author: V. J. Brennan, J.

text:
    EWING v ALEXANDER
    Docket No. 78-3902.
    Submitted June 4, 1979, at Lansing.
    Decided October 16, 1979.
    Dora M. Ewing was a patient of Donald K. Alexander, M.D., and was committed to the care of St. Joseph Mercy Hospital. Sedative drugs were administered to her and it is alleged that she was unable to obtain response to her assistance signal, and due to her sedated state, she fell and broke her hip while attempting to travel unassisted from her bed to the bathroom. Dora and Gordon Ewing, Dora’s husband, brought a malpractice action against Dr. Alexander and the hospital. Plaintiffs alleged that Dora was treated with medications which affected her equilibrium, was allowed to walk unattended in the hospital causing the fall which resulted in a broken hip and that the failure to supervise her walking while she was under medication violated the standard of care required of the defendants. After a lengthy delay plaintiffs listed Dr. Gerald Groat as their only expert witness. Dr. Groat was deposed and, based on his deposition, Dr. Alexander filed a motion to dismiss for failure to make discovery since Dr. Groat was unable to state that Dr. Alexander was guilty of malpractice. The hospital filed a similar motion. At the hearing on these motions the trial court did not treat the motions as a failure to make discovery but as a failure to provide any expert witness to testify to the medical malpractice. Defendants’ motions were denied with the court allowing the defendants an opportunity to posture their arguments in the appropriate summary judgment form. At this point in the hearing, plaintiffs’ attorney suggested that the court and parties assume that the appropriate motions had been filed which would allow the court to rule immediately. Washtenaw Circuit Court, Ross W. Campbell, J., then granted defendants’ motions for summary judgment on the ground that Dr. Groat’s depositional testimony was insufficient to support the malpractice claim. Plaintiffs appeal. The questions presented are whether summary judgment was proper and did Dr. Groat’s depositional testimony support plaintiffs’ malpractice claim. Held:

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Summary Judgment § 16.
    [2, 7] 73 Am Jur 2d, Summary Judgment § 27.
    [3] 73 Am Jur 2d, Summary Judgment § 22.
    [4] 73 Am Jur 2d, Summary Judgment § 35.
    [5] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 198 et seq.

    [6] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 202.
    [7] 61 Am Jur 2d, Physicians and Surgeons § 213.

      1. The court rules provide that motions for summary judgment must be supported by affidavits. No affidavits were filed by Dr. Alexander or the hospital for purposes of their motions to dismiss. This failure would be sufficient to set aside an entry of summary judgment in most cases. However, it is possible to waive this affidavit requirement and when plaintiffs’ attorney suggested that the court and parties assume that the appropriate motions (summary judgment) had been filed, he, as the nonmoving party, affirmatively waived the affidavit requirement and summary judgment could properly be granted by the trial court.
    2. The reason Dr. Groat could not state flatly that defendants were negligent was that he had no personal knowledge as to whether Dora Ewing had been in fact allowed to walk unattended or did so against defendants’ orders. His testimony did point out, however, that he believed it was negligent to allow a patient receiving Dora’s medication to ambulate without assistance, that he had information the patient was encouraged to ambulate independently as much as possible, that in his opinion Dora should have been advised not to walk independently and depending on whether Dora was so warned there could be malpractice either concerning the nursing care or the care by the physician. This testimony could support a claim for malpractice and raise a fact question as to whether Dr. Alexander or the hospital acted in a manner which violated applicable standards of conduct and whether these acts or omissions caused Dora Ewing’s injury.
    Reversed and remanded.
    1. Judgment — Summary Judgment — Motions — Supporting Affidavits — Appeal and Error — Court Rules.
    The court rules require that a motion for summary judgment on the ground that there is no genuine issue as to any material fact "shall be supported by affidavits” and the Court of Appeals will set aside an entry of summary judgment where affidavits were not filed (GCR 1963, 117.2[3], 117.3).

      2. Judgment — Summary Judgment — Motions — Supporting .Affidavits — Waiver by Nonmoving Party — Court Rules.
    The court rule requirement that motions for summary judgments "shall be supported by affidavits” may be waived by the non-moving party (GCR 1963, 117.3).
    3. Judgment — Summary Judgment — Motions — Material Facts — Essential Proofs.
    A party seeking summary judgment must show that there can be no dispute at trial over a fact that is material to the claim or defense; if a motion for summary judgment asserts a hiatus in essential proofs, the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.
    4. Judgment — Summary Judgment — Torts — Motions — Underlying Facts — Inferences.
    A motion for summary judgment in a tort action requires that the movant must present detailed, admissible factual allegations making out such a clear case as to leave no doubt as to his right to judgment and all possible inferences to be drawn from the underlying facts presented are made to the benefit of the opponent of the motion.
    5. Negligence — Medical Malpractice — Evidence — Standard of Conduct — Acts or Omissions.
    A plaintiff must show, in a medical malpractice case, that the doctor or hospital defendant acted in a manner which violated applicable standards of conduct and that the act or omission cause injury.
    6. Negligence — Medical Malpractice — Evidence — Expert Witnesses — Proof of Malpractice.
    Generally, a plaintiff may not ask a jury to find medical malpractice without presenting expert testimony to prove its existence.
    7. Witnesses — Expert Witnesses — Medical Malpractice — Summary Judgment — Evidence — Standard of Care — Compliance.
    A hearing on a motion for summary judgment is not a trial on the merits and at such a hearing it is sufficient to show that an expert witness, in a medical malpractice case, gave his opinion in his deposition of the requisite standard of care and that certain facts proposed to him do or do not indicate compliance with that standard.

      Craig, Fried & Heidt and Drillock, Atkins, Schrope & Marcus, for plaintiffs.

      Franklin, Petrulis & Lichty (by James T. Mellon), for St. Joseph Mercy Hospital.

      Bonisteel, Bailey & Sikorski, for Donald K. Alexander, M.D.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   V. J. Brennan, J.

We are called upon to review the lower court’s entry of summary judgment in favor of defendants Donald K. Alexander, M.D., and St. Joseph Mercy Hospital in the medical malpractice case at bar.

Plaintiffs, Gordon Ewing and Dora M. Ewing, brought this action alleging that on December 2, 1972, plaintiff Dora Ewing was a patient of defendant Dr. Alexander and was committed to the care of defendant St. Joseph Mercy Hospital. Pursuant to an order from the defendant physician or member of the staff of the defendant hospital, sedative drugs were administered to her. It is then claimed that plaintiff Dora Ewing, being unable to obtain a response to her assistance signal, attempted to walk from her bed to the bathroom, and due to her sedated state, she fell and broke her hip. Plaintiffs further allege that defendants were negligent in failing to warn Mrs. Ewing not to walk unattended and in failing to assist her when she needed to walk. The complaint also set forth that her injury was aggravated by rough and improper treatment following her fall. Plaintiff Gordon Ewing joined the action with a claim for loss of consortium.

The case proceeded to the discovery stage with defendants filing interrogatories requesting plaintiffs to identify the medical expert witnesses who they believed would testify at trial. The answers filed by plaintiffs stated that they had not as yet determined the identity of their experts but would supply the names upon determination. Some 27 months elapsed with plaintiffs making no further effort in this regard. Whereupon, the lower court ordered plaintiffs to supply the list of medical experts. The plaintiff then filed a list which named Dr. Gerald Groat as the only expert witness.

Defendants deposed Dr. Groat with plaintiffs’ attorneys present at the deposition. Based on the information disclosed by Dr. Groat at this deposition, defendant Alexander brought a motion to dismiss for failure to make discovery. There defendant claimed that since Dr. Groat was unable to state that defendant was guilty of malpractice, plaintiffs failed to comply with the court’s order to disclose any expert witnesses who would testify. Defendant hospital brought a similar motion labeled "motion to dismiss” based on the same grounds.

The lower court was somewhat confused as to the nature of these motions and understood them to be motions for summary judgment based on the failure to provide any expert witness to testify as to the medical malpractice. The plaintiffs’ attorney then pointed out that these motions were based on failure to make discovery and the following colloquy took place between the court and defense counsel:

"THE COURT: Are you pressing a motion for failure to grant discovery? They have given discovery.
"MR. PALMIERE: Your Honor, this case arises in an unusual posture, as they do when they have been in court four years—
"THE COURT: I am going to deny your motion to dismiss on the grounds of failure to grant discovery unless you can tell me wherein he has not given discovery.
"MR. PALMIERE: Your Honor, we asked, and Judge Conlin required, the Plaintiff not simply to name doctors, but to name doctors who will testify—
"THE COURT: He has named his doctors.
"MR. PALMIERE: But they will not testify—
"THE COURT: I will not transmute that order for discovery into a motion for summary judgment. I will allow you to file a motion for summary judgment—
"MR. PALMIERE: Your Honor—
"THE COURT: —alleging that the medical testimony that he has presented does not state a—how would I put it—he has not stated a cause for action, and I think I can take that deposition into consideration, and I can, under General Court Rule 116 or 117, and I can consider that he has no other witnesses on that point, because he has granted discovery and he says he has granted complete discovery.”

At this point the defendants’ motions were properly denied with the lower court giving the parties the opportunity to posture their arguments in the appropriate summary judgment forum. However, plaintiffs’ attorney then suggested that the court and the parties "assume” that the appropriate motions had been filed allowing the court to rule immediately. The lower court accepted the suggestion and ruled that Dr. Groat’s depositional testimony was insufficient to support the malpractice claim, and the summary judgment was granted.

Based upon our review of Dr. Groat’s deposition we reverse and remand.

Initially we point out certain procedural errors and misapprehensions that occurred below in an effort to clarify the still confused summary judgment procedure. Plaintiffs’ attorney devoted much of his argument below and much of his brief on appeal to the fact that he asked no questions at Dr. Groat’s deposition since he had no duty to establish a prima facie case at that stage of the proceeding. This position is correct. However, this tenet does not operate to relieve a party from rectifying a gap in essential proof discovered before trial. For instance in the present case if Dr. Groat had opined that under the various hypothetical presented to him there was no medical malpractice committed, then the plaintiffs would be bound to find another expert who disagreed with Dr. Groat or face dismissal. The plaintiffs’ contentions to the contrary are without merit.

The summary judgment pursued in the present case was based on facts outside of the pleadings filed, and as such the applicable court rule is GCR 1963, 117.2(3). 1 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), 1978 Supp, p 127. As set forth in GCR 1963, 117.3, such a motion "shall be supported by affidavits”. No affidavits were filed in the present case which most assuredly led to the confusion below. This Court has repeatedly addressed the affidavit requirement and has not hesitated to set aside an entry of summary judgment where affidavits were not filed. DeMare Brothers Construction Co, Inc v Teska, 49 Mich App 642; 212 NW2d 602 (1973). See Greenfield Construction Co, Inc v Detroit, 66 Mich App 177; 238 NW2d 570 (1975), Creech v Consumers Power Co, 59 Mich App 167; 229 NW2d 358 (1975). In DeMare this Court termed the movant’s affidavit an "absolute requirement” of the rule and noted:

"Second, while some might regard such an interpretation as overly technical, there is a valid rationale behind an absolute requirement for the submission of affidavits. Requiring parties to present support for such a motion by affidavits based on personal knowledge (GCR 1963, 116.4) serves to clarify the position of the parties, and to facilitate disposition by the trial court and review of the trial court’s decision by the appellate courts. It is relatively easy to read and evaluate an affidavit; by comparison, it is difficult to sift and search through a lengthy deposition in order to determine precisely what evidentiary support a party may be able to muster at trial.” 49 Mich App at 645.

The present case illustrates the problem which concerned the DeMare Court. Here the parties did not submit affidavits clarifying their positions but merely argued the import of various statements by Dr. Groat out of the context in which the statements were made. The defendants in particular presented a statement by Dr. Groat that he didn’t know that there, was malpractice. Had the parties filed affidavits the plaintiffs’ attorney would have had the opportunity to place the statement in its proper context. The failure of the parties to comply with the affidavit rule must be attributed to the plaintiffs’ attorney when he suggested that the various motions to dismiss as filed be treated as motions for summary judgment. Therefore we do not reverse based on the failure to file affidavits since the requirement was affirmatively waived by the nonmoving party.

Our reversal is based upon the conclusion that Dr. Groat’s depositional testimony will support the malpractice claim under certain factual situations. The party seeking summary judgment must show that there can be no dispute at trial over a fact that is material to the claim or defense., "If a motion asserts a hiatus in essential proofs, the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.” 1 Honigman and Hawkins, Michigan- Court Rules Annotated (2d ed), 1978 Supp, p 125. When summary judgment is sought in a tort action the movant must present detailed, admissible factual allegations making out such a clear case as to leave no doubt as to his right to judgment. All possible inferences are made to the benefit of the opponent of the motion. Durant v Stahlin, 374 Mich 82; 130 NW2d 910 (1964).

In a malpractice case the plaintiff must show that the doctor or hospital defendant acted in a manner which violated applicable standards of conduct and that the act or omission caused injury. In the case at bar, the plaintiff claimed that she was treated with medications which affected her equilibrium and was allowed to walk unattended in the hospital causing a fall and broken hip. She claims that this failure to supervise her walking while she was under medication violated the standard of care required of the defendants. In order to prove her claim, the plaintiffs would have to prove, at a minimum, that she was given the drugs, that the drugs had an adverse effect on her ability to walk, that she was allowed to walk unaided, that as a result she fell, and that the standard of care to which the defendants were required to adhere required more attention to her walking than was in fact given.

Here the issue was confused when defendants represented to the trial court that Dr. Groat could not state categorically that defendants were in fact negligent. However, this statement came on the heels of defendants’ hypothetical questions and factual situations which placed the responsibility for Mrs. Ewing’s fall directly on Mrs. Ewing. The doctor had asserted previously that he believed it was negligent to allow a patient receiving the plaintiff’s medication to ambulate without assistance. Dr. Groat stated that he had information that the patient was encouraged by Dr. Alexander to ambulate independently as much as possible. In Dr. Groat’s opinion Mrs. Ewing should have been advised not to walk independently by either Dr. Alexander or by the nurses who gave care, and depending on whether Mrs. Ewing was so warned, there was malpractice either concerning the nursing care or the physician. Dr. Groat stated that the physician would be responsible for the fall if he had encouraged this patient to ambulate without help. The reason Dr. Groat could not state flatly that the defendants were negligent was that he had no personal knowledge as to whether Mrs. Ewing had been in fact allowed to walk unattended or did so against the orders of. defendants.

In the present case the defendants and the trial court mistook the manner upon which expert testimony is required in a medical malpractice case. Generally, it is true that a plaintiff may not ask a jury to find medical malpractice without presenting expert testimony for its assistance. Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961), Delahunt v Finton, 244 Mich 226; 221 NW 168 (1928), Tschirhart v Pethtel, 61 Mich App 581; 233 NW2d 93 (1975). However the expert need not state unequivocally that malpractice has occurred. It is sufficient to require of an expert witness exactly what Dr. Groat contributed in the case at bar: an opinion of the requisite standard of care and a judgment that certain facts proposed to him do or do not indicate compliance with that standard. By requiring more of the deponent it amounts to a trial on the merits at the summary judgment hearing.

Reversed and remanded. Costs to be awarded to plaintiffs.


source: Caselaw Access Project

author: Cynar, P.J.

license: Public Domain

text:
    PEOPLE v WALKER
    Docket No. 78-4294.
    Submitted June 22, 1979, at Lansing.
    Decided October 16, 1979.
    Larry Walker was convicted of second-degree murder, Oakland Circuit Court, John N. O’Brien, J. The defendant appeals, alleging that 1) his conviction must be reversed because there was insufficient evidence to establish beyond a reasonable doubt that he committed the offense, 2) it was reversible error for the trial court not to grant his motion for a directed verdict of acquittal of- the charge of first-degree murder, on the ground that there was no evidence offered on the element of premeditation and deliberation and 3) reversible error resulted from the prosecutor’s making remarks, on two separate occasions, concerning the decedent’s family. Held:

    1. The conviction of the defendant was based on circumstantial evidence. There are two views as to what standard is to be employed in reviewing the sufficiency of the evidence in cases where a conviction is based entirely on circumstantial evidence. The better view is that it is sufficient for the prosecution to prove its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense produces rather than that the prosecution must negate every reasonable theory consistent with the defendant’s innocence of the crime charged. There was sufficient evidence presented for the trier of fact to conclude that the defendant had committed the crime of which he was convicted.
    2. The prosecution presented sufficient evidence on the element of premeditation and deliberation to allow the trier of fact to consider the first-degree murder charge. The denial of the defendant’s motion for a directed verdict of acquittal was not error.

      References for Points in Headnotes
    [1] 30 Am Jur 2d, Evidence § 1125.
    [2] 75 Am Jur 2d, Trial § 553.
    [3, 4] 40 Am Jur 2d, Homicide § 52.
    [5] 40 Am Jur 2d, Homicide §§ 52, 263-269, 274.
    Homicide: presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.
    Homicide: presumption of deliberation of premeditation from the circumstances attending the killing. 96 ALR2d 1435.

      3. The first remark made by the prosecutor concerning the decedent’s family was objected to. However, this remark, standing alone, was not so prejudicial as to require reversal. The second remark, made in rebuttal, was not objected to. Appellate review in such an instance is foreclosed unless the failure to consider the issue would result in a miscarriage of justice. Such is not the case here.
    Affirmed.
    1. Criminal Law — Evidence — Circumstantial Evidence — Burden of Proof — Innocent Theories.
    The frequently stated rule, where the people’s case is based on circumstantial evidence, is that the prosecution has the burden of proving that there is no innocent theory possible which will, without violation of reason, accord with the facts; however, that rule has proven unworkable in close cases and the better approach is to ask whether the evidence presented is sufficient to permit reasonable men to conclude that guilt has been established beyond a reasonable doubt where the physical possibility of the defendant’s theory is not disproven, but the evidence presented makes innocence most unlikely.
    2. Criminal Law — Directed Verdict of Acquittal — Evidence — Reasonable Doubt — Jury.
    It is proper to deny a motion for a directed verdict of acquittal if, when viewing the evidence presented by the prosecution in the light most favorable to the prosecution, there is sufficient evidence on each element of the charge upon which the jury could base a verdict of guilty beyond a reasonable doubt.
    3. Homicide — First-Degree Murder — Premeditation — Deliberation.
    To premeditate is to think about beforehand; to deliberate is to measure and to evaluate the major facets of a choice or problem.
    4. Homicide — First-Degree Murder — Premeditation — Deliberation — Thought Process — Reflection.
    Premeditation and deliberation characterize a thought process undisturbed by hot blood; while the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a "second look”.

      5. Homicide — First-Degree Murder — Premeditation and Deliberation — Prior Relationships — Actions of Defendant — Immediate Circumstances — Post-Homicide Conduct.
    Factors to be considered in a homicide case in determining whether an accused had an opportunity to subject his actions to a second look in determining premeditation and deliberation include: (1) the previous relationship of the parties, (2) the defendant’s actions prior to the killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.
    6. Homicide — First-Degree Murder — Premeditation — Deliberation — Directed Verdict of Acquittal.
    A defendant’s motion, in a homicide case, for a directed verdict of acquittal of first-degree murder was properly denied where there was sufficient evidence introduced on the element of premeditation and deliberation for the trier of facts to find premeditation and deliberation beyond a reasonable doubt.
    7. Criminal Law — Argument of Counsel — Preserving Question.
    Appellate review of alleged improprieties in a prosecutor’s closing argument is precluded in the absence of any objection at trial unless failure to consider the issue would result in a miscarriage of justice.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Prosecuting Attorney, for the people.

      James P. Lawson, PC. (by David M. Lawson), for defendant on appeal.
    Before: Cynar, P.J., and Mackenzie, and L. W. Corkin, JJ.

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

   Cynar, P.J.

Defendant Larry Walker was jury-convicted of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to 10 to 20 years in prison. He now appeals as of right.

The case against defendant was based on circumstantial evidence. Testimony at trial established that the decedent, Robert Brent, and a second man, Willie Dillon, drove to the Orchard Trace Apartments in Pontiac, shortly before 4 p.m. on January 9, 1977. Dillon went there to complete some repair work at the apartment of one Claudia Sylvester, with whom the defendant lived.

When the two men arrived, Dillon exited from the vehicle, but admonished the decedent to remain in the car. Dillon was aware of a prior serious dispute between Brent and Walker over a bad check passed by Brent to Walker.

Brent stayed behind while Dillon went up to the apartment. Defendant, wearing a blue lounging robe, answered the door, and informed Dillon that Ms. Sylvester was not home at the time. Dillon said that his tools were in the apartment, and that he would return later for them. Dillon left, and, after indicating to decedent his intention to do so, went to a gym in another portion of the apartment complex.

Shortly thereafter, a neighbor, Veronica Nance, who lived directly below defendant, heard the sound of someone or something falling on the floor of defendant’s apartment. Next, the neighbor heard the door to Walker’s apartment open and close and someone come down the stairs. Looking out a window, she saw a man enter a car and drive it to a point below defendant’s apartment, blow his horn, and then yell out "Larry” or "Walker”. She heard a sliding glass door open above her, then an argument ensued between the man at the car and a man upstairs.

The man at the car said he was sorry and wanted to come back upstairs and explain. The voice upstairs said to leave. Ms. Nance then heard a shot and saw the man by the car fall to the ground. The sliding glass door closed.

Just before the shot was fired, Willie Dillon had returned from the gym. He saw decedent look up toward defendant’s apartment and heard him say that "he would be back”. He told decedent he was going up to the apartment and would be right back. At that time, he noticed a man wearing a robe standing in the window of defendant’s apartment, but he was not certain it was Walker. Before reaching the apartment, Dillon heard a shot, ran down the stairs and to the parking lot. He found Brent lying on the ground, bleeding from his forehead. He returned to the apartment and was let in by defendant. After defendant finished with a phone call, he asked Dillon to "take something from me”.

When the police arrived, they were not admitted into Walker’s apartment for about five minutes. They had found a trail of blood leading from the apartment to decedent’s body. There was blood smeared on both the inside and outside door knobs of the apartment. The blood on the door knobs was of the same type as decedent’s.

The police found Brent lying in the parking lot with a towel in his left hand. It too was smeared with blood of his type. The chief pathologist for Oakland County found that decedent had a small laceration on the tip of his nose, and blood was also found inside his nose. He also stated that the angle of entry of the bullet which struck decedent in the forehead indicated that it was fired from above.

Upon examining the screen door opening onto the balcony of defendant’s apartment, a hole was found, approximately 1/2" in diameter. Gunpowder residue was found surrounding the hole, with no dust on top of it. No murder weapon was ever found.

Defendant first contends that his conviction must be reversed because there was insufficient evidence to establish beyond a reasonable doubt that he committed the offense. Since the conviction was based solely on circumstantial evidence, defendant argues that it is incumbent upon the prosecution to rebut every reasonable theory consistent with defendant’s innocence. This the prosecution failed to do, according to defendant.

There is a split of authority in this Court over what standard is to be employed in reviewing the sufficiency of the evidence in cases where the conviction is based entirely on circumstantial evidence.

In People v Davenport, 39 Mich App 252, 257-258; 197 NW2d 521 (1972), a panel of this Court held that, where all the evidence in the case is circumstantial, the prosecution is obliged to negate every reasonable theory consistent with the defendant’s innocence of the crime charged.

A second standard was established in People v Edgar, 75 Mich App 467, 469-474; 255 NW2d 648 (1977), where the Court first noted that the Davenport rule was not being applied in all circumstantial evidence cases and had proved unworkable in close cases. The Edgar Court then held that the Davenport rule was defective to the extent that it treated circumstantial evidence differently than direct evidence and to the extent that it required the prosecution to speciñcally disprove all innocent theories and that it is sufficient for the prosecution to prove its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense produces. Edgar, supra, 473-474.

The Edgar Court opined that it would be impossible for the prosecution to disprove all innocent theories, even by direct evidence. Beyond this, it was felt that the implied distrust of circumstantial evidence was unwarranted and that such evidence was no less trustworthy or probative of guilt than direct evidence. Edgar, supra, 472-473. Finally, the Court held that, in lieu of requiring the prosecutor to speciñcally disprove all innocent theories, resolution of the question of whether the prosecutor had done so is properly for the trier of fact. Edgar, supra, 474, People v Fuller, 395 Mich 451, 455; 236 NW2d 58 (1975).

We are persuaded that Edgar and its progeny represent the better approach. Under that standard, we have no difficulty in concluding that there was sufficient evidence for the trier of fact to conclude that the defendant had committed the crime of which he was convicted, notwithstanding the theory proffered by defendant at trial, that Willie Dillon had actually killed Robert Brent.

Defendant next assigns as reversible error the failure of the trial court to grant his motion for a directed verdict of acquittal on the charge of first-degree murder. He claims that no evidence was offered on the element of premeditation and deliberation. As a consequence of this, the jury was permitted to consider a charge unwarranted by the proofs, thus decreasing his chances of acquittal on any valid charge because of the possibility of a compromise verdict. We reject this contention.

It is proper to deny a motion for a directed verdict of acquittal if, when viewing the evidence presented by the prosecution in the light most favorable to the prosecution, there is sufficient evidence on each element of the charge upon which the jury could base a verdict of guilty beyond a reasonable doubt. People v Royal, 62 Mich App 756, 757-758; 233 NW2d 860 (1975), People v Scott, 72 Mich App 16, 19; 248 NW2d 693 (1976), People v Neal, 83 Mich App 102, 105; 268 NW2d 303 (1978), People v Edgar, supra, 474-475.

In People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), Judge, now Justice, Levin defined premeditation and deliberation as follows:

"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.” People v Morrin, supra, 329-330.

In People v Meadows, 80 Mich App 680; 263 NW2d 903 (1977), this Court stated that:

"Factors to be considered in determining whether the accused had an opportunity to subject his actions to a second look include: (1) the previous relationship of the parties, (2) the defendant’s actions prior to the actual killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.” People v Meadows, supra, 691.

Therefore, we must examine these four factors to determine if any evidence of premeditation and deliberation was presented by the prosecution.

Looking at the previous relationship of the parties, we find evidence of continuing acrimony between defendant and decedent over a bad check given defendant. In addition, testimony was heard to the effect that defendant had threatened to "fuck up” the victim if the check was ever mentioned to Walker by the decedent again.

With regard to defendant’s actions prior to the killing, there was evidence that Brent was in the defendant’s apartment just prior to the killing and that the two had scuffled at the time, resulting in Brent receiving an injury to his nose. Also, when the victim returned to the parking lot below defendant’s balcony, he yelled up to Walker that he was sorry and wished to explain. Defendant responded by telling him to "get the fuck out of here”.

The circumstances were such that defendant had ample opportunity between the time Brent left after the scuffle and when he returned in his car to take a second look or to cooly reflect on the nature of his response.

Further, immediately after the killing, defendant was very slow in answering the door when the police arrived. He asked Willie Dillon to "take something from me”. He also told the police he was unaware Brent was dead, when, in fact, Dillon had only minutes earlier informed him that he thought Brent was dead.

Without intimating that all the above evidence is consistent with a finding of premeditation and deliberation, it is nonetheless clear that evidence sufficient to find defendant guilty beyond a reasonable doubt was introduced by the people on this element. Thus, it was not error for the trial judge to deny defendant’s motion for a directed verdict.

Defendant’s final contention, that reversible error was committed as a result of the prosecutor making remarks, on two separate occasions, concerning the decedent’s family, is without substance. In the first instance, a question posed to a witness as to what the decedent’s family might say was objected to and the objection sustained prior to the witness responding. We do not find this question, standing alone, to be so prejudicial as to require reversal. People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969).

As the remarks of the prosecutor in rebuttal argument were not objected to, appellate review is foreclosed unless the failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977), People v Alcala, 396 Mich 99, 100; 237 NW2d 475 (1976). Such is not the case here. In addition, the remarks were not so improper that any prejudicial effect therefrom could not have been eliminated by a curative instruction if one had been requested upon a timely objection. People v Duncan, supra, 17, People v Hall, 396 Mich 650, 655; 242 NW2d 377 (1976).

Finding no error which would merit reversal, we hereby affirm defendant’s conviction.

Affirmed.

       Other cases espousing this view include, inter alia: People v Wingfield, 62 Mich App 161, 163; 233 NW2d 220 (1975), People v Jablonski, 70 Mich App 218, 225; 245 NW2d 571 (1976), People v Ridgeway, 74 Mich App 306, 316-317; 253 NW2d 743 (1977), People v Samuel Smith, 85 Mich App 404, 410-411; 271 NW2d 252 (1978), People v Little, 87 Mich App 50, 53-54; 273 NW2d 583 (1978).

       Among the cases adopting the Edgar rationale are: People v Sherman Hall, 77 Mich App 456, 463; 258 NW2d 517 (1977), People v Johnson, 83 Mich App 1, 17-18; 268 NW2d 259 (1978), People v Haney, 86 Mich App 311, 318; 272 NW2d 640 (1978), People v Robertson, 87 Mich App 109, 113; 273 NW2d 501 (1978).

       In rebuttal argument, the prosecutor stated:
      "And oftentimes, I, on occasion hear comments about the defendant and that jury’s [sic] have the future of that individual in their hands. That is true, but not really in retrospect, because it is not the jurors who find the defendant guilty, it is the defendant who finds himself guilty by his own actions, because he’s the one who put himself in this position, and if he had altered his behavior in the first place, if he wouldn’t violate the laws and deprive other people of the right to live, he wouldn’t be in that situation.
      "A juror doesn’t find him guilty, it’s his own behavior, not the jury’s. Counsel speaks in terms of individuals here. We’ve got Mr. Walker, and look ahead what’s in store for him. Well, there’s nothing in store for for [sic] Robert Brent, he’s dead and in the ground right now, and what’s in store for Robert Brent’s three children without their father. And what’s in store for Mrs. Brent.”


author: Danhof, C.J. V. J. Brennan, J.

text:
    PEOPLE v OJANIEMI
    Docket No. 78-4726.
    Submitted June 6, 1979, at Lansing.
    Decided October 16, 1979.
    Leave to appeal applied for.
    Leland Ojaniemi pled guilty to obtaining over $100 by false pretenses and was sentenced to probation. On June 28, 1978, a bench warrant was issued upon the petition of defendant’s probation agent which alleged violation of the terms of probation. During the morning hours of July 25, 1978, the defendant was first presented with the statutorily required notice of the probation violation charges. At 11:35 a.m., he appeared before the court for a violation hearing, without protesting this last-minute notice of the charges. He waived assistance of counsel and stated that he understood the charges against him. The procedure was explained to him and he told the court, "All I want to do is plead guilty”. Ontonagon Circuit Court, Donald L. Munro, J., found that defendant, apparently on the bases of hearing testimony and defendant’s concessions, had violated his probation and sentenced defendant te prison. Defendant appeals. Held:

    Due process requires adequate and timely notice of the proceedings and charges a defendant must face before a violation of probation hearing is held so that he has a reasonable opportunity to prepare to contest or admit the charges against him. Defendant did not receive timely notice of the charges of probation violation and the order revoking his probation should be set aside and his sentence vacated.
    Reversed.
    V. J. Brennan, J., dissented. He would hold that defendant had time to prepare for the hearing after he was timely served with the notice of violation of probation charges. Extensive preparation is unnecessary because if the charges are accurate there is nothing defendant can do except request leniency; if they are not, he has a chance to tell the court of any inaccuracies at the revocation hearing.

      References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law § 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.

      Opinion of the Court
    1. Criminal Law — Probation Revocation — Due Process — Notice — Timely Service of Notice.
    A defendant charged with violation of probation has a due process right to an adequate and timely notice of the proceedings and charges he must face.
    2. Criminal Law — Probation Revocation — Timely Notice of Charges — Opportunity to Meet Charges — Statutes.
    Notice of probation violation charges must be served sufficiently in advance of scheduled court proceedings so that a defendant has a reasonable opportunity to prepare to contest or admit them (MCL 771.4; MSA 28.1134).
    Dissent by V. J. Brennan, J.
    3. Criminal Law — Probation Revocation — Notice of Charges — Preparation of Defense — Revocation Hearing — Explanation of Charges — Inaccuracies — Leniency.

      A probation revocation hearing does not require the preparation time that a trial must have; where a defendant is presented a notice of probation violation which contains various charges resulting in the petition for revocation, either they pertain to him or they don’t, and if they don’t, he has a chance at the revocation hearing to tell the court of any inaccuracies in the charges; if the charges are accurate there is nothing defendant can do except request leniency.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Roy D. Gotham, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   Danhof, C.J.

The defendant pled guilty to obtaining by false pretenses a sum of money greater than $100, MCL 750.218; MSA 28.415, and on January 3, 1978, was sentenced to five years probation. Among the special terms of this probation was the requirement that he pay $10 per week toward a court costs assessment of $500.

On June 28, 1978, a bench warrant was issued upon the petition of defendant’s probation agent, who alleged that the defendant had not appeared for two monthly appointments, had left the state without permission and been arrested in Florida on a grand theft charge and had made no court costs payment. The defendant waived extradition proceedings in Florida and came into the custody of Michigan officials on July 21, 1978.

During the morning hours of July 25, 1978, the defendant was first presented with the statutorily required notice of the probation violation charges. At 11:35 a.m., he appeared before the court for a violation hearing, without protesting this last-minute notice of the charges. He waived assistance of counsel and stated that he understood the three charges against him. The procedure was explained to the defendant and he told the court, "All I want to do is plead guilty”. The court took evidence and found, apparently on the twin bases of the hearing testimony and the defendant’s concessions, that the defendant had violated his probation in each of the particulars alleged. A sentence of two to ten years imprisonment was imposed.

Among the rights which due process affords a defendant charged with violation of his probation is the right to adequate and timely notice of the proceedings and charges he must face. The importance of this right may not be underestimated:

"In proceedings such as this, the notice requirement may well be the most crucial. To comply with due process requirements, the notice 'must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded’. In re Gault, 387 US 1, 33; 87 S Ct 1428; 18 L Ed 2d 527 (1967).” People v Gulley, 66 Mich App 112, 116; 238 NW2d 421 (1975), lv den 396 Mich 850 (1976).

The notice of probation violation charges required by MCL 771.4; MSA 28.1134 "must be served sufficiently in advance of scheduled court proceedings so that defendant has a reasonable opportunity to prepare”. People v Radney, 81 Mich App 303, 306; 265 NW2d 128 (1978), see also People v Gillman, 71 Mich App 374; 248 NW2d 553 (1976).

The prosecution argues that a plea of guilty waives all "nonjurisdictional” defects in the proceedings, including the defect of untimely notice. This point of view was approved without discussion by the majority in People v Bell, 67 Mich App 351; 241 NW2d 203 (1976), in which notice and hearing occurred on the same day, and by Judge Walsh, dissenting, in People v Lawrence, 90 Mich App 73; 282 NW2d 247 (1979), in which notice and hearing were practically simultaneous.

Dissenting in Bell, supra, Judge Danhof wrote regarding the count to which the defendant had pled guilty:

"Under the circumstances of this case, it is difficult to see how the defendant intelligently waived the notice necessary to reasonably prepare for the hearing. He was picked up by the police on the coat charge and incarcerated for three weeks. Then, on March 10, 1975, he obtained counsel, received notice of his violations, and was brought before the trial court. Due process requires adequate notice before any hearing is held which has the consequences of the one in the present case.” 67 Mich App at 355.

The majority in Lawrence, supra, agreed with the Bell dissent and wrote:

"Neither this Court nor the Supreme Court has found it necessary to impose a check list of rights for probation revocations on the circuit courts. People v Rial, 399 Mich 431; 249 NW2d 114 (1976). We do not intend to do so here. However, we are not required to affirm a proceeding which appears unjust. The defendant did not waive her right to timely notice of the charges by admitting one of the violations on the facts presented by this record. A lack of notice vitiated the voluntariness and intelligence of the subsequent waivers of the right to counsel and the right to a hearing.” 90 Mich App at 77-78.

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

The order revoking the defendant’s probation is set aside and his sentence is vacated, without prejudice to the prosecution’s right to again seek revocation after notice allowing the defendant adequate opportunity to prepare his response to the charges.

H. R. Carroll, J., concurred.

V. J. Brennan, J.

(dissenting). I must dissent. A probation revocation hearing does not require the preparation time that a trial must have.

The defendant is presented a notice of probation violation which contains the various charges resulting in the petition for revocation. The charges are laid out very clearly. Either they pertain to him or they don’t. If they don’t, then he has the chance at the hearing to tell the court of the inaccuracies of the charges.

If they are accurate there is nothing he can do except request leniency. Here, the defendant had a couple of hours to review the notice of probation revocation. He told the court he wished to proceed without a lawyer. The court conducted a hearing and the defendant told the court he was guilty of violating his probation and admitted to the various violation incidents set forth on the notice.

Defendant had time to prepare for the hearing after he was timely served with the notice. Defendant expressly waived his right to have an attorney present. A hearing was conducted and defendant told the court emphatically that "All I want to do is plead guilty”.

I would affirm without remand.

       The court found that, as the defendant claimed, he had been arrested and sentenced in Florida for petty theft rather than grand theft.


author: Bashara, P.J.

text:
    LOCKWOOD v CITY OF SOUTHFIELD
    Docket Nos. 43296, 43297.
    Submitted June 18, 1979, at Detroit.
    Decided October 16, 1979.
    Leave to appeal applied for.
    Rodney N. Lockwood and Rodney Lockwood & Company (Lock-woods) sought and received approval from defendant City of Southfield of plans to construct a low rise multi-family apartment complex in 1969. A low rise multi-family dwelling was defined in the Southfield zoning ordinances as a multi-family dwelling of not more than two stories in height. The ordinances defined "basement” so as to exclude it from a story. Due to economic uncertainty, only part of the complex was built. In 1977, Lockwoods revised the plans to build apartments on three levels, including units on a level meeting the definition of a basement. The city planning department approved the revisions but the city council did not, based on a number of the proposed changes. Lockwoods filed suit for mandamus compelling approval and for damages incurred as a result of the delay in approval. The city then amended the ordinance definitions of basement and story and created a term "cellar” which meant a building level having more than half its clear height below the grade plane and providing that a cellar be nonhabitable. The city raised the amended ordinances as a defense. Mr. and Mrs. Harry Okrent, Mr. and Mrs. Leonard A. Malis and Mr. and Mrs. Mel Penin filed a suit against Rodney Lockwood & Company and the city to enjoin the construction of the tri-level units. Lockwood & Company counterclaimed for damages for delay in the approval. Harry Okrent also intervened in the Lockwoods’ suit against the city and the Lockwoods counterclaimed for damages. The cases were consolidated for trial. The Oakland Circuit Court, Steven N. Andrews, J., found the amendment applicable, denied the writ of mandamus and dismissed all claims for damages. Lockwoods appeal. Held:

    1. The general rule in a zoning case that the law to be applied is that which was in effect at the time of decision has two exceptions, viz., where (1) the amendment would destroy a vested property interest acquired before its enactment and (2) the amendment was enacted in bad faith and with unjustified delay. Since construction had not commenced at the time of amendment, Lockwoods had acquired no vested property right. The trial judge did not abuse his discretion in holding that the amendment was not enacted in bad faith or with unjustified delay. There was evidence that the amendment was enacted to clarify an ambiguity in the ordinance to conform with the council’s constant intent to prohibit people from living on three levels within that zoning classification.

      References for Points in Headnotes
    [1] [No Reference]
    [2] 82 Am Jur 2d, Zoning and Planning § 15.
    [3] 82 Am Jur 2d, Zoning and Planning § 90.
    Validity of building height regulations. 8 ALR2d 963.

      2. A zoning ordinance is unconstitutional if it is unreasonable, that is, if (1) no governmental interest is being advanced or (2) the ordinance arbitrarily and capriciously excludes other types of legitimate land use from the area in question. The ordinance was.a valid exercise of the city’s police power in that it advanced the health and safety of persons affected. Also, there remained many reasonable uses for which Lockwoods could adapt their property.
    3. The amendment was a valid height restriction within the meaning of the zoning enabling act, since height may be measured in stories as well as feet.
    4. The trial court did not err in dismissing plaintiffs’ damage claims against the city, since damages were precluded by statute after it was found that the ordinance was enacted in good faith. The damage claim against the individuals was moot because of the decision regarding the mandamus issue.
    Affirmed.
    1. Zoning — Applicable Law.
    The general rule in a zoning case that the law to be applied is that which was in effect at the time of decision has two exceptions, viz., where (1) the amendment would destroy a vested property interest acquired before its enactment and (2) the amendment was enacted in bad faith and with unjustified delay.
    2. Zoning — Constitutional Law.
    A zoning ordinance is unconstitutional if it is unreasonable, that is, if (1) no governmental interest is being advanced or (2) the ordinance arbitrarily and capriciously excludes other types of legitimate land use from the area in question.

      3. Zoning — Statutes — Zoning Enabling Act — Height Restriction.
    A zoning ordinance which limits the number of stories of low rise multiple family dwellings is a valid height restriction within the meaning of the zoning enabling act (MCL 125.582; MSA 5.2932).

      Patterson & Patterson, Whitñeld, Manikoff, Ternan & White, for plaintiffs.

      Phillip L. Poole, for defendant.
    Before: Bashara, P.J., and V. J. Brennan and J. C. Daner, JJ.

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

   Bashara, P.J.

Plaintiffs Rodney Lockwood & Company and Rodney M. Lockwood sought a writ of mandamus in the trial court to compel defendant city to approve plans for the construction of an apartment complex and damages occasioned by the delay in approval. (Hereinafter, references to plaintiffs shall refer to Rodney Lockwood & Company and Rodney M. Lockwood unless otherwise stated.) The circuit court denied the requested relief and plaintiffs appeal.

Plaintiffs initiated the plan to build the apartment complex known as "Cranbrook Place” in 1969. The City of Southfield approved the plans for the complex which was to be built on two levels. Economic uncertainties delayed the construction of the apartments until 1977. In the interim, plaintiffs revised the plans initially approved by the city. The revision called for the construction of apartments on three levels. The Southfield planning department approved the amended plans but the city council rejected them on October 24, 1977.

Although the city council’s rejection was based on a number of proposed changes, the circuit court concluded that only the proposal to build apartments on three levels instead of two justified the denial.

On November 2, 1977, the date which the plaintiffs commenced the action for a writ of mandamus, pertinent provisions of the Southfield zoning ordinances read as follows:

"§5.4(10) DWELLING, MULTIPLE FAMILY LOW RISE: a multiple family dwelling not more than two (2) stories in height.”
"§ 5.8(16) STORY: that portion of a building, but not including a basement, as defined in this Chapter between one (1) floor level and the ceiling next above it and which portion meets the requirements of the Building Code (Chapter 98) for a habitable room.”
"§ 5.3(5) A BASEMENT: is that portion of a building which is partly or wholly below grade, but so located that the vertical distance from the average grade to the floor is greater than the vertical distance from the average grade to the ceiling. A basement shall not be counted as a story.”

Plaintiffs proposed to build basement apartments in addition to the two stories originally planned. Under the zoning ordinances set forth above, basement apartments were neither specifically allowed nor prohibited. The ordinances merely prohibited multiple family dwellings of more than two (2) stories in height. Basements are not counted as stories.

On November 28, 1977, the Southfield City Council enacted an amendment to the zoning ordinances that modified its definition of the terms "basement” and "story”.

"(5) A BASEMENT: a portion of a building partially underground, but having less than half its clear height below the grade plane (See Cellar).”
"(2) CELLAR: that portion of a building partially, or wholly, underground, having half or more than half of its clear height below the grade plane. A cellar shall be non-habitable and shall not be counted as a story.”
"(16) STORY: that portion of a building, but not including a cellar, as defined in this chapter between one (1) floor level and the ceiling next above it and which portion meets the requirements of the Building Code (Chapter 98) for a habitable room.” City of South-field Ordinance No. 953.

The November 28, 1977, amendment to the Southfield zoning ordinance was republished and repromulgated as City of Southfield Ordinance No. 965 on June 5, 1978. The amended zoning ordinance eliminates the ambiguity that existed under the original zoning ordinance with respect to whether apartments could be built in what was originally called the basement. Basement apartments under the original zoning ordinance were redefined as "cellar” apartments and specifically made nonhabitable.

In December 1977, the defendant city amended its answer to raise as a defense the modified zoning ordinance. The trial judge held that the amendment was applicable and did not issue a writ of mandamus. The court also dismissed plaintiffs’ claim for damages against the city, Harry Okrent and others. Okrent and others had filed a separate suit to enjoin construction of the apartments which was subsequently consolidated with the present suit. After Okrent and others entered the suit, plaintiffs amended their complaint and filed a counterclaim against the individual defendants for damages resulting from losses sustained due to delay in construction.

Plaintiffs’ claims of error all center around the applicability and validity of the amended zoning ordinance. These claims raise four issues for consideration which will be dealt with seriatim.

I

Should the amended zoning ordinance be applied as the law of the case when the amendment was enacted after the litigation had commenced?

"The general rule is that the law to be applied is that which was in effect at the time of decision.” Klyman v City of Troy, 40 Mich App 273, 277; 198 NW2d 822 (1972). Application of this general rule would require that we hold the trial judge properly applied the zoning amendment as it was in effect at the time of the decision.

However, the general rule is subject to two exceptions. A court will not apply an amendment to a zoning ordinance where (1) the amendment would destroy a vested property interest acquired before its enactment, City of Lansing v Dawley, 247 Mich 394, 396; 225 NW 500 (1929), or (2) the amendment was enacted in bad faith and with unjustified delay. Keating International Corp v Orion Twp, 395 Mich 539, 549; 236 NW2d 409 (1975). Neither of the foregoing exceptions apply to this case. Since construction had not yet commenced at the time of the amendment, we cannot say plaintiffs had acquired a vested property right. Keating, supra.

With respect to the second exception, the test to determine bad faith is whether the amendment was enacted for the purpose of manufacturing a defense to plaintiffs’ suit.

There is evidence to indicate that the amendment was intended to clarify an ambiguous ordinance. There is also evidence that it had always been the intent of the city council to prohibit persons from living on three levels within the zoning classification. The amendment did not simply rezone plaintiffs’ property, but applied equally to all apartment structures throughout the city. Klyman, supra.

In any event, the trial judge did not abuse his discretion in holding that the amendment was not enacted in bad faith or with unjustified delay. The overriding principle regarding "the decision to admit or exclude ordinance amendments during litigation is one which rests entirely within the sound discretion of the trial court”. Keating, supra, 548.

Plaintiffs’ contention that the city acted with unnecessary delay in enacting the ordinance is without merit.

II

Having determined that the amended zoning ordinance was properly applied, we now look to its constitutionality.

The standard for determining the constitutional validity of municipal zoning ordinances was recently settled in Ed Zaagman, Inc v City of Kentwood, 406 Mich 137, 138-139; 277 NW2d 475 (1979). Zaagman held that in order to be successful, plaintiffs must prove that the ordinance is unreasonable. An ordinance is unreasonable where (1) no governmental interest is being advanced, or (2) the ordinance arbitrarily and capriciously excludes other types of legitimate land use from the area in question.

We conclude from our examination of the record that there was sufficient evidence to support the trial judge’s determination that the ordinance was constitutional. The ordinance was a valid exercise of the police power of the City of Southfield in that it advanced the health and safety of persons affected by the ordinance. Evidence adduced at trial showed that basement apartments may prove troublesome in times of fire or other catastrophe. Prohibition of basement apartments is also helpful in controlling population density.

Because mandamus is governed by equitable principles, Board of Education of Oakland Schools v Superintendent of Public Instruction 401 Mich 37, 41; 257 NW2d 73 (1977), Zaagman requires that we give great weight to the findings of the trial judge. In doing so, we cannot say that the ordinance was an arbitrary fiat. There still remain many reasonable uses for which plaintiffs can adapt their property.

Ill

In enacting the ordinance, did the City of South-field exceed its authority under the zoning enabling act, MCL 125.581 et seq.; MSA 5.2931 et seq.?

In Michigan, cities have no inherent power to zone apart from those powers which are granted by the Constitution or the Legislature. Detroit Osteopathic Hospital v City of Southfield, 377 Mich 128, 132; 139 NW2d 728 (1966).

The zoning enabling act provides in part:

"The legislative bodies of cities and villages may regulate and limit the height and bulk of buildings hereafter erected * * *.” MCL 125.582; MSA 5.2932.

Plaintiffs contend that the amended zoning ordinance does not affect the height or bulk of the apartments and therefore exceeds the authority granted under the statute. Plaintiffs argue that the only effect of the regulation is to restrict the use of a portion of the building, and is more properly labeled a construction regulation falling within the State Construction Code Act, MCL 125.1502(l)(k); MSA 5.2949(2)(l)(k). Plaintiffs further argue that since the construction regulation was not enacted with the proper formalities required by the State Construction Code Act, the regulation is void.

Section (l)(k) of the State Construction Code Act, which defines construction regulation, specifically exempts from the definition "a zoning ordinance or rule issued pursuant to a zoning ordinance and related to zoning”. Because the ordinance enacted by the City of Southfield is a valid height restriction within the meaning of the zoning enabling act, plaintiffs’ argument lacks merit.

A building height restriction may be expressed in stories as well as in feet. The amended zoning ordinance has the effect of limiting the height of an apartment building to no greater than two stories and one cellar. A very similar height restriction was upheld by this Court in Sisters of Bon Secours Hospital v City of Grosse Pointe, 8 Mich App 342, 360; 154 NW2d 644 (1967). In that case, the height restriction prohibited buildings higher than three stories or 36 feet above grade, whichever was less. Id., 346, n 3.

We therefore conclude that the amended ordinance is a lawful exercise of the zoning power granted the City of Southfield under the zoning enabling act.

IV

Plaintiffs contend, notwithstanding the determination of the trial court that a writ of mandamus should not issue, that the court erroneously dismissed their claims for damages. We disagree.

With respect to the damage claim against the City of Southfield, the matter is controlled by MCL 600.4431; MSA 27A.4431, which provides:

"Damages and costs may be awarded in an action for mandamus. No damages may be allowed in mandamus against a public officer who, in good faith, acted erroneously.”

Since the trial judge concluded the ordinance was enacted in good faith, any claim for damages against the City of Southfield must be dismissed pursuant to the statute.

The statute is inapplicable as to plaintiffs’ claim for damages against Harry Okrent and others because these parties are not public officers. Nevertheless, the trial judge properly dismissed the damage claim. The trial judge properly concluded that the claim was moot due to his prior decision regarding the mandamus issue. Plaintiffs cannot seek damages for unlawful delay of the apartment project when it is determined that the structures could not be built because of failure to comply with zoning ordinances.

All other issues raised by plaintiffs lack merit.

Affirmed.

       Plaintiffs do not contend that mandamus should issue even if the amended ordinances were applicable because in that case there would be no clear legal right to performance of a specific duty. The requirements for a writ of mandamus are set forth in detail in Hessee Realty, Inc v City of Ann Arbor, 61 Mich App 319, 322; 232 NW2d 695 (1975).

       Compare the majority opinions in Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976), and the minority opinion of Justice Williams in Sabo v Monroe Twp, 394 Mich 531, 541; 232 NW2d 584 (1975), with the majority opinion in Sabo.

         Because we hold that the ordinance was neither an arbitrary fiat nor precluded the plaintiff's from other reasonable uses of the property, we do not find reversible error in plaintiffs’ claim that the trial judge improperly excluded the testimony of one of plaintiffs’ experts, Mr. James Babcock. Mr. Babcock was to testify as to the habitability criteria set forth in the Building Officials & Code Administrators (BOCA) manual, the BOCA manual was admitted into evidence and Mr. Babcock’s testimony was allowed on a special record.

       While appellees have not cited it in their brief, we take judicial notice of the fact that MCL 125.583; MSA 5.2933 would provide an alternate ground for upholding the ordinance. That section provides in part:
      "The legislative body of cities or villages may limit and restrict the maximum number of families which may be housed in dwellings * ** * erected or altered, and for such purposes divide the city or village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section. Such regulations shall be uniform throughout any specified district, but may differ from the regulations adopted for other districts.”


author: Per Curiam.

text:
    PEOPLE v HENDRIX (ON REMAND)
    Docket No. 47068.
    Submitted December 13, 1977, at Detroit.
    Decided October 16, 1979.
    Bobby J. Hendrix was convicted of assault with intent to rob being armed in Recorder’s Court of Detroit, John P. O’Brien, J. Defendant appealed. The Court of Appeals in an unpublished per curiam opinion remanded for a "Robinson Hearing” on the issue whether due diligence had been exercised to produce an alleged res gestae witness. On remand, the trial court found that due diligence would not have produced the missing witness but that if she were produced her testimony would have been cumulative. Defendant appealed. The Court of Appeals reversed and remanded for a new trial. 81 Mich App 33 (1978). The people applied for leave to appeal to the Supreme Court. The Supreme Court, in lieu of granting leave to appeal, vacated the Court of Appeals decision and remanded the matter to the Court of Appeals for reconsideration in light of Supreme Court criteria on the production of res gestae witnesses. 407 Mich 858 (1979). Held:

    An examination of the record discloses that the trial court’s actions satisfied the Supreme Court criteria and defendant’s conviction should be affirmed and reinstated.
    Affirmed.
    Witnesses — Res Gestae Witnesses — Production — Evidentiary Hearing.
    The order of inquiry on a possible missing res gestae witness in a criminal trial should be 1) the court shall ascertain whether the claimed missing person is a res gestae witness; 2) if so, the prosecutor shall produce the witness or explain why the witness cannot be produced and why the witness was not indorsed and produced at trial; 3) if the witness is not produced, the court shall determine whether the prosecution was duly diligent in its attempts to produce the witness; 4) if a lack of due diligence is found or if the witness is produced, the court shall ascertain whether the defendant has been prejudiced by the failure to produce the witness at trial; 5) if the defendant is found to be prejudiced the court shall fashion an appropriate remedy.

      Reference for Points in Headnote
    81 Am Jur 2d, Witnesses §§ 2, 3, 5.

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

      Campbell & MacDonald, for defendant.
    Before: N. J. Kaufman, P.J., and Bronson and D. E. Holbrook, JJ.

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

   On Remand

Per Curiam.

Due to the complex path this case has taken through our court system, it is necessary to set forth a short judicial history of what has transpired to date.

Defendant was convicted of assault with intent to rob being armed, MCL 750.89; MSA 28.284, by a Detroit Recorder’s Court jury. At trial, the judge found no due diligence had been exercised by the prosecutor to produce a res gestae witness. The prosecutor admitted this fact to be true. Defendant appealed as of right on this res gestae issue.

This Court remanded for a "Robinson Hearing”. See People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The trial court was instructed to determine whether due diligence would still not have produced the missing witness, and whether the testimony of such witness would or would not have been cumulative.

At the Robinson hearing the trial court found that due diligence would not have produced the missing witness and that, in any event, her testimony would have been cumulative. Defendant appealed the decision to this Court. We reversed and remanded for a new trial. 81 Mich App 33; 264 NW2d 108 (1978). From our determination, plaintiff applied for leave to appeal to the Supreme Court.

The Supreme Court, in lieu of leave to appeal, vacated this Court’s judgment and remanded the matter here for reconsideration in light of People v Pearson, 404 Mich 698; 273 NW2d 856 (1979). 407 Mich 858 (1979). This opinion, then, represents our compliance with the Supreme Court order.

People v Pearson, supra at 723, sets out criteria for trial courts to follow in future Robinson hearings in order to "reach all the issues necessary to dispose of the case”. The order of inquiry should be as follows:

"1. The court shall ascertain whether the claimed missing person is a res gestae witness;
"2. If so, the prosecutor shall produce the witness or explain why the witness cannot be produced and why the witness was not indorsed and produced at trial;
"3. If the witness is not produced, the court shall determine whether the prosecution was duly diligent in its attempts to produce the witness;
"4. If a lack of due diligence is found or if the witness is produced, the court shall ascertain whether the defendant has been prejudiced by the failure to produce the witness at trial;
"5. If the defendant is found to be prejudiced the court shall fashion an appropriate remedy.”

After a careful examination of the record, we hold that the trial court’s actions satisfied the Pearson criteria, supra. Accordingly, we affirm and reinstate defendant’s conviction.

Affirmed.

D. E. Holbrook, J., did not participate.


author: Per Curiam. J. H. Gillis, P.J.

text:
    COOPER v COOPER
    Docket Nos. 78-3682, 78-4790.
    Submitted August 27, 1979, at Detroit.
    Decided October 16, 1979.
    Gail M. Cooper was granted a default divorce from Larry W. Cooper in 1974. The judgment granted Gail custody of the couple’s minor son Larry, gave defendant husband reasonable visitation rights and ordered him to pay support. Soon thereafter, both parents married different parties. Gail, Larry and her new husband moved from state to state, including Virginia, Texas and Idaho, where she finally established residence. During this period the plaintiff, defendant and the court made many changes affecting the life of Larry concerning support, custody and visitation rights until on September 8, 1978, Ma-comb Circuit Court, Raymond R. Cashen, J., ordered defendant, who had been given temporary custody of Larry by an ex parte order and kept the child in spite of a later countermanding order, to deliver Larry to his mother in Idaho. Defendant filed an emergency appeal with motions for immediate Consideration and a stay of proceedings. Immediate consideration was granted but the motion for a stay of proceedings was denied. On October 4, 1978, plaintiff filed a motion for attorney fees. The motion was granted by Howard R. Carroll, J., on October 26, 1978. Defendant appealed this order. On December 18, 1978, Judge Carroll issued an order removing defendant’s visitation rights completely until further order of the court. On January 3, 1979, the Court of Appeals issued an order consolidating defendant’s appeals. The issues raised on appeal, in addition to a myriad of collateral questions, are whether the trial judge’s findings of fact comported with the factors comprising the best interests of the child as set forth in the Child Custody Act and whether these findings of fact were contrary to the great weight of the evidence. Held:

      References for Points in Headnotes
    [1, 6] 24 Am Jur 2d, Divorce and Separation §§ 779, 791.
    42 Am Jur 2d, Infants §§ 43, 56.
    [2, 4] 42 Am Jur 2d, Infants §§ 43-45, 48-56.
    59 Am Jur 2d, Parent and Child §§ 25, 32.
    [3] 42 Am Jur 2d, Infants §§ 55-57.
    Opening or modification of divorce decree as to custody or support of child not provided for in the decree. 71 ALR2d 1370.
    [4] Mental health of contesting parent as factor in award of child custody. 74 ALR2d 1073.
    [5, 8] 24 Am Jur 2d, Divorce and Separation § 573.
    [7] 59 Am Jur 2d, Parent and Child § 45.

      1. A review of the record discloses that the trial court, as required by the act, made specific findings on the factors which make up the best interests of the child and that the trial judge did not commit a palpable abuse of discretion which would justify reversal.
    2. Defendant’s argument that the trial court abused its discretion in refusing to compel plaintiff to submit to a psychiatric examination is unpersuasive. It is within the court’s discretionary power to order such an examination. However, the present factual situation does not support a finding of abuse of discretion.
    3. The trial court specifically found, in awarding attorney fees to plaintiff, that she was unemployed and had no source of income other than that provided by her new husband. In contrast, the court found that defendant was employed and owned an expensive home. Based on these findings, the Court of Appeals is unable to say it would have reached a different result.
    4. Complete denial of visitation rights is a harsh remedy. The trial court gave no reason for this action with the exception that it did not trust defendant. The record reveals that a good deal of love and affection exists between father and son. Therefore, remand is necessary for a new hearing on the issue of defendant’s visitation rights.
    Affirmed in part, reversed in part, and remanded.
    J. H. Gillis, P.J., concurs on the main issues and the collateral questions except with respect to the matter of attorney fees. On this issue he dissents and would hold that the party who moves for attorney fees should allege facts showing that he or she is unable to bear the expense of the action without this aid. The test is not whether one is unemployed and the other owns an expensive home. The question is whether the moving party is unable to pay, not whether the nonmoving party is able to pay. He would remand to the trial court for a hearing to weigh the matter in light of case precedent, statute and court rule.

      Opinion op the Court
    1. Appeal and Error — Child Custody — Standard op Review — Statutes.
    An order of a circuit court in a child custody dispute shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue (MCL 722.28; MSA 25.312[8]).
    2. Parent and Child — Child Custody — Best Interest op Child — Statutes.
    The best interests of the child shall control where there is a custody dispute between parents (MCL 722.25; MSA 25.312[5]).
    3. Parent and Child — Custody — Established Custody — Best Interest op Child — Statutes.
    A court shall not change the established custody of a child unless clear and convincing evidence is presented that the change is in the best interests of the child (MCL 722.27[c]; MSA 25.312[7][c]).
    4. Parent and Child — Custody — Psychiatric Examinations — Judge’s Discretion.
    It is within the discretion of a trial court to order a psychiatric examination of a parent in a child custody dispute.
    5. Divorce — Attorney Fees — Discretion.
    The allowance of attorney fees in a suit for divorce rests in the discretion of the trial court.
    6. Appeal and Error — Divorce — Child Custody — De Novo Review — Discretion — Abuse of Discretion.
    The test for finding an abuse of discretion in a divorce-child custody action is strict; the Court of Appeals hears an appeal in a divorce case de novo on the record and will only substitute its judgment for that of the trial court where it is clear that the Court of Appeals would have reached a different result had it occupied the position of the trial court.
    7. Parent and Child — Child Custody — Visitation Rights — Best Interests op Child — Statutes.
    The Child Custody Act governs both child custody disputes and visitation rights; therefore, when determining visitation rights, as with child custody matters, the best interests of the child involved are of paramount importance (MCL 722.24, 722.27, 722.27[a]; MSA 25.312[4], 25.312[7], 25.312[7][a]).

      Concurrence in Part and Dissent in Part by J. H. Gillis, P.J.
    8. Divorce — Child Custody — Attorney Fees — Discretion — Restraint on Discretion — Statutes.

      Attorney fees are not awarded in an action for divorce and child custody as a matter of right but only if necessary to enable a party to carry on or defend the litigation; therefore, while the award of such fees rests in the sound discretion of the trial court, the trial judge is not free from restraint in the exercise of that discretion (MCL 552.13; MSA 25.93).

    9. Divorce — Child Custody — Attorney Fees — Need for Fees — Proof of Need — Court Rules.

      The party who moves for attorney fees in a suit for divorce and child custody shall allege facts showing that he or she is unable to bear the expense of the action without this aid (GCR 1963, 726.1).

    10. Divorce — Child Custody — Attorney Fees — Ability to Pay.

      The question to be answered in a petition for attorney fees in a divorce and child custody action is whether the moving party is unable to pay, not whether the nonmoving party is able to pay.

      Ross, Bruff & Henriksen, for plaintiff.

      Stanley J. Szot, for defendant.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

This case started out as a routine divorce matter. Plaintiff wife was granted a default divorce as well as custody of the minor child, Lawrence, hereinafter referred to as Larry. Defendant husband was ordered to pay support and was granted reasonable visitation. Soon thereafter, both litigants married different parties. Plaintiff married a career employee with the United States Government whose work was transferred to Virginia. At this time, plaintiff petitioned to change domicile to Virginia. In turn, defendant moved for modification of custody, alleging changed circumstances. The parties worked this out between themselves by allowing defendant greater visitation rights. Plaintiff and Larry then moved to Virginia without a court order allowing the move.

There followed a series of job-related moves by plaintiff, her new husband and Larry. The first such move took them from Virginia to Texas. As no one was apprised of plaintiff’s address, defendant was able to obtain an order to stay support payments in November, 1975. From Texas, the peripatetic trio moved to Idaho. After establishing residence there, plaintiff requested the Michigan Friend of the Court to forward the accrued support payments. These payments were halted by the November, 1975 order, however.

In October, 1977, an order was issued permitting plaintiff to change her domicile to Idaho, giving defendant Christmas and summer visitations, suspending support for refusal of visitation and providing for payment of support arrearages into escrow. In December, 1977, defendant moved to compel plaintiff to honor this order, contending that plaintiff refused to allow visitation until defendant paid Larry’s medical bills. An order to this effect was entered.

During Larry’s 1978 summer visit, defendant moved for a change of custody. At this juncture, for reasons not apparent from the court records, defendant was awarded temporary custody by an ex parte order. Thereafter, following a custody hearing, the plaintiff was permitted to retain custody and, accordingly, defendant was ordered to produce the child. While the Macomb County custody hearing was pending, however, defendant took Larry with him to Texas where he initiated custody proceedings. Later, he initiated custody proceedings in Idaho as well. We are not called upon to review the decisions of these out-state tribunals, however. Thus, we confine our consideration to the propriety of the Macomb County Circuit Court’s rulings. On September 8, 1978, in ruling on plaintiff’s show cause petition, the Ma-comb County Circuit Court ordered defendant to deliver the child to Idaho. On October 6, 1978, plaintiff moved for attorney fees, alleging that she had insufficient funds. This motion was granted and plaintiff was awarded $2,520 in attorney fees on October 26, 1978.

On December 8, 1978, plaintiff moved to modify the judgment of divorce, alleging that the defendant had attempted to contravene the court’s September 8, 1978, order and flee with the child. This modification motion requested an absolute denial of defendant’s visitation rights. The trial court granted plaintiff’s motion and revoked defendant’s visitation rights. From these adverse determinations, defendant appeals by leave granted.

The principal issues defendant raises in this appeal are whether the trial judge’s findings of fact comported with the factors comprising the "best interests of the child” as set forth in the Child Custody Act, MCL 722.23; MSA 25.312(3), and whether these findings of fact were contrary to the great weight of the evidence.

The guidelines for appellate review of custody decisions are set forth in the Child Custody Act, 1970 PA 91; MCL 722.21 et seq.; MSA 25.312(1) et seq. As indicated in MCL 722.28; MSA 25.312(8):

"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

See also Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).

When a custody dispute is between parents, the best interests of the child shall control. MCL 722.25; MSA 25.312(4). The act also provides that the court shall not change the established custody of the child unless clear and convincing evidence is presented that the change is in the best interests of the child. MCL 722.27(c); MSA 25.312(7)(c), Parrott v Parrott, 53 Mich App 635; 220 NW2d 176 (1974).

After a review of the record, we find that the trial court, as required by the act, made specific findings on the factors which make up the best interests of the child, MCL 722.23; MSA 25.312(3). Moreover, this review convinces us that the trial court did not commit a palpable abuse of discretion which would justify reversal.

The defendant raises a myriad of collateral questions with respect to the trial court’s conduct during the custody hearing. He charges the court abused its discretion and engaged in judicial misconduct by erroneously reviewing letters and reports of prospective witnesses before the hearing, conferring with plaintiffs attorney before the hearing, and providing him with psychiatric reports concerning the child, conducting an in camera hearing with one of defendant’s witnesses after she had given her testimony, and considering plaintiffs affidavits which consisted of reports prepared by the child’s out-of-state teachers, neighbors and physicians.

We have reviewed the court’s actions and found no palpable abuse of discretion. First, the letters and reports allegedly improperly reviewed by the trial court were favorable to the defendant. Moreover, the court’s on-record statements emphasized that it was impartial and that it was unaffected despite this allegedly improper review. Secondly, defendant has not made a showing that the court and plaintiff’s attorney conferred for the purpose of discussing the merits of the case before the hearing. An equally plausible inference, in the absence of such a showing, is that this conference consisted of nothing more than an innocent conversation concerning whether or not the trial would proceed as scheduled.

Thirdly, no inferences of prejudice can be drawn from the fact that the court met with one of defendant’s witnesses, the Friend of the Court representative, in chambers after she testified. If anything, this incident further demonstrates the court’s concern for the welfare of the child. Fourthly, the affidavits the defendant complains of were never formally received into evidence at the hearing, nor did the court make a reference to them in its findings of fact. Thus, it cannot be said that the trial court improperly relied upon these reports.

Next, defendant argues the trial court abused its discretion in refusing to compel plaintiff to submit to a psychiatric examination. We acknowledge it is within the court’s discretionary power to order such an examination. See Siwik v Siwik, 89 Mich App 603, 609; 280 NW2d 610 (1979). However, we find no abuse in the instant factual situation.

The defendant contends the court abused its discretion in awarding attorney fees to plaintiff in that the record is devoid of any proof that the award was essential to enable the plaintiff to defend or carry on the litigation. As generally stated, the award of such fees and expenses rests in the sound discretion of the trial court, Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959), Clemens v Clemens, 39 Mich App 626; 197 NW2d 844 (1972), Schaffer v Schaffer, 37 Mich App 711; 195 NW2d 326 (1972). The test for finding an abuse of discretion is strict. Our Court hears an appeal in a divorce case de novo on the record and will only substitute its judgment for that of the trial court when it is clear we would have reached a different result had we occupied the position of the trial court. Gove v Gove, 71 Mich App 431, 434; 248 NW2d 573 (1976). The trial court specifically found that plaintiff was unemployed and had no source of income other than that provided by her new husband, who was no longer working for the U.S. Government but was a policeman in Boise, Idaho. In contrast, the court found that defendant was employed and owned an expensive home. Based on these findings, we cannot say that it is clear that we would have reached a different result had we occupied the position of the trial court.

Lastly, defendant decries the trial court’s absolute termination of his visitation rights. Since 1971, the Child Custody Act, supra, has governed disputes over child visitation. While the act focuses on custody disputes, there can be little doubt that it was intended to control visitation privileges as well. MCL 722.24, 722.27, 722.27a; MSA 25.312(4), 25.312(7), 25.312(7)(a). Therefore, when determining visitation rights, as with child custody matters, the best interests of the child involved are of paramount importance, Lorenz v Lorenz, 70 Mich App 356, 358-359; 247 NW2d 569 (1976). Complete denial of visitation is a very harsh remedy, and while we can understand the trial judge’s wishes to write ñnis to this litigation, the trial court gave no reason for this action with the exception of stating that he did not trust defendant. Therefore, we do not know whether he was punishing the defendant or Larry or both.

In view of the foregoing, we affirm the trial court’s award of custody and attorney fees to plaintiff.

We remand this cause for a new hearing on the issue of defendant’s visitation rights, however. The record reveals that a good deal of love and affection exists between father and son. At this hearing, the trial court’s factual findings on this issue shall be set forth and detailed on the record.

Affirmed in part; remanded in part. We do not retain jurisdiction. No costs.

J. H. Gillis, P.J.

(concurring in part, dissenting in part). I cannot agree with the majority’s disposition of the case with respect to the matter of attorney fees.

In the trial court, plaintiff was awarded attorney fees in the amount of $2,520. The award of such fees rests in the sound discretion of the trial court. Schaffer v Schaffer, 37 Mich App 711; 195 NW2d 326 (1972). The trial court, however, is not unfettered in the exercise of that discretion. Attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. Gove v Gove, 71 Mich App 431; 248 NW2d 573 (1976), MCL 552.13; MSA 25.93.

The applicable court rule also requires that the party who moves for attorney fees shall allege facts showing that she or he is unable to bear the expense of the action without this aid. GCR 1963, 726.1, Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).

In the present case, the trial court appears to have based its decision upon a comparison of plaintiffs unemployed status to the defendant’s employed status and his ownership of an expensive home. This was improper. The question is whether the moving party is unable to pay, not whether the nonmoving party is able to pay.

Furthermore, we note that the trial court failed to consider as a factor those assets which plaintiff gained in the property settlement between the parties. See Mixon v Mixon, 51 Mich App 696, 703; 216 NW2d 625 (1974).

For the foregoing reasons, I would remand the cause to the trial court. On remand, I would request the trial court to weigh the award of attorney fees in light of the above-cited cases, the statute and the court rule.


text:
    PEARSALL v WILLIAMS
    Docket Nos. 78-3279, 78-3280.
    Submitted June 18, 1979, at Detroit.
    Decided October 16, 1979.
    Leave to appeal applied for.
    Nancy C. Pearsall and Clyde D. Pearsall brought an action for damages against Charles Williams, D.O., Lapeer County General Hospital, and other individuals, alleging that their daughter, Kimberly A. Pearsall, suffered brain damage because of insufficient oxygen supply at birth, due to the negligence of the individual defendants and the hospital’s employees. Mrs. Pearsall also brought an action, as guardian of the estate of Kimberly, against the same defendants. The Oakland Circuit Court, Farrell E. Roberts, J., granted accelerated judgment in both actions to the defendant hospital on the basis of governmental immunity. The plaintiffs appeal. Held:

    1. The operation of the hospital was not a government function within the meaning of the governmental immunity statute.
    2. Whether or not a government-operated hospital coexists and competes with private hospitals is irrelevant to the question of immunity from tort liability.
    3. A constitutional provision limiting the taxing powers of local governments will not be construed so as to prevent or obstruct the satisfaction of a lawful judgment against a county.
    Reversed.
    1. Torts — Governmental Immunity — Hospitals — Statutes.
    The day-to-day operation of a municipally-owned general hospital providing the public with medical service for a fee is not a governmental function within the meaning of the statute which provides governmental immunity from tort liability (MCL 691.1407; MSA 3.996[107]).
    References for Points in Headnotes
    [1, 2] 40 Am Jur 2d, Hospitals and Asylums §§ 20, 22.
    Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital. 25 ALR2d 203.
    [3] 16 Am Jur 2d, Constitutional Law § 88.
    71 Am Jur 2d, State and Local Taxation § 93.

      2. Torts — Governmental Immunity — Hospitals.
    It is irrelevant, for the purpose of determining that the operation of a government-operated public hospital is not a governmental function for purposes of immunity from tort liability, whether or not another, private, hospital competes in providing health care.
    3. Constitutional Law — Courts — Construction of Constitution — Judgments.
    The courts, when construing a constitutional amendment which limits the taxing powers of local governments, should avoid a construction which would prevent or obstruct the satisfaction of lawful judgments (Const 1963, art 9, § 31).

      Sommers, Schwartz, Silver & Schwartz, P.C., for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by John P. Jacobs and J. P. O’Leary), for Lapeer County General Hospital.
    Before: Bashara, P.J., and V. J. Brennan and J. C. Daner, JJ.

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

   V. J. Brennan, J.

Kimberly A. Pearsall, daughter of Nancy and Clyde Pearsall, was delivered at Lapeer County General Hospital on February 10, 1972. Plaintiffs allege that Kimberly sustained serious brain damage resulting from an insufficient supply of oxygen during delivery, attributable to the negligence of the individual defendants and defendant hospital’s employees. Plaintiffs brought these actions on behalf of themselves and Kimberly to recover damages.

The lower court granted accelerated judgment to defendant Lapeer County General Hospital on the basis of defendant’s assertion of the defense of governmental immunity. Plaintiffs’ brief on appeal, filed October 7, 1978, sought to overcome the defense of governmental immunity by arguing that the operation of Lapeer County General Hospital was a proprietary rather than a governmental function. The hospital responded by filing a motion to affirm on the strength of this Court’s consistent holdings that the doctrine of governmental immunity protects a government operated hospital from tort liability for medical malpractice. Defendant’s motion to affirm was denied on February 14, 1979, and defendant was invited to brief and discuss the application of the Supreme Court decision in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), to the present case.

As to defendant’s contention that Parker does not divest every community hospital "no matter what the facts” from governmental immunity protection, we agree that the opinions of Justice Fitzgerald and Justice Moody do not forbid a case-by-case approach. Circumstances may arise or certain programs may be undertaken by a hospital to which governmental immunity may apply. See Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978).

However, the form in which the separate opinions comprising the majority address the question leaves no doubt that the function involved in this case is not protected by governmental immunity.

"We granted leave to consider whether the day-to-day operation of a hospital is a 'governmental function’ as that phrase is used in the statute. [MCL 691.1407; MSA 3.996(107)].” 404 Mich at 190 (Fitzgerald, J., emphasis added.)
"The question of law on this appeal is whether the activities conducted by a municipally owned general hospital providing the public medical service for a fee constitute a governmental function within the meaning of MCL 691.1407; MSA 3.996(107).” 404 Mich at 196. (Moody, J., emphasis added.)

Defendant next asserts that Parker was based upon the reasoning that a government-operated hospital should not enjoy governmental immunity because it competes with private enterprise in the operation of a business, and since Lapeer County General Hospital is the only hospital in Lapeer County, Parker does not apply. We disagree.

Both the opinions of Justice Fitzgerald and Justice Moody note that the government-operated hospitals coexist and compete with private hospitals in providing health care, but neither opinion identifies the existence of actual competition as a crucial fact in the analysis. Parker simply concludes that the operation of a community general hospital is not a "governmental function” under the criterion set forth, since the task could hypothetically be undertaken just as well by private enterprise. Whether private enterprise has actually entered a particular field is irrelevant.

Finally, defendant argues that the Parker decision failed to take into account the Headlee tax limitation amendment to the Michigan Constitution which prohibits units of local government from levying new taxes or increasing the rate of existing taxes without prior voter approval. It is defendant’s position that the tax amendment creates secondary governmental immunity because the only way for a tort judgment against the county to be enforced is by way of an additional tax assessment which was prohibited by Headlee. We find defendant’s contention without merit.

Section 31 of the Headlee amendment, Const 1963, art 9, § 31, provides:

"Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter when this section is ratified or from increasing the rate of an existing tax above that rate authorized by law or charter when this section is ratified, without the approval of a majority of the qualified electors of that unit of Local Government voting thereon.”

It is readily apparent that the amendment does not address itself to the question of governmental immunity. The courts, if at all possible, should avoid a construction of the amendment which would prevent or obstruct the satisfaction of lawful judgments. See Morley Brothers v Carrollton Twp Supervisor, 312 Mich 607; 20 NW2d 743 (1945).

The accelerated judgment entered in favor of defendant Lapeer County General Hospital is vacated.

Reversed.