author: Cynar, P.J. D. C. Riley, J.

text:
    PEOPLE v ROBERSON
    Docket No. 77-3575.
    Submitted February 14, 1979, at Detroit.
    Decided May 21, 1979.
    Clarence Roberson was found guilty, in Detroit Recorder’s Court, Samuel H. Olsen, J., of first-degree criminal sexual conduct. Prior to trial defendant sought appointment of new counsel because of a dispute with his counsel. Upon a resolution of the dispute, the trial judge denied the motion for new counsel and trial proceeded with the previously appointed counsel. Defendant moved for suppression of defendant’s prior criminal record. The trial judge, indicating that such motion was addressed to his discretion, denied the motion without further comment. Over objection, the complainant’s mother was permitted to testify as to the statements made by complainant shortly after the occurrence of the assault. Defendant was sentenced to 70 to 110 years imprisonment, with the recommendation that he not be paroled for at least 50 years. Defendant appeals. Held:

    1. The request for appointment of new counsel was properly denied, since the disagreement between defendant and counsel was resolved prior to trial.
    2. Denial of the motion to exclude references to defendant’s prior criminal record was proper since the trial judge recognized his discretion in admitting such evidence and since there is no affirmative misapplication of that discretion; there is no requirement that the trial judge discuss on the record the factors considered in such determination.
    3. The testimony of complainant’s mother was properly admitted under the res gestae exception of the hearsay rule.
    4. The failure of the trial court to specifically instruct the jury on identification of the defendant, in the absence of a request for the same, did not result in reversible error, since the jury was instructed that they must determine that defendant was the person who committed the charged offense.

      References for Points in Headnotes

       7 Am Jur 2d, Attorneys at Law § 148.

       29 Am Jur 2d, Evidence §§ 321, 333.

       29 Am Jur 2d, Evidence §§ 719, 728.

       75 Am Jur 2d, Trial § 725.

       75 Am Jur 2d, Trial §§ 218, 219, 251.

       75 Am Jur 2d, Trial § 305.

       75 Am Jur 2d, Trial § 225.

       21 Am Jur 2d, Criminal Law §§ 234, 525.

      5. The closing arguments of the prosecutor, taken as a whole, were not improper.
    6. The sentence imposed, being within the statutory limits, will not be disturbed where the record indicates that defendant’s individual circumstances were considered and there is no indication that defendant was punished for exercising his right to a trial.
    7. The record fails to establish that defendant was denied effective assistance of counsel.
    Affirmed.
    D. C. Riley, J., dissented. She would hold that the trial court must set forth on the record the criteria considered in its determination of whether or not to admit evidence of the defendant’s prior criminal record. Since there is no record upon which the Court of Appeals can determine whether the trial court properly exercised its discretion, she would reverse defendant’s conviction.
    Opinion of the Court
    1. Criminal Law — Attorney and Client — Court-Appointed Counsel — Substitution of Counsel.
    A defendant’s request for appointment of new counsel is properly denied where defendant’s disagreements with counsel are resolved prior to trial.
    2. Criminal Law — Evidence — Prior Convictions — Exclusion of Evidence — Discretion — Exercise of Discretion.
    The failure of the trial court to discuss on the record the criteria considered in the decision to deny a motion to exclude references to defendant’s prior criminal record does not establish reversible error where the trial court recognized its discretion in admitting such evidence and there is the absence of an affirmative misapplication of the criteria to be considered in the exercise of such discretion.
    3. Criminal Law — Evidence — Hearsay — Res Gestae.
    Testimony of the mother of a victim of a sexual assault concerning statements made by the victim shortly after the assault are properly admitted under the res gestae exception to the hearsay rule as statements made when the victim was still under the strain of the incident.

      4. Criminal Law — Instructions to Jury — Identification — Failure to Object.
    The failure of the trial court to instruct the jury specifically on the identification of the defendant does not result in reversible error where the trial court instructed the jury that they must determine beyond a reasonable doubt that the defendant was the person who committed the charged offense and where there was no request for further instructions as to identification.
    5. Criminal Law — Prosecutor’s Argument — Details of Offense.
    Repeated references by the prosecutor in closing argument to the details of the offense, although unnecessary, are not improper where such references are limited to the facts and are made using the phraseology of the witnesses.
    6. Criminal Law — Prosecutor’s Argument — Credibility — Inference from Testimony.
    Remarks by the prosecutor in closing argument concerning the dubious credibility of alibi witnesses is proper where such doubt is a fair inference drawn from their testimony.
    7. Criminal Law — Prosecutor’s Argument — Reasonable Doubt — Usurpation of Court’s Role.
    A brief reference by the prosecutor in closing argument to the notion of “reasonable doubt” did not usurp the court’s role in instructing the jury.
    8. Criminal Law — Sentences — Statutory Limits — Individual Circumstances — Exercise of Right to Trial.
    A sentence within the statutory limits will not be disturbed where the record indicates that the defendant’s individual circumstances were considered and there is no indication that the defendant was punished for exercising his right to a trial.
    Dissent by Riley, J.
    9. Criminal Law — Evidence — Prior Convictions — Exclusion of Evidence — Exercise of Discretion — Record on Appeal.

      A trial court, in considering the admission of evidence of a defendant’s prior criminal record for the purpose of impeachment, should set forth on the record the criteria considered in its decision so that an appellate court can ascertain whether the trial court’s determination was a proper exercise of its discretion.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Rose Mary C. Robinson, for defendant on appeal.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   Cynar, P.J.

On May 11, 1977, defendant was convicted by a jury of first-degree criminal sexual conduct, a violation of MCL 750.520b(l); MSA 28.788(2X1). On May 20, 1977, he was sentenced to 70 to 110 years imprisonment, with a recommendation that he not be paroled for at least 50 years. Defendant now appeals as of right.

Defendant’s conviction arose out of events occurring in the early morning hours of June 11, 1976. Two days previously, the complaining witness, Yvette Brown, age 14, had run away from home. She feared her parents would punish her because she had failed almost all of her classes at school. On the evening of June 10, 1976, she boarded a bus at Northland Shopping Center and stayed on the bus until being told that the day’s run had ended. Upon alighting from the bus, she walked toward a restaurant, but was accosted by a man, later identified as defendant, who threatened her with a gun. The two walked to an alley, where he forced her to commit fellatio. They entered a house, where he forced her again to commit fellatio. He then told her to go home and threatened to kill her and her mother if she called the police.

Ms. Brown returned to her home, which was located about two miles from the scene of the offense. Upon arriving there, she told her mother what had occurred. The police were notified, and Ms. Brown was taken to the area where the incident occurred. She identified the house where she had been taken and later identified defendant at a police lineup. Defendant was arrested at his home at 5:30 a.m. A handgun, found in his bedroom, was seized.

The police officer, who interviewed Ms. Brown that morning, took a statement from her that defendant had accosted her at about 9:50 p.m. on June 10, 1976. However, the complainant’s mother testified, over objection, that her daughter had returned at about 1:30 or 2:00 a.m. and that her daughter had told her that she had left defendant’s house 30 or 45 minutes earlier. At the preliminary examination, Ms. Brown adopted the later time as the time of the offense.

At trial defendant called Barbara Waters, an employee of the City of Detroit Department of Transportation, as a witness. She testified that bus number 24 was the only bus operating from North-land that ended its run on the evening of June 10, 1976. This bus went out of service at 10:57 p.m. Defendant also called three witnesses, who testified they were with him from 8:30 or 9:00 p.m. until about 11:30 p.m. in the evening in question.

Defendant initially contends that the trial judge erred in denying defendant’s request for the substitution of counsel.

On the day of the trial, defense counsel brought to the trial judge’s attention the existence of a dispute between him and his client. Defendant desired counsel to call three alibi witnesses to testify and also complained that no evidentiary hearing had been held to determine the admissibility of the gun and some clothing seized at the time of his arrest. In response, defense counsel agreed to call the alibi witnesses and the trial judge held a pretrial hearing regarding the admissibility of the seized evidence. The judge also denied defendant’s motion for the appointment of new counsel.

We find no error in the action taken by the trial judge. In order to be entitled to the appointment of a new counsel, defendant must show, among other things, a legitimate reason for asserting this right. People v Charles O Williams, 386 Mich 565, 578; 194 NW2d 337 (1972). Since defendant’s complaints as to counsel’s representation were resolved before trial, defendant failed to meet his burden of establishing the need for the appointment of substitute counsel. See for example People v Bradley, 54 Mich App 89, 94-96; 220 NW2d 305 (1974).

Defendant next contends that the trial judge abused his discretion in admitting evidence of defendant’s prior felony convictions.

The decision to admit evidence of prior convictions is left to the discretion of the trial judge. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). When called upon to exclude evidence of prior convictions, a trial judge must recognize his discretion on the record, People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), and should exercise his discretion with reference to three specific criteria, People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). Error has been found where the trial judge places the burden on the defendant to justify exclusion, People v McCartney, 60 Mich App 620, 624; 231 NW2d 472 (1975), where the trial judge delegates the decision regarding admissibility to the parties, People v Dennis Johnson, 85 Mich App 181, 183-184; 270 NW2d 734 (1978), where the trial judge affirmatively indicates his belief that the defendant will be convicted if the prior convictions are put before the jury, People v Crawford, supra, and where the judge erroneously construes a factor to favor admission rather than exclusion, People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979).

In the present case, the trial judge recognized his discretion in admitting the evidence of defendant’s prior convictions and indicated this on the record. Although the trial judge did not discuss the three criteria on the record, we do not read the prior case law as requiring a finding regarding these factors. Indeed, had the Supreme Court desired to impose such a rule on trial judges, it could have easily done so in People v Baldwin, supra. In the absence of an affirmative misapplication of the three criteria, we are unwilling to presume that the trial judge failed to consider the relevant criteria in admitting the evidence. Since the trial judge recognized and exercised his discretion in admitting the evidence, no error occurred.

Defendant next claims that the trial judge erred in admitting, over objection, the testimony of complainant’s mother concerning the complainant’s account of the incident. He claims this evidence was inadmissible hearsay. We disagree. This testimony falls within the res gestae exception to the hearsay rule, as the statement was made within 45 minutes of the sexual assault, at a time when the victim was still under the strain of the incident. People v Spalding, 42 Mich App 492, 499-500; 202 NW2d 450 (1972), overruled on other grounds in People v Reed, 393 Mich 342, 350-351; 224 NW2d 867 (1975). Furthermore, since the victim testified at trial, her mother’s testimony concerning her prior account of the evidence was cumulative in nature and could not have prejudiced defendant. See People v Carson, 87 Mich App 163; 274 NW2d 3 (1978).

Defendant next contends that the trial judge erred in failing to instruct the jury on the issue of identification. The trial transcript indicates that the jury was instructed that they must determine beyond a reasonable doubt that defendant was the person who committed the charged offense. No request for further instructions on this subject was made by defense counsel. Under these circumstances, no error occurred. People v Manuel Johnson, 58 Mich App 347, 355-356; 227 NW2d 337 (1975).

Defendant next argues that the prosecutor’s closing argument contained numerous prejudicial remarks. We conclude that no error occurred. No objection was made to these comments at trial. The prosecutor’s repeated references to the details of the offense, although unnecessary, were limited to the facts and were made using the phraseology of the witnesses at trial. The remarks concerning the dubious credibility of the alibi witnesses offered by defendant was a fair inference drawn from their testimony, People v Caldwell, 78 Mich App 690, 692; 261 NW2d 1 (1977). Nor did the brief reference to the notion of "reasonable doubt” in any way usurp the court’s role in instructing the jury. People v Adams, 48 Mich App 595, 603; 210 NW2d 888 (1973).

Defendant also alleges that the trial judge erred at sentencing by imposing a sentence merely on the basis of the nature of the offense and not on the basis of defendant’s own unique characteristics. He further claims that he was punished for exercising his right to a trial. These arguments are totally without merit. The record indicates that the trial judge considered defendant’s past record and imposed a sentence commensurate thereto. Since the sentence imposed falls within the statutory limits, we decline to disturb it. People v McLott, 70 Mich App 524, 527; 245 NW2d 814 (1976). Nor does the record in any way support defendant’s claim that he was punished for exercising his right to a trial in this case.

Defendant’s final contention is that he was denied the effective assistance of counsel at trial. He asserts 11 different errors or omissions he claimed were committted by defense counsel. Several of these, such as the content of the opening statement and the decision to eschew instructions on lesser-included offenses, relate to trial strategy and will not support a claim of ineffective assistance of counsel. People v Malchi White, 81 Mich App 226, 229; 265 NW2d 100 (1978). Our review of the other alleged deficiencies leads us to conclude that no violation of the standard set forth in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), occurred.

Affirmed.

D. E. Holbrook, Jr., J., concurred.

D. C. Riley, J.

(dissenting). I write separately in order to express my disagreement with the majority’s conclusion that a trial judge is not required to balance the factors enunciated in People v Jackson, 391 Mich 323, 333; 217 NW2d 22 (1974), and People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978), on the record. Judicial consideration in an area of law which results in the promulgation of carefully demarcated guidelines should not be rendered nugatory by cursory reference to the discretionary nature of an activity required of trial judges, but should rather involve a legitimate attempt to gauge the prejudicial and probative impact of admitting felony convictions for impeachment purposes. As People v Crawford, supra, at 38 noted, the rule "envisions a true exercise of discretion by balancing the competing factors involved”. While it is correct that no Michigan case has yet expressly required an on-the-record discussion of the Jackson-Crawford components, it seems rather anamolous, indeed, that trial judges should be admonished to consider and balance those elements as. part of their decision-making process, and yet provide no method for ensuring by way of appellate review that those requirements are complied with. The rule as it stands effectively shields trial court impeachment determinations from review by a higher court. The present case serves as a sufficient example. Before empaneling the jury, defendant moved to suppress the admission of his prior felony convictions. The record offers the following dialogue:

"THE COURT: Are there any other matters?
"MR. ZACK [Defense Attorney]: Yes, I would move to suppress the prior record of the defendant in this matter.
"THE COURT: Now what is his prior record?
"MR. ZACK: His prior record — I don’t have a copy of it. The prosecutor has.
“MR. BAHEN [Assistant Prosecuting Attorney]: The prior record indicates he was convicted of assault with intent to rape on January 11 of 1966. He has a sodomy charge — excuse me — a charge of sodomy. He was convicted of gross indecency in December 23rd, 1970. He has a receiving and concealing stolen property December 3rd, 1970. That’s the extent of his record.
"We have one case pending which is not part of this record.
"THE COURT: The Court makes the following rulings:
"All misdemeanor convictions are hereby suppressed.
"As far as felony convictions, that’s a discretionary matter with the Court. I’ll permit the prosecuting attorney to show any felony convictions if the defendant takes the witness stand.”

The trial judge’s perfunctory disposition followed immediately after he was informed by the prosecution of defendant’s previous record. Although the court recognized its power of discretion, the record is barren of any evidence that the Jackson-Crawford factors were considered (or any showing that the court was cognizant of them). Nor, as the passage of time between the trial judge’s awareness of defendant’s felony record and his decision to admit the convictions indicates, was there sufficient time to support even an inference that any balance of considerations occurred. Here, defendant had three previous felony convictions, all of which were at least six years old. Two were for sexual offenses, one occurring 11 years before the present trial. People v Jackson, supra, cautioned against the danger inherent in the admission of similar crimes for impeachment purposes, and indicated that the trial courts were to be guided in the exercise of their discretion by the criteria discussed in Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), and Luck v United States, 121 US App DC 151; 348 F2d 763 (1965). Gordon included the following excerpt:

"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time.’ As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” 127 US App DC at 347. (Emphasis supplied.)

It should further be noted that defendant elected not to take the stand as a result of the court’s decision. But again, no weight was given these considerations by the lower court.

In sum, if the Jackson-Crawford criteria are to exist as something more than an ineffectual assemblage of hollow directives, care should be taken, by means of an on-the-record deliberation, that their requirements are given full consideration. Inasmuch as defendant may have been precluded from testifying due to the court’s faulty impeachment inquiry, as he made no inculpatory statements, nor was any physical evidence tying him to the offense produced, I cannot conclude that the error was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551; 563; 194 NW2d 709 (1972), People v Sherman Hall, 77 Mich App 456, 461; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978), People v Heard, 58 Mich App 312, 316; 227 NW2d 331 (1975), lv den 400 Mich 812 (1977). Defendant’s conviction should be reversed.

       In Crawford, the Court set out the criteria as follows:
      "The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a 'bad man’ or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?).”

       To this may be added the rule that the people, not the defendant, must justify to the court the use of prior convictions for impeachment. People v Crawford, 83 Mich App 35, 38; 268 NW2d 275 (1978), People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975). The transcript discloses nothing by way of prosecutorial argument in favor of their admission.


source: Caselaw Access Project

author: R. B. Burns, J.

license: Public Domain

text:
    MAZUREK v STANDARD OIL COMPANY
    Docket No. 77-4582.
    Submitted April 5, 1979, at Grand Rapids.
    Decided May 21, 1979.
    Leave to appeal applied for.
    Plaintiff, David Mazurek, is the administrator of the estate of Sharon Mazurek, who died in a fire when static electricity ignited some naphtha she was pouring from one container to another. Defendant, Standard Oil Company, had delivered the naphtha to the decedent’s employer for the past 20 years, placing it in black drums. Plaintiff alleged negligence in 1) delivering the naphtha in violation of a statute requiring delivery of naphtha into containers painted vermillion red, 2) in failing to warn of the volatility of the naphtha and the safe method of transferring the naphtha from one container to another, and 3) misrepresentation of the volatility of the naphtha through a billing error indicating a less volatile form of naphtha. At trial, after the evidence was all in, the Kent Circuit Court, George R. Cook, J., refused to submit plaintiff’s theory of the case to the jury after it learned that defendant had not prepared a theory of the case, holding that what plaintiff wanted submitted was actually a second closing argument and that the court had no duty to edit it for submission to the jury. The court went on to instruct the jury in effect that the elements of misrepresentation must be found in order to find liability under any theory. The trial court also instructed the jury that it need not infer negligence from a violation of a statute if defendant proved an excuse for the violation and if defendant exercised ordinary care. The jury returned a verdict of no cause of action. Plaintiff appeals. Held:

    1. Under a court rule, the trial court had a duty to present plaintiff’s theory of the case when requested, either as submitted or edited so as to present the material substance of the theory; there is no exception where one party fails to prepare a theory of the case.
    2. The court erred in effectively instructing the jury that misrepresentation was necessary to find liability under any of plaintiffs theories.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 698, 699.

       57 Am Jur 2d, Negligence § 8.

      3. It was error for a trial court to instruct the jury that it need not infer negligence from a violation of a statute if the violator proved an excuse for the violation and if he exercised ordinary care where there was no evidence from which the jury might infer that the statute violation was excusable.
    Reversed and remanded.
    1. Trial — Instructions to Jury — Theory of Case — Court Rules.
    A trial court must, upon request, present to the jury after the close of the evidence a party’s theory of the case, either as submitted or edited so as to present the material substance of the theory, and it is error to refuse a party’s request to submit his theory of the case to the jury for the reason that the other party had failed to prepare a theory of the case (GCR 1963, 516.7).
    2. Negligence — Violation of Statutes — Instructions to Jury.
    It was error for a trial court to instruct the jury that it need not infer negligence from a violation of a penal statute if the violator proved an excuse for the violation and if he exercised ordinary care where there was no evidence from which the jury might infer that the statute violation was excusable.

      Ryan, Boerema, Jarosz, Kail & Gaskin and Cholette, Perkins & Buchanan (by Robert A. Benson), for plaintiff.

      Warner, Norcross & Judd (by Wellson G. Knack), for defendant.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and Bashara, JJ.
   R. B. Burns, J.

In this wrongful death action, a jury returned a verdict of no cause of action against plaintiff, who appeals. We reverse.

Plaintiff’s decedent was an employee of Baker Furniture Company. Over a period of at least 20 years defendant delivered a highly volatile form of naphtha and deposited it in black 55-gallon drums located in Baker’s oil house. Baker employees took naphtha from the drums into the Baker factory in five-gallon cans. On February 5, 1976, static electricity ignited naphtha being poured from a five-gallon can to a one-gallon jug by plaintiffs decedent. Plaintiff’s decedent died of burns on May 17, 1976.

The trial in this case was a long one, and the proofs complex. Evidence presented by plaintiff tended to establish negligence under three theories. The first concerned defendant’s violation of MCL 750.502; MSA 28.770, which requires that deliveries of naphtha be made to containers painted vermillion red. The second concerned the failure of defendant to warn of the volatility of the naphtha and the safe method of transferring naphtha from one container to another. The third concerned possible misrepresentation by defendant of the volatility of the substance through a billing error indicating that a less volatile form of naphtha had been delivered. Defendant focused upon evidence tending to indicate a lack of proximate causation.

Plaintiff argues on appeal that the trial court made a number of instructional errors, to which he had objected. Defendant responds that none of the instructional errors were preserved for review, for no grounds for objection were given. GCR 1963, 516.2, Kotila v McGinty, 28 Mich App 396; 184 NW2d 462 (1970). The purpose of the requirement that the grounds for objection be stated is to inform the trial court of the nature of the objection so that it may make a reasoned decision as to the validity of the particular instruction. Kotila v McGinty, supra. The instructions in this case were prepared by the trial judge, who heard and resolved objections off the record before the instructions were read to the jury by a substitute judge. Although the substitute judge allowed counsel to state objections for the record, he did not consider the substance of the objections, for the trial judge had already ruled thereon. Thus, the opportunity given counsel to state objections was pro forma, solely designed to preserve issues for appeal. Defense counsel made no objection to this procedure or to the brevity of plaintiffs objections. We find that the basis for three objections can be discerned from the record, and conclude that those objections were sufficiently specific to preserve the issues for review.

Plaintiffs counsel submitted to the trial court his theory of the case. GCR 1963, 516.7. Upon ascertaining that defense counsel had not prepared a theory of the case, the trial court asked plaintiffs counsel to waive plaintiffs right to have his theory read to the jury. When plaintiff’s counsel declined, the trial court ruled that it would not give any instruction on the parties’ theories of the case. At the conclusion of the jury instructions, plaintiffs counsel objected to the trial court’s failure to give plaintiffs theory of the case. The trial judge later opined that what plaintiff had submitted was actually a second closing argument, and that he had no duty to edit plaintiffs theory of the case.

GCR 1963, 516.7 is mandatory. The trial court must either give the theory as submitted or edit it so as to present to the jury the material substance of the theory. The rule provides for no exception where the opposing party fails to submit a theory of the case. Moore v B & C Family Center, Inc, 85 Mich App 600; 272 NW2d 150 (1978).

The trial court’s failure to provide the jury with a statement of the issues and theories of the case aggravated the effect of a second error. The instructions on the law relating to plaintiff’s three theories were presented in a disjointed and confusing manner. The instruction on misrepresentation contained no introductory words identifying it as a separate and distinct theory of liability under which plaintiff could recover. Rather, the instruction effectively advised the jury that it must find the elements of misrepresentation in order to find liability under any theory. Plaintiff’s counsel correctly objected, stating that the jury should be advised that the elements of misrepresentation need not be proven in order for plaintiff to recover under a different negligence theory.

The third error concerns the trial court’s instruction on the effect of defendant’s violation of MCL 750.502; MSA 28.770. The trial court instructed the jury that it need not infer negligence from a violation of a statute if defendant proved an excuse for the violation and if defendant exercised ordinary care. Plaintiff’s counsel had requested that the jury be instructed that a violation of the statute established negligence as a matter of law, and that only proximate causation remained to be found to establish liability. Plaintiff’s counsel objected to the instruction given.

In Zeni v Anderson, 397 Mich 117, 143; 243 NW2d 270 (1976), the Supreme Court held that, where a penal statute is adopted as the standard of care in a negligence action, violation of the statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute established a legally sufficient excuse for the violation. This holding may be read as requiring that an "excuse” instruction be given even where there is no evidence of a legally sufficient excuse. Such a determination would be dictum, for in Zeni there was some evidence of a legally sufficient excuse. In Poplowski v Huron Clinton Metropolitan Authority, 78 Mich App 644; 260 NW2d 890 (1977), lv den with disclaimer of Court of Appeals analysis, 402 Mich 882 (1978), this Court stated that Zeni should not be read so broadly, and that an "excuse” instruction should be given only where there is some evidence from which a jury could infer that a statute violation was excusable. The holding in Poplowski is consistent with the general, well established rule that an instruction of law should not be given unless there is some evidence to support the instruction. See, e.g., Massey v Scripter, 401 Mich 385, 393; 258 NW2d 44 (1977). We agree with the decision in Poplowski. We also agree with plaintiff that evidence that the violation was a long recurring one is not evidence of a legally sufficient excuse, and that the "excuse” instruction should not have been given.

Reversed and remanded for a new trial. Costs to plaintiff.


author: T. M. Burns, J. J. H. Gillis, J.

text:
    McPHERSON v AUTO-OWNERS INSURANCE COMPANY
    Docket No. 77-4726.
    Submitted February 6, 1979, at Grand Rapids.
    Decided May 21, 1979.
    Leave to appeal applied for.
    Plaintiff, Joyce L. McPherson, was injured when she slipped and fell on an obstruction in the highway. The accident occurred at the rear of her parked car while she was in the process of going around the car to remove her three-year old grandson from the back seat. Plaintiff commenced an action against Auto-Owners Insurance Company, the no-fault insurer of her automobile, for first-party benefits. The Kalamazoo Circuit Court, Patrick H. McCauley, J., found that there could be no liability on the agreed facts of the case and a judgment for the defendant was entered. The plaintiff appeals. Held:

    The plaintiff was covered by her insurance policy under the provision of the no-fault insurance act which covers bodily injury sustained while entering into or alighting from her vehicle. It is sufficient that the automobile provided the occasion for the injury; it is not necessary that the automobile be the cause of the injury.
    Reversed and remanded for entry of summary judgment for the plaintiff on the question of liability and for a determination of damages.
    J. H. Gillis, J., dissented. He would hold that even where a person is occupying, entering into or alighting from a vehicle, it must still be shown that there is a causal relationship between the injury and the ownership, use or maintenance of the vehicle. Such causal relationship was not established here. He would affirm.
    Opinion of the Court
    1. Insurance — Automobiles — Words and Phrases — No-Fault Insurance — Statutory Construction — Statutes.
    An interpretation of the phrase "occupying, entering into or alighting from the vehicle” in the no-fault automobile insurance act which does not hold physical contact with a vehicle mandatory is a far more reasonable and persuasive approach; this interpretation accords with a strict reading of policy language, well implements the time-honored policy of construction of policy language against the insurer and guards against recovery based upon "fortuitous circumstances” (MCL 500.3106[c]; MSA 24.13106[c]).

      References for Points in Headnotes
    [1, 2, 4] 7 Am Jur 2d, Automobile Insurance §§ 127, 154.
    New Topic Service, No-Fault Insurance §§ 18, 19.
    Scope of clause of insurance policy covering injuries sustained while alighting from or entering automobile. 19 ALR2d 513.

       New Topic Service, No-Fault Insurance § 18.

      2. Insurance — Automobiles — No-Fault Insurance — Parked Vehicles — Continuity of Use — Statutes.
    A person who had just stepped out of an automobile which was covered by a no-fault insurance policy and then, while going around to enter the automobile from the other side, slipped and fell on an obstruction in the highway and suffered personal injuries is insured under the provision of the no-fault automobile insurance act which covers injuries sustained by a person while "occupying, entering into or alighting from” a parked vehicle; there is such coverage where the injured person intends a continued use of the car; it is unnecessary that the automobile be a cause of the injury, it is sufficient that the automobile provides the occasion for the injury (MCL 500.3106[c]; MSA 24.13106[c]).
    Dissent by J. H. Gillis, J.
    3. Insurance — Automobiles — Injury — Causal Connection — Ownership, Maintenance, or Use — Statutes.

      There must be a causal connection between an injury sustained and the ownership, maintenance or use of an automobile to create a claim under the terms of an automobile insurance policy which provides coverage for injuries arising out of the ownership, maintenance or use of an automobile; the causal connection must be more than incidental, fortuitous or "but for”, and the injury must be foreseeably identiñable with the normal use, maintenance and ownership of the vehicle (MCL 500.3105; MSA 24.13105).

    4. Insurance — Automobiles — Injury — Causal Connection — Ownership, Maintenance or Use — Parked Vehicle — Statutes.

      A causal connection between a plaintiff’s injury and the ownership, use or maintenance of a motor vehicle must be shown, even where a person is occupying, entering into, or alighting from the vehicle, before the plaintiff is covered by the provisions of the no-fault automobile insurance act which pertain to

      personal injuries arising out of the ownership, operation, maintenance or use of a parked vehicle (MCL 500.3106; MSA 24.13106).

      Jerkin, Plaszczak, Hurley & Bauhof, for plaintiff.

      Ryan, Jamieson & Hubbell, for defendant.
    Before: D. F. Walsh, P.J., and J. H. Gillis and T. M. Burns, JJ.
   T. M. Burns, J.

Plaintiff sued to recover first-party benefits under a no-fault insurance contract issued by defendant covering her automobile. Plaintiff had temporarily parked her car and was in the process of going around it to remove her three-year-old grandson from the back seat. While at the rear of the automobile she slipped and fell on an obstruction in the highway, sustaining injury.

The controlling statute is MCL 500.3106(c); MSA 24.13106(c). It provides:

"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(c) The injury was sustained by the person while occupying, entering into or alighting from the vehicle.”

The trial court found that there could be no liability on the agreed facts of this case and our review is, therefore, as if the judgment were one under GCR 1963, 117.2(3). In the trial court’s opinion, it is stated that there was no "causal connection” between the injury and plaintiffs entering into or alighting from the motor vehicle.

We reverse.

The terms used in subsection (c) of the statute are not new with the statute. They have been used in medical coverage provisions of insurance contracts for some time in clauses which provide benefits without regard to a particular person’s negligence. See, Anno: Automobile insurance: when is a person occupying an automobile within meaning of medical payments provision, 42 ALR3d 501, § 2(a), pp 504-505. In effect, these clauses provided for a type of no-fault benefit before the current no-fault statutes came into being. We would interpret this statute in light of the previous court interpretations of similar language in insurance policies.

Our courts have dealt with the phrase and policies on several occasions. The most important of these cases is Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975), rev’g 52 Mich App 40; 216 NW2d 484 (1974). See also, Collins v Motorists Mutual Ins Co, 36 Mich App 424, 428; 194 NW2d 148 (1971), lv den 388 Mich 812 (1972).

In Nickerson, the plaintiff was injured when the car in which he was riding stalled on the highway. The plaintiff was standing in front of the car waiting for assistance from a passing motorist when the car was pushed into him after being struck by a third car. This Court denied recovery under the "occupying” language of the policy.

The Supreme Court unanimously reversed. It held:

"[P]laintifF in the instant case was covered under the language above due to (1) his immediate prior "occupying” of the insured vehicle and (2) his suffering of an injury arising out of the use or repair of the same automobile.” 393 Mich at 326.

The reasoning supporting the holding that physical contact with the auto at the time of the injury was unnecessary was summarized by Justice Williams,

"In sum, the approach to interpretation of this policy language which does not hold "physical contact” mandatory, appears to us to be by far the more reasonable and persuasive approach. It accords with a strict reading of the policy language, it well implements the time-honored policy of construction of policy language against the insurer, and, perhaps most significantly, as Judge McGregor and plaintiff point out it guards against recovery based entirely upon 'fortuitous circumstance’.” 393 Mich at 331.

Because of the Supreme Court’s apparent reliance on Judge McGregor’s dissent, it is also instructive to examine that dissent in this Court. 52 Mich App at 47-48. In his view, the appropriate test was one of continuity of action. Under this test the appropriate inquiry is to determine the intent of the injured person with regard to the automobile. Even if the person is temporarily out of or away from the auto, coverage will be found if the person intends a continued use of the car.

Reading these interpretations into § 3106(c) it is apparent that plaintiff in this case is covered. She was proceeding from one side of the car to the other to help her grandson from the car. Under the Nickerson rationale, it is unnecessary that the automobile be the cause of the injury, it is sufficient if it provides the occasion for the injury. If the trial court is sustained it must be on the basis of the "fortuitous circumstance” that plaintiff was midway around the car at the time of her injury. Under this view, she is left in limbo because she had completed the "alighting” process and had not yet begun to "enter” the other side. This type of on again, off again coverage was specifically rejected in Nickerson. 393 Mich at 331.

The trial court’s grant of summary judgment to defendant is reversed. Summary judgment on the question of liability entered in favor of plaintiff is ordered and the matter is remanded to the trial court for a determination of damages.

D. F. Walsh, P.J., concurred.

J. H. Gillis, J.

(dissenting). I disagree with the majority’s position that it is only necessary that the automobile be the occasion of the injury and no causal connection need be shown. In order to support this assertion, reliance is made upon the interpretation of language in the Worker’s Disability Compensation Act.

It is not necessary to go to worker’s compensation law to ascertain the meaning of the "arising out of’ term here for there is an abundance of case law directly on point. See, Anno: Automobile liability insurance: what are accidents or injuries "Arising Out of Ownership, Maintenance or Use” of insured vehicle, 89 ALR2d 150, 154, wherein the following statement is made:

"It is well settled that a causal relation or connection must exist between an accident or injury and the ownership, maintenance, or use of a vehicle in order for the accident or injury to come within the meaning of the phrase 'arising out of the ownership, maintenance or use’ of a vehicle.”

Moreover, worker’s compensation law applies essentially a "but for” test to determine whether an injury is sufficiently related to the employment relationship to be compensable. Nemeth v Michigan Building Components, 390 Mich 734, 736; 213 NW2d 144 (1973). Such an approach in automobile insurance cases was expressly rejected in Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975):

"In summary, we conclude that while the automobile need not be the proximate cause of the injury, there still must be a caused connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for.”

I also believe the majority has failed to deal properly with the relationship between §§ 3105 and 3106 of the no-fault act. Section 3105 provides the general requisite for liability:

"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1); MSA 24.13105(1).

Where the insured vehicle is parked there are additional criteria which must be met:

"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle.” MCL 500.3106; MSA 24.13106.

Even where a person is occupying, entering into or alighting from a vehicle, it must still be shown that there is a causal relationship between the injury and the ownership, use, or maintenance of the vehicle. In the instant case while it may be true that but for her use of the car plaintiff would not have slipped, as previously noted this is not the proper test to apply. The trial court held there was no causal connection between her use of the automobile and the fact that she fell in the snow and I agree with that determination.

I would affirm.

       For a general overview of cases interpreting language similar to that contained in our statute in the framework of a particular insurance policy, see Anno: Scope of clause of insurance policy covering injuries sustained while alighting from or entering automobile, 19 ALR2d 513 and Anno: 42 ALR3d 501, supra.

         Occupying was defined in the policy as " 'in or upon or entering into or alighting from’ ”, 393 Mich at 326.

       In my view, the statute provides coverage for injuries arising while a car is parked if, and only if, the plaintiff can bring himself within subsection (a), (b) or (c). If a claim falls within one of the subsections, the threshold of injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle will be met.

         The statute requires coverage for injuries which “arise” out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle.
      Similar "arising out of’ language in the Worker’s Disability Compensation Act has been interpreted not to require a causal nexus between injury and employment. Whetro v Awkerman, 383 Mich 235; 174 NW2d 783; 42 ALR3d 375 (1970). The view taken here is consistent with that type of analysis.


author: M. F. Cavanagh, P. J.

text:
    PEOPLE v FLORES
    Docket No. 77-4930.
    Submitted March 7, 1979, at Lansing.
    Decided May 21, 1979.
    Oscar Flores was convicted, on his plea of guilty, of absconding on bond, Bay Circuit Court, Leon R. Dardas, J. The defendant was given a sentence to run consecutively with a sentence on a conviction for another charge in a different county. The defendant appeals, claiming that he had been told that if he entered a plea of guilty to the absconding charge, a second charge would be dismissed and that he would receive a sentence to run concurrently with the sentence from the other county. Held:

    Based upon the record it is not unreasonable to conclude that the defendant was told that he would receive a concurrent sentence and that he based his decision to plead, at least in part, upon this understanding. However, this understanding was not shared by the prosecutor. There was no mutuality of agreement as to what the terms of the bargain were; therefore, the defendant’s request for specific performance on the bargain is denied, but he is allowed to withdraw his plea.
    It is also apparent that one of the attorneys representing the defendant made statements at the plea proceeding and at a post-sentence hearing which are irreconcilable. It appears that either the defendant or the court was misled. This matter is to be referred to the State Bar Grievance Board for its consideration.
    Remanded for further proceedings.
    Criminal Law — Plea of Guilty — Withdrawal of Plea — Sentences — Concurrent Sentences — Consecutive Sentences.
    A criminal defendant who has entered a plea of guilty pursuant to a plea bargain should be allowed to withdraw his plea where the record indicates that the plea agreement did not provide for concurrent sentencing but that one of the attorneys representing the defendant had told him that he would receive a concurrent sentence and that he should not "rock the boat” at the plea proceeding to be sure that his plea would be accepted and the defendant was given a consecutive sentence.

      Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 504-506, 509-511, 546-548.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and George B. Mullison, Chief Assistant Prosecuting Attorney, for the people.

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   M. F. Cavanagh, P. J.

Defendant was charged with receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803, and he was also charged with absconding on bond, MCL 750.199a; MSA 28.396(1), for failing to appear for his arraignment on the receiving and concealing offense. As a result of a plea bargain, defendant pled guilty to the absconding charge on January 25, 1977, and in return the receiving and concealing charge was dismissed. Defendant was sentenced to a term of two to four years imprisonment, to run consecutively to a 10 to 20 year sentence he received on an unrelated charge arising in another county.

Defendant vigorously contested his sentence immediately upon its pronouncement, asserting that he had been told that if he pled guilty his sentence would run concurrently with the 10 to 20 year sentence he previously received on the unrelated charge.

Although the facts that this defendant faced multiple charges and was represented by separate counsel simultaneously on these different charges cause some confusion, the record does clearly disclose certain events. First of all, the record of the plea is clear, precise, thorough and in complete accord with GCR 1963, 785. We commend the trial court for this. The plea transcript not only fails to disclose that a concurrent sentence was part of the bargain, it disclaims that the bargain consisted of any more than the dismissal of one charge in exchange for a plea to another.

"THE COURT: * * * Now, a plea bargain has been stated by the prosecution in this case and as I understand it, to restate it here, the arrangement is that Mr. Flores will be entering a plea of guilty to the charge pertaining to absconding on the bond, and the other case will be dismissed. Is that correct, Mr. Mullison?
"MR. MULLISON [Assistant Prosecutor]: Yes, your Honor. With also the addition that the court has not participated in any way in the plea bargain.
"THE COURT: You understand that, do you, Mr. Flores? The court has not participated in any manner whatsoever in the plea bargain.
"THE DEFENDANT: Yes.
"THE COURT: With either counsel on either side. Do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: All right. And is that a complete and accurate statement of the plea bargain, Mr. Hegle?
"MR. HEGLE [Defense Counsel]: Yes, it is, your Honor.
"THE COURT: And Mr. Palacios?
"MR. PALACIOS [Defense Counsel]: Yes, your Honor.
"THE COURT: And Mr. Flores?
"THE DEFENDANT: Yes.
"THE COURT: Okay. And do you understand that agreement, Mr. Flores?
"THE DEFENDANT: Yes.
"THE COURT: Is there any part of it that you want to ask me any questions about or ask your attorneys any questions about at this time?
"THE DEFENDANT: No.”

As to the sentence specifically, the following transpired:

"THE COURT: Other than what’s been stated in the plea bargain, has anyone promised you anything if you plead guilty?
"THE DEFENDANT: No.
"THE COURT: Has anyone told you the court would be lenient towards you or that you would receive a light sentence or be placed on probation if you pleaded guilty?
"THE DEFENDANT: No.
"THE COURT: And when I say anyone, I mean just that; anyone from the prosecutor’s office, any police officers, your attorney, or anyone else. Has anyone made such a promise to you?
"THE DEFENDANT: No.
"THE COURT: And do you understand that no one knows at this time what your sentence will be?
"THE DEFENDANT: Yes.”

In spite of these record assertions, defendant maintains his attorney advised him that he would receive a concurrent sentence. He maintained this immediately upon hearing that the sentence would be consecutive, and at a post-sentence evidentiary hearing. At that hearing, one of his trial counsel supported this claim as follows:

"THE DEFENDANT: Okay. The reason why I didn’t say nothing at sentencing was because I was told that at the plea. And if it’s going to mess up the plea, it would mess up my sentencing.
"THE COURT: All right. Then I would like to hear from the two attorneys that were advising him at the time. If they wish to say anything on that point, I’ll take testimony on it. If they don’t wish to, I’m not going to compel them. But if there’s any variation in the version of it I’d like to hear from them, either one or any.
"MR. PALACIOS: Mr. Palacios on behalf of myself, your Honor.
"THE COURT: Mr. Palacios, okay. You were representing him on one of the matters?
"MR. PALACIOS: I was representing Mr. Flores on the matter of the receiving and concealing over $100. That was the extent of my representation on that case.
"THE COURT: But you were with him in connection with the plea. You were in the courtroom at the time and so on?
"MR. PALACIOS: Yes, your Honor. I was with him.
"THE COURT: What, if anything, was said on this point that he has referred to?
"MR. PALACIOS: I think he has stated it accurately. I can remember telling him and conveying not only once but several times the wording that I had received from the prosecutor’s office with respect—
"THE COURT: That wasn’t the question. The question was as stated by his counsel, Mr. Carter, here a minute ago.
"MR. PALACIOS: No, what Mr. Flores has stated that happened at the time of the plea and at the time of the sentence is as I recall it.
"MR. MULLISON: Okay.
"THE COURT: Who else—
"MR. MULLISON: I’d like to ask him, your Honor, if he deliberately and on purpose told his client to lie to the court in order to get the plea accepted.
"MR. PALACIOS: I will answer that no. I did not ask him to lie to the court, your Honor.
"THE COURT: But what did you tell him then in connection with this matter where the court asked him specific questions. He now says he was told not to rock the boat and to say nothing or to give the other answers.
"MR. PALACIOS: I remember that the time of the sentencing when your Honor mentioned the word consecutive, he said, 'What’s this about consecutive? It’s concurrent.’ And I told him at that point, 'Don’t say anything.’
"THE COURT: I’m talking about before. Before the sentence is pronounced.
"MR. PALACIOS: Before, I told him that there was nothing to fight with the charge of absconding. That he was done for that and there was nothing to say about it, just to take his plea and plead guilty to it.
"THE COURT: Well, what did you tell him about not saying things to rock the boat?
"MR. PALACIOS: I don’t remember saying things about the boat. I told him he should plea, that the bargain was a good one, that he should plea to the absconding. That he had no defense whatsoever, that he might possibly have a defense as to the other charge but if it was going to be dismissed, to have it dismissed, and that he was going to get a concurrent sentence.
"THE COURT: And you told him that he was going to get a concurrent sentence?
"MR. PALACIOS: Based on my conversations with the prosecutors and based on the — at the time — the current circuit judge.” (Emphasis added.)

Based upon this record, it is not unreasonable to conclude that defendant was told he would receive a concurrent sentence and that he based his decision to plead, at least in part, upon this understanding. The record further discloses that this understanding was not shared by the prosecutor. We find, therefore, that there never was a mutual agreement as to what the terms of the bargain were. Absent this mutuality, we decline defendant’s request for specific performance, but will allow him to withdraw his plea.

It is equally apparent to us that the differences in defense counsel Palacios’ statements at the time of the plea and at the post-sentence hearing are irreconcilable. We refer this matter to the State Bar Grievance Board for its consideration of further action, as it appears to us that either the defendant or the court was misled.

The remaining assertions of error are without merit. We remand for proceedings consistent with this opinion.

       "THE DEFENDANT: Could I say something?
      "THE COURT: Yes, you may.
      "THE DEFENDANT: I was told that if I plead guilty to absconding on bond that they would run concurrent with the one I got in Jackson, and that if I didn’t plead guilty to it that they’d charge me. That if they found me guilty to a receiving and concealing and found me guilty to this here they’d run all consecutive. That’s why I pled guilty to it, and now I’m getting it consecutive.
      "THE COURT: Well, this matter can be checked out at the time of an appeal. I believe those things were gone into rather thoroughly at that time, but if you were told that by the court I’m sure the sentence can be corrected to show it. My recollection doesn’t include that but—
      "THE DEFENDANT: Well, it’s a deal I made with my lawyers.
      "THE COURT: That can be reviewed at a later time.”


author: J. H. Gillis, J. V. J. Brennan, J.,

text:
    PRUITT v PRUITT
    Docket No. 77-4948.
    Submitted December 12, 1978, at Lansing.
    Decided May 21, 1979.
    Leave to appeal applied for.
    Bettie Pruitt filed a complaint for divorce against Samuel Pruitt. An amended complaint was subsequently filed in which it was alleged that Ernest Shannon was the father of two children, one of whom has died, born to Bettie Pruitt during the course of her marriage to Samuel Pruitt. Prior to the filing of the amended complaint, the Ingham County Prosecutor’s office entered an appearance on behalf of the surviving Pruitt child. Shannon was ordered joined as a party defendant. Defendant Shannon’s motion for summary judgment was denied, Ingham Circuit Court, Jack W. Warren, J. Defendant Shannon appeals by leave granted. Held:

    As a general rule a circuit court is without authority in a divorce proceeding to litigate the rights of persons other than the husband or wife. The instant case fits none of the exceptions to this rule. There is no statutory authority to join a third party to a divorce action for the purpose of adjudicating paternity. The motion for summary judgment should have been granted.
    Reversed and remanded.
    References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation §§ 240, 241.

       10 Am Jur 2d, Bastards § 74 et seq.

    24 Am Jur 2d, Divorce and Separation §§ 277, 278, 876-878. Determination of paternity, legitimacy, or legitimation in action for divorce, separation, or annulment. 65 ALR2d 1381.

       24 Am Jur 2d, Divorce and Separation §§ 937, 943, 946.

       24 Am Jur 2d, Divorce and Separation § 7.

       27 Am Jur 2d, Equity §§ 242, 267.

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

       10 Am Jur 2d, Bastards § 75 et seq.

    Right to jury trial in bastardy proceedings. 94 ALR2d 1128.

       10 Am Jur 2d, Bastards §§ 10-44

       10 Am Jur 2d, Bastards §§ 67, 68.

       10 Am Jur 2d, Bastards §§ 67-69.

       10 Am Jur 2d, Bastards §§ 1-9.

      V. J. Brennan, J., dissented. He would hold that in order to fully protect the interests of minor children and in the interest of judicial economy the divorce action, which is equitable in nature, should be tried before the court and the paternity action, which is legal in nature, before a jury, if demanded, and the two matters combined in a single action.
    He would affirm.
    Opinion of the Court
    1. Courts — Divorce — Statutes — Statutory Authority.
    The authority of a court to act in a divorce action is purely statutory.
    2. Divorce — Paternity Determination — Statutory Authority.
    There is no statutory authority which provides for the determination of the paternity of a third party as part of a divorce proceeding.
    3. Courts — Divorce — Authority of Court — Husband and Wife — Right of Third Persons.
    The general rule is that a court is without power in a divorce proceeding to litigate the rights of persons other than the husband or wife.
    4. Divorce — Equity.
    A divorce proceeding is equitable in nature.
    5. Equity — Jury — Advisory Capacity.
    Juries in chancery cases act in an advisory capacity only.
    6. Appeal and Error — Equity — De Novo Review.
    Appellate review of equity cases is de novo.

    7. Bastards — Paternity Proceedings — Constitutional Law — Right to Counsel — Double Jeopardy.
    Paternity proceedings are quasi-criminal in nature; a defendant may invoke the protection afforded in matters of procedure to one on trial for a criminal offense, including the right to a jury trial, the right to appointed counsel, if the defendant is, unable to afford one, and protection against double jeopardy.
    Dissent by V. J. Brennan, J.
    8. Evidence — Bastards — Paternity — Exclusion of Evidence — Husband and Wife — Presumption of Legitimacy.

      The long-standing evidentiary rule barring a husband and wife

      from testifying that a child born during coverture was not the offspring of both has been abolished in Michigan; the present state of the law guards a child bom during wedlock with a strong, though rebuttable, presumption of legitimacy.

    9. Bastards — Support — Presumption of Legitimacy — Husband and Wife — Rebuttal of Presumption.

      A husband is not required to support a child born to his wife where the husband successfully rebuts the presumption that a child born during wedlock is legitimate.

    10. Bastards — Support — Statutes.

      The obligation of support of a child born out of wedlock is placed on the parents of the child (MCL 722.711 et seq.; MSA 25.491 et seq.).

    11. Bastards — Paternity Act — Words and Phrases — Husband and Wife — Statutes.

      The definition in the paternity act of a child born out of wedlock is "a child begotten and born to any woman who was unmarried from the conception to the date of birth of the child”; a literal reading of this definition would place a child born to a married woman outside the ambit of the act even where the father of the child is not the husband; such a result is unacceptable; the Paternity Act should be operative where the mother is not lawfully married to the father of the child (MCL 722.711 et seq.; MSA 25.491 et seq.).

    Legal Aid of Central Michigan (by Paula M. Zimmer and Chris Campbell), for plaintiff.

      Daniel W. McKelvery, for defendant Shannon.

      Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Marvin E. Robertson, Chief, Family Services Division for Pruitt child.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   J. H. Gillis, J.

Bettie Pruitt filed a complaint for divorce against Samuel Pruitt. An amended complaint was subsequently filed joining defendant, Ernest Shannon, as a party and alleging that he is the father of two children born to Bettie Pruitt during the course of her marriage to Samuel Pruitt. Defendant Shannon moved for summary judgment pursuant to GCR 1963, 117.2(1). The motion was denied and defendant Shannon was granted leave to appeal by this Court.

Defendant argues that the trial court was without authority to bring him into a divorce action. We agree.

In divorce actions, the authority of the court to act is purely statutory. Flynn v Flynn, 367 Mich 625; 116 NW2d 907 (1962), Gray v Independent Liberty Life Ins Co, 57 Mich App 590; 226 NW2d 574 (1975). We know of no statute which provides for the determination of the paternity of a third party as part of a divorce proceeding.

The general rule in Michigan is that the court is without the power in divorce proceedings to litigate the rights of persons other than the husband or wife. Yedinak v Yedinak, 383 Mich 409; 175 NW2d 706 (1970). From this rule has been carved the exceptions set forth in Berg v Berg, 336 Mich 284, 288; 57 NW2d 889 (1953):

"It is claimed that the petitioner, the sister of the defendant, is not a proper party. It must be conceded that as a general rule * * * the husband and wife are the only parties to be recognized in a divorce case. There are exceptions. The prosecuting attorney may be required to appear and oppose a decree in any divorce case in which it appears to the court that public good so requires. CL 1948, §552.45 (Stat Ann §25.121). The State commissioner of revenue is ex officio the public guardian of every patient committed to a State institution, upon whom service of process is required in any proceeding against any patient detained in a State institution. CL 1948, § 330.21b (Stat Ann 1951 Cumm Supp § 14.811[1]). Third persons may be made defendants in an action for divorce where it is charged that such persons have conspired with the husband with intent to defraud the wife out of her interest in property.”

See also, Sabourin v Sabourin, 67 Mich App 100; 240 NW2d 284 (1976).

The instant case involves none of these exceptions. Furthermore, we are of the opinion that the nature of a paternity action involving a third party is such that it should not be made part of a divorce action.

A divorce proceeding is equitable in nature. St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210; 238 NW2d 806 (1975). Juries in chancery cases act in an advisory capacity only. White v Burkhardt, 338 Mich 235, 238; 60 NW2d 925 (1953). On appeal, the matter is reviewed de novo. Nickel v Nickel, 29 Mich App 25; 185 NW2d 200 (1970), Hutchins v Hutchins, 36 Mich App 675; 194 NW2d 6 (1971).

On the other hand, paternity proceedings are quasi-criminal in nature. Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976). The defendant may invoke the protection afforded in matters of procedure to one on trial for a criminal offense, including the right to a jury trial, the right to appointed counsel if the defendant is unable to afford one, and the protection against double jeopardy. Artibee, supra, People v McFadden, 347 Mich 357; 79 NW2d 869 (1956), McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977). On appeal only errors of law may be considered, People v Martin, 256 Mich 33; 239 NW 341 (1931).

In light of the foregoing, we conclude there is no statutory authority to join a third party to a divorce proceeding for the purpose of adjudicating paternity. Further, it would not serve the convenient administration of justice to do so.

Reversed and remanded for entry of summary judgment in favor of defendant Shannon. No costs, a public question being involved.

R. B. Burns, P.J., concurred.

V. J. Brennan, J.,

(dissenting). I must dissent. In the recent case of Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), the Michigan Supreme Court abolished the long-standing evidentiary rule barring a husband and wife from testifying that a child born during coverture was not the offspring of both. The present state of the law guards a child born during wedlock with a strong though rebuttable presumption of legitimacy. Serafin, supra, 636, Maxwell v Maxwell, 15 Mich App 607; 167 NW2d 114 (1969). In cases where the husband does successfully rebut the presumption, he would not be required to support the child. Serafin, supra, 634-635. Support would then be sought from another source.

Michigan’s Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., places the obligation of support on the parents of a child born out of wedlock. The latter is defined as "a child begotten and born to any woman who was unmarried from the conception to the date of birth of the child”, MCL 722.711(a); MSA 25.491(a). (Emphasis added.) A literal reading of the above places the child in the case at bar (since the mother was married at the time of birth) outside the ambit of that act. Such a result is unacceptable. I would hold the Paternity Act operative where the mother of the child is not lawfully married to the father of the child.

The majority has most accurately pointed out the salient differences between divorce and paternity actions with one being equitable and the other being legal in nature. In order to fully protect the interests of minor children, I would hold that both actions could be brought under a single suit with the divorce action (equity) tried before the court and the paternity action (legal) tried before a jury, if demanded. (The paternity defendant would be added as a third-party defendant in the divorce action.) Such a procedure would both foster judicial economy and minimize the possibility of long delays in determining support for minor children.

       In Gallison v Gallison, 5 Mich App 460; 146 NW2d 812 (1966), paternity was determined in the course of an annulment proceeding. However, that was only a two-party proceeding and the Court relied upon MCL 552.16; MSA 25.96, which provides in part as follows:
      "Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain.”
      While this statute may give the court authority to make a determination of paternity where the parties are involved in the annulment or divorce itself, we fail to see how it gives the court the authority to bring a third party into the divorce proceedings.

       The possibility of rebutting the presumption has been greatly increased since ,Serafín allows husband and wife themselves to testify as to illegitimacy.


author: D. C. Riley, J.

text:
    PHILIPS INDUSTRIES, INC v SMITH
    Docket No. 77-5230.
    Submitted February 14, 1979, at Detroit.
    Decided May 21, 1979.
    Philips Industries, Inc. and Mobil Temp, Inc., were assignees of a lease on a factory building owned by Charles Smith and Lois A. Smith. The lease provided the tenant with an option to purchase the property and its improvements for an amount equal to the total cost of the land and improvements plus 10 percent. Philips and Mobile Temp attempted to exercise this option and requested the cost figures from the Smiths. When they felt that the Smiths were being unduly dilatory, Philips and Mobil Temp filed an action against them requesting damages for alleged overpayment of rent, an accounting of the actual cost to defendants of the land and improvements, and an injunction. The injunction was denied, but the defendants were instructed to supply any records relative to the cost of the building. Plaintiffs subsequently moved for production of certain documents, which was ordered by the court after hearings on the matter. A few weeks later, plaintiffs filed an entry of default for failure of the defendants to produce certain of the documents, and ultimately default judgment was entered against the defendants, Livingston Circuit Court, Paul R. Mahinske, J. Defendants appeal. Held:

    The entry of default judgment, insofar as it was based on the alleged failure to produce certain documents as ordered by the court, was an abuse of discretion where none of the methods for entry of a discovery order, as outlined by court rule, were followed. The trial court also abused its discretion in basing its decision to enter default judgment on the defendants’ recalcitrance throughout the discovery period because the plaintiffs’ entry of default related only to the failure to produce specific documents. Default judgment was also too harsh a sanction in this case, where the period of delay was relatively short and where other sanctions were readily available.

      References for Points in Headnotes
    [1-3, 5] 23 Am Jur 2d, Depositions and Discovery §§ 146, 256, 260, 261.

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

       47 Am Jur 2d, Judgments §§ 1152, 1153, 1158.

       4 Am Jur 2d, Appeal and Error § 487.

      Reversed and remanded.
    1. Judgment — Default Judgment — Discovery — Failure to Comply.
    Rendering a judgment by default for refusal to comply with a discovery order is an appropriate sanction where the refusal is flagrant and wanton (GCR 1963, 313.2[2][c]).
    2. Judgment — Default Judgment — Appeal and Error — Judge’s Discretion — Court Rules.
    A default judgment granted pursuant to court rule for refusal to comply with a discovery order will not be disturbed on appeal absent a clear showing of an abuse of discretion (GCR 1963, 313.2[2][c]).
    3. Judgment — Default Judgment — Discovery — Failure to Comply — Judge’s Discretion — Court Rules.
    A trial court’s grant of a default judgment was an abuse of discretion where it was based on a defendant’s failure to comply with a discovery order and none of the prescribed methods for entry of such order were followed and where it is conceded that the sought-after documents were in fact produced prior to the first hearing on the entry of the default judgment (GCR 1963, 522.1).
    4. Judgment — Default — Default Judgment — Foundation — Scope of Default.
    Entry of a default lays the foundation for the ultimate entry of a default judgment and advises the party to be defaulted of the reasons underlying the default; it is error for a trial court to exceed the scope of the default entered and to base its decision to grant default judgment on factors other than those set forth in the entry of default.
    5. Judgment — Default Judgment — Discovery — Sanctions.
    Default judgment for failure to comply with a discovery order is too harsh a sanction where the delay between the order and the entry of default appears insubstantial when compared to other cases in which the sanction has been upheld, and where sanctions short of default were readily available.
    6. Appeal and Error — Record — Ex Parte Affidavits.
    The record of a case may not be enlarged on appeal by ex parte affidavits.

      Robert G. Corace, Jr., for plaintiffs.

      Bayer, Gornbein & Kaplan, P.C. (Barbara Klarman, of counsel), for defendants.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   D. C. Riley, J.

A full understanding of the present suit requires a detailed exposition of its labyrinthine factual history.

By complaint filed April 22, 1974, plaintiffs allege that on March 15, 1966, defendants, as landlords, entered into a lease with Mobil Temp, Inc., a Michigan corporation (hereinafter referred to as Mobil Temp of Michigan) as tenant. Under the terms of the lease, defendants agreed to construct a factory building upon property owned by them at 11871 Grand River Avenue, Brighton, Michigan, and to lease said building to Mobil Temp of Michigan. The term of the lease was for a period of "ten years from and after the time when the building to be erected thereon is completed”. A monthly rental, equal to l/12th times 9 percent of the actual cost of the land, building and improvements, was to be paid in advance.

The lease provided the tenant with an option to purchase the property and its improvements for a price equal to the total cost of the land, buildings and improvements, plus 10 percent of that total cost. Said option could be exercised by the tenant at any time during the term of the lease when not in default in the performance of its terms.

The subject lease further contained a provision prohibiting assignment or sublease of the premises absent written consent of the landlord.

On March 31, 1969, after obtaining defendants’ consent, Mobil Temp of Michigan assigned its tenant’s interest in the lease to Mobil Temp, Inc., an Ohio corporation, wholly owned by Philips Industries (hereinafter both referred to as plaintiffs).

The complaint further alleged that plaintiffs sought to exercise their option to purchase the subject property after defendants refused to consent to a further assignment of the lease. Plaintiffs requested that defendants deliver to them an itemized statement, made under oath, setting forth the cost of the land, buildings, and improvements, showing in each case the date of acquisition, the person from whom acquired, and the defendants’ cost of acquisition.

Convinced by a subsequent exchange of letters that defendants were unduly dilatory, plaintiffs commenced a civil action on April 22, 1974, requesting, inter alia, damages representing an overpayment of rent due, a full and complete accounting of the actual cost to defendants of the land and improvements, and a preliminary injunction awarding the above relief. Notice of deposition and production of documents was also filed contemporaneously with plaintiffs’ complaint.

Defendants answered, affirmatively asserting, among other things, that plaintiffs had breached the lease by abandoning and failing to maintain the premises and had attempted to assign or sublease the property without the consent of the landlords.

A hearing on plaintiffs’ requested injunction was held on April 29, 1974, at which time the court denied plaintiffs’ petition, but instructed defendants to supply any account records relative to the cost of the building.

On May 8, 1974, defendants filed with the court a bill of particulars outlining the cost of constructing the subject property.

At a hearing on May 13, counsel for plaintiffs advised the trial court that the portion of their petition which requested the documents pertaining to the cost of the building should be treated as a motion to produce documents pursuant to GCR 1963, 310.1(1). The court, at defendants’ request, limited the scope of plaintiffs’ discovery to certain relevant matters, including copies of invoices, receipts, cancelled checks, income tax returns from 1966, contracts pertaining to the purchase of materials or construction of the buildings, and all insurance policies on the building since 1966. The court indicated that defendants should comply with said order within a reasonable period of time.

Defendants filed additions to their bill of particulars on May 24, 1974, revealing that the exhibits were still incomplete but that additional documents would be forthcoming. On June 10, they advised that they did not have copies of all the income tax returns sought by plaintiffs.

Ten days later, plaintiffs moved the trial court to impose sanctions pursuant to GCR 1963, 313 on the grounds that defendants had refused to fully comply with the trial court’s May 13, 1974, order. The motion did not specify what sanctions the plaintiffs were seeking.

At a hearing on June 24, concerning plaintiffs’ motion for sanctions, still unspecified, defense counsel indicated that the defendants did not keep the cancelled checks requested by plaintiffs, but that the tax return would be obtained from the Internal Revenue Service, although it would require some time. At the conclusion of the proceeding the court made the following statements to defense counsel:

"THE COURT: Have the man produce the last four income tax returns by Friday together with an order to the Internal Revenue Service for the true copies of the tax returns from 1966 to that date or I’ll entertain an order holding him in contempt of Court, and most likely to default them.
"THE COURT: I am saying: they will be here by Friday or your man will be in contempt. That will be the twenty-eighth.”

Four days later, on June 28, 1974, a written order to produce the requested documents was signed by the trial judge. The order provided that, in the event the order was not fully complied with, defendants would be held in contempt of court, their default would be entered and plaintiffs would be permitted to take a default judgment. A copy of the order was not mailed to defendants’ attorney until at least July 10, 1974.

On July 22, plaintiffs filed an entry of default and affidavit in support thereof, averring that while they believed defendants’ tax returns for 1970 through 1973 had been delivered to the court, the defendants had failed to produce a copy of an order to the Internal Revenue Service for the returns filed by defendants for 1966 through 1969.

Further proceedings were held upon plaintiffs’ motion for default judgment on July 29, 1974. Defendants’ counsel argued that the default should be set aside on the grounds that defendants’ failure to comply with the trial court’s June 28 order was attributable to defense counsel’s misunderstanding of the trial court’s oral order of June 24; that defendants did not approve the written order before it was entered on June 28, 1974, and therefore were not aware of the specifics of the trial court’s order. The lower court concluded the hearing in the following manner:

"THE COURT: Well, I think you [defendants] would have been in default on the 28th without an order * * * >>

Proceedings were set for August 5, 1974, on the possible default judgment. At the hearing, counsel for defendants orally, moved the court to set aside the default, and again reiterated that he understood the trial judge at the June 24 hearing to have ordered defendants to provide the court with only their 1970 through 1973 income tax returns on or before June 28, 1974. Counsel further maintained that he became aware other documents were required when he received a photostatic copy of the June 28 order approximately two weeks later. Thereafter, he advised defendants that they should order from the IRS copies of their tax returns for 1966 through 1969. To his knowledge defendants had received no prior communication regarding the need for returns prior to 1970. Defendant Charles Smith testified in a manner substantially corroborating his attorney’s assertions.

The hearing concluded with a dispute as to the context of the court’s oral order of June 24, 1974, the propriety of entering default judgment on the court’s June 28, 1974 order, and the nature of the default proceeding. The trial judge indicated that the default would stand until it was set aside or perfected. Defense counsel stated that he would file a motion to set aside the default, which motion was filed on August 12, 1974.

In a written opinion filed October 24, 1975, the court denied defendants’ motion to set aside the default and granted plaintiffs’ motion for default judgment. An order to that effect was entered December 1, 1975, and filed nine days later.

Several issues are raised on appeal, only one of which we need consider at length. Defendants claim that the lower court erred in failing to set aside plaintiffs’ entry of default and in granting default judgment. We agree, despite our belief that the actions of defendants and their original attorneys in the case at bar could be characterized as less than a good faith effort to expedite the litigation.

GCR 1963, 520 governs default proceedings. GCR 1963, 520.1 authorizes the entry of default by a party to the action:

".1 Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the person seeking the relief or his attorney shall enter the default of that party by filing with the clerk a statement called a default, signed by the person seeking the relief or his attorney, stating that default is entered and stating the reasons therefor.”

GCR 1963, 520.2(2) provides for a judicially imposed default Judgment;

"(2) By the Court. * * * the party entitled to a judgment by default shall apply to the court therefor; * * *. If the party against whom judgment by default is sought has appeared in the action, he * * * shall be served with written notice of the application for judgment at least 7 days prior to the hearing on such application.”

At the outset we note that the parties are in substantial disagreement as to why the default judgment was rendered. Evident throughout defendants’ challenge to the entry of default judgment is their understanding that they were defaulted because of their failure to comply with the trial court’s June 28, 1974, discovery order. They claim that there were substantial defects or irregularities in the entry of that order which compounded an innocent mistake made by defense counsel in comprehending the entirety of the trial court’s oral order made at the June 24 hearing. Plaintiffs, on the other hand, argue that the trial court considered the entire history of the discovery proceedings beginning with the original order to produce documents filed on May 13, 1974, and entered default against defendants, not only because of their failure to comply with the June 28 order, but also because defendants apparently had access to the requested documents throughout the period they failed to comply and because some of the cost figures supplied by defendants to support their stated option price were inconsistent and suspicious.

Both sides agree, however, that default resulted from defendants’ alleged omission to produce documents pursuant to a GCR 1963, 310.1(1) discovery order. GCR 1963, 313.2(2) authorizes a trial court to impose a variety of sanctions for failure to comply with a discovery directive, including:

"(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;” GCR 1963, 313.2(2)(c).

Rendering judgment by default for refusal to make discovery is a drastic sanction but one which is nevertheless appropriate where such refusal is flagrant and wanton. Abadi v Abadi, 78 Mich App 73, 77; 259 NW2d 244 (1977), lv den 402 Mich 870 (1978), Washburn v Lake Diane, Inc, 17 Mich App 704, 706; 170 NW2d 298 (1969). Default judgments given pursuant to GCR 1963, 313.2(2)(c) will not be disturbed on appeal absent a clear showing of abuse of discretion. Ackron Contracting Co, Inc v Oakland County, 87 Mich App 294; 274 NW2d 44 (1978), Humphrey v Adams, 69 Mich App 577, 582; 245 NW2d 167 (1976).

Insofar as the trial judge based his decision to enter default judgment against defendants on their failure to comply with the June 28, 1974, discovery order, we find such an abuse. GCR 1963, 522.1 furnishes the procedural prerequisites to the entry of such an order and provides as follows:

".1 Signing of Judgments and Orders. * * * Except as provided herein and in Rule 520, all judgments and orders in civil cases shall be dated and signed by the judge who may enter the judgment or order upon the granting of the same or by one of the methods hereinafter provided.
"(1) If not so entered, the judge shall sign the judgment or order when approved as to form by all the parties or their attorneys and it is submitted to him within ten days after the granting of the same if, in the judge’s determination, it comports with his decision.
"(2) If the judgment or order has not been signed under the preceding provisions hereof, within five days after the granting of the judgment or order, any party may serve a copy of a proposed judgment or order upon the other parties or their attorneys together with a notice to them that the proposed judgment or order will be submitted to the judge for signing if no written objections thereto are filed with the clerk of the court within five days and file the original thereof together with a proof of service of same upon the other parties with said clerk. * * *
"(3) If the provisions of subparagraphs (1) or (2) hereof have not been utilized, the prevailing party shall or any other party may prepare a proposed judgment or order and shall notice the same for settlement before the judge within ten days after the granting of same. The party securing the signing of the judgment or order shall serve a copy thereof within five days after it has been signed upon all other parties or their attorneys and file proof of service thereof with the clerk of the court.”

It appears that none of the methods for entering an order outlined above were followed with respect to the June 28 order, which was drafted by plaintiffs’ attorney. The order does not bear an approval as to form by defendants or counsel. There is no indication in the record that the plaintiffs either served a proposed order on the defendants with notice that the order would be entered in the absence of written objections from defendants, or that the plaintiffs noticed a proposed order for settlement before the trial court. As the proof of service clearly indicates, the plaintiffs did not serve a copy of the order on the defendants within five days after it was signed.

Although the trial court’s oral order of June 24 arguably apprised defendants of what they were required to produce, it nevertheless appears that defendants did not receive written notice of the contents of the order to which they were entitled prior to its entry.

More importantly, we note that the written order was not signed by the trial judge until the final day given defendants for compliance, and was not served on them until at least 12 days later. Furthermore, while the record itself is not conclusive, plaintiffs’ brief concedes that defendants produced the sought after tax returns on July 24, 1974, five days prior to the first hearing on the entry of default judgment.

Based on these deficiencies, we hold that the trial judge abused his discretion insofar as his decision to grant default judgment was premised upon the June 24, 1974, discovery order.

Whether the trial court abused its discretion in basing its decision to enter default judgment on defendants’ recalcitrance throughout the discovery period is a closer question. For two reasons, however, we again answer in the affirmative. First, in making its determination, the court erroneously exceeded the scope of default entered by plaintiffs, which was based solely upon defendants’ noncompliance with the June 28, 1974, discovery order for tax returns. Entry of a default under GCR 1963, 520.1 lays the foundation for the ultimate entry of judgment and, thus, advises the party to be defaulted of the reasons underlying the default. This recital is essential to the defaulted party’s ability to oppose entry of judgment. In this regard we note that both plaintiffs’ affidavit in support of default and defendants’ motion to set aside default addressed only the failure to produce 1966-1969 tax returns.

We are further convinced that default judgment was too harsh a sanction in the present case. When compared to other cases wherein the sanction of dismissal or default has been upheld, the delay between the original order to produce (May 13, 1974) and the entry of default (July 22, 1974), and subsequent hearings on July 29 and August 5, appears insubstantial. See, e.g., Ackron Contracting Co, Inc v Oakland County, supra, (case pending for 19 months), Krim v Osborne, 20 Mich App 237; 173 NW2d 737 (1969), lv den 383 Mich 765 (1970), (case pending for more than 2-1/2 years; the majority of delay attributable to plaintiffs failure to comply with discovery). Furthermore, while the conduct and intentions of defendants and their attorney are certainly suspect, other sanctions short of default judgment, such as the imposition of costs or contempt of court citations, see MacArthur Patton Christian Ass’n v Farm Bureau Ins Group, 403 Mich 474; 270 NW2d 101 (1978), were readily available in the case at bar.

The default judgment is vacated and the case remanded to the trial court. Defendants’ claims of bias and prejudice on the part of the trial judge, supported in part by ex parte affidavits which may not serve to enlarge the record on appeal, People v Taylor, 383 Mich 338, 362; 175 NW2d 715 (1970), People v Nelson Johnson, 58 Mich App 473, 478; 228 NW2d 429 (1975), lv den 394 Mich 784 (1975), fail to persuade us that a fair and impartial resolution of this litigation requires proceedings before a different judge.

Reversed and remanded. Costs to abide the final outcome.

       The transcript also reveals the following explanation by defense counsel:
      "Prior to the time we received notice of said motion, we asked Mr. Stefani, the accountant for the Defendant, to go into his closed files and see if he had any tax returns or any memorandums which he had which he had filed with the Internal Revenue Service.
      "Mr. Stefani did such and produced the record which he had photostated [from] those records, and I am advised by Mr. Smith that he sent the certification along with those records and they were filed with Your Honor prior to the time we had knowledge of this order. Your Honor should have those records in the file.
      "We have complied as best we know how. The Plaintiff has this information. If he feels that this is not the information that was supplied to the Internal Revenue Service, all we can say is this is . what Mr. Stefani says he sent to the Internal Revenue Service; this is all he has.
      "If the Court wishes us to supply [sic] the Internal Revenue Service, we’ll send copies. I did not think this was part of the order of June 24, 1974. I would think that it would be hard pressed to defend my clients on the basis of a misunderstanding, at least by counsel, that such an order included the certification to produce these 1966 through 1969 records.
      "We have tried to comply with the order. To enter the default would be the most harshest remedy. We don’t think the order itself if it had been submitted to us originally for approval, we would have known exactly what the Plaintiffs [sic] Counsel wanted and complied then and there. But he didn’t seek to get our approval, he went ahead and had it entered. It was my misconception that such was the Court order.
      "We have complied with the order 1970 to 1973, such was delivered to the Court on that day.”

       Neither the record nor briefs reveal why default judgment was granted more than one year after hearings on' the matter.

       A reading of the court’s October 24, 1975, opinion reveals that the trial judge failed to address defendants’ objections to the defective entry of the June 28, 1974 order.

       Plaintiffs’ trial brief in support of their motion, however, addressed other considerations as well.