author: Per Curiam.

text:
    PEOPLE v OLAH
    Docket No. 77-1723.
    Submitted March 6, 1979, at Detroit.
    Decided May 23, 1979.
    Leave to appeal applied for.
    Johnnie J. Olah was convicted of felonious assault and was placed on probation. He was subsequently convicted of two misdemeanors, and it was alleged that he had failed to pay costs and restitution as required in the order of probation. A probation revocation hearing was held at which defendant was represented by counsel. He was found guilty of probation violation. As a consequence, his probation was revoked and he was sentenced to prison, Wayne Circuit Court, William J. Giovan, J. Defendant appeals, alleging that the trial court erred in considering the misdemeanor convictions because the convictions were invalid as he was indigent and was not offered the assistance of counsel at any of the proceedings in connection with the misdemeanor convictions. Held:

    The misdemeanor convictions are not invalid. In each case the defendant paid a fine and served no time in jail or in prison. The Constitution requires only that an indigent may not be sentenced to prison unless afforded the right to appointed counsel. The fact that the defendant was not offered the assistance of counsel in the proceedings on the misdemeanors does not invalidate the misdemeanor convictions because a term of imprisonment was not the inevitable result of those convictions.
    Affirmed.
    Criminal Law — Constitutional Law — Assistance of Counsel — Imprisonment — Misdemeanors.
    An indigent criminal defendant who has not been afforded the right to assistance of appointed counsel may not be sentenced to a term of imprisonment; a conviction for a misdemeanor for which a defendant paid a fine and did not serve time in jail or in prison is not rendered constitutionally infirm by the fact that the defendant, allegedly an indigent, was not offered the assistance of counsel (US Const, Ams VI, XIV).

      References for Points in Headnote
    21 Am Jur 2d, Criminal Law § 318.
    Constitutionally protected right of indigent accused to appointment of counsel in state court prosecution. 93 ALR2d 747.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   Per Curiam.

Defendant appeals as of right from an order of the Wayne County Circuit Court, dated January 24, 1977, revoking his probation and sentencing defendant to a term in prison of from 16 months to 4 years with credit given for 257 days spent in custody.

The basis for defendant’s probation was a December, 1974 jury verdict finding him guilty of felonious assault contrary to MCL 750.82; MSA 28.277. Thereafter, on February 24, 1975, defendant was placed on 2 years probation.

The conditions of defendant’s probation were that he spend the first 6 months of the probation period in the Detroit House of Correction, that he pay costs of $345 in equal monthly installments beginning 30 days after his release from confinement and that he make restitution in the amount of $182 within 6 months of his release. A further condition of probation was that defendant not violate any criminal laws or ordinances.

Defendant appealed his conviction for felonious assault and this Court affirmed, Docket No. 23601, December 5, 1975 (unreported).

Thereafter, on October 29, 1976, a petition was filed charging defendant with violation of the terms of his probation. Specifically, the petition alleged that defendant was convicted of two misdemeanors, the first being a December 18, 1975, conviction under the Controlled Substances Act in the 19th District Court and the second being a July 27, 1976, conviction for possession of marijuana under a Detroit city ordinance in the Recorder’s Court, Traffic and Ordinance Division. The petition further alleged that defendant failed to pay court costs and restitution as required by the terms of probation. The trial court found defendant guilty of probation violation on all counts.

On appeal defendant asserts that the trial court erred in considering his misdemeanor convictions. He maintains, citing Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972), that these convictions were constitutionally infirm in that he was indigent, was not offered the assistance of counsel and did not waive counsel at any stage of the proceedings connected with his misdemeanor convictions. Defendant argues persuasively that constitutionally infirm convictions may not serve as a basis for revoking probation, analogizing to the sentence enhancement and impeachment cases. See People v Moore, 391 Mich 426; 216 NW2d 770 (1974). The argument fails, however, because defendant’s convictions are not constitutionally infirm.

We note that on each occasion defendant paid the assessed fine and did not serve time in jail or in prison. In Scott v Illinois, — US —; 99 S Ct 1158, 1162; 59 L Ed 2d 383, 389 (1979), the United States Supreme Court clarified its decision in Argersinger, supra, saying:

"Although the intentions of the Argersinger Court are not unmistakably clear from its opinion, we conclude today that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings. Even were the matter res nova, we believe that the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States. We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” (Footnotes omitted.)

Thus, since defendant’s convictions were not constitutionally infirm, his argument that the misdemeanor convictions could not be considered at his probation revocation proceeding must fail.

Defendant, however, advances the argument that he was sentenced to prison for probation violation as a result of the misdemeanor convictions, and that this renders these convictions infirm for lack of counsel. We disagree. Defendant was sentenced to a term of imprisonment, not for committing the misdemeanors, but for committing the felony of felonious assault, and thereafter violating the terms of his probation. It is true that the misdemeanors were the cause of the revocation of defendant’s probation, and the revocation of probation resulted in the sentence of imprisonment. However, revocation of defendant’s probation was by no means the inevitable result of the misdemeanor convictions. Defendant’s probation was revoked only after a hearing at which he was afforded the opportunity to present evidence in his defense or in mitigation of the apparent violation of which he was accused. Defendant was afforded assistance of counsel at this hearing, as well as at his trial on the original felony charge. At every stage of the proceedings at which he could have suffered the penalty of imprisonment, therefore, defendant had his constitutional right to counsel.

Because we find that defendant’s probation was properly revoked on the basis of his valid misdemeanor convictions, we do not reach his other claim of error.

Affirmed.

        People v Brooks, 16 Mich App 759; 168 NW2d 658 (1969), apparently holds that a probationer is entitled to counsel at a misdemeanor trial at least in part because he may be imprisoned thereafter for probation violation. We note that the Brooks Court did not have the benefit of the explanation of Argersinger v Hamlin provided in Scott v Illinois. To the extent that Brooks is inconsistent with this opinion, we decline to follow it.


source: Caselaw Access Project

license: Public Domain

text:
    BURRILL v MICHIGAN
    Docket No. 78-62.
    Submitted March 7, 1979, at Lansing.
    Decided May 23, 1979.
    Plaintiff, Sarah Burrill, is the administratrix of the estate of Clifford Burrill, who was a blind vendor who operated a concession stand in the Wayne County Department of Social Services building and who was robbed and stabbed to death in a parking lot adjacent to the building. Plaintiff brought an action against the State of Michigan alleging negligent maintenance and repair of the building and allowing a dangerous condition to exist by failing to provide proper and necessary security guard service. She also alleged a breach of a contract concerning security guard service of which the deceased was a third-party beneficiary, but no contract was ever produced. The Court of Claims, Ronald M. Ryan, J., granted summary judgment for defendant. Plaintiff appeals by leave granted. Held:

    1. A prerequisite to liability of a governmental agency for maintaining a dangerous or defective building is that the governmental agency was an owner, a lessee or in control of the premises at the time of the injury. There was no indication below that the defendant was the owner or lessee or was in control of the building.
    2. Review by the Court of Appeals is limited to the record in the trial court. When, in a motion for summary judgment, it is incumbent upon the nonmoving party to come forward with evidence to support her claim and she fails to do so, the Court of Appeals will not consider allegations and supporting documents not presented below.
    3. Assisting the blind through a federally sponsored and statutorily mandated program is a sui generis function of government. Providing the blind vendor program is sui generis governmental and the state is protected from liability by governmental immunity.

      References for Points in Headnotes

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 100, 145, 150, 154.

       4 Am Jur 2d, Appeal and Error § 491.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 42.
    State’s immunity from Tort liability as dependent on governmental or proprietary nature of function. 40 ALR2d 927.

       23 Am Jur 2d, Depositions and Discovery § 273.

      4. A party to a lawsuit will not be heard to complain that discovery had not been completed when summary judgment was entered against her where she had initiated the lawsuit two years previously and had made no attempt at discovery.
    Affirmed.
    1. Torts — Governmental Immunity — Exceptions to Governmental Immunity — Statutes — Maintaining a Dangerous or Defective Building.
    A prerequisite to liability of a governmental agency for maintaining a dangerous or defective building is that the governmental agency was an owner, a lessee or in control of the premises at the time of the injury (MCL 691.1406; MSA 3.996[106]).
    2. Appeal and Error — Scope of Review — Summary Judgment — Court Rules.
    Review by the Court of Appeals is limited to the record in the trial court; when, in a motion for summary judgment, it is incumbent upon the nonmoving party to come forward with evidence to support his claim and he fails to do so the Court of Appeals will not consider allegations and supporting documents not presented below (GCR 1963, 812).
    3. States — Torts — Governmental Function — Blind Vendors Program — Statutes.
    Assisting the blind through a federally sponsored and statutorily mandated program is a sui generis function of government; providing the blind vendor program is sui generis governmental (MCL 400.114; MSA 16.490[24]).
    4. Judgment — Summary Judgment — Trial — Discovery.
    A party to a lawsuit will not be heard to complain that discovery had not been completed when summary judgment was entered against him where he had initiated the lawsuit two years previously and had made no attempt at discovery.

      Temple & Cutler, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija and William K. Balsinger, Assistants Attorney General, for defendant.

      Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Plaintiff appeals from an order granting summary judgment in favor of defendant, pursuant to GCR 1963, 117.2(3).

Plaintiff’s decedent, Clifford Burrill, was a blind vendor who operated a concession stand in the Wayne County Department of Social Services building. On December 5, 1974, after closing his stand and leaving work, Burrill was robbed and stabbed to death in the parking lot area adjacent to the facility by an unknown assailant.

Plaintiff brought an action alleging that defendant was negligent in maintaining and repairing a public building, and for allowing a dangerous condition to exist. Specifically, plaintiff claimed defendant failed to provide proper and necessary security guard services.

In the motion for summary judgment, defendant claimed that the plaintiff had failed to allege facts in avoidance of governmental immunity or otherwise state a claim upon which relief could be granted.

Plaintiff admits the existence of the doctrine of governmental immunity, but claims that the pleadings raise genuine issues of fact as to whether this case falls within one or more of the statutory exceptions.

Plaintiff first contends that defendant’s immunity from suit has been abrogated by maintaining a dangerous and defective building pursuant to MCL 691.1406; MSA 3.996(106):

"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.”

A prerequisite of liability is that it be shown that the defendant was an owner, a lessee, or in control of the premises in question. See Mobil Oil Corp v Thorn, 401 Mich 306; 258 NW2d 30 (1977), Lipsitz v Schechter, 377 Mich 685, 687-688; 142 NW2d 1 (1966), Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975).

An examination of the lease and the affidavit of the director of the Michigan Department of Social Services, Business Services Division, shows that the building in question is leased to Wayne County by another corporate entity. The duty to provide office space for the various departments of social services rests with the county and not the state. MCL 400.45; MSA 16.445.

The defendant clearly had no owner’s or lessee’s interest and thus no control of the premises.

Whether there is a genuine issue as to a material fact is determined by examining the affidavits, pleadings, depositions, admissions and documentary evidence filed in the action. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965).

GCR 1963, 116.4 requires the affidavits be made on personal knowledge and set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds set forth.

An answer must consist of more than mere denials, conclusionary language and conjecture as plaintiff’s answer does. Dionne v Pierson Contracting Co, 2 Mich App 134, 139; 138 NW2d 555 (1965), Burroughs Corp v Detroit, 18 Mich App 668, 675; 171 NW2d 678 (1969). Real evidentiary support is required. Zimmerman v Stahlin, 374 Mich 93, 97; 130 NW2d 915 (1964). The trial judge properly granted summary judgment as to this issue.

Plaintiffs next claim seems to involve an alleged breach of contract concerning security guard services which forms the basis of a third-party-beneficiary theory. It is unclear upon what contract and with whom plaintiff bases this claim. When an action is based on a written contract, it is necessary to plead and produce the contract. GCR 1963, 113.4, Stocker v Clark Refining Corp, 41 Mich App 161; 199 NW2d 862 (1972).

Plaintiff has failed to come forward with any evidence to support her claim. The numerous allegations and supporting documents compiled in plaintiffs brief were never presented to the Court of Claims. This Court’s review is limited to the record in the trial court. GCR 1963, 812.

Plaintiff also contends that the fee collected by the state from blind vendors constitutes a proprietary function and invalidates any governmental immunity.

The pertinent statute, MCL 691.1413; MSA 3.996(113) states:

"The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees.”

A review of the record indicates that the 2% fee was placed in a revolving fund established by the Legislature to purchase original equipment for the blind vendors’ program, and for eventual replacement of depreciated equipment.

The defendant is required by law to provide such vending stand programs and is prohibited from making a profit from the enterprise. MCL 400.114; MSA 16.490(24), 20 USC 107 et seq.

Although the state may be extensively involved in the administration of a federally sponsored program, the function is not proprietary in nature.

In the recent decision of Parker v Highland Park, 404 Mich 183, 199; 273 NW2d 413 (1978), our Supreme Court found attempts to distinguish between a governmental and proprietary function to be inherently unsound. The Court held that the term government function should be limited to those activities ”sui generis governmental — of essence to governing”.

As pointed out by Justice Moody in his concurring opinion, adoption of the "of essence to government” test should only be used as a starting point in defining a governmental function.

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government.” Parker, supra, 200.

Assisting the blind through a federally sponsored and statutorily mandated program is a sui generis function of government. Applying any criterion, the state’s role was obviously governmental.

Plaintiffs final claim is that the grant of summary judgment was improper because discovery had not been completed prior to the order.

Dismissing an action or rendering judgment by default for failure to make discovery are drastic sanctions, which the court has power to impose in extreme situations. GCR 1963, 313, Krim v Osborne, 20 Mich App 237, 241; 173 NW2d 737 (1969).

Plaintiff instituted this suit. Upon receiving notice of the motion for summary judgment, it was incumbent upon her to complete discovery. Absolutely no attempts at discovery were ever made. The trial court correctly held that two years from the institution of suit was more than sufficient time to complete discovery. See Proposed Michigan Court Rule 2.314.

Affirmed. Costs to defendant.


author: Per Curiam. D. E. Holbrook, J.

text:
    PEOPLE v JOHNSON
    Docket No. 78-612.
    Submitted November 2, 1978, at Grand Rapids.
    Decided May 23, 1979.
    Robert Johnson was convicted of unarmed robbery, Recorder’s Court of Detroit, Michael J. Connor, J. The defendant appeals, alleging 1) that the Miranda warnings given him failed to inform him of his right to have counsel present during interrogation and that reversible error occurred when the prosecution introduced at trial an inculpatory statement made by defendant after he had received the allegedly defective Miranda warning, and 2) that the trial judge committed reversible error by failure to instruct on the offense of assault with intent to rob while armed as a necessarily lesser included offense of the original charge of armed robbery. Held:

    1. The officer advised the defendant that he "had the right to have an attorney present”. This language was adequate to inform the defendant that he had the right to counsel during interrogation and Conforms to the Miranda requirements. Admission at trial of the defendant’s inculpatory statement was proper.
    2. Absent a proper request, failure to give an instruction on a necessarily lesser included offense is not error, except for second-degree murder in a first-degree murder case. Defense counsel’s nebulous reference to "the assaults” was too equivocal to apprise the trial court of the specific lesser included offense instruction desired. There was no error in failing to give an instruction on assault with intent to rob while armed.
    Affirmed.
    D. E. Holbrook, J., dissented. He would agree with the majority’s disposition of the Miranda issue. However, as to the second allegation of error, pertaining to instructions on lesser included offenses, he would hold that while defense counsel may not have been too clear as to what specific instructions he wanted, between his statements and those of the prosecutor, the trial judge was put on notice that he should give an instruction on attempted armed robbery.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 314, 317.
    Duty to advise accused as to right to assistance of counsel. 3 ALR2d 1003.

       67 Am Jur 2d, Robbery § 7.

       75 Am Jur 2d, Trial §§ 876, 877.
    Effect of failure, or refusal of court, in robbery prosecution to instruct on assault and battery. 58 ALR2d 808.

      He would vacate the defendant’s conviction and would rule that a conviction for attempted armed robbery should be entered, with the prosecutor having the option of seeking a new trial.
    Opinion of the Court
    1. Criminal Law — Constitutional Law — Right to Counsel — Advising of Rights — Interrogation.
    A defendant was adequately advised of his right of counsel during interrogation where the interrogating officer informed the defendant inter alia that he "had the right to have an attorney present”.
    2. Robbery —• Lesser Included Offenses — Armed Robbery — Assault with Intent to Rob While Armed.
    Assault with intent to rob while armed is a necessarily lesser included offense of armed robbery.
    3. Criminal Law — Instructions to Jury — Necessarily Lesser Included Offenses — Request for Instructions.
    Failure to give an instruction on a necessarily lesser included offense constitutes reversible error where the instruction has been properly requested; absent a proper request, failure to instruct on a necessarily lesser included offense is not error, except for failure to give an instruction on the lesser offense of second-degree murder in a trial for first-degree murder.
    4. Criminal Law — Instructions to Jury — Lesser Included Offenses — Requests for Instructions — Specificity.
    A defendant’s requests for instructions to the jury on lesser included offenses must be sufficiently definite and unequivocal to apprise the trial court of what instructions it is being asked to give; a trial court did not err in refusing to instruct on lesser included offenses where defense counsel’s oral requests for instructions were equivocal, failing to specify with clarity upon what lesser included offenses he wanted the jury instructed.

      Concurrence in Part, Dissent in Part by D. E. Holbrook, J.
    5. Robbery — Instructions to Jury — Lesser Included Offenses — Request for Instructions.

      An instruction on the lesser included offense of attempted armed robbery should have been given to the jury in an armed robbery case where, between the defendant’s unclear request for instructions concerning "the assaults” and the assistant prosecutor’s explanation, the trial court was put on notice that such an instruction should be given by the trial court.

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

      Robert E. McCall, for defendant on appeal.
    Before: Beasley, P.J., and D. E. Holbrook and G. R. Cook, JJ.

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

   Per Curiam.

Defendant appeals of right his July 5, 1977, jury conviction of unarmed robbery, MCL 750.530; MSA 28.798.

Defendant first argues that Miranda warnings given him by an arresting officer failed to inform him of his right to have counsel present during interrogation, contrary to Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). According to defendant, reversible error occurred when the prosecution introduced at trial an inculpatory statement made by defendant after he had received the allegedly defective Miranda warnings.

One of the arresting officers in the case at bar testified as follows regarding his giving of Miranda warnings to defendant:

"Q. What specific rights did you advise the Defendant of and prior to him making this statement? I want you to tell us exactly.
"A. I told him he had the right to remain silent, that anything he said could and would be used against him in a court of law; that he had the right to have an attorney present. If he could not afford an attorney, one would be provided him by the court.”

It is defendant’s contention that the police officer’s statement that defendant "had the right to have an attorney present” failed to inform him of his right to counsel during interrogation and therefore did not comply with Miranda.

In Miranda, pp 470-472, the Court stated:

"Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.
"Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.”

A review of published Michigan decisions reveals none in which the specific language now complained of was analyzed. Consequently, we look for guidance to those cases involving language similar to that here at issue.

In People v Whisenant, 11 Mich App 432, 434, 437; 161 NW2d 425, 426, 428 (1968), a police officer’s statement to the defendant that " 'he was entitled to an attorney, that if he could not afford an attorney the court would appoint an attorney’ ” was held inadequate under Miranda to inform that defendant "of his right to have counsel, retained or appointed, present during questioning and the giving of his statement”. Similarly, in People v Ansley, 18 Mich App 659, 662-663; 171 NW2d 649, 650-651 (1969), the defendant was informed that " 'he had a right to have an attorney before he said anything, and that if he couldn’t afford an attorney, the court would appoint one before he said anything’ ”, and was further told, " T advise you you have a right to counsel; and I further advised him if he didn’t have the money to procure counsel, the court would appoint him one’ ”. This warning was also found inadequate under Miranda and Whisenant. Finally, this Court, relying on Whisenant, reversed the defendant’s conviction in People v Jourdan, 14 Mich App 743, 744; 165 NW2d 890 (1968), where that defendant was advised that "he was entitled to an attorney and an attorney would be furnished to him if he could not afford to employ one”, but was not told that "interrogation would cease at his request and that he was entitled to counsel during interrogation”.

By contrast, this Court in People v Gilleylem, 34 Mich App 393, 395; 191 NW2d 96, 97 (1971), approved as adequate under Miranda a police statement to the defendant that " '[y]ou may have this attorney present here before answering any questions’ ”. Likewise, in People v Lula Watkins, 60 Mich App 124, 128; 230 NW2d 338, 341 (1975), the Court approved police advice that the defendant "had the 'right to an attorney or lawyer present before answering any questions or making any statements’ See People v McClure, 29 Mich App 361; 185 NW2d 426 (1971), People v Bynum, 21 Mich App 596; 175 NW2d 870 (1970).

In view of the cited cases, the challenged language in the present case appears to us sufficiently comprehensive to pass appellate examination. We hold that police advice to defendant that he "had the right to have an attorney present” cannot reasonably be understood otherwise than as informing defendant of his right to counsel during interrogation and not merely at some subsequent trial. So considered, the language was adequate to "fairly apprise an accused that he had the right to counsel during interrogation” and thus conforms to the Miranda requirements. People v McClure, supra, at 368; 185 NW2d at 429. Admission at trial of defendant’s inculpatory statement was therefore proper.

Secondly, defendant contends that the trial judge erred reversibly by failing to instruct the jury on the necessarily lesser included offense of assault with intent to rob while armed, MCL 750.89; MSA 28.284. Defendant was charged with armed robbery; MCL 750.529; MSA 28.797. Prior to the trial court’s charge to the jury, the following colloquy occurred:

"The Court: I will give robbery unarmed and larceny from a person as lesser included offenses.
”Mr. Murphy [defense counsel]: You won’t give the assaults?
"The Court: I don’t see where any of them in this case would be appropriate.
"Mr. Murphy: No attempt, then, either?
’’The Court: The testimony is clear. The offense, whatever it was, was completed.
"Mr. Murphy: I’m not questioning the Court.
"The Court: I think there was a question here of identification, but the offense was made out by the complaining witness and is certainly a completed offense, whatever that is.
"Mr. Weisberg [the assistant prosecutor]: Your Honor, just to protect the record, it’s my understanding that if in fact counsel is requesting attempt, you have to give it because it’s a lesser included, a necessarily lesser included offense. It’s not a cognitive [sic]; it’s necessarily lesser included.
"The Court: I don’t have to give any lesser included offense unless it’s made out by the testimony.
"Mr. Weisberg: That’s only as to cognitive [sic] offenses, not necessarily. It seems to me in reading Chamblis that—
"The Court: No, I don’t have to. Anything else?
"Mr. Murphy: No, your Honor.”

Assault with intent to rob while armed is a necessarily lesser included offense of armed robbery. People v Norman, 14 Mich App 673; 166 NW2d 9 (1968). Failure to give an instruction on a necessarily lesser included offense constitutes reversible error where the instruction has been properly requested. Absent a proper request, failure to instruct on a necessarily lesser included offense is not error, except for second-degree murder.

This Court in People v Bashans, 80 Mich App 702, 705; 265 NW2d 170, 172 (1978), observed:

"[People v Herbert Smith, 396 Mich 362; 240 NW2d 245 (1976)] imposes upon defense counsel a requirement of specificity; requests for instructions on lesser included offenses must be sufficiently definite and unequivocal to apprise the trial court of what instructions it is being asked to give. For the present, at least, the trial judge may continue to rely on requests from counsel in formulating his instructions. People v Henry, [395 Mich 367, 374; 236 NW2d 489 (1975)], People v Herbert Smith, supra, see generally, People v Coles, 79 Mich App 255; 261 NW2d 280 (1977).”

Even if we assume arguendo that the present issue has not been waived by defense counsel’s trial comment that he was "not questioning the court”, no error exists. Defense counsel’s nebulous reference to "the assaults” was simply too equivocal to apprise the trial court of the specific lesser included offense instruction desired. The trial judge’s failure to give an instruction on assault with intent to rob while armed was therefore not erroneous.

Affirmed.

D. E. Holbrook, J.

(dissenting in part and concurring in part). This writer is in complete agreement with the fine opinion of the majority as to Issue No. I. However, as to Issue No. II, this writer is constrained to disagree as explained hereinafter.

Counsel for defendant requested instructions concerning "the assaults” and the court replied:

"I don’t see where any of them in this case would be appropriate.
"Mr. Murphy [defense attorney]: No attempt, then, either?
"The Court: The testimony is clear. The offense, whatever it was, was completed.
"Mr. Murphy: I’m not questioning the Court.
"The Court: I think there was a question here of identification, but the offense was made out by the complaining witness and is certainly a completed offense, whatever that is.
"Mr. Weisberg [assistant prosecutor]: Your Honor, just to protect the record, it’s my understanding that if in fact counsel is requesting attempt, you have to give it because it’s a lesser included, a necessarily lesser included offense. It’s not a cognitive [sic]; it’s necessarily lesser included.
’’The Court: I don’t have to give any lesser included offense unless it’s made out by the testimony.
”Mr. Weisberg: That’s only as to cognitive [sic] offenses, not necessarily. It seems to me in reading Chamblis that—
’’The Court: No, I don’t have to. Anything else?”

It appears to this writer that Mr. Murphy was stating that he was not questioning the court as to whether the testimony was clear, but he certainly didn’t abandon his request for assault instructions and request for attempt instructions. Possibly taking Mr. Murphy’s statements alone, it would not be too clear but with the assistant prosecutor’s explanation, it appears to this writer the trial court was put on notice that he should give the attempt instruction, People v Lovett; 396 Mich 101, 102; 238 NW2d 44 (1976).

Under the circumstances this writer would rule that the attempted armed robbery instruction should have been given. This writer would rule that the conviction must be vacated and a conviction for attempted armed robbery should be entered, and the defendant sentenced accordingly. However, if the prosecutor is of the opinion that justice would be better served by a new trial, the trial court should, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction and grant a new trial. This writer so votes.


text:
    PEOPLE v JAMES
    Docket No. 78-3567.
    Submitted March 9, 1979, at Grand Rapids.
    Decided May 23, 1979.
    Robert L. James was convicted, on his plea of guilty, of assault with intent to rob while armed, Berrien Circuit Court, William S. White, J. The defendant and a codefendant pled guilty according to an agreement in which the prosecution promised not to charge either of the defendants with armed robbery or as a habitual offender. Defendant appeals, alleging that the plea agreement was illusory because he had no prior felony convictions and could not have been convicted as a habitual offender, and that, therefore, his guilty plea was involuntary. Held:

    The promise not to bring habitual offender charges did not render the defendant’s plea involuntary. It was made clear during the plea proceeding that the defendant had no prior felony convictions and it appears that the comments with regard to habitual offender charges were directed toward the codefendant who did have prior felony convictions. Also, the promise to forego armed robbery charges provided a strong inducement for the defendant’s plea.
    Affirmed.
    Criminal Law — Plea of Guilty — Voluntariness of Plea.
    A defendant’s plea of guilty of assault with intent to rob while armed was not rendered involuntary by inclusion in a plea agreement of a promise that no habitual offender charges would be brought against the defendant, even though the defendant had no prior felony record and, therefore, could not have been convicted as a habitual offender, where during the plea proceeding it was made clear that the defendant had no prior felony convictions and the comments regarding habitual offender charges appeared to be directed to a codefendant who did have prior felony convictions, and where the plea agreement also contained a promise not to bring charges of armed robbery against the defendant which provided a strong inducement for the plea.

      References for Points in Headnotes
    21 Am Jur 2d, Criminal Law § 485.
    Validity of guilty plea — Supreme Court cases. 25 L Ed 2d 1025.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Chris W. Dunñeld, Assistant Prosecuting Attorney, for the people.

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: R. B. Burns, P.J., and Allen and Mackenzie, JJ.
   Per Curiam.

On August 29, 1977, defendant was convicted upon his plea of guilty of assault with intent to rob while armed. He was sentenced to a term of 15 to 50 years in prison, and appeals as of right.

Defendant contends that his plea was involuntary as a matter of law because the bargain upon which the plea was based was illusory. An examination of the transcript reveals the following plea agreement:

"THE COURT: Mr. Murphy and Mr. Peterson, has there been a plea-agreement made in this case?
"MR. PETERSON [Defense Counsel]: Yes, your Honor. The plea-agreement in this case is, that two counts of armed robbery against each of the defendants would not be brought against them.
"Also, that neither of the defendants would be charged as a habitual offender.
"THE COURT: Mr. Murphy, is that your understanding of the plea agreement?
"MR. MURPHY [Prosecuting Attorney]: That is a correct statement, your Honor.
"THE COURT: But is that your understanding of the plea-agreement?
"MR. MURPHY: It is, your Honor.”
"THE COURT: Mr. James, you have heard the plea-agreement placed upon the record by your attorney, Mr. Peterson, and affirmed by the Prosecutor. Is that your understanding of the plea-agreement?
"DEFENDANT JAMES: Yes, sir.”

Defendant argues that he did not possess any prior felony convictions, and, therefore, he could not have been charged as an habitual offender. Thus, the offer to refrain from bringing such a charge was a phantom promise.

This Court has not adopted a uniform approach on the issue of whether reversal is mandated when a promise which formed part of the plea agreement was of no benefit to the defendant. In People v Rowe, 85 Mich App 106; 270 NW2d 472 (1978), a plea of guilty of possession of a controlled substance was sustained even though as part of the plea agreement the prosecutor promised to dismiss a charge of bringing a controlled substance into a prison without a permit; the defendant, however, could not have been convicted of such charge.

In People v Roderick Johnson, 86 Mich App 77; 272 NW2d 200 (1978), the Court reached a result seemingly contrary to that in Rowe. In Roderick Johnson, the defendant was convicted on his plea of guilty of delivery of heroin. As part of the plea agreement, the prosecutor promised not to file an habitual offender charge. It was unclear from the record, however, whether the defendant did, in fact, possess any prior convictions at the time of the plea proceeding. Because the lack of prior convictions would have rendered the prosecutor’s promise illusory and, thus, the plea involuntary, the case was remanded for an evidentiary hearing.

See also People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), where the Court held that the defendant should be allowed to withdraw his guilty plea because it was entered upon a promise that separate charges pending in another county would be dropped and the charges were not in fact dropped.

The United States Court of Appeals decision of Hammond v United States, 528 F2d 15 (CA 4, 1975), is cited in both Roderick Johnson and Lawson. In that case, the Court ruled a plea involuntary where the defendant had been induced to plead guilty after erroneously being told that failure to do so could subject him to a maximum 95-year sentence, when he actually could have received a maximum of 55 years. Defendant alleged that since he was a "relatively young man” the prospect of a 90-year sentence or lifetime confinement in a mental institution coerced him into acceptance of the plea bargain which was offered to him and rendered his guilty plea involuntary. The Court held that a defendant must know the direct consequences of his plea, including the actual worth of any promises made to him.

In Hammond, however, the Court stated:

"Hammond was told that if he went to trial and was convicted, he could be sentenced to at least 35 and perhaps 40 more years than the law would allow. This may well have induced a guilty plea that would not have been forthcoming if Hammond had been correctly told that his plea would reduce his exposure to a maximum sentence by only 30 years rather than by 60 or 65 years. This is not to say, of course, that every item of misinformation which counsel may impart vitiates the voluntariness of a plea. Each case must depend largely on its own facts.” (Emphasis supplied.) 528 F2d at 18.

Upon contemplation of the facts of the instant case, we conclude that defendant’s guilty plea was not involuntary. It is questionable whether the offer to refrain from bringing the habitual offender charge was an inducement for defendant to plead guilty. Defendant did not possess any prior felony convictions, and during the plea proceeding he was informed that an habitual offender charge can be filed against a person if he has a prior felony conviction:

"THE COURT: I also advise both of you gentlemen that if you have been previously convicted of a felony that you can be charged as a habitual offender, and the maximum possible prison sentence could be increased.
"Do you fully understand that?
"Are either one of you gentlemen on probation or parole?
"DEFENDANT FITZNER: Yes, sir.
"DEFENDANT JAMES: No, sir.
"THE COURT: You do realize, that based upon that fact, the Prosecutor could file a supplemental information charging you as a habitual offender, and the maximum possible sentence could be increased.
"Do you understand that, Mr. Fitzner?
"DEFENDANT FITZNER: Yes, sir.”

All present at the proceeding were aware that defendant had no prior felony convictions. At the close of the proceeding, defendant’s counsel noted to the court that, "As indicated in the arraignment, Mr. James has no prior felony record”. It appears that the habitual offender aspect of the plea agreement was actually aimed at codefendant Fitzner, who did in fact have prior felony convictions.

Finally, we note that the promise to refrain from bringing the armed robbery charges provided a strong inducement for the plea, because of the substantial benefit to the defendant.

Affirmed.


text:
    DIMMITT & OWENS FINANCIAL, INC v REALTEK INDUSTRIES, INC
    Docket No. 77-4547.
    Submitted December 7, 1978, at Detroit.
    Decided February 8, 1979.
    Defendant Art Clover, a mason contractor, entered into a contract with defendant Realtek Industries, Inc. (Realtek) to supply the materials and labor to complete the masonry on an apartment construction project. Plaintiff, Dimmitt & Owens Financial, Inc. (D & O) is in the business of purchasing accounts receivable. D & O purchased two of Clover’s Realtek accounts after obtaining acknowledgments signed by either Realtek’s vice- or executive vice-president stating that the amounts due were just and correct, not contingent upon the fulfillment of any obligation, past or future, and that Realtek agreed that the amounts were due and owing and approved and allowed the same. Realtek’s executive vice-president was in charge of all facets of this particular construction project, including financing, and its vice-president was in charge of accounts. Shortly thereafter, Realtek discharged Clover from the job. D & O demanded payment and Realtek denied any money was due because Clover had breached his contract. D & O sued Realtek on the accounts and Realtek filed a third-party claim against Clover based on a release from "all liability arising out of the contract between the parties and for any and all work performed by the defendant”. The Oakland Circuit Court, Richard D. Kuhn, J., granted judgment for plaintiff. Realtek appeals alleging numerous errors. Held:

    1. The Uniform Commercial Code expressly preserves the doctrine of estoppel unless displaced by the particular provisions of the act. Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts. There was sufficient evidence for the trial court to find Realtek to be estopped to deny liability.

      References for Points in Headnotes

       15A Am Jur 2d, Commercial Code § 15.

       28 Am Jur 2d, Estoppel and Waiver § 27.

       3 Am Jur 2d, Agency § 73.

       6 Am Jur 2d, Assignments § 96.

       6 Am Jur 2d, Assignments §§ 109, 110.

       45 Am Jur 2d, Interest and Usury § 141.

       46 Am Jur 2d, Judgments §§ 199, 200.
    Construction of Rule 60(a) of Federal Rules of Civil Procedure authorizing correction of clerical mistakes in judgments, orders, or other parts of record, and errors therein arising from oversight or omission. 13 ALR Fed 794.

      2. An officer or agent of a private corporation, entrusted with the general management and control of its business and affairs, has implied or apparent authority to do acts or make any contracts in its behalf falling within the scope of the ordinary and usual business of the company, and limitations and restrictions placed upon his express or implied authority, of which persons dealing with him have neither actual nor constructive notice, will not serve to restrict such powers to the prejudice of innocent third persons. There was sufficient evidence for the court to find that the execution of the acknowledgments was in the ordinary and usual course of Realtek’s business and that D & O was justified in relying on the signers’ apparent authority to execute such documents.
    3. An account debtor is required, under the Uniform Commercial Code, to pay an assignee upon notice of the assignment or request reasonable proof that an assignment has been made. At worst, it was harmless error to introduce the accounts receivable purchase agreements without laying a proper foundation since Realtek had received notice and failed to request further proof of assignment.
    4. The trial court did not err in denying Realtek a default judgment against Clover because an account debtor’s obligation to pay an assignee is entirely separate from his duty under a contract with the assignor.
    5. The usury statute does not apply to the purchasing of accounts receivable.
    6. Clerical mistakes in a judgment may be corrected upon discovery by the court on its own motion or on motion from a party.
    Remanded with instructions.
    1. Estoppel — Statutes — Uniform Commercial Code.
    The Uniform Commercial Code expressly preserves the doctrine of estoppel unless displaced by the particular provisions of the act (MCL 440.1103; MSA 19.1103).

      2. Estoppel — Definitions — Words and Phrases.
    Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts.
    3. Principal and Agent — Authority of Agent — Apparent Authority.
    An officer or agent of a private corporation, entrusted with the general management and control of its business and affairs, has implied or apparent authority to do acts or make any contracts in its behalf falling within the scope of the ordinary and usual business of the company, and limitations and restrictions placed upon his express or implied authority, of which persons dealing with him have neither actual nor constructive notice, will not serve to restrict such powers to the prejudice of innocent third persons.
    4. Assignments — Evidence — Statutes — Uniform Commercial Code.
    An account debtor is required, under the Uniform Commercial Code, to pay an assignee upon notice of the assignment or request reasonable proof that an assignment has been made; it was, at worst, harmless error to introduce an accounts receivable purchase agreement without laying a proper foundation in a lawsuit by an assignee against an account debtor who had received notice and failed to request further proof or assignment (MCL 440.9318[3]; MSA 19.9318[3]).
    5. Pleading — Assignments — Releases.
    An account debtor who, when sued by the assignee of the account, claimed against the assignor under a release from "all liability arising out of the contract between the parties [which gave rise to the account] and for any and all work performed” by the assignor failed to plead a sufficient cause of action against the assignor; an account debtor’s duty to pay an assignee is entirely separate from his duty under a contract with the assignor.
    6. Usury — Purchase of Accounts Receivable.
    The usury statute does not apply to the purchasing of accounts receivable (MCL 438.31; MSA 19.15[1]).
    7. Judgments — Clerical Mistakes — Court Rules.
    Clerical mistakes in a judgment may be corrected upon discovery by the court on its own motion or on motion from a party (GCR 1963, 528.1).

      Fisher, Gerhardt & Groh (by Hugh L. Fisher and Patrick M. Griffin), for plaintiff.

      Tucker & Barbour (by James A. Tucker and Milton L. Mack), for defendant Realtek.
    Before: Beasley, P.J., and Bronson and N. J. Kaufman, JJ.
   Per Curiam.

This action is based on an alleged assignment of accounts receivable by defendant Clover to plaintiff Dimmitt & Owens Financial, Inc. Defendant Realtek Industries, Inc., the account debtor, had a judgment entered against it and in favor of plaintiff-assignee in a bench trial. Defendant Realtek now appeals as of right.

Defendant first contends that the lower court committed reversible error in determining that Realtek was estopped from asserting defenses arising out of its contract with Clover against Dimmitt & Owens. Specifically, Realtek contends that MCL 440.9318(1); MSA 19.9318(1) precludes application of the principles of common law estoppel. That section provides that unless an account debtor has made an enforceable agreement to waive its defenses against the assignor, the rights of the assignee are subject to those defenses.

MCL 440.1103; MSA 19.1103 expressly preserves the doctrine of estoppel unless displaced by the particular provisions of the act. We do not find that § 9318(1) displaces common law estoppel principles. See 1 Anderson’s Uniform Commercial Code (2d ed), § 1-103:31, p 29.

Defendant next contends that even if estoppel applies, the trial court’s finding of estoppel on the facts of the instant case was against the great weight of the evidence. We disagree.

Estoppel arises where 1) a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, 2) the other party justifiably relies and acts on this belief, and 3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts. Conel Development, Inc v River Rouge Savings Bank, 84 Mich App 415, 422-423; 269 NW2d 621 (1978).

In the case at bar, acknowledgments signed by Realtek’s executive vice-president, Donald Horace, and vice-president, Donald Hedinger, before plaintiffs purchase of the accounts, stated that the amounts due were just and correct, not contingent upon the fulfillment of any obligation, past or future, on the part of Clover, and that Realtek agreed that such amounts were due and owing and approved and allowed the same. Hedinger testified that he knew that after he had signed the agreement that plaintiff would pay Clover. Horace testified that he had signed the acknowledgment because Clover had done the amount of labor represented by the invoice, and that he needed Clover to continue the job and he knew that Clover did not have enough money to pay his materialmen. Checks totalling the amount of the purchase price of the accounts were introduced at trial. Dimmitt & Owens’ president, Clifford Dimmitt, testified that these checks were made out in the amounts due individual suppliers pursuant to an agreement with Hedinger. In addition, Dimmitt testified that the checks were presented to Hedinger, who in turn gave them to Clover.

We conclude there was more than sufficient evidence from which the trial court could have found that Realtek was estopped to deny liability. This Court will not substitute its judgment for that of the trial court in matters involving credibility. See Rix v O’Neil, 366 Mich 35, 42-43; 113 NW2d 884 (1962).

Likewise, we conclude there was sufficient evidence to support the trial court’s finding of authority on the part of Hedinger and Horace to execute the acknowledgments. In Massachusetts Bonding & Ins Co v Transamerican Freight Lines, Inc, 286 Mich 179, 192; 281 NW 584 (1938), in determining whether a vice-president and manager of a regional office had authority to enter into an agreement, the Court quoted from 2 Fletcher, Cyclopedia Corporations (Perm Ed), p 606:

"An officer or agent of a private corporation, intrusted with the general management and control of its business and affairs, has implied or apparent authority to do acts or make any contracts in its behalf falling within the scope of the ordinary and usual business of the company, and limitations and restrictions placed upon his express or implied authority, of which persons dealing with him have neither actual nor constructive notice, will not serve to restrict such powers to the prejudice of innocent third persons.”

See also Maryland Casualty Co v Moon, 231 Mich 56, 62; 203 NW 885 (1925), Smith, Hinchman & Grylls Associates, Inc v City of Riverview, 55 Mich App 703, 706; 223 NW2d 314 (1974), lv den 393 Mich 804 (1975).

In the instant case, the court could well have found from the evidence that the executions of the acknowledgments were in the ordinary and usual business of the company, and that plaintiff was justified in assuming that defendant’s officers were authorized to perform this particular act in behalf of the principal. Horace testified that as executive vice-president, he was in charge of all construction and all facets of this particular apartment project, including financing. Hedinger, the vice-president, was in charge of accounts. The evidence was sufficient to show implied or apparent authority on the part of these officers.

Defendant’s second contention is that the court erred in admitting the accounts receivable purchase agreements between Clover and plaintiff because no foundation was laid for their admission. We think that any error in this regard would have been harmless. There was other evidence showing plaintiff’s ownership of the accounts in question. We also note that ownership of the accounts was not seriously contested either before or during trial. Under MCL 440.9318(3); MSA 19.9318(3), an account debtor is required to pay an assignee upon notice of the assignment or else request reasonable proof that the assignment has been made. The Commercial Savings Bank v G & J Wood Products, Inc, 46 Mich App 133; 207 NW2d 401 (1973). In the instant case, Realtek received notice and failed to request further proof of the assignment.

Defendant next contends that the trial court should have entered a default judgment against Clover and for Realtek when Clover failed to appear for trial. Realtek alleged in its cross-claim against Clover that it had received from Clover a release from "all liability arising out of the contract between the parties and for any and all work performed by the defendant”. By its own terms, as pleaded by Realtek, the release only covered liability arising out of the contract between Realtek and Clover, and did not purport to cover liability arising out of the contract between Dimmitt & Owens and Clover. Under § 9318(3), Realtek’s duty as an account debtor to pay Dimmitt & Owens, the assignee, was entirely separate from its duty under its contract with Clover, the assignor. Therefore, we conclude that Realtek failed to plead a release which applied to the instant situation and that the judgment of no cause of action was proper.

Next, defendant argues that the agreement between Dimmitt & Owens and Clover was usurious. This may be true, but it affords no relief to Realtek. The usury statute, MCL 438.31; MSA 19.15(1), is inapplicable because Dimmitt & Owens is in the business of purchasing accounts receivable; the instant situation does not involve refinancing or the making of loans. Even if the usury statute were applicable, Realtek is not the proper party to assert it here as usury is a defense entirely personal to the alleged victim. Tuxedo Enterprises, Inc v Detroit Trust Co, 272 Mich 160; 261 NW 283 (1935).

Finally, Realtek contends that the trial court incorrectly assessed damages, interest and costs in this action. In its opinion and final judgment, the lower court found that plaintiff was entitled to $12,150. However, it entered judgment in the amount of $12,500. Plaintiff does not contest that a clerical error was made, but only argues that it is Realtek’s burden to bring a motion to correct it, which Realtek has done. We remand this case for entry of a judgment in the amount of $12,150. GCR 1963, 528.1.

Realtek’s other argument regarding an error in determining the amount of damages is lacking in merit. The fact that Dimmitt & Owens remits a certain percentage of the invoice to Clover after collection from the account debtor does not in any way affect Realtek’s liability on the invoice.

Remanded for entry of judgment in accordance with this opinion. Costs to appellee.


text:
    T.D.N. ENTERPRISES, INC v LIQUOR CONTROL COMMISSION
    Docket Nos. 78-1193, 78-1375.
    Submitted March 8, 1979, at Lansing.
    Decided April 20, 1979.
    Leave to appeal applied for.
    T.D.N. Enterprises, Inc., Shop Rite Development Company, Mun-ford, Inc., and William and Judith Spratling each applied for one available liquor license in Meridian Township. T.D.N.’s request was for a transfer of a license it previously held and which was being kept in escrow by the Liquor Control Commission. Following a series of hearings, the commission awarded the license to the Spratlings, having found that all the applicants qualified equally but that the Spratlings had filed their application first. T.D.N. appealed to the Ingham Circuit Court and Shop Rite intervened as an appellant. The circuit court, Ray C. Hotchkiss, J., affirmed the commission’s decision. T.D.N. appeals, alleging that the commission was required to conduct its hearings as contested cases according to the Administrative Procedures Act, and that the commission failed to comply with an earlier Court of Appeals ruling which required the promulgation of rules governing the licensing procedure. Held:

    1. The contested cases provisions of the Administrative Procedures Act do not apply in this case because the statute governing the issuance of licenses does not require that selection of a licensee should be preceded by notice and an opportunity for a hearing.
    2. The commission adopted rules prior to the time T.D.N. applied for the license and T.D.N. had the benefit of those rules throughout the proceedings.
    3. The decision of the commission was based upon competent, material and substantial evidence, and was not arbitrary, capricious, or an abuse of discretion.
    Affirmed.
    1. Administrative Law — Licenses — Administrative Procedures Act — Statutes.
    The provisions of the Administrative Procedures Act which deal with contested cases do not apply where the pertinent statute governing the issuance of licenses by an administrative agency does not require that the selection of a licensee should be preceded by notice and an opportunity for hearing (MCL 24.201 et seq.; MSA 3.560[101] et seq.X

      References for Points in Headnotes

       1 Am Jur 2d, Administrative Law §§ 201-203.

      2. Intoxicating Liquors — Licenses — Selection of Licensees — Statutes.
    The statute governing the issuance of Specially Designated Distributor liquor licenses contains no requirement that selection of a licensee by the Liquor Control Commission be preceded by notice and an opportunity for a hearing (MCL 436.17; MSA 18.988).

      Daniel W. McKelvey, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and A. C. Stoddard, Thomas J. Giachino and Larry F. Brya, Assistants Attorney General, for defendants Liquor Control Commission and its individual members.

      Farhat, Burns & Story (by Norman C. Farhat and Richard C. Kraus), for defendants Spratling.

      Downs & Pirich, for Shop Rite Development Company.
    Before: Danhof, C.J., and Bashara and D. E. Holbrook, Jr., JJ.
   Per Curiam.

T.D.N. Enterprises, Inc. is appealing from an order of the trial court which affirmed the decision of the Michigan Liquor Control Commission (MLCC) to issue a Specially Designated Distributor (SDD) license to the defendants William and Judith Spratling. Shop Rite Development Company has intervened in this controversy as an appellant.

There were four competing applicants for one available SDD license in Meridian Township. One of the applicants, T.D.N., requested that the MLCC transfer its previously held SDD license which was being kept in escrow by the MLCC. The Spratlings were the first applicants to file their request for the SDD license, followed by Shop Rite, who was in turn followed by T.D.N. in its request for transfer of its license. Munford, Inc. was the fourth applicant to file. The record of events leading up to this appeal evidences numerous hearings by the MLCC in addition to several related rulings by the Ingham County Circuit Court.

T.D.N. contends that the commission was required to conduct its hearings as contested cases according to the provisions of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. This Court has held otherwise. Where the pertinent statute governing the issuance of licenses by an administrative agency does not require that the selection of a licensee should be preceded by notice and an opportunity for hearing, the provisions of the Administrative Procedures Act dealing with contested cases do not apply. Kelly Downs, Inc v Racing Comm, 60 Mich App 539, 546-548; 231 NW2d 443 (1975). The statute governing the issuance of SDD licenses contains no such requirement. MCL 436.17; MSA 18.988. Even though the parties were not entitled to conduct cross-examination at these hearings under the holding in Kelly Downs, supra, they were afforded the opportunity to present their cases to the commission.

Plaintiff T.D.N. also claims that the MLCC failed to comply with the directives set forth in Mallchok v Liquor Control Comm, 72 Mich App 341; 249 NW2d 415 (1976). There a panel of this Court held that the standards by which the MLCC evaluates license applicants must be in the form of promulgated, processed and published rules. The Court recognized the broad discretion granted to the MLCC in granting liquor licenses, but held that its discretion could not be absolute. Applicants had to be furnished with minimal, concrete guidelines. The MLCC adopted emergency rules on February 14, 1977, governing licensing qualifications pursuant to the Court’s ruling. Those rules expired one year later and were replaced by permanent rules which took effect on March 14, 1978. These rules clearly and adequately detailed the MLCC’s licensing procedure so as to provide applicants with the necessary standards. T.D.N. did not request that its SDD license be transferred until March 28, 1977, and thus had the benefit of the promulgated rules throughout the proceedings and cannot now claim otherwise.

The commission found that the four applicants for the one available SDD license in Meridian Township were all eligible and qualified equally under all of the factors stated in its rules except for one. That distinguishing factor was the priority in time of filing the requests for the license. Because the Spratlings were found to have been prior to the other applicants in filing, they were accordingly awarded the license.

On review of this decision, the Ingham County Circuit Court found that the commission had not acted arbitrarily or capriciously, nor had it abused its discretion. Its decision was found to be based upon competent, material and substantial evidence. Our review of the record leads us to the same conclusion.

Affirmed.


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

text:
    LANSING FIRE FIGHTERS ASSOCIATION LOCAL 421 v BOARD OF TRUSTEES OF THE CITY OF LANSING POLICEMEN’S & FIREMEN’S RETIREMENT SYSTEM
    Docket No. 77-4840.
    Submitted January 9, 1979, at Lansing.
    Decided June 5, 1979.
    Leave to appeal applied for.
    Lansing Fire Fighters Association Local 421, International Association of Fire Fighters, AFL-CIO, and all individual persons receiving benefits from the City of Lansing Policemen’s and Firemen’s Retirement System, after exhausting grievance procedures, filed a complaint for mandamus against the Board of Trustees of the City of Lansing Policemen’s and Firemen’s Retirement System. The plaintiffs claimed that the defendant board had erroneously calculated pension benefits and requested that the board be ordered to include the lump-sum payments made for accrued unused vacation in the sum total of compensation for the purpose of computing pension benefits. Ingham Circuit Court, Jack W. Warren, J., issued an order excluding lump-sum payments for accrued vacation time from the wage base in calculating pension benefit levels. Plaintiffs appeal. The question on appeal is whether the retiree’s accrued unused vacation pay is to be included as compensation in calculating the final average compensation for pension benefits. Held:

    Compensation, for computation of the average final compensation for pension benefit purposes, is based upon the pay which is received by a member each year for work done that year and includes base salary, longevity pay, shift differential pay, holiday pay and overtime pay; it does not include payments for accumulated sick or vacation time because those payments are made at the time of separation and are not made regularly during a worker’s tenure.
    Affirmed.
    References for Points in Headnotes

       60 Am Jur 2d, Pensions and Retirement Funds §§ 33, 62, 63.
    What constitutes "salary,” "wages,” "pay,” or the like, within
    pension law basing benefits thereon. 14 ALR2d 634.

       60 Am Jur 2d, Pensions and Retirement Funds §§ 2, 63.
    What constitutes "salary,” "wages,” "pay,” or the like, within pension law basing benefits thereon. 14 ALR2d 643.

      1. Municipal Corporations — Pensions — Retirement Plans — Firemen and Policemen — Average Final Compensation — Words and Phrases — Statutes.
    Average final compensation, as the term is used in the fire and police department pension act, means the average of the highest annual compensation received by a member during a certain number of years immediately preceding that member’s retirement (MCL 38.556[l][f]; MSA 5.3375[6][l][f]).
    2. Municipal Corporations — Pensions — Retirement Plans — Firemen and Policemen — Annual Compensation — Average Final Compensation — Words and Phrases — Statutes.
    Annual compensation received, and compensation, as these terms are used in the fire and police department pension and retirement act, have reference to that pay or the average of that pay which is received by a member each year for work done that year and includes base salary, longevity pay, shift differential pay, holiday pay and overtime pay because those payments are made and received annually for work done that year; it does not include payments for accumulated sick or vacation time because those payments are made at the time of separation and are not made regularly during a worker’s tenure (MCL 38.551 et seq.; MSA 5.3375[1] et seq.).

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Ronald R. Helveston), for plaintiffs.

      James T. Heos, Senior Assistant City Attorney, for defendant.
    Before: V. J. Brennan, P.J., and M. F. Cavanagh and C. J. Hoehn, JJ.

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

   V. J. Brennan, P.J.

The individual plaintiffs are all persons receiving benefits from the City of Lansing Policemen’s and Firemen’s Retirement System. The plaintiffs claimed that the defendant board had erroneously calculated pension benefits, and after exhausting grievance procedure, filed a complaint for mandamus in the Ingham County Circuit Court. The complaint requested that the board be ordered: (1) to include the lump-sum payments made for accrued unused vacation in the Sum total of "compensation” for the purpose of computing pension benefits, and (2) to refrain from adjusting the employees’ retirement dates to include unused vacation time in the computation of benefits.

On December 5, 1977, the lower court issued an order prohibiting the board from adjusting the employees’ retirement date in the computation of benefits but excluding lump-sum payments for accrued vacation time from the wage base in calculating pension benefit levels. The plaintiffs appeal as of right.

Neither side disputes the lower court’s order prohibiting the defendant from adjusting (either actually or constructively) the date of retirement in its calculation of pension benefits. Therefore we need not address that aspect of the lower court’s opinion.

We are faced with one question on appeal: Whether, pursuant to the Lansing city charter, the retiree’s accrued unused vacation pay is to be included within the term "final average compensation” in computing pension benefits. The pertinent provisions of the city charter (Chapter 16) are as follows:

"The City of Lansing policemen and firemen retirement system, hereinafter called the retirement system, is hereby established for the purpose of providing retirement allowances for policemen and firemen of the City of Lansing and certain death benefits for their dependents, under the provisions of this Chapter.” § 1.
"There is hereby created a board of trustees in whom is vested the general administration, management, and responsibility for the proper operation of the retirement system and for construing and making effective the provisions of this chapter.” § 2.
" 'Final average compensation’ means the monthly average of the compensations paid a member during the period of 24 highest consecutive months of his credited service immediately preceding the date his employment by the city as a policeman or fireman last terminates. If he has less than 24 months of credited service his final average compensation shall be the monthly average of the compensations paid him for his total period of credited service.” § 12(n).
" 'Final compensation’ means a member’s monthly rate of compensation at the time his employment by the city as a policeman or fireman last terminates.” § 12(o).
"Upon a member’s retirement as provided in this chapter he shall receive a retirement allowance equal to the sum of 2 per cent of his final average compensation multiplied by the number of years, and fraction of a year, of his credited service not to exceed 25 years, plus one per cent of his final average compensation multiplied by the number of years, and fraction of a year, of his credited service which is in excess of 15 years; * * § 19(a).

The plaintiffs argue that the accrued vacation pay is "compensation” and as such is to be included in the formula set forth in § 19(a) above. Based on well established case law on point we disagree.

This precise issue was raised before this Court in Stover v Retirement Board of the City of St Clair Shores Firemen & Police Pension System, 78 Mich App 409, 412-413; 260 NW2d 112 (1977), concerning the term "average final compensation” as set forth in MCL 38.556(l)(f); MSA 5.3375(6)(l)(f). There the Court held:

"We have no particular difficulty in determining the meaning of the statute in question. Average final compensation means the average of the highest annual compensation received by a member during a certain number of years immediately preceding that member’s retirement. Annual compensation received refers to that pay which is received by a member each year for work done that year. Annual compensation received includes base salary, longevity pay, shift differential pay, holiday pay and overtime pay because those payments are made and received annually for work done that year. Annual compensation received does not include unused sick or vacation payments because those payments are not made regularly during a worker’s tenure with the city. Those payments are properly viewed as a retirement bonus received at retirement and not as annual compensation received during a certain number of years immediately preceding the member’s retirement.” (Emphasis in original.)

The above reasoning equally applies to the term "final average compensation” as set forth in the city charter. Additionally we point out that the board, being in charge of administration of the pension program, has reasonably interpreted the charter in light of objects and purposes sought to be accomplished. As such we find no cogent reasons for overruling the board’s construction of the charter as it relates to the exclusion of accrued vacation time from retirement benefit computation. See Michigan State Police Command Officers’ Ass’n, Inc v Dep’t of Public Safety, 80 Mich App 278; 263 NW2d 47 (1977).

The lower court’s order is affirmed.


author: Bashara, J.

text:
    BARR v PONTIAC CITY COMMISSION
    Docket No. 78-381.
    Submitted January 5, 1979, at Detroit.
    Decided June 5, 1979.
    Prior to 1961, plaintiff Matthew Barr or his family operated a bar in Pontiac. In 1961, plaintiff sold the business, including the liquor licenses, retaining a security interest. In 1973, plaintiff foreclosed on the obligation, which was in default, and sought to have the liquor licenses transferred back to himself. The Michigan Liquor Control Commission required that plaintiff secure the recommendation of defendant Pontiac City Commission before it would transfer and renew the licenses. Defendant City Commission, without holding a hearing and without giving reasons for its action, adopted a resolution disapproving the transfer and renewal of the licenses. Plaintiff subsequently filed, without success, a series of appeals and requests for rehearings with both defendant Liquor Control Commission and defendant City Commission, and thereafter filed a coniplaint for superintending control. The Oakland Circuit Court, James S. Thorburn, J., ordered the Pontiac City Commission to recommend the approval of plaintiffs request for transfer and delayed renewal of the liquor licenses. Defendant City Commission appeals. Held:

    1. A party seeking renewal of a liquor license has a vested property right which entitles him to a due process hearing.
    2. Plaintiff was not guilty of laches, in that the record shows that he brought numerous appeals and requests for rehearings prior to seeking relief from the court.
    3. An individual holding a reversionary interest in a liquor license has a sufficient property interest in the license to entitle him to a due process hearing before a city commission at such time as said body considers its recommendation relative to the retransfer and renewal of the license.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 822.

       45 Am Jur 2d, Intoxicating Liquors § 174 et seq.

    4 Am Jur 2d, Appeal and Error §§ 182, 183.
    Right to hearing before revocation or suspension of liquor license. 35 ALR2d 1067.

       45 Am Jur 2d, Intoxicating Liquors § 175 et seq.

    Grant or renewal of liquor license as affected by fact that applicant held such license in the past. 2 ALR2d 1239.

       4 Am Jur 2d, Appeal and Error § 178 et seq.

       51 Am Jur 2d, Licenses and Permits §§ 53, 83, 84, 139.

      4. The City Commission’s refusal to recommend the retransfer and renewal of the liquor license was arbitrary and capricious in that the decision was not based upon the nature of the plaintiffs character but upon the City Commission’s desire to parcel out liquor licenses to further the city’s own economic development and master plan.
    Affirmed.
    1. Appeal and Error — Equity — De Novo Review — Findings of Trial Court — Different Result.
    Review of cases decided by a court exercising equity jurisdiction is de novo; however, great weight is accorded the trial court’s findings, and reversal or modification will be undertakefi only if the Court of Appeals is convinced that it would reach a different result.
    2. Intoxicating Liquors — Licenses — Renewal — Constitutional Law — Due Process.
    A party seeking renewal of a liquor license has a vested property right which entitles him to a due process hearing.
    3. Equity — Intoxicating Liquors — Licenses — Laches.
    A party seeking an order of a circuit court directing a city commission to recommend to the Michigan Liquor Control Commission that a liquor license, in which said party has a reversionary interest, be transferred back to him and renewed is not guilty of laches where the record shows that the individual brought numerous appeals and requests for rehearing before both the Liquor Control Commission and the city commission prior to seeking relief from the circuit Court.
    4. Intoxicating Liquors — Licenses — Reversionary Interest — Property — Constitutional Law — Due Process.
    A party holding a reversionary interest in a liquor license has a sufficient property interest in the license to entitle him to a due process hearing before a city commission at such time as said body considers its recommendation relative to the retransfer and renewal of the license.
    5. Intoxicating Liquors — Licenses — Renewal — Local Legislative Body — Arbitrary and Capricious Action.
    A city commission’s refusal to recommend the retransfer and renewal of a liquor license to one holding a reversionary interest in said license is arbitrary and capricious where said refusal is not based upon the nature of the individual’s character, but is rather based upon the city commission’s desire to parcel out the licenses to further the city’s own economic development and master plan.

      Sommers, Schwartz, Silver & Schwartz (by Edward Barry Stulberg), for the plaintiff.

      Alger H. Strom, Deputy City Attorney, for defendant Pontiac City Commission.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   Bashara, J.

Defendant Pontiac City Commission appeals from an order of the trial court directing them to recommend approval to defendant Michigan Liquor Control Commission of plaintiffs request to transfer a class "C” and an S.D.M. license to him. The order also provided that the city recommend delayed renewal of the licenses for the 1973 through 1978 licensing years. The licenses were to be held in escrow pending possible sale by the plaintiff.

Plaintiff or his family had operated a bar business at the same location in the City of Pontiac since 1930. In 1961, plaintiff sold the business, which included the licenses, but retained a security interest. One Robert Epps defaulted in 1973. Plaintiff foreclosed and sought to have the licenses transferred back to himself.

In response to the Liquor Control Commission’s request for a recommendation, the defendant City Commission adopted a resolution of disapproval. No hearing on the petition or reasons for rejection were given. There followed a series of appeals, requests for rehearings and repeated denials, until a complaint for superintending control was filed in the circuit court.

The court ordered the defendant City Commission to hold a formal hearing with written notice to plaintiff, and to submit its recommendations in writing, together with reasons therefor. After another denial, and subsequent hearing before the court, the trial judge issued the order referred to at the outset of this opinion.

He reasoned as follows:

"THE COURT: The Court is of the opinion that case law establishes that there is a property interest in a liquor license under the laws of the State of Michigan, as the first premise. The second premise is that case law has established that it is appropriate and legally proper to retain a lien on a liquor license when it is sold, as has been done in this case.
"No. 3, that when there is a foreclosure which has been properly done as in this case the title reverts back to the original seller.
"Now, obviously 95 percent of the liquor licenses in the State of Michigan are held by people who are in business, often as sole proprietors, small bars, taverns, enterprises of that sort. The other category of liquor license can be and is the chain, the Hilton Hotel, the chain of drug stores, etc.
"Now, it appears to this Court that the property right has to be the same under the Constitution of the United States and the Constitution of the State of Michigan and cannot vary as to the quality of the particular individual, assuming the other standards of good character, etc., are present.
"There is no issue here as to that. The only issue is whether or not because the original seller, the now-holder of the property interest, is honest enough to indicate that he has retired, he no longer wants to engage in the liquor business — he tried to sell it once. It was approved by the city. He now wants an opportunity to sell it again.
"Obviously the law which permits a lien would completely frustrate such an operation. When confronted with the liquor license held by a corporate chain there is never any question about it. They go on forever. They don’t suffer illness, old age and death as does the private citizen.
"It seems to me that the two of them have to be treated equally. That the individual should be in the same position as the corporate owner of a liquor license.
"For those reasons the Court is going to grant the plaintiff’s prayer and order that the license should be issued pursuant to law and for the purpose of resale within a reasonable period of time. The Court will sign an order to that effect.”

It is well recognized that our review of cases decided by a court exercising equity jurisdiction is de novo. However, great weight is accorded the trial judge’s findings and we will not reverse or modify unless convinced that we would have reached a different result. Eyde v State of Michigan, 82 Mich App 531; 267 NW2d 442 (1978), Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969), Cheslek v Gillette, 66 Mich App 710; 239 NW2d 721 (1976).

The central issue which confronts us therefore is whether the ruling of the trial judge was clearly erroneous.

To reach a determination of this primary question, we first turn to defendant’s contention that the plaintiff is guilty of laches and is estopped from asserting the cause of action alleged in his complaint.

As a result of the Supreme Court rulings in Bisco’s, Inc v Liquor Control Comm, 395 Mich 706; 238 NW2d 166 (1976), and Bundo v City of Walled Lake, 395 Mich 679; 238 NW2d 154 (1976), one who seeks a renewal of a liquor license has a vested property right which requires a due process hearing.

Prior to the Supreme Court’s holding in Bundo, judicial review of a city’s recommendation as to a liquor license was not obtainable. In the case at bar, an appeal of the Liquor Commission’s order would have been pointless. Plaintiff’s only alternative at that time was to ask for rehearings of the Liquor Control Commission’s determination, and for an order of superintending control in the circuit court. These steps were taken.

The complaint for superintending control was sought subsequent to the decision in Bundo. Therefore, the rights enumerated in Bundo and Bisco’s apply. The record clearly indicates plaintiff’s attempts to seek redress. He was not guilty of laches, and the trial court was correct in reaching the merits of the case.

Defendant City Commission argues that plaintiff was not entitled to a due process hearing because he had no property right in the license renewal. The City Commission contends that at best plaintiff had a mere unilateral expectation as an applicant for a license.

We agree with defendant’s contention that there is no protected interest in a mere expectation a new license applicant or transferee might possess. Bundo, supra, and Bisco’s, supra. However, we cannot say that the plaintiff’s interest is to be equated with that of one petitioning for a new or transferred license.

In Bundo, supra, at 688-689, the Michigan Supreme Court looked for guidance to the cases of Board of Regents v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972), and Perry v Sinder man, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1970), to determine the nature of "property” protected by the due process clause of the Fourteenth Amendment. The Michigan Supreme Court referred to Roth and Sinderman because in Kenosha v Bruno, 412 US 507; 93 S Ct 2222; 37 L Ed 2d 109 (1973), the United States Supreme Court remanded an action for consideration under Roth and Sinderman, where a tavern owner claimed he was denied due process when a municipality denied renewal of his application for a liquor license without notice or a hearing.

In Board of Regents v Roth, supra, Justice Stewart discussed a property interest as follows:

"Certain attributes of 'property’ interests protected by procedural due process emerge from these decisions. 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. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
"Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law —rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 408 US at 577.

Similarly in Perry v Sinderman, Justice Stewart discussed the nature of a property right.

"We have made clear in Roth, supra, at 571-572, that 'property’, interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, 'property’ denotes a broad range of interests that are secured by existing rules or understandings. Id., at 577. A person’s interest in a benefit is a 'property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” 408 US at 601.

Heeding the foregoing, we look to the nature of the transaction and the agreements involved to classify the plaintiffs status. Plaintiff sold to Epps as his transferee. The sale was conditioned on the license transfer. Once transferred, the grantee sought and was granted regular renewals. Had he not defaulted on his obligation to plaintiff, he would have continued to have a property right in renewals under Bisco’s and Bundo.

Similarly, the plaintiff sold something of value to his grantee. Without the liquor license, the value of the property diminishes greatly. While plaintiffs interest in the license is not "title” per se, it is a much stronger interest than that of a new applicant or proposed transferee.

We conclude that plaintiff has a reversionary interest, which is a property right, entitling him to the minimum due process hearing described in Bundo.

Finally, we must consider whether the trial court was correct in its finding that the defendant City Commission’s action was arbitrary and capricious. The Bundo Court referred to United States v Carmack, 329 US 230; 67 S Ct 252; 91 L Ed 209 (1946), to describe the words "arbitrary and capricious”.

"Arbitrary is: ' "[Without adequate determining principle * * * Fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, * * * decisive but unreasoned”
"Capricious is: ' "[A]pt to change suddenly; freakish; whimsical; humorsome”

Bundo, supra, at 703.

It is the position of defendant City Commission that it wishes to place the license in escrow to further its own economic development.

It appears that the City Commission is placing licenses in escrow so that it can parcel them out to whomever they feel will suit their master plan.

Under the circumstances of this case, it does not seem to us that the trial judge was clearly erroneous in his determination.

Affirmed.

       At the time of the sale, plaintiff and his mother were the grantors of the business and licenses. Plaintiffs mother subsequently died, leaving plaintiff as the sole grantor at the time of the court proceeding.

       It should be emphasized that plaintiff is not a speculator. Should he sell his ongoing business to another, the grantee would have to satisfy the City Commission and the Liquor Commission as to qualifications and location.