1886).

There is no dispute that the letter dated September 16, 1976, was a valid contract in full compliance with the statute; however, any modification of this agreement concerning the eventual execution of a commercial mortgage must also be in writing to be effective. Michigan National Bank of Detroit v Holland-Dozier-Holland Sound Studios, 73 Mich App 12, 17-18; 250 NW2d 532 (1976), MCL 556.1; MSA 26.978(1). Accordingly, absent the application of an exception to the above statute, the alleged oral modifications of the parties’ agreement were invalid.

The single issue raised on appeal is whether the trial court erred in holding that the doctrines of estoppel, complete performance and party admissions are inapplicable in the context of real estate commission cases. Although the trial court entered summary judgment without opinion, it apparently relied on several cases presented by plaintiff in which quantum meruit recovery was denied in real estate commission cases. Mead v Rehm, 256 Mich 488; 239 NW 858 (1932), Ekelman v Freeman, 350 Mich 665; 87 NW2d 157 (1957), Paul v Graham, 193 Mich 447; 160 NW 616 (1916), Slocum v Smith, 195 Mich 281; 161 NW 830 (1917), Jaynes v Petoskey, 309 Mich 32; 14 NW2d 566 (1944). In addition, this Court held in Purification Systems, Inc v The Masten Co, Inc, 40 Mich App 308; 198 NW2d 807 (1972), that quantum meruit or implied contract is not available at law to claim compensation for services rendered pursuant to an oral agreement introducing one to a source for a mortgage loan commitment.

We find the above-cited cases distinguishable from the case at bar in two important respects. Plaintiff herein is not attempting to collect commissions based upon an oral contract whose very existence is disputed by the parties. The existence of an agreement is adequately evidenced by the letter of September 16, 1976; the terms of that contract are now contested due to the alleged verbal modification. Moreover, defendant here has retained possession of the contested funds from the outset of the contractual relationship; those cases upon which plaintiff relies involve attempts to collect commissions allegedly due pursuant to an oral contract. Defendant in the instant case does not urge quantum meruit recovery for the value of services rendered according to the terms of a disputed oral contract; rather it claims the right to retain the commission already in its possession earned by its full performance of the modified September 16, 1976, contract.

The Michigan Supreme Court was presented with a similar set of facts in National Bank of Detroit v Wing, 318 Mich 436; 28 NW2d 236 (1947). The Toynton-Brown Company, incorporated for the purpose of negotiating real estate transactions, sold individual lots in Riverwood Estates subdivision and retained commissions on the sales. In response to the argument that no written contract authorized the sales and commissions, the Court found the existence of a writing immaterial, noting that,

"* * * this is not the case of a real estate agent seeking to collect commissions * * *. Instead, it is the case of a grantor or vendor seeking to undo that which has been fully accomplished, and on the theory that had the commissions not already been paid the real estate agent for want of a contract could not collect such commissions.”

The Court held that under such circumstances:

"The quoted provisions of the statute [the predecessor to MCLA 566.132(e)] relate only to agreements, promises or contracts which have not been fully executed. They may not be applied to and thereby afford a basis of recovery [the return of a commission already paid] incident to fully consummated transactions.” National Bank of Detroit v Wing, supra, 442, 444.

In the quantum meruit cases relied on by plaintiff the courts expressed a fear that, if not barred by the statute of frauds, some unscrupulous brokers might be tempted to intervene, following a completed transaction between buyer and seller, claiming the right to a commission under an alleged oral contract. Defendant here, like the Toynton-Brown Company in Wing, seeks to retain the commission already in its possession. This distinction is critical since defendant’s possession of the funds eliminates any such potential abuse. It is consistent with the theory of a completed transaction between the parties. Therefore, as indicated by the court’s decision in Wing, there is no policy reason to deny application of the full performance exception to the statute of frauds.

We are somewhat distressed by defendant’s demonstrated lack of business acumen in managing routine matters. It would appear that a prudent mortgage broker would obtain changes and extensions in writing. The statute of frauds is not unduly burdensome in such cases, but, since we are governed by the Supreme Court’s decision in Wing, supra, we are constrained to hold that the trial court erred in granting summary judgment.

Our decision that full performance is an available valid defense is dispositive of this case; we need not address the applicability of the equitable defenses of promissory estoppel and admissions. We especially decline to do so under the facts presented in this particular case which provide a poor vehicle for any extended discussion of equities. The trial court’s entry of summary judgment is vacated and the cause remanded for resolution of the factual dispute pertaining to the alleged modification and extension as pleaded.

Reversed and remanded.


author: Danhof, C.J.

text:
    PEOPLE v ERWIN WILSON
    Docket No. 78-4984.
    Submitted December 5, 1979, at Lansing.
    Decided January 22, 1980.
    Defendant, Erwin C. Wilson, was convicted of unarmed robbery in the Oakland Circuit Court, Steven N. Andrews, J. Defendant Appeals, attacking the racial makeup of the jury and alleging that identification testimony was tainted by a photographic showup prior to his arrest. Held:

    1. Defendant offered no proof of the racial makeup of the county and made no claim of official, racially-motivated slanting of the panel. Both are necessary to the constitutional challenge of a racially unrepresentative jury.
    2. It is proper for the police, prior to arrest, to obtain an identification of a suspect by a witness via a photographic showup rather than corporeal lineup, even where the whereabouts of the suspect are known and there exists probable cause for his arrest. Admission of the identification testimony was proper.
    Affirmed.
    1. Jury — Racial Makeup of Jury — Evidence.
    There must be a showing of the racial makeup of the jury in question, the racial makeup of the county from which the panel was drawn and the fact that racially-motivated officials slanted the panel before a constitutional challenge to the racial makeup of a jury may be sustained.
    2. Criminal Law — Evidence — Identification — Photographic Showup — Corporeal Lineup.
    Testimony showing that a defendant, not in custody, was identified by a witness in a photographic showup prior to arrest was properly admitted at trial; it is proper for the police, prior to arrest, to obtain an identification of a suspect by a witness via a photographic showup rather than corporeal lineup, even where the whereabouts of the suspect are known and there exists probable cause for his arrest.

      References for Points in Headnotes
    [1] 47 Am Jur 2d, Jury §§ 173-176.
    Use of peremptory challenge to exclude from jury persons belonging to race or class. 79 ALR3d 14.
    [2] 21 Am Jur 2d, Criminal Law § 368.
    Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures. 39 ALR3d 1000.

      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.

      James P. Lawson, P.C. (by David M. Lawson), for defendant.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Danhof, C.J.

The defendant was convicted by a jury of unarmed robbery, MCL 750.530; MSA 28.798, and sentenced to imprisonment for a term of 4 to 15 years. He brings this appeal as of right.

The testimony indicates that the victim was placing her children in her car at approximately sunup on January 3, 1978, when a man forced her down on the front seat of her car and threatened to hurt the children if she did not relinquish her purse to him. He took her purse from the rear seat of the automobile and fled.

The victim’s husband witnessed the event from their apartment and, unshod, pursued the robber through the snow to a getaway vehicle. He was able to furnish the police with a license number, which led them to the defendant.

The defendant’s first claim on appeal relates to the racial makeup of the panel from which his jury was drawn. It developed at trial that only 4.4% of the members of that panel were black while, the defendant claimed, the citizenry of the city of Pontiac was approximately one half comprised of blacks.

The defendant does not argue that the panel was not selected in accord with MCL 600.1304; MSA 27A.1304. That statute has successfully met constitutional challenge in People v Sanders, 58 Mich App 512; 228 NW2d 439 (1975). We also note that the defendant failed to offer any proofs regarding the racial makeup of the county from which the panel was drawn and that he failed to prove or even to seriously claim that official, racially-motivated "slanting” of the panel had occurred. Both of these facts are essential to a constitutional challenge of a racially unrepresentative jury. See Castaneda v Partida, 430 US 482; 97 S Ct 1272; 51 L Ed 2d 498 (1977).

Shortly before the defendant’s arrest, the victim of the robbery was shown an array of photographs, from which she picked a picture of the defendant. No attorney was present at this procedure. She identified the defendant at trial and both she and the detective who supervised the identification procedure testified to her choice of the defendant’s photograph from the array. No hearing to determine whether the in-court identification was affected by the exposure to the photographs was held or requested. All the testimony relating to identification passed without objection relative to the photographic showup. The defendant objected at last to introduction of the photographic array.

The defendant argues on appeal, as he did in the trial court in resisting admission of the photographs, that the photographic array shown the victim was suggestive in that the photograph of the defendant was distinguished by a blemish or mark located at the forehead. The prosecutor pointed out that all the photos were blemished in some respect and that the mark on the photograph of the defendant was fortuitous. The trial judge treated the objection as challenging the admission of the photos and the identification testimony as well. Viewing the array, he found that it was not unduly suggestive and that the forehead mark was significant only for its impact on the reliability of the victim’s testimony. The circumstances under which the victim was shown the photographs were revealed in direct and cross-examination.

Pressing this issue on appeal, having apparently made no effort to produce the array for our inspection, the defendant asks this Court to substitute its assessment of the unseen photographs for the informed judgment of the trial court. This we will not do.

The defendant’s second challenge to the identification testimony consists of a claim that the photographic showup should never have been held and that instead the police should have offered the victim a corporeal lineup attended by an attorney representing the defendant.

The evidence shows that the victim’s husband had pursued the robber after the crime and observed the getaway vehicle. His description of that vehicle allowed the police to trace it to its owner, the defendant’s fiancée. A visit to the fiancée’s home revealed that the car was there along with the defendant, who spoke with detective Kluwe at his request. No effort to arrest the defendant was made at this time. After the victim had identified the defendant in the photographic display, detective Kluwe returned to the fiancée’s home and arrested the defendant, apparently without incident. It is the defendant’s contention that he was subject to arrest upon probable cause even before the photographic showup was held and should therefore have been either arrested or asked to appear for a corporeal lineup.

In People v Franklin Anderson, 389 Mich 155; 205 NW2d 461 (1973), our Supreme Court examined the constitutional right to counsel and the problems inherent in lineup and photographic showup identifications by eyewitnesses to crimes. The Court established rules governing the use of photographic showups:

"1. Subject to certain exceptions, identiñcation by photograph should not be used where the accused is in custody.

"2. Where there is a legitimate reason to use photographs for identiñcation of an in-custody accused, he has the right to counsel as much as he would for corporeal identiñcation procedures.” (Emphasis in original.) 389 Mich 155, 186-187.

These rules were reaffirmed in People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and People v Lee, 391 Mich 618; 218 NW2d 655 (1974). In the former case, the Court noted that the Franklin Anderson rule, while closely allied with the right to counsel, was based on the Court’s assessment of the reliability of eyewitness identification and its power to govern the taking of evidence in Michigan courts. 391 Mich 323, 338.

Panels of this Court have discussed the notion that the Franklin Anderson rules may apply not only when a suspect is actually in custody, but also when he is "readily available” for a corporeal lineup. See People v McNeill, 81 Mich App 368; 265 NW2d 334 (1978), People v Hill, 88 Mich App 50; 276 NW2d 512 (1979), and People v Coles, 79 Mich App 255, 262; 261 NW2d 280 (1977). The meaning of ready availability has been variously defined. In People v Hoerl, 88 Mich App 693, 700, n 4; 278 NW2d 721 (1979), a rather restrictive meaning was suggested:

"To the extent that certain cases suggest that defendant is 'readily available’ so long as his whereabouts are known, or, if he has been released on bond pending another charge, e.g., People v Smalls, 61 Mich App 53, 59-60; 232 NW2d 298 (1975), People v Beasley, 55 Mich App 583, 585-586; 223 NW2d 77 (1974), we decline to follow them. In our opinion, unless a defendant can be apprehended, detained, and legally compelled to participate in a corporeal lineup, he is not 'readily available’.”

None of the cases that have discussed the notion of the "readily available” suspect has involved a suspect who was "available” because there existed probable cause for his arrest. Typical of the cases is People v McNeill, supra, in which a suspect who was not in custody was held to be unavailable as well, largely due to his invulnerability to valid arrest. 81 Mich App 368, 377. Thus, while frequently discussed, the "readily available” extension of the Franklin Anderson rule has never been applied or observed in its effect upon an actual police investigation. The case at bar is the first "live” case involving this principle, and provides the heretofore missing opportunity to assess the merits of the idea.

By all appearances, this case was investigated in good faith and in accord with sound police practice. Although detective Kluwe had good reason to suspect that the defendant was the robber after seeing him in the home where the getaway vehicle was found and learning that he was the fiancée of the owner of the vehicle, he took the last careful step of seeking identification by an eyewitness to the crime before going on to arrest the defendant.

It is suggested that detective Kluwe could have asked the defendant to appear voluntarily for a corporeal lineup. Such a request might have been honored. It is also possible that the request would have made the defendant impossible to locate when his arrest was finally sought. The other alternative open to detective Kluwe was to arrest the defendant before he felt that the arrest was warranted, thereby placing the defendant in custody and raising the necessity for a corporeal lineup with counsel present.

An extension of the Franklin Anderson rule to require arrest and corporeal lineup in a case such as this would pressure police, who wish to have their circumstantial evidence against a suspect confirmed by an eyewitness to the crime, to arrest the suspect as soon as they estimate that their evidence provides probable cause to do so. This pressure would have the highly undesirable effect of increasing the incidence of premature and unjustified arrest. Persons suspected of involvement in crime are the obvious victims of such an increase; even in cases in which there is probable cause to arrest, photographic showups may prove the suspicion to be misplaced and thus save the suspect from the inconvenience of arrest. The injury to the public’s interest in the apprehension of offenders is also considerable. An arrest made upon insufficient cause can lead to the permanent suppression of valuable evidence. The suspect, when released, will be forewarned and is likely to remove the evidence or himself from the jurisdiction.

Suspects might fear that, if the authorities are free to use photographic showups when the subject of an investigation could be arrested and the more reliable corporeal lineup employed, arrests will be postponed in hope of gaining an identification from a suggestive photographic array. This fear rests upon a very insubstantial foundation. The suggestive array is itself violative of due process, and every defendant has a remedy for such improper procedures. See Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968), and Franklin Anderson, supra, 167-170. In any event, there is in this case no sign of improper police activity that would call the photographic showup into question.

We believe that the actions of the police in this investigation were not improper ánd should not be restricted by an extension of the Franklin Anderson rule. We decline to apply that rule to upset this conviction. There being no fault in the pretrial identification procedures, the identification testimony was properly admitted.

The defendant’s contention that the victim was allowed to view and identify him under unduly suggestive circumstances at the preliminary examination is without merit. See People v Solomon, 391 Mich 767; 214 NW2d 60 (1974), People v Belenor, 71 Mich App 10; 246 NW2d 355 (1976).

We have reviewed the defendant’s remaining claims of error and find that they are without merit.

Affirmed.

       Because the issues the defendant has raised with respect to the identification procedures employed in this case touch upon his rights to due process and assistance of counsel, we review them despite his far-from-adequate preservation of the claim by action in the trial court. See People v Metcalf, 65 Mich App 37; 236 NW2d 573 (1975).

       This case also lacks the special circumstances that produced the result in People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972), an unusual case involving the right to counsel rather than the threshold issue involved here.


author: T. M. Burns, P.J.

text:
    PEOPLE v WINGO
    Docket No. 78-4994.
    Submitted November 14, 1979, at Lansing.
    Decided January 22, 1980.
    Leave to appeal applied for.
    Cletus T. Wingo, an inmate at Jackson State Prison, was convicted of assaulting a prison guard, Jackson Circuit Court, Russell E. Noble, J. Defendant appeals. On appeal defendant contends the escape and assault statute applies to jails and not to assaults on prison guards and that the statute violates the title-object clause of the Michigan Constitution. Held:

    1. The escape and assault statute provides that "a person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place” who assaults an employee is guilty of a felony. This statute applies not only to jails, as defendant contends, but also to state prisons which are "places of confinement established by law for any term”.
    2. Defendant’s contention that the statute under which he was convicted violates the title-object clause of the Michigan Constitution is unpersuasive. A court is not bound by the chapter title or section caption of a statute but by the title of the particular act. The escape and assault statute does not embrace an object that is not expressed in the title of the act, therefore, there is no constitutional violation of the title-object rule. The fact that the statute defines more than one crime,, prison assault and prison breaking, does not mean that this section contains more than one object. The Legislature is free to amend a statute by including any new legislation that is germane, auxiliary or incidental to the statute.
    Affirmed.
    1. Statutes — Construction — Legislative Intent — Judicial Interpretation.
    Courts are obliged to follow the manifest intent of the Legislature and where the Legislature makes its intent known in the clear, explicit language of a statute, judicial interpretation of the statute is unnecessary and the statute will be applied as written.

      References for Points in Headnotes
    [1, 2] 73 Am Jur 2d, Statutes § 194.
    [3] 73 Am Jur 2d, Statutes §§ 119-121.
    [4] 73 Am Jur 2d, Statutes § 130.

      2. Statutes — Prisons — Jails — Prison Employees — Assault and Battery — Legislative Intent — Judicial Interpretation.
    The legislative intent, expressed in a statute which provides that a person lawfully imprisoned in a jail or other place of confinement established by law for any term who assaults an employee of the place of confinement is guilty of a felony, is clear; the statute applies not only to jails but also to state prisons which are places "of confinement established by law for any term” (MCL 750.197c; MSA 28.394[3]).
    3. Constitutional Law — Statutes — Single Object.
    The purpose of the constitutional provision that no law shall embrace more than one object, which shall be expressed in its title, is to prevent the Legislature from passing laws not fully understood and to avoid bringing into one bill subjects diverse in nature and having no necessary connection; in determining whether there has been a constitutional violation a court is not bound by the chapter title nor the section caption of the statute but by the title of the particular act and there is no violation where the legislation does not embrace an object that is not expressed in the title to the act (Const 1963, art 4, § 24).
    4. Statutes — Constitutional Law — Criminal Law — Single Object — Amendments — New Legislation.
    A statute may define more than one crime without violating the constitutional prohibition against a law containing more than one object because the Legislature is free to amend a statute by including any new legislation that is germane, auxiliary or incidental to the statute.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.

      Before: T. M. Burns, P.J., and Cynar and A. M. Bach, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   T. M. Burns, P.J.

Defendant-appellant Cletus Tyrone Wingo appeals of right his August 1, 1978, jury conviction of assaulting a prison employee. MCL 750.197c; MSA 28.394(3). On August 17, 1978, defendant was sentenced to a term of two years, eight months to four years imprisonment to be served consecutively with the sentence that defendant was serving at the time of the assault. We affirm.

We reject defendant’s argument that MCL 750.197c; MSA 28.394(3), does not apply to assaults on prison guards. In pertinent part, that statute provides:

"A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place * * * for a crime or oifense, or charged with a crime or offense who, without being discharged from the place of confinement, or other lawful imprisonment by due process of law, through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian * * * is guilty of a felony.”

In construing statutes of this state, this Court must follow the manifest intent of the Legislature. MCL 8.3; MSA 2.212. On numerous occasions in the past this Court has held that where the Legislature makes its intent known in the clear, explicit and unambiguous language of a statute, judicial interpretation of the statute is unnecessary and the statute will be applied as written. Cronin v Minster Press, 56 Mich App 471; 224 NW2d 336 (1974), Busha v Dep’t of State Highways, 51 Mich App 397; 215 NW2d 567 (1973), Lake Twp v Sytsma, 21 Mich App 210; 175 NW2d 337 (1970). See also, General Motors Corp v Erves (On Rehearing), 399 Mich 241; 249 NW2d 41 (1976).

It is our opinion that this statute applies not only to jails, as defendant contends, but also to state prisons, which are places "of confinement established by law for any term”.

Defendant also argues that even if the statute was properly applied to him that his conviction under it must be reversed because the statute violates the title-object clause of the Michigan Constitution. Const 1963, art 4, § 24. We have considered defendant’s argument and we are not persuaded by it. In People v Carey, 382 Mich 285, 296; 170 NW2d 145 (1969), the Supreme Court discussed the predecessor version of Article 4, § 24 and found that its purpose:

"was to prevent the legislature from passing laws not fully understood and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection. It was intended that the legislature, in passing law, should be fairly notified of its design and that the legislature and public might understand from the title that only provisions germane to the expressed object would be enacted.”

Defendant contends that the statute under which he was prosecuted must be examined in light of the title of the penal code chapter in which it is found. Section 197c of the Michigan Penal Code is found in Chapter XXXII of the code, which is entitled, "Escapes, Rescues, Jail and Prison Breaking”. However, it is neither to the chapter title nor to the section caption on this statute, "Jail or other place of confinement; assault of employee or custodian, or break and escape, penalty” that we look to determine whether this statute violates the Michigan Constitution. Rather, the "title” to which Const 1963, art 4, § 24, applies is the title to the Michigan Penal Code. People v Ferguson, 60 Mich App 302, 306; 230 NW2d 406 (1975), lv den 396 Mich 857 (1976). The title to the Michigan Penal Code reads:

"AN ACT to revise, consolidate, codify and add to the statutes relating to crimes; to define crimes and prescribe the penalties therefore; to provide for the competency of evidence at the trial of persons accused of crime; to provide immunity from prosecution for certain witnesses appearing at such trials; and to repeal certain acts and parts of acts inconsistent with or contravening any of the provisions of this act.”

Section 197c of the penal code does not embrace an object that is not expressed in this title.

We also hold that the statute does not contain more than one object. This section of the penal code proscribes the "use of violence, threats of violence or dangerous weapons” to knowingly assault a prison employee, to break the place of confinement and escape, or to break the place of confinement although escape is not actually made. The fact that this statute defines more than one crime, prison assault and prison breakings, does not mean that this section contains more than one object. The Legislature is free to amend a statute by including any new legislation that is "germane, auxiliary or incidental” to that statute. People v Milton, 393 Mich 234, 241; 224 NW2d 266 (1974), Detroit Board of Street Railway Commissioners v Wayne County, 18 Mich App 614; 171 NW2d 669 (1969).

Affirmed.

       See Const 1908, art 5, § 21.

       MCL 8.4b; MSA 2.215 provides: "The catch line heading of any section of the statutes that follows the act section number shall in no way be deemed to be a part of the section or the statute, or be used to construe the section more broadly or narrowly than the text of the section would indicate, but shall be deemed to be inserted for purposes of convenience to persons using publications of the statutes.”


text:
    WATERFORD ASSOCIATION OF EDUCATIONAL SECRETARIES v WATERFORD SCHOOL DISTRICT
    Docket No. 43173.
    Submitted November 21, 1979, at Detroit.
    Decided January 23, 1980.
    Leave to appeal denied, 408 Mich 955.
    Waterford Association of Educational Secretaries brought an action against Waterford School District and the Board of Education for Waterford School District to enforce two arbitration awards issued in plaintiffs favor. The awards were issued under the authority of an alleged agreement to arbitrate entered into between the parties during an interim period between collective bargaining agreements. Oakland Circuit Court, Stephen N. Andrews, J., refused to enforce the awards, finding that no such agreement had been reached between the parties and that, therefore, the arbitrators were without jurisdiction to issue the awards. The plaintiff appeals. Held:

    The trial court was not faced with the question of the arbitrability of the particular dispute under the terms of an arbitration clause, but was faced with the question of the very existence of an arbitration agreement. The trial court correctly relied on the rule that an arbitrator’s decision cannot take precedence over a judicial finding that no agreement to arbitrate was extant. The trial court’s determination that no arbitration agreement was ever entered into is supported by the record and was not clearly erroneous. In the absence of an agreement to arbitrate, the arbitrators acted without jurisdiction. The trial court properly denied enforcement of the awards.
    Affirmed.
    1. Arbitration and Award — Agreement to Arbitrate — Courts.
    The decision of an arbitration panel does not take precedence over a judicial finding that no agreement to arbitrate was extant.
    2. Arbitration and Award — Contracts.
    Arbitration is a matter of contract and a party cannot be required to arbitrate an issue which it has not agreed to submit to arbitration.

      Reference for Points in Headnotes
    [1-3] 5 Am Jur 2d, Arbitration and Award § 15.

      3. Arbitration and Award — Contracts — Jurisdiction op Arbitrators.
    The jurisdiction of an arbitrator to act arises entirely from an arbitration agreement or an arbitration clause in a contract; therefore, a finding of no arbitration agreement effectively precludes the power or jurisdiction of an arbitrator to act.

      Hiller, Howard, Larky & Hoekenga (by Daniel J. Hoekenga and Marc M. Sassman), for plaintiff.

      Clark, Hardy, Lewis, Fine & Asher, P.C. (by William G. Albertson), for defendants.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   M. J. Kelly, J.

Plaintiff Waterford Association of Educational Secretaries brought this action to enforce two arbitration awards issued in its favor against defendant Waterford School District. These awards were issued under the authority of an alleged agreement to arbitrate entered into between the parties during an interim period between collective bargaining agreements. The trial court refused to enforce the awards. It found that no such agreement had been reached between the parties and, therefore, the arbitrators were without jurisdiction to issue the awards. Plaintiff appeals as of right.

Plaintiff advances a persuasive argument regarding the limited authority of any court to overturn an arbitration award. Plaintiff’s argument is specifically directed to the propriety of judicial review of an arbitrator’s decision as to the arbitrability of the subject grievances. When the trial court reviews such a decision by the arbitrators, proof that the panel’s findings were authorized by the terms of the collective bargaining agreement is sufficient to preclude judicial review of the award.

The present case, however, presents a fundamentally different inquiry. When plaintiff’s grievances arose, the defendant board of education was notified of plaintiff’s intent to submit the dispute to arbitration. Defendant responded by denying that there was any agreement between the parties to arbitrate disputes that arose during contract negotiations. Similarly, defendant notified the American Arbitration Association that it would not participate in arbitration proceedings in the absence of any binding agreement with plaintiff to resolve disputes in this manner. Subsequently, an ex parte hearing resulted in awards to plaintiff. Thus, the trial court was not faced with the question of the arbitrability of the particular dispute under the terms of the arbitration clause; rather, the court addressed the threshold question of the very existence of an arbitration agreement. It is only when this preliminary inquiry results in a finding that an existing arbitration clause governs grievance settlement that the court may proceed to a limited review of the panel’s award. See E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221; 230 NW2d 556 (1975). Here, the trial court correctly relied on the rule set forth in John Wiley & Sons, Inc v Livingston, 376 US 543, 547; 84 S Ct 909; 11 L Ed 2d 898 (1964), that an arbitrator’s decision cannot take precedence over a judicial finding that no agreement to arbitrate was extant. The Supreme Court stated:

"The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all.” (Emphasis added.)

Michigan follows this rationale, as exhibited by Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975), in which the Court held:

"Arbitration is a matter of contract. A party cannot be required to arbitrate an issue which he has not agreed to submit to arbitration.” (Footnotes omitted.)

Thus, the authority exercised by the trial court was not beyond its power to act. In effect, the trial court was determining whether an agreement to arbitrate existed, rather than the scope of an arbitration clause or merits of the particular case.

The jurisdiction of an arbitrator to act arises entirely from the arbitration agreement or arbitration clause. Therefore, a finding of no arbitration agreement effectively precludes the power or jurisdiction of an arbitrator to act. Stowe v Mutual Home Builders Corp, 252 Mich 492; 233 NW 391 (1930), Smith v Highland Park Board of Education, 83 Mich App 541; 269 NW2d 216 (1978). A lack of jurisdiction was recognized by this Court as a basis for attack of an arbitration award in Brown v Holton Public Schools, 62 Mich App 328; 233 NW2d 274 (1975), vacated on other grounds 397 Mich 71; 243 NW2d 255 (1976). Similarly, a lack of jurisdiction is the basis for the trial court’s refusal to enforce the arbitration awards in the present case.

The scope of appellate review here is limited to a determination of whether the findings of fact below were clearly erroneous. The trial court’s factual determination that no arbitration agreement was ever entered into is supported by the record and was not clearly erroneous under the interpretation of GCR 1963, 517.1 enunciated in Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976).

In the absence of an agreement to arbitrate, the arbitrators acted without jurisdiction. Thus, the trial court properly denied enforcement of the awards.

Affirmed.


author: D. C. Riley, J. Danhof, C.J.

text:
    ANDERSON v SELMA TOWNSHIP
    Docket No. 43226.
    Submitted October 2, 1979, at Lansing.
    Decided January 23, 1980.
    Leave to appeal denied, 408 Mich 946.
    The township .board of Selma Township, Wexford County, approved a special assessment roll in January, 1977, for certain public improvements. In January, 1978, Ester Anderson and other property owners who opposed the special assessments brought an action in Wexford Circuit Court, seeking injunctive relief. The action was dismissed for lack of jurisdiction. In June, 1978, the property owners petitioned the Tax Tribunal for relief from the special assessments placed against their property. The Tax Tribunal granted the township’s motion for accelerated judgment, finding that the filing of the petition before the tribunal was not timely. The petitioners appeal. Held:

    1. A petition for review of a special assessment is to be filed with the Tax Tribunal within 30 days of confirmation of the special assessment roll.
    2. On the present record it cannot be concluded that the confirmation of the special assessment roll was valid with respect to the petitioners, as they have alleged that they never received notice of the hearings at which the roll was accepted by the township board. If they did not, in fact, receive such notice, they may challenge the assessments on their property.
    Remanded for further findings as to the finality of the January, 1977, confirmation of the roll and as to the satisfaction of statutory notice requirements by the township.
    Danhof, C.J., dissented. He would hold that a remand to determine whether the statutory notice requirements were met is not necessary. The township is required only to mail notice of special assessment hearings to the affected property owners; receipt of the notice is not required. Therefore, an allegation of nonreceipt of notice is not sufficient to avoid the limitation period for filing a petition for review. He would affirm.

      References for Points in Headnotes
    [1] 70 Am Jur 2d, Special or Local Assessments § 154 et seq.

    [2] 70 Am Jur 2d, Special or local Assessments § 133 et seq.

    [3, 5] 70 Am Jur 2d, Special or Local Assessments § 146 et seq.

    [4] 58 Am Jur 2d, Notice §§ 22, 27.
    70 Am Jur 2d, Special or Local Assessments § 149.

      Opinion of the Court
    1. Taxation — Special Assessments — Tax Tribunal — Assessment Disputes — Statutes.
    A dispute regarding a special assessment is not an "assessment dispute” as that term is used in the statute governing the time for appeal of a matter to the Tax Tribunal; therefore, a petition for review of a special assessment roll must be filed within 30 days of the confirmation of the roll (MCL 205.735[3]; MSA 7.650[35][3]).
    2. Taxation — Special Assessments — Notice of Hearing — Statutes.
    Failure of a county clerk to give both personal notice and notice by publication of a hearing at which confirmation of a special assessment is to take place does not invalidate the entire assessment but will only affect the special assessment on property where the owners or party in interest in the property do not receive notice (MCL 41.724a, 41.726; MSA 5.2770[54a], 5.2770[56]).
    3. Taxation — Special Assessments — Notice of Hearing — Receipt of Notice.
    A property owner’s claim that personal notice of a special assessment hearing was never received is sufficient to allow the owner to challenge the special assessment on his property before the Tax Tribunal.
    Dissent by Danhof, C.J.
    4. Taxation — Special Assessments — Notice of Proceedings — Mailing of Notice — Statutes.

      The duty of a township to give notice of special assessment proceedings to owners of property to be assessed is discharged upon the act of mailing notice pursuant to statute; the controlling statute does not require receipt of notice (MCL 41.724a; MSA 5.2770[54a]).

      5. Taxation — Special Assessments — Notice of Hearing — Receipt of Notice — Statutes.

      An allegation of nonreceipt of notice of a special assessment hearing is not sufficient to avoid the statutory 30-day limitation period for petitioning■ the Tax Tribunal for review of a special

      assessment; a person wishing to challenge a duly conñrmed assessment must allege a failure to mail the notice to him pursuant to statute (MCL 41.724a; MSA 5.2770[54a]).

      Brown & Winckler, for petitioners.

      Clary, Nantz, Wood, Hoíñus, Rankin & Cooper (by Richard A. Wendt), for respondent.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   D. C. Riley, J.

At a regular meeting held December 3, 1976, the Selma Township Board adopted a resolution to authorize the construction of certain public improvements. The board directed that a special assessment district be established and ordered the township supervisor to prepare a special assessment roll for the approved district. January 8, 1977, was set as the date when the township board would meet to hear and consider any objection to the special assessment roll.

Zane A. Vogt, township clerk, alleges in an affidavit that on December 27, 1976, pursuant to the board’s directive and MCL 41.724a; MSA 5.2770(54a), MCL 41.726; MSA 5.2770(56), he mailed notice of the meeting to each owner of or interested party in property to be assessed, whose name appeared on the township’s last tax assessment record. He also published a notice in a local newspaper on December 20 and 27, 1976. Despite these efforts, however, members of the Sewer Assessment Protesters of Selma, plaintiffs herein, state by affidavit that they never received any personal notice.

Following a public hearing on January 8, 1977, the township board unanimously approved the special assessment roll. Plaintiffs allege that the roll was continuously altered throughout the year. On October 7, 1977, the board met at a regularly scheduled township meeting and again unanimously accepted the sewer assessment roll. The following month, the board met and voted to take the current sewer assessment procedure under advisement. On December 2, 1977, the board voted to confirm the assessment procedure. Plaintiffs allege that no notice of this meeting was ever given.

On January 6, 1978, the property owners brought suit in the Wexford County Circuit Court, seeking injunctive relief. The circuit court dismissed, for lack of subject matter jurisdiction, pursuant to MCL 205.731; MSA 7.650(31).

On June 30, 1978, plaintiffs petitioned the Michigan Tax Tribunal for relief. The tribunal granted defendant’s motion for accelerated judgment, finding that plaintiffs had failed timely to file a petition before the tribunal pursuant to MCL 205.735(3); MSA 7.650(35X3), MCL 41.726; MSA 5.2770(56). Plaintiffs appeal this order.

As of July 1, 1974, the Michigan Tax Tribunal has original and exclusive jurisdiction to review a special assessment determination, MCL 205.731(a); MSA 7.650(31)(a). The pertinent statute governing the time for appeal states:

"(3) Beginning January 1, 1977, the jurisdiction of the tribunal in an assessment dispute shall be invoked by the filing of a written petition by a party in interest, as petitioner, not later than June 30 of the tax year involved. In all other matters the jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which the petitioner seeks to review.” MCL 205.735(3); MSA 7.650(35X3).

In the instant case, the Michigan Tax Tribunal concluded that the plaintiffs’ claim was barred as untimely filed. To decide if this ruling was correct, it must be determined whether a special assessment roll qualifies as "an assessment dispute” subject to the June 30 filing deadline or whether it falls within the 30-day rule. This issue has been recently resolved by this Court in Sisbarro v City of Fenton, 90 Mich App 675, 679-680; 282 NW2d 443 (1979), wherein it was held that special assessments are subject to the 30-day rule.

Assuming that the Selma Township Board validly confirmed the special assessment on January 8, 1977, plaintiffs have failed to file a timely appeal. Plaintiffs did not attempt to invoke the jurisdiction of the tribunal until June 30, 1978, well beyond the 30-day period.

However, based on the record, we are unable to conclude that the January 8, 1977, confirmation was valid with respect to the plaintiffs. In order to have a legitimate ratification, the county clerk is required to give both personal notice and notice by publication of the special assessment hearing at which the confirmation will take place. Failure to do so will not invalidate the entire assessment, but will only affect the assessment on property where the owners or interested party did not receive notice. MCL 41.724a; MSA 5.2770(54a), MCL 41.726; MSA 5.2770(56).

In the present case, plaintiffs’ claim that they never received personal notice of the special assessment hearing, if believed, is sufficient to challenge their individual assessments. The township clerk states by way of affidavit that such notice was mailed. The Michigan Tax Tribunal’s order did not resolve this dispute, nor did it indicate whether the issue of notice had even been considered. Further, there was no discussion on whether confirmation actually occurred on January 8, 1977, or whether, due to subsequent alteration, ratification did not take place until a later meeting for which notification may never have been given.

In the absence of a ruling on the validity of the January 8, 1977, confirmation, we are unable to conclude whether the statute of limitations has been met. We remand this case to the Michigan Tax Tribunal for a more particularized explanation as to the finality of the January 8, 1977, confirmation and the satisfaction of statutory notice requirements.

If the special assessment was validly confirmed in 1977, then the jurisdiction of the tribunal was not timely invoked. If it was never so confirmed, then the plaintiffs have 30 days after the special assessment roll is approved to appeal the special assessments levied against their properties.

Remanded for further proceedings consistent with this opinion.

We retain no further jurisdiction.

No costs, a public issue being involved.

N. J. Kaufman, J., concurred.

Danhof, C.J.

(dissenting). I cannot agree with the majority that a remand is necessary to determine whether the statutory notice requirements were met. I believe that the majority misreads the notice requirements when it holds that plaintiffs’ allegation of "no personal notice” is sufficient to challenge their individual assessments.

MCL 41.726; MSA 5.2770(56) provides for notice by publication (which is not in issue here) and for the notice required by MCL 41.724a; MSA 5.2770(54a). The latter section provides:

"Notice of hearings in special assessment proceedings shall be given to each owner of, or party in interest in property to be assessed, whose name appears upon the last township tax assessment records, by mailing by ñrst class mail addressed to the owner or party at the address shown on the tax records, at least 10 days before the date of the hearing.” (Emphasis added.)

I believe that the township’s duty of giving notice under this section is discharged upon the act of mailing notice. This section does not require receipt of the notice.

The receipt requirement read into the statute by the majority would place an impossible burden upon an assessing township: no special assessment could ever be final unless a township could prove that each affected individual received "personal notice”. Under today’s holding an individual need only allege that notice was not received in order to escape the statute of limitations and challenge a duly confirmed assessment. In order to ensure finality, a township would have to have each affected person "personally” served with notice and a sworn return available for proof. This result could not have been contemplated when the Legislature required notice "by mailing by first class mail * *

A conclusion that only mailing is required is supported by MCL 41.724a(4); MSA 5.2770(54a)(4). It states, in part: "The method of giving notice by mail as provided in this section is declared to be the method that is reasonably certain to inform those to be assessed of the special assessment proceedings.” (Emphasis added.)

Subsection (5) is also consistent with this reading: "Failure to give notice as required in this section shall not invalidate an entire assessment roll but only the assessment on property affected by the lack of notice.” (Emphasis added.) The giving of notice as required in this section is, again, mailing by first class mail.

Therefore, I conclude that an allegation of no receipt is not a sufficient challenge; an individual must allege a failure to meet the statutory requirements, Le., a failure to mail notice to him.

Plaintiffs do not state a claim sufficient to challenge the validity of the confirmation: They admit in paragraph 8 of their petition to the Tax Tribunal that notice of the January 8, 1977, public meeting was published in a local newspaper and mailed by ñrst class mail. Further, defendant has submitted the affidavit of its clerk to the effect that such notice was duly mailed and published. Since plaintiffs’ claim of "no receipt” is insufficient to challenge the statutory notice requirements of the confirmation, their petition, filed some 17 months after the confirmation, was not timely.

I would affirm the Tax Tribunal’s order granting defendant accelerated judgment.

       MCL 41.724a; MSA 5.2770(54a) reads in part as follows:
      "Sec. 4a. (1) Where special assessments are made against property, notice of hearings in the special assessment proceedings shall be given as provided in this section in addition to any notice of the hearings to be given by publication or posting as required elsewhere in this act.
      "(2) Notice of hearings in special assessment proceedings shall be given to each owner of, or party in interest in property to be assessed, whose name appears upon the last township tax assessment records, by mailing by first class mail addressed to the owner or party at the address shown on the tax records, at least 10 days before the date of the hearing. The last township tax assessment records means the last assessment roll for ad valorem tax purposes which was reviewed by the township board of review, as supplemented by any subsequent changes in the names or addresses of the owners or parties listed thereon.
      "(3) Where a person claims an interest in real property whose name and correct address do not appear upon the last township tax assessment records, he shall be obligated to file immediately the name and address with the township supervisor. This requirement shall be deemed effective only for the purpose of establishing a record of the names and addresses of those persons entitled to notice of hearings in special assessment proceedings. It shall be the duty of the supervisor to immediately enter on the tax assessment records any changes in the names and addresses of owners or parties in interest filed with him and at all times to keep the tax assessment records current and complete and available for public inspection.
      "(4) A township officer whose duty is to give notice of hearings in special assessment proceedings may rely upon the last township tax assessment records in giving notice of hearing by mail. The method of giving notice by mail as provided in this section is declared to be the method that is reasonably certain to inform those to be assessed of the special assessment proceedings.
      "(5) Failure to give notice as required in this section shall not invalidate an entire assessment roll but only the assessment on property affected by the lack of notice. A special assessment shall not be declared invalid as to any property if the owner or the party in interest thereof actually received notice, waived notice, or paid any part of the assessment. If an assessment is declared void by court decree or judgment, a reassessment against the property may be made.”