text:
    PEOPLE v JAKIEL
    Docket No. 78-3163.
    Submitted June 11, 1979, at Grand Rapids.
    Decided October 2, 1979.
    Leave to appeal applied for.
    Raymond G. Jakiel was charged with embezzlement of money over $100. The information alleged that the embezzlement was committed on August 1, 1977. At trial, a prosecution witness who discovered the embezzlement testified that he did not believe that any embezzlement occurred on or after August 1, 1977. The defendant moved to dismiss the case, contending that testimony of acts of embezzlement prior to the date alleged in the information was inadmissible. Alpena Circuit Court, Philip J. Glennie, J., treating the motion as one for a directed verdict of acquittal, granted the motion. The prosecution appeals. Held:

    The variance between the witness’s testimony and the date stated on the information was not fatal to the prosecution’s case. However, when a criminal defendant has been acquitted, retrial on the same offense is barred on double jeopardy grounds even if the legal ruling underlying the acquittal was erroneous.
    The prosecutor’s appeal is dismissed.
    1. Embezzlement — Witnesses — Date of Commission of Offense.
    The variance between a witness’s testimony at a defendant’s trial on a charge of embezzlement and the date stated on the information charging the defendant was not fatal to the prosecution’s case where the information charged that the embezzlement was committed on August 1, 1977, and the prosecution witness who discovered the embezzlement testified that he did not believe that any embezzlement occurred on or after August 1, 1977.
    2. Embezzlement — Time Element — Amendment of Information.
    Time is not of the essence with a crime of embezzlement and amendment of an information charging a defendant with the crime of embezzlement should be liberally permitted in order to conform the information to the evidence in regard to the time that the crime took place.

      References for Points in Headnotes

       41 Am Jur 2d, Indictments and Informations § 268.

       21 Am Jur 2d, Criminal Law § 215.

      3. Constitutional Law — Double Jeopardy — Appeal by the People — Evidence.
    The constitutional guarantees against double jeopardy bar the people from appealing a trial court’s determination that the evidence against a defendant was legally insufficient to support a conviction of the offense charged.
    4. Constitutional Law — Double Jeopardy — Acquittal — Erroneous Legal Ruling.
    Retrial of a defendant for a charged offense after the defendant has been acquitted of that offense is barred even if the legal ruling underlying the acquittal was erroneous; the essential character of the acquittal is not altered depending on whether it results from an erroneous evidentiary ruling or an erroneous interpretation of governing legal principles.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Theodore O. Johnson, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Thomas C. Nelson, Assistant Attorney General, of counsel), for the people.

      Richard A. Collins, for defendant on appeal.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

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

   Per Curiam.

Plaintiff appeals from the trial judge’s granting of a directed verdict of acquittal at defendant’s request.

Defendant was charged with embezzlement of money over $100 from his employer, Clark Oil & Refining Company. MCL 750.174; MSA 28.371.

The information alleged that the embezzlement was committed on August 1, 1977. At trial, a prosecution witness who discovered the embezzlement testified that he did not believe that any embezzlement occurred on or after August 1, 1977. Defendant moved to dismiss the case, contending that testimony of acts of embezzlement prior to the date alleged in the information was inadmissible. The trial judge, treating the motion as one for a directed verdict of acquittal, granted the motion.

MCL 767.60; MSA 28.1000 permits the prosecutor to introduce evidence of acts of embezzlement occurring within six months after the date alleged in the information.

In People v Breckenridge, 81 Mich App 6; 263 NW2d 922 (1978), a case involving the crime of false pretenses, we analyzed this statute and concluded that its language did not restrict the admission of evidence of alleged criminal acts occurring before the date stated in the information.

We extend the reasoning of Breckenridge to the instant case and hold that the variance between the witness’s testimony and the date stated on the information was not fatal to the prosecution’s case.

This result is also dictated by the rule that where, as with the crime of embezzlement, time is not of the essence, amendment of the information to conform to the evidence should be liberally permitted. People v Lee, 307 Mich 743, 748-749; 12 NW2d 418 (1943), People v Hawkins, 106 Mich 479; 64 NW 736 (1895).

We must determine, however, whether double jeopardy considerations bar the prosecution’s appeal. We rule that they do. The prosecution argues that its appeal and defendant’s retrial are not barred by the double jeopardy clauses of either the United States or the Michigan Constitutions. US Const, Am V; Const 1963, art 1, § 15. In support of this argument the prosecution relies on United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978), reh den 439 US 883; 99 S Ct 226; 58 L Ed 2d 197 (1978). This reliance is misplaced.

In Scott the defendant moved for and was granted dismissal of the charges against him because of pre-indictment delay. The Supreme Court ruled that where a defendant seeks midtrial termination of criminal proceedings against him on grounds unrelated to guilt or innocence, double jeopardy does not bar appeal and retrial.

The instant case is distinguishable from Scott. In this case the defendant did not seek termination of the trial on grounds unrelated to guilt or innocence. On the contrary, the defendant sought an evidentiary ruling which would preclude the prosecution from introducing evidence of acts of embezzlement which occurred prior to August 1, 1977, the date indicated in the information as the date of the offense. The court ruled in defendant’s favor and held that "any acts prior to the date of August 1 are not admissible”. Finding no evidence of acts of embezzlement on or after August 1, 1977, the court found the defendant not guilty of the charge.

"On the basis of the testimony before the court and the cases that the court has read, I am going to direct a verdict in this case of not guilty.”

The trial court evaluated the prosecution’s evidence and determined that it was legally insufficient to support a conviction of the offense charged. Double jeopardy bars government appeal from such a determination. United States v Scott, supra, 437 US at 97. When a criminal defendant has been acquitted, retrial on the same offense is barred even if the legal ruling underlying the acquittal was erroneous. Sanabria v United States,

437 US 54, 64; 98 S Ct 2170; 57 L Ed 2d 43 (1978), Fong Foo v United States, 369 US 141; 82 S Ct 671; 7 L Ed 2d 629 (1962). The essential character of an acquittal is not altered depending on whether it results from an erroneous evidentiary ruling or an erroneous interpretation of governing legal principles. United States v Scott, supra, 437 US at 98.

The prosecution’s appeal is dismissed._

        Sanabria v United States, cited in the text, is the case which is perhaps most directly on point with reference to the issue raised in this case. In Sanabria the defendant was charged under a Federal law, 18 USC 1955, with participating in a gambling business involved with numbers betting and betting on horse races in violation of a specified Massachusetts statute. There was evidence that the defendant was involved with numbers betting but not with horse betting. At the close of the government’s case the defense moved for an acquittal on the grounds that the state statute specified in the indictment did not prohibit numbers betting but only betting on games of competition such as horse races. The district court struck all evidence of numbers betting on the grounds that the indictment failed to cite the proper state statute. Defendant then moved for acquittal on the grounds that there was no evidence that he was involved in horse betting. The court granted the motion.
      The United States Court of Appeals for the First Circuit vacated the judgment of acquittal and remanded for new trial. It held that the government had the right to appeal under 18 USC 3731, which authorizes government appeals from orders dismissing an indictment as to any one or more counts; that the district court was in error when it excluded the evidence of numbers betting; and that there was no double jeopardy bar to new trial since the defendant had voluntarily terminated the proceeding against him by moving, in effect, to dismiss it. The Court of Appeals further ruled that the government could retry the defendant on the same indictment based on his involvement in numbers betting.
      The Supreme Court reversed, holding that the government had no right of appeal to the Federal Court of Appeals since the midtrial ruling on the numbers betting was an erroneous evidentiary ruling resulting in an acquittal and "when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous”. 437 US at 64.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LEYSON v KRAUSE
    Docket No. 78-3663.
    Submitted June 7, 1979, at Detroit.
    Decided October 2, 1979.
    Kathleen Leyson had her appendix removed by John J. Krause, M.D., in 1964. Approximately two weeks and two days later the surgical wound had apparently become infected and was surgically reopened and drained. In 1968, Kathleen married and after a year consulted a gynecologist regarding her inability to have children. The gynecologist discovered that scarring, or adhesions, in the area around Kathleen’s fallopian tubes prevented the ovum from dropping into the uterus. In 1971, Kathleen underwent surgery to relieve some of the adhesions. On October 7, 1974, she read a newspaper article about a lawsuit involving a similar fact situation. On April 14, 1975, Kathleen and her husband, Dennis Leyson, brought an action against Dr. Krause and the Drayton Clinic alleging malpractice in failing to diagnose appendicitis in timely fashion and in failing to employ proper procedures to diagnose and to treat the subsequent infection. The complaint included a demand for a jury trial. Defendant, Dr. Krause, filed a motion for accelerated judgment on grounds that plaintiffs’ action was barred by the statute of limitations. Motion granted, Wayne Circuit Court, Thomas Roumell, J. Plaintiffs appeal. Plaintiffs contend that Kathleen knew the scarring was connected with her appendectomy but not that it was the result of defendant’s wrongful conduct and that the question of whether plaintiff knew or should have learned of the malpractice in 1971 is one of fact for the jury. Defendants argue that Kathleen discovered, or in the exercise of reasonable diligence should have discovered, defendants’ alleged malpractice no later than 1971, when the adhesions were surgically relieved. Held:

      References for Points in Headnotes

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 181-185.
    Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 320.
    When statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 368.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 213.
    73 Am Jur 2d, Summary Judgment § 6.
    Propriety of granting summary judgment in case involving issue of gross or wanton negligence. 50 ALR2d 1309.

      Where a factual issue exists and a timely demand for a jury trial has been made, a motion for accelerated judgment should not be granted in a medical malpractice action. Kathleen knew that the scarring was connected with the 1964 appendectomy and of the resulting harm no later than 1971. What Kathleen did not know was that the scarring and subsequent surgery to relieve adhesions was the result of Dr. Krause’s wrongful conduct and thus constituted malpractice. Whether Kathleen knew or should have learned of the malpractice in 1971 is a question of fact for the jury.
    Reversed and remanded.
    1. Negligence — Malpractice — Limitation of Actions — Termination of Services — Discovery of Injury — Statutes.
    An action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later (MCL 600.5805, 600.5838; MSA 27A.5805; 27A.5838).
    2. Judgment — Negligence — Accelerated Judgment — Malpractice — Motions — Question of Fact — Demand for Jury.
    A motion for accelerated judgment should not be granted in a medical malpractice action where a factual issue exists and a timely demand for a jury trial has been made.
    3. Negligence — Malpractice — Physicians and Surgeons — Discovery of Malpractice — Circumstances of Discovery.
    A person must know of the act or omission itself and have good reason to believe the act itself was improper or was done in an improper manner in order to discover asserted malpractice; mere knowledge of the act will be sufficient, under certain circumstances, where it alone gives good reason to believe the act was improper; however, a person may know of both the act and some resulting pain but not be aware of any wrongdoing by the physician or surgeon.

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

      Schureman, Frakes, Glass & Wulfmeier (by Gregory M. Bereznoíf and Lee H. Wulfmeier), for defendants.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

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

   Per Curiam.

Plaintiffs appeal from the order of the trial court granting defendants’ motion for accelerated judgment on grounds that plaintiffs’ medical malpractice claim was barred by the statute of limitations. We reverse.

The factual background of the case, as set out in the pleadings and depositions, is as follows: Plaintiff Kathleen Leyson (hereinafter plaintiff) consulted defendant Krause (hereinafter defendant) in February of 1964, regarding pain in her lower abdomen. Defendant diagnosed the problem as a strain and prescribed treatment with heat. When plaintiff’s condition failed to improve, she again consulted defendant, who hospitalized plaintiff and removed her appendix. Plaintiff was discharged from the hospital approximately two weeks after her appendectomy, but two days later was readmitted. The surgical wound had apparently become infected, and was surgically reopened and drained. In 1968, plaintiff married; one year later, she consulted a gynecologist regarding her inability to conceive. Upon investigation, the gynecologist discovered that scarring, or adhesions, in the area around plaintiff’s fallopian tubes prevented the ovum from dropping into the uterus, thus rendering plaintiff unable to conceive. In 1971, plaintiff underwent surgery to relieve some of the adhesions.

In her deposition, plaintiff testified that she understood that her sterility was caused by the scarring around her tubes and that she thought that the scarring was the result of the appendectomy performed by defendant in 1964. She thought no more of the matter, however, until October 7, 1974, when she read a newspaper article about a lawsuit involving a similar fact situation. On April 14, 1975, plaintiff filed a complaint against defendant alleging malpractice in failing to diagnose appendicitis in timely fashion and in failing to employ proper procedures to diagnose and to treat the subsequent infection. The complaint included a demand for a jury trial.

Defendant filed a motion for accelerated judgment under OCR 1963, 116.1(5), on grounds that plaintiff’s complaint was barred by the statute of limitations, MCL 600.5805; MSA 27A.5805 and MCL 600.5838; MSA 27A.5838, as interpreted in Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973):

"[A]n action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.” Dyke, supra, at 747.

Defendant argued successfully in the trial court and urges on appeal that plaintiff’s deposition testimony establishes that she discovered, or in the exercise of reasonable diligence should have discovered, defendant’s alleged malpractice no later than 1971, when the adhesions were surgically relieved. Plaintiff, on the other hand, maintains that the deposition reveals only that plaintiff knew that the scarring was connected with the appendectomy, not that it was the result of defendant’s wrongful conduct and thus constituted malpractice, and that the question whether plaintiff knew or should have learned of the malpractice in 1971 is one of fact for the jury.

GCR 1963, 116.3 provides that, as to motiolis for accelerated judgment grounded in Rule 116.1(5),

"the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment upon the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits, * * * and shall postpone the hearing if a jury trial has been demanded pursuant to right on or before the day of the hearing.” (Emphasis added.)

Clearly, if the question of when plaintiff discovered or should have discovered the alleged malpractice is a question of fact, the trial court erred in granting accelerated judgment, because plaintiff had previously requested a jury trial. Baker v Detroit, 73 Mich App 67; 250 NW2d 543 (1976), Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976).

A similar issue was presented in the recent case of Leary v Rupp, 89 Mich App 145; 280 NW2d 466 (1979), where the acts which constituted the alleged malpractice (prescribing certain drugs) occurred in 1967, and the harm which resulted (allergic reaction and continuing pain) was known to plaintiff between 1967 and 1972, while the malpractice action was filed in 1974. Defendant in Leary asserted, as does defendant herein, that plaintiff learned of the malpractice when she knew of the act and the resulting harm. This Court, however, found that reasonable minds could differ on the question, and reversed the accelerated judgment for defendant, saying:

"[Knowledge of the act and resulting injury alone may be insufficient to commence the running of the statute of limitations. On the other hand, it is not necessary that the plaintiff recognize that she has suffered an 'invasion of a legal right’. Patterson v Estate of Flick, 69 Mich App 101; 244 NW2d 371 (1976). We conclude that in order to discover 'asserted malpractice’ a person must know of the act or omission itself, i.e., prescribing polycillin, and have good reason to believe the act itself was improper or was done in an improper manner.
"Under certain circumstances mere knowledge of the act will be sufficient because it alone gives good reason to believe it was improper. For example, in Patterson, supra, the defendant severed a femoral nerve during an appendectomy resulting in paralysis.
"In contrast, a person may know of both the act and some resulting pain but not be aware of any wrongdoing by defendant.” 89 Mich App, at 149.

In the case at bar, plaintiff knew of the acts constituting the alleged malpractice in 1964 and knew of the resulting harm no later than 1971. She claims, however, that she did not know that defendant’s acts constituted malpractice until 1974. Plaintiff’s testimony therefore raises a fact question: when plaintiff should have realized that malpractice had been committed. In granting accelerated judgment, the trial court decided the question in favor of defendant. Had there been no demand for a jury trial, the court would have acted properly in deciding the question at the hearing, just as if the case had proceeded to a bench trial. However, because plaintiff timely demanded trial by jury, the court rule requires that the question be decided by the jury at trial rather than by the court at the hearing on the motion.

Accordingly, we reverse the accelerated judgment and remand for trial.

       MCL 600.5838; MSA 27A.5838 was amended effective July 9, 1975, to provide a six-month limitation period for malpractice discovered (or discoverable) more than two years after treatment is discontinued. However, the Dyke v Richard rule is clearly applicable to the case at bar. See Farris v Beecher, 85 Mich App 208; 270 NW2d 658 (1978).

       We note that, if the undisputed facts revealed that the claim was barred by the statute of limitations (i.e., had plaintiff admitted in her deposition that she realized in 1971 that defendant had breached the applicable standard of care), the issue would be a question of law which is within the exclusive province of the court, even where a jury trial is requested.


text:
    PEOPLE v JOHNSON
    Docket No. 78-4453.
    Submitted September 4, 1979, at Detroit.
    Decided October 2, 1979.
    James L. Johnson was convicted of unlawful possession of heroin and sentenced to three years probation, Recorder’s Court of Detroit, Justin C. Ravitz, J. At sentencing he was not orally informed of his right to appeal, although he did sign a written form acknowledging that right. Later, at a probation violation hearing, the trial judge reviewed the record with defendant and counsel and extended his right to appeal an additional 60 days. Defendant appeals contending that resentencing is mandated because he was not orally advised of his appellate right at the time of the original sentencing and because a probation condition—that he cooperate in anti-drug efforts—is without authority of law. Held:

    1. A court rule requires that a defendant, immediately upon Sentencing, be advised of his right to appellate review of his conviction. This notification provision is satisfied where, although no oral instruction was given by the court at the original sentencing, the defendant did sign a written form of acknowledgment of his right to appeal and was orally advised of the right at a subsequent hearing for probation violation.
    2. A condition of probation must be considered lawful where the Court of Appeals is unable to say that cooperating in anti-drug efforts is not rationally tailored to a defendant’s rehabilitation and where this restriction, following a conviction for unlawful possession of heroin, would promote rather than impede defendant’s withdrawal from the drug scene.
    Affirmed.
    1. Criminal Law — Sentencing — Constitutional Law — Right to Appeal — Court Rules.
    The court shall advise a criminal defendant, immediately upon Sentencing, that he is entitled as a matter of constitutional right to appellate review of his conviction (GCR 1963, 785.11).
    References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 161.

       21 Am Jur 2d, Criminal Law § 566.

      2. Criminal Law — Sentencing — Constitutional Law — Right to Appeal — Written Acknowledgment — Oral Advisement.
    A defendant is entitled to knowledge of and access to the constitutional right of appeal; this notification provision is satisfied, although no oral instruction was given by the court at the time of original sentencing, where the defendant signs a written form of acknowledgment of his right to appeal when sentenced and is orally advised of the right at a subsequent hearing for probation violation.
    3. Criminal Law — Probation — Sentencing Judges — Conditions of Probation — Judge’s Discretion — Appeal and Error.
    Sentencing judges have great discretion in designing probation standards; each judge must decide for himself whether there is a rational relationship between the restriction and rehabilitation and the Court of Appeals will not interfere as long as the conditions of probation are lawful.

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

      Terry & Bradñeld, for defendant.
    Before: N. J. Kaufman, P.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

On June 21, 1974, defendant was jury-convicted of unlawful possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a) and subsequently sentenced to three years probation. At the time of sentencing, he was not orally informed of his right to appeal, although he did sign a written form acknowledging that right. Later, at a probation violation hearing, the trial judge reviewed the record with defendant and counsel and extended his right to appeal 60 additional days from September 28, 1978. Defendant promptly filed this appeal.

Defendant contends that resentencing is mandated because he was not orally advised of his appellate rights at the time of the original sentencing. GCR 1963, 785.11, specifically requires such notification immediately following sentencing. It appears that the rule’s underlying rationale is to ensure defendants’ knowledge of and access to the constitutional right of appeal. Although, as defendant rightly asserts, there was no oral instruction at the time of the original sentencing, we find that the written form signed by him then, coupled with the oral advisement on September 28, 1978, fully embodied the spirit of the notification provision.

Defendant also asserts that resentencing is necessary because a probation condition—that he cooperate in anti-drug efforts—is without authority of law. As recently noted by this Court, judges have great discretion in designing probation standards, limited only by the requirement that conditions be lawful. People v Pettit, 88 Mich App 203, 205; 276 NW2d 878 (1979). There is no ultimate catalogue of legal or illegal terms, Detroit v Del Rio, 10 Mich App 617, 620; 157 NW2d 324 (1968); each judge must decide for himself whether there is a rational relationship between the restriction and rehabilitation. Id. at 622-623, People v Higgins, 22 Mich App 479, 480; 177 NW2d 716 (1970).

In the instant case, we are unable to say that the condition of cooperating in anti-drug efforts was not rationally tailored to the defendant’s rehabilitation. Such a course of action would promote defendant’s withdrawal from the drug scene rather than impede it. Therefore, that condition was lawful.

Affirmed.

       Extending the appellate period was permissible in this case because of delayed rulings made by the trial judge on the original conviction as well as on the probation violation of September 28, 1978. Normally, an appeal from a probation violation is limited to matters surrounding that violation. People v Pickett, 391 Mich 305; 215 NW2d 695 (1974). However, since there was no oral notification of defendant’s right to appeal the original conviction, it is permissible to raise issues pertaining to that shortcoming on this probation violation appeal.


text:
    OLEKSY v SISTERS OF MERCY OF LANSING, MICHIGAN
    Docket No. 44455.
    Submitted August 29, 1979, at Lansing.
    Decided October 2, 1979.
    Leave to appeal applied for.
    Stanley P. Oleksy, M.D., and several others brought an action in quo warranto against Sisters of Mercy of Lansing, Michigan and W. A. Foote Memorial Hospital, Inc., seeking to set aside the sale of Mercy Hospital in Jackson by the Sisters of Mercy to W. A. Foote Memorial Hospital. The Jackson Circuit Court, Richard Robinson, J., entered a pre-trial Order limiting the issues at trial to whether the defendants exceeded their corporate powers and whether the defendants violated the antitrust laws. Trial was held on these issues and a judgment was entered for the defendants. The plaintiffs appeal, and the defendants cross-appeal raising various issues challenging the plaintiffs’ ability to maintain the action. Held:

    1. Plaintiff Oleksy did not lose his standing to participate in the action by virtue of his removing his residence from the state after the action was commenced.
    2. In the pleadings of a previous action between these parties it was alleged that the Sisters of Mercy held the property as a charitable trust. That action was concluded by a summary judgment for the defendants. For purposes of the summary judgment the plaintiffs’ allegations were necessarily accepted as true, but the summary judgment was not res judicata as to the issue because the issue was not decided as a substantive matter.
    3. The Sisters of Mercy did not abuse their corporate authority or engage in ultra vires conduct in selling the hospital. No restrictions on the ownership, acquisition or conveyancing of property were placed in the articles of incorporation of the Sisters of Mercy or any of the previous successive owners of the hospital, nor are any such restrictions contained in the corporation laws of the state.

      References for Points in Headnotes

       62 Am Jur 2d, Pretrial Conference § 34.

       59 Am Jur 2d, Parties §§ 26-29.

       73 Am Jur 2d, Summary Judgment §§ 35, 36.

       19 Am Jur 2d, Corporations §§ 963, 995.

       54 Am Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 618, 648-650.
    59 Am Jur 2d, Parties § 30.

       54 Am Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 451-453.

      4. The plaintiffs have standing to assert a violation of the state’s antitrust laws by virtue of a court rule which allows private citizens to act to prosecute antitrust actions where the Attorney General, who has statutory authority to bring such an action, has refused to do so.
    5. The sale of Mercy Hospital did not violate the antitrust laws of Michigan. The sale was not made with the purpose of restricting trade or commerce, the record does not indicate that the sale created a monopoly in hospital care in Jackson County, the business is a highly regulated one, and the evidence does not indicate that the quality of care changed after the sale or that the price of care is significantly different than elsewhere.
    Affirmed, and the cross-appeal is dismissed.
    1. Trial — Pretrial Orders — Course of Litigation.
    A pretrial order which limits the issues to be presented at trial controls the subsequent course of the litigation.
    2. Parties — Standing — Residency.
    A party who commences an action in Michigan while then a resident of Michigan does not lose his standing by subsequently removing his residehce from the state.
    3. Motions — Summary Judgment — Allegations — Res Judicata.
    A plaintiff’s allegations must be accepted as true when ruling upon a defendant’s motion for summary judgment; such a ruling does not decide as a substantive matter that those allegations are ih fact true nor is the ruling res judicata as to those matters.
    4. Corporations — Ultra Vires — Sale of Real Property.
    The sale of a hospital by the corporate owner of the hospital was not an Ultra vires action where neither Michigan’s corporation law nor the articles of incorporation of any of the successive owners of the hospital place any restrictions on the ownership; acquisition or conveyancing of any of the corporation’s real or personal assets.
    5. Quo Warranto — Corporations — Parties — Court Rules.
    An action in quo warranto asserting a violation by a corporation of the state’s antitrust laws may be brought by private citizens to enforce a public interest where the Attorney General has refused to bring such an action (GCR 1963, 715.2).
    6. Monopolies — Antitrust Laws — Detriment to Public — Factors Considered.
    The fundamental test of whether or not a monopoly violates the antitrust law is whether there is a detriment to the public; a contract of sale which allegedly creates a restraint of trade should be considered by taking into account such factors as the circumstances surrounding the contract, the relationship of the parties and their relationship to the subject matter dealt with, the subject matter’s relation to the general public, the facts peculiar to the business, its condition before and after the restraint was imposed, and the purpose or end sought to be attained.

      Alvin G. Dahlem and Phillip H. Berkemeier, for plaintiffs.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by John H. Schomer, Jack C. Radcliffe, Jr., and James B. Falahee, Jr.), for W. A. Foote Memorial Hospital, Inc.

      Colombo & Colombo (by Louis J. Colombo, Jr., and Lawrence F. Raniszeski), for Sisters of Mercy of Lansing, Michigan.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

The plaintiffs in this cause appeal from an order of the Jackson County Circuit Court denying their action in quo warranto seeking to set aside the sale of Mercy Hospital in Jackson, Michigan, by defendant Sisters of Mercy of Lansing, Michigan, to defendant W. A. Foote Memorial Hospital.

After a pretrial conference, the trial court entered a pretrial order limiting the issues to be presented at trial to: whether defendants have exceeded their corporate powers; and, whether defendants have violated the anti-trust laws. It is fundamental that this pre-trial order controls the subsequent course of the litigation. See GCR 1963, 301.3 and Bednarsh v Winshall, 374 Mich 667; 133 NW2d 202 (1965).

After an extensive trial upon these questions, the trial court set forth its conclusions in a well-written, well-reasoned opinion. We recognize the trial court’s unique position, allowing it to survey the briefs and facts presented first-hand, and observe the witnesses appearing before it. Moreover, we find ourselves in complete accord with the trial court’s conclusions. Therefore, as we do not feel that we can improve upon the trial court’s opinion, we adopt it as our own and set it forth in full herein. Our adoption of this opinion necessarily renders moot the various procedural challenges to plaintiffs’ maintenance of this action that defendants have raised in their cross-appeal, to-wit: questions of standing, estoppel, laches, and res judicata.

As the trial court stated:

"This is an action in the nature of quo warranto seeking to set aside the August 29, 1975, sale of Mercy Hospital in Jackson, Michigan, by defendants, Sisters of Mercy of Lansing, Michigan (hereinafter called 'Mercy’), to defendant, W. A. Foote Memorial Hospital, Inc. (hereinafter called 'Foote’). At that time Foote operated a private non-profit hospital in Jackson and the Sisters of Mercy operated Mercy Hospital also in Jackson. Prior to the sale of Mercy Hospital to Foote, plaintiffs had unsuccessfully attempted to purchase Mercy Hospital. The plaintiff, Committee to Preserve Mercy Hospital, is a non-profit corporation organized for the purpose of taking over ownership and operation of Mercy Hospital.
"In 1975, the Sisters of Mercy entered into an agreement to sell Mercy Hospital to Foote, such agreement being consummated on August 29, 1975. On July 31, 1975, while negotiations between the Sisters of Mercy and Foote were still pending, the individual plaintiffs filed a complaint against the Sisters of Mercy (Jackson County No. 75-004921-CZ) seeking a preliminary injunction restraining the Sisters of Mercy from conveying Mercy Hospital; an injunction restraining the Sisters of Mercy from using the proceeds from such sale in any community other than Jackson; and an order transferring Mercy Hospital to a then unspecified group. This complaint (hereinafter called 'Oleksy D alleged that the proposed sale violated a charitable trust created by the contributions of plaintiff and others.
"In response to this complaint, the Sisters of Mercy filed a motion for summary judgment, which was heard by Judge Russell Noble on August 5, 1975, together with a motion to intervene filed by Bruce A. Barton, then prosecuting attorney for Jackson County. On August 11, 1975, Barton filed An amended motion to intervene which attached a proposed complaint of intervener. In addition to adopting all the allegations of the Oleksy I complaint, Barton’s complaiht set forth the basis for an action in the nature of Quo Warranto. He further alleged that the Sisters of Mercy lacked corporate authority to convey the hospital facilities to Foote.
"On August 15, 1975, Judge Noble dismissed Oleksy I and denied Barton’s motion to intervene, holding that the Attorney General was the proper party to maintain the actions since the complaints sought enforce the terms of a charitable trust under MCLA 554.351 et seq.
"Motions for rehearing were filed by the parties and denied and plaintiffs appealed to the Michigan Court of Appeals. Barton took no appeal. However, on August 19, 1975, Barton filed a complaint in the nature of Quo Warranto (Jackson County Circuit Court No. 75-005068-CZ) naming only the Sisters of Mercy as a defendant, this complaint containing essentially the same allegations as were set forth in Oleksy I.
"On September 2, 1975, the Sisters of Mercy filed a motion for summary judgment and thereafter Barton filed an amended complaint in the nature of quo warranto adding Foote as a defendant and further alleging that the sale constituted an abuse and misuse of corporate authority between Sisters of Mercy arid Foote, and further asserting that the sale constituted a violation of the Michigan Anti-trust Statutes.
"Defendants’ motion for summary judgment was granted as to all of plaintiffs’ allegations and Barton thereupon appealed to the Michigan Court of Appeals. The two appeals then pending before the Court of Appeals were consolidated for purpose of heáring and disposition, and on March 9, 1977, the Court of Appeals issued an opinion affirming the judgments of dismissal (Oleksy, et al. v Sisters of Mercy of Lansing, Michigan, et al., 74 Mich App 374 [253 NW2d 772 (1977)]). No appeal was taken by either of the plaintiffs or Barton to the Supreme Court.
"Approximately 10 months later plaintiffs requested and this court granted leave to file a complaint in the nature of quo warranto. The defendants filed motions to set aside the order granting leave to file said action of quo warranto and alternatively for accelerated judgment and summary judgment of dismissal, such motions being denied by this court on April 26, 1978. Defendants then filed an application for leave to appeal and designation of appeal as emergency appeal arid a motion for immediate consideration thereof With the Court of Appeals. On June 7, 1978, the Court of Appeals [Docket No. 78-1515] denied defendants’ application for leave to ajppéal for failure to persuade the Court for the need for immediate appellate review;. The defendants then filed an application for leave to take an emergency appeal to the Michigan Supreme Court, which application was denied [403 Mich 827 (1978)].
"On October 12, 1978, pursuant to a stipulation of the parties, this court entered an order dismissing all allegations of the complaint respecting the existence and representation of a class of persons in the prosecution of this action.
"Other than the two central issries of ultra vires conduct and violation of the anti-trust laws, which will be addressed last, the pleadings and proofs raised several lesser issues which can be disposed of with little discussion:
"I
"Should plaintiff, Stanley P. Oleksy, be dismissed AS A PARTY, BEING NO LONGER A RESIDENT OF MICHIGAN?
"The answer is no. Defendants have been unable to direct our attention to any authority in support of their claim that one who commences an action in Michigan while then a resident of Michigan, loses his standing by subsequently removing his residence from the state. It is this writer’s opinion that the two main issues in this case (ultra vires conduct and anti-trust violations) are not issues which turn on residency.
"II
"Is plaintiffs’ claim that the Sisters of Mercy HELD AS TRUSTEES OF A CHARITABLE TRUST RES JUDICATA? .
"The answer is no. As pointed out by defendants, their motions for summary judgment, pursuant to GCR 1963, 117.2(1), must accept as true plaintiffs’ allegations that Mercy Hospital was held as a charitable trust, and do not constitute an admission by them that such a charitable trust existed. In like manner, the opinion in Oleksy v Sisters of Mercy, 74 Mich App 374 (1977), in ruling on defendants’ motion for summary judgment, of necessity, had to accept as true plaintiffs’ allegation that the hospital held in charitable trust. It did not decide, as a substantive matter, that such was the case.
"HI
"The religious issue.
"Defendants have renewed their challenge to the court’s jurisdiction over this dispute on grounds that it is a religious dispute under the First and Fourteenth Amendments to the United States Constitution. In determining that this court does have jurisdiction, I find nothing in the trial record which would cause a change in this court’s opinion dated April 18, 1978.
"IV
"Did defendants, Sisters of Mercy, abuse their CORPORATE AUTHORITY OR ENGAGE IN ULTRA VIRES CONDUCT in selling Mercy Hospital to Foote?
"The answer is no. Plaintiffs presented ten witnesses (counsel stipulated that an additional twenty witnesses would have if sworn and questioned, testified to the same effect) who testified that they made contributions to Mercy Hospital during the hospital fund drive held in the mid-1950’s. There was evidence that the solicitation of contributions by Mercy stressed Mercy’s desire to continue to provide hospital facilities for the Jackson area. Nine of the ten witnesses stated that they would not have contributed had they known that twenty years later Mercy would sell the hospital and take the proceeds out of the Jackson community (although no clear proof was offered on this subject, defendants did not seriously oppose plaintiffs’ claim that the sale proceeds were to be used by Mercy elsewhere than in Jackson).
"The foregoing testimony is supportive of plaintiffs’ claim that defendants breached the terms of a charitable trust. However, assuming a charitable trust had been created, the issue of whether its terms were violated by defendants was not before the court, since the Michigan Court of Appeals in Oleksy I has determined that prosecution of such violations has, by statute, been assigned exclusively to the Attorney General.
"It may well be that had Michigan’s Attorney General elected, as did California’s Attorney General, to act to prohibit this sale as a violation of the terms of a charitable trust, a Michigan court would have found such violation, based on Mercy’s fund solicitations, as did the California court in Queen of Angels Hospital v Younger, [66 Cal App 3d 359] 136 Cal Reptr 36 (1977). Our Attorney General did not so elect.
"Michigan’s General Corporation Act provides:
" 'Section 125. Any non-profit corporation, the objects of which require the transaction of business * * * the care and custody of property, * * * shall have the right and power to acquire, hold, protect and convey such properties as are naturally or properly within the scope of its Articles * * *’ MCLA 450.125 [MSA 21.126],
"Our Business Corporation Act provides:
" 'Section 261. A corporation, subject to any limitation provided in this act, in any other statute of this state or in its Articles of Incorporation, shall have power in furtherance of its corporate purposes to:
(f) purchase, receive, take by grant, gift, devise, bequest or otherwise, lease or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and. with, real or personal property, or an interest therein, wherever situated;
(g) sell, convey, lease, exchange, transfer or otherwise dispose of * * * any of its property, or an interest therein, wherever situated.’ MCLA 450.1261 [MSA 21.200(261)].
"Title to the real estate on which Mercy Hospital is situated was acquired in 1915 by deed (Def Mercy Ex 4) to Sisters of Mercy, Diocese of Detroit, a predecessor to the present defendant, Mercy. This deed contained no restrictions as to the use of the lands or as to reconveyance. The Articles of Association of the grantee (Def Mercy Ex 21b) set forth as the purpose of the corporation 'the diffusing of moral and religious knowledge’.
"In 1937, the Sisters of Mercy, Diocese of Detroit, conveyed the hospital lands by deed (Def Mercy Ex 6) to its successor, Mercy Hospital of the City of Jackson, a non-profit corporation, organized in 19Í5, whose Articles of Association (Def Mercy Ex 22a) stated its purpose to be:
" 'Article II * * * To conduct a hospital and furnish care and medical attendance to sick and disabled persons’.

This deed (Def Mercy Ex 6) likewise contained no restrictions as to use or as to reconveyance.

"In 1946, Mercy Hospital of the City of Jackson conveyed the hospital lands by deed (Def Mercy Ex 8) to its successor, The Sisters of Mercy, Lansing, Michigan. This deed, like the others, contained no restrictions as to use or as to reconveyance. The Articles of Incorporation of this noft-profit corporation (Def Mercy Ex 25) set forth its purpose as:
" 'Article II. To establish, maintain and conduct charitable institutions in the State of Michigan for the care and relief of indigent and other sick, infirm, aged or orphaned persons; * * * to perform corporal * * * works of mercy and to hold, own, manage and control real and personal properties and funds to be used for the * * * purposes aforesaid’.
"In 1976, subsequent to the sale which is the subject of this lawsuit, The Sisters of Mercy, Lansing, Michigan merged with the following:

The Sisters of Mercy of Hammond, Indiana

The Sisters of Mercy of Grand Rapids

St. Joseph’s Mercy Hospital of Dubuque (Iowa)

Sisters of Mercy Health Corporation

St. Joseph’s Mercy Hospital of Detroit to form the present ownership of the hospital lands in question, Sisters of Mercy Health Corporation. The plan of merger (Def Mercy Ex 25) adopted as the purposes of the Health Corporation the purposes of its constituent predecessors.

"The proofs indicate that the original corporation, Sisters of Mercy, Diocese of Detroit, owned and operated various hospitals throughout Michigan, one of which is the hospital owned and operated by defendant, Mercy, in Jackson.
"Neither Michigan’s corporation laws nor the Articles of Incorporation of the successive owners of the hospital at Jackson place any restrictions on the ownership, acquisition or conveyancing of real or personal assets. As pointed out by defendant, Mercy, in its brief, the burden rests on the one charging ultra vires conduct to sustain the charge. American Employers’ Insurance Company v H G Christman & Bros Co, 284 Mich 36, 43 [278 NW 750 (1938)]. This plaintiffs have not done.
"Plaintiffs apparently rely on Queen of Angels Hospital v Younger, supra, to support their claim that a violation of the terms of a charitable trust can also be an ultra vires act. This writer does not quarrel with such a contention, but merely points out, as was pointed out by the California court, that the power given to the Angels of Mercy by its Articles of Incorporation 'to establish, own, maintain and operate a hospital in the City of Los Angeles’ did not include the power to abandon its hospital in favor of out-patient clinics. No comparable restriction on the instant conveyance is contained in Mercy’s Articles of Incorporation.
"V
"DO PLAINTIFFS HAVE STANDING TO ASSERT A VIOLATION of Michigan’s anti-trust laws?
"The answer is yes. The persons who are entitled to seek relief under Michigan’s anti-trust law are described in two different sections of the law:
"MCLA 445.702 [MSA 28.32] directs the Attorney General or the Prosecuting Attorney to protect the public interest:
" 'For a violation of any of the provisions of this act by any corporation or association mentioned herein, it shall be the duty of the attorney general or the prosecuting attorney of the proper county, to institute proper suits or quo warranto proceedings * * *’
"MCLA 445.711 [MSA 28.38] permits the enforcement of private rights:
" 'In addition to the criminal and civil penalties provided, any person who shall be injured in his business or property by any other person or corporation or association or partnership, by reason of anything forbidden or declared to be unlawful by this act, may sue therefor * * * and to recover two-fold the damages by him sustained * * *’
"Defendants are correct in asserting that plaintiffs have no standing to sue to enforce a private right under the act because they are not engaged in commerce and they have not shown any injury to their business or property. (See MCLA 445.711 above.)
"GCR 1963, 715.2 provides:
" '(1) Actions by Attorney General. Actions for quo warranto shall be brought by the Attorney General when the actions are against:

(a) persons specified in sub-rule 715.1(1);

(b) persons who usurp, intrude into, or wrongfully hold or exercise any office in any public corporation created by the authority of this state;

(c) any association, or number of persons, acting as a corporation within this state without being legally incorporated;

(d) a corporation that offends against any of the provisions of the act or acts creating, offering, or renewing the corporation;

(e) a corporation that violates the provisions of any law by which the corporation shall have forfeited its charter by misuser;

(f) a corporation that has forfeited its privileges and franchises by non-user;

(g) a corporation that has done or omitted any acts which amount to a surrender of its corporate rights, privileges and franchises; or has exercised any franchise or privilege not conferred upon it by law.’

"Our Court of Appeals in Oleksy I, supra, in holding that the attorney general has authority to prosecute anti-trust actions under the above rule, not only gave the rule precedence over conflicting MCLA 445.702, but found his anti-trust power within subsections (c)-(g) above—areas where, under subsections (3) and (4) of the Rule, private citizens are given power to act if the attorney general refuses to. Plaintiff's are correct when they say that they have stepped into the attorney general’s shoes to enforce a public interest.
"VI
"Did the sale of Mercy Hospital to Foote violate Michigan’s anti-trust law?
"The answer is no. Michigan’s Anti-Trust Law, MCLA 445.701 [MSA 28.31] et seq. provides:
" '445.701 Sec. 1. That a trust is a combination of capital, skill or arts by 2 or more persons, firms, partnerships, corporations or associations of persons, or of any 2 or more of them, for either, any or all of the following purposes:

1. To carry out restrictions in trade or commerce.

5. * * * Every such trust as is defined herein is declared to be unlawful * * *’

"As stated in Barrows v Grand Rapids Real Estate Board, 51 Mich App 75 [214 NW2d 532] (1974):
" 'The Michigan Act is patterned after the Sherman Act adopted in 1890. Although Michigan courts are not required to follow the interpretations of the Sherman Act by the federal courts, it is in the federal law where we find most discussion relative to the restraint of trade provisions’.
"58 CJS 989-90 has this to say about the factors to be considered in determining whether one is looking at a monopoly which violates or does not violate the Sherman Act (so far as those factors are applicable to this case):
'"* * * in order to constitute a reasonable restraint of trade, competitors must not be oppressed or coerced; prices must not be arbitrarily fixed or maintained; the quality must not be impaired so that the old price buys a worse article * * * The fundamental test is a detriment to the public. All the circumstances surrounding the. contract should be taken into consideration. The court should consider the relationship of the parties and their relation with the subject matter dealt with, and its relation with the general public, the facts peculiar to the business, its condition before and after the restraint was imposed, the purpose or end sought to be attained.’
"We shall attempt an analysis of the facts in this case in light of these factors, not necessarily in the order mentioned above.
"1. All the circumstances surrounding the contract and the relationship of the parties. Mercy Hospital has served the City of Jackson and its environs since 1915. In the late 1960’s the sisters who operated the hospital were confronted with two problems, (i) they were unable to attract nuns in sufficient numbers to staff the hospital, (ii) in order to meet state standards, they would have to spend several millions of dollars in renovations. This would require them to assume a debt which they felt unable to meet. In 1973, they publicly announced their decision to withdraw from operation of the hospital, and invited the citizens of the area to assume ownership and operation of the hospital. For 15 months, the sisters engaged in negotiations with a group, composed in part of these plaintiffs, directed to that end. When these negotiations collapsed, the contract of sale which is before us was entered into between Mercy and Foote.
"This situation contains some of the element of 'economic necessity’ found by our Supreme Court in Attorney General, ex rel. State Banking Commissioner v Michigan National Bank; Grand Ledge State Bank v State Banking Commissioner, 377 Mich 481 [141 NW2d 73] (1966), as a justification for permitting the reduction of banking services in the City of Grand Ledge from two to one bank. Another aspect of the Grand Ledge merger situation which the court looked upon with favor was the 'open and competitive bidding’ by two outside banks prior to the merger. Although our record does not reveal competitive bidding between Foote and any other bidder, it was only after 15 months of negotiations between Mercy and other interested parties failed that Foote entered the picture. In the absence of evidence to the contrary, Foote’s offer, made only after another offer had been rejected, points to a purpose other than one to restrict trade or commerce. Surely lacking here is the picture of 'high finance and less lofty subterfuge’ which the court found so repugnant in Peoples Savings Bank v Stoddard, 359 Mich 297 [102 NW2d 777] (1960).
"2. The parties relation with the subject matter dealt with and its relation to the general public. Both Mercy and Foote and their predecessors, have been in the health care business for many years, and it is probably safe to say that between them they have provided most of the health care for the residents of the City of Jackson and the immediately surrounding area. Nothing in the record indicates that either party has offered any specialized hospital care which could characterize them as other than general hospitals. The single difference between them may be that Mercy espoused a pro-life philosophy and Foote did not.
"One witness testified that the 'primary service area’ for both Mercy and Foote was Jackson County. On the other hand, the testimony of other witnesses indicated that a substantial number of Jackson County residents use hospitals in adjoining counties. It does not appear from this record that Foote and Mercy, before their contract, enjoyed a hospital care monopoly in Jackson County, or that Foote enjoys one since their contract, either geographically or as to types of service offered. Additionally, as to the service aspect of the claimed monopoly, the record indicates that while Foote is now the only allopathic hospital left in Jackson County, osteopathic doctors serve on its staff as well as on the staff of the county’s only osteopathic hospital. This issue is probably made moot however by the evidence to the effect that the distinctions between allopathy and osteopathy are rapidly disappearing if not already extinct.
"3. The facts peculiar to the business. The hospital care business in Michigan is a highly regulated industry. Cost containment restrictions are imposed upon all hospitals not only by state but by federal agencies. In addition, cost controls are imposed indirectly by the three major third party payors (Blue Cross/Blue Shield, Medicare and Medicaid) as a result of the restrictions which they attach to their hospital reimbursement. Although, none of the agencies can absolutely control a hospital’s costs or charges, it is safe to say that both of these items are highly controlled. Likewise, through their sanctions, these agencies are able to exercise a measure of control over the quality of physical plant, equipment and care.
"4. The condition of the industry before and Sifter the contract. This is directed to the quality of care and the level of patient care charges, before and after the contract of merger. Plaintiffs offered no proofs as to the quality of care at either Mercy or Foote, either before or after the merger, so one must assume that it is at least no worse now than it was before.
"Plaintiffs’ witness, Furlong and Denton, testified that the situation since the merger places it within the power of Foote to control prices without limitations. This flies in the face of existing facts: a plaintiffs’ witness testified that the cost of a bed in the intensive care unit had gone from $111.00 per day at Mercy in 1974 to $269.00 per day at Foote in 1978. No information was supplied concerning what portion of the increase resulted from inflation. His testimony that the highest cost for intensive care unit care elsewhere in the state in 1978 was $190.00 was contradicted by testimony of defendant’s witness who testified that hospitals comparable to Foote and with comparable ICU charged between $200.00 and $300.00 per day. Defendant’s witness further testified that patient per day cost at Foote for the 12 month period ending March 31, 1978, was $167.00, and that the average for the twenty-six other hospitals within the same category for the same period was $190.00.
"Summing up, I cannot find a monopoly in this record. And if one does exist, I find no intent to restrict trade thereby, nor any such restriction in fact.
"In view of the rulings herein on the issues of ultra vires conduct and violation of the anti-trust laws, it is not necessary to discuss the issues of estoppel and laches raised by defendants.
"Judgment may enter for defendants in accordance with this Opinion. No costs, a public question being involved.
"Dated February 7, 1979.
/s/ Richard Robinson
Circuit Judge.”

In recognizing the wisdom of this trial court opinion, we are not unmindful of the factors that prompted plaintiffs’ actions. It is difficult to accept change, especially where, as here, a hospital facility, owned and operated by the Sisters of Mercy for so many years, is sold. Many emotions are aroused when such a sudden transfer occurs. Historical, ethnic, and sentimental values all come into play with the emphasis placed on preservation.

On the other hand, however, neighborhoods and businesses, including non-profit organizations, as here, do change with the times. This might be for any number of reasons. In the instant case, it was mainly due to financial pressures. Realistically, when all the legal arguments are set aside, what we have here is a sale from a willing seller to a willing buyer. Our sympathies go out to the plaintiffs who might feel abandoned by this transaction. Legally, however, we deem it to be a proper one.

Affirmed; defendants’ cross-appeal is dismissed. No costs, a quasi-public question being involved.


author: Per Curiam. N. J. Kaufman, J.

text:
    SCHOOL DISTRICT OF THE CITY OF EAST GRAND RAPIDS v KENT COUNTY TAX ALLOCATION BOARD
    Docket No. 45753.
    Submitted August 29, 1979, at Lansing.
    Decided October 2, 1979.
    Leave to appeal applied for.
    The School District of the City of East Grand Rapids, Kent County, filed a petition for a writ of mandamus in Kent Circuit Court requesting the court to order the Kent County Tax Allocation Board to make its findings and determinations regarding the maximum additional tax rate according to the statute governing tax rates in certain municipal school districts. George R. Cook, J., granted plaintiff’s request. The court’s mandamus ruling required the defendant board to receive and consider in good faith plaintiff’s request for variable millage, to make findings and determinations regarding maximum additional tax and to enter its order accordingly. Defendant appeals asserting that the tax statute is unconstitutional in that it violates the Uniformity Clause of the Michigan Constitution of 1963. Held:

    The Supreme Court upheld this tax statute under the Michigan Constitution of 1908 and the Uniformity Clauses of the 1908 and 1963 Constitutions are almost identical. The Court of Appeals is bound by Supreme Court precedent. The tax statute is constitutional and does not violate the Uniformity Clause.
    Affirmed.
    N. J. Kaufman, J., concurs separately. He would hold that in any matter dealing with taxes the Court of Appeals is bound by Supreme Court decisions.
    Opinion of the Court
    1. Taxation — Constitutional Law — School Districts — Uniformity of Taxation — Established Precedent — Statutes.
    The Supreme Court has ruled that the statute governing tax rates in certain municipal school districts does not violate the uniformity of taxation clause and is therefore constitutional; the Court of Appeals is bound by this precedent (Const 1963, art 9, § 3; Const 1908, art 10, § 3, MCL 211.252; MSA 15.512).

      References for Points in Headnotes

       68 Am Jur 2d, Schools § 79.

       20 Am Jur 2d, Courts § 201.

      Concurrence in Result by N. J. Kaufman, J.
    2. Taxation — Court of Appeals — Supreme Court Decisions — Established Precedent.

      The Court of Appeals is bound by Supreme Court decisions in any matter dealing with taxes.

      Varnum, Riddering, Wierengo & Christenson (by Eugene Alkema and Randall W. Kraker), for plaintiff.

      Dickinson, Wright, McKean, Cudlip & Moon (by John R. Axe, James A. Samborn and Mark A. Kellman), for defendant.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

The defendant refused to comply with MCL 211.252; MSA 15.512, asserting that the statute was unconstitutional in that the statute violated the Uniformity Clause of art 9, § 3 of the Michigan Constitution of 1963.

The statute reads as follows:

"Sec. 2. Tax rates in certain municipal school districts. In the case of any school district lying partly within and partly without the limits of a municipal corporation the following procedure shall be observed: The commission shall find, in accordance with the provisions of the property tax limitation act the maximum tax rate which may be levied against all of the property lying within such school district. Such tax rate is hereinafter referred to as the 'regular tax rate’. Thereafter the commission shall find the maximum additional tax rate which fairly and reasonably is equivalent to and represents the additional annual value to the property lying within the boundaries of the municipal corporation resulting from the greater proximity of the school buildings and facilities to such property and the greater accessibility thereof, and not already reflected in assessed valuations. In no case shall the additional tax rate be such as to increase beyond the net limitation tax rate the total of all taxes levied against property within the limits of such municipal corporation, exclusive of rates levied for the payment of interest and principal on obligations incurred prior to December 8, 1932, and rates levied pursuant to the provisions of the charter of such municipal corporation. The findings and order of the commission made and entered concerning the maximum tax rates of such school district shall specify both the maximum regular tax rate and the maximum additional tax rate computed as aforesaid.

The trial court upheld the constitutionality of the statute and issued a writ of mandamus.

In Thoman v City of Lansing, 315 Mich 566; 24 NW2d 213 (1946), the Supreme Court upheld this statute under the Michigan Constitution of 1908.

The Uniformity Clauses of the two constitutions, art 10, § 3 of the 1908 Constitution and art 9, § 3 of the 1963 Constitution, are almost identical.

In our opinion we are bound by the Thoman case, supra.

Affirmed. No costs, a public question.

N. J. Kaufman, J.

(concurring). I concur separately as I agree that in any matter dealing with taxes we are bound by Supreme Court decisions.