author: D. E. Holbrook, Jr., J.

text:
    HINER v STATE HIGHWAY COMMISSION HINER v JELINEK
    Docket Nos. 78-4941, 78-5102, 78-5103.
    Submitted November 14, 1979, at Detroit.
    Decided April 1, 1980.
    Leave to appeal applied for.
    Danny Hiner and Lorri Hiner were injured and Vicki Duggan was killed when Danny Hiner’s automobile slid out of control on an icy bridge and was struck by another vehicle driven by Joseph Jelinek and owned by Jelinek’s employer, Joggle Tool & Die Company. Actions for damages were brought by the Hiners, Darlene Duggan for herself and as administratrix of the estate of Vicki Duggan and Darlene’s husband Harold Duggan in both the Macomb Circuit Court and the Court of Claims. Defendants in the circuit court actions were Jelinek, Joggle Tool & Die, Lawrence Oehmke, individually and as chairman of the Ma-comb County Road Commission and others including the State Highway Commission. Defendant in the Court of Claims was the State Highway Commission. The Macomb Circuit Court, Robert J. Chrzanowski, J., granted summary judgment to the Macomb County Road Commission on the grounds that the bridge was under the jurisdiction of the State Highway Commission and granted accelerated judgment to the State Highway Commission on the grounds that jurisdiction of the action was in the Court of Claims. The Court of Claims, James G. Fleming, J., granted summary judgment to the State Highway Commission, holding that jurisdiction of the bridge was under the Macomb County Road Commission. Plaintiffs appeal from both courts, and the appeals were consolidated. Held:

    1. Defendant Oehmke objects to the appeal from circuit court on the basis that the Macomb County Road Commission was not a named defendant in the action. Although the Macomb County Road Commission itself was not named as a defendant, Oehmke obtained the summary judgment for it by arguing the merits. There was no objection at trial to the misnomer, and the issue is waived for purposes of the appeal.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 553, 590, 591, 592.
    [2] 46 Am Jur 2d, Judgments §§ 231, 379, 404.
    [3] 39 Am Jur 2d, Highways, Streets, and Bridges § 199 et seq.

      2. Plaintiffs appealed from the final order of the circuit court in a timely manner.
    3. The Court of Claims erred in granting summary judgment to the State Highway Commission. A genuine issue of fact exists as to whether the state or the county has jurisdiction over the bridge.
    4. The question of jurisdiction over the bridge should be decided in a single forum. Therefore, the actions are to be consolidated upon remand to the circuit court.
    Reversed and remanded to the Macomb Circuit. Court.
    1. Appeal — Pleading — Name of Party — Preserving Issue.
    Failure to object in the trial court to a mistake in the designation of a defendant, where service was proper and where it was clear who the plaintiffs intended to reach, precludes consideration of the issue of the misnomer on appeal.
    2. Judgments — Orders — Revision of Orders — Court Rules.
    A partial disposition of a case does not terminate the action as to any of the claims or parties unless the court directs the entry of a final judgment; an order of a trial court may be revised at any time before entry of a judgment adjudicating all the claims and all the rights of all the parties (GCR 1963, 518.2).
    3. Highways — Jurisdiction — Question of Fact.
    The question of jurisdiction over a road is a question of fact.

      George J. Parish, for Danny Hiner.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiffs Lorri Hiner, Darlene Duggan and Harold Duggan.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Carl K Carlsen and Robert J. Eisenberg, Assistants Attorney General, for the State Highway Commission.

      Freeman, McKenzie, Matthews, Scherer & Stepek, P.C., for defendant Oehmke.

      Before: R. B. Burns, P.J., and M. F. Cavanagh and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

Plaintiff Danny Hiner’s car slid out of control on an icy bridge and was hit by another vehicle. Danny and Lorri Hiner were seriously injured and Vicki Duggan was killed. The bridge spans the 1-94 expressway and is located on County Line Road, the common border of Macomb and St. Clair counties. Negligence actions were filed against the other driver, his employer and also against the county and state agencies for failure to post signs or give adequate warning of the dangerous and/or defective condition of the highway, particularly during inclement weather, which rendered it unsafe and unfit for travel. The pleadings, filed in Macomb County Circuit Court, listed as defendants: Joseph Jelinek; Joggle Tool & Die Co, a Michigan corporation; Lawrence Oehmke, individually and as Chairman of the Macomb County Road Commission; John Zoccola as Chairman of the Macomb County Board of Commissioners; U. Grant Burch, individually and as Chairman of the St. Clair County Road Commission; James Corden, individually and as Chairman of the St. Clair County Board of Commissioners; and the State of Michigan, State Highway Commission; jointly and severally.

The Macomb County Road Commission (MCRC), through its chairman Lawrence Oehmke, obtained summary judgment on grounds that the bridge was under the exclusive jurisdiction of the State Highway Commission. The State Highway Commission obtained accelerated judgment on the grounds that the Court of Claims had exclusive jurisdiction in actions against the state. Plaintiffs moved for reconsideration of the order dismissing the MCRC. They also filed suit against the State Highway Commission in the Court of Claims and requested that the suit be moved to Macomb County Circuit Court and consolidated with the actions pending there. The Court of Claims found it unnecessary to rule upon the motion to consolidate as it granted summary judgment for the State Highway Commission on the basis that MCRC had jurisdiction over the bridge.

Plaintiffs appeal from the Macomb Circuit Court’s "amended order for summary judgment on behalf of the Macomb County Road Commission” and from the Court of Claims grant of summary judgment for the State Highway Commission. Defendant Oehmke objects to this appeal on the basis that the MCRC was never a named defendant in this action. Apparently, plaintiffs and defendants originally understood the naming of Lawrence Oehmke to include the Commission. This is contrary to MCL 224.21; MSA 9.121 which provides ip relevant part:

"Actions arising thereunder shall be brought against the board of county road commissioners of the county and service shall be made upon the clerk and upon the chairman of the board made defendant therein, which shall be named in the process as the 'board of county road commissioners of the county of * *

Should this Court find that the MCRC was not a defendant, plaintiffs will not be able to correct the error because of the statute of limitations. There was no objection initially that MCRC was not named in the pleading. A case involving similar principles is Johr v Board of Supervisors of St Clair County, 38 Mich 532, 535-536 (1878). In that case suit was instituted by the county in the name of "St. Clair supervisors” instead of the "County of St. Clair”. The defendants, Johr, answered to the merits, but on appeal objected that the county should have sued in its own name. In holding that the defect could be cured by an amendment the Court stated:

"There has been no room for dispute in regard to actual identity. There can be none. However called or named the plaintiff is the county of St. Clair.

"The true objection then is, that there is a misnomer; that the plaintiff below ought to have been designated The County of St. Clair and not The Board of Supervisors of the county of St. Clair.”

The Court held the objection to have been waived analogizing that situation to similar ones involving corporations:

" 'In suits or proceedings by or against any corporation, a mistake in the naming of such corporation shall be pleaded in abatement; and if not so pleaded shall be deemed to have been waived.’

"Conceding as before that in designating the plaintiff there was an error in the name, and supposing it not to have been waived, and still the judgment could not rightly be reversed on that account.” Id., p 536.

In Kimbal & Austin Manufacturing Co v Vroman, 35 Mich 310 (1877), the pleadings named the defendant as "William A. Tomlinson, as president for the time being of the Kimbal & Austin Manufacturing Company”. At trial an amendment was allowed whereby Tomlinson’s name and official character were stricken out, and the suit was left to stand as against the company by name. This was excepted to as creating a change of parties. The Court held:

"The statute [of amendment] was not intended to allow changes in the parties actually supposed and intended to be brought before the court. It is only in case of an undesigned misnomer, and where the interests of substantial justice will allow it, without a real change in the identity of the opposing litigants, that such amendments should be permitted. Where, however, no substantial rights are affected, and it is clear what persons were meant to be reached, the law permits the record to be rectified by affixing the true name to the misnamed party.” Id., p 319.

In the instant case no one was ignorant of the real object of the suit. Service was made upon the Clerk and upon the Chairman of the Board as required by statute precisely as it would have been had no mistake been made. Plaintiffs do not argue on appeal that summary judgment was improper as to Lawrence Oehmke, individually, or in his capacity as Chairman of the MCRC. Neither do they seek reversal of that order in their requested relief. This was not an issue in the lower court. The naming of Oehmke as defendant was an undesigned misnomer. No substantial rights of defendants were affected as it was always clear that plaintiffs intended to reach MCRC. Oehmke obtained summary judgment for the MCRC by arguing on the merits that the State Highway Commission had jurisdiction over the bridge; he did not argue back in 1975 that MCRC was not a properly named defendant to the suit. The objection was not pleaded then and it may not be pleaded now. The issue is waived.

Oehmke’s procedural arguments are without merit. GCR 1963, 518.2 provides that a partial disposition does not terminate the action "as to any of the claims or parties” unless the court directs the entry of a final judgment. It also allows revision of an order at any time before a judgment adjudicating all the claims and all the rights of all the parties. Under this subrule the trial court had power to revive the orders to make them final. Plaintiffs timely appealed from the final order.

We further find that the Court of Claims erred in granting the state’s motion for summary judgment for lack of jurisdiction over the expressway overpass. Genuine issues as to material facts exist. This Court has held that the jurisdictional nature of a road is a question of fact. Robinson v Emmet County Road Comm, 72 Mich App 623, 641; 251 NW2d 90 (1976). We also find that the question of jurisdiction should be determined in a single forum in which a circuit judge sitting simultaneously as trial judge in the Court of Claims will thave before him all relevant and necessary pleadings, affidavits, depositions, briefs and testimony. This would avoid the possibility of inconsistent findings, i.e., the Court of Claims finding that the State Highway Commission did not have jurisdiction and the circuit court finding that the MCRC did not have jurisdiction while obviously one or the other or both did have jurisdiction. MCL 600.6421; MSA 27A.6421:

"Cases in the court of claims may be joined for trial with cases arising out of the same transaction or series of transactions which are pending in any of the various circuits of the state. A case in the court of claims shall be tried and determined by the judge even though the circuit court action with which it may be joined is tried to a jury under the supervision of the same circuit judge.”

Consolidation would promote the convenient administration of justice within the meaning of GCR 1963, 206.1(2). Freissler v State Highway Comm, 53 Mich App 530; 220 NW2d 141 (1974). Each plaintiff suffered a single indivisible injury as a result of the automobile accident in question. It would be manifestly unjust and inequitable to force them to litigate the issues revolving around MCL 691.1402; MSA 3.996(102) in separate forums when there are obviously common issues of fact and law which would be better resolved in one action. Moreover, defendants would not be prejudiced in that they would still have the opportunity to fully argue their positions with respect to jurisdiction.

Reversed and remanded to the Macomb County Circuit Court for proceedings consistent with this opinion. No costs, a public question being involved.


source: Caselaw Access Project

license: Public Domain

text:
    STRICKER v DEPARTMENT OF STATE HIGHWAYS
    Docket No. 78-4953.
    Submitted November 14, 1979, at Detroit.
    Decided April 1, 1980.
    Bruce D. Strieker’s truck became stuck on railroad tracks at an intersection. A train hit Strieker broadside causing serious injuries and loss of his arm. Strieker sued Grand Trunk Western Railroad Company, Macomb County Road Commission and other defendants in Macomb Circuit Court. He also filed a complaint against the State Highway Department in the Court of Claims, where he moved for consolidation of the circuit court and the Court of Claims actions. His claims were based upon negligent design, maintenance and control over a railroad crossing. The Court of Claims, John W. Baker, J., granted summary judgment to the State Highway Department on the basis that the railroad tracks were under the exclusive jurisdiction of the Macomb County Road Commission. As a result of the summary judgment, no decision was made on plaintiffs motion for consolidation. Plaintiff appeals. Held:

    1. The jurisdiction over a road is often a question of fact. It is possible for a county to have jurisdiction and for the State Highway Department to have concurrent jurisdiction. Where an injured plaintiff sues for damages resulting from a roadway accident, he should be given an opportunity in court to prove whether there is liability in the state, the county, or both. The grant of summary judgment was improper. On remand, the question of jurisdiction should be determined in a single forum with a circuit judge sitting as trial judge in the Court of Claims and also sitting to hear the case against the Macomb County Road Commission. This joinder of the separate actions promotes the administration of justice because it avoids the possibility of inconsistent findings and eliminates the litigation of issues in separate forums where common issues of fact and law exist with respect to the two actions.
    Reversed and remanded to the Macomb Circuit Court for further proceedings.
    References for Points in Headnotes
    [1] 39 Am Jur 2d, Highways, Streets, and Bridges § 340 et seq.

    [2] 40 Am Jur 2d, Highways, Streets, and Bridges §§ 204, 582.
    [3] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 271, 579.
    [4] 1 Am Jur 2d, actions § 122 et seq.

      1. Highways — Action for Damages — Governmental Agencies — Negligence — Liability — Statutes.
    A person may recover damages from a governmental agency where he sustains bodily injury or property damage by reason of the agency’s failure to keep any highway under its jurisdiction in reasonable repair and in condition reasonably safe and fit for travel (MCL 691.1402; MSA 3.996[102]).
    2. Highways — Jurisdiction over Roads — County Jurisdiction — State Jurisdiction — Liability — Question of Fact.
    The fact that a county maintains jurisdiction over a road does not totally eliminate the possibility that the state highway department could also maintain concurrent jurisdiction over the road; therefore, the jurisdiction over a road is a question of fact and an injured plaintiff, suing for damages on a claim of negligent design or maintenance and control, should be given an opportunity in court to prove whether there is liability in the state, the county, or both.
    3. Highways — Jurisdiction — Actions Against County — Actions Against State — Common Issues — Consolidation of Actions.
    The question of whether a county or state highway department has jurisdiction over a road should be determined in a single forum to avoid the possibility of inconsistent findings and to eliminate the litigation of issues in separate forums where common issues of fact and law exist with respect to two or more actions arising out of the same accident.
    4. Courts — Court of Claims — Circuit Court Actions — Joinder of Actions — Statutes.
    Cases in the Court of Claims may be joined for trial with cases arising out of the same transaction or series of transactions which are pending in any of the various circuits of the state (MCL 600.6421; MSA 27A.6421).

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Carl K. Carlsen and Robert J. Eisenberg, Assistants Attorney General, for defendant.

      Before: R. B. Burns, P.J., and M. F. CAvanagh and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

While crossing a railioad intersection on 24 Mile Road in Macomb County, plaintiffs truck became stuck on the tracks because they were situated on an incline and covered with ice. A train hit plaintiff broadside, causing him to suffer permanent burns and scarring over half his body as well as other injuries, including the loss of his arm.

Plaintiff instituted suit against the Grand Trunk Western Railroad Company, Macomb County Road Commission, and other named defendants in the Macomb County Circuit Court. He filed against the State Highway Department in the Court of Claims where he also moved for consolidation of the circuit court and Court of Claims actions. The Court of Claims granted the State Highway Department summary judgment on the basis that the railroad tracks were under the exclusive jurisdiction of the Macomb County Road Commission. As a result thereof, it did not find it necessary to decide oh the motion for consolidation. Plaintiff appeals as of right.

MCL 691.1402; MSA 3.996(102) provides:

"Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.”

Plaintiffs claims involve negligent design, maintenance and control over a railroad crossing pursuant to MCL 247.822; MSA 9.216(102), an executive order transferring the Public Service Commission’s railroad regulatory function to the State Highway Department.

MCL 247.652; MSA 9.1097(2) and MCL 247.655; MSA 9.1097(5) require the Board of County Road Commissioners to certify those roads selected as county primary and county local roads. An affidavit from the engineer of the local government division of Michigan Department of State Highways and Transportation stated that 24 Mile Road was certified by the Macomb County Road Commission as being under their jurisdiction. Furthermore, the county highway engineer from Macomb County Road Commission stated that said roadway was under Macomb County Road Commission jurisdiction. Nevertheless, there were conflicting affidavits which would indicate a question of fact as to jurisdiction over the road. This Court has held that the jurisdictional nature of a road is a question of fact. Robinson v Emmet County Road Comm, 72 Mich App 623, 641; 251 NW2d 90 (1976).

While we do not hold that because the State Highway Department has authority over the public entities responsible for maintaining safe railroad crossings it has jurisdiction over the crossings of roadways themselves, we do feel that genuine issues as to material facts exist in the instant case. We feel plaintiff should be given an opportunity in court to prove whether there is liability either of the state, the county, or both. The fact that the Macomb County Road Commission maintains jurisdiction over the road in question does not totally eliminate the possibility that the defendant State Highway Department could also maintain concurrent jurisdiction over the road.

We also find that the question of jurisdiction should be determined in a single forum in which a circuit judge sitting simultaneously as trial judge in the Court of Claims will have before him all relevant pleadings, affidavits, depositions, testimony, and briefs with respect to the question of jurisdiction. This would avoid the possibility of inconsistent findings, i.e., the Court of Claims finding that the State Highway Department did not have jurisdiction and the circuit court finding that the Macomb County Road Commission did not have jurisdiction while obviously one or the other or both did have jurisdiction. MCL 600.6421; MSA 27A.6421 provides:

"Cases in the court of claims may be joined for trial with cases arising out of the same transaction or series of transactions which are pending in any of the various circuits of the state. A case in the court of claims shall be tried and determined by the judge even though the circuit court action with which it may be joined is tried to a jury under the supervision of the same circuit judge.”

Plaintiff suffered a single indivisible injury as a result of the automobile accident in question. It would be manifestly unjust and inequitable to force him to litigate the issues revolving around MCL 691.1402; MSA 3.996(102) in separate forums when there are obviously common issues of fact and law with respect to the two actions. Moreover the State Highway Department would not be prejudiced in that it would still have the opportunity to fully argue its position with respect to jurisdiction. Consolidation would promote the convenient administration of justice within the meaning of GCR 1963, 206.1(2). Freissler v State Highway Comm, 53 Mich App 530; 220 NW2d 141 (1974).

Reversed and remanded to the Macomb County Circuit Court for proceedings consistent with this opinion. No costs, a public question being involved.


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

text:
    CAPMAN v HARPER-GRACE HOSPITAL
    Docket No. 78-5308.
    Submitted February 6, 1980, at Detroit.
    Decided April 2, 1980.
    Maryann Capman was admitted to Harper-Grace Hospital on December 6, 1976, to undergo surgery. On this date she executed án agreement whereby she agreed to arbitration of any medical malpractice claims. She was dischárged on December 19, 1976. Then, on February 7, 1977, she was readmitted to the hospital, but to a different section. The second stay lasted until February 17, 1977. During the second hospitalization it was discovered that she had fulminate hepatitis. On April 1, 1977, Maryann Capman notified Harper-Grace Hospital by registered mail that she wished to revoke the arbitration agreement. Subsequently Maryann Capman and David Capman brought a medical malpractice action against the hospital, alleging that Maryann Capman had contracted hepatitis during her stay in the hospital in December of 1976 because of the negligence of the defendant’s employees. The defendant filed a motion to submit the matter to arbitration. This motion wás denied, Wayne Circuit Court, Thomas Roumell, J. The defendant appeals, by leave granted, alleging that 1) since the arbitration agreement was signed by Maryann Capman, all issues involving its interpretation must be submitted to the arbitration pahel and, therefore, the trial court lacked jurisdiction to consider the plaintiffs’ arguments relative to the voluntariness of Mrs. Capman’s signature and the timeliness of her revocation, and 2) even if the circuit court had jurisdiction to hear plaintiffs’ defenses to its motion to compel arbitration, the trial court nevertheless committed error in denying the motion based solely on plaintiffs’ arguments, absent any supporting evidence in the way of sworn testimony or affidavits. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Arbitration and Award §§ 74-76.
    [2] 17 Am Jur 2d, Contracts § 153.
    [3] 30 Am Jur 2d, Evidence §§ 1016, 1034.
    Admissibility of oral evidence to show that a writing was a sham agreement not intended to create legal relatiohs. 71 ALR2d 382.
    [4] 5 Am Jur 2d, Arbitration and Award § 36.
    Arbitratioh of medical malpractice claims. 84 ALR3d 375.

      1. If Mrs. Capman’s signature was indeed coerced, the agreement would be void or at least voidable due to such duress. Similarly, if plaintiff Maryann Capman timely revoked the agreement, no basis existed to support the defendant’s motion to submit the matter to arbitration. Thus, the trial court properly exercised jurisdiction over the matter, since compulsory arbitration cannot precede a judicial determination of the validity of the agreement itself.
    2. The only evidence put forth by the plaintiffs that the defendant preconditioned health care for Mrs. Capman on her signing of the arbitration agreement was the unsupported assertion of plaintiffs’ counsel. This parol representation was sufficient to inject into issue the legitimate defense of coercion. However, this representation by itself was insufficient evidentiary support for a finding of coercion on the defendant’s part. Therefore, the matter is remanded for further factual development.
    3. The "discovery rule”, which tolls the running of the statute of limitations period in a medical malpractice action until the injury has been discovered or should have been discovered, does not apply to the revocation of an agreement to arbitrate a medical malpractice claim. The plaintiffs had 60 days to revoke the arbitration agreement. The running of this period was not tolled by the plaintiffs’ lack of knowledge of the existence of the injury, unless the plaintiffs can show on remand that the revocation was not timely made because Mrs. Capman was physically or mentally unable to communicate her revocation to the hospital. The issue of Maryann Capman’s ability to revoke during the 60-day period shall also be considered by the trial court on remand.
    Reversed and remanded for further proceedings.
    1. Arbitration — Power of Arbitrators — Court Rules.
    Arbitrators derive their power solely from the arbitration agreement; compulsory submission to arbitration cannot precede a judicial determination of the validity of the agreement itself (GCR 1963, 769.2[2]).
    2. Contracts — Undermining of Free Will.
    The existence of a coercive atmosphere which undermines the free will of one of the parties to a contract can vitiate an otherwise valid contract.

      3. Evidence — Contracts — Parol Evidence — Ambiguity — Void Contracts.
    Parol evidence inconsistent with the written terms of a contract is inadmissible where no ambiguity exists in the written contract; however, parol evidence may be offered to show that the written contract is void or not a binding force.
    4. Arbitration — Malpractice Arbitration Agreement —■ Revocation of Agreement.
    The 60-day period in which a patient may revoke a malpractice arbitration agreement after signing the agreement is not tolled by a patient’s unawareness of a possible medical malpractice claim.

      Bogos & Bogos (Robert T. Beneñel), for plaintiffs.

      Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. (by Donald A. Ducastel), for defendant.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr. and R. M. Maher, JJ.
   N. J. Kaufman, P.J.

Defendant appeals by leave granted from a Wayne County Circuit Court order denying its motion to compel arbitration of plaintiffs’ medical malpractice action.

Plaintiff Maryann Capman was first admitted to Harper-Grace Hospital on December 5, 1976, to undergo surgery. On this date, she executed an arbitration agreement on a form provided by the defendant. She was discharged on December 19, 1976. Then, on February 7, 1977, plaintiff Maryann Capman was readmitted to a different section of the hospital complex. Her second stay lasted until February 17, 1977. At some time during this second hospitalization, it was discovered that she had fulminate hepatitis, the condition upon which this litigation is based.

On April 1, 1977, plaintiff Maryann Capman notified defendant by registered mail that she wished to revoke the arbitration agreement. Then, on July 18, 1977, plaintiffs Maryann Capman and David Capman commenced a medical malpractice action against the defendant, alleging that plaintiff Maryann Capman contracted hepatitis during her December 5-19, 1976 hospitalization because of the negligence of defendant’s employees. Defendant thereupon filed a motion to submit this matter to arbitration based on the December 5, 1976, agreement. At the hearing upon defendant’s motion, plaintiffs argued that Maryann Capman was coerced into signing the arbitration agreement and that, in any event, the agreement was seasonably revoked on April 1, 1977, within 60 days after plaintiffs discovered the alleged malpractice. As stated, the trial court denied defendant’s motion thereby giving rise to this appeal.

Defendant’s first challenge is directed at the circuit court’s jurisdiction. It is defendant’s position that since there was no dispute that the form of the arbitration agreement properly complied with MCL 600.5040 et seq.; MSA 27A.5040 et seq., and since the agreement was signed by . plaintiff Maryann Capman, all issues involving its interpretation must be submitted to the arbitration panel and, therefore, the trial court lacked jurisdiction to consider plaintiffs’ arguments relative to the voluntariness of Mrs. Capman’s signature and the timeliness of her revocation.

We reject this contention. Arbitrators derive their power solely from the arbitration agreement. Smith v Highland Park Board of Education, 83 Mich App 541, 546; 269 NW2d 216 (1978), Chippewa Valley Schools v Hill, 62 Mich App 116, 119; 233 NW2d 208 (1975). The arguments plaintiffs raised at the hearing upon defendant’s motion were material to the question of the validity of this agreement itself. If Mrs. Capman’s signature was indeed coerced, the agreement would be void or at least voidable due to such duress. Similarly, if plaintiffs timely revoked the agreement, no basis would exist to support defendant’s motion. Thus, it becomes readily apparent that compulsory submission to arbitration cannot precede a judicial determination of the validity of the agreement itself. See GCR 1963, 769.2(2), which states that "[o]n application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate”. See also, Detroit Automobile Inter-Ins Exchange v Spafford, 62 Mich App 365; 233 NW2d 283 (1975), Grosse Pointe Farms Police Officers Ass’n v Chairman of the Michigan Employment Relations Comm, 53 Mich App 173, 177; 218 NW2d 801 (1974).

Next, defendant asserts that assuming, arguendo, that the circuit court had jurisdiction to hear plaintiffs’ defenses to its motion to compel arbitration, the trial court nevertheless committed error in denying the motion based solely on plaintiffs’ arguments, absent any supporting evidence in the way of sworn testimony or affidavits.

Plaintiffs defended against defendant’s motion on the grounds that defendant coerced Mrs. Cap-man into signing the agreement by informing her that no treatment would be afforded her until she signed. Additionally, plaintiffs argued that Mrs. Capman revoked the arbitration agreement within 60 days after she discovered her claim or became physically and mentally capable of such a revocation. Defendant correctly points out that these defenses were proffered solely by arguments from plaintiffs’ counsel and that plaintiffs presented no supporting evidence thereupon.

First, we will examine plaintiffs’ coercion defense. The existence of a coercive atmosphere which undermines the free will of one of the parties can vitiate an otherwise valid contract. See Fyan v McNutt, 266 Mich 406, 412; 254 NW 146 (1934). Thus, if defendant did precondition plaintiff Maryann Capman’s health care upon her signing the arbitration agreement, her free will might have been undermined and she might have been improperly coerced. Moreover, such a precondition is in direct violation of MCL 600.5042(2); MSA 27A.5042(2).

On the opposite side of the ledger, however, is the fact that the agreement plaintiff signed contained a bold-faced provision stating:

"This agreement to arbitrate is not a prerequisite to health care or treatment and may be revoked within 60 days after discharge * *

Moreover, the agreement complied with the requirements of the Malpractice Arbitration Act in all other material respects and, in such a case, a presumption of validity arises, MCL 600.5042(8); MSA 27A.5042(8). The plaintiffs then had the burden to come forward with evidence to rebut or meet this presumption. See MRE 301. As stated, the only evidence plaintiffs put forth was the unsupported assertion of plaintiffs’ counsel that defendant preconditioned Maryann Capman’s health care upon her signing the agreement.

Where no ambiguity exists in a written contract, parol evidence inconsistent with the written terms of the contract is inadmissible, Ericksen v Tawas Area School Dist, 85 Mich App 52; 270 NW2d 705 (1978). However, parol evidence may be offered " 'to show that the written contract is void, or not a binding force’ ”. Rood v Midwest Matrix Mart, Inc, 350 Mich 559, 564; 87 NW2d 186 (1957), Orr v Schmidt, Ellis & Associates, Inc, 28 Mich App 176, 180; 184 NW2d 329 (1970). In view of the foregoing, we find that plaintiffs’ parol representations did inject the legitimate defense of coercion into issue. However, we also find that the evidentiary support furnished by plaintiffs was insufficient. Therefore, we have decided to remand the present dispute for a further factual development. The trial court shall conduct a full hearing and take testimony as to what really transpired when Maryann Capman signed the instant arbitration agreement. In the interests of judicial economy, the trial court may also consider plaintiffs’ allegation that plaintiff Maryann Capman was not provided with an information brochure explaining the arbitration agreement at the time she executed it, as required under MCL 600.5041; MSA 27A.5041, albeit plaintiffs first raised this question on appeal.

Finally, as to plaintiffs’ contention that the arbitration agreement was timely revoked, we hold that the discovery rule does not apply to arbitration agreements. Where a statute of limitations could work a harsh result upon a person unable to recognize the existence of a claim, the discovery rule is important and necessary to temper this result by permitting a tolling of the statute. No such harsh result arises from the operation of the Malpractice Arbitration Act’s 60-day period allotted for revocation. After the passage of 60 days under the arbitration statute, if the plaintiffs do not revoke the agreement, their claim is submitted to arbitration. It is not lost to them as it would be if it were time-barred under a statute of limitations. Moreover, the arbitration act’s language is clear and specific requiring revocation within 60 days after discharge. The agreement incorporates this language. Plaintiffs agreed to submit any and all of their claims to arbitration. It makes no sense to interpret this language to-mean that the 60-day period is tolled while plaintiffs are unaware of these very same claims. A different situation would present itself if the plaintiffs were physically and mentally incapable of revoking during the 60-day period as can be seen below. The arbitration act offers a fair and reasonable means for resolving disputes which the plaintiff Maryann Capman agreed to upon signing the arbitration agreement with the defendant.

Therefore, if the court based the denial of defendant’s motion by applying the discovery rule and finding plaintiff Maryann Capman timely revoked her agreement, we hold that it was in error. However, if the court determined that plaintiff Maryann Capman was physically and mentally unable to communicate her revocation to the hospital within the required time or authorize her legal representative to do so and then ruled that, therefore, as a practical matter, that plaintiff was denied her opportunity to revoke, we would be inclined to agree depending upon plaintiffs’ supporting evidence. See Amwake v Mercy-Memorial Hospital 92 Mich App 546, 553; 285 NW2d 369 (1979). In view of the inadequacy of the record in this regard, we order the trial court to consider this issue upon remand as well.

In summary, then, we reverse and remand this case for a full evidentiary hearing. The trial court shall reconsider defendant’s motion to compel arbitration in light of the discussion herein. Further, in stating its conclusion, the trial court shall set forth the findings of fact and the law upon which it is based. It should be noted that the arbitration statute is in derogation of common law. It takes away one’s right to sue and have one’s case heard by a jury in a court of law. Although its dbjects are laudatory considering the plethora of malpractice litigation that has burdened our court dockets, the fact that it is purely a creature of statute in derogation of common law requires strict statutory compliance before arbitration may be ordered. To insure that such strict compliance was in effect herein, remand becomes necessary:

Reversed and remanded for a full hearing in accordance with this opinion. We do not retain jurisdiction.


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

text:
    JAY DEE CONTRACTORS, INC v FATTORE CONSTRUCTION CO
    Docket No. 43015.
    Submitted December 11, 1979, at Lansing.
    Decided April 2, 1980.
    Jay Dee Contractors, Inc. in 1969 and 1970 loaned to Fattore Construction Company sums totaling $25,255, such loans to be repaid within a reasonable time with interest. During thát same time period Fattore Construction Company leased to Jay Dee Contractors, Inc. certain construction equipment. At the time of these transactions, the right of Fattore Construction Company to do business as a corporation in Michigan had been suspended by reason of its failure to pay the annual franchise fee tax. Jay Dee brought an action to recover the sums loaned plus the accrued interest against Fattore Construction Company, Fattore Equipment Co., a corporation which allegedly acquired certain assets of Fattore Construction Company without payment of adequate consideration, and various officers of Fattore Construction Company. Defendants filed a counterclaim seeking the amounts unpaid and due under the equipment leases. Plaintiff moved for summary judgment of dismissal of the counterclaim on the basis that defendant Fattore Construction Company was statutorily barred from enforcing the lease contracts that were entered into during the suspension of its corporate powers. The Oakland Circuit Court, John N. O’Brien, J., granted the motion for summary judgment. Defendant Fat-tore Construction Company filed an amended counterclaim, plaintiff moved for summary judgment on the amended counterclaim, and summary judgment dismissing the amended counterclaim was entered. Defendant Fattore Construction Company then filed a second amended counterclaim seeking return of the unlawfully detained equipment and seeking damages arising out of that unlawful detention of the equipment. The trial court entered a judgment which ordered that the equipment be returned, but denied defendant Fattore Construction Company’s claim for damages arising out of the detention of the equipment. Defendant Fattore Construction Company appeals from the judgment ordering the return of the equipment but denying the request for damages. Held:

      References for Points in HeadnotES
    [1] 1 Am Jur 2d, Actions §§ 9, 21, 29.
    [2] 1 Am Jur 2d, Actions § 60.

      1. Defendant Fattore Construction Company’s second amended counterclaim, being an action to recover personal property that was unlawfully taken or detained, is an action which sounds in tort rather than contract. Since the statutory disability to bring suit because of the failure to pay the corporate franchise fee is limited to actions on contracts entered into during the period of the suspension of the corporate powers, defendant Fattore Construction Company is not barred from maintaining the unlawful detention action, even though that tort action arose out of the voidable lease contract.
    2. Defendant Fattore Construction Company was entitled to not only the return of the equipment but also to such tort damages as it can show to have arisen out of the unlawful detention of its property. Defendant is not, however, entitled to recover any sums due on the lease or any recovery on the quasi-contract theory of quantum meruit.

    Reversed and remanded.
    1. Actions — Unlawful Detention of Personal Property — Nature of Action — Corporations — Contract Action Disability — Statutes.
    An action to recover personal property which was unlawfully taken or detained is an action which sounds in tort rather than contract; accordingly, such a cause of action is not barred by the disability language of the former franchise fee statute, since the statutory disability to maintain actions by corporations that failed to pay the franchise fee tax was limited to suits on contracts entered into during the period that the corporate charter was suspended because of the nonpayment of the franchise fee tax (MCL 450.87; MSA 21.87).
    2. Actions — Unlawful Detention of Personal Property — Corporations — Contract Action Disability — Damages — Statutes.
    An action to recover personal property unlawfully taken or retained brought by a corporation that is under the former statutory disability from maintaining a cause of action sounding in contract because of the failure to pay the franchise fee tax includes not only the right to recover property, but also, the right to seek any tort damages that arose as a result of the unlawful detention of the property; however, a corporation so disabled from maintaining an action sounding in contract is not entitled to recover any sums which would have been payable under a personal property lease on the quasi-contract theory of quantum meruit (MCL 450.87; MSA 21.87).

      Keifer, Allen & Cavanagh, for plaintiff.

      Emil E. Cardamone, for defendants.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   T. M. Burns, P.J.

Defendant Fattore Construction Company appeals of right a December 15, 1978, judgment on its counterclaim awarding it custody of property that had been unlawfully detained by plaintiff but denying its request for damages that accrued as a result of the unlawful detention.

At the time that this cause of action arose, the defendant corporation was required under the provisions of the corporation fees, taxes and charges act, MCL 450.301 et seq.; MSA 21.201 et seq., to file an annual report and to pay a yearly franchise fee tax. Section 87 of the franchise fee tax, MCL 450.87; MSA 21.87, provided that the failure of a corporation to pay this yearly tax or to file an annual report pertaining to its Michigan business activity suspended the corporation’s right to do business in Michigan. It further stated that until the corporation paid the delinquent tax it could not maintain "any action or suit in any court of this state upon any contract entered into during the time of such default”.

It is undisputed that in 1969 and in 1970, when the defendant corporation leased property to the plaintiff, the corporation did not file its annual report or pay its franchise fee tax. Sometime after the lease had been executed, plaintiff sued the defendant corporation, its officers and another corporation owned by one of the officers for money due on a promissory note. Defendants counterclaimed for amounts allegedly due under the lease. Plaintiff moved for, and was granted, summary judgment on the counterclaim on the ground that § 87 of the franchise fee act prevented a suit on the lease. Plaintiff was also granted summary judgment on defendant construction company’s first amended counterclaim.

On December 22, 1976, defendant construction company filed a second amended counterclaim in which it alleged that it waS entitled either to a return of the property held by plaintiff under the unenforceable lease or to the fair value of the property. Defendant construction company also sought damages accruing from plaintiff’s detention of the property. On December 15, 1978, the lower court held that defendant construction company was entitled to a return of the property but that, by virtue of § 87 of the franchise fee act, it could not recover any damages for plaintiff’s Unlawful detention of it. We reverse.

Defendant’s counterclaim was premised on MCL 600.2920; MSA 27A.2920, which permits recovery of personal property unlawfully taken or detained. See also, GCR 1963, 757. Actions brought under this statute sound in tort and not contract. The failure of the defendant corporation to pay its franchise fee taxes in 1969 and 1970 only precludes it from bringing contract actions, not tort actions. John J Gamalski Hardware, Inc v Wayne County Sheriff, 298 Mich 662; 299 NW 757; 136 ALR 1155 (1941). The fact that defendant’s tort cause of action arose out of a void contract makes no difference. Rex Beach Pictures Co v Harry I Garson Productions, 209 Mich 692; 177 NW 254 (1920).

We hold, therefore, that defendant is entitled not only to a return of the unlawfully detained property but also to any damages that arose as a direct consequence of the unlawful detention of its property. Of course, defendant is not entitled to any recovery for sums due on the lease or to any recovery on the quasi-contract theory of quantum meruit. We are not persuaded by plaintiff’s arguments that the judgment of the lower court is not appealable and that this Court does not have jurisdiction over this controversy.

Reversed and remanded for further proceedings consistent with this opinion.

       The corporate franchise fee tax was repealed in a two stage process, with certain provisions of the act being repealed in 1972 and the remainder in 1975. See, 1972 PA 284, § 1098(f) and 1975 PA 230, § 1(1).

       This section was repealed in 1972. See 1972 PA 284, § 1098(b).


author: Allen, P.J. V. J. Brennan, J.

text:
    CLINK v BOARD OF COUNTY ROAD COMMISSIONERS OF LIVINGSTON COUNTY
    Docket No. 43023.
    Submitted January 3, 1980, at Lansing.
    Decided April 2, 1980.
    Leave to appeal applied for.
    Walter Clink, superintendent of the Livingston County Road Commission, was summarily discharged from his employment by the Board of County Road Commissioners of Livingston County. Clink brought an action against the Board of County Road Commissioners and against the two individual commissioners who had voted to discharge him, Melvin Simon and James Featherly. The count against the individual defendants was dismissed and the case was submitted to the jury on the theory of breach of an implied contract of employment. Judgment was entered on the jury verdict in favor of Clink, Livingston Circuit Court, Bert M. Hensick, J. The Board of County Road Commissioners filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was denied, and the board appeals. Held:

    1. The facts, when viewed in favor of the plaintiff as is necessary when reviewing the denial of the defendant’s motion for a judgment notwithstanding the verdict, indicate that the plaintiff established that he had a contract of employment for an indefinite term. Such a contract is terminable by either party at will. There were no distinguishing features or provisions or special considerations passing from the plaintiff to the board which would except the plaintiff from the general rule. Therefore, the trial court erred in not granting the motion for a judgment notwithstanding the verdict.
    2. Clink had no property interest in his position which would require the board to afford him due process protections.
    Reversed.
    References for Points in Headnotes
    [1] 46 Am Jur 2d, Judgments § 106 et seq.

    [2] 53 Am Jur 2d, Master and Servant § 32.
    Validity and duration of contract purporting to be for permanent employment. 60 ALR3d 226.
    [3] 63 Am Jur 2d, Public Officers and Employees § 177 et seq.

    [4] 53 Am Jur 2d, Master and Servant § 37.

      V. J. Brennan, J., dissented. He would hold that the plaintiff did have a property interest in his employment and therefore was entitled to certain due process protections. Because he was not afforded these protections, the plaintiff did have a cause of action and the case was properly submitted to the jury. He would affirm.
    Opinion of the Court
    1. Motions — Judgment Notwithstanding the Verdict.
    A motion for a judgment notwithstanding the verdict is appropriately granted only where the facts taken inferentially in favor of the nonmoving party preclude judgment for the nonmoving party as a matter of law.
    2. Contracts —• Employment Contracts — Permanent Employment.
    A contract for permanent employment, in the absence of some distinguishing features or provisions or of some special consideration passing from the employee to the employer other than the services to be performed by the employee, is a contract terminable with or without cause by either party at any time.
    3. Master and Servant — Employment — Property Interests — Due Process.
    A person must have a legitimate claim of entitlement to his employment in order to have a property interest in that employment, but where a public employee has no property right in his job, due process considerations do not attach. ■
    Dissent by V. J. Brennan, J.
    4. Master and Servant — Employment — Property Interests — Due Process.

      A public employee had a property interest in his employment, entitling him to certain due process protections before being discharged from employment, where the employer’s long-standing practice was to retain all employees whose work was satisfactory and where the employee in question had performed satisfactorily for 15 years.

      John R. Brennan, for plaintiff.

      Farhat, Burns & Story, P.C. (by Vittorio E. Porco), for defendant.

      Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Allen, P.J.

Defendant, Board of County Road Commissioners of Livingston County, appeals the trial court’s denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, following a five-day trial, after which a jury returned a verdict in favor of plaintiff, Walter Clink, in the amount of $152,000.

Plaintiff was hired by the Livingston County Road Commission as an assistant engineer in April, 1959. He continued in that position until August, 1969, at which time he was appointed superintendent. Plaintiff retained this position until April 25, 1974, when he was fired by a 2-1 vote of the defendant road commission. Commissioners Featherly and Simon voted to terminate plaintiff’s employment with the road commission, with Commissioner Jackson dissenting.

A considerable amount of testimony at the trial addressed the question of the duration of plaintiff’s employment with the road commission. Plaintiff conceded that at no time was his employment based upon a written contract with defendant. Rather, plaintiff testified that he believed the position to be permanent and that he thought that a former commissioner, Mr. Anderson, had told him the position was permanent, or at least available until he reached the mandatory retirement age of 65. At one point plaintiff testified that he thought defendant could not fire him for any reason short of good cause although he could leave the job if he gave adequate notice. In addition, plaintiff’s statements at an earlier deposition were introduced at trial and illustrated that plaintiff felt his position was a career position and that he was employed for life if his work remained satisfactory.

Other witnesses, including an engineer and a former commissioner of the defendant road commission, testified that they believed employment with the road commission was for life and for as long as work was available and performed satisfactorily by the employee.

In the minutes of the commissioners’ meeting at which plaintiff was appointed supervisor there is no indication of the duration of the employment. Plaintiff admitted that no formal action was ever taken by the board making him a lifetime employee. On cross-examination, defense counsel brought out statements plaintiff had made in an earlier deposition that no one from the road commission had ever told him orally or in writing that he was employed for the duration of his work life and that he served "at the pleasure of the board”. Mr. Anderson, on cross-examination, denied informing plaintiff that plaintiff had a job for the rest of his life. The road commission employee clerk at the time of plaintiff’s discharge testified that he did not believe he had a lifetime contract but served at the pleasure of the board and could be discharged anytime the board was dissatisfied with his performance, although he could recall no other person who had been discharged against their will. Two of the commissioners on the board when plaintiff was fired, Andrew Jackson and James Featherly, denied knowledge that plaintiff had a lifetime contract and thought they could discharge an employee with whom they were not satisfied.

There was conflicting testimony concerning the competency and qualifications of plaintiff as superintendent. Commissioner Jackson testified that he felt plaintiff was a competent supervisor and skilled road builder and that an independent con-suiting firm had issued a report which indicated plaintiff was doing a good job. Mr. Anderson stated that plaintiff was competent and qualified and did a good job. There was similar testimony from a local township official and a former employee of the road commission.

Defense counsel introduced as evidence a number of complaints about road conditions. Commissioners Simon and Featherly both stated that they had good reasons for discharging plaintiff and listed specific complaints about his job performance.

Plaintiff was discharged at a road commission meeting on April 25, 1974. The subject of the discharge was not on the agenda of the regular meeting and came as a surprise to plaintiff, Commissioner Jackson and the clerk. At the end of the meeting, Chairman Simon called an executive session and dismissed plaintiff from the room. He then informed Commissioner Jackson that he and Commissioner Featherly had decided to fire plaintiff. When Commissioner Jackson tried to initiate a discussion, he was told by Commissioner Simon that there was no time to discuss it. Plaintiff was invited back into the room and the resolution discharging him was made.

The matter of the discharge had never been discussed with Commissioner Jackson and he was given no opportunity to contribute to the decision. Commissioner Featherly testified that the discharge of plaintiff was Commissioner Simon’s idea. The two of them had met at a private session on April 11, 1974, at which they decided to fire plaintiff. The meeting was held just after a regular board meeting at which all three commissioners had been present. Commissioner Simon admitted that plaintiff had no prior knowledge that he was going to be fired on April 25, 1974, and no hearing was ever offered plaintiff.

Defendant’s claim on appeal is that the trial court erred in failing to grant its motion for a judgment notwithstanding the verdict. Such a motion is appropriately granted only if the facts taken inferentially in the nonmoving party’s favor preclude judgment for the nonmoving party as a matter of law. Jackson v Fox, 69 Mich App 283, 285; 244 NW2d 448 (1976), lv den 399 Mich 863 (1977), Ebling v Masco Corp, 79 Mich App 531, 533; 261 NW2d 74 (1977), lv gtd 402 Mich 950j (1978), Sabraw v Michigan Millers Mutual Ins Co, 87 Mich App 568, 571; 274 NW2d 838 (1978), lv gtd 406 Mich 968 (1979). Applying this standard, we find that the trial court erred because the facts taken inferentially in plaintiff’s favor preclude judgment on Count I of the complaint as a matter of law.

The case was tried on the first count of a four-count complaint in which plaintiff requested a money judgment against defendant for the alleged breach of a lifetime employment contract with the defendant road commission. For the purpose of reviewing the trial judge’s denial of the defendant’s motion for judgment N.O.V., we proceed on the assumption that the plaintiff established the existence of a "lifetime” employment contract and that he had been discharged without good cause and without adequate notice. On appeal plaintiff does not dispute this conclusion but prefers to refer to his situation as "an implied contract of employment for a specified term”, to wit: employment with the road commission for the rest of his work life. Regardless of the phraseology used, it is clear that the case was tried, considered and determined by the jury on the theory that plaintiff’s employment with the road commission was for the rest of his work life.

Assuming plaintiff proved that he had an implied contract for lifetime employment, he would still have no cause of action for breach of contract based on the length of his previous employment with the defendant road commission. Under Michigan law a contract for permanent employment is a contract terminable with or without cause by either party at any time. In Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937), the rule was stated thus:

"Contracts for permanent employment or for life have been construed by the courts on many occasions. In general it may be said that in the absence of distinguishing features or provisions or a consideration in addition to the services to be rendered, such contracts are indefinite hirings, terminable at the will of either party.”

This rule has been consistently followed by Michigan courts, Sullivan v Detroit, Ypsilanti & Ann Arbor Railway, 135 Mich 661; 98 NW 756 (1904), O’Connor v Hayes Body Corp, 258 Mich 280; 242 NW 233 (1932), Lynas v Maxwell Farms, 279 Mich 684; 273 NW 315 (1937), Adolph v Cookware Co of America, 283 Mich 561; 278 NW 687 (1938), Hawt horne v Metropolitan Life Ins Co, 285 Mich 329; 280 NW 777 (1938), Ambrose v Detroit Edison Co, 367 Mich 334; 116 NW2d 726 (1962), Hernden v Consumers Power Co, 72 Mich App 349; 249 NW2d 419 (1976), Toussaint v Blue Cross & Blue Shield of Michigan, 79 Mich App 429; 262 NW2d 848 (1977), lv gtd on other grds 402 Mich 950h (1978), Rowe v Noren Pattern & Foundry Co, 91 Mich App 254; 283 NW2d 713 (1979), Milligan v The Union Corp, 87 Mich App 179; 274 NW2d 10 (1978), and see McLaughlin v Ford Motor Co, 269 F2d 120 (CA 6, 1959), Percival v General Motors Corp, 539 F2d 1126 (CA 8, 1976).

Thus, as recently noted in Rowe v Noren Pattern & Foundry, supra at 258:

"In Michigan, as well as in a majority of states, the rule is well established that, in the absence of some special consideration passing from the employee to the employer, other than the services to be performed by the employee, a contract for employment for an indefinite term is a contract which may be terminated at any time by either party for any reason or for no reason at all.”

Accordingly, since the proofs offered at trial, viewed in the light most favorable to plaintiff, establish the existence of a lifetime contract of employment with the defendant road commission, we must conclude that in the absence of distinguishing features or some special consideration it was a contract terminable at the will of either party. Since plaintiff was fired by a two to one vote of the road commission, pursuant to their statutory authority (cf., MCL 224.9; MSA 9.109), this exercise of the commission’s will terminated any employment relationship previously in existence between the two parties.

As noted above, however, the courts of this state have enforced an employment contract of indefinite duration where there are some "distinguishing features or provisions” or "some special consideration passing from the employee to the employer, other than the services to be performed by the employee”. Plaintiff contends that there are distinguishing features in his situation which place him within the exception to the general rule, and thus require enforceability of his lifetime employment contract with defendant. Two grounds were advanced during oral arguments in support of this contention. First, plaintiff claims that his nearly 5 years as superintendent, and the fact that no one else had ever been fired from a position with the road commission, establishes a history of longevity in the position. Second, plaintiff asserts that he was denied retirement benefits for which he would have qualified at the age of 65, 19 years from the time of his discharge.

Our review of the case law on this question illustrates the lack of merit in plaintiff’s contentions. One line of cases holding that a contract for permanent employment is binding and enforceable beyond the termination of the employee by the employer involves situations in which the employee releases a claim held by him against the one offering the employment. Hobbs v Brush Electric Light Co, 75 Mich 550; 42 NW 965 (1889), Brighton v Lake Shore & M S R Co, 103 Mich 420; 61 NW 550 (1894), Stearns v Lake Shore & M S R Co, 112 Mich 651; 71 NW 148 (1897), Sax v Detroit, G H & M R Co, 125 Mich 252; 84 NW 314 (1900). This rule has been adopted and applied in situations in which "there is to be found an element of consideration in addition to the services for which the contract was made”. Lynas v Maxwell Farms, supra at 688. Thus, for example, in Western Newspaper Union v Kitchel, 201 Mich 121; 166 NW 1021 (1918), and Rowe v Noren Pattern & Foundry, supra, it was held that a person who gives up a secured position with the competitor of an anticipated employer, in order to accept a position with that employer, is entitled to comparable job security if the parties considered that factor as a condition for accepting the new position. And see Ebling v Masco Corp, supra, cf., Hackett v Foodmaker, Inc, 69 Mich App 591; 245 NW2d 140 (1976), lv den 399 Mich 823 (1977). Nothing of this sort appears to exist with regard to plaintiffs situation. The most that could be said regarding plaintiffs position with the road commission is that he placed himself in a position so that he might perform his contract with defendant. He gave up no secured position in order to accept his appointment with the road commission. And even if he did, this factor did not comprise part of the consideration for his appointment. This does not constitute a "distinguishing feature”, as a matter of law. Lynas v Maxwell Farms, supra at 688-689, Adolph v Cookware Co of America, supra at 568, see Goldstein v Kern, 82 Mich App 723, 727-728; 267 NW2d 165 (1978).

Another line of cases holds that where the employee’s discharge contravenes some settled public policy of this state, an employee serving under a contract terminable at will has a cause of action for wrongful discharge. Toussaint v Blue Cross & Blue Shield of Michigan, supra at 434, Milligan v The Union Corp, supra at 182, Trombetta v Detroit, T & I R Co, 81 Mich App 489, 495; 265 NW2d 385 (1978). Thus, for example, the discharge of an employee serving under an indefinite contract of employment cannot be terminated on the sole basis that the employee engaged in lawful concerted labor activities, was the wrong race or sex, see cases cited in Carry v Consumers Power Co, 64 Mich App 292, 296 fn 1; 235 NW2d 765 (1975), or filed a lawful workmen’s compensation claim against the employer, Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976). No such related allegation was raised or established in the case at bar.

We have not found, and plaintiff does not cite, any case in which plaintiff’s mere longevity or loss of possible pension benefits enables him to defeat the terms of a contract otherwise terminable at will. Accordingly, defendant’s decision to discharge plaintiff as superintendent of the road commission was, based upon the proofs submitted at trial, irreproachable as a matter of law. In so ruling, we are not unmindful of cases such as Paxson v Cass County Road Comm, 325 Mich 276; 38 NW2d 315 (1949), and Hall v Detroit, 383 Mich 571; 177 NW2d 161 (1970). In those cases, the proof offered by plaintiff at trial established the existence of a contract for employment for a given period of time: one year’s service. The question in such cases involved the actual term of employment for the plaintiff employee. Here, though defendant offered contrary evidence, the plaintiff sought to establish, and the jury was persuaded, that plaintiff’s term of employment was for life. In so doing, perhaps plaintiff proved too much, for the result was to justify as a matter of law defendant’s ability to terminate plaintiff’s employment at any time and for any reason. Defendant did so, and the trial court’s error in failing to grant defendant’s motion for judgment notwithstanding the verdict stems from its failure to perceive this legal distinction.

Plaintiff further contends that, regardless of the existence of an implied contract of employment, he had a property interest in his public employment and therefore was entitled to certain procedural protections under the due process clauses of the United States and Michigan Constitutions. The trial judge agreed and instructed the jury as follows:

"I charge you that public employment is a property right of an individual employee. That is entitled to the safeguard of due process of law, and guaranteed by the Michigan and the United States Constitutions.”

In charging the jury, the judge indicated that he was relying on Casad v City of Jackson, 79 Mich App 573; 263 NW2d 19 (1977), Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972). Defendant objected to the instruction.

In each of the above cited cases, the aggrieved employee had a property interest in his public employment with the defendant. In Casad, supra, plaintiff had a property interest since he enjoyed civil service status prior to his discharge under constitutionally defective review procedures. In Perry v Sindermann, supra, a nontenured teacher was permitted to show that nonretention deprived him of a property interest because a de facto tenure system existed at the institution. In both cases, reference to state law indicated that the nature of the interest justified due process protection. Board of Regents of State Colleges v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972). Thus, where the public employee has no property right in his job, due process considerations do not attach. Bishop v Wood, 426 US 341, 347; 96 S Ct 2074; 48 L Ed 2d 684 (1976), Scott v Ann Arbor, 76 Mich App 535, 539-540; 257 NW2d 157 (1977).

In contrast to Casad, supra, and Perry v Sindermann, supra, plaintiff in the case at bar had no property interest in his position as superintendent of the county road commission.

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v Roth, 408 US at 577.

As noted in our earlier discussion, plaintiff’s contract for lifetime employment accorded him no "legitimate claim of entitlement” to a job until age 65. Rather, he was subject to discharge upon any whim or reason by the defendant road commission. This has been and continues to be the law of this state where contracts for permanent employment are involved. Though the equities seem to be on the plaintiff’s side, the law and the "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits” are not. Id. Since plaintiff’s job could be terminated for a "good reason, bad reason, or no reason at all”, it follows that he had no property right in his job, and therefore, was not entitled to the protections offered by the due process clauses of the United States and Michigan Constitutions.

The trial judge erred in permitting the jury to consider plaintiff’s due process contentions as a matter of law. Accordingly, he erred in failing to grant defendant’s motion for a judgment notwithstanding the verdict.

Reversed. No costs, a question of public interest being involved.

Mackenzie, J., concurred.

V. J. Brennan, J.

(dissenting). I respectfully dissent as I feel plaintiff did have a cause of action.

In most patronage jobs, the employee serves at the whim of the appointing authority. Accordingly, the occupants of such jobs usually change with the change of administrations. Here, however, plaintiff was in the employ of the road commission for approximately 15 years. There was testimony that other employees who served in appointed positions had never been discharged. In fact, there existed within this department an unwritten rule that employment would continue as long as an employee’s work was satisfactory.

The record shows the following: plaintiffs work was more than satisfactory, no grievances had ever been filed against plaintiff; and not only was plaintiffs contract automatically renewed each year but there existed an implied agreement for continuous employment. The record further shows that plaintiff was summarily discharged, no notice of termination and no reasons for termination were given.

The majority states that although the. equities are on plaintiffs side, plaintiff proved too much by showing that the contract was for life and therefore could be terminated "for a good reason, bad reason or no reason at all”. The majority points out that if plaintiff had a property interest in his employment, defendant would have been required to provide him certain due process procedural protections before summarily discharging him. Casad v City of Jackson, 79 Mich App 573; 263 NW2d 19 (1977), and Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972).

From the facts which were presented here I would find that, as in Perry v Sindermann, plaintiff had a property interest in his public employment. I would term this property interest, for want of a better term, de facto tenure, which arose due to the road commission’s long-established practice of retaining all employees whose work was satisfactory, regardless of any changes of administration which occurred. As the record shows, this practice lulled all the employees into a sense of security. All things considered, there clearly existed in all these employees’ minds a right to assume that they had a right to their job, and that right accorded them certain procedural protections.

Since plaintiff was not afforded these protections, I believe he had a cause of action and the trial court was not in error in submitting this issue to the jury.

I would affirm.

       Defendant asserts that the proofs offered at trial established only that plaintiffs employment was of indefinite duration and not a contract for life. Defendant contends that contradictory testimony of plaintiff that he could leave the job if he gave adequate notice or he served at the pleasure of the Board of Commissioners indicated a lack of mutuality of obligation for a lifetime contract. Paxson v Cass County Road Comm, 325 Mich 276, 283; 38 NW2d 315 (1949), Toussaint v Blue Cross & Blue Shield of Michigan, 79 Mich App 429, 433; 262 NW2d 848 (1977), lv gtd 402 Mich 950h (1978). However, the fact that the jury found such a contract existed, as evidenced by their verdict, indicates that the jury chose to believe plaintiffs other testimony; that he had a contract for life, see Paxson v Cass County Road Comm, supra. We are bound by the jury’s factual determination in this regard.


text:
    BELANGER v CHESTERFIELD TOWNSHIP
    Docket No. 43089.
    Submitted December 17, 1979, at Detroit.
    Decided April 2, 1980.
    Leave to appeal applied for.
    Plaintiff, Eugene Belanger, filed suit in the Macomb Circuit Court against defendants, Chesterfield Township and its Board of Trustees, seeking a declaration that one of the township’s ordinances was unconstitutional and for injunctive relief. The ordinance in question limited parking in a residential area to vehicles with a gross vehicle weight of 20,000 pounds or less. The same ordinance defined residential areas to include all platted subdivisions in which more than half of the lots are used for single-family dwellings but specifically excluded subdivisions and in which more than half of the lots are more than one acre and have more than a 125-foot frontage. The trial court, George R. Deneweth, J., granted summary judgment for defendants for failure to state a claim. Plaintiff appeals. Held:

    The regulation of parking is within the scope of the regulatory police power of a township. It bears a substantial relation to the public health, welfare, safety and morals and constitutes a legitimate governmental purpose. A regulation classification is violative of the equal protection safeguard if .it rests on grounds wholly irrelevant to the achievement of a legitimate governmental objective. The ordinance bears a rational and substantial relation to the public health, safety and welfare.
    Affirmed.
    1. Constitutional Law — Police Power — Townships — Parking.
    The regulation of parking is within the scope of the regulatory police power of a township; it bears a substantial relation to the public health, welfare, safety and morals and constitutes a legitimate governmental purpose.
    References for Points in Headnotes
    [1, 3] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 438, et seq., 481.
    Regulation and licensing of privately owned parking places. 29 ALR2d 860.
    [2] 16 Am Jur 2d (Rev), Constitutional Law § 251.
    16A Am Jur 2d, Constitutional Law §§ 749, 786, 787.

      2. Constitutional Law — Equal Protection — Classification — Burden of Proof.
    A regulation classification by a. municipality is violative of the equal protection safeguard if it rests on grounds wholly irrelevant to the achievement of a legitimate governmental objective; the party assailing such a classification has the burden of showing that it is essentially arbitrary.
    3. Constitutional Law — Equal Protection — Police Power — Townships — Parking.
    A township ordinance prohibiting the parking of large, heavy vehicles on private property in those areas of the township with the greatest number of residents or closely situated lots is reasonable and not violative of equal protection; it bears a rational and substantial relation to the public health, safety and welfare.

      John J. Kraus, Jr., for plaintiff.

      Anthony, Hearsch, Biernat, Bucci & Golski, for defendant.
    Before: D. C. Riley, P.J., and R. B. Burns and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

Plaintiff appeals as of right the granting of summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1) (failure to state a claim). His fourth amended complaint sought, injunctive relief in addition to a judgment declaring the unconstitutionality of Section 5 of the Chesterfield Township Ordinance No. 64, which provides:

"Subject to the provisions of Act 300, Public Acts of 1949, as amended, the parking of a motor vehicle, the gross vehicle weight of which exceeds twenty thousand (20,000) pounds, in a residential area is prohibited.”

Section 4.1 defines "gross vehicle weight” as the empty vehicle plus the manufacturer’s rated maximum load carrying capacity weight. Section 4.8 defines "residential areas” to include all platted subdivisions in which more than half of the lots are used for single-family dwellings but specifically excludes subdivisions in which more than half of the lots are more than one acre in area and have frontage on a road more than 125 lineal feet per lot.

Plaintiff claims the ordinance is unconstitutional in that it (1) prohibits the parking of vehicles capable of carrying large weights but permits the parking of all other large vehicles; and (2) unlawfully permits the parking of large vehicles in certain residential lands while prohibiting their parking in other residential lands.

The regulation of all street parking is within the scope of defendants’ regulatory police power. It bears a substantial relation to the public health, welfare, safety and morals and, therefore, constitutes a legitimate government purpose. Uday v City of Dearborn, 356 Mich 542; 96 NW2d 775 (1959), Sisters of Bon Secours Hospital v City of Grosse Pointe, 8 Mich App 342, 358, 359; 154 NW2d 644 (1967).

Accepting all of plaintiff’s allegations as true, his claim of unlawful discrimination is still unenforceable as a matter of law. The gross vehicle weight method of classification is neither arbitrary nor unreasonable. The equal protection safeguard of the Michigan Constitution is offended only if the classification rests on grounds wholly irrelevant to the achievement of the governmental objective. A party assailing a classification has the heavy burden of showing that it is essentially arbitrary. Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), Wolodzko v Wayne Circuit Judge, 382 Mich 528; 170 NW2d 9 (1969).

The parking of large, heavy vehicles on private residential property may cause impeded ingress and egress by emergency vehicles. It can create unsafe traffic conditions for traffic and pedestrians. Furthermore, the vehicle’s noise level, exhaust emissions and appearance may impair public health and welfare. It is reasonable for a municipality to determine that those subdivisions with the greatest number of residents or closely situated lots are the most vulnerable to such harm. The ordinance is not confiscatory as it permits alternative uses of the property.

A legislative body is not constrained to adopt an all or nothing approach. In an area where there is a perceived need for experimentation, it may proceed in a piecemeal fashion. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 672; 232 NW2d 636 (1975). We find that the ordinance bears a rational and substantial relation to the public health, safety and welfare. Summary judgment is a proper device to dispose of a constitutional challenge to an ordinance. Rogowski v Detroit, 374 Mich 408; 132 NW2d 16 (1965), Renne v Waterford Twp, 73 Mich App 685; 252 NW2d 842 (1977).

Affirmed. No costs, a public question being involved.


author: M. F. Cavanagh, J.

text:
    DETROIT FIRE FIGHTERS ASSOCIATION, LOCAL 344, IAFF v CITY OF DETROIT
    Docket No. 43886.
    Submitted December 11, 1979, at Detroit.
    Decided April 2, 1980.
    Leave to appeal applied for.
    The Detroit Fire Fighters Association, Local 344, IAFF, submitted an unfair labor charge against the City of Detroit to the Michigan Employment Relations Commission, alleging that the city had attempted to impose a change in the union bargaining unit by deleting certain positions from the unit. The city’s proposal to delete the positions had been negotiated during collective bargaining and when no new agreement was reached the city submitted the proposal, among others, to binding arbitration. The Employment Relations Commission ruled that the city had committed an unfair labor practice. The city appealed, and the union petitioned for enforcement of the commission’s order. Held:

    1. The redefinition of a bargaining unit is a permissive, rather than mandatory, subject of collective bargaining, and the city’s attempt to redefine the unit by negotiating the issue to an impasse and then submitting the matter to arbitration is an unfair labor practice.
    2. The Employment Relations Commission was the proper forum to decide the issue of the definition of the bargaining unit.
    Affirmed, and the petition for enforcement is granted.
    1. Labor Relations — Collective Bargaining — Subjects of Collective Bargaining — Public Employment Relations Act •— Statutes.
    Wages, hours, and other terms and conditions of employment are mandatory subjects of collective bargaining under the public employment relations act; subjects which fall outside the scope of wages, hours, and other terms and conditions of employment are permissive subjects of collective bargaining and may be negotiated only if both parties agree (MCL 423.215; MSA 17.455[15]).

      References for Points in Headnotes
    [1] 48A Am Jur 2d, Labor and Labor Relations § 1770.
    [2] 48A Am Jur 2d, Labor and Labor Relations §§ 1766, 1770.
    [3] 48A Am Jur 2d, Labor and Labor Relations § 1764 et seq.

      2. Labor Relations — Collective Bargaining — Bargaining Units — Public Employment Relations Act.
    The redefinition or constitution of a bargaining unit is a permissive subject of collective bargaining under the public employment relations act; an attempt by an employer to restrict bargaining to only certain members of an appropriate employee bargaining unit is an unfair labor practice.
    3. Labor Relations — Bargaining Units.
    The Michigan Employment Relations Commission is the appropriate forum to decide the issue of who is to be included in an employee bargaining unit.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Theodore Sachs and George H. Kruszewski), for plaintiff.

      George G. Matish, Acting Corporation Counsel, and Anna Diggs-Taylor and Kenneth G. King, Assistants Corporation Counsel, for defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon M. DeHorn, Assistant Attorney General, for the Employment Relations Commission.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   M. F. Cavanagh, J.

Defendant City of Detroit appeals from a ruling by the Michigan Employment Relations Commission (MERC) which affirmed the decision of an administrative law judge who found that defendant had violated § 10 of the public employment relations act (PERA), MCL 423.210; MSA 17.455(10), by bargaining to impasse regarding the exclusion of certain positions from the various classifications represented by the pláintiff union.

During negotiations for a new collective bargaining agreement, the city proposed to alter the recognition clause to delete the positions of Fire Chief, Assistant Fire. Chief and Fire Marshal from the bargaining unit. When negotiations failed to produce any new agreement the city submitted the above noted proposal, among others, to binding arbitration pursuant to 1969 PA 312, as amended, MCL 423.231 et seq.; MSA 17.455(31) et seq. This submission resulted in the parties’ agreement that the issue had. been bargained to impasse. Subsequently, the plaintiff union filed an unfair labor practice charge with MERC, and events progressed as detailed above.

Section 15 of PERA requires the representatives of the employer and employee to bargain collectively "with respect to wages, hours, and other terms and conditions of employment”. MCL 423.215; MSA 17.455(15). Subjects included within that phrase are mandatory subjects of bargaining. Detroit Police Officers Ass’n v Detroit; 391 Mich 44, 54; 214 NW2d 803 (1974).

Permissive subjects of collective bargaining are those which fall outside the scope of "wages, hours, and other terms and conditions of employment”, and may be negotiated only if both parties agree. Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 679; 246 NW2d 831 (1976).

We may look for guidance to Federal decisions that have construed provisions of the National Labor Relations Act, which are analogous to provisions of PERA, Rockwell v Crestwood School District Board of Education, 393 Mich 616, 636; 227 NW2d 736 (1975). In so doing, it is evident that the redefinition of a bargaining unit would not satisfy any of the accepted tests for being considered a mandatory subject of collective bargaining. Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 492; 233 NW2d 49 (1975), lv den 395 Mich 756 (1975). The redefinition or constitution of. a bargaining unit is, therefore, a permissive subject of collective bargaining. Accordingly, the defendant city’s attempt "to restrict bargaining to only certain members of an appropriate (bargaining) unit * * * is an unfair labor practice”. Hess Oil & Chemical Corp v NLRB, 415 F2d 440, 444 (CA 5, 1969), cert den 397 US 916; 90 S Ct 920; 25 L Ed 2d 97 (1970). And, further in accord with the decision in Hess Oil, supra, p 445, we find that MERC was the proper entity to decide this issue in the first instance. See In the Matter of Metropolitan Council 23 AFSCME, AFL-CIO, 89 Mich App 564, 567-568; 280 NW2d 600 (1979), and Local No 214, Teamsters v Detroit, 91 Mich App 273, 276-277; 283 NW2d 722 (1979).

The conclusion reached in this opinion does not leave the defendant without recourse. As was noted by the administrative law judge below, if defendant believes that the above-mentioned positions should be deleted from the bargaining unit, it may present its reasons therefor to MERC under the authority of MCL 423.213; MSA 17.455(13). See Smith Steel Workers v A O Smith Corp, 420 F2d 1 (CA 7, 1969), and 48 Am Jur 2d, Labor and Labor Relations, § 826.

Plaintiffs petition for enforcement is hereby granted and the order of MERC dated February 7, 1979, shall be enforced.

Affirmed.


author: Beasley, P.J.

text:
    UNITED LISTING SERVICE, INC v SHEPHERD
    Docket No. 44086.
    Submitted January 15, 1980, at Lansing.
    Decided April 2, 1980.
    United Listing Service, Inc., brought an action against Raymond J. Shepherd and Susan L. Shepherd for a ten percent real estate commission allegedly due to the plaintiff under a listing agreement to sell the defendants’ farm. The Saginaw Circuit Court, Joseph R. McDonald, J., entered a judgment in favor of the defendants. The plaintiff appeals. Held:

    The findings of the trial court were amply supported by the evidence and they were not clearly erroneous. The evidence shows that the plaintiff knew that the property was held by the plaintiffs as tenants by the entirety. There is no evidence that Susan Shepherd signed a listing agreement with the plaintiff. The statute of frauds requires a written instrument to bind a property owner to pay a real estate commission. Her signature on a specific counter-offer is not interpreted to be a written agreement to list the property with plaintiff. The signing of the agreement by Raymond Shepherd was conditional upon the obtaining of his wife’s signature; it was not Raymond Shepherd’s promise to get his wife’s agreement and signature when, as and if the plaintiff obtained a purchaser offering in compliance with the listing agreement.
    Affirmed.
    Contracts — Statute of Frauds — Writing — Real Estate Commissions — Statutes.
    The statute of frauds requires a written instrument to bind a property owner to pay a real estate commission (MCL 566.132; MSA 26.922).

      Bower & Rogers, for plaintiff.
    References for Points in Headnotes
    [1] 12 Am Jur 2d, Brokers § 41 et seq.

    73 Am Jur 2d, Statute of Frauds § 510.
    Statutory necessity and sufficiency of written statement as to amount of compensation in broker’s contract to procure purchase, sale, or exchange of real estate. 9 ALR2d 747.

      Dawn & Schmidt, P.C., for defendants.
    Before: Beasley, P.J., and D. E. Holbrook, Jr. and R. E. Robinson, JJ.

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

   Beasley, P.J.

Plaintiff, a real estate broker, sued defendants, husband and wife, for a ten percent real estate commission allegedly due under a listing agreement to sell defendants’ 240-acre farm in Saginaw County for $265,000. In a bench trial, the trial court found no cause of action in favor of defendants. Plaintiff appeals as of right, raising two issues. We find neither of plaintiff’s claims on appeal possess merit and, accordingly, we affirm for the following reasons.

Defendant, Raymond J. Shepherd, signed a listing agreement prepared by plaintiff and asserted that he told plaintiff the listing agreement would not be "legal” unless plaintiff obtained the signature of his wife, defendant Susan L. Shepherd, on the listing agreement.

Plaintiff’s version was that defendant, Raymond Shepherd, told him his wife would sell. Plaintiff obtained an offer for a lesser price than listed. Defendant, Raymond Shepherd, refused to accept the offer, but when plaintiff and defendant, Raymond Shepherd, prepared a counter-offer, they were able to prevail upon Susan Shepherd to sign it, even though it was for less than the price and terms in the listing agreement. The prospective purchaser declined the counter-offer.

Then, plaintiff sought another prospective purchaser, got him to make an offer allegedly similar to the rejected counter-offer by loaning this prospective purchaser part of the down payment, and eventually tendered this offer to defendants. By then, defendants had decided not to sell the farm and declined to accept this offer. There were various conflicts in the testimony.

The. trial court made tfle following findings of fact:

"Plaintiff, United Listing Service, Inc., knew the property in question was held by the Defendants as tenants by the entireties.

"Defendant, Raymond J. Shepherd’s signing of the listing agreement was conditioned upon Plaintiff obtaining his wife’s signature.

"There was no promise on the part of the Defendant, Raymond J. Shepherd, to obtain his wife’s signature on the listing agreement.”

GCR 1963, 517.1 provides:

"Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”

Ample evidence supported the trial court’s findings of fact. Even applying the "finer mesh” of judicial sieve referred to in some of the cases, we are not left with a conviction that a mistake has been committed. We do not find them clearly erroneous.

There is no evidence here that defendant, Susan Shepherd, signed a listing agreement with plaintiff. The statute of frauds requires a written instrument to bind a property owner to pay a real estate commission. In addition, there is no evidence that defendant, Susan Shepherd, even orally agreed to list the farm or to pay a real estate commission.

Thus, we reject plaintiffs claim that defendant, Susan Shepherd, "intended” and wanted to sell the farm owned by her and her husband as tenants by the entirety; we do not find the trial court’s implicit finding to the contrary to be clearly erroneous.

Plaintiff also claims that, as a matter of law, defendant, Raymond Shepherd, was bound by the listing, that it simply meant Raymond agreed to obtain his wife (Susan’s) agreement and signature when, as and if plaintiff obtained a purchaser offering in compliance with the listing agreement. This contention is without merit because the trial court held as a finding of fact that the promise of defendant, Raymond Shepherd, was "conditioned” upon the obtaining of his wife’s signature. As indicated, her signature was not obtained on a listing agreement. We do not interpret her signature on a specific counter-offer to be a written agreement to list the property with plaintiff for sale.

These fact findings of the trial court were not clearly erroneous. We conclude that the claims of plaintiff on appeal are without merit.

Affirmed.

       Suit was started by United Listing Service, Inc., apparently a Michigan corporation, owned by Robert H. Darwin, who apparently is a real estate broker. In defendants-appellees’ brief, it is asserted that prior to trial, the corporate existence of United Listing Service, Inc., terminated, and that the real party in interest is Robert Darwin. Since plaintiff-appellant does not deny this allegation, we treat Robert H. Darwin as plaintiff and real party in interest.

       On appeal, plaintiffs counsel characterizes this phase of the counter-offer:
      "In effect, he would forego a portion of his commission.”

        Eg., defendant, Susan Shepherd, flatly denies ever agreeing, orally or in writing, to list the farm with plaintiff or to pay him a real estate commission.

         See, Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), and Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 339; 247 NW2d 813 (1976).

       MCL 566.132; MSA 26.922.