author:
M. J. Kelly, J.
      Beasley, P. J. D. E. Holbrook, Jr., J.

text:
    PEOPLE v HARPER
    Docket No. 29344.
    Submitted November 1, 1977, at Detroit.
    Decided May 22, 1978.
    Leave to appeal applied for.
    Karle Harper was convicted, upon his plea of nolo contendere, of four counts of first-degree criminal sexual conduct involving two acts of penetration and one count of armed robbery in Recorder’s Court of Detroit, Joseph E. Maher, J. The trial court relied on the preliminary examination transcript and the victim’s testimony at the plea proceedings to establish a factual basis for the crimes and sentenced defendant to concurrent terms of 10 to 15 years on each count. Defendant appeals. Held:

    1. Only one conviction of criminal sexual conduct can result from a single act of intercourse.
    2. Informing defendant that he may be sentenced to "any term of years” sufficiently complies with the court rule requiring a trial judge to advise a defendant of the possible minimum sentence prior to accepting a plea of nolo contendere.
    3. The phrase "any term of years” in a statute providing punishment for criminal conduct mandates a minimum sentence of a year and a day.
    4. A trial court, in accepting a plea of nolo contendere, must state a reason justifying a departure from direct questioning of defendant and, where no such reason appears on the record, the case should be remanded to supplement the record with instructions that, if no reason can be given, the plea must be vacated and the case set for trial.
    Convictions vacated and dismissed with prejudice with regard to two counts of criminal sexual conduct and remanded for supplemental proceedings with regard to the remaining convictions.
    Beasley, J. concurred with the decision to remand the case for supplemental proceedings regarding the plea of nolo contendere but dissents from the dismissal of two counts of criminal sexual conduct. He would hold that the Legislature did not intend to limit convictions under the criminal sexual conduct statute to one per sexual penetration.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 189.
    65 Am Jur 2d, Rape § 41.

       21 Am Jur 2d, Criminal Law §§ 525 et seq., 540, 592.

       21 Am Jur 2d, Criminal Law §§ 497-502.

       5 Am Jur 2d, Appeal and Error § 760.

      D. E. Holbrook, Jr., J., concurred in the result but deferred in commenting on the meaning of "any term of years”.
    Opinion of the Court
    1. Rape—Statutes—Criminal Sexual Conduct—Legislative Intent—Single Acts.
    The Legislature intended but one conviction under the criminal sexual conduct act could result from a single act of intercourse (MCL 750.520b; MSA 28.788[2]).
    2. Rape—Criminal Sexual Conduct—Multiple Convictions—Single Acts.
    A defendant may not be found guilty of both criminal sexual conduct in connection with the commission of another felony and criminal sexual conduct perpetrated or accomplished while armed with a weapon where only a single act of sexual penetration occurred (MCL 750.520b; MSA 28.788[2]).
    3. Criminal Law—Statutes—Sentencing—Words and Phrases— Any Term of Years—Minimum Sentence.
    A criminal statute providing for punishment by imprisonment for life or "any term of years” mandates a minimum prison sentence of a year and a day (MCL 750.520b, 750.529; MSA 28.788[2], 28.797).
    4. Criminal Law—Robbery—Rape—General Court Rules—Sentencing—Minimum Sentence—Court Rules.
    Advice to a defendant who is charged with first-degree criminal sexual conduct and armed robbery that he may be imprisoned for "any term of years” satisfies a court rule requiring a court to inform a defendant of the minimum sentence required by law prior to accepting his nolo contendere plea, especially where defense counsel has no objection and is satisfied that the requirements of the rule have been met (GCR 1963, 785.7).
    5. Criminal Law—Plea of Nolo Contendere—General Court Rules—Appeal and Error.
    A court rule mandating that a court "state why a plea of nolo contendere is appropriate” requires a court, upon accepting such a plea, to give a valid reason on the record justifying a departure from the direct questioning of the defendant; where the record does not show such a valid reason the case must be remanded for supplementation of the record and, if no such reason can be stated, the plea must be vacated and the case set for trial.
    Concurrence in Part, Dissent in Part by Beasley, J.
    6. Rape—Statutes—Criminal Sexual Conduct—Legislative Intent—Single Acts.

      The Legislature did not intend to limit convictions under the criminal sexual conduct statute to one conviction per sexual penetration (MCL 750.520b; MSA 28.788[2]).

    Concurrence in Part, Dissent in Part by D. E. Holbrook, Jr., J.
    7. Appeal and Error—Necessary Issue—Dictum.
    A discussion by the Court of Appeals of an issue which is unnecessary for the disposition of an appeal amounts to dictum.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training and Appeals, and Robert Weisberg, Assistant Prosecuting Attorney, for the people.

      Thomas A. Law, for defendant.
    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   M. J. Kelly, J.

On March 15, 1976, defendant pled nolo contendere to four counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and one count of armed robbery, MCL 750.529; MSA 28.797, in Recorder’s Court for the City of Detroit. The trial court relied on the preliminary examination (December 15, 1975) transcript and repeat of testimony by the victim at the plea proceedings to establish a factual basis for the instant crimes.

On March 19, 1976, the court sentenced defendant to concurrent sentences of 10 to 15 years on each of four counts of criminal sexual conduct and one count of armed robbery.

The trial judge denied defendant’s motion to vacate sentence, motion for evidentiary hearing, and motion to withdraw his plea on June 29, 1976. Defendant appeals as of right.

There were two distinct sexual acts, each charged in connection with the commission of another felony, and then each charged as being perpetrated or accomplished while armed with a weapon. We hold that two of the convictions must be set aside and the charges dismissed.

At the sentencing proceedings on March 19, 1976, the following colloquy took place between defense counsel and the court:

"Mr. Arduin: Pardon me, your Honor, I don’t mean to interrupt but I would also like to clarify to the Court that there was [sic] only two acts of penetration, fellatio and intercourse, although they were perpetrated by different means under the subsections of the statute. So while there is [sic] four particular counts of criminal sexual conduct, there was [sic] only two active acts of sexual—
’’The Court: Yes, I understand that but he pled guilty to all five counts in the Information and there were two where a weapon was used and that’s why there were separate counts. So they more or less mell with one another but the point is that I have to sentence him on each count. They all carry the same maximum penalty.
"Of course, any sentence that I impose will run concurrent with the others; do you [sic] understand that, don’t you?”

This Court has recently held in People v Willie Johnson, 75 Mich App 221, 224; 255 NW2d 207 (1977):

"We are convinced that the Legislature intended that but one conviction under the criminal sexual conduct act could result from a single act of intercourse.”

The Johnson Court held that where there was only one sexual penetration of one victim only one conviction could stand. The jury had found Johnson guilty on two counts, and this Court vacated the conviction on one of the counts.

In a more recent case, People v Nelson, 79 Mich App 303, 305; 261 NW2d 299 (1977), another panel of this Court refused to follow Johnson. In Nelson, the defendant was convicted on four counts of criminal sexual conduct. The trial court explained the following charges in Nelson:

"So count one alleges intercourse with a person under the age of thirteen. Count two alleges intercourse while the defendant was allegedly armed with a weapon. Count three alleges fellatio with a person under the age of thirteen; and count four alleges fellatio with defendant allegedly then and there armed with a weapon or an article used or fashioned in the manner to lead a person to reasonably believe it to be a weapon.”

The Nelson panel of this Court affirmed defendant’s conviction on all four counts. It mentioned the Willie Johnson case in a footnote, Nelson, supra at 319, n 35, and an attempt was made to distinguish Nelson from the standpoint that the victim was a child. We think such a distinction not appropos. The Johnson Court and the Nelson Court are in diametric opposition on this issue. We follow the Johnson decision and resolve the issue by vacating Harper’s conviction on two counts and we set aside the sentence on each of those two counts and dismiss with prejudice. Because each of the counts are drawn from one statutory section and each conviction resulted in the same sentence we find it unnecessary to remand. See also People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).

The next issue is whether the trial court properly advised the defendant of the possible maximum or minimum sentences in substantial compliance with GCR 1963, 785.7(1)(b).

In addressing this issue both parties refer to a section of the court rule that had been superseded at the time of these proceedings below. The court rule referred to by the parties was amended by the Supreme Court in Guilty Plea Cases, 395 Mich 96, 138-139; 235 NW2d 132 (1975). The effective date of the amendment was December 7, 1975. The nolo contendere proceeding below took place on March 15, 1976.

The applicable court rule is found in GCR 1963, 785.7(1)(b), referring to a maximum possible prison sentence, and GCR 1963, 785.7(1)(d), referring to mandatory minimum prison sentence, if any.

On page 3 of the plea transcript the court advised the defendant that he could receive a sentence of up to life imprisonment or any number of years in the discretion of the court. In so stating the trial court sufficiently complied with GCR 1963, 785.7(1)(b), having advised the defendant of the maximum possible prison sentence of life imprisonment. See Guilty Plea Cases, 395 Mich at 117-118.

The oft-recurring question is whether or not the phrase contained in the armed robbery statute and the first-degree criminal sexual conduct statute of "imprisonment in the state prison for life or for any term of years” is subject to being construed as providing a mandatory minimum sentence requiring advice to be given by the trial judge under GCR 1963, 785.7(1)(d), MCL 750.529; MSA 28.797, MCL 750.520b(2); MSA 28.788(2)(2).

As to minimum sentence the trial court in the instant case advised the defendant:

"The Court: * * * you could receive any number of years up to life imprisonment to this offense. You’re aware of that; are your [sic] not?
"Mr. Harper: Yes, sir.
'The Court: A person convicted or [sic] armed robbery and criminal sexual conduct of the first degree can receive as high as life imprisonment or any number of years in the discretion of the court. However, it’s mandatory upon the court as far as armed robbert [sic] is concerned that the court sentence you to some term of years; do you understand that?
"Mr. Harper: Yes, sir.”

In People v Burridge, 99 Mich 343; 58 NW 319 (1894), the Court held that where a statute provides imprisonment for life or any term of years, a minimum sentence imposed shall be not less than two years.

The Burridge case has recently been discredited by this Court based upon Guilty Plea Cases, supra, and in People v McKnight, 72 Mich App 282, 284; 249 NW2d 392 (1976), lv den, 399 Mich 848 (1977). The McKnight Court stated that "there is no necessity to advise the defendant of any minimum sentence before accepting a plea of guilty to an offense punishable by imprisonment for life or 'any term of years’ McKnight had entered a plea of guilty to a charge of armed robbery.

In a later case, a panel of this Court has stated that "there is no mandatory minimum sentence for armed robbery”. People v Freeman, 73 Mich App 568, 570; 252 NW2d 518 (1977). But there is. It is "any number of years”. If that phrase does not mean, under Burridge, two years, (see fn 1, supra) then what does it mean?

The general rules of construction in MCL 8.3; MSA 2.212 are mandatory in construing the statutes of this state unless such construction would be "inconsistent with the manifest intent of the legislature”. The fact that under the instant statutes the Legislature has used such a flexible phrase as "any term of years” suggests no manifest intent contra to use of the statutory rules of construction.

"Any term of years” means no less than one calendar year. This finding is based upon MCL 8.3b; MSA 2.212(2), which provides "years” may be construed as "year”, and under MCL 8.3j; MSA 2.212(10), "the word 'year’ ” equals "a calendar year”.

GCR 1963, 785.7(1)(d) applies to "prison” sentences (i.e., "the mandatory minimum prison sentence”), and under Michigan law there can be no prison term for a defendant serving one year or less. MCL 769.28; MSA 28.1097(1). See People v Lyles, 76 Mich App 688; 257 NW2d 220 (1977). Furthermore, under MCL 761.1(g); MSA 28.843(g), " 'felony’ means an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than one year or an offense expressly designated by law to be a felony”. (Emphasis added.) See People v Strickland, 79 Mich App 454; 263 NW2d 11 (1977).

Black’s Law Dictionary defines "prison” as synonomous with penitentiary "to designate institutions for the imprisonment of persons convicted of the more serious crimes, as distinguished from reformatories and county or city jails”. Black’s Law Dictionary (4th ed), 1358 (1951).

"We are guided by two canons of statutory construction: First, that statutes in pari materia must be construed together and, second, if language is plain and unambiguous it must be given effect.” People ex rel Oakland Prosecuting Attorney v Bureau of Pardons & Paroles, 78 Mich App 111, 119; 259 NW2d 385 (1977). Construing the statutes and case authorities together mandates a term of more than one year and thus provides the "mandatory minimum” sentence for which a "prison” term, required under GCR 1963, 785.7(1)(d), will be necessary. Anything less than or equal to one calendar year would not satisfy the requirement of a "prison” term under the statute. MCL 769.28; MSA 28.1097(1).

The conclusion that more than one calendar year is mandated as a minimum sentence, necessarily implies that more than 18 months is required for a (minimum) maximum sentence to satisfy the indeterminate sentence act. See People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).

Our analysis does not require reversal here. First of all defense counsel had no objection and was satisfied with the court’s compliance with GCR 1963, 785.7 in this regard. Secondly, under prior case law advice to the defendant that he was required to be imprisoned for a minimum of a term of years was sufficient. Neither do we say that in the future since "any term of years” mandates a minimum sentence of a year and a day that fact must be communicated to the defendant in those words under pain of reversal. We suggest only that a more exact way of stating the rule appears to be: A defendant who must be sentenced to "any term of years” may not be sentenced to less than a minimum of a year and a day (366 days) to a (minimum) maximum of 18 months and 1-1/2 days (549 days).

The next issue is whether the trial judge properly complied with GCR 1963, 785.7(2) in placing the complete plea agreement and sentence bargain on the record and having defendant and his counsel affirmatively acknowledge same.

After the usual preliminaries the court inquired of the defendant if he understood the sentence bargain. The defendant answered "yes”. The court observed:

"The Court: It’s written right here on the nolo contendere plea form. It indicates right there what sentence would be imposed or agreed upon. You’re aware of that; are you not?
"Mr. Harper: Yes, sir.
'The Court: All right. Ten to fifteen years. I don’t usually put it on the record because it’s on here.
"Mr. Arduin (defense counsel): Your Honor, it’s my understanding that everything has to be on the record.
"The Court: All right. The bargaining that was entered into between the court and the defense attorney was that the maximum sentence would be fifteen years and the top minimum sentence would be ten years. That was the plea bargaining entered into on this case. Is that correct Mr. Arduin?
"Mr. Arduin: That’s correct, your Honor.
"The Court: Do you understand this, Mr. Harper?
"Mr. Harper: Yes.”

We find compliance with the court rule.

The next issue is did the trial court sufficiently articulate the reasons why a plea of nolo contendere was appropriate under GCR 1963, 785.7(3).

Both parties brief this issue as though the applicable rule were GCR 1963, 785.7(3)(d). That rule was replaced effective December 7, 1975, Guilty Plea Cases, 395 Mich at 138-141. The rule presently in effect is GCR 1963, 785.7(3)(b) which mandates that the court "state why a plea of nolo contendere is appropriate”. Under the old rule the court was required to state its "reasons for believing that the interests of the defendant in the proper administration of justice did not require interrogation of the defendant regarding his participation in the crime”.

The Supreme Court has interpreted the new rule substantially the same as the old rule. In People v Eugene P Jones, 399 Mich 873, 874 (1977), the Supreme Court remanded the case "for supplementation of the record regarding the acceptance of the nolo contendere plea. GCR 1963, 785.7(3)(b)”. The Court in a memorandum opinion stated "the trial court’s stated reasons for accepting the plea of nolo contendere are not reasons within the meaning of GCR 1963, 785.7(3)(b) which would justify departure from the direct questioning of the defendant and acceptance of a plea of nolo contendere”. See also Guilty Plea Cases, 395 Mich at 132-135.

Similarly, in People v Holcomb, 400 Mich 840-841 (1977), the Court remanded the case for supplementation of the record when the trial court had not stated reasons for accepting the plea of nolo contendere. Guilty Plea Cases, 395 Mich at 132-135.

The instant record indicates that the trial court did not state any reasons on the record for accepting the nolo contendere plea which would justify a departure from the direct questioning of the defendant. The trial court did rely on the preliminary examination transcript to provide a factual basis for defendant’s nolo plea. This is proper. People v Belanger, 73 Mich App 438, 455; 252 NW2d 472 (1977), and cases cited therein. Even under the new rule the case must be remanded to the trial court for supplementation of the record to indicate reasons for accepting the plea of nolo contendere. If the trial court is unable to state a valid reason for not personally interrogating the defendant, then the plea must be vacated and the case set for trial. See People v Holcomb, supra, People v Eugene P Jones, supra, and People v Seaman, 75 Mich App 546, 550; 255 NW2d 680 (1977), interpreting the new court rule GCR 1963, 785.7(3)(b).

Remanded for proceedings consistent with this opinion.

We follow the lead of the Supreme Court and do not retain jurisdiction in accordance with People v Holcomb and People v Eugene P Jones, supra.

Beasley, P. J.

(concurring in part; dissenting in part). I concur with that part of the opinion which remands for supplementation of the record regarding the trial judge’s reasons for accepting the plea of nolo contendere.

I dissent from that part of the opinion which dismisses two counts of criminal sexual conduct, first degree, on the strength of People v Willie Johnson.

1 would believe People v Nelson is the more compelling articulation of the Legislature’s intentions in enacting the new criminal sexual conduct statute in 1975. I find it inconceivable that at a time when the increase in violent crime is a problem of major proportion this Court would base its interpretation of this statute on application of a rule of lenity.

Like the majority, I would find People v Gonzales apropos. Therefore, I would remand for supplementation of the record in accordance with this opinion.

D. E. Holbrook, Jr., J.

(concurring in part; dissenting in part). I agree with the result reached by Judge Kelly together with his analysis of the issues except the commentary relating to what is meant by "any term of years” and as to this I reserve my judgment. In my opinion, any discussion thereof is unnecessary to the disposition of the instant appeal and amounts to no more than dictum. I prefer to defer my views on such issue to a more appropriate time when its resolution would be authoritative.

       The Burridge two-year minimum required for "any term of years” is less convincing under the instant armed robbery statute, MCL 750.529; MSA 28.797. The statute provides a specific minimum sentence of two years for armed robbery if an aggravated assault or serious injury is also inflicted, whereas for an armed robbery without the aggravated assault or serious injury the defendant may be punishable for "any term of years” as a minimum. Logically, "any term of years” necessarily must be flexible enough to include a minimum less than the two-year minimum required under the statute for an act with the added dimension.
      Furthermore, if the Legislature intended "any term of years” to mean two years as a minimum, as the Burridge Court holds, the two-year minimum for the added aggravated assault or serious injury is redundant.

       We offer with some trepidation the following mathematical equation:
      A year and a day = 366
      366 = 1
      x 1.5
      x = 549
      We prescind from discussing leap year observing that we are dealing in a definition, not any given segment of the Gregorian calendar.

       Under either applicable rule the criticism of People v Gonzales, 70 Mich App 319; 245 NW2d 734 (1976), appears to be apropos.

       75 Mich App 221; 255 NW2d 207 (1977).

       79 Mich App 303; 261 NW2d 299 (1977).

        See, People v Willie Johnson, supra, at 225-226, where that panel said:
      "It was on these and similar considerations that the 'rule of lenity’, as defined and applied in People v Bennett, 71 Mich App 246; 247 NW2d 368 (1976), was formulated to resolve ambiguities in a single statutory scheme in favor of permitting only one rather than two criminal convictions absent clear legislative guidance to the contrary.” (Footnote omitted.)

       70 Mich App 319; 245 NW2d 734 (1976).


source: Caselaw Access Project

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

license: Public Domain

text:
    CAPITOL SAVINGS & LOAN ASSOCIATION v PRZYBYLOWICZ
    Docket No. 29770.
    Submitted June 14, 1977, at Lansing.
    Decided May 22, 1978.
    Defendants Richard S. Przybylowicz and his wife Maureen secured a residential mortgage loan from plaintiff Capitol Savings & Loan Association. Plaintiffs representative told defendants that to repay the twenty-five year mortgage loan at a 9% interest rate the monthly payment would be $251.76 and the mortgage loan application, the mortgage commitment letter and the mortgage note itself contained these same terms. Defendants had sold their former home before they entered into a building agreement for the new home. When the first mortgage payment on the new home was due the plaintiff discovered that the payment schedule actually required approximately a 7-3/8% rate of interest and demanded that the defendants execute a new note with monthly payments of $289.53 resulting in a 9% interest rate. Defendants refused. Plaintiffs filed suit in Oakland Circuit Court seeking a declaratory judgment that the defendant’s monthly payments be modified to reflect a 9% interest rate. Plaintiffs motion for summary judgment to this effect was denied and an order of declaratory judgment was entered, John N. O’Brien, J., that the contract be reformed to require a rate of interest resulting in 300 monthly payments of $251.76. Plaintiff appeals. Held:

    Defendants justifiably relied on plaintiffs expertise in setting the payment schedule since such calculations were quite complicated and the errors not easily discoverable by the layman defendants.
    Affirmed.
    1. Appeal and Error—Court op Appeals—Equity—De Novo Review.
    The Court of Appeals reviews equity cases de novo and does not modify or reverse unless convinced it would have reached a different result had it occupied the position of the trial court.

      References for Points in Headnotes

       27 Am Jur 2d, Equity §§ 266, 267.

       66 Am Jur 2d, Reformation of Instruments §§ 1-6.

       66 Am Jur 2d, Reformation of Instruments § 54.

       66 Am Jur 2d, Reformation of Instruments § 85.

       61 Am Jur 2d, Pleading §§ 308-313.

      2. Reformation of Instruments—Equity—Contracts—Mutual Mistake—Intention of Parties—Accident—Inadvertence.
    A court of equity may reform a contract where there is clear evidence of a mutual mistake, or in other appropriate circumstances; a written instrument may be reformed where it fails to express the intentions of the parties thereto as the result of accident, inadvertence or mistake.
    3. Appeal and Error—Reformation of Instruments—-Mortgages— Interest—Erroneous Calculations.
    A trial court did not err in reforming the terms of a residential mortgage contract to require a lower interest rate where the terms of the mortgage were in error as a result of miscalculations by a representative of the plaintiff, who is in the business of lending money, and where such calculations were quite complicated and any errors not easily discoverable by the layman borrower who justifiably relied upon the plaintiff’s expertise in setting the payment schedule.
    4. Contracts—Mistakes—Mortgages—Scrivener’s Mistake Doctrine—Employees.
    The "scrivener’s mistake” doctrine is not available to a plaintiff for the correction of a mistake in a mortgage contract made by the plaintiff’s employee where the employee was not acting for both parties to the mortgage when the mistake was made.
    5. Pleading—Complaint—Amendment—Court Rules.
    Leave to amend a complaint is to be freely given when justice so requires (GCR 1963, 118).
    6. Appeal and Error—Motions—Amendment—Complaint—Recision—Mortgages—Available Options—Prior Positions.
    A trial judge did not abuse his discretion in denying a plaintiffs motion for leave to amend a complaint to add a count for recision, in an action for a declaratory judgment that a mortgage contract should be reformed, where recision was not an available option since there was no way to restore the parties to their prior positions.

      Milton F. Cooney, for plaintiff.

      Yuille, Zeleznik, Plourde & Russell, for defendants.

      Before: D. E. Holbrook, Jr., P. J., and Allen and D. R. Freeman, JJ.

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

   D. E. Holbrook, Jr., P. J.

In this case we must make the difficult choice of allocating a loss between an innocent party and a party who made an innocent mistake.

There is no dispute about the basic facts. Defendants approached the plaintiff savings and loan institution about obtaining a residential mortgage loan of $34,500. Plaintiff’s representative told defendants that to repay a 25-year mortgage loan at a 9% interest rate the monthly payment would be $251.76. This same combination of figures appears in the mortgage loan application, the mortgage commitment letter and in the mortgage note itself. The figures in the loan application were undoubtedly dictated by plaintiff’s representative and the other two documents were prepared by plaintiff.

Stated quite simply, the problem is that this combination of figures is hopelessly inconsistent— payments of $251.76 per month for 300 months will not pay off a $34,500 loan at a 9% interest rate. Defendants sold their former home and entered into a building agreement for a new home. When the first mortgage payment was due, plaintiff discovered the inconsistency and demanded that defendants execute a new note and pay the amount, $289.53 per month, which plaintiff claims should have been used in the first place. When defendants refused plaintiffs demands, plaintiff filed suit.

The complaint requested a declaratory judgment and a reformation of the contract on the grounds of mutual mistake. Defendants answered, claiming the mistake was unilateral on the part of the plaintiff and that plaintiff was engaging in fraud and deception by demanding a higher monthly payment than agreed. Defendants contend they relied on plaintiff’s calculations and representations that 300 payments of $251.76 would pay off a $34,500 loan at a 9% rate and that plaintiff is estopped from demanding any greater monthly amount. In order to correct the inconsistent figures, defendants requested the interest rate be reformed so that 300 monthly payments of $251.76 would discharge their $34,500 obligation.

In a written opinion the trial judge agreed with defendants.

"This is a proceeding which is equitable in nature and the Court feels that the burden must be placed on the party responsible for the error, and whose superior position of knowledge and control requires it to assume resulting hardship or economic loss, since it is too late to undo the transaction.
"This Court is of the opinion that the mortgage obligation should be reformed to provide an interest rate which will satisfy the loan obligation, within the specified twenty-five (25) years at the specified payment of Two Hundred Fifty One and 76/100 ($251.76) Dollars.”

An order of declaratory judgment was entered consistent with the judge’s opinion. We agree with the trial court.

This Court reviews equity cases de novo, but does not reverse or modify unless convinced it would have reached a different result had it occupied the position of the trial court. Mazur v Blendea, 74 Mich App 467, 469; 253 NW2d 801 (1977), Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975).

A court of equity may reform a contract where there is clear evidence of a mutual mistake, Ross v Damm, 271 Mich 474, 481; 260 NW 750 (1935), Kidder v Collum, 61 Mich App 281, 283; 232 NW2d 384 (1975), or in other appropriate circumstances, Najor v Wayne National Life Ins Co, 23 Mich App 260; 178 NW2d 504 (1970), lv den, 383 Mich 802 (1970).

" 'A written instrument may be reformed where it fails to express the intentions of the parties thereto as the result of accident, inadvertence, mistake’ ”. 23 Mich App at 272.

It is clear the inconsistent terms in the mortgage note cannot be reconciled and that at least one term must be reformed. Unfortunately there is no perfect solution. Either the defendants will be required to pay almost $40 a month more than they anticipated and for which they budgeted or the plaintiff will be forced to absorb a loss due to a lowered interest rate (approximately 7-3/8% rather than 9%).

The combination of a number of equitable considerations leads us to conclude that the interest rate, rather than the monthly payment, should be reformed. As noted above plaintiff’s representative told defendants what the terms would be and defendants applied for a mortgage loan on the basis of those terms. Plaintiff prepared the mortgage commitment letter and the mortgage note which essentially confirmed the inconsistent figures. Defendants were led to believe that payments of $251.76 per month would satisfy their loan obligation.

Calculations of the proper monthly payments to satisfy a long term debt at a specified interest rate are quite difficult to make and indeed plaintiff admits it resorts to tables to determine payment amounts. Plaintiff is in the business of lending money and engages in such mortgage transactions all the time. As a matter of course plaintiff calculates interest rates and determines payment schedules. Defendant Richard Przybylowicz, according to the loan application, has an eleventh grade education and is employed as a surface grinder at a tool and die shop. We find a helpful analogy in the case of Hetchler v American Life Ins Co, 266 Mich 608; 254 NW 221 (1934), in which an insurance company made some erroneous calculations of the date of coverage under a policy and advised the insured by letter that he was to be covered through a certain date. The insured died before that date and, discovering its error, the insurance company refused to pay the beneficiaries. In concluding the insurance company was estopped from denying liability on the policy, the Court said:

"The fact that the representations of the company here relied upon were not made fraudulently, but were due solely to a mistake in computation, does not operate to prevent the raising of an estoppel. It is commonly held that although the party making the representations was ignorant or mistaken as to the real facts, if he was in such a position that he ought to have known them, ignorance or mistake will not prevent an estoppel. [Citations omitted.] In the instant case defendant had all the facts and figures before it from the time of the first letter to the insured until his death, almost six years later. Under the circumstances, the error was the result of defendant’s own negligence, and knowledge of the real facts must be imputed to the company.
"It cannot be said that the insured was negligent in not discovering the error, or that he was charged with knowledge as to the time when his policy could expire. He had a right to rely on defendant’s statements in the two letters written to him by the company. It is well-nigh impossible for the ordinary layman to understand the intricacies of actuarial accounting. The insurance company itself even deemed it necessary to have its figures checked by a university professor. The alleged mistake is not a palpable one that could be easily discovered.” Hetchler, supra, at 613-614.

The calculation of the proper monthly payment on a long term debt is also quite complicated and the plaintiffs error was not one easily discoverable by defendants. Defendants justifiably relied on plaintiff’s expertise in setting a payment schedule and on plaintiffs repeated representations that $251.76 a month would repay the loan.

While plaintiff argues the parties contemplated a 9% interest rate and that therefore the interest rate should control the monthly payment figure, we believe the ordinary consumer applying for a mortgage loan is more concerned with a monthly payment which will fit within the purchaser’s budget. A consumer has no control over the mysterious fluctuations in interest rates but he or she can decide whether a monthly payment is or is not affordable. Defendants contemplated a contract which would require them to pay $251.76 a month.

We address several of plaintiffs arguments. Plaintiff argues vigorously that a court is without power to make a new contract never contemplated by the parties. All the cases cited by plaintiff, however, militate just as strongly against plaintiffs prayer for reformation of the monthly payment—to an amount never contemplated by defendants. Plaintiff next argues that the "scrivener’s mistake” doctrine allows a court of equity to correct human error. In order for this doctrine to apply the scrivener must be acting for both parties. Miles v Shreve, 179 Mich 671, 679; 146 NW 374 (1914). Since the mistake was one made by plaintiffs employee, the "scrivener’s mistake” doctrine is not available to plaintiff. Finally plaintiff relies on Drysdale v Marheine, 240 Mich 529; 215 NW 329 (1927), which allowed reformation of an option based on an error in mathematical computation. We find this case distinguishable on the grounds that the error involved was so glaring— requiring one party to pay $150,000 rather than $38,890—that there was no question that there was a simple copying mistake. The instant case is much more like Hetchler, supra, where the erroneous calculation was not obvious and not easily checked by a layman.

Balancing the equities on each side leads us to conclude the interest rate on the mortgage note should be reformed so that the defendants will discharge their obligation by making 300 monthly payments of $251.76. Recognizing the potential for fraud in cases where a party deliberately conceals an error from the other contracting party, we narrowly confine our holding to the combination of factors in this case.

Finally plaintiff contends its motion to amend its complaint to add a count for recision was improperly denied by the trial court. In general, leave to amend is to be freely given when justice so requires, GCR 1963, 118. In plaintiff’s motion for rehearing the trial judge stated that basically he had made a decision on the merits since there was really no factual dispute. Recision would have been an appropriate and actually a preferred remedy had defendants not sold their former home and entered into a building agreement for their new home. Since there was no way to restore defendants to their prior position, recision was not an available option and the trial judge did not abuse his discretion in denying plaintiff’s motion for leave to amend.

Affirmed.


author: J. H. Gillis, J.

text:
    PEOPLE v PAGE PEOPLE v MONTGOMERY
    Docket Nos. 30360, 77-208.
    Submitted March 7, 1978, at Lansing.
    Decided May 22, 1978.
    Gregory A. Page and Ernest Montgomery were each convicted by a jury of two counts of felony murder. Defendants appealed. The Court of Appeals reversed the convictions, concluding that the trial court erred in failing to instruct the jury on the lesser included offense of second-degree murder. The case was remanded for entry of a judgment of conviction of second-degree murder with the prosecutor having the option to retry the defendants on the first-degree felony-murder charge if he was persuaded that the interests of justice would be better served by such action. The prosecutor opted for the entry of second-degree murder convictions and the defendants were resentenced in Genesee Circuit Court, Ollie B. Bivins, Jr., J. The defendants appeal. Held:

    1. Entry of judgment of conviction of second-degree murder was not error because the lower court’s earlier error in failing to instruct on second-degree murder did not entitle the defendants to a new trial. Nor was there any error in the lower court’s refusal to instruct the jury on manslaughter since the evidence adduced at trial would not support a verdict of guilty of the crime of manslaughter.
    2. The trial judge’s failure to disqualify himself from resentencing was not error where the record reveals no showing of bias on the part of the trial judge.
    3. There was no abuse of discretion on the part of the trial judge in refusing to grant defendants’ motion for a change of venue.

      References for Points in Headnotes

       40 Am Jur 2d, Homicide § 525.

       75 Am Jur 2d, Trial §§ 876, 877.

       40 Am Jur 2d, Homicide § 530.

       46 Am Jur 2d, Judges § 220.

       77 Am Jur 2d, Venue § 84.

       21 Am Jur 2d, Criminal Law §§ 303, 527 (Supp).
    Presentence reports: defendant’s right to disclosure of. 40 ALR3d 681.

      Affirmed.
    1. Homicide-—First-Degree Murder—Second-Degree Murder—Instructions to Jury—Request.
    Every defendant on trial for first-degree murder is entitled to have the jury instructed on second-degree murder even if no request for such an instruction is made.
    2. Criminal Law—Instructions to Jury—Necessarily Lesser Included Offenses.
    A trial court, on request, must give instructions on necessarily lesser included offenses.
    3. Homicide—Manslaughter—Murder—Lesser Included Offenses.
    Manslaughter is not necessarily a lesser included offense within the crime of murder; however, it may be an included offense if the evidence adduced at trial would support a verdict of guilty of the crime of manslaughter.
    4. Homicide—Evidence—Murder—Manslaughter—Instructions to Jury—Lesser Included Offenses.
    The Court of Appeals must view the evidence presented at a murder trial and determine if the evidence would sustain a manslaughter conviction in order to determine whether or not the trial court erred in refusing to give a requested instruction on manslaughter as a lesser included offense.
    5. Homicide—Instructions to Jury—Felony Murder—Second-Degree Murder—-Lesser Included Offenses—Prosecutor’s Option.
    A trial court’s error in failing to instruct a jury in a felony-murder trial on the lesser included offense of second-degree murder does not entitle a defendant to a new trial; the proper procedure to follow is to remand the case for entry of judgment of conviction of second-degree murder and for resentencing, and to give the prosecutor the option to accept the entry of judgment of conviction for the reduced offense or, upon proper notice, to have a retrial on the first-degree murder charge.
    6. Judges—Disqualification of Judge—Prejudice.
    An actual showing of personal prejudice is required before a trial judge will be disqualified.
    7. Venue—Motions—Discretion.
    A motion for a change of venue is addressed to the sound discretion of the trial court, and error will be found only where there is a showing of abuse of discretion.
    8. Appeal and Error—Criminal Law—Presentence Report—Preserving Issue—Motions.
    A claim that a trial judge erred in failing to allow a defense attorney to review a defendant’s presentence report used by the trial court has not been preserved for appeal where defense counsel was present at sentencing and made no request to examine the presentence report and where no motions were filed with the trial court concerning the presentence report before appeal.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.

      Bruce E. Doll, P. C., for defendant Gregory A. Page.

      Mason and Mason, for defendant Ernest Montgomery.
    Before: D. E. Holbrook, Jr., P. J., and J. H. Gillis and S. Everett, JJ.

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

   J. H. Gillis, J.

Defendants were each tried and convicted by a jury of two counts of felony murder, contrary to MCL 750.316; MSA 28.548. Both were sentenced to mandatory terms of life in prison on each count. Defendants subsequently appealed to this Court citing several instances of error. This Court reversed defendants’ convictions for felony murder in an unpublished per curiam opinion concluding that the trial court erred in failing to instruct the jury on the lesser included offense of second-degree murder. People v Montgomery, People v Page, (Docket Nos. 22809, 20618, June 16, 1976).

The case was remanded to the trial court for entry of a judgment of conviction on the lesser included offense of second-degree murder and for resentencing. However, the prosecuting attorney was given the option to retry the defendants on the first-degree felony-murder charge if he was persuaded that the interests of justice would be better served by such action.

On remand, the prosecutor opted for the entry of second-degree murder convictions for both defendants. Defendants were each resentenced by the trial court to two concurrent terms of 100 to 150 years in prison. Defendants now appeal as of right from their second-degree murder convictions.

Defendants first contend that the trial court erred in entering second-degree murder convictions following the reversal of their felony-murder convictions. Defendants argue that they were denied their right to a jury trial inasmuch as defendant Montgomery had requested jury instructions on the lesser included offense of manslaughter as well as second-degree murder.

It should be noted that defendant Page did not object to the instructions given by the court at his first trial and would normally be precluded from challenging the validity of the instructions on appeal. See People v Henry, 395 Mich 367; 236 NW2d 489 (1975). However, this Court concluded in defendants’ first appeal that the interests of justice require that defendant Page be allowed to raise the issue on appeal.

"However, there was no objection because the trial judge had already refused to follow an identical request by counsel for Page’s codefendant. In the interests of fairness, we deem that request to be sufficient to preserve this issue for Page’s benefit as well.” People v Montgomery, People v Page, supra, 415.

Therefore, defendant Page properly raises this issue on appeal.

Defendants direct us to People v Van Wyck, 72 Mich App 101; 249 NW2d 311 (1976), which concludes that voluntary manslaughter is a necessarily lesser included offense to the crime of murder. With murder necessarily included within the crime of felony murder, People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975), defendant Montgomery is logically correct in arguing that the denial of his request for an instruction on a necessarily lesser included offense mandates reversal and retrial. A trial court must, on request, give instructions on necessarily lesser included offenses. People v Ora Jones, 395 Mich 379; 390; 236 NW2d 461 (1975).

However, People v Van Wyck, supra, has been expressly overruled by the Supreme Court of this state. People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978).

"We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.

"As we noted in People v Ora Jones, supra:

" 'The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of "cognate” or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence "cognate” in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.’ 395 Mich 387. * * *
"A person who kills another with malice aforethought is guilty of common-law murder.
" 'Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter.’ People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971).
"Provocation may mitigate the degree of the offense to manslaughter:
" 'But if the act of killing, though intentional, be committed under the influence of passion or in the heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.’ Maher v People, 10 Mich 212, 219 (1862).
"The absence of mitigating circumstances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said that voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter.” People v Van Wyck, supra, at 268-269.

While manslaughter is not a necessarily lesser included offense within the crime of murder, it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.

Therefore, in determining whether or not a trial court has erred in refusing to give a requested manslaughter instruction in a murder case, we must view the evidence presented at trial and determine if the evidence would sustain a manslaughter conviction.

In the instant matter, no evidence was produced to indicate that the killings were committed without malice aforethought. Defendants allege no mitigating circumstances but steadfastly contend that they did not participate in the killings. The record is void of any evidence which would support a reduction of the charges in the instant case from murder to manslaughter.

Accordingly, we rule that the trial court did not err in refusing to instruct the jury on the crime of manslaughter at the first trial.

The trial court obviously erred in failing to instruct the jury on the lesser included offense of second-degree murder. People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975).

However, failure to so instruct does not entitle the defendants to a new trial. Numerous Michigan Supreme Court cases have ruled that the proper procedure to follow under such circumstances is to remand the case for entry of a conviction for second-degree murder and resentencing. These cases grant the prosecutor the option to accept the reduction from first-degree murder to second-degree murder or, upon proper notice, to have a retrial on the first-degree murder charge. See People v Dancer, 396 Mich 802; 238 NW2d 29 (1976), People v Livingston, 396 Mich 818; 238 NW2d 360 (1976), People v Bills, 396 Mich 819; 238 NW2d 803 (1976), People v Dates, 396 Mich 820; 238 NW2d 360 (1976), People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976), People v Aaron, 396 Mich 843; 239 NW2d 602 (1976), People v Watson, 396 Mich 870 (1976), People v Delvin Jones, 397 Mich 871 (1976), and People v Crawl, 401 Mich 1; 256 NW2d 86 (1977).

Hence, the trial court did not err in entering second-degree murder convictions against the defendants.

Defendants next contend that the trial judge was biased and should have been disqualified from resentencing defendants.

An actual showing of personal prejudice is required before a trial judge will be disqualified. People v Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975).

Defendants base this claim upon statements made by the judge after defendants’ convictions for first-degree murder had been overturned by this Court. The judge was quoted by a local newspaper as saying that the reversals were "hard to take”. Defendants argue that these comments, coupled with the duration of the prison terms imposed upon them (100 to 150 years), indicate that the judge was biased and unable to fairly sentence the defendants on remand.

The trial judge stated that he was not biased against defendants due to their success on appeal. He also indicated at the first trial and at the resentencing that the crimes of which defendants were convicted were some of the most horrible criminal acts he had ever been exposed to.

It should also be noted that a codefendant who pled guilty and turned state’s evidence received 75 to 125 years in prison. The disparity between defendants’ sentences and that of the codefendant can be readily explained by the fact that, he cooperated with the police.

The record reveals no showing of bias on the part of the trial judge. Accordingly, we find no error in respect to this issue.

Defendants next contend that the trial court erred in failing to grant defendants’ motion for change of venue.

A motion for a change in venue is addressed to the sound discretion of the trial court, and error will be found only where there is a showing of abuse of discretion. People v Anderson, 62 Mich App 475, 484; 233 NW2d 620 (1975), People v Stockard, 48 Mich App 680, 684; 211 NW2d 62 (1973), aff'd, 391 Mich 481 (1974), People v Garland, 44 Mich App 243, 248-250; 205 NW2d 195 (1972), rev’d on other grounds, 393 Mich 215 (1974), People v Collins, 43 Mich App 259, 262-263; 204 NW2d 290 (1972), lv den, 391 Mich 798 (1974).

A review of the record reveals no such abuse of discretion in the instant case.

Defendants finally contend that the trial court erred in failing to allow their respective appellate attorneys to review the presentence report used by the trial court when it resentenced the defendants for second-degree murder.

We disagree. Defendants’ respective attorneys were present at sentencing and made no request to examine the presentence report. No motions were filed with the trial court concerning the presentence report before appeal as required by the Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975):

"In Simpson and Cotton [two defendants in Guilty Plea Cases], the defendants assert that the judge considered inaccurate information in sentencing them. Such claims should, before appeal, first be presented to the trial court by motion to vacate sentence, supported by appropriate affidavits indicating that the sentencing judge had before him and may have considered inaccurate information. Upon such a showing, the sentencing court shall hear the defendant’s claims and shall make such disposition, including vacation of sentence and resentencing, as may be warranted.” (Emphasis supplied.)

Therefore, defendants have failed to properly preserve this issue for our consideration on appeal.

Affirmed.

       Every defendant on trial for first-degree murder is entitled to have the jury instructed on second-degree murder even if no request for such an instruction is made. See People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). Hence, People v Henry, 395 Mich 367; 236 NW2d 489 (1975), would only apply to defendant Page’s failure to request an instruction on manslaughter.


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

text:
    HOYNE v ALLSTATE INSURANCE COMPANY
    Docket No. 30679.
    Submitted February 8, 1978, at Detroit.
    Decided May 22, 1978.
    Douglas Hoyne brought an action against Allstate Insurance Company for payment of his claim under an insurance contract covering a partially constructed building owned by plaintiff which was damaged by a windstorm. Default judgment entered for plaintiff in Common Pleas Court of Detroit, Daniel J. VanAntwerp, J. Defendant’s motion in common pleas to set aside the default was denied as being untimely filed. Defendant appealed to Wayne Circuit Court. George T. Martin, J., reversed and returned the matter for trial in Common Pleas Court. Plaintiff appeals. Held:

    A common pleas default judgment should not be set aside where a party has failed to file a required motion for adjournment supported by a showing of cause. Once a default judgment has been entered it may be set aside after the 10-day period for the filing of a motion to set aside has expired only upon a special motion supported by an affidavit that there was lack of personal service on the judgment debtor.
    Reversed and default reinstated.
    M. J. Kelly, P. J., concurs in the result reached by the majority but would reverse only because defense counsel was notified by the common pleas clerk of the entry of a default and he took no action within the 10-day period provided to set such judgments aside.
    Opinion of the Court
    1. Judgment—Default Judgment—Courts—Common Pleas Court —Setting Aside Default—Special Motion—Affidavit—Good Cause—Statutes.
    A default judgment in Common Pleas Court may be set aside after the regular time for the filing of a motion to set aside such default has expired by a special motion supported by affidavit based upon the personal knowledge of the affiant and setting forth: (a) that such motion is based upon a lack of personal service of process upon the judgment debtor, (b) that no delayed appeal from or transcript of the judgment has been taken and no other proceeding seeking relief therefrom has been instituted in any other court, (c) that the defaulted party has a good and meritorious defense, and (d) that the motion was filed within 10 days after the judgment debtor had actual notice of such judgment (MCL 728.29; MSA 27.3680).

      References for Points in Headnotes

       46 Am Jur 2d, Judgments §§ 708, 717, 740, 776, 780.

       46 Am Jur 2d, Judgments § 708.

       7 Am Jur 2d, Attorneys at Law § 110.

       46 Am Jur 2d, Judgments § 701.

       46 Am Jur 2d, Judgments §§ 704, 705.

       4 Am Jur 2d, Appeal and Error §§ 115,127.
    5 Am Jur 2d, Appeal and Error § 854.

      2. Judgment—Default Judgment—Courts—Common Pleas Court —Setting Aside Default—Jurisdiction—Statutes.
    The statutory grounds for setting aside a default judgment in Common Pleas Court after the regular time for filing a motion to set aside such default has expired are limited and the short time for raising such grounds is understandable in view of the limited jurisdiction of the court to which it applies (MCL 728.29; MSA 27.3680).
    3. Attorney and Client—Errors of Attorney—Charged Against Client.
    Generally, the errors of an attorney must be charged against the client.
    4. Judgment—Default Judgment—Courts—Common Pleas Court —Setting Aside Default—Adjournments—Motions—Common Pleas Rules—Delaying Tactics—Statutes.
    The adjournment rule of Common.Pleas Court requires a motion and showing of cause for adjournment; a defendant who claims that he was mistaken about an agreement to adjourn should not be relieved from a default judgment where no motion for adjournment was filed with the court and there was no act by the court which would lead counsel to believe the case was further adjourned and where the record indicates defendant was more interested in delaying the matter than in having it heard (MCL 728.29; MSA 27.3680, CPR 28, § 2).
    Concurrence by M. J. Kelly, P. J.
    5. Judgment—Default Judgment—Courts—Common Pleas Court —Notice.

      A defense counsel who is notiSed by the Common Pleas Court

      clerk of entry of default judgment against his client and who then fails to act to have the judgment set aside within 10 days acts at his peril.

    6. Judgment—Default Judgment—Courts—Circuit Court—Common Pleas Court—Appellate Relief—Grounds for Relief.

      It is error for a circuit court to grant appellate relief from a default judgment of the Common Pleas Court without giving any reasonable ground therefor.

      Ross & Soloy (by Richard W. Kochansky), for plaintiff.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, P. C. (by Mark A. Silver), for defendant.
    Before: M. J. Kelly, P. J., and T. M. Burns and R. M. Maher, JJ.
   T. M. Burns, J.

This is an appeal by leave granted to review the circuit court’s action of setting aside a default judgment entered in the Detroit Common Pleas Court. The underlying action involves a claim under an insurance policy issued by defendant on a building under construction. When defendant failed to appear on the adjourned trial date, the common pleas judge entered default judgment for $7,000 plus costs.

The trial in this matter was set for February 25, 1976. On February 17, 1976, the parties filed a written stipulation to adjourn the trial date to March 8, 1976. The defense failed to appear on that date and the judgment noted above was entered.

Defendant’s attorney has alleged in the various motions to set aside the default that he had informed plaintiff’s attorney of a scheduling conflict and was under the impression that the matter would be further adjourned. We note that no motion, required for the second adjournment, was ever filed in the common pleas court. CPR 28, § 2.

Defendant moved to set aside the default on March 24, 1976, 16 days after it was entered. The common pleas judge denied the motion, stating: "Denied, under Rule 19, the same being untimely filed, and appears to be the fault or neglect of defendant.” CPR 19, § 3 then required the motion to be filed within 10 days after the default judgment was entered.

After a substitution of attorneys, defendant moved for rehearing. In the motion the defendant argued that the default judgment should be set aside under GCR 1963, 528.3. The common pleas judge granted rehearing but refused to set aside the default, noting: "Circuit court may have authority under GCR 528.3, but common pleas court does not.”

On appeal to the circuit court, the default was set aside and the matter returned to common pleas for trial. It is not clear from the record, but apparently the circuit court relied upon GCR 1963, 528.3.

The original motion to set aside the judgment was not timely under CPR 19. The problem lies in what procedure must be followed to set aside the default judgment after this original time period had run.

CPR 39 provides: "In all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rules shall govern.”

In this case, the matter is "specified by statute”. MCL 728.29; MSA 27.3680 provides in part:

"In any case where default judgment shall have been rendered by any such court against any defendant and the regular time for * * * motion to set aside such default * * * has expired, the judge who rendered such judgment or his successor in office, shall have power to set aside such judgment and grant a new trial on special motion therefor supported by affidavit based upon the personal knowledge of the affiant, setting forth, in substance, the following facts: (a) that such motion is based upon lack of personal service of process upon the judgment debtor; (b) that no delayed appeal from or transcript of such judgment has been taken and no other proceeding, seeking relief therefrom, has been instituted in any other court; (c) that said defaulted party has a good and meritorious defense to the action; and (d) that such motion is filed within 10 days after such judgment debtor had notice or actual knowledge of the existence of such judgment”.

This statute provides the grounds upon which relief may be granted after the time specified in Rule 19 has expired and the procedure to be followed. That the grounds are limited and the time for raising them short is understandable, given the limited jurisdiction and the nature of the court to which it applies.

The defendant has not filed an affidavit containing the. information envisioned by the statute. It has never properly moved to set aside the default.

Even if we were to assume that GCR 1963, 528.3 could have been applied either by the common pleas court or the circuit court sitting as an appellate court, relief would not be justified here.

Generally, the errors of an attorney must be charged against the client. White v Sadler, 350 Mich 511; 87 NW2d 192 (1957). It is difficult to perceive how the attorney could have been "mistaken” about the fact that the trial had not been adjourned where the rules clearly require a motion and a showing of cause before a judge. CPR 28, § 2. There has been no allegation that a motion for adjournment was ever filed or that there was some act by the court which led counsel to believe that the case was further adjourned. Despite the assertion, made now, that defendant is ready and anxious to have the cause heard on the merits, one could conclude from the delays occasioned before the final trial date was set and the delayed efforts to have the judgment set aside, that defendant was more interested in delaying the matter than in having it heard. Defendant is not entitled to relief under the general court rules on the facts of this case. See, Okros v Myslakowski, 67 Mich App 397; 241 NW2d 223 (1976), lv den, 397 Mich 861 (1976).

The circuit court erred in setting aside the default on this record.

Reversed and default reinstated. Costs to appellant.

R. M. Maher, J., concurred.

M. J. Kelly, P. J.,

(concurring). I concur in the result reached by Judge Burns and write to address two issues. The first is the motion practice mentioned in the majority opinion regarding adjournments.

CPR 28, § 2 was for many years, to my certain knowledge, honored in the breach rather than in the adherence. I would be reluctant to ground any decision on failure to follow the procedure outlined in CPR 28, § 2. What persuades me to join in the majority is the unrebutted docket entry to the effect that defense counsel was notified by the common pleas court clerk of entry of default judgment by notice mailed March 9, 1976, which informed him to appear within 10 days if he wished to set aside the default. This he ignored at his peril. We have absolutely no clue as to Judge Martin’s reason for reversing the common pleas court. His order contains no reason and there apparently was no record made of any decision he might have verbalized from the bench.

I would not hold that the attorney error was in failing to appear for motion and order to show cause before a judge of the common pleas court under CPR 28, §2 just because it was a second adjournment. I would reverse on the narrow ground that the common pleas court did not err in refusing to set aside the default and that the circuit court did err in granting appellate relief without giving any reasonable ground therefor where the proceedings in the common pleas court were regular and the docket shows noncompliance with CPR 19. Whether a circuit judge could exercise discretion under GCR 1963, 528.3 in an appellate role where a lower court judge did not have such discretion I consider dubious but would leave that determination to another date. I would hold however that CPR 39 does not invoke GCR 1963, 528.3 to invest the common pleas court with the broad jurisdiction outlined in GCR 1963, 528.3 as to default judgments.


author: A. C. Miller, J.

text:
    FRIEDMAN v DOZORC
    Docket No. 31244.
    Submitted November 8, 1977, at Detroit.
    Decided May 22, 1978.
    Leave to appeal applied for.
    Defendants, Peter Dozorc and Robert Golden, are attorneys who filed and pursued on behalf of a client a medical malpractice action against plaintiff, Dr. Seymour Friedman, and others which resulted in a directed verdict of no cause of action at the close of plaintiffs proofs. Dr. Friedman’s codefendants filed a motion for costs under a court rule allowing costs from a party making unreasonable allegations. The trial court denied the motion and found that the allegations were not unreasonable. Dr. Friedman filed suit against defendants Dozorc and Golden alleging negligence in filing and maintaining the medical malpractice action, and abuse of process and malicious prosecution. Oakland Circuit Court, Frederick C. Ziem, J., granted an accelerated judgment to defendants. Plaintiff appeals. Held:

    1. There can be no cause of action by a third party against a lawyer for negligence in performing duties for his client, even if his actions result in damage to the third party; the absence of a duty and policy considerations related to free access to the courts require this result.
    2. The gist of the tort of abuse of process is misusing or misapplying process, justified in itself, for an end other than that which it was designed to accomplish, not the commencing an action or causing process to issue without justification.
    3. The issue in a suit for malicious prosecution is whether or not there was probable cause to file and continue the litigation complained of; that issue is a question of law for the judge where the facts are not in dispute and a mixed question of law and fact for the trier of facts where the facts are in dispute.
    _ 4. A determination that the suit by a party was not spurious does not determine the issue of whether or not the party’s attorneys had probable cause to initiate or proceed with that suit.

      References for Points in Headnotes

       7 Am Jur 2d, Attorneys at Law §§ 196-200.

       1 Am Jur 2d, Abuse of Process §§ 1, 2.

       52 Am Jur 2d, Malicious Prosecution §§ 64, 65, 67.
    Attorney: liability of attorney acting for client, for false imprisonment or malicious prosecution of third party. 27 ALR3d 1113.

      Reversed and remanded for further proceedings.
    1. Negligence—Attorney and Client—Third Parties.
    An attorney is not liable to third parties for the negligent performance of his obligations to a client, even where such negligence results in damage to third parties; the absence of a duty and policy considerations related to free access to the courts require this result.
    2. Torts—Abuse of Process—Definitions.
    The gist of the tort of abuse of process is not commencing an action or causing process to issue without justification but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish.
    3. Torts—Malicious Prosecution—Attorney and Client—Third Parties.
    The issue in a suit for malicious prosecution brought by a plaintiff against the attorneys of a person who had previously sued the plaintiff and lost is whether the attorneys had probable cause to file and continue the litigation complained of, which issue is a question of law for the judge if the facts are not in dispute and a mixed question of law and fact for the trier of facts if the facts are in dispute.

      Schureman, Frakes, Glass & Wulfmeier (by Charles F. Glass and Robert A. Obringer and Nederlander, Dodge & McCauley, P. C., of counsel), for plaintiff.

      Lopatin, Miller, Bindes & Freedman, for defendant Dozorc.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Charles T. McGorisk and Christine D. Oldani), for defendant Golden.
    Before: D. C. Riley, P. J., and D. F. Walsh and A. C. Miller, JJ.

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

   A. C. Miller, J.

This appeal raises the interesting question: Does an attorney owe a duty to persons other than his client?

Physician Friedman brings this suit against attorneys Dozorc and Golden alleging that they breached a duty owed to him in negligently filing and pursuing a medical malpractice suit against him that resulted in a directed verdict of no cause of action at the close of plaintiffs proofs. Codefendants in the original suit subsequently filed a motion for costs under GCR 111.6 which was denied by Judge Charles Farmer, the trial judge.

In addition to this claim in negligence, more traditional claims in the nature of abuse of process and malicious prosecution are joined. Even here, there is the innovative theory that continuing the proceeding after knowledge of its lack of merit constitutes further malicious prosecution.

Negligence

Plaintiff relies in part upon canon and court rules, the pertinent portions are as follows:

Canon 7 provides, "A Lawyer Should Represent a Client Zealously within the Bounds of the Law”. Disciplinary Rule 7-102(a) provides:

"(A) In his representation of a client, a lawyer shall not:
(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.” (Emphasis added)

Moreover, under GCR 1963, 114.2:

"The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief, there is good ground to support it * * * .”

Plaintiff contends that the Canons, Disciplinary Rules and General Court Rules reiterate not only the basis of the duty to plaintiff, but also particularize the duty. The attorney must exercise reasonable and ordinary care and diligence in carrying out those duties. The plaintiff further contends that those duties are obviously designed to protect the general public from unwarranted or vexatious litigation and that where a duty exists, it is axiomatic that there be a corresponding remedy.

The position of the attorney being that of zealous advocate, the cases of Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), referring to the duty owed by an abstractor to the public, and Ultramares Corp v Touche, 255 NY 170; 174 NE 441 (1931), referring to the similar duty owed by a public accountant, are not analogous. Their duty is to be accurate and it is foreseeable that persons other than their client will be relying upon their work product for accuracy. The duty of the advocate is to be zealous and the public is charged with that knowledge.

State Bar Grievance Administrator v Corace, 390 Mich 419; 213 NW2d 124 (1973), the Supreme Court addressed the parameters of Canon 7 at 434:

"There are a large number of gray areas in the law. When a question is doubtful, the lawyer’s obligation to his client permits him to assert the view of the law most favorable to his client’s position. The in terrorem effect the Grievance Board reads into the Canon would unduly restrict a lawyer in fulfilling his professional responsibility of representing his client 'competently’ (Canon 6) and 'zealously’ (Canon 7).”

In a very similar case, the Louisiana Court found that no duty exists and therefore no cause of action. In Spencer v Burglass, 337 So 2d 596 (La App, 1976), the Court of Appeals of Louisiana was confronted with a situation in which the plaintiff physician sought damages against the defendant attorney. The latter party had commenced an earlier medical malpractice action on behalf of his client against the doctor. In rejecting the doctor’s right to recover for the breach of any duty owed her, the Spencer Court at 600 stated as follows:

"Plaintiff has cited no authority for her proposition that these standards provide her with a cause of action under a general tort or negligence concept. In order to establish liability on that theory plaintiff must allege and prove that defendant’s filing the suit against her was a cause in fact of her alleged damages, that defendant breached a duty which created the very risk which the duty was designed to prevent and that defendant was negligent in filing the suit and/or trying the case against her. * * *
"When plaintiffs petition is evaluated in the light of this principle we must conclude that she fails to state a cause of action.”

Free access is the policy reason for the rule, as stated in Spencer, supra, at 601.

"As a general proposition, therefore, public policy requires that all persons shall fully resort to the courts for redress of wrongs, and the law protects them when they act in good faith and upon reasonable grounds in commencing either a civil or criminal proceeding.”

This principle was recently affirmed in the case of Drago v Buonagurio, 89 Misc 2d 171; 391 NYS2d 61 (1977). In that case the plaintiff-physician sought damages from the defendants, an attorney and his client who had earlier instituted a medical malpractice action against the plaintiff. As the facts developed, it became apparent that the physician had never treated the defendant-client’s decedent prior to his demise.

The plaintiff complained that the attorney had acted negligently in his failure to investigate the facts surrounding the accident, in employing the action against the plaintiff as a discovery device and in conducting the practice of law in an unethical and malicious manner. The Drago Court found that the complaint alleged no facts upon which it could be found that there was any duty owing from the defendant to plaintiff:

"The courts of this state have consistently held that an attorney is not liable to third parties for the negligent performance of his obligations to a client, even where such negligence results in damages to third parties.” 391 NYS2d at 62-63.

The reason given for New York courts so holding was that a decision to act in a contrary manner would operate to discourage resort to the courts for the settlement of controversies and this would be contrary to public policy. A similar result is found in Norton v Hines, 49 Cal App 3d 917; 922-923; 123 Cal Rptr 237, 240-241 (1975), where the court specifically noted that sometimes it is necessary to file the suit before all the facts are known. This case was adopted by another panel of this Court in Gasis v Schwartz, 80 Mich App 600; 264 NW2d 76 (1978), as the basis for its decision to affirm a grant of summary judgment in a physician’s counter suit. Quoting Norton from pages 922-923, the Gasis Court ruled:

" 'The attorney owes a duty to his client to present his case vigorously in a manner as favorable to the client as the rules of law and professional ethics will permit. He is an advocate and an officer of the court. He is cognizant of the public policy that encourages his clients to solve their problems in a court of law. * * * We believe the public policy of favoring free access to our courts is still viable. However, if Norton’s cause of action against attorneys for negligence is permitted, this policy will be subverted.’
"We think the reasoning of the California court is sound and adopt it. Defendant attorneys owed no duty to plaintiffs to refrain from acting on behalf of their clients.” Gasis, supra, at 603.

The foundation case in the area of legal malpractice is the decision of the United States Supreme Court in Savings Bank v Ward, 100 US 195, 198, 200, 202; 25 L Ed 621, 622-624 (1879), which carefully limited the duty:

"Proof of employment and the want of reasonable care and skill are prerequisites to the maintenance of the action * * *
"Beyond all doubt, the general rule is that the obligation of the attorney is to his client and not to a third party, * * *
" * * * it is not everyone who suffers a loss from the negligence of another that can maintain a suit on such grounds. On the contrary, the limit of the doctrine relating to actionable negligence * * * is, that the person occasioning the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss.”

Despite the demise of the privity requirement, the existence of a duty is required and this is a question of law normally to be resolved by the judge. Farwell v Keaton, 396 Mich 281, 286; 240 NW2d 217 (1976).

The attorney is not without restraints on his conduct. In addition to the canons enforced by the licensing agencies or integrated bar, the attorney is responsible in damages for fraud, collusion or malicious prosecution. Sefi Fabricators, Inc v Tillim, 79 Misc 2d 213; 360 NYS2d 146 (1973). In Rosenberg v Cyrowski, 227 Mich 508, 513; 198 NW 905 (1924), our Supreme Court cited approvingly the following statement from 1 Thornton on Attorneys at Law, § 295:

"An attorney’s liability does not end with being answerable to his client. He is also liable to third persons who have suffered injury or loss in consequence of fraudulent or tortious conduct on his part.”

This exception to privity is confined to fraud. The Court went on to state at 514:

"Where there is fraud or collusion, the party will be held liable, even though there is no privity of contract.”

Other jurisdictions have uniformly found an absence of duty and no liability in negligence cases. Waugh v Dibbens, 160 P 589 (Okla 1916), Joffe v Rubenstein, 24 App Div 2d 752; 263 NYS2d 867 (1965), Lackey v Vickery, 57 F Supp 791 (WD Mo, 1944), McGlone v Lacey, 288 F Supp 662 (D SD, 1968), Weigel v Hardesty, 549 P2d 1335 (Colo App, 1976), Bryan & Amidei v Law, 435 SW2d 587 (Tex App, 1968); Carroll v Kalar, 112 Ariz 595; 545 P2d 411 (1976), Brian v Christensen, 35 Cal App 3d 377; 110 Cal Rptr 688 (1973), De Luca v Whatley, 42 Cal App 3d 574; 117 Cal Rptr 63 (1974); Birnbaum, Liability of Plaintiff’s Counsel for Filing an Unjustified Professional Liability Suit, 27th Annual Advocacy Institute, ICLE (1976), p 77.

The trial judge properly found that plaintiff failed to state a claim in negligence. GCR 117.2(1).

Abuse of Process

This cause of action was thoroughly discussed in Rowbotham v Detroit Automobile Inter-Insurance Exchange, 69 Mich App 142; 244 NW2d 389 (1976), in an opinion authored by Judge D. C. Riley, a member of this panel.

The tort known as abuse of process envisions extraordinary process, not merely a summons, and its use to accomplish a purpose for which the writ was not designed. No possessory writ, lien or body process was issued in this case. The elements of the cause of action are stated by Judge Riley in the above opinion at 146 as follows:

"The essential elements to an action for abuse of process are the existence of an ulterior purpose and an act in. the use of the process not proper in the regular conduct or prosecution of the proceedings. The action lies for the improper use of the process after it had been issued, not for maliciously causing it to issue. Spear v Pendill, 164 Mich 620; 130 NW 343 (1911). To restate the proposition, the tort concerns the willful use of a valid process to obtain a result the law did not intend. Moore v Michigan National Bank, 368 Mich 71, 74; 117 NW2d 105 (1962).”

The difference between this cause of action and malicious prosecution is explained in Prosser, Torts (1st ed), p 673:

"Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that it was obtained without probable cause or in the course of a proceeding begun without probable cause.”

The trial judge properly found that plaintiff failed to state a claim for abuse of process. GCR 117.2(1).

Malicious Prosecution

This tort arose in the criminal area and has been extended to the civil (Rowbotham, supra, at 147). Plaintiff has alleged a claim that withstands the challenge under GCR 117.2(1) for failure to state a valid claim and a jury issue is presented unless "there is no genuine issue as to any material fact”. GCR 117.2(3). A close perusal of the record makes it clear that plaintiff contests every foundation fact, asserted by defendant to be "undisputed”. The trial judge endeavored to secure an agreed statement of facts or some substitute as a basis for his decision without success. With this state of the record, we arrive at the same point as the Court did in Rowbotham, supra, at 149:

"In the present case, we cannot say that the facts presented below are free from dispute. Without any specific facts, we find it difficult to accept the claim that this defendant had a good faith belief that it could seek suspension of Mr. Rowbotham’s operator’s license. We cannot agree that there was, as a matter of law, probable cause to request the certificate. The question remains one for the jury. See LaLone v Rashid, 34 Mich App 193; 191 NW2d 98 (1971).”

See also Obeginski v James, 4 Mich App 90, 92; 143 NW2d 579 (1966), where Judge, now Chief Justice, Thomas G. Kavanagh, wrote:

"With reference to the first question, it is firmly established that if the facts are not in dispute, the existence or want of probable cause is a matter of law to be determined by the court. Rankin v Crane (1895), 104 Mich 6 [61 NW 1007]; Merriam v Continental Motors Corporation (1954), 339 Mich 546 [64 NW2d 691]; Renda v. International Union, UAW (1962), 366 Mich 58 [114 NW2d 343]; and Drobczyk v Great Lakes Steel Corp. (1962), 367 Mich 318 [116 NW2d 736].
"It is equally well established that if the facts are in dispute, since probable cause is a mixed question of law and fact, it should be left to the determination of the jury under proper instruction. Fine v Navarre (1895), 104 Mich 93 [62 NW 142]; Slater v Walter (1907), 148 Mich 650 [112 NW 682] and Hall v American Investment Co. (1928), 241 Mich 349 [217 NW 18].”

The lower court having been unable to procure any agreed statement of facts and counsel having failed to present affidavits which could conceivably have eliminated fact issues on sufficient basics, the judge turned to Judge Farmer’s decision denying costs under Rule 111.6 for disposition of the motion. This rule provides:

".6 Unwarranted Allegations and Denials. If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees.”

Judge Ziem adds successful disposition of this motion to the successful disposition of the initial litigation per se as a condition precedent to a malicious prosecution suit. His opinion, in part, is as follows:

"In applying GCR 111.6 and on motion of Peoples Community Hospital, following the trial, Judge Farmer, the Trial Judge in the Wayne County lawsuit of Serafin v Peoples Community Hospital, Dr. Friedman, et al, refused to find that the claims put forth by the Defendants Dozorc and Golden on behalf of Serafín were unreasonable. At page 6 of the transcript, the record reveals:

’Mr. Andrews (Attorney for Defendant Peoples Community Hospital):
"I believe it was unreasonable under the facts of this case, your Honor.”
’THE COURT (Judge Farmer):
"I don’t believe so.”
'THE COURT (Judge Farmer):
"I think that this is tantamount—your allegations would be tantamount to the claim that the plaintiff would have a spurious claim. I don’t think so. I think that perhaps he, or she, did feel that there was a reason to bring this action. I don’t think that it was unreasonable, from what I remember of the case.” ’
"Judge Farmer having ruled that the Serafín claim against the hospital was not spurious or unreasonable, it is only logical to conclude that the Serafín claim against Dr. Friedman was also not spurious or unreasonable especially in view of the fact that Dr. Friedman, through his attorneys, chose not to present this issue before the Trial Judge, who was completely familiar with the claims of the respective parties to that lawsuit, and would thus be in an ideal position to determine when the claims were unwarranted, unreasonable, spurious, or without probable cause.
"In this Court’s opinion and under the facts and circumstances of this case, the Trial Judge’s rulings apply to all of plaintiff’s claims against both defendants in that lawsuit. The Trial Judge found that plaintiff, Serafín, through his attorneys (the defendants in this lawsuit), had not brought any unreasonable claims. The Trial Court also stated that the claims of Plaintiff Serafín were not spurious.
"Judge Farmer, being the Trial Judge and having heard all the evidence, was in a much better position than this Court to evaluate the merits of all of Serafin’s claims against Dr. Friedman and the Peoples Community Hospital and to determine whether they were reasonable or not. He refused to classify the claims as spurious or unreasonable; and thus they did not fit within the meaning of the term 'unwarranted’ as that word is used in GCR 1963, 111.6.
"In this Court’s opinion, the ruling by Judge Farmer establishes the fact that Serafin’s claims in that lawsuit were not unreasonable or brought without probable cause and thus Serafin’s claims cannot serve as the basis of an action by Dr. Friedman against Serafin’s attorneys for malicious prosecution or abuse of process in this lawsuit.”

As appealing as his logic may be, and with due recognition of the feeling that the original malpractice suit trial judge should have a special insight, nonetheless, we find no supporting authority. Neither does this fit into the traditional res judicata or collateral estoppel principles. Cf. Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971). The issues are not the same and the parties are also different. In the GCR 111.6 motion, the issue was whether plaintiff Serafín brought a spurious suit against physician Friedman. In the present litigation, the issue is whether the defendants Dozorc and Golden, attorneys for Serafín, had probable cause to proceed with the suit initially or to continue it thereafter.

We must remand for trial to determine whether defendants had probable cause to file and continue the original malpractice litigation. The definition of probable cause applicable to these proceedings is set forth in Tool Research & Engineering Corp v Henigson, 46 Cal App 3d 675, 683-684; 120 Cal Rptr 291, 297-298 (1975), as follows:

"The attorney is not an insurer to his client’s adversary that his client will win in litigation. Rather he has a duty 'to represent his client zealously * * * [seeking] any lawful objective through legally permissible means * * * [and presenting] for adjudication any lawful claim, issue, or defense.” (A.B.A. Code of Professional Responsibility, EC 7-1; DR 7-101(A)1, discussed in 1 Witkin, Cal. Procedure (2d ed.) Attorneys, § 239.)

It is the attorney’s reasonable belief that the client has a tenable claim and not the attorney’s conviction that the client will prevail which is the measure of probable cause:

"The attorney’s obligation is to represent his client honorably and ethically, and he may, without being guilty of malicious prosecution, vigorously pursue litigation in which he is unsure of whether his client or the client’s adversary is truthful, so long as that issue is genuinely in doubt.”

Reversed and remanded for further proceedings on the malicious prosecution claim in accordance with this opinion.

       The will drafting cases are not in point because there the interests of the testator and beneficiaries are mutual and not adverse. Cf. Lucas v Hamm, 56 Cal 2d 583; 15 Cal Rptr 821; 364 P2d 685 (1961), and Parnell v Smart, 66 Cal App 3d 833; 136 Cal Rptr 246 (1977).