author: Bashara, P.J.

text:
    DETROIT BANK & TRUST COMPANY v COOPES
    Docket No. 78-4841.
    Submitted June 19, 1979, at Detroit.
    Decided November 6, 1979.
    Leave to appeal applied for.
    Detroit Bank & Trust Company and Bennett L. Nathan are the co-executors of the estate of George G. Mantho, a deceased attorney. They entered into an agreement with Robert L. Coopes under which Coopes was to purchase the law practice of Mantho. A portion of the agreement provided that Coopes was to pay to the estate 20 percent of "all funds received by him pursuant to retainers presently on the books” for a period of four years. Less than a year later, Coopes ceased making further payments to the estate, claiming that all of the decedent’s work had been completed and the retainers ended. The executors brought an action to recover amounts they claim are still due to the estate. The Oakland Circuit Court, William J. Beer, J., held that the contract was valid in its entirety and awarded plaintiffs 20 percent of an amount representing fees and reimbursed expenses from any client for which the deceased had ever opened a file. The defendant appeals. Held:

    1. The contract was valid. There was no transfer of good will, which would have invalidated the agreement under the Code of Professional Responsibility. The formula worked out by the parties was a reasonable method of compensating the estate for past services rendered by the deceased, under the facts of this case.
    2. The defendant offered parol evidence to show that the contract was ambiguous as to the meaning of "retainers on the books” and "funds”. The trial court excluded the proffered parol evidence. The defendant’s proposed meanings of the terms were not inconsistent with the written contract language, and the parol evidence was admissible.
    3. "Retainers on the books” means oral or written retainer contracts existing at the time the contract was signed.
    4. "Funds” includes fees and only that portion of reimbursed expenses which constitutes contribution to fixed overhead expenses.

      References for Points in Headnotes
    [1] 7 Am Jur 2d, Attorneys at Law § 225.
    [2] 17 Am Jur 2d, Contracts § 77.
    [3] 17 Am Jur 2d, Contracts § 254.

      Remanded.
    1. Attorney and Client — Disciplinary Rules — Deceased Attorney — Compensation of Estate — Good Will.
    A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; however, the estate is not entitled to any good will generated by the law practice (Code of Professional Responsibility and Canons, Canon 3, DR 3-102[A][2]).
    2. Evidence — Contracts — Parol Evidence — Admissibility.
    The test for admissibility of parol evidence in a contract dispute is whether the proffered parol evidence is inconsistent with the written language of the contract; if not, the parol evidence is admissible.
    3. Contracts — Construction — Illegal Contracts.
    A contract will not be construed so as to make it illegal if such a construction can be reasonably avoided.

      Watson & Wunsch, P.C., for plaintiffs.

      Mclnally, Brucker, Newcombe, Wilke & DeBona, P.C. (by Wilber M. Brucker, Jr., and Wayne G. Wegner), for defendant.
    Before: Bashar A, P.J., and R. M. Maher and J. C. Daner, JJ.

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

   Bashara, P.J.

Defendant appeals from a judgment in favor of plaintiffs, the co-executors of the estate of George Mantho, deceased. The defendant, an attorney, and the co-executors entered into an agreement to purchase the law practice of the decedent.

The only disputed area of the contract is that portion intended to compensate decedent’s estate for services rendered but not billed at the time of his death. The applicable section provides, in pertinent part:

"Robert L. Coopes does agree to pay * * * to the Corporation an amount equal to Twenty (20%) percent of all funds received by him pursuant to the retainers presently on the books of Law Offices George Gregory Mantho Professional Corporation and this payment shall continue for a period of four (4) years from the date hereof. Additionally, this shall include those retainers which have not been specifically cancelled.” (Emphasis in original.)

The above formula was developed because the decedent specialized in labor negotiation, with the bulk of his practice on a written or oral retainer.

There was a general failure to keep basic time records of work performed. Consequently, there appeared to be little correlation between monthly retainer billings and the work actually performed.

Before the contract was finalized, counsel for the State Bar Grievance Board was consulted. While he made it clear that his advice did not constitute the official position of the Grievance Board, his suggestion that the parties use the word "retainers” rather than the word "clients” was adopted. The reasoning of counsel was that under the Code of Professional Responsibility, an attorney’s fiduciary relationship with a client could not be sold.

The contract was signed by the parties on August 15, 1973, and defendant commenced work at decedent’s office on September 1, 1973. The defendant discontinued making payments to the estate in May of 1974, well before the specified four-year period. He claimed that all decedent’s work had been completed and retainers ended. He acknowledged that 20% of $77,283.34, or $15,456.67, was still due to the estate.

The trial judge, in a thorough and well written opinion, held the contract valid in its entirety, and awarded plaintiffs 20% of $641,458.32, or $128,291.66. In arriving at the gross figure, the court included reimbursed expenses as well as fees.

During the course of the proceedings, the trial court did not allow defendant to introduce parol evidence. However, the learned trial judge allowed a special record of the proffered evidence to be kept for purposes of review.

Three questions are presented for resolution, and will be dealt with seriatim.

I

Was the "Work Completed” section of the contract valid in light of the Code of Professional Responsibili ty?

The interpretation of DR 3-102(A)(2) of the Code of Professional Responsibility is one of first impression. The applicable portion of that section provides:

"(A) a lawyer or law firm shall not share legal fees with a non-lawyer, except that * * * (2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.”

The negative corollary to DR 3-102(A)(2) is that the estate is not entitled to any good will generated by the law practice. Good will is here defined as the value assigned to the expectation of future business. Presumably, the transfer of good will would result in higher fees being charged to clients in order to compensate the attorney for his purchase of that commodity. The prohibition of the sale of good will also prevents the estate from selling the law practice to the highest bidder.

The validity of the contract under DR 3-102(A)(2) depends on whether there was an attempted transfer of good will by the estate. We hold that there was no transfer of good will.

Because the decedent did not keep time records of his work performed, the parties had no alternative but to estimate the value of his services. Defendant, who proposed the contract, agreed to pay 20% of retainers on the books over a four-year period. There is nothing in the record to indicate that this was not a reasonable method of compensating the estate. Indeed, as evidenced by their meeting with counsel for the Grievance Board, the parties appeared to be extremely sensitive to the ethical considerations involved.

Defendant argues that all work undertaken by decedent had been completed by May 1974, and that all retainers had ended. Defendant contends that to give the estate 20% of retainers which he renewed would violate DR 3-102(A)(2).

Allowing the estate 20% of renewed retainers does not violate DR 3-102(A)(2) because the formula was merely a way of compensating the estate for past services performed by decedent. It is reasonable to assume that amounts collected by defendant from September 1, 1973, to May 1974 on retainers executed by the decedent represented more than compensation to the defendant for work performed. Paying the estate over a four-year period represented a form of installment payments. The rule of construction that a contract will be strictly construed against the drafter needs no citation.

In holding that the above agreement does not violate DR 3-102(A)(2), we do not impose a general rule. Courts faced with similar agreements must analyze them on a case-by-case basis and construe them in light of the broad policy against the transfer of good will.

II

Did the trial judge properly exclude the parol evidence offered by the defendant?

Our examination of the record indicates that the evidence should have been admitted. The test for its admissibility in Michigan "is whether the proffered parol evidence is inconsistent with the written language”, Union Oil Co of California v Newton, 397 Mich 486, 488; 245 NW2d 11 (1976), NAG Enterprises, Inc v All State Industries, Inc, 85 Mich App 194, 199; 270 NW2d 738 (1978).

Defendant offered the parol evidence to show that the work completed section was ambiguous with regard to the meaning of "retainers on the books” and "funds”. Defendant claimed that "retainers on the books” meant retainers for which either a written or oral agreement had been reached with clients. Defendant claimed that "funds” did not include reimbursed expenses. Neither of defendant’s proposals is inconsistent with the written contract language.

The trial judge concluded that "retainers on the books” meant clients for whom decedent had ever opened a file. Black’s Law Dictionary (4th ed), p 1479, defines "retainer” as the "Act of the client in employing his attorney or counsel, and also denotes the fee which the client pays when he retains the attorney to act for him, and thereby prevents him from acting for his adversary”. (Citations omitted.) The definition of "retainer” as found in Black’s Law Dictionary is clearly more restrictive than the definition applied by the trial court. Of course, the parties could themselves agree to a liberal definition of the word "retainer”, and there is evidence in the record that they did agree to a different definition, since the original draft of the agreement used the word "clients” instead of "retainers”. Indeed, the parties employed the word "retainers” at the suggestion of Grievance Board counsel to avoid ethical improprieties. However, in order for the word "retainer” to encompass "clients”, the trial judge would have to use parol evidence to take into account the preformation draft and discussions.

With respect to the use of the word "funds”, the defendant’s claim that "funds” does not include reimbursed expenses is not inconsistent and parol evidence was admissible for clarification.

Ill

Did the trial judge properly interpret the contract?

Defendant claims that the trial judge erred in interpreting the phrase "retainers currently on the books” as encompassing any client for which the Mantho office had ever opened a file. We agree. In making this determination, we are guided by the rule of construction that a contract will not be construed so as to make it illegal if such construction can be reasonably avoided. Millen v Potter, 190 Mich 262, 273; 157 NW 101 (1916). The parties specifically changed the word "clients” in the initial contract draft to the word "retainers”. If defendant had purchased "clients”, there is a high likelihood that the contract would be void as against public policy.

"Clients are not merchandise. Lawyers are not tradesmen. They have nothing to sell but personal service. An attempt therefore, to barter in clients, would appear to be inconsistent with the best concepts of our professional status.” Committee on Professional Ethics of the New York County Lawyers’ Association, Opinion 109 (1943).

We hold in accordance with the plain meaning of the contract that "retainers on the books” means oral or written retainer contracts existing as of the time the contract was signed.

The contract also provided for payment by the defendant of 20% of all "funds” received by him pursuant to retainers. The trial court held that "funds” includes reimbursed expenses. The question is significant because one of decedent’s retainer clients, National Steel Carriers Association, had reimbursed costs over the four-year period of $184,562.37. The National Steel Carriers’ contract was unique in that the reimbursed expenses, pursuant to a special billing arrangement, included amounts for fixed overhead of the Mantho office. Ordinarily, reimbursed expenses are for variable or out-of-pocket expenses such as filing fees and travel expenses. The record indicates that the special billing arrangement for the National Steel Carriers was made because of the relatively large sums involved in the retainer contract. When the contract was originally negotiated with the Man-tho office, the parties felt that the cost would be more palatable if amounts for fixed overhead were billed as reimbursed expenses.

Because there was testimony on both sides of this issue, we would ordinarily not attempt to modify the sound discretion of the trial judge. However, as previously stated, we must at all times construe the agreement so as not to violate the policy against the transfer of good will.

DR 3-102(A)(2) entitles the estate of the deceased to be compensated for "work performed” by the deceased. There is too tenuous a relationship between work performed and out-of-pocket reimbursed expenses. Out-of-pocket expenses of the defendant can in no way be considered work performed by decedent. The estate acknowledges this but argues, as they did with renewal retainer agreements, that the reimbursements are merely installment payments for decedent’s past services. We cannot agree.

Payments on retainer contracts over the four-year period were expressly required by the sales agreement. Reimbursed expenses are not expressly called for by the contract. We cannot apply the rule of construction that requires ambiguous contracts to be construed against the drafter where such construction runs against the policy of a disciplinary rule.

We have distinguished out-of-pocket reimbursed expenses from other reimbursed expenses, specifically the reimbursed expenses of the National Steel Carriers’ contract and any other contracts billed in a similar manner. This distinction is based on the fact that virtually all attorney fees constitute a partial reimbursement of expenses to the extent they contribute to fixed overhead. Fixed overhead includes such items as employee wages, rent, equipment rental, etc.

Under the present contract, we conclude that plaintiffs are entitled to 20% of all fees collected on retainer contracts, plus any reimbursed expenses which constitute contributions to fixed overhead.

We remand to the trial court for proceedings consistent with this opinion.

       Two other disciplinary rules in addition to DR 3-102(A)(2) would seem to adopt a policy against the transfer of good will. DR 4-101 (Confidences and Secrets), and DR 2-103 (Prohibition of Solicitation). See Pirsig and Kirwin, Professional Responsibility (3d ed), p 176 (1976).
      For an excellent discussion of the ethical considerations associated with the sale of a law firm, see generally Sterrett, The Sale of a Law Practice, 121 U Pa L Rev 306 (1972); Note, The Death of a Lawyer, 56 Colum L Rev 606 (1956).


source: Caselaw Access Project

author: R. B. Burns, P.J.

license: Public Domain

text:
    MICHIGAN STATE EMPLOYEES ASSOCIATION v CIVIL SERVICE COMMISSION
    Docket No. 43426.
    Submitted October 11, 1979, at Lansing.
    Decided November 6, 1979.
    Petitioner, Michigan State Employees Association (MSEA), filed a grievance with the Civil Service Commission, hereafter Commission, on behalf of certain members who were employees of the Departments of Mental Health and Social Services to obtain administrative leave. These employees worked at certain institutions providing services 24 hours a day and were prevented from reaching their places of employment by a snow storm which had forced the closing of factories, schools, stores and offices. All other state offices had closed and employees at those facilities were given administrative leave. A hearing was held and the hearing officer denied administrative leave. Leave to appeal was denied by the Commission, leaving the decision of the hearing officer as the final administrative decision. (During the pendency of this grievance another group of employees at the same institutions filed a grievance to receive administrative leave for the same days in question. This grievance was taken to outside arbitration and the arbitrator awarded administrative leave.) MSEA petitioned the Ingham Circuit Court for review. The court, Michael G. Harrison, J., reversed the decision of the hearing referee and granted administrative leave. The Commission appeals. Held:

    1. The scope of judicial review of administrative actions of the Civil Service Commission includes a determination of whether the action was authorized by law and, where a hearing was required, whether the action or decision was supported by competent, material and substantial evidence on the whole record.
    2. The policy directive allowing for administrative leave applies to all state employees without exception. The purpose behind the policy was to guarantee uniform treatment to all employees. In light of that purpose, no exception not specifically enumerated in the policy directive should be read in. The employees are entitled to administrative leave.

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Administrative Law §§ 628, 632, 659, 688, 689, 691. 15A Am Jur 2d, Civil Service § 81.
    [2] [No reference]

      Affirmed.
    1. Administrative Law — Judicial Review.
    The scope of judicial review of administrative actions of the Civil Service Commission includes a determination of whether the action was authorized by law and, where a hearing was required, whether the action or decision was supported by competent, material and substantial evidence on the whole record.
    2. Administrative Law — State Employees —■ Administrative Leave.
    A policy directive which allows for administrative leave applies to all state employees without exception where the purpose behind the policy was to guarantee uniform treatment to all employees.

      Fraser, Trebilcock, Davis & Foster (by Michael F. Cavanaugh), for plaintiff.

      Maclean, Seaman, Laing & Guilford, for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr., and P. J. Glennie, JJ.

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

   R. B. Burns, P.J.

This is an appeal from a decision of Ingham County Circuit Judge Michael G. Harrison reversing a decision of the Michigan Civil Service Commission in which members of the petitioner-association were denied administrative leave benefits for time lost due to a snow storm.

In our opinion Judge Harrison’s opinion is well written and well reasoned and we hereby adopt it as our own.

"This is an appeal from a decision of the Michigan Civil Service Commission (Commission). The relevant facts are as follows:
"On December 1, 2, and 3, 1974, a large portion of the State of Michigan was struck by a severe snow storm; the worst since 1886. Transportation became impossible due to blocked highways and city streets. National Guard troops were mobilized to assist thousands of motorists stranded on state highways. Factories, schools, stores, and offices were closed.
"This case involves the denial of administrative leave for numerous employees of the Department of Mental Health institutions and the Department of Social Services, Willard Maxie Training School. The institutions involved are operational twenty-four hours a day. These institutions operated with employees, both administrative (clerical) and functional (guards, maintenance, etc.), who happened to be on the premises when the storm struck. All other state offices were officially closed on Monday, December 2, and the employees of these facilities did receive administrative leave.
"The employees sought administrative leave for the scheduled work days during the three-day period that they were unable to reach their work stations. Administrative leave was denied by the employing departments, and the lost time was charged against annual leave time.
"A grievance was filed with the Department of Civil Service (Department). Initially, the Department refused to schedule a hearing on the grievance because they contended the 'same issue’ was then pending in the case of Arnold, et al v Civil Service Commission [Michigan State Employees Association v Michigan Civil Service Comm], Ingham County Circuit Court, Docket No. 74-16541-AA, [rel’d March 5, 1975]. The Department scheduled a hearing after the Circuit Court in the Arnold case ruled in favor of the employees.
"The hearing was held before Hearing Officer Richard Kanner who on January 13, 1976, issued his opinion denying grievants administrative leave. The grievants made application for leave to appeal that decision to the Commission which was denied, leaving the decision of the hearing officer as the final administrative decision.
"Simultaneous to the time this grievance was pending, a group of other employees from one of the same institutions filed a grievance seeking administrative leave under the same regulation for the same days in question. This other grievance was taken to outside arbitration and assigned to Arbitrator Leon Herman. Arbitrator Herman and Hearing Officer Kanner had before them the same fact situations and issue, yet reached opposite conclusions. Herman granted administrative leave to the employees.
"The issue presented is whether the employees are entitled to administrative leave pursuant to the policy directive of the Commission dated November 30, 1971.
"The Michigan Supreme Court has ruled that the proper scope of review of final decisions of the Civil Service Commission is that prescribed in Const 1963, art 6, § 28, Viculin v Department of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971); Peterson v DNR, 392 Mich 68; 219 NW2d 34 (1974).
"The scope of review of administrative action as provided by the Michigan Constitution is as follows:
" 'Administrative Action, Review Sec. 28. All final decisions, findings, rulings and orders of any administrative officer or agency existing under the Constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record * * V
"In the instant case a hearing was required pursuant to the Commission’s Grievance Procedure and a hearing was in fact held. The proper scope of review in this case, therefore, is whether the Commission’s decision was authorized by law and supported by competent, material and substantial evidence on the whole record.
"In order to resolve the issue in this case, one must look to the specific policy directive and determine its proper interpretation. The written policy directive has the force and effect of law and is controlling.
"The applicable policies and procedures are set forth as follows:
" T. Policy and Procedure
" 'a. Whenever an employee’s absence is due to severe or unusual weather conditions, civil commotion, or other general emergency condition beyond his control, the employee will be permitted to use accrued annual leave credits to cover his absence.
" 'b. If the employee chooses not to use annual leave or if he has insufficient accrued annual leave credits, he will then be paid only for his hours worked and leave credits, if any, used. However, he will receive credit for a bi-weekly work period for all other purposes. It would not be appropriate for appointing authorities to grant administrative leave under these circumstances.
"'d. In situations where the appointing authority or his representative closes the office(s) in an approved manner, as outlined in Section II below, administrative leave will be granted the affected employees.
" TI. Administrative Leave-Conditions and Procedure
" 'a. For severe or unusual weather conditions, civil commotion or other general emergencies affecting all departments in one locality:
" '2. In all other localities—appointing authorities shall designate supervisory or administrative employees in various areas of the state to deal directly with emergency situations on a local basis. In case of unusual weather or emergency conditions, such employees shall consult with their counterparts in other agencies so that, when practicable, concerted action is taken. Guidelines for such action may be U.S. Weather Bureau or State Police road condition reports, Civil Defense announcements, school closings, business and industrial closings, etc.
'When such guidelines indicate that employees should not report to work, or should be dismissed from work, administrative leave shall be granted and that fact reported to each appointing authority having affected employees, and to the State Personnel Director.
" 'b. For those situations involving only one department or portions of one department, (any location)—the appointing authority will grant administrative leave to the affected employees, and shall notify the State Personnel Director or his authorized representative of this action in writing.’
"A simple reading of the applicable policy indicates that the policy applies to all State employees without exception. There is no mention of special treatment for employees of twenty-four-hour operations, nor are the Departments of Social Services and Mental Health excepted from the policy.
"The Commission’s minutes of November 30, 1971, illuminate the reasoning behind the policy. It was designed to guarantee uniform treatment to all employees. The minutes read as follows when explaining the rationale for the policy revision:
" 'The other policy change amends Item II, a, 2, which is intended to foster equity of treatment for employees in the various departments and give some measure of local control in decision making.’
"The written procedure read in conjunction with the 'legislative intent’ of the Commission indicates that the measure was designed to guarantee uniform treatment to all employees. Based on this intent, the employees in this case are entitled to administrative leave.
"The Commission contends that there is an exception for seven-day, twenty-four-hour-per-day institutions. It asserts that administrative leave can be granted only when the appointing authority closes its office and suspends business operations because of emergency conditions and that, in fact, in the case at hand, the facilities could not and were not closed due to the twenty-four-hour nature of the operations.
"The Commission’s interpretation of the policy is not unreasonable; however, it is contrary to the express intent of the rule. In the Arnold case, supra, the facts were essen tially the same. There was a severe storm and workers at a twenty-four-hour institution applied for and were denied administrative leave. The only difference between Arnold and the instant case is that all the workers in Arnold were administrative (clerical) workers not essential to the operation of the facility. In Arnold the court said that:
" 'To merely indicate that the Department of Corrections had not closed the facility without looking at the underlying factual basis which might predicate action to close this facility, would, of course, be arbitrary and capricious, and therefor unlawful.’
"The Court went on to discuss the emergency conditions and the fact that the affected department would not be 'crippled’ due to the inability of the employees to get to work. The Court in Arnold awarded administrative leave.
"In the case at hand, the emergency conditions were more extreme than those in Arnold. The employees could not possibly get to their respective work stations, and there were ample employees at the institutions when the storm struck, to maintain operations until relief was available.
"Defendant argues that the twenty-four-hour institution-exception should be upheld in order to motivate all employees to reach their work stations so as to relieve exhausted employees. This argument is without merit in emergency situations, as in the instant case where it is physically impossible to reach the work station.
"The State decided it would accept the economic loss suffered by employees in emergency situations by adopting the policy granting administrative leave. In the opinion of the Court, it is discriminatory as to the twenty-four-hour-institution employees to treat them differently than other Civil Service employees unless specifically spelled out in the applicable rule. Such is not the case here.
"Moreover, in the opinion of the Court, the Commission abused its discretion and acted arbitrarily in affirming conflicting decisions dealing with the subject matter of this case, rather than adopting a consistent position as to all employees affected by this particular storm.
"The Commission’s decision of January 13, 1976, is in violation of its own rule and policy as expressed by the underlying 'legislative intent.’ The decision is not supported by competent, material and substantial evidence on the whole record and is arbitrary. The Commission unquestionably has broad discretionary powers, but it cannot act arbitrarily. Bischoff v Wayne County, 320 Mich 376; 31 NW2d 798 (1948).
"The decision of the hearing officer as affirmed by the Commission is reversed.”


author: Per Curiam.

text:
    McNAMES v McNAMES
    Docket No. 77-4431.
    Submitted April 3, 1979, at Detroit.
    Decided November 6, 1979.
    Carol E. McNames was divorced from Robert O. McNames in 1964 and was awarded custody of their six minor children. Defendant, Robert O. McNames, was ordered to pay child support, and the weekly payments were to decrease by a fixed sum for each child who became 18 years old. The plaintiff petitioned for a modification of support in 1977, when two of the children had not yet reached 18. The St. Clair Circuit Court, Ernest F. Oppliger, J., ordered the weekly child support payments to be increased and that support should continue for the two remaining children until they graduated from high school. Defendant appeals, alleging that the Age of Majority Act negates any obligation to support his children beyond age 18 where the original divorce judgment reserved no right to extend support in the future. Held:

    Support may not be awarded to a child who has reached the age of 18 in the absence of either a prior agreement to continue support or a reservation for future support in the original judgment of divorce. The court erred in extending support until graduation from high school, where graduation is beyond the children’s 18th birthdays.
    Affirmed in part, reversed in part.
    Parent and Child — Child Support — Age of Majority — Divorce.
    Support may not be awarded to a child who has reached the age of 18, in the absence of either a prior agreement to continue support or a reservation for future support beyond the age of 18 in the original judgment of divorce.
    Reference for Points in Headnote
    59 Am Jur 2d, Parent and Child § 66.

      Maria P. Alexander, for defendant.

      Before: T. M. Burns, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Per Curiam.

The parties were divorced by a judgment granted by the St. Clair County Circuit Court on July 31, 1964. The divorce judgment granted custody of their six minor children, then aged seven months to ten years, to plaintiff, and ordered defendant to pay child support in the amount of $51 per week "until the eldest child shall have attained the full age of eighteen (18) years * * *”. Thereafter, the child support provision decreed in effect that defendant’s weekly payments would decrease by $8.50 for each child who turned 18, until the youngest child attained 18, "or until the further Order of [the Circuit] Court”.

In March and May of 1977 plaintiff filed petitions to modify the divorce judgment by increasing child support for the two minor children who had not yet reached 18: Tammy, born December 28, 1959, and David Timothy, born November 22, 1963. The later petition also prayed:

"That the Judgment of Divorce be modified in that the child support payments continue until each minor child reaches the age of 18, or graduates from high school, whichever occurs later.”

At this same time, defendant also filed a petition seeking credit on his support arrearage to reflect the reduction in income he suffered due to strikes at his place of employment during 1968 and 1972.

All petitions were referred to the Friend of the Court for investigation and recommendations. The Friend of the Court recommended that plaintiff’s petition for an increase in the amount of child support be granted and that defendant’s petition for credit on the arrearage be denied, but did not discuss whether child support should be continued beyond the children’s 18th birthdays.

Defendant filed objections to the recommendations of the Friend of the Court, and a hearing was held. After hearing arguments of counsel, the trial court accepted the recommendation that the weekly child support payment be increased from $17 to $50, declined to "get involved in the arrearage at this time”, and ordered that child support for the two remaining minor children should continue until they graduated from high school.

In this appeal, defendant claims that the extension of support to high school graduation was error since there were no "exceptional circumstances” warranting it. He further argues that the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., negates any obligation to support his children beyond age 18 in view of the fact that the original divorce judgment reserved no right to extend support in the future.

The effect of the Age of Majority Act upon circumstances similar to those here present was discussed by this Court in the case of Price v Price, 51 Mich App 656; 215 NW2d 756 (1974). This Court, in Price, supra, at 659-661, concluded:

"It is probable that the Legislature did not intend through the Age of Majority Act to dictate that all support must cease at age 18 regardless of the 'exceptional circumstances’ quoted in the support statute. Yet that is the exact effect of the support statute when read in conjunction with the Age of Majority Act. The expression of the legislative intent that support jurisdiction extends to minor children, supported by the above case-law interpretation, makes plain that an adult child is not entitled to support under the statute. Since the Legislature has made an 18-year-old an adult for all purposes whatsoever, notwithstanding any law to the contrary, support cannot properly be awarded to a child who has reached the age of 18.
"The Supreme Court of Michigan, it would seem, attempted to correct this obvious inconsistency between the two statutes. GCR 1963, 729.2(1) was amended on May 1, 1972, some four months after the Age of Majority Act took effect. The amended rule provides for the 'payment of said support for each child until each child reaches the age of majority or graduates from high school, whichever is later, or, in exceptional circumstances, until the further order of the court’. This excellent language would clearly place the matter at the discretion of the trial judge, who is in the best position to determine what an 'exceptional circumstance’ might be.
"The problem arises when we attempt to insert the court rule in place of the statutory language. The Supreme Court itself has indicated that court rules may take precedence over statutory language only in matters involving judicial rules of practice and procedure. Perin v Peuler, 373 Mich 531; 130 NW2d 4 (1964). This being a matter of the substantive law, the legislative enactment must control. The trial court’s reliance on GCR 1963, 729.2(1) to justify an award of support to a child who has reached the age of majority contravenes the Legislature’s expressed intent in the statute enabling a circuit court to award any support at all, as interpreted by decisions of the Supreme Court. Until such time as the Legislature sees fit to settle the inconsistency between the support statute and the Age of Majority Act, we are bound to follow its mandate.”

The correctness of this reasoning was not assailed by our Supreme Court when it reversed the result in Price v Price, 395 Mich 6; 232 NW2d 630 (1975). Rather, the Supreme Court premised its continuation of support in Price upon the fact that the modification petition was filed prior to the effective date of the Age of Majority Act. The Court had the opportunity to broadly apply the language of the court rule but chose instead to limit its holding in the following language:

"In the instant case, the original petition was filed on July 20, 1971. Although a voluntary agreement resulted which was not part of the record, the circuit court adjourned and a hearing was held on the original petition on August 1, 1972. Thus, this petition, as a proceeding 'pending at the effective date of this act’, falls within the saving provision of the Age of Majority Act. MCLA 722.54; MSA 25.244(54). The circuit court therefore properly required the divorced father to pay support for the college education of his son until that son became 21 years old.” 395 Mich at 10-11.

It should also be noted that in Price the Supreme Court made specific reference to a prior voluntary agreement to continue support between the parties. We deem this to be of significance because, in our review of those reported cases where support was allowed to be continued, we have noted that in each there was either a prior agreement (Price, supra), or some form of reservation for future support in the original judgment of divorce, Barbier v Barbier, 45 Mich App 402; 206 NW2d 464 (1973), Milbrand v Milbrand, 66 Mich App 730; 239 NW2d 730 (1976). See also Anno: Statutory Change of Age of Majority as Affecting Pre-Existing Status or Rights, 75 ALR3d 228, especially § 7, pp 256-259.

Here, there was neither an agreement nor any reservation for future support beyond age 18. Further, as in Allen v Allen, 63 Mich App 475; 235 NW2d 22 (1975), the instant petition was filed well beyond the effective date of the Age of Majority Act. We therefore conclude that the trial court was without authority to extend support in this case. We deem this result not necessarily desirable, but required.

We decline to discuss the arrearage issue raised by defendant as it appears questionable at best whether it is within the purview of this claim of appeal and whether there was an actual determination on this issue. Furthermore, on this point, there exists no evidentiary record for our review.

We affirm that part of the trial court order increasing child support payments from $17 to $50, but reverse the ruling that would extend those payments to high school graduation. No costs, neither party having prevailed entirely.


text:
    PEOPLE v VINSON
    Docket No. 77-4692.
    Submitted September 4, 1979, at Lansing.
    Decided November 6, 1979.
    Larry Vinson was convicted of assault with intent to do great bodily harm less than murder and of possession of a firearm in the commission of a felony, Recorder’s Court of Detroit, George T. Ryan, J. Defendant appeals, alleging among other things that a jury instruction on felonious assault should have been given by the trial court. Defendant had been charged with assault with intent to commit murder, and defense counsel requested a felonious assault instruction after the jury had retired to the jury room but before they had begun deliberating. The request was denied. Held:

    1. Felonious assault is not a necessarily included lesser offense of assault with intent to murder, but it is a cognate offense of assault with intent to murder. Therefore, an instruction on felonious assault, when requested, need only have been given if the evidence on the record would support a conviction of that offense. In this case there is such record support.
    2. A requested instruction may be given at any time in the discretion of the trial court. In this case, the jury had not yet begun deliberation, and the instruction was supported by the evidence. The failure to give the requested instruction in this case was error.
    The conviction of possession of a firearm in the commission of a felony ¡is affirmed. The conviction of assault with intent to do great bodily harm less than murder is reversed, and the case is remanded for entry of a conviction of felonious assault and for resentencing, unless the prosecutor chooses to move for a new trial.
    1. Assault — Felonious Assault — Assault with Intent to Commit Murder.
    Felonious assault is not a necessarily included lesser offense of assault with intent to commit murder; felonious assault is a cognate offense of assault with intent to commit murder, that is, a lesser offense within the same class or category but which may contain some elements not found in the higher offense.

      References for Points in Headnotes
    [1] 6 Am Jur 2d, Assault and Battery § 48.
    40 Am Jur 2d, Homicide § 535.
    [2] 75 Am Jur 2d, Trial § 876.
    [3] 75 Am Jur 2d, Trial § 583.

      2. Criminal Law — Instructions to Jury — Lesser Included Offenses.
    An instruction to the jury on a cognate lesser included offense need only be given if the evidence on the record supports it.
    3. Trial — Instructions to Jury — Requests for Instructions — Court Rules.
    Requests for jury instructions should be made before the judge formally charges the jury, or at any other time the court directs; however, an instruction which is requested late may be given if, in the trial court’s discretion, it would aid the jury in arriving at a just verdict (GCR 1963, 516.1, 516.4).

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

      Gillis, Louisell & Berg, for defendant on appeal.
    Before: Danhof, C.J., and Bronson and Beasley, JJ.
   Per Curiam.

Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, contrary to MCL 750.84; MSA 28.279, and possession of a firearm in the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). He was sentenced to 5 to 15 years in prison on the first count and two years on the second, the sentences to run consecutively. Defendant appeals as of right.

Our review of the questions posed on appeal indicates that one warrants our consideration.

Defendant was charged with assault with intent to commit murder. The trial judge instructed the jury on the lesser included offenses of assault with intent to commit great bodily harm less than murder and reckless discharge of a firearm. At the conclusion of the judge’s instructions, after the jury had retired to the jury room but before they had begun to deliberate, defense counsel requested for the first time that the court give an instruction on felonious assault. In denying the request, the court gave as its reason, "Not where you have this serious of a wound”. Although the court did not state the tardiness of the request as its reason for the denial of the felonious assault instruction, in denying another request, the trial court noted it had set "the day before yesterday at 9 a.m.” as the deadline for the submission of special requests for charges to the jury.

Initially, we must determine if the court was required to give the instruction on felonious assault, had the court been requested to do so before it charged the jury. Then, we shall discuss what effect the timing of the request had on the judge’s discretion to deny such request.

We recognize that felonious assault is not a necessarily included lesser offense of assault with intent to commit murder. A necessarily included lesser offense is one such that it is impossible to commit the greater offense without first committing the lesser. Defendant herein was charged with assault with intent to commit murder. The elements of that crime are (1) an assault, (2) with specific intent to murder, (3) and which, if successful, would make the killing murder.

Felonious assault is defined in MCL 750.82; MSA 28.277 as follows:

"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.”

In order to convict on a charge of felonious assault, it is necessary that an assault was made with a dangerous weapon. Since a person could be found guilty of assault with intent to commit murder where no weapon was involved, and, since a weapon must be involved to support a felonious assault conviction, it is possible to commit the greater offense without committing the lesser and the offense of felonious assault is not necessarily included.

Cognate offenses are those which share several elements and are within the same class or category, but the lesser may contain some elements not found in the higher offense. We find the common element of assault present in both felonious assault and assault with intent to commit murder and determine that felonious assault is a cognate offense of assault with intent to commit murder. Although requests for instructions on lesser included offenses must be granted when the requested charge is for a necessarily lesser included offense, an instruction on a cognate lesser included offense need only be given if the record evidence supports it.

Our review of the transcript indicates that the complainant testified that he was shot and attacked with a knife by defendant. Defendant took the stand and claimed that complainant pulled the gun on him. In his attempt to grab for it, a shot went off. Defendant testified he struggled for the gun and another shot went off injuring complainant. In further testimony, defendant indicated that complainant then got out of the car and approached him with a knife. As the two men struggled, defendant was injured by the knife.

We find that the evidence supports a felonious assault charge.

However, this does not conclude our review of defendant’s claim that the trial court erred in failing to give the instruction. The effect of a request made at the conclusion of the charging of the jury must now be determined.

GCR 1963, 516.1 states:

".1 Request for Instructions. At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall file written requests that the court instruct the jury on the law as set forth in the request. A copy of such requested instructions shall be served on the adverse parties in accordance with Rule 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury, and, subject to the provision of subrule 516.3, shall instruct the jury after the arguments are completed. The court may make such comments on the evidence, the testimony, and the character of the witnesses as in its discretion the interests of justice require.” (Emphasis added.)

The rule indicates that requests for instructions should come before the judge formally charges the jury or at a time the court directs. However, GCR 1963, 516.4 is instructive in showing that the rule is flexible and that late requests may be given if, in the trial court’s discretion, they will aid the jury in arriving at a just verdict.

GCR 1963, 516.4 provides:

".4 Additional Instruction. While the jury is deliberating the court may in its discretion further instruct the jury, in the presence of or after notice to counsel. Objections thereto shall be made in a motion for new trial.” (Emphasis added.)

We do not, however, view the trial judge’s response to the request for an instruction on felonious assault to be discretionary. First, we believe that the instruction was supported by the evidence. Also, apparently the jury had not begun its deliberations and could have been recalled and further instructed. Although we recognize by recalling the jury and giving but a single additional instruction, undue emphasis may be placed on the charge, we believe this possibility may be outweighed by possible prejudice to defendant if the charge is not given.

In 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 567, the authors’ comments are instructive on the issue presented:

"8. If no requested instruction on a given point[] has been submitted, but before the jury retires an objection is made to the failure to include an instruction on the point in the charge to the jury, a more difficult question arises. Sub-rule 516.2 states that no party may assign as error 'the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict’. Although an objection to the failure to give an instruction has been timely made within the literal wording of the rule, the question remains as to whether the validity of the objection depends upon the omitted instruction having been covered by a previous request. * * * if before the jury retires an objection is made to the failure to give instruction on a basic issue, even though not previously requested, the trial judge is obliged to remedy the omission, and his failure to do so may be assigned as error on appeal. If the omission to instruct is on a non-basic requirement, such as a failure to instruct the jury on a party’s theory of the case or the failure to give some preliminary or cautionary instruction, the absence of an earlier request covering the omitted matter should preclude the party from claiming reversible error on appeal. See Rogers v City of Detroit, 1954, 340 Mich. 291, 65 N.W.2d 848.”

Since the instruction regarding the lesser included offense of felonious assault was not covered by the trial court’s other instructions, and since the requested instruction was on a basic issue, that being of what crime the defendant might be convicted, we are constrained to find that error occurred. The fact that the jury found defendant guilty of a lesser included offense, rather than the principal charge, indicates that the jury was willing to compromise on the verdict. Thus, we find that the trial court erred in failing to instruct the jury that there was an additional possible verdict, namely, the cognate offense of felonious assault.

In so ruling, we do not want to be understood as condoning the failure of defense trial counsel to make timely requests for jury instructions. In many circumstances, we would expect to hold that failure to make a timely request constituted a waiver of the right to receive a requested instruction. The record indicates no excuse for counsel’s failure to make a timely request here. As indicated, only under the special circumstances of this case do we necessarily find that the possibility of prejudice to defendant in the jury’s deliberations outweighed the failure of counsel to make a timely request in conformance with the court rules.

The case, therefore, is remanded for entry of a conviction of felonious assault rather than assault with intent to do great bodily harm less than murder, and for resentencing. If the prosecutor chooses to do so, he may move for a new trial prior to resentencing. Defendant’s conviction of possession of a firearm in the commission of a felony is affirmed.

Because of our remand, we need not address defendant’s contention that the trial court erred in sentencing him to a 15-year maximum on his assault with intent to commit great bodily harm less than murder conviction, although MCL 750.84; MSA 28.279 only calls for a ten-year maximum, as the resentencing should cure such error.

Affirmed in part; reversed in part and remanded.

       MCL 750.82; MSA 28.277.

        People v Bryant, 80 Mich App 428, 433; 264 NW2d 13 (1978), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

        People v Branner, 53 Mich App 541, 544; 220 NW2d 183 (1974).

        People v Hooper, 36 Mich App 123; 193 NW2d 203 (1971).

        People v Harris, 82 Mich App 135; 266 NW2d 477 (1978), People v Ora Jones, supra.

        People v Kamin, 405 Mich 482; 275 NW2d 777 (1979).

       We note that in the instant case, although the jury had been sent to the jury room, deliberations had not commenced.

       See, People v Harris, supra, at 139.


text:
    ROYAL INDEMNITY COMPANY v H S WATSON COMPANY
    Docket Nos. 78-22, 78-2211.
    Submitted May 4, 1979, at Detroit.
    Decided November 6, 1979.
    The Frank L. Jursik Company was found liable for injuries suffered by an employee of Borden, Incorporated, in an accident involving a lift device which was manufactured by the H. S. Watson Company, sold to Jursik, and installed by Jursik. Royal Indemnity Company, the insurer of Jursik, brought an action for contribution and indemnity against H. S. Watson Company, Watson Atlas Company, Overhead Door Corporation, Honeywell Incorporated, Borden Incorporated, and Automotive Rentals. The Wayne Circuit Court, Thomas Roumell, J., granted summary judgment, in two separate orders, in favor of Honeywell, and in favor of Borden and Automotive Rentals, holding that as to those defendants the complaint failed to state a claim upon which relief could be granted. Plaintiff appealed the judgments and the two appeals were consolidated. Held:

    1. The plaintiff has not discussed in its brief on appeal any of its claims or theories against Borden or Automotive Rentals. The summary judgment in favor of those defendants is therefore affirmed.
    2. The trial court erred in finding that Jursik was actively negligent and that its insurer could not, therefore, recover on its claim of indemnity. Also, because plaintiffs complaint specifically avers that Jursik was not actively negligent, and because upon review of a summary judgment the pleadings of the nonmoving party must be accepted as true, the plaintiff is entitled to a trial on this issue.
    3. The statute which governed actions for contribution at the time of the original action between the injured employee and Jursik did not require joinder or notice to co-tortfeasors as a condition for maintaining a later action for contribution, and the Court of Appeals, in light of Supreme Court precedent, will not create such a rule. Therefore, the lack of notice to Honeywell during the pendency of the original action does not bar the plaintiff from maintaining the present action.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 685, 686, 691 et seq.

    [2] 5 Am Jur 2d, Appeal and Error § 879.
    [3] 41 Am Jur 2d, Indemnity § 40.

      4. The action is not barred by either the statute of limitations or laches.
    The summary judgment as to Borden and Automotive Rentals is affirmed. The summary judgment as to Honeywell is reversed.
    1. Appeal and Error — Issues Not Briefed or Argued.
    Any issue not briefed and supported on appeal is considered abandoned; mere statement of a position without argument or citation of authority is insufficient for consideration by an appellate court.
    2. Appeal and Error — Summary Judgment — Court Rules.
    The Court of Appeals must accept as true all well pleaded allegations of the complaint when considering a trial court’s grant of summary judgment to a defendant for failure to state a claim upon which relief could be granted (GCR 1963, 117.2[1]).
    3. Torts — Indemnification — Co-Tortfeasors — Notice — Statutes.
    The former statute governing actions for indemnification against co-tortfeasors did not require a principal defendant in a tort action to join the co-tortfeasor in the original action or to otherwise give notice to the co-tortfeasor in order to maintain an action for indemnification or contribution (MCL 600.2925; MSA 27A.2925, repealed by 1974 PA 318, § 2).
    Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Jeanette A. Paskin and Larry Mason), for plaintiff.

      Harvey, Kruse & Westen, P.C. (by James N. Martin and Michael F. Schmidt), for defendants Borden Incorporated and Automotive Rentals.

      Sullivan, Ranger, Ward & Bone, for defendant Honeywell, Incorporated.

      Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

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

   Per Curiam.

This suit arose out of a prior action in Wayne County Circuit Court titled Denolf v Frank L Jursik Co. Previous appeals concerning the original suit are reported at 54 Mich App 584; 221 NW2d 458 (1974), and 395 Mich 661; 238 NW2d 1 (1976). The following facts, taken from the statement of facts in the previous appeals, will serve as a background for the present case. Denolf worked for the Borden Company. Borden rented a milk truck from Automotive Rentals. The truck was equipped with a lift device. The lift was manufactured by the H. S. Watson Company, which sold it to Jursik Company. Jursik Company installed the lift on the milk delivery truck. Denolf was injured while using the lift on October 14, 1969. In Denolfs suit against Jursik, a special verdict was rendered in which the jury answered "No” to the question, "Were plaintiff’s injuries caused because he activated the elevator by moving either of the control handles with his right hand?”

Plaintiff, insurer and subrogee of Jursik, filed the present action against the defendants seeking contribution and indemnity from the named defendants. Defendants Honeywell, Borden, H. S. Watson Company, Watson Atlas Company, and Automotive Rentals filed motions for summary judgment pursuant to GCR 1963, 117.2(1), asserting that the complaint failed to state a claim upon which relief may be granted. The lower court granted the motions for summary judgment as to defendants Honeywell, Borden and Automotive Rentals but denied the motions of H. S. Watson Company and Watson Atlas Company. Also denied was the motion for accelerated judgment filed by Overhead Door Company. Plaintiff is now appealing the summary judgments granted to Honeywell, Borden and Automotive Rentals.

We reverse the lower court’s summary judgment as to Honeywell and affirm as to Borden and Automotive Rentals.

The brief of appellant does not discuss any of its claims or theories against Automotive Rentals or Borden. There is mention of Borden and Automotive Rentals in the statement of 'facts and prayer of the brief but the statement of issues and authorities cited are bereft of any mention of these parties. It is well settled that any issue not briefed and supported on appeal is considered abandoned.

In Froling v Bischoff, 73 Mich App 496, 500; 252 NW2d 832 (1977), this Court held:

" 'It is well settled that mere statement of a position without argument or citation of authority is insufficient to be considered by an appellate court.’ Haynes v Monroe Plumbing & Heating Co, 48 Mich App 707, 719; 211 NW2d 88 (1973).”

Accordingly, the summary judgments granted in favor of Borden and Automotive Rentals are affirmed.

The trial court granted summary judgment to Honeywell for the following reasons:

1. The court held that in the original action, Jursik, plaintiff’s subrogee, was found to be actively negligent and therefore could not seek indemnity from Honeywell.

2. The court held that plaintiff could not seek contribution from Honeywell because Jursik had not "vouched in” Honeywell by notice of the original action; that it had not sought to implead Honeywell as a third-party defendant; nor was Honeywell subject to a joint judgment as required by RJA § 2925(1), MCL 600.2925(1); MSA 27A.2925(1). The court also held that since contribution is equitable in nature, the claim was barred by laches.

The trial court predicated its summary judgment on the issue of indemnity on its statement that after examination of the record of the case and the appellate decisions in Denolf v Jursik, supra, it was persuaded that Jursik was guilty of active negligence and therefore foreclosed from assertion of a claim of indemnity. This finding is apparently based on the jury’s negative response to the special verdict question:

"Were plaintiffs injuries caused because he activated the elevator by moving either of the control handles with his right hand?”

It cannot be concluded from this verdict that the jury found Jursik actively negligent. It only found that Denolf did not cause his own injury by moving the control handles. The complaint in this case specifically avers that Jursik was not actively negligent. Plaintiff is entitled to a trial of this issue. It is axiomatic that this Court must accept as true all well pleaded allegations of the complaint in considering a motion for summary judgment under GCR 117.2(1). Borman’s, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975), Minster Machine Co v Diamond Stamping Co, 72 Mich App 58; 248 NW2d 676 (1976), Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). If plaintiff can prove that Jursik was not actively negligent, and that defendant was negligent, then it may be indemnified. Dale v Whiteman, 388 Mich 698; 202 NW2d 797 (1972), Nanasi v General Motors Corp, 56 Mich App 652; 224 NW2d 914 (1974), Minster Machine Co v Diamond Stamping Co, supra, and Provencal v Parker, 66 Mich App 431; 239 NW2d 623 (1976).

The more difficult issue arises from Jursik’s failure to notify Honeywell of the pendency of the action against it, either by impleader or other notice.

MCL 600.2925; MSA 27A.2925, now repealed by 1974 PA 318, § 2, was in effect at the time of this suit. It stated,

"Sec. 2925. (1) Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment. Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any other defendant an amount greater than his pro rata share of the entire judgment.
"(3) An insurer of a person jointly or severally liable with 1 or more other persons upon a judgment for the same private wrong, which insurer has on behalf of its insured, discharged the common liability by payment, or has paid more than its insured’s pro rata share thereof, shall be entitled to assert either in its own name or in the name of its insured any right to contribution which such insured would have acquired by such payment.
"(4) Any claim for contribution hereunder must be asserted within 6 months after discharge by such party of the common liability or payment of more than his pro rata share.” (Emphasis added).

The trial court held that Jursik’s failure to implead or notify Honeywell of the former action barred any right to contribution as a matter of law and by application of the equitable doctrine of laches. The court further stated that, while it did not reach the issue because of its finding active negligence as to Jursik, it was disposed to a similar ruling on the issue of indemnity.

The effect of the lower court’s ruling is to create a requirement that in order to assert a right of contribution against a co-tortfeasor, it is necessary to either join that tortfeasor in the initial action or to "vouch in” that co-tortfeasor by notice of the asserted claims. We find no authority to that effect, and are persuaded that the teaching of Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970), is to the contrary.

In Moyses, the Supreme Court considered a case where the principal defendant had attempted to implead a co-tortfeasor and the trial court had, in an appropriate exercise of discretion, denied the motion to implead. The Supreme Court held that this denial could not defeat any substantive right of the principal defendant against the alleged cotortfeasor by way of contribution. In so holding, the Court said, 383 Mich at 333:

"However, should Spartan [the original defendant] give notice to defend, both to the New York and French corporations [the non-parties from whom contribution will later be sought], all of its substantive rights if any as against those corporations will under the foregoing italicized comment be fully protected. For the practice and its effect, see Grant v Maslen (1908), 151 Mich 466 [115 NW 472], and Grand Rapids Lumber Co v Blair (1916), 190 Mich 518 [157 NW 29].”

Examination of the cited cases, Grant v Maslen, supra, and Grand Rapids Lumber Co v Blair, supra, indicates that the procedure of "vouching in” a co-tortfeasor is of tactical significance in indemnity cases because, as stated in Grand Rapids Lumber Co v Blair, 190 Mich at 526:

"In such cases the weight of authority indicates that a former judgment against the indemnitee, in which notice of the litigation is not given to the party who may be liable over, is adequate to create a right of action against the latter, and admissible as prima facie proof of his liability, though the omission to give notice gives him the right to make any defense which he could have made in the former action, with the burden of proof shifted to him.”

Thus, it is apparent that the Supreme Court in Moyses, supra, did not intend that failure of notice of a claim against a principal defendant to a cotortfeasor would bar a right to claim contribution. The opinion strongly implies that the right will survive, without notice, and indicates the tactical effect of giving notice. In this regard it should be noted that there is no showing in the opinion in Moyses, supra, that the alleged co-tortfeasors had ever been given any notice of the existence of the claim against the principal defendant Spartan. The opinion of the Supreme Court was published in 1970 and the original accident giving rise to the cause of action occurred in 1965. In view of this perception of the holding in Moyses, supra, we do not feel that it is appropriate to accept Honeywell’s invitation to create a judicially made rule requiring notice to a co-tortfeasor of the pendency of an action against the principal defendant as a predicate of a right to contribution upon payment of judgment.

In this cause the action for contribution against Honeywell was commenced within six months of the payment of the judgment against Jursik, and therefore is within the requirements of MCL 600.2925(4). The action is not barred by statute of limitations and Moyses, supra, has held that a joint judgment is not required to assert a right of contribution.

Honeywell contends, and the trial court held, that any claim of contribution must be barred by laches. There is no showing in the record of this cause of any hardship or inequity that is inflicted on Honeywell other than the passage of time. There is compliance with the applicable statute of limitations, and the trial court’s holding on this issue is not documented by sufficient facts to sustain application of the doctrine of laches as a bar to the complaint.

The summary judgment as to Honeywell is reversed; the summary judgment as to Borden and Automotive Rentals is affirmed.

       The new act, MCL 600.2925a(5); MSA 27A.2925(1)(5), specifically requires notice and opportunity to defend as elements of the statutory right to contribution.


author: Per Curiam:

text:
    ALLIED BUILDING SERVICE COMPANY v MICHIGAN EMPLOYMENT SECURITY COMMISSION
    Docket No. 78-652.
    Submitted May 2, 1979, at Detroit.
    Decided November 6, 1979.
    Stanley Stachow, Jr. voluntarily terminated his employment with Allied Building Service Company. Stachow claimed he terminated his employment because he was afraid of being injured by people inhabiting the area around the office at which he was employed. The employer offered to reemploy Stachow in his old job and told him that he could use the company garage, with escort service to his car being provided. Stachow sought unemployment benefits under the Michigan Employment Security Act. Benefits were denied for a six week period because of his voluntary termination and benefits'were denied for a further six week period because of his refusal to accept suitable employment. On appeal to a Michigan Employment Security Commission referee, the denial of the initial six week period was affirmed, but the denial of the second six week period was reversed. The Appeal Board affirmed the referee’s decision. Plaintiff company appealed to circuit court the order granting benefits for the second six week period following the claimant’s refusal to accept the offer of employment at his prior job. The Wayne Circuit Court, Richard D. Dunn, J., affirmed the decision of the Appeal Board. Plaintiff appeals. Held:

    1. Disqualification from unemployment benefits for refusal to accept suitable work requires a finding that the claimant was offered suitable work and that he refused to accept the offer of employment without good cause. The burden is upon the employer to establish that the offered employment was suitable and that the claimant’s refusal to accept the employment was without good cause. Appellate review of the findings of fact of the Michigan Employment Security Commission is limited to whether the Commission’s findings are supported by sufficient, competent and material evidence after a review of the whole record.

      References for Points in Headnotes
    [1] 76 Am Jur 2d, Unemployment Compensation § 68.
    "Availability for work,” under unemployment compensation statute, of claimant who undertakes to restrict willingness to work to certain hours, types of work, or conditions, not usual and customary in the occupation, trade, or industry. 25 ALR2d 1077.
    [2] 76 Am Jur 2d, Unemployment Compensation §§ 93, 94.
    [3-5] 76 Am Jur 2d, Unemployment Compensation §§ 68, 69.
    "Availability for work,” under unemployment compensation statute, of claimant who undertakes to restrict willingness to work to certain hours, types of work, or conditions, not usual and customary in the occupation, trade, or industry. 25 ALR2d 1077.

      2. The Commission’s finding of fact that the claimant was not clearly and unequivocally offered suitable employment is not supported by the record. The offer of employment at the same job from which the claimant voluntarily left implies the same wages, hours and working conditions, making the offer of such employment specific in nature.
    3. Since the Commission determined that the claimant’s reasons for voluntary termination did not constitute good cause for quitting his job, it follows that the same reasons did not constitute good cause for refusing to accept the offer of reemployment at the same job. Having been offered suitable employment and having refused to accept that employment without good cause, the claimant should have been disqualified for unemployment benefits for the statutory period.
    Reversed.
    1. Unemployment Compensation — Disqualification — Suitable Employment — Refusal to Accept Employment — Good Cause — Burden of Proof — Statutes.
    Disqualification from unemployment benefits under the Michigan Employment Security Act for refusal to accept suitable work requires a finding that the claimant was offered suitable work and that he refused to accept without good cause the offer of employment, with the burden of establishing the suitability of the employment and the claimant’s refusal of employment without good cause being upon the employer (MCL 421.29[l][e]; MSA 17.531[l][e]).
    2. Appeal and Error — Unemployment Compensation — Findings of Fact — Evidence.
    Appellate review of findings of fact made by the Michigan Employment Security Commission is limited to whether the Commission’s findings are supported by sufficient, competent and material evidence after a review of the whole record.
    3. Unemployment Compensation — Suitable Employment — Findings of Fact — Sufficiency of Evidence.
    A finding of fact by the Michigan Employment Security Commission that a claimant was not clearly and unequivocally offered suitable employment is not supported by the record where the offered employment was the job which the claimant previously held, the same wages, hours and working conditions being implicit in such an offer.
    4. Unemployment Compensation — Disqualification — Refusal to Accept Employment — Personal Reasons — Statutes.
    Good cause to refuse suitable employment, within the meaning of the disqualification provisions of the Michigan Employment Security Act, cannot be based upon purely personal reasons (MCL 421.29[l][e]; MSA 17.531[l][e]).
    5. Unemployment Compensation — Disqualification — Refusal to Accept Employment — Good Cause.
    A claimant is disqualified from unemployment benefits where he is offered his old job and it was determined that his reasons for leaving that job did not constitute sufficient cause for quitting the job, his refusal of the reemployment accordingly being without good cause.

      Weisberg & Meisner (by Clifford B. Walkon), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and David A. Voges, Assistant Attorney General, for defendant.
    Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

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

   Per Curiam:

Stanley Stachow, Jr., claimant in the instant case, appealed two separate Commission redeterminations which held claimant disqualified from benefits under the Michigan Employment Security Act (MESA), MCL 421.1 et seq.; MSA 17.501 et seq. The first redetermination, which occurred on November 19, 1975, held that claimant was subject to a six-week requalification period because he voluntarily separated from his employer. The second redetermination, which occurred on January 14, 1976, found claimant disqualified for benefits subject to another six-week period of requalification because of his refusal to accept suitable employment. The claimant appealed to the MESC referee.

On March 19, 1976, the referee rendered his decision, denying claimant’s first appeal but granting the claimant benefits for the second period. On October 28, 1976, the Appeal Board affirmed the referee’s decision. The plaintiff filed an appeal with the Wayne County Circuit Court for review of the Board’s final order insofar as it granted benefits to the claimant for the second period. On January 5, 1978, the lower court affirmed the decision of the Appeal Board. The plaintiff is now appealing, as of right, the lower court’s affirmance of MESC’s decision to award benefits to the claimant for the second period.

At the MESC hearing, claimant stated that he had been working for the plaintiff since July, 1969. He operated a one-man office located at the corner of Woodward and Sproat Streets in Detroit. He stated that he finally quit his job on October 1, 1975, because he was afraid of being hurt by the local people. He had been threatened twice and robbed on two other occasions by the people who hung around the area. Although he had informed the president of Allied, Victor Merdler, of the severity of the situation, no steps had been taken to ensure his safety.

About 5 days after the claimant quit, Mr. Merdler called him and told him that he could use the company garage and the company would provide escort service to his car. Claimant was also told that his old job was available. While claimant declared himself to be willing and available to work, he declined to work at his previously assigned work site. He expressed willingness to work anywhere else in Detroit.

Victor Merdler also testified. He stated that his business, a building service maintenance operation, had been at its present location for almost 28 years and that he did not recall the office windows ever being broken during working hours while the claimant worked there. The witness emphatically disagreed with the seriousness of the situation. As evidence of claimant’s exaggeration in this regard, Mr. Merdler stated that the claimant had been replaced by an 18-year-old woman who does not appear "one bit disturbed about the neighborhood”.

On November 21, 1975, the plaintiff offered the claimant his old job back on MESC Form 1555A. The offer reads as follows:

"Claimant quit this job. This job is being held open for claimant. We are anxious to have him return to work.”

Mr. Merdler concurred in claimant’s testimony that the company was now willing to allow claimant to park in the company garage and provide him with escort service to his car.

The claimant was informed of the offer of reemployment by MESC but refused to return to plaintiff’s employ. Claimant answered the offer in writing as follows:

"I still refuse to return to this place of employment even though the employer will provide an escort to and from my car and will allow me to park my vehicle inside the building.
"I am fearful of the neighborhood.”

The referee held that the plaintiff’s offer of employment was too vague to constitute a valid offer of work. He stated that the wages, hours and other working conditions must be set forth in order to constitute a bona fide offer of work. Therefore, the claimant was not disqualified from receiving benefits for the week ending November 22, 1975, since no valid offer of employment was made. The Appeal Board found this decision to be in conformity with the law and facts. The lower court also affirmed the referee’s decision, without commenting upon the validity of the offer of employment, based upon the fact that the claimant was attached to the labor market and available for work, in spite of his unwillingness to work in the geographical area of his previous employment.

Disqualification under MCL 421.29(l)(e); MSA 17.531(l)(e) "depends upon two essential findings of fact: (1) that suitable work was offered; and (2) that claimant failed without good cause to accept”. Chrysler Corp v Losada, 376 Mich 209, 213; 135 NW2d 897 (1965). The burden is upon the employer to show that an offer of suitable work was made and that the employee failed, without good cause, to accept. Lyscas v Chrysler Corp, 76 Mich App 55, 60; 255 NW2d 767 (1977).

Plaintiff argues on appeal that during the week ending November 22, 1975, a bona fide offer of employment was made to the claimant. The referee held to the contrary.

Appellate review of factual decisions rendered by MESC is limited to a determination of whether the findings are supported by sufficient, competent and material evidence on the whole record. Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974). We hold that the Commission’s finding that the plaintiff did not make a clear and unequivocal offer of employment to the claimant is not supported by the record. It is obvious that the plaintiff was not just offering any job to the claimant, but rather, it was offering the same job as claimant previously held. The same job logically implies the same wages, hours and working conditions as previously existed. Furthermore, the. claimant was aware of the fact that the plaintiff was willing to implement safety measures to ensure claimant’s well-being. This is evidenced by the claimant’s statement that even if parking and escort service is provided, he would not return to work.

Having found that a valid offer of work had been made to the claimant, it is now necessary to decide whether the claimant refused the job for good cause. MCL 421.29(l)(e); MSA 17.531(l)(e). Although the referee did not decide this issue, it is assumed that the referee would have found the refusal to accept the job to be without good cause, since the referee found the initial refusal to work based upon personal safety concerns not to constitute good cause.

Good 'cause to refuse work cannot be based upon purely personal reasons, since the underlying policy of the employment security act is to provide benefits for persons unemployed through no fault of their own. Losada v Chrysler Corp, 24 Mich App 656; 180 NW2d 844 (1970), lv den 383 Mich 827 (1970). In Keith v Chrysler Corp, 390 Mich 458; 213 NW2d 147 (1973), an evenly divided Court, citing Losada, affirmed an Appeal Board’s disqualification of plaintiff from benefits for refusing to accept a job offer from the defendant. The plaintiff refused the offer because acceptance would have precluded his return to his old job at another of the defendant’s plants, where he had worked for several years prior to his layoff.

In his opinion for reversal, Justice Williams, joined by Chief Justice T. M. Kavanagh and Justice T. G. Kavanagh, adopted the standard set forth by Justice (then Judge) Levin’s dissent in the Court of Appeals. Keith v Chrysler Corp, 41 Mich App 708, 714; 200 NW2d 764 (1972). In that dissenting opinion Justice Levin criticized the Court’s reasoning in Losada and cited with approval the following language from In re Watson, 273 NC 629; 161 SE2d 1 (1968):

"In the light of the legislative declaration of policy contained in the Employment Security Act, we conclude that an employee, having been separated from his job through no fault of his own, rejects other tendered employment for 'good cause’ when his reason for such rejection would be deemed by reasonable men and women valid and not indicative of an unwillingness to work.”

Thus, a significant minority of the Supreme Court has spoken in favor of a test in determining good cause, as opposed to the "personal reasons” test of Losada. We are bound by the decision for affirmance in Keith until it is changed by the higher court. Dueweke v Morang Drive Greenhouses, Inc, 91 Mich App 27; 282 NW2d 823 (1979).

Under either test, we find that the claimant did not have good cause for refusing plaintiffs offer of reemployment. The referee found that the claimant was aware of plaintiffs offer to provide security protection for his car and himself. Yet, claimant still refused to work for fear of the neighborhood. This fear was found to be insufficient cause for his quitting the job in the first place and does not constitute good cause for refusing the offer of reemployment, especially in light of the employer’s offer to provide more security.

Accordingly, we hold that plaintiff refused without good cause an offer of suitable work and thereby is disqualified for six weeks of unemployment benefits beginning with the week ending November 22, 1975. The lower court’s opinion affirming the award of benefits during this period is reversed.


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

text:
    PEOPLE v BARNES
    Docket No. 78-875.
    Submitted June 13, 1979, at Lansing.
    Decided November 6, 1979.
    Brian Barnes was convicted, on his plea of guilty, of delivery of heroin, Jackson Circuit Court, Russell E. Noble, J. Defendant had been incarcerated in a Federal penitentiary a short time before the date scheduled for his trial in circuit court, and his presence in circuit court was secured by a writ of habeas corpus ad prosequendum. He pled guilty, and was returned to the Federal penitentiary to await sentencing. Defendant appeals, alleging that the failure to lodge him in the county jail during the time between the acceptance of his guilty plea and his sentencing constituted a violation of the Interstate Agreement on Detainers, mandating reversal of his conviction. Held:

    The Interstate Agreement on Detainers is violated if a defendant whose presence has been secured by means of a detainer is returned to the original place of imprisonment without trial being had. "Trial”, for the purposes of the agreement, refers to the determination of guilt, and upon acceptance of the defendant’s guilty plea the trial ended. His return to Federal confinement before sentencing was not a violation of the agreement.
    Affirmed.
    T. M. Burns, J., concurs in the result for the reason that a writ of habeas corpus ad prosequendum is not a detainer within the meaning of the Interstate Agreement on Detainers.
    Opinion of the Court
    1. Criminal Law — Interstate Agreement on Detainers — Trial •— Statutes.
    The word "trial” as used in the Interstate Agreement on Detainers refers to the determination of a defendant’s guilt and the trial ends with that determination; therefore, the agreement is not violated where a defendant, whose presence in a state court for trial was obtained from a Federal prison by writ of habeas corpus ad prosequendum, is returned to the Federal prison after entering a plea of guilty to the state charge but before being sentenced on that charge, where he is returned for sentencing on another writ of habeas corpus ad prosequendum and where sentencing is not delayed but is entered within a reasonable period (MCL 780.601; MSA 4.147[1]).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 250.2.
    [2] 21 Am Jur 2d, Criminal Law § 251.1.

      Concurrence by T. M. Burns, J.
    2. Criminal Law — Interstate Agreement on Detainers — Habeas Corpus ad Prosequendum — Statutes.

      A writ of habeas corpus ad prosequendum is not a detainer within the meaning of the Interstate Agreement on Detainers (MCL 780.601; MSA 4.147[1]).

      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.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

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

   Per Curiam.

Defendant appeals his plea-based conviction of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), on the grounds that between the date of his plea of guilty on October 4, 1977, and the date of sentencing on November 18, 1977, defendant was confined in the Federal prison at Milan, Michigan rather than being incarcerated in the Jackson County jail. Defendant claims that the failure to confine defendant in the county jail constitutes a violation of Article IV(e) of the Interstate Agreement on Detainers (IAD), MCL 780.601; MSA 4.147(1), and mandates reversal of defendant’s conviction.

Defendant was simultaneously charged with a Federal offense and the state offense of delivery of heroin. On April 12, 1977, he was arraigned in circuit court on the state charge and on September 8 was notified that his trial was scheduled for October 5, 1977. At the time of his arraignment defendant was confined in the Jackson County jail. On September 29, 1977, defendant was sentenced on the Federal charge to ten years imprisonment at the Federal penitentiary at Milan. He was taken to that institution where he remained confined until October 4, 1977, when he was brought to the Jackson County courthouse by use of a writ of habeas corpus ad prosequendum. On October 4, 1977, he entered a plea of guilty to the state charge and on October 5, 1977, was returned to Federal custody at Milan. On November 8, 1977, he was again brought to Jackson by a writ of habeas corpus ad prosequendum and was sentenced to 7-1/2 to 20 years imprisonment to be served concurrently with his Federal sentence. He was returned to Federal prison láter the same day and appeals of right.

Article IV(e) of the Interstate Agreement on Detainers provides:

"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

The statute is applicable only where a detainer is entered, but defendant claims that a writ of habeas corpus ad prosequendum is a detainer within the meaning of the IAD. This Court so held in People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978). Defendant also argues that sentencing procedures are part of the "trial” as that term is used in Article IV(e) of the IAD. Walker v King, 448 F Supp 580 (SD NY, 1978). The people contend Beamon has been nullified by the Supreme Court’s decision in United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978), that a Federal writ of habeas corpus ad prosequendum was not a detainer within the meaning of the IAD and ask that this panel reject Beamon. The people further argue that defendant’s "trial” was completed when defendant pled guilty and consequently a return to "the original place of imprisonment” before sentencing is not a violation of Article IV(e) of the detainer statute.

We find the people’s second argument persuasive. The precise issue was raised and decided in the prosecution’s favor in People v Housewright, 83 Mich App 346, 348-349; 268 NW2d 401 (1978):

"In Michigan cases, outside of the Interstate Agreement on Detainers, the distinction between trial and sentencing is well established, see People v Funk, 321 Mich 617, 621; 33 NW2d 95 (1948), People v DeVine, supra [271 Mich 635; 261 NW 101 (1935)], MCL 771.1; MSA 28.1131. Also, the goals behind the Interstate Agreement on Detainers supports this interpretation. The main goal of the agreement is to remove the harmful uncertainties concerning the defendant’s release that are caused by the filing of detainers concerning unprosecuted crimes. Although the imposition of a sentence can also create uncertainties as to the prisoner’s future, the main concern of the agreement is with the uncertainty which results from unprosecuted charges. * * * The uncertainty caused by the delay in sentencing is minimal when compared with the uncertainty resulting from untried charges. Therefore, we hold that the word 'trial’ as used in MCL 780.601; MSA 4.147(1), refers to the determination of defendant’s guilt and that the trial ends with that determination.”

We recognize that in Housewright the defendant, having pled guilty pursuant to a plea bargain, was reasonably certain what sentence would be imposed whereas in the case before us the maximum sentence could be 20 years and defendant was left unsure of the length of time he would be required to remain in prison. However, we believe this distinction is minimal and totally overshadowed by the policy considerations expressed in the Housewright opinion. We also note that on the day defendant pled guilty the trial court set a certain date, November 18, for sentencing. There was no adjournment of that date.

We further recognize that Housewright is contra to the Federal district court’s opinion in Walker v King, supra. However, we are not bound by a Federal decision and conclude that the sounder reasoning is contained in Housewright. We also observe that in Walker the state was apparently waiting for defendant to complete his Federal sentence before imposing the state sentence and 18 months had already elapsed between the plea of guilty and the date of the Walker decision. In the instant case the state moved promptly so that the state sentence could be served concurrently with the Federal sentence.

Finally, we offer an additional argument in support of Housewright. The penalty set forth in Article IV(e) for violation of the statute is that "such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice”. This language suggests that Congress only intended to include pre-conviction proceedings. Otherwise Congress would have included in the penalty clause language that the conviction or the sentence be vacated. Once a guilty verdict is returned or a guilty plea accepted, the instruments referred to in Article IV(e), ("indictment, information or complaint”) are no longer viable functioning documents. Realistically, the conviction discharges the instrument. Thus, we believe Congress intended the "trial” to end when a conviction was entered or a plea was accepted and did not intend to include post-conviction proceedings within the detainer statute.

But even if we are wrong in this conclusion and the statute is found to include sentencing, we conclude that where, as here, sentencing is not delayed but is entered within a reasonable period and defendant is informed of the date of sentencing and that date is adhered to, the intent of the IAD is not violated if, following the plea of guilty, defendant is returned to the original place of imprisonment. To hold otherwise places form over substance.

Affirmed.

T. M. Burns, J.

(concurring). Although I originally was of the contrary view, see People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978), a writ of habeas corpus ad prosequendum is not a detainer within the meaning of Article IV(e) of the Interstate Agreement on Detainers. United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). Because the decision of the United States Supreme Court in Mauro cannot be distinguished from the instant case, I concur in the result reached by the majority.

       For a similar case involving the applicability of Article IV(e) of the IAD see People v Estelle, 93 Mich App 449; 287 NW2d 262 (1979), released concurrently with the opinion in the instant case.

       The claim that Beamon has been overruled by Mauro was made in People v Estelle, supra, released concurrently with our opinion in the instant case.

       "We therefore held that the only interpretation of the Act which is consistent with the Congressional intent and purposes is one which requires a state which has taken custody of a prisoner for purposes of resolving an untried indictment, to sentence that prisoner before returning him to the original place of imprisonment. Thus, Respondents violated the Act when they returned Petitioner to federal prison before sentencing.” Walker, supra, at 588.