author: V. J. Brennan, J.

text:
    MORACO v WAYNE COUNTY PROSECUTOR
    Docket No. 46291.
    Submitted March 11, 1980, at Detroit.
    Decided June 17, 1980.
    Charles Moraco initiated a declaratory judgment action in Wayne Circuit Court for a declaration that his practice of allowing patrons of his restaurant, which did not have a liquor control commission license of any class, to bring into and consume on his premises their own wine, along with food supplied by the restaurant, fell outside the parameters of the "bottle club act”. Both Mr. Moraco and the Wayne County Prosecutor stipulated to a statement of facts, and both proceeded on motions for summary judgment. The prosecutor’s motion was granted, William J. Giovan, J., the court holding that there was no material issue of fact and Mr. Moraco’s activities violated provisions of the act. Mr. Moraco appeals. Held:

    The "bottle club act” prohibits the sale of food to promote drinking. Mr. Moraco’s activity does not fall within the provisions of the act since the consideration which he receives is for the meals sold and is unrelated to consumption of wine on the premises.
    Reversed.
    1. Intoxicating Liquors — Restaurants — Consideration — Licensing — Sales.
    A restaurant owner not licensed to sell liquor does not, by the sale of food alone, receive consideration for furnishing patrons with a place to consume alcohol, where no extra money passes to the owner in relation to such consumption.
    2. Intoxicating Liquors — Bottle Club Act — Licensing — Promoting Consumption — Statutes.
    The furnishing of unlicensed premises for the consumption of liquor where food, fluids or other articles to promote such consumption are sold is prohibited by the "bottle club act” (MCL 436.26[c]; MSA 18.997[3]).

      References for Points in Headnotes

       45 Am Jur 2d, Intoxicating Liquors §§ 131, 257.

       45 Am Jur 2d, Intoxicating Liquors §§ 22-24.

       73 Am Jur 2d, Statutes §§ 300, 301.

      3. Intoxicating Liquors — Restaurants — Licensing — Patrons — Promoting Consumption.
    A restaurant owner who permits patrons to bring a bottle of wine into an unlicensed restaurant does not promote drinking.
    4. Intoxicating Liquors — Michigan Liquor Control Act — Regulation — Sales.
    The Michigan Liquor Control Act provides for the regulation and sale or the prohibition of the sale of intoxicating liquor (MCL 436.1 et seq.; MSA 18.971 et seq.).

    5. Statutes — Penal Statutes — Strict Construction — Interpretation — Purpose.
    A penal statute is to be strictly construed; interpretation is to be done in light of the end purpose of the law and the evil sought to be corrected.

      Joselyn, Rowe, Jamieson & Grinnan, P.C. (by James A. Callahan), for plaintiff.

      Frank J. Bernacki, Assistant Prosecuting Attorney, for defendant.
    Before: Bronson, P.J., and V. J. Brennan and T. M. Burns, JJ.
   V. J. Brennan, J.

This case was initiated in Wayne County Circuit Court as a declaratory judgment action to determine whether plaintiff’s activities fall within the parameters of MCL 436.26(c); MSA 18.997(3). Both parties agreed to a stipulated statement of facts which established that plaintiff is the owner of a French restaurant which does not have a liquor control commission license of any class. Plaintiff, however, allows his restaurant patrons to bring upon the premises wine which they consume from plaintiff’s glasses. The parties proceeded on motions for summary judgment. The lower court granted defendant’s motion for summary judgment, holding that there was no material issue of fact and that plaintiffs activities did violate MCL 436.26(c); MSA 18.997(3). Plaintiff appeals as of right from this ruling.

As the parties submitted a stipulated statement of facts, no genuine issue of material fact exists. Accordingly, the question before us is one of first impression and can be framed as follows: Did the lower court err in determining that plaintiffs actions violated the statute as a matter of law?

The relevant portion of MCL 436.26(c); MSA 18.997(3) provides in pertinent part as follows:

"No person shall maintain, operate, lease or otherwise furnish to other persons any premises or place which is not licensed under this act, wherein such other persons may engage in the drinking of alcoholic beverages, for a fee or for any other consideration, including the sale of food, mixers, ice or other fluids used with alcoholic drinks or the storage of alcoholic liquors: * sj: * 99

The plaintiff argues that the above statute, generally known as the "bottle club act”, is to restrict such clubs. Since plaintiffs restaurant is clearly not such a club, the statute is inapplicable.

The Liquor Control Act was enacted to control trafficking in alcoholic beverages. Defendant contends that since plaintiffs patrons enter his unlicensed restaurant and are allowed to engage in the drinking of alcohol for the consideration of the sale of food, plaintiff falls squarely within the statute.

. Initially we consider whether, by the sale of food, plaintiff has received consideration for furnishing patrons with a place to consume alcohol. Black’s Law Dictionary (4th ed) defines consideration as follows:

"The inducement to a contract. The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. 2 Bla Comm 443; Cassinelli v Stacy, 238 Ky 827; 38 SW2d 980, 983.
"An act or forbearance, or the promise therefore, which is offered by one party to an agreement, and accepted by the other as an inducement to that other’s act or promise. Poll Contr 91.”

All dinners at plaintiffs restaurant are $16.50, regardless of whether or not a customer brings a bottle of wine. No extra money passes to plaintiff because a customer in fact brings wine. There are no bottle-opening, set-up, or other fees charged. Applying the above general definitions to these facts, we do not find that plaintiffs activity falls within the statute, since the consideration which plaintiff receives is for the meals sold and is unrelated to the consumption of wine on the premises.

Plaintiffs argument that the purpose of MCL 436.26(c) is to restrict the establishment of "bottle clubs”, which his restaurant clearly is not, is also persuasive. The only case in which this section of the Liquor Control Act was construed is Beacon Club v Kalamazoo County Sheriff, 332 Mich 412, 416-417; 52 NW2d 165 (1952), wherein the Court determined the constitutionality of this section. The Court speaking through Justice Carr stated:

“The purpose of Section 26c is not questioned. It is directed at the operations of so-called 'bottle clubs,’ and, while not a direct inhibition on the consumption of alcoholic liquor, is designed to restrict the furnishing of premises for hire whereon such beverages are stored or consumed. In accordance with such purpose, the sale of food and of fluids designed to be used with alcoholic drinks on such premises was included in the inhibition.”

Later on in Beacon, the Court stated:

"Its purpose was, as the language used clearly indicates, to regulate the use of intoxicating liquors. To that end the furnishing of premises not licensed under the act where liquor may be consumed and the sale of food and other articles to promote drinking thereon were forbidden.” Id., 421. (Emphasis added.)

"Bottle club” is defined in Webster’s New Collegiate Dictionary (1st ed, 1974), as a "private establishment at which patrons are served alcoholic drinks after normal legal closing hours from supplies they have previously purchased or reserved”. There is no question that plaintiff’s restaurant is not a bottle club. Although defendant draws our attention to the fact that § 26(c) and Beacon Club both refer to the sale of food, this phrase cannot be taken out of context. It is the sale of food to promote drinking, or as consideration, which the statute prohibits. Permitting patrons to bring a bottle of wine to an unlicensed restaurant does not, in our opinion, promote drinking.

Defendant points out that the liquor control commission has statutory power to regulate liquor traffic through licensing, in order to control trafficking in alcoholic beverages. Therefore § 26(c) applies to plaintiff, since plaintiff was trafficking in alcoholic beverages. We disagree. In People v Wheeler, 185 Mich 164, 170; 151 NW 710 (1915), the Court, discussing whether the act, as indicated by its title, embraced more than one object, stated: "[b]ut in our opinion the title of the act in question shows that the act is aimed at but one subject, viz., intoxicating liquor, and provides for the regulation of the sale thereof and the prohibition of the sale under certain conditions.” (Emphasis added.) And in Flower v Witkovsky, 69 Mich 371, 375; 37 NW 364 (1888), it was stated that "[t]he main purpose of the act is to regulate and prohibit the sale of liquors, * * *”. (Emphasis added.) Plaintiff does not sell alcoholic beverages.

Since MCL 436.26(c) is a penal statute, it is to be strictly construed. Magid v Oak Park Racquet Club Associates, Ltd, 84 Mich App 522, 528; 269 NW2d 661 (1978). People v Buford, 69 Mich App 27; 244 NW2d 351 (1976). Jads, Inc v Detroit, 41 Mich App 693; 200 NW2d 715 (1972). The rule of strict construction does not mean courts must reject the best meaning of the words used. However, interpretation should be done in light of the end purpose of the law and the evil sought to be corrected. People v Hall, 391 Mich 175, 189-190; 215 NW2d 166 (1974). Hightower v Detroit Edison Co, 262 Mich 1; 247 NW 97; 86 ALR 509 (1933). Guided by the Supreme Court’s finding that the purpose of § 26(c) is to prohibit bottle clubs, Beacon Club, supra, we decline to find that plaintiff’s operation of his restaurant is prohibited by § 26(c). Had the Legislature wished to prohibit plaintiff’s acitivity it could have explicitly done so.

Reversed.

       In Michigan License Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319; 266 NW2d 808 (1978), the Michigan License Beverage Association brought an action against Behnan Hall to permanently enjoin them from renting the premises to others for the consumption of alcoholic beverages and from further providing the food, bartenders, and assorted nonalcoholic beverages to be used with liquor on the rented premises. The Court determined that plaintiff lacked standing and consequently did not go on to determine whether defendant’s activity was in'violation of MCL 436.26(c).


source: Caselaw Access Project

author: D. C. Riley, J.

license: Public Domain

text:
    EVANS v EVANS
    Docket No. 46457.
    Submitted May 7, 1980, at Grand Rapids.
    Decided June 17, 1980.
    Leave to appeal applied for.
    James J. Evans filed for a divorce from Kattie J. Evans. Following the filing of this action, but before the judgment of divorce was granted, plaintiff redeemed a worker’s compensation award for $5,176 and redeemed a retroactive social security award for $8,279. The Muskegon Circuit Court, Ronald H. Pannucci, J., determined that these amounts were part of the marital estate and awarded defendant a one-half interest in them as part of the judgment of divorce. Plaintiff appeals. Held:

    Both the worker’s compensation award and the social security award are benefits intended to benefit both the injured worker and his dependents; accordingly, it was proper for the trial court to consider those awards to be part of the marital estate for the purpose of the property settlement in the judgment of divorce. Since those awards had been redeemed and were held as existing funds, the parceling out of those funds did not-involve the division of some future possible benefits.
    Affirmed.
    Divorce — Property Division — Worker’s Compensation Benefits — Social Security Benefits.
    Funds received from the redemption of a worker’s compensation award and from the redemption of a retroactive social security award, both redemptions having occurred during a marriage, are benefits for both the worker and his dependents and are thus properly considered to be part of a marital estate for the purpose of a property settlement in a judgment of divorce; the property settlement involves only the division of an existing fund rather than the division of some future benefit.
    References for Points in Headnote
    [1] 24 Am Jur 2d, Divorce and Separation §§ 928, 932.5.
    Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses. 94 ALR3d 176.

      Edward C. Wilson, for

      Parmenter, Forsythe, Rude, Garigan, Van Epps & Briggs, for defendant.
    Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   D. C. Riley, J.

This case involves an issue of first impression in Michigan: whether social security and worker’s compensation benefits can be considered part of the marital estate for purposes of property division.

In September, 1975, plaintiff filed for divorce. Two months later, he was injured at his employment and was no longer able to work. On December 4, 1978, plaintiff redeemed his worker’s compensation accrued benefits for $5,176. He also redeemed a retroactive social security award of $8,279. The trial judge determined that these amounts were part of the marital estate and awarded defendant a one-half interest in them as part of the judgment of divorce. Plaintiff appeals as of right, disputing this decision.

Michigan trial courts have wide discretion in dividing marital assets at the time of divorce. Feldman v Feldman, 55 Mich App 147, 153; 222 NW2d 2 (1974). Factors affecting division include the "source of property, contribution towards its acquisition, the years of married life, the needs of the parties, their earning ability and also the cause of divorce.” Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216 (1956). A trial court’s property settlement will not normally be reversed or modified unless this Court would have reached a different result. Feldman, supra.

Although there are no Michigan cases directly addressing the question of the division of worker’s compensation and social security benefits in the property award in a divorce judgment, several related cases are illuminative. The most enlightening is Petrie v Petrie, 41 Mich App 80; 199 NW2d 673 (1972), where this Court held that workmen’s compensation benefits payable to the husband could be subject to a lien for support required by a divorce judgment. The Court reasoned that, since the Workmen’s Compensation Act was passed to benefit both the worker and his dependents, an award should be accessible to the wife. Id., at 83.

Since the Worker’s Disability Compensation Act was enacted to assist both the worker and his dependents, i.e., his spouse, we conclude that such benefits received during the course of the marriage should be considered a marital asset. We believe that , a similar purpose mandates an identical consideration of social security benefits. As stated by the Arizona Court of Appeals:

"We note that the general purpose of the old age, survivor and disability insurance provisions of the Social Security Act is to protect workers and their dependents from the risk of loss of income due to the insured’s old age, death or disability. Delno v Celebrezze, 347 F 2d 159 (9th Cir 1965). Entitlement to benefits is based upon the receipt of income from labor which the old age, death, or disability would interrupt. Delno v Celebrezze, supra. Thus we see that the purpose of the payment of these disability benefits under the Social Security Act is to take the place of the income from labor which the husband otherwise would have been receiving. Under the law previously set forth, there is no doubt that had the husband not suffered from any disability but continued to work, his wages would still have been community property even though he was living separate and apart from his wife. Since his social security disability payments take the place of these wages, it is clear that such payments are community property.” Guerrero v Guerrero, 18 Ariz App 400, 402; 502 P2d 1077 (1972).

In Michigan, no court has considered the divisibility of social security benefits. Military retirement pay has been recognized as a marital asset, Chisnell v Chisnell, 82 Mich App 699; 267 NW2d 155 (1978), as has a vested pension plan, Miller v Miller, 83 Mich App 672; 269 NW2d 264 (1978), Hutchins v Hutchins, 71 Mich App 361; 248 NW2d 272 (1976). The determinant appears to be whether an asset has a present, ascertainable value or whether it is merely a contingent interest. The United States Supreme Court has held specifically that a wife is not entitled to a share of her husband’s expected future benefits under the Railroad Retirement Act or presumably the Social Security Act. Hisquierdo v Hisquierdo, 439 US 572; 99 S Ct 802; 59 L Ed 2d 1 (1979).

In the instant case, the contested social security benefits were acquired during the marriage. The amount of benefits is currently ascertainable — $8,-279. This is not a case where the court has divided some future, possible benefit, but is merely the parceling of a presently existing bank account comprised partially of worker’s compensation and social security benefits. We find no error in the lower court’s conclusion that the benefits were marital assets, subject to equal division.

Affirmed.

       Other jurisdictions have considered the propriety of dividing social security benefits and have reached opposite conclusions. See In re Marriage of Hillerman, 88 Cal App Sd 372; 151 Cal Rptr 764 (1979), Umber v Umber, 591 P2d 299 (Okla, 1979), Harmon v Harmon, 161 NJ Super 206; 391 A2d 552 (1978).


author: Per Curiam.

text:
    PEOPLE v HAYWARD
    Docket No. 45038.
    Submitted May 7, 1980, at Grand Rapids.
    Decided June 17, 1980.
    Pamela Hayward was convicted of breaking and entering with intent to commit a larceny, Kalamazoo Circuit Court, Charles H. Mullen, J. The defendant appeals alleging that the trial court erred by admitting evidence of her limited participation in a prior breaking and entering. Held:

    1. Evidence of similar acts by a defendant may be admitted to show intent, plan, scheme, and system and under other limited circumstances, but the evidence even if material should not be admitted where its probative value is outweighed by its prejudicial impact.
    2. A trial court’s decision to admit evidence of a similar act of a criminal defendant will not be reversed on appeal unless the lower court abused its discretion.
    3. A criminal defendant’s access to pretrial discovery should be encouraged if it will aid in the ascertainment of the truth and will insure the defendant’s fundamental right to a fair trial.
    4. A prosecutor’s suppression of evidence of statements that are material to defense preparation should be considered at least prejudicial, and perhaps a violation of due process.
    5. The Court of Appeals will not consider an issue on appeal where the basis for objection on appeal differs from the basis asserted below.
    6. The trial court abused is discretion by admitting evidence of the defendant’s prior participation in a breaking and entering as the prejudicial effect clearly outweighed any probative value and by failing to suppress evidence of the two witnesses’ statements which was offered by the prosecutor in violation of a pretrial order.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 253, 260, 320, 321, 324, 326.
    Admissibility, under Rule 404(b) of the Federal Rules of Evidence, of evidence of other crimes, wrongs, or acts similar to offense charged to show preparation or plan. 47 ALR Fed 781.

       5 Am Jur 2d, Appeal and Error §§ 881, 883.

       23 Am Jur 2d, Depositions and Discovery § 307 et seq.

       63 Am Jur 2d, Prosecuting Attorneys § 27.

       5 Am Jur 2d, Appeal and Error §§ 601, 602.

      Reversed and remanded for a new trial.
    J. H. Gillis J., concurs in the result only.
    1. Criminal Law — Evidence — Similar Acts — Defendants — Rules of Evidence.
    Evidence of similar acts by a defendant may be admitted to show intent, plan, scheme, and system and under other limited circumstances, but the evidence even if material should not be admitted where its probative value is outweighed by its prejudicial impact (MRE 404[b]).
    2. Appeal — Evidence — Trial Courts — Abuse of Discretion.
    A trial court’s decision to admit evidence of a similar act of a criminal defendant will not be reversed on appeal unless the lower court abused its discretion.
    3. Criminal Law — Discovery — Defendants.
    A criminal defendant’s access to pretrial discovery should be encouraged if it will aid in the ascertainment of the truth and will insure the defendant’s fundamental right to a fair trial.
    4. Criminal Law — Prosecuting Attorneys — Pretrial Statements — Suppression.
    A prosecutor’s suppression of evidence of statements that are material to defense preparation should be considered at least prejudicial, and perhaps a violation of due process.
    5. Courts — Court of Appeals — Appellate Review.
    The Court of Appeals will not consider an issue on appeal where the basis for objection on appeal differs from the basis asserted below.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Paul Burakoff, Assistant Prosecuting Attorney, for the people.

      James F. Bauhof, for defendant on appeal.
    Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   Per Curiam.

After a jury trial held March 28, 29 and 30, 1979, defendant was convicted of breaking and entering into a store with intent to commit a larceny, MCL 750.110; MSA 28.305. On April 30, 1979, she was sentenced to serve three years probation and now appeals as of right.

Defendant first contends that the trial court reversibly erred by admitting evidence of her limited participation in a prior breaking and entering.

Evidence of similar acts may be admitted only under certain circumstances, such as to prove intent, plan, scheme, system, etc. MRE 404(b). Admission is also limited by the requirement that one or more of these purposes must be material or at issue. People v Major, 407 Mich 394, 398-400; 285 NW2d 660 (1979). Further, even if the similar acts evidence is probative of a contested purpose, it must still be rejected if its probative value is outweighed by its prejudicial impact. People v Worden, 91 Mich App 666, 683; 284 NW2d 159 (1979), People v Wilkins, 82 Mich App 260, 270; 266 NW2d 781 (1978). Thus, if the information is incurably prejudicial, it may not be admitted under any circumstances.

A trial court’s admission determination will not be reversed on appeal unless the lower court has abused its discretion. People v Duncan, 402 Mich 1, 14-15; 260 NW2d 58 (1977). We believe that the trial court abused its discretion by admitting evidence of defendant’s prior participation, as the prejudicial effect clearly outweighed any probative value.

The witness Higdon who was physically involved in the instant breaking and entering (as opposed to defendant who was allegedly only an aider and abettor) was the only one to testify regarding defendant’s presence at a prior break-in. His testimony on defendant’s participation conflicted with testimony that he gave at a prior in camera hearing. Further, a statement to police about defendant’s prior participation was not turned over to the defense as required by a discovery order so that defense preparation and response was impaired. Augmenting the inherent prejudice of admitting Higdon’s testimony under these circumstances was the statement by the judge indicating his belief in Higdon’s description of defendant’s prior involvement. We believe that this action was so prejudicial as to merit reversal and a new trial. People v Ronald Green, 74 Mich App 601, 604; 254 NW2d 788 (1977).

As implied earlier, we agree with defendant that the trial court erred in admitting two witnesses’ statements that had not been turned over to the defense pursuant to a pretrial order.

In the instant case, the trial court entered a discovery order on September 6, 1977, which states:

"The prosecuting attorney shall furnish copies of all written, and summaries of all oral, statements to defendant’s attorney at the time scheduled for arraignment, or shall mail same not later than ten (10) days following the scheduled arraignment, * * * which shall describe each statement by stating the date made and the name of the person to whom the statement was made. Failure to do so will result in suppression of said statement.” (Emphasis added.)

Despite this order and the fact that the prosecution possessed crucial statements from witnesses Zugel and Higdon prior to trial, the trial court did not order suppression.

Discovery is becoming an increasingly important aspect of criminal trials. People v Thorton, 80 Mich App 746, 750; 265 NW2d 35 (1978), People v Aldridge, 47 Mich App 639, 644; 209 NW2d 796 (1973). A defendant’s access to pretrial discovery should be encouraged if it will aid in the ascertainment of the truth and will insure defendant’s fundamental right to a fair trial. People v Walton, 71 Mich App 478, 481-482; 247 NW2d 378 (1976). When a prosecutor suppresses pretrial statements that are material to defense preparation, nondisclosure will be considered at least prejudicial, Thorton, supra, at 750-752, and perhaps a violation of due process. See Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

In the instant case, the prosecution possessed evidence of a statement by witness Zugel, who was present at the time of the alleged crime, for over a year and a half prior to trial. It was material to defendant’s defense because it contained no mention of whether or not defendant took part in any discussions concerning the break-in. Approximately four days prior to trial, the prosecution became aware of witness Higdon’s statement made to police. This statement was also crucial because it referred to an earlier break-in in which defendant allegedly made statements similar to those which implicated her in the present case. It is of no consequence that this latter statement was made to the police rather than to the prosecution. See People v Florinchi, 84 Mich App 128; 269 NW2d 500 (1978). We believe that the trial court reversibly erred in failing to suppress evidence of the two witnesses’ statements offered in violation of its own pretrial order.

Defendant also asserts that the court erred in allowing the prosecutor to question the witness Higdon about inconsistencies between his in-court and preliminary examination testimony. This issue will not be considered on appeal since the basis for objection on appeal differs from that asserted below. Marietta v Cliffs Ridge, Inc, 385 Mich 364, 374; 189 NW2d 208 (1971).

Defendant’s remaining issues are clearly without merit. See People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), People v Wirth, 87 Mich App 41; 273 NW2d 104 (1978), People v Whalen, 65 Mich App 687; 238 NW2d 376 (1975), People v Stedman, 41 Mich App 393; 200 NW2d 370 (1972).

Reversed and remanded for new trial.

J. H. Gillis, J., concurs in the result only._

       At trial, defendant objected to this questioning since it called for the witness to give an opinion. On appeal, defendant argues that it was error to allow the witness to corroborate his testimony without any prior impeachment. We agree with defendant’s latter contention since consistent statements are normally inadmissible to rehabilitate a witness unless that witness’s credibility has first been attacked. See People v Harris, 86 Mich App 301, 305; 272 NW2d 635 (1978). However, since this issue was not properly preserved for appeal, we will not reverse on this basis.

      One of the remaining issues asserted by the defendant involves the denial of his request for production of evidence of certain prior statements made by the witness Higdon to Barry County officials. Defendant did not make a record at trial establishing any prejudice caused by nonproduction, therefore, appellate review is barred. See People v Stedman, 41 Mich App 393; 200 NW2d 370 (1972). Had this issue been properly preserved we would have found nonproduction to be reversible error as we have with respect to other of witness Higdon’s and witness Zugel’s statements.


text:
    PEOPLE v BROADNAX
    Docket No. 46297.
    Submitted April 3, 1980, at Lansing.
    Decided June 17, 1980.
    Earnest Broadnax pled guilty to possession of heroin and was sentenced to three years probation, which he violated when he failed to report to his probation officer. One day after his arraignment for probation violation, a hearing was held at which he pled guilty to the violation. Recorder’s Court of Detroit, Evelyn K. Cooper, J., imposed a sentence of 2-2/3 to 4 years imprisonment. Defendant appeals, claiming insufficient notice of the probation violation hearing. Held:

    The charged violation of probation presents a very simple factual issue requiring minimal time to prepare a defense. Mr. Broadnax, after discussing the allegations with counsel, knowingly and voluntarily waived his right to a contested hearing.
    Affirmed.
    1. Notice — Revocation of Probation — Preparation of Defense — Rights — Criminal Law.
    Timely notice of charges upon which revocation of probation is sought is a defendant’s right and is his guarantee of adequate time for substantial reflection and preparation to meet the charges.
    2. Criminal Law — Guilty Plea — Knowing and Voluntary Waiver — Probation Violation.
    A plea of guilty to a probation violation charge which waives a right to a contested hearing is knowingly and voluntarily made where a defendant fully understands the allegations and has an opportunity to discuss them with counsel, even though he has only one day to make his decision.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1034.

       21 Am Jur 2d, Criminal Law §§ 485, 567, 568.

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

      James H. Daniel, for defendant.
    Before: Bashara, P.J., and M. J. Kelly and D. R. Freeman, JJ.

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

   Per Curiam.

Defendant pled guilty to possession of heroin contrary to MCL 335.341(4)(a); MSA 18.1070(4)(a) and was sentenced to a term of three years probation. On April 17, 1979, a warrant was issued against the defendant for violation of probation for failure to report to his probation officer. Defendant was arraigned on April 22, 1979, and at the hearing the following day defendant pled guilty to the charge of probation violation. The trial court imposed sentence of 2-2/3 to 4 years imprisonment. Defendant appeals as of right claiming insufficient notice of the probation violation hearing.

As a general rule, a guilty plea waives all nonjurisdictional defects; however, there is currently a split of authority on this Court as to whether a plea of guilty to a probation violation charge waives a claim of inadequate notice. Compare People v Bell, 67 Mich App 351; 241 NW2d 203 (1976), lv den 397 Mich 807 (1976), with People v Lawrence, 90 Mich App 73; 282 NW2d 247 (1979), lv den 407 Mich 851 (1979), and People v Ojaniemi, 93 Mich App 200, 204; 285 NW2d 816 (1979), where the Ojaniemi Court expressed the following concern:

"A defendant’s right to timely notice of the charges upon which revocation of his probation is sought is his guarantee of adequate time to prepare to meet the charges. He may decide to contest or admit them; either course requires substantial reflection and preparation. It is not clear that a guilty plea more effectively waives the right to timely notice than does a hurried and ill-conceived attempt to refute the accusations.”

This Court must consider whether, given such a brief period — one day — to consider the wisdom of offering a plea, defendant may be said to have knowingly and voluntarily waived his right to a contested hearing on the charge and the right to timely notice. We are convinced, on the facts of this case, that the waivers were knowing and voluntary. The charged violation of probation, failure to report, presents a very simple factual issue requiring minimal time as far as gathering information relevant to determining the existence of a viable defense. The record of the guilty plea proceeding indicates that defendant fully understood the allegations in the warrant, had an opportunity to discuss them with appointed counsel who also represented him on the original possession charge, and offered his plea in recognition of the fact that he had absolutely no defense.

Affirmed.


text:
    IN THE MATTER OF ANTIEAU ANTIEAU v SCHALK
    Docket No. 47364.
    Submitted May 1, 1980, at Lansing.
    Decided June 17, 1980.
    Eleanor Antieau, appellant herein, is the mother of a minor son, Ronald Michael Antieau. When she was abandoned by her husband, she arranged to have Ronald live with her first cousin, Kay E. Schalk, the appellee herein. In June, 1975, appellee filed a petition in probate court asking that she be appointed guardian of the person of Ronald on the grounds that Ronald’s parents were not competent and suitable to have custody or to care for the education of Ronald. Appellant signed a waiver and consent form agreeing to appellee’s appointment as Ronald’s guardian, and appellee was appointed by the probate court as guardian. In April, 1976, appellant filed a petition for termination of the guardianship on the grounds that she was able to care for and provide the necessary love and affection to her son Ronald and that the prior consent to guardianship was made under great emotional stress and without benefit of counsel. The Livingston Probate Court, Donald E. Rink, J., denied the petition to terminate the guardianship. In 1978, Eleanor Antieau filed a second petition to terminate the guardianship. The probate court again denied the petition and further ordered that the court would not entertain another such petition for a period of one year after the date of the court’s order. Appellant filed an appeal of right with the Court of Appeals. The Court of Appeals, recognizing that a substantial question existed as to the jurisdiction of the Court to entertain this appeal under these' circumstances, ordered the parties, including the appointed guardian ad litem, to file separate briefs on the jurisdictional question. Held:

    There is no appeal of right in the Court of Appeals from a final order of a probate court relative to the appointment of a guardian of a minor child or termination of a guardianship where the guardianship is of the person only. While an appeal of right to the Court of Appeals exists relative to final orders of the probate court which affect the rights or interests of an interested person in an estate or trust, an order regarding the guardianship of the person of a minor child is not an order involving an estate within the meaning of the Revised Probate Code. The proper forum for appellate review of an order of this nature is the circuit court.

      Reference for Points in Headnote
    [1] 39 Am Jur 2d, Guardian and Ward § 59.

      Appeal dismissed..
    Appeal — Probate Court — Child Custody — Statutes.
    There is no appeal of right in the Court of Appeals from a final order of a probate court in a matter concerning the appointment of a guardian of a minor child or the termination of a guardianship where the guardianship is of the person only; appeals of right from probate court to the Court of Appeals may be had from final orders involving an estate or trust, but an order regarding guardianship of the person of a minor child is not an order involving an estate within the meaning of the Revised Probate Code (MCL 600.861, 700.4[6]; MSA 27A.861, 27.5004[6]).

      Russell O. Vail, for Eleanor Antieau.

      David M. Hartsook, for Kay E. Schalk.

      J. David Reck, P.C., guardian ad litem of Ronald Michael Antieau, a minor.
    Before: R. B. Burns, P.J., and Bashara and M. F. Cavanagh, JJ.
   Per Curiam.

The appellant, Eleanor Antieau, is the mother of Ronald Michael Antieau, as well as two daughters. Apparently having difficulty caring for all three children after she had been abandoned by her husband, appellant arranged to have her son Ronald live with her first cousin, Kay E. Schalk, the appellee.

On June 18, 1975, appellee filed a petition with the Livingston County Probate Court asking that she be appointed guardian of the person of Ronald Michael Antieau on the grounds that his parents were not competent and suitable to have custody and care of the education of Ronald. On June 19, 1975, appellant signed a waiver and consent form agreeing to appellee’s appointment as Ronald’s guardian. On July 21, 1975, the judge of probate appointed appellee, Kay E. Schalk, guardian of the person of Ronald Michael Antieau pursuant to MCL 703.1(2); MSA 27.3178(201)(2).

On April 1, 1976, appellant filed a petition for termination of this guardianship on the grounds that she was well able to care for and provide the love and affection necessary to raise her son Ronald. Appellant also stated in her petition that she had consented to the guardianship during a time of great emotional stress and conflict and without the benefit of legal counsel. The probate court denied the petition to terminate but awarded visitation rights to the appellant mother.

Appellant filed a second petition to terminate the guardianship on June 12, 1978. On September 5, 1979, the judge of probate issued an opinion and order denying the petition for termination of the guardianship and ordered further that the court would not entertain another petition for one year from the date of that order. Counsel for appellant mother then filed a claim of appeal with this Court.

Recognizing that a substantial question existed as to the jurisdiction of this Court to entertain an appeal from a probate court order denying a petition to terminate the guardianship of a minor, this Court ordered the parties to file separate briefs on this jurisdictional question. The appellant mother, the appellee guardian and the guardian ad litem, appointed by the probate court to represent the child, have all filed well-written briefs on this question.

The claim of appeal was filed pursuant to MCL 600.861; MSA 27A.861 which provides inter alia that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust”. This provision is part of the new chapter 8 added to the Revised Judicature Act by 1978 PA 543, which took effect July 1, 1979. The parties in their briefs have treated the jurisdictional question as a two-fold inquiry: (1) whether the order in question is a final order; and (2) whether the order affects the rights or interests of a person in an estate. Since our conclusion on the second aspect is dispositive, we do not reach the first.

The jurisdiction of the Court of Appeals is established by the Legislature. Const 1963, art 6, § 10. The Legislature has the authority to prescribe in what cases and under what circumstances appeals may be taken. Moore v Spangler, 401 Mich 360, 369; 258 NW2d 34 (1977). 1978 PA 543 was enacted in conjunction with 1978 PA 642, the Revised Probate Code, MCL 700.1 et seq.; MSA 27.5001 et seq. The effectiveness of each of these acts was made contingent upon the enactment of the other. We perceive it to be the intent of the Legislature that these acts be read together. Therefore, we turn to the definition of the term "estate” found in section 4 of the Revised Probate Code, which provides as follows:

" 'Estate' means the property of the decedent or other person whose affairs are subject to this act as the property is originally constituted and as it exists during administration.” MCL 700.4(6); MSA 27.5004(6).

It is immediately apparent that, since the definition of "estate” is limited to property of a person subject to the act, the question now becomes whether the instant case involves any property of the ward.

As noted above, the petition filed in the probate court was for appointment as guardian of the person only, and the appointment of the appellee was as guardian of the person only. A careful review of the lower court record does not reveal any alteration of this status. Has the authority of the guardian been expanded to include any property of the ward by enactment of the Revised Probate Code? Section 6 of the Code, as amended by 1979 PA 51, contains the following definition of the term "guardian”:

" 'Guardian’ means a person appointed by the court or designated as such in a will as provided in article 4, to exercise powers over the person of a minor or of a legally incapacitated person. Guardian does not include a guardian ad litem.” MCL 700.6(2); MSA 27.5006(2).

This statute has not expanded the authority of the guardian in the instant case to include power over any property, if there be any, of the minor ward. To the contrary, the Legislature has clearly limited the powers of guardianship to the person only. A person who is appointed by the probate court to exercise powers over the estate of another person is called a "conservator”. Revised Probate Code, §3(5); MCL 700.3(5); MSA 27.5003(5). Since the guardianship does not encompass any property of the ward, the guardianship and the orders entered in this proceeding do not fall within the definition of "estate” quoted above and the order denying petition to terminate the guardianship is not "an order affecting the rights or interests of any interested person in an estate”. Therefore, this Court lacks jurisdiction of this appeal, which is hereby dismissed.

What then is the proper forum for appellate review of an order of this nature? MCL 600.863(1); MSA 27A.863(1) provides that, unless prohibited by statute, a person aggrieved by an order, sentence or judgment of the probate court which is not appealable to this Court under MCL 600.861; MSA 27A.861 may appeal to the circuit court. We conclude, therefore, that the order denying the petition to terminate the guardianship in the instant case should have been appealed to the circuit court. This dismissal is without prejudice to the filing of a motion for leave to appeal in the circuit court for the County of Livingston pursuant to GCR 1963, 703.

The appeal is dismissed.

       1978 PA 543, § 2(2) and 1978 PA 642, § 991(2).

       MCL 600.861; MSA 27A.861.


text:
      In re SWANSON ESTATE LONG v SWANSON
    Docket No. 48056.
    Submitted May 16, 1980, at Lansing.
    Decided June 17, 1980.
    Sherwood Long, hereinafter appellant, filed a claim against the estate of Bert G. Swanson, deceased. The Macomb Probate Court, Robert E. Spier, J., disallowed the appellant’s claim. The appellant then timely filed an appeal in the Macomb Circuit Court which was dismissed for lack of jurisdiction by James C. Daner, J. Subsequently, the appellant filed an application for leave to appeal from the order of the circuit court dismissing the appeal from probate court. The circuit court dismissal of the original appeal was apparently based on the statutory provision that a party to a proceeding in probate court may appeal as of right to the Court of Appeals from a final order affecting the rights or interests of any interested person in an estate or trust. Appellant contends that since the order in question does not dispose of all the claims of all the parties in the probate proceeding and does not contain language denominating it as a final order, it is not a final order and therefore is appealable to the circuit court rather than the Court of Appeals. Held:

    1. The Michigan general court rules do not apply to the probate court except in those instances where the probate court rules adopt provisions of the general court rules by specific reference.
    2. The determination of which probate court orders are final and which are not, for purposes of determining the jurisdiction of the Court of Appeals, has to be made on a case-by-case basis.
    3. Finality of a probate court order can only be determined by analysis of the issues decided by a particular probate court order and its precise effect on the rights of the parties involved.
    4. The test of finality of an order is whether it affects with finality any of the rights of the parties in the subject matter. The probate court order disallowing the appellant’s claim was a final order appealable to the Court of Appeals as a matter of right.

      References for Points in Headnotes

       20 Am Jur 2d, Courts §§ 32, 82, 85.

       4 Am Jur 2d, Appeal and Error §§ 51, 139. 56 Am Jur 2d, Motions, Rules, and Orders § 45.

      Application for leave to appeal from circuit court denied.
    1. Courts — Court Rules — Probate Court.
    The Michigan general court rules do not apply to the probate court except in those instances where the probate court rules adopt provisions of the general court rules by specific reference.
    2. Appeal — Court of Appeals — Probate Courts — Orders — Finality.
    The determination of which probate court orders are final and which are not, for purposes of determining the jurisdiction of the Court of Appeals, has to be made on a case-by-case basis.
    3. Courts — Probate Courts — Orders — Finality.
    Finality of a. probate court order can only be determined by analysis of the issues decided by a particular probate court order and its precise effect on the rights of the parties involved.
    4. Courts — Orders — Finality.
    The test of finality of an order is whether it affects with finality any of the rights of the parties in the subject matter.

      John L. Belanger, for plaintiff.

      Timothy R. Sinclair, for defendant.
    Before: R. B. Burns, P.J., and Bashara and M. F. Cavanagh, JJ.
   Per Curiam.

Sherwood Long, the appellant, timely filed a claim against the estate of Bert George Swanson, deceased. After review of the report and recommendation filed by a referee after a full hearing, the Macomb County Probate Court disallowed the appellant’s claim by order of August 1, 1979. The appellant then timely filed an appeal of right in the Macomb County Circuit Court. That appeal was subsequently dismissed by the circuit court for lack of jurisdiction. The appellant then filed an application for leave to appeal from the order of the circuit court dismissing the appeal from probate court. That application is presently before this Court.

The circuit court dismissal of the original appeal was apparently grounded on MCL 600.861; MSA 27A.861, which provides, inter alia, that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust” and MCL 600.863; MSA 27A.863, which provides in part as follows:

"(1) Except when prohibited by statute, a person aggrieved by an order, sentence, or judgment of the probate court, other than an order appealable under section 861, may appeal from that order, sentence, or judgment to the circuit court in the county in which the order, sentence, or judgment is rendered.”

These provisions are part of the new chapter 8 added to the Revised Judicature Act by 1978 PA 543, which took effect July 1, 1979, one month before entry of the probate court order in question. Since the order in question clearly was entered in a decedent’s estate, the issue is whether or not the order denying the claim was a "final” order and therefore appealable to this Court rather than the circuit court.

Appellant contends that since the order in question does not dispose of all the claims of all the parties in the probate proceeding and does not contain language denominating it as a final order upon a finding that there is no just reason for delay in entry of a final order, the probate court order in question is not a final order under GCR 1963, 518.2. Does GCR 1963, 518.2 have any applicability to probate proceedings? GCR 1963, 11.1 provides that the general court rules govern the practice in the circuit courts, the recorder’s court, the Court of Appeals and the Supreme Court but makes no mention of the probate courts. On the other hand, PCR 11.2 provides that the probate court rules govern the practice in the probate courts in all proceedings other than proceedings in the juvenile division. We conclude that the general court rules do not apply to the probate court except in those instances where the probate court rules adopt provisions of the general court rules by specific reference. Therefore, GCR 1963, 518.2 does not apply to probate proceedings in this decedent’s estate. Further, the probate rules do not contain any provisions equivalent to GCR 1963, 518.2.

Since there is no statutory or rule definition of the term "final” as used in MCL 600.861; MSA 27A.861, the determination of which probate court orders are "final” and which are not for purposes of determining the appellate jurisdiction of this Court will have to be made on a case-by-case basis. Unfortunately, there is no useful Michigan case law precedent. Until the enactment of the Revised Probate Code (MCL 700.1 et seq.; MSA 27.5001 et seq.) by 1978 PA 642 and the addition of chapter 8 to the Revised Judicature Act (MCL 600.101 et seq.; MSA 27A.101 et seq.) by 1978 PA 543 the question of finality of probate court orders was irrelevant because probate court orders, with few exceptions, were appealable to the circuit court as a matter of right regardless of finality. The previous statutory provision governing appeals from probate court, MCL 701.45a; MSA 27.3178(45.1), contained no finality requirement.

The reason why case law on the question of finality of circuit court orders is of little assistance in determining the finality of probate court orders was well stated in In re Estate of Cook, 245 So 2d 694, 695 (Fla App, 1971):

"It is apparent upon reflection that probate proceedings differ from ordinary litigation in that the rights of outside parties are from time to time determined and orders entered in the course of administration result in payment, or the necessity for filing suit, whereas the ordinary action involves the same parties throughout and a single appeal from final judgment is appropriate.”

The question of finality, therefore, is one which can be determined only by analysis of the issues decided by a particular probate court order and its precise effect on the rights of the parties involved.

A probate court order entered pursuant to MCL 700.702; MSA 27.5702, disallowing a claim filed in a decedent’s estate, is dispositive of the rights of the claimant leaving the only remaining remedy appellate review. Further, MCL 700.705; MSA 27.5705 allows the assessment of costs against an unsuccessful claimant, including attorney fees of up to $100. An order denying a claim is a determination that the party who filed the claim is not a lawful creditor of the estate and therefore has no interest whatsoever in the estate or further proceedings in the probate court. The right to appeal should be determined not by the form of the order but by its effect. Comm ’r of Ins v Lloyds Ins Co of America, Inc, 287 Mich 599, 607; 283 NW 703 (1939). The test of finality of an order is whether it affects with finality any of the rights of the parties in the subject matter. Equitable Trust Co v Bankers Trust Co, 268 Mich 394, 397-398; 256 NW 460 (1934). We therefore conclude that the probate court order disallowing the appellant’s claim in this cause was a final order appealable as a matter of right to this Court under MCL 600.861; MSA 27A.861. Therefore, the order was not properly appealable to the circuit court pursuant to MCL 600.863; MSA 27A.863. Since the circuit court was correct in dismissing the appellant’s appeal, his application for leave to appeal from that decision is denied.

The application is denied.

       As amended by 1979 PA 69, effective July 25, 1979.

       GCR 1963, 11.1:
      "Generally. These rules govern the practice in the circuit courts, recorder’s court, court of appeals, and the Supreme Court, in actions of a civil nature whether heretofore cognizable as actions at law or in equity. * * *”

       PCR 11.2:
      "Scope, Relationship to General Court Rules. These rules govern the practice in the probate courts in all proceedings other than proceedings in the juvenile division of the probate court. * * *”

       Although the precise issue of whether MCL 701.45a; MSA 27.3178(45.1) provided an appeal of right from the probate court to the circuit court was not discussed in Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976), the opinion of Justice Levin, concurred in by two other Justices, refers to the appeal provided by this statute as being an appeal of right (at pp 333 and 350). The opinion of Justice Coleman, concurred in by one other Justice, 396 Mich 352, 353, describes the appeal provided by this statute as one the circuit court may not refuse to hear if timely filed. This description is the essential characteristic of an appeal of right.


text:
    HARPER v NATIONAL SHOES, INC
    Docket No. 78-2550.
    Submitted August 28, 1979, at Detroit.
    Decided October 5, 1979.
    Channell Harper accompanied her mother and aunts to defendant’s shoe store where she walked into the corner of a glass shelf, injuring her left eye. Shirley Harper, individually and as next friend of Channell Harper, filed suit, alleging negligence in that flashing lights and mirror tiles in defendant’s store, which distracted Channell, rendered the premises unreasonably dangerous and proximately caused the injury. Jury verdict and judgment for plaintiff, Wayne Circuit Court, Carl J. Ingraham, J. Defendant appeals, alleging that the court erred (1) in permitting testimony by a plaintiff’s witness after plaintiff had indicated, in response to defendant’s interrogatories, that there were no eyewitnesses, and (2) in failing to instruct the jury on the reduction of future damages to present cash value. Held:

    1. Where deposition testimony by plaintiff’s witness put defendant on notice as to the possible extent of testimony at trial, the court did not abuse its discretion in refusing to limit plaintiff’s proofs in light of her answer to defendant’s interrogatories.
    2. The court’s failure to instruct the jury of its obligation to reduce an award of future damage to present value constitutes error, however, such error did not result in manifest injustice requiring a new trial as to damages or a remand for remittitur.

    Affirmed.
    1. Trial — Limitation of Proofs — Interrogatories — Courts — Judicial Discretion.
    Answers to interrogatories may limit the issues and define the contentions of the parties, however, a party should not be held irrevocably to them; the court has discretion to limit the proof in the light of answers to interrogatories, but its discretion should be exercised with attention to the view that judgment be given on the facts as they actually exist.

      References for Points in Headnotes

       23 Am Jur 2d, Depositions and Discovery §§ 155 et seq., 292.
    Answers to interrogatories as limiting answering party’s proof at state trial. 86 ALR3d 1089.

       5 Am Jur 2d, Appeal and Error § 891. 75 Am Jur 2d, Trial § 915.

       5 Am Jur 2d, Appeal and Error § 891.

       22 Am Jur 2d, Damages § 26.

       22 Am Jur 2d, Damages § 349.

      2. Trial — Instructions to-Jury — Failure to Instruct — Objections — Court Rules.
    No party may assign as error the trial judge’s failure to give a jury instruction unless that party objects thereto before the jury retires to begin its deliberations (GCR 1963, 516.2).
    3. Appeal — Jury Instructions — Manifest Injustice.
    The Court of Appeals may, to prevent manifest injustice, take note of jury instructions which err with respect to basic and controlling issues even though no objection thereto was made before the jury retired.
    4. Damages — Future Losses — Present Value.
    An award of damages for future losses must be reduced to present value.
    5. Damages — Future Damages — Jury Instructions — Absence of Request.
    A trial court is under an obligation to instruct the jury that an award for future damages is to be reduced to present value even in the absence of a request for such an instruction.

      Rains, Block & Dean, for plaintiff.

      Lakin & Worsham, P.C., for defendant.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

This is a negligence action. On July 26, 1972, Channell Harper, then 3 years old, accompanied her mother and aunts who were shopping at the Crosby Shoe Store. Crosby was owned by the defendant. While her mother was looking at shoes in another part of the store, Channell walked into the corner of a glass shelf, striking her left eye. Plaintiff alleged that Channell was distracted by certain flashing lights and mirror glass tiles. Plaintiff further alleged that those conditions rendered the premises unreasonably dangerous and that this proximately caused the injury.

Trial was held in Wayne County Circuit Court on May 16-18, 1978. At the conclusion, the jury returned a verdict of $11,000 in plaintiff’s favor. The defendant appeals from the judgment entered pursuant thereto as a matter of right. GCR 1963, 806.1.

Defendant assigns as error the lower court’s act of permitting Channell Harper’s aunt, Carol Jacobs, to testify. In the course of her opening statement, plaintiff’s counsel stated, "* * * we will be introducing Mrs. Harper’s sister [Carol Jacobs] who was a witness to this accident * * Defense counsel objected to such witness testifying, claiming unfair surprise. Defendant noted that in response to its interrogatory seeking the name of any person who was an eyewitness to the accident, plaintiff replied, "None”. Plaintiff responded that the witness in question was listed on the defendant’s pretrial statement and incorporated by reference into the plaintiff’s. Plaintiff further stated that the deposition testimony of Shirley Harper put the defendant on notice that Carol Jacobs may have been an eyewitness. It was argued that the defendant had ample opportunity to depose the witness had it so chosen. The lower court denied defendant’s request for an adjournment and an opportunity to depose the witness. The trial commenced and the witness was permitted to testify.

The effect of answers to interrogatories as a basis in limiting the proofs has been explained as follows:

" 'Although answers to interrogatories may limit the issues and define the contentions of the parties, the party should not be held irrevocably to them. The court has discretion to limit the proof in the light of answers to the interrogatories, but this is a discretion which should be exercised with attention to the view that the great goal of the rules is that the judgment be given on the facts as they actually exist.’ Barron and Holtzoff, Federal Practice & Procedure § 771, at pp 391-392.” 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 160.

In the present case, the witness’s name was listed on the defendant’s pretrial statement and incorporated by reference into the plaintiffs. Furthermore, the deposition testimony of Shirley Harper, taken approximately 2-1/2 years prior to trial, indicated that the witness may have seen the accident. The defendant does not contend that it was unaware that the witness would testify but rather argues that it was unaware of the probable content of her testimony. We disagree.

The deposition testimony put the defendant on notice as to the possible extent of Carol Jacobs’ testimony. This notice belies defendant’s contention of unawareness. The lower court did not abuse its discretion in refusing to limit plaintiffs proofs in light of the answer to the interrogatory. The court’s decision cannot be said to be the result of passion, bias, perversity of will, or illogic. Spalding v Spalding 355 Mich 382; 94 NW2d 810 (1959). Permitting the witness to testify was without error.

The defendant next contends that the trial court’s failure to give Standard Jury Instruction 34.03 (future damages — reduction to present cash value) mandates reversal for a new trial as to damages.

Defense counsel did not request that the instruction be given and failed to object to its exclusion. Furthermore, counsel expressed his satisfaction with the instructions as given. No party may assign as error the trial judge’s failure to give a jury instruction unless that party objects thereto before the jury retires to begin its deliberations. GCR 1963, 516.2, Hunt v Deming, 375 Mich 581, 584; 134 NW2d 662 (1965). This preclusion is reinforced when the party also expresses satisfaction with the charge. Baldridge v Eastman’s, Inc, 52 Mich App 1, 6; 216 NW2d 615 (1974). That is not to say that this Court may not, to prevent manifest injustice, take note of instructions which err with respect to basic and controlling issues even though objection thereto was not made before the jury retired. Hunt v Deming, supra, at 585.

The inquiry becomes whether the failure to instruct on the reduction of future damages was erroneous. If so, was the error of such a serious nature as to merit appellate consideration and reversal as a manifest injustice?

Michigan law requires that damages for future losses be reduced to present value. Currie v Fiting, 375 Mich 440, 454; 134 NW2d 611 (1965). The trial court is under an obligation to instruct the jury that they are to reduce an award of future damages to present value even in the absence of a request for such an instruction. Freeman v Lanning Corp, 61 Mich App 527, 529; 233 NW2d 68 (1975), SJI 34.03, GCR 1963, 516.6(2). Accordingly, the lower court’s failure to so instruct was erroneous.

Under the circumstances of the present case, however, such error did not result in manifest injustice. Neither a new trial as to damages nor a remand for remittitur is appropriate.

Affirmed. Costs to appellee.


text:
    BROWDER v INTERNATIONAL FIDELITY INSURANCE COMPANY
    Docket No. 44868.
    Submitted February 21, 1980, at Detroit.
    Decided May 8, 1980.
    Leave to appeal applied for.
    Willodean Browder, hereinafter plaintiff, was injured by an unknown assailant while she was a patron at the Grapevine Lounge. Initially, plaintiff filed suit against the owner of the lounge and the unknown assailant. Two and one-half years after the injury, the plaintiff filed an amended complaint against International Fidelity Insurance Company, hereinafter defendant, the surety for a class "C” liquor bond on the lounge. The plaintiff alleged liability stemming from the Michigan dramshop act. Subsequently, a default judgment was entered against the lounge owner. The defendant moved for, and was granted, an accelerated judgment because the two-year limitation of the dramshop act barred plaintiffs complaint, in an order by the Wayne Circuit Court, Patrick J. Duggan, J. Plaintiff appeals from that judgment. Held:

    1. The limitation period of the Michigan dramshop act should govern all actions in which a plaintiff alleges liability based on the act.
    2. Amendment of a complaint does not reláte back to the original filing date for purposes of adding a new party defendant where the limitation period has expired as to that defendant.
    Affirmed.
    1. Intoxicating Liquors — Dramshop Act — Limitation of Actions — Statutes.
    The limitation period of the Michigan dramshop act should govern all actions in which a plaintiff alleges liability based on the act (MCL 436.22; MSA 18.993).

      References for Points in Headnotes

       45 Am Jur 2d, Intoxicating Liquors § 561 et seq.

    51 Am Jur 2d, Limitation of Actions § 135 et seq.

    Statute of limitations applicable to action under dramshop or civil damage act. 55 ALR2d 1286.

       59 Am Jur 2d, Perties § 192.
    61 Am Jur 2d, Pleading § 336.

      2. Pleading — Limitation op Actions — Amendment op Complaint — Parties.
    Amendment of a complaint does not relate back to the original filing date for purposes of adding a new party defendant where the limitation period has expired as to that defendant.

      Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Steven G. Silverman), for plaintiff.

      Zemke, Hirschhorn & Tukel, P.C. (by Peter J. Lyons), for defendant.
    Before: Bashara, P.J., and D. F. Walsh and T. M. Burns, JJ.
   Per Curiam.

The plaintiff was injured while a patron at the Grapevine Lounge on November 12, 1973. The identity of her assailant remains unknown. On October 15, 1974, the plaintiff filed suit against the owner of the lounge and her unknown assailant. Two and one-half years after the injury, the plaintiff filed an amended complaint against the defendant, International Fidelity Insurance Company, alleging liability stemming from the Michigan dramshop act, MCL 436.22; MSA 18.993. The defendant at the time of the injury was the surety for a class "C” liquor bond on the lounge. A default judgment against the lounge owner was entered on April 19, 1977.

The defendant filed, inter alia, a motion for accelerated judgment, contending that the plaintiff’s complaint was barred by the two-year limitation period contained within the dramshop act. The pertinent section of the act reads:

"Every * * * [person] who shall be injured in person or property, * * * by a visibly intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, and the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who shall by such selling, or giving of any such liquor have caused or contributed to the intoxication of said person or persons * * * and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the person or persons selling, giving or furnishing any spiritous, intoxicating or malt liquors as aforesaid, * * *. Any action shall be instituted within 2 years after the happening of the event and all factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety.” MCL 436.22; MSA 18.993.

The appellee relies upon the recent decision of Nunnally v International Fidelity Ins Co, 94 Mich App 291; 288 NW2d 356 (1979). While the facts in the Nunnally decision are distinguishable, its general proposition of law is applicable. We agree with its holding and affirm the lower court’s granting of the appellee’s motion for accelerated judgment.

In Nunnally, this Court faced the problem of whether the dramshop act’s two-year limitation period applied where the injured party first sued the principal (tavern owner), obtained a consent judgment, and then sued the surety on the liquor bond. The majority in Nunnally held that the act’s limitation period applied to the subsequent action against the surety since the act established liability in derogation of the common law.

The dissent in that case stated that since the principal had been sued within the two-year statutory limit and the surety was being sued upon the bond in judgment, the two-year statutory limitation did not apply.

However, in the case at bar, the plaintiffs suit against the defendant’s surety was not upon a judgment. The plaintiff amended her complaint to add the surety before a default judgment had been entered against the principal. This Court’s review of the plaintiffs complaint against the defendant surety indicates that the plaintiff was basing liability upon a negligence theory as established under the dramshop act. Where the plaintiff has alleged liability based upon the dramshop act, the act’s limitation period should govern.

We hasten to add that GCR 1963, 118.4 does not alter this result by allowing the plaintiff to add a party defendant by an amended complaint and relate the action back to the original date of injury. The general rule is that an amendment does not relate back to the original filing date for purposes of adding a new party defendant when the statute of limitations has expired as to that defendant. Higginbotham v Fearer Leasing, Inc, 32 Mich App 664; 189 NW2d 125 (1971), lv den 385 Mich 765 (1971), Forest v Parmalee (On Rehearing), 60 Mich App 401; 231 NW2d 378 (1975), aff'd 402 Mich 348; 262 NW2d 653 (1978). See also 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 407; 54 CJS, Limitation of Actions, § 276.

Affirmed, costs to defendant.


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

text:
    COOPER v GARDEN CITY OSTEOPATHIC HOSPITAL
    Docket No. 78-382.
    Submitted February 5, 1980, at Detroit.
    Decided July 1, 1980.
    Dorothy Cooper and Jimmie Cooper brought a medical malpractice action against Dr. George Daraban, Dr. Vortriede and Dr. Brady, alleging negligence in the treatment of Dorothy Cooper. Garden City Osteopathic Hospital was joined as a party defendant. Subsequently, plaintiffs reached an out-of-court settlement with Dr. Brady. The Wayne Circuit Court, Richard D. Dunn, J., following a jury verdict, entered judgments of no cause of action against the remaining parties. Plaintiffs’ post-trial motions for a new trial and to take further depositions were denied. Plaintiffs appeal, alleging the trial court abused its discretion in denying their motion to further depose certain witnesses. An earlier order of the Court of Appeals granted the motion of Drs. Daraban and Vortriede to affirm the trial court verdict, leaving only defendant Garden City Osteopathic Hospital to be affected by this appeal. Held:

    The trial court’s denial of plaintiffs’ motion to depose the three nurses who cared for Dorothy Cooper after her surgery was an abuse of discretion, as it precluded plaintiffs from showing that defendant hospital engaged in misconduct and resulted in a suppression of material evidence.
    Reversed and remanded with instructions.
    1. Motions and Orders — New Trial — Burden of Pursuasion — Error — Courts.
    The burden of persuasion in moving for a new trial is on the moving party to convince the trial court that during trial an error of sufficient magnitude was committed to cause the court, in its discretion, to grant a new trial.
    References for Points in Headnotes

       58 Am Jur 2d, New Trial § 200.

       4 Am Jur 2d, Appeal and Error § 398. 58 Am Jur 2d, New Trial §§ 212, 213.

       4 Am Jur 2d, Appeal and Error § 79. 5 Am Jur 2d, Appeal and Error § 881.

      2. Appeal — Denial of Motion — New Trial — Abuse of Discretion — Courts.
    A party appealing a denial of a motion for a new trial, claiming an abuse of discretion, must bring before the reviewing court a sufficient record from the lower court which might indicate the claim has validity.
    3. Courts — Denial of Motions — Suppression of Evidence — Abuse of Discretion.
    It was an abuse of discretion for a trial court to deny a motion for a post-trial deposition of witnesses which worked to preclude the moving party from showing that its adversary engaged in misconduct and resulted in suppression of material evidence.
    4. Appeal — Motions — Post-Trial Evidentiary Hearings — Courts.
    The Court of Appeals may, prior to granting a motion for a new trial, remand a case for a post-trial evidentiary hearing and condition any review by the trial court of a resubmitted motion for a new trial on the establishment by the moving party of such proofs and support for his contentions as would pursuade the trial court, in the exercise of its discretion and in order to prevent a failure or delay of justice, that such motion merits review.

      Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Michael Gagleard), for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Jeannette A. Paskin), for defendants Daraban and Vortriede.

      Dice, Sweeney, Sullivan & Feikens, P.C., for defendant Garden City Osteopathic Hospital.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   N. J. Kaufman, P.J.

Plaintiffs instituted a medical malpractice action against the anesthesiologist and surgeons who treated plaintiff Dorothy Cooper at Garden City Osteopathic Hospital. The hospital was joined as a party defendant. Subsequently, plaintiffs reached an out-of-court settlement with the anesthesiologist, and a Wayne County Circuit Court jury returned a verdict of no cause of action on plaintiffs’ complaint against the remaining parties. The trial court denied plaintiffs’ post-trial motion for a new trial as well as their motion to take the depositions of three nurses who cared for Mrs. Cooper after her surgery. From these determinations, plaintiffs appeal as of right under GCR 1963, 806.1. In an earlier order, this Court granted a motion to affirm in behalf of Drs. Daraban and Vortriede. Thus, this appeal only affects the liability of defendant Garden City Osteopathic Hospital.

Dorothy Cooper entered Garden City Osteopathic Hospital for bladder surgery and a hysterectomy. She suffered a heart attack during the operation, and plaintiffs offered evidence to show that in the post-operative stage, she either suffered a second heart attack or was under-oxygenized. In any event, Dorothy Cooper never recovered from the operation and is permanently comatose. Plaintiffs’ complaint alleged that, due to the negligence of the anesthesiologist, surgeons, nurses, and the hospital, the heart attack Dorothy Cooper suffered during surgery went unnoticed for a period of time long enough to cause her permanent brain damage. Further, the pretrial summary included plaintiffs’ contention that a second heart attack, caused by the first heart attack, occurred after surgery.

At trial, plaintiffs’ attorney became aware that part of the hospital chart was missing from his copy of the records. Although the copies received by the defendants were complete, plaintiffs apparently received a copy which did not include the results of post-operative blood gas tests. These test results indicated a low level of oxygen in Dorothy Cooper’s blood after the operation. Once apprised of this information, plaintiffs’ attorney introduced the blood gas test results as plaintiffs’ exhibit #1. Plaintiffs’ expert witness opined that this test data indicated Mrs. Cooper was given inadequate oxygen during post-operative care and that this could have caused her brain damage. Plaintiffs’ attorney then issued subpoenas for three nurses who cared for Dorothy Cooper after her surgery. These subpoenas were not served, however, because the three nurses were on vacation.

After the jury verdict against them, plaintiffs filed a motion for a new trial under GCR 1963, 527.1(2), alleging, as the basis for this motion, that the defendant hospital was guilty of misconduct for sending the three nurses out of town during the trial. The court ordered that the nurses’ depositions be taken to facilitate review of plaintiffs’ motion. The defendant hospital produced the nurses at a deposition. However, when plaintiffs’ attorney began the deposition by questioning the nurses about post-operative care, defendant’s attorney instructed them not to answer. Plaintiffs’ attorney thereupon terminated the deposition. The trial court denied plaintiffs’ subsequent motion to further depose the three nurses, finding plaintiffs’ actions amounted to improper post-trial discovery upon speculative matters. The court also denied plaintiffs’ new trial motion thereby giving rise to this appeal.

In making their motion, plaintiffs had the burden to persuade the trial court that, during the trial, an error of sufficient magnitude was committed to cause the trial court, in its discretion, to grant a new trial. Thereafter, on appeal from a denial of their motion, plaintiffs must bring before the reviewing court a sufficient record from the lower court which might indicate that the claim of an abuse of discretion has validity. Lemanski v Ford Motor Co, 82 Mich App 244, 248; 266 NW2d 775 (1978).

Plaintiffs contend the trial court abused its discretion in denying their motion for further deposition of the three nurses. This abuse of discretion precluded plaintiffs from showing that the defendant hospital engaged in misconduct and resulted in a suppression of material evidence from the jury’s consideration.

Plaintiffs’ new trial motion was clearly premised upon GCR 1963, 527.1(2) which states:

"A new trial may be granted to all or any of the parties and on all or part of the issues whenever their substantial rights are materially affected, for any of the following causes:
"(2) Misconduct of the jury or prevailing party.”

Defendant’s misconduct, if any, did not appear from the record. The trial court correctly ordered depositions to supplement the record in this regard and give it a better basis for review of the misconduct allegation plaintiffs raised in their new trial motion. See GCR 1963, 527.3. However, these depositions were terminated before plaintiffs’ counsel could inquire as to any misconduct on the part of the defendant. Moreover, the trial court precluded further deposition and thereby deprived plaintiffs of their only opportunity to affirmatively establish the existence of misconduct.

In light of the peculiar facts and circumstances of this case, we find the trial court’s action did constitute an abuse of discretion. Plaintiff Dorothy Cooper is permanently comatose as a result of an operation performed at the defendant hospital. There was evidence presented which suggested that Mrs. Cooper’s state might have been caused by under-oxygenation during her post-operative care. The plaintiffs were sent a copy of the hospital records in preparation for trial but this copy did not include a page containing the results of post-operative blood gas tests. Yet, this page was part of the records held by the defendant. Moreover, three of Mrs. Cooper’s post-operative nurses were on vacation and unable to testify during the trial. Their testimony might have been quite material to the development of plaintiffs’ cause of action.

If the defendant did engage in misconduct in sending these nurses on vacation during the trial, this action would be tantamount to an obstruction of justice. We refuse to sanction such activity. However, since the depositions were terminated prior to resolution of this question, we are not prepared to require a new trial at this point. Instead, we order this cause remanded for an evidentiary hearing. The hearing shall be narrow in scope. The trial court shall examine the nurses to determine if they were indeed ordered on vacation during the trial.

If they were not, plaintiffs’ new trial motion based on defendant’s misconduct should be denied. However, at this juncture, the trial court shall allow plaintiffs to depose these witnesses as to their post-operative care efforts in order to determine the materiality of their testimony. This order may be predicated upon GCR 1963, 303.1(3) to prevent a failure or a delay of justice. Plaintiffs can then resubmit their motion for a new trial to the trial court basing it on newly discovered evidence under 527.1(6). At this point, the trial court shall review plaintiffs’ motion and exercise its discretion thereupon.

If the trial court should find, at the initial evidentiary hearing, that the nurses were sent out of town by the defendant, or its agents, then a new trial should be granted to plaintiffs immediately, based upon plaintiffs’ original misconduct motion under GCR 1963, 527.1(2). Again, we must emphasize that the peculiar facts and circumstances of this case call for this result. It is unclear whether the original trial court order requiring deposition of the three nurses limited the subject matter of these depositions solely to the issue of defendant’s misconduct, or whether the order was sufficiently broad enough to enable plaintiffs to depose the witnesses with respect to their post-operative care efforts. In any event, we find it necessary to allow the witnesses to be deposed as to these post-operative care efforts in order to allow plaintiffs to prepare their delayed motion for a new trial based on newly discovered evidence. In the interests of justice, then, plaintiffs should be given the opportunity to develop this newly discovered evidence contention since the original trial court order was ambiguous on this point.

Reversed and remanded for proceedings in conformity with this opinion.

       We find precedent for this approach in Merritt v Nickelson, 80 Mich App 663, 668-669; 264 NW2d 89 (1978), affirmed at 407 Mich 544 (1980). That case was remanded for an evidentiary hearing as well. This disposition represents an effective means of conditioning the new trial motion upon the results of the evidentiary hearing. Two purposes are served thereby. First and foremost, justice is served. Appellants are given an opportunity to present proofs and establish support for their contentions before the trial court. Secondly, trial courts are not overburdened by what may amount to specious contentions. Trial courts can see to such by acting as effective buffers and weeding out frivolous claims at this evidentiary hearing stage.