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

text:
    LONG v THUNDER BAY MANUFACTURING CORPORATION
    Docket No. 77-2558.
    Submitted June 15, 1978, at Detroit.
    Decided September 21, 1978.
    Defendant Thunder Bay Manufacturing Corporation gave defendant Lawrence Rice an automobile by executing an assignment of the title and delivering the assigned title and the vehicle to him on May 26, 1972. On November 4, 1972, plaintiff, James J. Long, was injured in an accident involving the vehicle, which was being driven by defendant Rice. At the time of the accident the license plates registered to Thunder Bay were on the vehicle and the registration and title had not been transferred at the Secretary of State’s office. Plaintiff sued defendants for damages for his injuries and the Wayne Circuit Court, Charles S. Farmer, J., first granted defendant Thunder Bay’s motion for summary judgment and then vacated the judgment. Thunder Bay appeals by leave granted. Held:

    The application of the statute governing liability for negligent operation of recently transferred automobiles is not affected by defendant Thunder Bay’s failure to remove the license plates at the time of transfer.
    Reversed.
    N. J. Kaufman, J., dissented. He would hold that since removal of the plates is mandated by statute the transfer to defendant Rice was void for noncompliance and that defendant Thunder Bay is not entitled to summary judgment.
    Opinion of the Court
    1. Automobiles — Statutes—Negligence—Transfer of Automobiles —Liability of Seller for Negligent Operation.
    The statute governing liability for negligent operation of recently transferred automobiles is not affected by a seller’s failure to remove the license plates (MCL 257.240; MSA 9.1940).
    Dissent by N. J. Kaufman, P. J.
    2. Automobiles — Statutes—Negligence—Transfer of Automobiles —Liability of Seller — Negligent Operation.

      The statute governing liability for negligent operation of recently

      transferred automobiles does not apply where the title to the automobile and license plates are not transferred at the Secretary of State’s office and the statute requiring removal of the license plates from the vehicle has not been complied with; a transfer under such conditions is void and the transferor is liable for damages resulting from negligent operation of the vehicle by a third person (MCL 257.233, 257.240; MSA 9.1933, 9.1940).

      Reference for Points in Headnotes
    [1, 2] 8 Am Jur 2d, Automobiles and Highway Traffic §§ 996, 997.

      Dice, Sweeney, Sullivan & Feikens, P.C. (by Paul F. Ray), for defendant Thunder Bay.
    Before: N.J. Kaufman, P.J., and Beasley and P.R. Mahinske, JJ.

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

   Per Curiam.

We believe MCL 257.240; MSA 9.1940, set forth as follows, means just what it says:

"The owner of a motor vehicle who has made a bona fide sale by transfer of his title or interest and who has delivered possession of such vehicle and certificate of title thereto properly endorsed to the purchaser or transferee shall not be liable for any damages thereafter resulting from negligent operation of such vehicle by another.”

Defendant Thunder Bay Manufacturing Corporation made a bona fide sale to defendant Rice and delivered possession of the vehicle and the certificate of title properly endorsed. Therefore, under the statute, defendant Thunder Bay was not liable for damages resulting from negligent operation by another.

None of the cases cited in the dissenting opinion involves car license plates. Failure to remove the plates does not preclude the application of MCL 257.240; MSA 9.1940._

We further note that plaintiff-appellee did not see fit to file a brief.

We reverse the order denying defendant-appellant’s motion for summary judgment. Defendant’s motion for summary judgment is hereby granted.

Reversed.

N.J. Kaufman, P.J.

(dissenting). This lawsuit was filed in Wayne County Circuit Court on September 12, 1973, against defendant Lawrence Rice as a result of an automobile accident allegedly occurring on November 4, 1972. In his original complaint, plaintiff stated that defendant Rice was the owner and driver of the automobile bearing a 1972 Michigan license plate number BKP 591.

On September 17, 1973, an amended complaint was filed claiming that at the time of the accident defendant Thunder Bay Manufacturing Corporation (hereinafter Thunder Bay) was the owner of the vehicle.

In answer to the amended complaint, defendant Thunder Bay denied ownership of the motor vehicle involved and specifically stated that it transferred the vehicle to Rice on May 26, 1972.

Defendant Rice, in answer to the amended complaint, stated:

"In answer to the allegations contained in paragraph four, this Defendant admits that he was operating the subject vehicle at the time and place set forth, and further states that said vehicle had been given to him as a gift, the title signed but not transferred through the Secretary of State, and as to the issue of the Defendant, Thunder Bay Manufacturing Corporation being the owner of said vehicle, this Defendant cites what has been previously stated.”

A motion for summary judgment was brought by defendant Thunder Bay and granted with plaintiffs consent on April 19, 1974. It stated in full:

"ORDER FOR SUMMARY JUDGMENT "At a session of said Court held in the City-County Building at Detroit, Michigan on April 19, 1974
"PRESENT: Hon. Charles S. Farmer
"Upon motion having been brought and plaintiffs counsel having no objections hereto, and the Court being more fully advised in the premises;
"IT IS HEREBY ORDERED that defendant, THUNDER BAY MANUFACTURING CORPORATION’S Motion for Summary Judgment be and the same is hereby granted.
[/s/]_
Circuit Court Judge
"APPROVED AS TO FORM:
“[/B/]_
Peter Abbo
¶/s/j_
Albert A. Kramer ”

On November 14, 1975, an order was entered setting aside the summary judgment, stating in full:

"ORDER
"At a session held in said Court in the City-County Building, Detroit, Michigan on November 14, 1975
"PRESENT: HONORABLE CHARLES S. FARMER
Circuit Court Judge
"Upon Motion made by plaintiff in this matter and the Court otherwise fully advised in the premises;
"IT IS HEREBY ORDERED that Summary Judgment in favor of defendant Thunder Bay Manufacturing Corporation, entered in this matter on April 19, 1974 is hereby set aside.
[/§/]_
Circuit Court Judge
"APPROVED AS TO FORM ”[/B/]_
PAUL F. RAY
Attorney for Thunder Bay Mfg. Corp.”

Defendant Thunder Bay appeals by leave granted from the order setting aside the order granting summary judgment in its favor.

MCL 257.240; MSA 9.1940 states:

"The owner of a motor vehicle who has made a bona fide sale by transfer of his title or interest and who has delivered possession of such vehicle and certificate of title thereto properly endorsed to the purchaser or transferee shall not be liable for any damages thereafter resulting from negligent operation of such vehicle by another.”

It would appear from a review of the affidavits filed that the statutory prerequisites for the above statute were met in this case by defendant Thunder Bay Manufacturing Corporation; specifically, that title was transferred and possession of the vehicle delivered prior to the accident.

If that was all there was to this case, our task would be simple. However, another section of the motor vehicle act, MCL 257.233; MSA 9.1933, states in full:

"(a) [Removal and disposition of plates; application for certificate.] Whenever the owner of a registered vehicle transfers or assigns his title or interest thereto, the registration plates issued for such vehicle shall be removed and forwarded to the division, or transferred to the owner’s spouse, mother, father, sister, brother or child to whom title or interest in the vehicle is also transferred, or retained and preserved by the owner for transfer to another vehicle upon application and payment of the required fees. It shall be unlawful to transfer such plates to any vehicle without applying for a proper certificate of registration describing the vehicle to which the plates are being transferred except as provided in subsection (b) of section 217. If the owner of a currently registered vehicle subsequently acquires another vehicle without transferring or assigning his title or interest in the vehicle for which the plates were issued, the owner may have such plates transferred to the subsequently acquired vehicle upon application and payment of the required fees.
"Ob) [Old registration or title certificate.] Whenever the assigned holder of registration plates elects to make application for a new registration certificate, the application shall be accompanied either by the old registration certificate or by a certificate of title showing him to be the assigned holder of the registration plates for which the old registration certificate had been issued.
"(c) [Offense.] It is a misdemeanor for any person to fail or neglect to fulfill the provisions of subsection (b) of this section.
"(d) [Assignment and warranty of title; statement of security interests.] The owner shall indorse on the back of the certificate of title an assignment thereof with warranty of title in the form printed thereon with a statement of all security interests in said vehicle or in any accessory thereon, sworn to before a notary public or some other person authorized by law to take acknowledgements, and deliver or cause the same to be mailed or delivered to the department or to the purchaser or transferee at the time of the delivery to him of such vehicle, which shall show the payment or satisfaction of any security interest as shown on the original title.
"(e) [Effective date of transfer of title.] Upon the delivery of a motor vehicle and the transfer, sale, or assignment of the title or interest in a motor vehicle by a person, including a dealer, the effective date of the transfer of title or interest thereto shall be the date of execution, in the presence of a notary public or some other person authorized to administer oaths in the county, of either the application for title or the certificate of title.”

It should be noted that at the time the motion for summary judgment was made, the trial court had been made aware of only the shorter title transfer statute. At the time that the order setting aside the summary judgment was entered, the trial court was also aware of the more involved statute involving the removal of the license plates. It may be seen that all of the requirements of MCL 257.233; MSA 9.1933 were not complied with at the time of the accident. The license plates were still on the automobile and the title of the automobile as well as the license plates were never transferred in the Secretary of State’s office.

In Messer v Averill, 28 Mich App 62, 66; 183 NW2d 802 (1970), lv den 384 Mich 808 (1971), our Court stated:

"The mandates of the Michigan Vehicle Code must be followed and our Courts have been adamant in their refusal to sanction anything less than strict compliance.”

The Messer holding is an application of the rule expressed in Cashin v Pliter, 168 Mich 386, 389; 134 NW 482 (1912):

"The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void.”

In Endres v Mara-Rickenbacker Co, 243 Mich 5, 9; 219 NW 719 (1928), a case with a factual situation similar to this case, the Supreme Court cited Cashin and concluded:

"In view of the purpose and language of the statute, we think it was the intent of the legislature that a sale or transfer of an automobile in violation of the provisions of the act should be void. It follows that in the case at bar there was not a sale to Pushkin, that as between him and the dealer, the dealer was the owner of the car (which ownership on this record the dealer may not question), that it was being driven with consent of the dealer at the time of the accident, and that it is liable.”

Based on the above authority, I would affirm the trial court’s order setting aside the summary judgment in defendant Thunder Bay’s favor.

       On appeal, appellant only discusses MCL 257.240; MSA 9.1940, although it was clear that the trial court’s order setting aside the summary judgment was based on both that provision and MCL 257.233; MSA 9.1933. A careful examination of the file discloses that on October 6, 1975, the trial court, in a related proceeding, stated that defendant Thunder Bay had not fully complied with the provisions of both statutes. Thus, I treat the trial court’s certification of the question of law to this Court as a request for a judicial construction of both statutes.

       The statute involved in Endres v Mara-Rickenbacker Co, 243 Mich 5; 219 NW 719 (1928), 1921 PA 46, §§ 3, 4, is the predecessor to MCL 257.233; MSA 9.1933.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v RODERICK JOHNSON
    Docket No. 77-2582.
    Submitted June 19, 1978, at Detroit.
    Decided September 21, 1978.
    Roderick Johnson was convicted, on his plea of guilty, of delivery of heroin, in Recorder’s Court of Detroit, Geraldine Bledsoe Ford, J. Defendant appeals, alleging that the prosecutor’s agreement not to file a habitual offender charge and to allow the plea conviction sentence to be served concurrently with a sentence imposed for conviction of three crimes committed after the guilty plea offense was coercive and illusory, and therefore rendered his plea invalid. Held:

    The use of a potential habitual offender charge as a tool to induce a plea is not improper. However, the accused must in fact be subject to a habitual offender charge. In the present case the offense to which the defendant pled guilty occurred prior to the trial convictions; therefore, under the recidivist statute, those convictions cannot be used as the basis for a habitual offender charge. Because the record is unclear as to whether the defendant had any felony convictions prior to the commission of the offense to which he pled guilty, the case is remanded for an evidentiary hearing.
    Remanded.
    1. Criminal Law — Plea of Guilty — Habitual Offenders — Inducement of Plea.
    A prosecutor may threaten to charge a defendant with a habitual offender prosecution, if applicable, in order to induce a plea, or may promise to forego such a prosecution in exchange for a plea; however, if a plea is induced by a promise to forego a recidivist proceeding where no such proceeding would be warranted, the defendant is per se misinformed as to the benefit of his plea and the bargain is illusory.
    2. Criminal Law — Second Offenders — Recidivist Statute — Statutes.
    A defendant’s first felony conviction must predate the defendant’s commission of a second felony in order for the defendant to be charged as a second offender under the recidivist statute (MCL 769.10; MSA 28.1082).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 485.
    [2] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 6.

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

      William A. House, for defendant on appeal.
    Before: D.C. Riley, P.J., and M.F. Cavanagh and B.M. Hensick, JJ.

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

   Per Curiam.

Defendant Roderick Johnson was convicted, on his plea of guilty, of delivery of heroin, contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and was sentenced to a prison term of 8 to 20 years.

Defendant alleges that his plea was not voluntary or knowing because of the nature of the plea bargain. He had previously been convicted, at a single trial, of three counts of delivery of heroin. In exchange for his plea, the prosecution agreed that his sentence on the instant charge would be concurrent with the sentence imposed for the earlier convictions and that no habitual offender information would be filed. It is now contended that the agreement not to initiate a supplemental information charging defendant as a habitual offender was coercive and illusory, thereby invalidating the plea.

The use of a potential habitual offender charge as a plea bargaining tool has been upheld in a recent decision of the United States Supreme Court. Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978). Under Bordenkircher, a prosecutor may threaten to charge a defendant with a habitual offender prosecution, if applicable, in order to induce a plea, or may promise to forego such a prosecution in exchange for a plea. On its face the plea bargain in the case at bar thus would be valid and enforceable.

However, we perceive from the record below what may be a more basic problem. Implicit in the proper use of a habitual offender charge as a plea bargaining tool is the legal applicability of the recidivist statutes to the particular defendant. The accused must be in fact a potential subject of habitual offender supplementation if this factor is to play a part in the plea negotiations. If the plea is induced by a promise to forego a recidivist proceeding, when no such proceeding would be warranted, the defendant is per se misinformed as to the benefit of his plea and the bargain is illusory. See People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), Hammond v United States, 528 F2d 15 (CA 4, 1975).

The prosecutor below stated on the record that defendant, in exchange for his plea, would not be supplemented as a second-time offender. Michigan’s recidivist statute for second-time offenders reads in part, as follows:

"A person, who after having been convicted within this state of a felony, or an attempt to commit a felony, or, under the laws of any other state, government or country, of a crime which if committed within this state, would be a felony, commits any felony within this state, is punishable upon conviction as follows: * * * (Emphasis added.) MCL 769.10; MSA 28.1082.

As this language should make clear, in order for a defendant to be supplemented as a second-time offender, the first felony conviction must predate the commission of the second felony. It is not sufficient if merely the convictions, or for that matter the commission of the offenses, are separate in time.

In the present case defendant was tried and convicted of three counts of delivery of heroin. Defendant entered his plea to the present offense while before the court for sentencing on the three trial convictions. As we stated earlier, his plea was given in exchange for a promise that no habitual offender information would be brought and that his sentence on the plea-based conviction would run concurrently with those imposed on the trial convictions.

Our uncertainty concerning this bargain stems from certain statements on the record that raise the issue of whether defendant indeed could have been charged as a habitual offender. At an early point in the proceeding, defendant’s counsel on the trial conviction cases, speaking in regard to the sentence to be imposed, stated that the defendant was a first offender. Later, defendant’s counsel on the current charge stated that the drug sales that led to both the current charge and the trial convictions occurred during the same period of time. Further, the offense at issue was committed on April 7, 1976, the trial convictions on March 17, 1977, and the plea on May 16, 1977. If in fact defendant had no felony convictions prior to April 7, 1976, he could not have been charged as a habitual offender, even after the three trial convictions.

We therefore must remand the matter for an evidentiary hearing. If defendant is found to have one or more felony convictions prior to April 7, 1976, his plea conviction is affirmed. On the other hand, if there are no such prior convictions, the plea bargain must be deemed illusory and the conviction reversed.

Remanded for proceedings consistent with this opinion.

       If the commission of the second felony occurs after the commission of the first, but prior to the conviction on the first, the defendant will be subject to potential consecutive sentencing upon conviction of the second rather than to a supplemental habitual offender charge. MCL 768.7b; MSA 28.1030(2).


text:
    UNITED GROWTH CORPORATION v KELLY MORTGAGE & INVESTMENT CO.
    Docket No. 77-3145.
    Submitted August 3, 1978, at Detroit.
    Decided September 21, 1978.
    Leave to appeal denied, 406 Mich —.
    United Growth Corporation filed a complaint against Kelly Mortgage & Investment Co., Catsman Realty Company, Samuel M. Catsman, and others, claiming Catsman Realty had breached various agreements in connection with an apartment project which was being constructed on land owned by Catsman ■ Realty, and to foreclose a mechanic’s lien against the apartments. Kelly Mortgage, which had financed the project by a loan secured by a mortgage on the premises and by a personal guarantee of Samuel M. Catsman, filed a cross-complaint for foreclosure of its mortgage, naming all interested parties as defendants. A summary judgment of foreclosure was granted to Kelly Mortgage and Catsman requested the court to establish an upset price for the foreclosure sale. Such a price was established, a foreclosure sale was held but the court refused to confirm the sale because of notice deficiencies, and subsequently a second foreclosure sale was held in which Kelly Mortgage purchased the property. The Genesee Circuit Court, Earl E. Borradaile, J., confirmed the sale, and Catsman and Catsman Realty filed a motion to amend the judgment, alleging that the upset price was inadequate. The motion was denied, and Catsman and Catsman Realty appeal, alleging that the trial court erred in using a forced sale valuation in determining the upset price, and in denying the motion to increase the upset price. Held:

    1. The fact that a mortgage foreclosure sale is held under compulsion is a proper element for a court to consider when arriving at an upset price.
    2. Denial of the motion to amend was proper. There is no ' statutory provision expressly permitting amendment of an upset price subsequent to a sale, and the facts stated in the motion were neither found in the record nor supported by affidavits as required by court rule.

      References for Points in Headnotes
    [1] 55 Am Jur 2d, Mortgages §§ 662, 667, 673.
    [2] 55 Am Jur 2d, Mortgages § 673.
    [3] 55 Am Jur 2d, Mortgages §§ 662, 675.
    [4] 55 Am Jur 2d, Mortgages § 666.
    [5, 6] 55 Am Jur 2d, Mortgages §§ 625-629, 758.

      3. The trial court erroneously denied assessment of attorneys’ fees to the mortgagee where the agreements between the parties expressly permitted payment of such fees in the event of foreclosure.
    Affirmed in part, and remanded for determination of attorneys’ fees to be awarded.
    1. Mortgages — Foreclosure—Sale Price — Compulsion.
    The fact that a mortgage foreclosure sale is made under compulsion is a proper consideration for the court in analyzing the fairness of the foreclosure sale price.
    2. Mortgages — Foreclosure—Sale Price — Inadequacy of Price.
    Mere inadequacy of price does not justify a court’s refusal to confirm a mortgage foreclosure sale.
    3. Mortgages — Foreclosure—Upset Price — Statutes.
    Mortgage foreclosure proceedings are strictly statutory and there is no provision in the statute expressly permitting amendment of the upset price subsequent to a sale (MCL 600.3155; MSA 27A.3155).
    4. Mortgages — Foreclosure—Confirmation of Sale — Motion to
    Amend Judgment — Court Rules.
    A trial court properly denied a motion to amend a judgment confirming a mortgage foreclosure sale where the facts stated in the motion to amend neither appeared in the record nor were supported by affidavits (GCR 1963, 527.3).
    5. Mortgages — Foreclosure—Attorneys’ Fees — General Rule.
    Generally, the court in an action to foreclose a mortgage will not render judgment against the mortgagor for the attorneys’ fees of the mortgagee where there is no statutory provision or contractual stipulation between the parties for the allowance of such fees.
    6. Mortgages — Foreclosure—Attorneys’ Fees.
    A trial court erred in denying attorneys’ fees to a mortgagee in a mortgage foreclosure action where the agreement between the parties expressly permitted the assessment of reasonable attorneys’ fees in the event of foreclosure.

      Hammond, Ziegleman, Sotiroff & Fishman (by
      Lawrence R. Abramczyk), for Kelly Mortgage & Investment Co.

      Jeffrey A. Chimovitz, for defendants Catsman Realty Company and Samuel M. Catsman.
    Before: J.H. Gillis, P.J., and D.E. Holbrook and R.M. Maher, JJ.
   Per Curiam.

This action arises from a dispute over an apartment project called River Hollow, which was constructed on land owned by the Cats-man Realty Company. The construction of the apartments was financed by a loan from Kelly Mortgage Company, secured by a mortgage on the premises and the personal guarantee of Samuel M. Catsman.

The suit was commenced on September 1, 1974, by the filing of a complaint by plaintiff, United Growth Company, against defendants, Catsman Realty Company, Kelly Mortgage Company, and others. On March 5, 1975, Kelly Mortgage Company filed a cross-claim for foreclosure against Catsman Realty Company. Catsman appeals the judgment granted upon that cross-claim.

On March 10, 1976, Kelly moved for a summary judgment of foreclosure of both its mortgage and a security interest which it held in personalty at the apartment project. Neither Catsman nor Catsman Realty opposed the motion, both admitting to having defaulted in their repayment obligations on the mortgage. At the conclusion of the April 7, 1976, hearing on the summary judgment motion, Catsman requested that the court establish an upset price in conjunction with the foreclosure sale, pursuant to the discretion vested in the court under MCL 600.3155; MSA 27A.3155.

Catsman’s request was granted and on May 12, 1976, an appraisal was submitted to the court. The appraisers advised the court that the foreclosure sale value of the mortgaged property was $1,000,-000. After the court heard appellants’ objections to the price, the judgment of foreclosure was entered in the amount of $1,000,000. No appeal was taken therefrom.

On October 15, 1976, a mortgage foreclosure sale was held, but the court refused to confirm the sale due to a deficiency in the sheriff’s manner of posting notice of the sale.

A second foreclosure sale was held on April 1, 1977. Appellee purchased the property for $1,050,-000. The sale was confirmed on May 13, 1977. On June 1, 1977, appellants filed a "Motion to alter or amend judgment under GCR 1963, 527”, alleging that the first sale upset price was inadequate. On June 20, 1977, the motion was heard and denied. Catsman and Catsman Realty appeal from that denial.

As a preliminary note, there is some question as to whether appellants may challenge the amount of an upset price set nearly a year before they claimed an appeal. Formerly, their appeal might have been precluded. See Cooper v LaBuda, 308 Mich 737; 14 NW2d 788 (1944). However, the court rules have been changed and as they now exist, they permit appellants a delayed appeal to the Court upon leave granted. Since appellants do not appear to have been negligent in filing the appeal, we shall address the merits of the case as on leave granted.

Appellants first claim that the trial court erred in using a forced sale valuation in determining the foreclosure sale upset price. We find no error.

MCL 600.3155; MSA 27A.3155 provides:

"In any forfeiture, foreclosure, or specific performance case based upon a mortgage on real estate or land contract the court may fix and determine the minimum price at which the real property covered by the mortgage or land contract may be sold at the sale under the forfeiture, foreclosure, or specific performance proceedings.”

The statutory language itself suggests that the Legislature was avoiding the use of terms such as "fair market value” or "cost”. On the contrary, the statute itself notes the forced nature of the sale by utilizing the terms, "forfeiture, foreclosure or specific performance”. As appellee states: "There is nothing whatsoever in the text to support the contention that the legislature viewed the sale as an arm’s-length, private transaction free from constraints wherein the best possible price can be negotiated by the seller.”

Moreover, it cannot be gainsaid that the element of compulsion reduces the value of property. Section 3155 was obviously intended to prevent such compulsion from forcing the mortgage sale price too far below the price which could be obtained by a willing seller from a willing buyer. If the element of compulsion could not be considered by the court in setting the upset price, prospective buyers would probably refrain from bidding until the price was reduced. Reality requires that the court make some concession to the forced nature of the sale in setting the upset price.

Other jurisdictions have held that the element of compulsion is a proper consideration in analyzing the fairness of the foreclosure sale price. See Gilbert v Lusk, 123 Ind App 167; 106 NE2d 404 (1952), Cromer v De Jarnette, 188 Va 680; 51 SE2d 201 (1949), and Orlove v National Savings & Trust Co, 68 US App DC 387; 98 F2d 259 (1938).

It is also true, as appellees argue, that Michigan courts have consistently refused to void or otherwise alter the sale price in foreclosure sales on the basis of mere inadequacy. In Campau v Godfrey, 18 Mich 27, 44-45 (1869), the Supreme Court said:

"And no case has been cited, nor are we aware of any, in which an execution sale of real estate has been set aside, on motion or otherwise, for inadequacy of price alone, especially when, as in this case, it was subject to a year’s redemption. The statute giving a year’s redemption seems to rest mainly upon the idea that real estate may be sold for less than its value, and to give the time of redemption mainly on this ground. This is an adequate remedy, and if the debtor will not avail himself of it, he can not complain of it. Public policy requires that judicial sales which have been open and fair, and nothing done to prevent a sale at a higher price, should not be disturbed on the ground of inadequacy; since the effect of an opposite course would be to deter bidders, and render the prices on such sales still less. And any rule which might be laid down as to the degree of inadequacy would be wholly arbitrary.” (Citation omitted.) (Emphasis supplied.)

Inadequacy of price does not justify a refusal to confirm the sale. It likewise follows that it cannot flaw the deficiency judgment resulting from such sale.

The court, then, in setting the upset price, did not err in taking into consideration the compulsion attendant to a mortgage foreclosure sale.

Appellants also complain that the trial court erred in denying defendant’s motion to increase the upset price when that motion was not made until after the second sale was held and confirmed. As the reason for their motion, appellants claimed the value of the property had increased between the setting of the foreclosure sale upset price and the second foreclosure sale.

But mortgage foreclosure proceedings are strictly statutory and courts are bound by the statutory provisions.

"Mortgage foreclosure proceedings are special and statutory and not an exercise of inherent equity powers of the court.” Wurzer v Geraldine, 268 Mich 286, 288; 256 NW 439 (1934).

There is no provision in the mortgage foreclosure statute which expressly permits amendment of the upset price subsequent to a sale. The words in MCL 600.3155, "may be sold”, clearly anticipate a future sale at the time the upset price is set.

Appellants’ reliance on Kramer v Davis, 371 Mich 464; 124 NW2d 292 (1963), is misplaced. Kramer addressed itself to the issue raised by appellants and rejected appellants’ theory.

"We think the language of the statute 'the court may fix and determine the minimum price at which the real property covered by the mortgage or land contract may be sold at the sale’ discloses a legislative intent to authorize the court to make such determination in advance of the sale. The statute does not say that the court may determine the minimum price at which the real property should have been sold at a sale theretofore held.” 371 Mich at 471.

The Kramer Court clearly construed § 3155 as giving the court the authority to set the minimum price prior to the sale only.

There is an additional reason for upholding the denial of appellants’ motion to amend the judgment. GCR 1963, 527.3 requires that if the facts stated in the motion to amend the judgment did not appear on the record, the motion must be supported by affidavits of the party or some other person. Catsman’s allegation that the value of the property increased between the first and second foreclosure sale did not appear on the record and was not supported by affidavit. Consequently, even if it could have, the court had no basis for amending the judgment.

Finally, the trial court ruled that attorney fees could not be awarded in a judicial mortgage foreclosure as a matter of law. The court consequently refused to include such an award in the judgment of foreclosure.

The general rule as to attorneys’ fees is stated as follows:

"In the absence of a statutory provision or some contractual stipulation between the parties for the allowance of attorneys’ fees, the court in an action to foreclose a mortgage will not render judgment against the mortgagor for the attorneys’ fees of the mortgagee.” 55 Am Jur 2d, Mortgages, § 625, p 590.

In this case, however, both the mortgage executed by Catsman Realty and the guaranty signed by Samuel Catsman expressly permit the assessment of attorneys’ fees in the event of foreclosure. Since attorneys’ fees are expressly permitted by the terms of the mortgage and the guaranty, the general rule cited above does not apply.

In denying attorneys’ fees, the trial court relied, upon Kittermaster v Brossard, 105 Mich 219; 63 NW 75 (1895). But Kittermaster stated that a court will not enforce a mortgage clause providing for attorneys’ fees in a stipulated amount. The mortgage in the instant case, however, does not set a stipulated fee and Kittermaster does not apply. The mortgage at issue called for the payment of "all expenditures and expenses which may be reasonably paid or incurred”. Provisions for payment of reasonable attorneys’ fees have been endorsed by our Courts. See Wilson Leasing Co v Seaway Pharmacal Corp, 53 Mich App 359; 220 NW2d 83 (1974).

In short, as was stated in Butzel v Webster Apartments Co, 112 F2d 362, 365 (CA 6, 1940):

"The rule prevails in Michigan that an agreement by a mortgagor to pay a stipulated attorneys’ fee on default and foreclosure is contrary to public policy and invalid. Curtis v Mueller, 184 Mich 148; 150 NW 847 [1915]; Myer v Hart, 40 Mich 517; 29 Am Rep 553 [1879]. However, a reasonable fee may be allowed, measured by the fair value of the services rendered. Security Trust Co v Solomon, 241 Mich 52; 216 NW 405 [1927]”.

We find that the agreement in the instant case called for reasonable attorneys’ fees and such costs should have been allowed appellees. The case is therefore remanded for taking of proofs on the question of reasonable attorneys’ fees to be awarded to appellees. As to the other issues, the trial court is affirmed. Costs to Kelly Mortgage & Investment Company.


text:
    ENSMAN v ENSMAN
    Docket No. 78-404.
    Submitted June 6, 1978, at Lansing.
    Decided September 21, 1978.
    Thelma R. Ensman filed a complaint for divorce and Lawrence E. Ensman filed a cross-complaint. When the divorce came on for a hearing, defendant withdrew his pleadings and the property settlement between the parties was spelled out in full on the record. Defendant was in accord with the agreement stated on the record and the cause proceeded pro confesso. Thelma Ensman died 34 days following the pro confesso proceedings but before formal entry of a written judgment of divorce. Two days later a judgment of divorce, approved as to content and form by attorneys for both parties, was entered in Oakland Circuit Court, Richard D. Kuhn, J. The trial court denied the defendant’s motion to set aside the divorce judgment which motion was based on the ground that a divorce and property settlement do not become effective until it is signed by the parties and entered by the court. The defendant appeals. Held: A judgment of divorce is not effective, as a general rule, and the parties remain married, until the judgment is reduced to writing and signed by the parties; however, an exception exists to this general rule and a divorce judgment will be upheld on the basis of a judge’s oral statement that a pro confesso divorce is or will be granted where death occurs to one of the parties before entry of a formal written judgment where the parties during the interval before death, in good faith, acted on the assumption that the divorce had been granted. Approval of the divorce judgment, knowing that his wife was terminally ill with cancer, and the acceptance by defendant of cash benefits thereunder estops defendant from appealing the existence or enforcement of the judgment.
    Affirmed.
    1. Divorce — Judgment—Pro Confesso — Judge’s Oral Statement— Substantial Reliance — Proof.
    A judge’s oral statement that a pro confesso divorce is or will be granted, followed by the death of one of the parties before formal entry of the judgment, is sufficient to uphold the divorce judgment where the parties, during the interval before death, in good faith, acted on the assumption that the divorce had been granted; meaningful proof of conduct indicating the parties themselves believed they were divorced is required, and where there is evidence of substantial reliance upon the judge’s oral statement the subsequently entered judgment of divorce should be upheld.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation §§ 419, 425, 435.
    [2] 24 Am Jur 2d, Divorce and Separation § 490.

      2. Judgment — Acceptance of Benefits — Estoppel.
    Approval of a judgment and acceptance of benefits thereunder estops a party from appeal; therefore, a husband, knowing that his wife was terminally ill with cancer, cannot accept major cash benefits under a divorce judgment which he has approved and then drag his feet or otherwise postpone, until her death, a final settlement and division of the more substantial property interests ordered in the consent judgment and should not be allowed to set aside the judgment which has been read into the record, but formally entered after the wife’s death.

      Merritt, Kwetcher & Burnard, for plaintiff.

      Christi & Herman, for defendant.
    Before: Allen, P.J., and Cynar and D.R. Freeman, JJ.

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

   Per Curiam.

With some significant differences, hereinafter noted, this appeal comes to us on basically the same facts as appear in Saunders v Smith, released concurrently with this opinion. Plaintiff wife died 34 days after obtaining a pro confesso divorce but before formal entry of a written judgment of divorce. Two days later a judgment of divorce, approved as to content and form by attorneys for both parties, was entered by the court. On July 13, 1977, the trial court denied a motion to set aside the judgment, and defendant appeals of right.

The parties hereto were married July 6, 1967, and separated about nine years later on May 10, 1976. During the marriage one child was born. On June 2, 1976, the wife filed a complaint for divorce, and defendant answered and filed a cross-complaint. Interrogatories disclose that the husband owned a 50% interest in a hardware business where he was employed, and also owned as a tenant by the entirety with his wife, a 50% interest in a parcel of land near Cheboygan. This interest in land was valued at about $8,000. Additionally, the parties had a joint bank account of $5,326.61 and jointly owned stocks approximating $9,000 market value. The home in which the parties lived was owned by the plaintiff prior to the marriage and upon plaintiffs death passed by will to her named devisees.

On June 13, 1976, the divorce came on for hearing with both parties present, together with their respective attorneys. As in Saunders, supra, defendant withdrew his pleadings, and the property settlement agreement was spelled out in full on the record. Defendant personally stated he was in accord with the agreement stated on the record, and the cause then proceeded pro confesso. At the conclusion of the wife’s testimony the following occurred:

"THE COURT: The Court is satisfied with the proofs, the Court will grant the Plaintiff a judgment — absolute judgment of divorce, grant custody of the minor child to the plaintiff-mother, support in the amount of fifty dollars ($50) a week, plus all medical, dental and hospital expenses.
"The Court will approve of the property settlement as placed on the record and agreed upon, and the Court will approve of the alimony in the amount of fifty dollars ($50) per week, plus the defendant will pay the Blue Cross and Blue Shield premiums.
"All the Statutory dower clauses shall be made part of the record and made part of the judgment.”

Thelma Ensman died from cancer on July 17,— just 34 days following the pro confesso proceedings. Sometime between June 13 and July 17, a proposed judgment of divorce had been drafted by plaintiffs counsel and signed by plaintiff and also approved "as to form and substance” by the signature of counsel for both parties. Defendant had not signed. On July 18, defendant’s counsel telephoned plaintiffs counsel that plaintiff had died the prior day. However, both counsel agreed that under the circumstances the husband’s signature was not required and that judgment should be entered immediately. Judgment bearing counsel and plaintiffs signature was entered by the court July 19. The property settlement provisions thereof conform precisely with the agreement stated on the record on June 13. Under its terms, the wife was awarded the home and the husband was awarded the hardware business. All liquid assets including the bank account, stocks and a retirement account were to be divided equally between the parties. The Cheboygan property in which the parties previously held a 50% interest as tenants by the entireties was to be held in tenancy in common, viz. — each party to hold one-quarter.

One day after plaintiffs death the Supreme Court decided Tiedman v Tiedman, 400 Mich 571; 255 NW2d 632 (1977), a case upon which the husband now strongly relies to nullify the judgment of divorce. Plaintiff claims that Tiedman announced a new rule of law and therefore should be applied prospectively only. We disagree. The Tiedman Court was not announcing a new rule of law but merely restating some well-established principles and correcting what it found to be an erroneous approach taken by this Court in LeTarte v LeTarte, 32 Mich App 289; 188 NW2d 673 (1971), lv den, 385 Mich 761 (1971).

In Saunders, supra, we held the statements made by the trial court at the conclusion of the pro confesso testimony of the wife clearly and unambiguously expressed the intent to make the judgment effective immediately. We do not find this to be true in the instant case. Here, unlike Saunders, the court’s verbal rendition of judgment was couched in terms in futuro. The trial court’s verbiage was singularly no different than the language found in Tiedman to be insufficient to permit entry of judgment nunc pro tunc. In fact, the instant case is even less favorable to the deceased’s position than Tiedman since, here, the trial court, upon granting defendant’s motion to withdraw answer and countercomplaint stated: "Be sure to get a stipulation and order in”. Patently, the facts in the present case do not fall within the Tiedman exception upon which this Court relied in Saunders to affirm a judgment of divorce entered subsequent to the wife’s death.

However, in footnote 1, the Tiedman Court set forth at some length a second exception to the general rule that divorce might not be granted after a party’s death:

"Whether parties who in good faith have acted on the strength of a judge’s oral statement that a divorce is or will be granted should be deemed to be divorced is a question different from the one here presented where the terms of the agreed-upon property settlement were not consummated or other action taken in the good faith belief that a divorce had been granted. See Clark on Domestic Relations, § 11.3, pp 289-299.”

We believe the reliance exception controls the present case. During the 34-day interval the parties, in good faith, acted on the assumption that a divorce had been granted. The bank account was closed out and each party received approximately $2,700. This was in conformity with the property settlement provision that liquid assets were to be divided equally. The husband moved out of the basement of the home which was awarded to the wife, and commenced paying alimony at the new rates set forth at the pro confesso hearing.

The degree of reliance required to come within the footnoted exception is not addressed in Tied-man, probably because, there, the husband unexpectedly died in a fire six days after the pro confesso proceedings and there was little opportunity to demonstrate reliance. However, in our opinion the amount of reliance required should be substantial. Meaningful proof of conduct indicating the parties themselves in good faith believed they were divorced is required. Here, the conduct of both the husband and wife meets that standard. Their actions of reliance were neither minor nor unsubstantial. Things which the parties could do on their own, such as closing out the bank account, moving away from the house and making and accepting alimony and child support payments in conformity with the settlement agreement, were done. Left undone were things which required assistance from counsel such as converting an entirety tenancy to a tenancy in common and contacting stock transfer agents for the transfer of the stocks held by the parties.

Not only did the defendant-husband accept benefits under the judgment which he now attacks but, in addition, his counsel approved the proposed judgment knowing that the plaintiff wife had died. Westgate v Adams, 293 Mich 559; 292 NW 491 (1940), is cited for the rule that approval of a decree and acceptance of some benefits thereunder estops a party from appeal. Cf. Norton Shores v Carr, 59 Mich App 561; 229 NW2d 848 (1975). In Bohn v Bohn, 26 Mich App 270, 273; 182 NW2d 107 (1970), plaintiff wife attacked a court order which awarded custody of the minor child to defendant husband. The order was approved as to both substance and form by the wife’s attorney. This Court held:

"Further, plaintiff consented to the March 12 custody order both as to form and substance, and cannot now complain. Trupski v Kanar, 366 Mich 603 [115 NW2d 408] (1962), Chilton’s, Inc v Wilmington Apartment Co, 365 Mich 242 [112 NW2d 434] (1961).”

At the time of the pro confesso hearing, the defendant knew full well that his wife was terminally ill with cancer. Knowing this, he cannot accept major cash benefits under the judgment and then, for more than a month, drag his feet or otherwise postpone until her death a final settlement and division of the more substantial property interests ordered in the consent judgment.

Affirmed, costs to plaintiff.

Cynar, J., concurs in result only.

        Saunders v Smith, 86 Mich App 1; 272 NW2d 174 (1978).

       Stock ownership consisted of 200 shares Ampex Corporation; 320 shares Detroit Edison; 50 shares Rockwell International; 200 shares Peppy/Biffs, Inc.

       Counsel argued that prior to Tiedman, the law was that the death of one of the parties after rendition of judgment, but before entry of judgment, would not affect the validity of a subsequently entered judgment.


text:
    WHITE v WHITE
    Docket No. 78-1334.
    Submitted August 3, 1978, at Detroit.
    Decided September 21, 1978.
    Sharon L. White commenced a divorce action against Harry D. White, Jr. A default judgment of divorce was entered on August 30, 1976. The custody of the two minor children was granted to the defendant.
    Plaintiff subsequently moved for a change of custody of one of the children and also requested that the defendant be ordered to pay child support and medical and dental expenses when the change of custody became effective. The motion for change of custody was supported by an affidavit of the plaintiffs attorney, stating that the reasons and grounds stated therein were true to the best of his knowledge and that he believed the matters stated on information and belief to be true.
    The defendant in his answer agreed to the change in custody proposed by the plaintiff. However, the defendant contended that he was financially unable to contribute support to the child in plaintiffs custody.
    It was ordered that custody be changed, that the defendant pay $42 a week for the support of the child in plaintiffs custody, and that the defendant pay $150 in attorney fees for the plaintiffs attorney, Oakland Circuit Court, Francis X. O’Brien, J. The defendant appeals, alleging that the plaintiffs motion seeking the change of custody and child support was not properly before the trial court because it was not verified by the oath of the plaintiff or someone having knowledge of the facts pleaded. The defendant also alleges that the trial court erred in awarding the plaintiff attorney fees because she made no showing that the award was necessary to enable her to carry on the action. Held:

    1. The motion was properly before the trial court as the motion to change custody comports with the applicable court rule.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation § 792 et seq.

    [2] 24 Am Jur 2d, Divorce and Separation §§ 591, 592.
    [3] 24 Am Jur 2d, Divorce and Separation §§ 573, 576, 586.

      2. The award of attorney fees was improper, absent a showing that such an award was necessary to enable the plaintiff to carry on the action.
    Affirmed in part, reversed in part.
    1. Infants — Child Custody — Pleadings—Verification of Pleadings — Information and Belief — Court Rules.
    A pleading in a child custody matter may be verified by someone, other than a party, having knowledge of the facts pleaded; this knowledge may be acquired upon information and belief (GCR 114.3).
    2. Divorce — Appeal and Error — De Novo Review — Attorney Fees.
    The Court of Appeals hears an appeal in a divorce case de novo on the record and will only substitute its judgment for that of the trial court where it is clear that the Court of Appeals would have reached a different result had it occupied the position of the trial court; this guideline of appellate review is applicable where the Court of Appeals is reviewing an award of attorney fees in a domestic relations action.
    3. Divorce — Separation—Attorney Fees — Statutes.
    Attorney fees in an action for divorce or for separation are not awarded as a matter of right, but only if necessary to enable a party to carry on or defend the litigation (MCL 552.13; MSA 25.93).

      Alan G. Greenberg, for plaintiff.

      Small, Oakes & Vosko, for defendant.
    Before: J.H. Gillis, P.J., and D.E. Holbrook and R.M. Maher, JJ.
   Per Curiam.

A default judgment of divorce between the parties was filed on August 30, 1976. Custody of the parties’ two minor children was granted to defendant.

Plaintiff moved for a change of custody of one of the parties’ two children. Plaintiff also requested that the defendant be ordered to pay child support, medical and dental expenses when the change of custody became effective.

The motion for change of custody was supported by an affidavit of plaintiff’s attorney stating that the reasons and grounds stated therein were true to the best of his knowledge and that he believed the matters stated on information and belief to be true.

Defendant’s answer acknowledged that he agreed to the change in custody proposed by plaintiff. Defendant contended, however, that he was financially unable to contribute support to the child in plaintiff’s custody. He further argued that the plaintiff’s motion was not properly before the trial court because it was not signed by the plaintiff and there was no showing that the affiant, plaintiff’s attorney, had first-hand knowledge of the matter set forth therein.

The plaintiff’s motion for change of custody was referred over defendant’s objection to the Friend of the Court for a recommendation.

The plaintiff also moved the trial court to order the defendant to pay the attorney fees incurred by her while attempting to effectuate the change of custody order.

At a hearing on the motions, the trial court ordered that custody be changed and that defendant should pay $42 a week for the support of the child in plaintiff’s custody. The trial court further ordered the defendant to pay $150 in attorney fees.

On appeal, defendant contends that the plaintiff’s motion seeking change of custody and child support was not properly before the trial court because it was not verified by the oath of the plaintiff or someone having knowledge of the facts pleaded. He further argues that the trial court erred in awarding plaintiff attorney fees because she made no showing that the award was necessary to enable her to carry on the action.

A special set of court rules, GCR 1963, 721 to 731, govern domestic relations proceedings, including child custody matters. GCR 1963, 721(6). Unless otherwise specified in these special rules, the procedure in the actions enumerated in GCR 1963, 721, shall follow the general rules of procedure.

GCR 1963, 725.1 provides that all pleadings seeking affirmative relief in actions described in rule 721 shall be verified by oath. The special rules applicable to domestic relations do not, however, contain a provision specifying how a pleading may be verified by oath. Thus, according to GCR 1963, 721, the verification procedure would be governed by the general rule of procedure, GCR 1963, 114.3, which provides:

"(1) If a pleading must be verified:
"(a) it may be verified by the oath or affirmation of the party or of someone having knowledge of the facts pleaded; or
"(b) it may contain the following signed and dated declaration: T declare that the statements above are true to the best of my information, knowledge and belief.
"The matters in the pleading must be stated positively or upon information or belief, according to the fact.
"(2) A person who knowingly makes a false declaration under subrule 114.3(l)(b) is in contempt of court.”

The foregoing court rule has been effective in its present form since September 3, 1976, and was thus applicable to the case at bar.

The clear import of this rule is that a custody pleading may be verified by someone, other than a party, having knowledge of the facts pleaded; further, this knowledge may be acquired upon information and belief.

The affidavit in support of the plaintiffs motion to change custody appears to comport with GCR 1963, 114.3. Thus, the motion to amend the divorce judgment was properly before the trial court.

This Court hears an appeal in a divorce case de novo on the record and will only substitute its judgment for that of the trial court where it is clear that this Court would have reached a different result had this Court occupied the position of the trial court. Irish v Irish, 59 Mich App 635; 229 NW2d 874 (1975), Mixon v Mixon, 51 Mich App 696; 216 NW2d 625 (1974).

This guideline of appellate review is applicable where this Court is reviewing the award of attorney fees in a domestic relations action. Gove v Gove, 71 Mich App 431, 434; 248 NW2d 573 (1976).

MCL 552.13; MSA 25.93 provides in pertinent part:

"In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.”

GCR 1963, 726.1 provides in pertinent part:

"(1) In an action for divorce, separate maintenance, annulment, or affirmation of marriage, and in subsequent petitions to modify the judgment, either party may request that the court order the other spouse to pay an attorney the sum specified as necessary to enable that party to carry on or defend the suit.
"(2) The moving party shall allege facts showing that he or she is unable to bear the expense of the action without this aid. The trial judge may require the disclosure of what attorney fees have been paid.
"(3) The court may order, in the judgment or in a separate order, that whatever sum it finds necessary and reasonable be paid to the wife’s attorney, either by the husband or out of the assets of the husband over which the court has jurisdiction.”

Attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. Mixon v Mixon, supra, at 702.

Plaintiffs motion for attorney fees failed to allege any facts which support her allegation that she was unable to bear the expense of the action without the award. Moreover, there are not sufficient facts on the record from which this Court could determine her need for an attorney fee award. Plaintiffs answers to the interrogatories submitted by defendant do indicate her wages. However, there is no indication. whether plaintiff had assets or income from sources other than wages. Further, there is no record of plaintiffs expenses. In the absence of these facts, this Court cannot make an independent determination of the plaintiffs ability to bear the expense of the action.

The trial court’s order amending the judgment of divorce is affirmed insofar as it ordered a change in child custody and payment of child support. The award of attorney fees is, however, set aside. Plaintiff is not precluded from filing a new motion in the trial court setting forth those factors which she believes require defendant to pay an attorney fee. The court shall decide the matter in accordance with the guidelines set forth in Gove v Gove, supra. No costs, neither party having prevailed in full.


text:
    PEOPLE v YARBROUGH (ON REMAND) (ON REHEARING)
    Docket No. 78-1618.
    Submitted June 18, 1977, at Detroit.
    Decided September 21, 1978.
    Hendrick Yarbrough was convicted of four counts of first-degree murder, Recorder’s Court of Detroit, Dalton A. Roberson, J. The defendant appealed, claiming that the trial court had erred in failing to consider the defendant’s motion for a mistrial, based on reference at trial on three different occasions to the defendant’s prior incarceration, which had been withdrawn and later renewed. The Court of Appeals reversed and remanded for a new trial, 78 Mich App 81 (1977).
    The prosecution then applied for leave to appeal to the Supreme Court. In lieu of granting leave, the Supreme Court vacated the decision of the Court of Appeals and remanded the matter to the Court of Appeals for consideration of the question of whether assuming pro arguendo that the trial court should have entertained the defendant’s final request for mistrial, it would have been error for the trial court to refuse to grant said motion. On remand, the Court of Appeals again reversed the trial court and remanded the matter for a new trial, 84 Mich App 779 (1978).
    The prosecution subsequently applied for a rehearing in the Court of Appeals. Rehearing granted. Held:

    Had the trial court entertained the motion it would not have been error to refuse to grant the defendant’s renewed motion for a new trial.
    The trial court is affirmed.
    1. Witnesses — Criminal Law — Evidence—Reference to Prior Incarceration — Nonresponsive Answer.
    An answer by a prosecution witness, in response to a question on direct examination, which made reference to the fact that the witness knew a defendant because they had met in the penitentiary was not cause for granting a mistrial where the prison reference was a nonresponsive, volunteered answer to a proper question.

      References for Points in Headnotes
    [1, 2] 81 Am Jur 2d, Witnesses §§ 434, 435.
    [2] 75 Am Jur 2d, Trial § 687.
    [3] 81 Am Jur 2d, Witnesses § 433.

      2. Witnesses — Criminal Law — Evidence—Reference to Prior Incarceration — Foundation—Instructions to Jury.
    There was no error resulting from a reference at trial to a defendant’s prior incarceration where the prosecutor asked a witness to relate a conversation he had had with the defendant and defense counsel objected, demanding a foundation as to time and place, and the reference occurred during the reading to the jury of the witness’s preliminary examination testimony to supply the necessary foundation, and where a cautionary instruction was given by the court concerning the testimony.
    3. Witnesses — Criminal Law — Evidence—Reference to Prior Incarceration — Mistrial—Instructions to Jury.
    A witness’s reference at trial to a defendant’s prior incarceration was improper where the reference was elicited by a question from the prosecutor and the reference probably could have been avoided had the prosecutor been better prepared; however, the one remark did not necessitate the granting of a mistrial where the jury already knew that the defendant had been in prison, due to foundational facts elicited previously at defense counsel’s request, and where the trial court gave a cautionary instruction regarding this matter.

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

      Carl Ziemba, for defendant on appeal.
    Before: R. M. Maher, P.J., and N. J. Kaufman and F. J. Borchard, JJ.

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

   On Remand, On Rehearing

Per Curiam.

We granted the prosecutor’s motion for rehearing in this cause on August 24, 1978, in order to reconsider our opinion in People v Yarbrough (On Remand), 84 Mich App 779; 270 NW2d 689 (1978).

This case was originally decided in People v Yarbrough, 78 Mich App 81; 259 NW2d 248 (1977). The facts are stated in the original opinion. This Court reversed defendant’s conviction on the ground that the trial court had failed to address defendant’s motion for mistrial which had been withdrawn and later renewed by defense counsel. On appeal by the prosecutor, the Supreme Court issued the following order:

"Leave to appeal is considered April 28, 1978, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals decision is vacated and the case is remanded to the Court of Appeals for consideration of the question of whether, assuming pro arguendo that the trial court should have entertained defendant’s final request for mistrial, it would have been error for the trial court to refuse to grant said motion. Unless it would have been error for the trial court to refuse to grant the motion, reversal on this basis should not be ordered. In addition, the matters raised by defendant in his application for cross-appeal are remanded to the Court of Appeals for such further consideration as the Court of Appeals shall deem necessary. This Court does not retain jurisdiction.” 402 Mich 920 (1978).

Addressing the above question, we find that it would not have been error to refuse to grant the motion for mistrial. The basis for this motion was that three references to defendant’s incarceration were made during the trial. The first reference was made by a prosecution witness who, when asked on direct examination whether he knew the defendant, answered, "Yes, I met him in the penitentiary, he locks [sic] four cells from me.” The prison reference here was a nonresponsive, volunteered answer to a proper question. It was not cause for granting a mistrial. See People v Kelsey, 303 Mich 715, 717; 7 NW2d 120 (1942), compare People v Greenway, 365 Mich 547; 114 NW2d 188 (1962).

The second reference to defendant’s incarceration occurred during the reading of witness Wilson’s preliminary examination testimony to the jury. The prosecutor asked Wilson to relate a conversation he had had with the defendant, and defense counsel objected, demanding a foundation as to time and place. No error resulted when this necessary foundation was supplied, especially since a cautionary instruction was given by the court concerning the use of the testimony.

The third mention of prior time in jail took place when the prosecutor asked Wilson’s parole officer whether he had made any recommendations regarding Wilson. The parole officer answered, "I recommended that he not be placed in the same block with Mr. Yarbrough”. While we do not condone the prosecutor’s question, and in fact suspect that had the prosecutor been better prepared, his witness would not have referred to defendant’s incarceration, we do not find that this one remark necessitated the granting of a mistrial. By this time the jury already knew that defendant had been in prison, due to the foundational facts elicited previously at defense counsel’s request. In addition, the trial court gave a second cautionary instruction regarding this matter at the conclusion of the proofs.

For the above reasons we find that refusal to grant defendant’s renewed motion for a mistrial would not have been error. Since defendant’s other allegations of error are also without merit, we affirm defendant’s conviction.

Affirmed.

F. J. Borchard, J., did not participate.

       We adhere to the legal conclusions as stated in our original opinion with respect to the issue of the trial court’s duty to consider defendant’s motion for mistrial. Our opinion here is directed solely to answering the question posed by the Supreme Court, infra.


text:
    THE VOGUE v SHOPPING CENTERS, INC (ON REMAND)
    Docket No. 78-2500.
    Submitted June 30, 1978, at Lansing.
    Decided September 21, 1978.
    Plaintiff, The Vogue, brought an action for damages for breach of contract and loss of profits sustained because of a delay in opening the plaintiff’s new store in a shopping center owned by defendant, Shopping Centers, Inc. The Genesee Circuit Court, Donald R. Freeman, J., entered a judgment for the plaintiff on the jury’s award of $27,000 for loss of profits. Defendant appealed. The Court of Appeals reversed and remanded for entry of a judgment for defendant on the ground that the evidence of lost profits for a new store was too speculative to support the damages awarded, 58 Mich App 421 (1975). Upon the plaintiff’s application for leave to appeal, the Supreme Court, in lieu of granting leave to appeal, remanded to the Court of Appeals for reconsideration, 397 Mich 886 (1976). The Court of Appeals, on remand, adhered to its previous opinion in an unpublished per curiam opinion. Plaintiff again sought leave to appeal. Denied, 400 Mich 824 (1977). Thereafter reconsideration was granted and leave to appeal was granted, 401 Mich 824 (1977). The Supreme Court reversed the decision of the Court of Appeals, reinstated the judgment for the plaintiff, and remanded to the Court of Appeals for consideration of issues not reached in the earlier decisions, 402 Mich 546 (1978). On remand, held:

    The trial judge’s instructions regarding the measure of damages to be awarded were inadequate to resolve the question of the measure of damages to be awarded. The object of the measure of damages in a breach of contract suit is to place the injured party in as good a position as he would have been in if the promised performance had been rendered.
    Affirmed.
    Damages — Contracts—Breach of Contract — Object of Damages.
    The object of the measure of damages in a breach of contract suit is to place the injured party in as good a position as he would have been in if the promised performance had been rendered.
    Reference for Points in Headnote
    22 Am Jur 2d, Damages § 46.

      Rubenstein, Pruchnicki & Chittle, for plaintiff.

      Honigman, Miller, Schwartz & Cohn (by Avern Cohn and Edward F. Kickham, of counsel), for defendant.
    Before: Danhof, C.J., and Bashara and Allen, JJ.
   On Remand

Per Curiam.

The matter is again returned to us by remand from the Michigan Supreme Court, 402 Mich 546; 266 NW2d 148 (1978). The order of the Supreme Court reversed the decision of this Court, and reinstated the judgment for the plaintiff. Plaintiff had, by jury verdict, received an award of $27,000 for lost profits.

The Supreme Court, in reinstating the judgment on the verdict, ordered that the matter be remanded to the Court of Appeals for "consideration of issues not reached in its earlier decisions”. The opinion of the Supreme Court emphasized that its earlier decision in Fera v Village Plaza, Inc, 396 Mich 639; 242 NW2d 372 (1976), held that lost profits could be recoverable where plaintiffs’ proofs were sufficient to support the jury verdict.

The Court further found that reasonable minds could disagree as to the adequacy of plaintiff’s proof as to lost profits, and that we improperly invaded the jury’s determination of fact.

Given this background, we are hard put to determine what issues raised by the parties were not resolved, either by the jury’s verdict or the opinion of the Supreme Court.

The only possible area of doubt could be that of the measure of damages to be awarded. In Allen v Michigan Bell Telephone Co, 61 Mich App 62, 68; 232 NW2d 302 (1975), lv den 395 Mich 793 (1975), we said:

"The object of the measure of damages in a breach of contract suit is to place the injured party in as good a position as he would have been in if the promised performance had been rendered.”

A review of the record shows that the trial judge’s instructions, approved by the Supreme Court in this matter, adequately resolved the question.

Accordingly, we affirm the judgment of the trial court and assess costs to the plaintiff appellee.


text:
    PEOPLE v RAMON
    Docket No. 31456.
    Submitted June 12, 1978, at Grand Rapids.
    Decided August 9, 1978.
    Rojelio Ramon was convicted of delivery of heroin in Calhoun Circuit Court, Stanley Everett, J. Defendant’s cousin, working in conjunction with an undercover police officer, persuaded defendant to sell him heroin only after he was able to convince defendant that he, the cousin-informer, needed money to engage an attorney in connection with a breaking and entering charge and would not use the drug himself. Defendant appeals alleging entrapment. Held:

    Defendant was entrapped. The defense of entrapment is available to a defendant in a narcotics action where the facts show that he was reluctant to become involved but was persuaded to commit the crime of delivery of heroin by false statements and sympathies created by his cousin where the cousin received encouragement and assistance from a law enforcement official.
    Reversed and defendant discharged.
    1. Criminal Law — Entrapment—Objective Test.
    The objective test for entrapment is to be applied to the facts of a case in order to determine if in reality entrapment has ensued.
    2. Criminal Law — Entrapment—Police Conduct — Predisposition of Defendant.
    The determination of entrapment depends upon an evaluation of whether repugnant methods were used by the police rather than a defendant’s predisposition to commit an offense; a court’s attention should focus on the conduct of the police and whether that conduct had in a reprehensible manner instigated the commission of a crime by one not ready and willing to commit — regardless of the propensities of the particular person induced; if police conduct was sufficiently provocative to induce a normal law abiding citizen to commit a crime, entrapment has occurred regardless of the predisposition of the defendant involved.

      References for Points in Headnotes
    [1, 2, 4, 5] 21 Am Jur 2d, Criminal Law §§ 143, 144.
    [3] 25 Am Jur 2d, Drugs, Narcotics, and Poisons § 43.
    Entrapment to commit offense with respect to narcotics law. 33 ALR2d 883.
    Modem status of the law concerning entrapment to commit narcotics offense — state cases. 62 ALR3d 110.

      3. Drugs and Narcotics — Entrapment—Objective Test — Police Conduct — Special Relationship — Heroin.
    A defendant convicted of delivery of heroin was entrapped according to the objective test for entrapment where the facts show that he was reluctant to make a sale of heroin to his cousin, who was an informer working in conjunction with an undercover police officer, and did so only after being convinced by the cousin-informer that he needed money and would not use the drug himself.
    4. Criminal Law — Entrapment—Inducement to Crime — Private Persons — Statements or Sympathies — Police Conduct.
    The defense of entrapment is available to a defendant following inducement to commit a crime where the false statements or sympathies that prompted his criminal actions are made by a private person if the private person receives encouragement or assistance from law enforcement officials.
    5. Appeal and Error — Criminal Law — Entrapment—Matter of Law — Testimony—Evidence.
    An appellate court may, as a matter of law, decide an issue of entrapment where it may accept the defendant’s testimony as true or where the evidence is uncontroverted.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Theodore P. Hentchel, Assistant Prosecuting Attorney, for the people.

      F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   Per Curiam.

Following a bench trial on July 13 and 14, 1976, defendant was found guilty of delivery of heroin in violation of MCL 335.314(b), 335.341(l)(a); MSA 18.1070(14)(b), 18.1070(41)(l)(a). He was sentenced to three years probation with six months to be spent in the county jail. He appeals as of right.

According to the testimony, one Eric Colby, a cousin of defendant, working in conjunction with David Brewer, an undercover officer and deputy sheriff, began calling on defendant in January of 1975. Colby told defendant he had been arrested on a breaking and entering charge in another county and needed funds to engage an attorney. He also stated that certain blacks, who had purchased dope before, had been to his house and had demanded more. After being assured that Colby did not intend to use the heroin himself, defendant delivered a tinfoil packet to him containing 1/3 gram of a brown powdery substance which contained 10% heroin.

Three questions are raised on appeal; however, since the entrapment issue will be dispositive, it is the only issue discussed here.

It is now well established in Michigan by the holding of the Supreme Court in People v Turner, 390 Mich 7, 19-21; 210 NW2d 336 (1973), that the so-called objective test is to be applied to the facts of a case in order to determine if in reality entrapment has ensued.

The situation presented in the case at bar is remarkably similar to the one in People v Cushman, 65 Mich App 161; 237 NW2d 228 (1975), except that the cousin there played on the sympathies of the defendant by saying that his brother-in-law had a friend who was sick and needed some dope.

A majority of the panel in Cushman, after a reference to Turner, stated:

"The Court relied heavily upon the dissenting opinion of Justice Stewart in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). Both opinions placed the determination of entrapment upon the evaluation of whether repugnant methods were used by the police rather than the defendant’s predisposition to commit the offense.”
"The court’s attention should be focused on the conduct of the police and whether that conduct has in a reprehensible manner instigated the commission of a crime by one not ready and willing to commit it— regardless of the propensities of the particular person induced.” People v Cushman, supra at 164, 166.

In People v Fraker, 63 Mich App 29, 33; 233 NW2d 878 (1975), we find the following statement:

"If the police conduct was sufficiently provocative to induce the normal law abiding citizen to commit a crime, entrapment has occurred regardless of the predisposition of the defendant involved.”

See also People v D’Angelo, 401 Mich 167, 173; 257 NW2d 655 (1977); People v Duis, 81 Mich App 698; 265 NW2d 794 (1978); People v Stanley, 68 Mich App 559; 243 NW2d 684 (1976); People v Asher, 67 Mich App 174; 240 NW2d 749 (1976); People v Van Riper, 65 Mich App 230; 237 NW2d 262 (1975).

Application of the objective test, promulgated in the foregoing citations, to the facts in this case leads us to the conclusion that defendant was entrapped contrary to the finding of the trial court. Ramon was reluctant to make the sale and did so only after being convinced by Colby that he needed money and would not use the drug himself.

Plaintiff relies heavily on People v Irma Perry, 75 Mich App 121, 126; 254 NW2d 810 (1977). However, in that decision one judge disagreed in a strong dissent and the majority opinion contains two sentences which distinguish it from the present situation:

"The relationship between the informant and defendant was not created by the police, or by the informant for the purchase. There were no appeals made to defendant’s sympathies.”

The defense of entrapment is still available to a defendant following inducement to commit a crime even though the false statements or sympathies are made by a private person, if "encouragement or assistance” is given by law enforcement officials. Stanley, supra at 564.

This Court possesses the authority to decide the entrapment issue as a matter of law rather than remanding the case to the trial judge when the defendant’s testimony is considered as true or the evidence is uncontroverted. Fraker, supra, People v Henley, 54 Mich App 463; 221 NW2d 218 (1974).

Following a careful review of the briefs and the facts as disclosed by the record we conclude as a matter of law that defendant was entrapped into committing the offense.

Reversed and defendant discharged.

       On remand, the officers in Cushman were found guilty of entrapment and the defendant was discharged. File No. 4191, Shiawassee County Circuit Court records.


author: D.R. Freeman, J.

text:
    PEOPLE v CUTLER
    Docket No. 28493.
    Submitted June 7, 1978, at Lansing.
    Decided October 2, 1978.
    Leave to appeal denied, 406 Mich —.
    Michael M. Cutler was convicted of two counts of involuntary manslaughter in Washtenaw Circuit Court, Ross W. Campbell, J. Defendant was involved in an accident with another automobile in which two young people were killed. Following the accident defendant was charged with driving under the influence of intoxicating liquors and was given a Breathalyzer test. He was later charged with and tried for the two homicides. There was a 37-month delay between defendant’s arrest and his trial. On appeal, defendant alleges that the trial court committed reversible error in admitting, over objection, evidence of the Breathalyzer results and that he was denied his constitutional right to a speedy trial. Held:

    The results of Breathalyzer tests are inadmissible in a prosecution for manslaughter, but the error in admitting such evidence is not an error so basic that it never can be regarded as harmless beyond a reasonable doubt; therefore, a defendant’s conviction can be upheld where the evidence of his guilt is overwhelming and where the Court of Appeals is convinced that he still would have been convicted had the evidence been excluded from the trial. A delay of 37 months between arrest and trial did not violate the defendant’s right to a speedy trial where he caused or acquiesced in the delays, made no request for a trial date and made no showing of prejudice from the delay.
    Affirmed.
    References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 830.
    [2] 5 Am Jur 2d, Appeal and Error § 776.
    [3, 4] 5 Am Jur 2d, Appeal and Error §§ 797, 798.
    [5] 21 Am Jur 2d, Criminal Law §§ 241-243, 246, 247.
    Accused’s right to speedy trial under Federal Constitution — Supreme Court cases. 21 L Ed 2d 905.
    [6] 21 Am Jur 2d, Criminal Law §§ 251-254.
    Waiver or loss of accused’s right to speedy trial. 57 ALR2d 302.
    Accused’s right to speedy trial under Federal Constitution — Su- ' preme Court cases. 21 L Ed 2d 905.

      1. Homicide — Manslaughter—Evidence—Breathalyzer Tests — Admissibility — Statutes.
    The results of a Breathalyzer test, administered pursuant to the implied consent law, are inadmissible in a prosecution for manslaughter (MCL 257.625c et seq.; MSA 9.2325[3] et seq.).

      2. Appeal and Error — Criminal Law — Harmless Error — Prejudice.
    The questions involved in determining whether a trial error substantially prejudiced a defendant’s right are (1) whether the error was so offensive to the maintenance of a sound judicial process that it never can be regarded harmless, and (2) if not so basic, whether an appellate court can declare a belief that the error was harmless beyond a reasonable doubt.
    3. Appeal and Error — Homicide—Harmless Error — Breathalyzer Tests.
    The admission of Breathalyzer results in a manslaughter prosecution is not an error so basic that it never can be regarded as harmless beyond a reasonable doubt.
    4. Appeal and Error — Homicide—Harmless Error — Breathalyzer Tests — Erroneous Admission — Overwhelming Evidence.
    Admission of Breathalyzer results in a prosecution for manslaughter is harmless beyond a resonable doubt where the evidence of a defendant’s guilt is overwhelming and where the Court of Appeals is convinced that the defendant still would have been convicted had such evidence been excluded from trial.
    5. Constitutional Law — Criminal Law — Speedy Trial — Balancing Test — Factors.
    A balancing test is employed in attempting to resolve whether a defendant’s right to a speedy trial has been violated; the test considers the following four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
    6. Constitutional Law — Criminal Law — Speedy Trial — Prejudice.
    A delay of 37 months between arrest and trial is not a violation of a defendant’s right to a speedy trial where the defendant caused or acquiesced in a number of the delays, made no request for a trial date and made no showing of prejudice from the delay.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Robert L. Cooper, First Assistant Prosecuting Attorney, for the people.

      Foley, Rasmusson & Emerson, for defendant.
    Before: Allen, P.J., and Cynar and D.R. Freeman, JJ.

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

   D.R. Freeman, J.

Following a jury trial, defendant was convicted of two counts of involuntary manslaughter, MCL 750.321; MSA 28.553, sentenced to concurrent prison terms of 1-1/2 to 15 years and fined $1,500 on each count. He appeals as of right.

The record establishes that at about 11 p.m. on January 26, 1973, 16-year-old Warren Hoeman was the driver of a southbound car on Carpenter Road in Washtenaw County. His 18-year-old brother, Roy, and Roy’s 14-year-old girlfriend, Susan Lay-ton, were passengers in the auto. They were returning home from a drive-in movie.

Warren Hoeman testified that he saw a pair of headlights coming directly at him just after he crossed a freeway overpass on Carpenter Road; that he was in his own lane; that he yelled, "Look out!”, and hit the brakes; that the next thing he remembered was waking up in a hospital.

Helen Hoeman, the mother of Warren and Roy, had also attended the drive-in movie in another car with two of her other children. She left the theater just a short time before Warren and Roy and proceeded south down Carpenter Road. Mrs. Hoeman testified that there was another southbound automobile ahead of her; that a northbound car, a large car with a red roof, entered the southbound lane forcing that southbound auto off the road; and that the northbound car, as it approached her, likewise, forced her off the road.

Police officers who arrived at the scene at about 11:10 p.m. found Roy Hoeman and Susan Layton dead in the backseat of the car in which they had been riding, Warren Hoeman injured in the front seat and the Hoeman car demolished. They found defendant standing next to his car, a red Pontiac. His eyes were bloodshot and very watery; he was incoherent and unstable; his breath smelled of alcohol. There was blood on defendant’s face and arm. When a police officer inquired as to his condition, he said that there was nothing wrong and denied that he was bleeding. He became belligerent and began to curse. At one point, for no apparent reason, defendant approached a police officer, stated that he was not involved in the accident and was not going to worry about it, and began to laugh. He appeared to the police officers to be highly intoxicated.

Defendant was arrested for DUIL. He was first taken to a hospital. There he again became belligerent and profane. The doctor who examined him testified that he was intoxicated.

Defendant was then . taken to jail where, at about 12:40 a.m., pursuant to MCL 257.625c et seq.; MSA 9.2325(3) et seq., two Breathalyzer tests were administered. Both tests indicated a blood alcohol level of 0.18%.

Carpenter Road, at the scene of the accident, is a straight, two lane, north/south, paved road. There were no chuckholes or other obstructions in the road. The weather was clear at the time of the accident. The road was slightly damp, but not wet.

Defendant, a grocery store butcher, left work between 3:30 and 4 p.m. on the day of the accident and proceeded to a bar where a number of the store’s meat department employees were meeting to celebrate the promotion of a fellow employee. He remained at the bar until about 11 p.m. He was drinking mixed drinks, bourbon and coke. Defendant testified, at one point, that he drank six such drinks while at the bar and that it was unlikely that he had more; but, at another point, that he had one drink an hour for seven hours. Upon leaving the bar, he did not feel intoxicated. He entered his car and proceeded northbound on Carpenter Road. Defendant further testified that he did not at any time leave his lane and enter the southbound lane, or force any other car off the road; that he did not observe the Hoeman car approaching him, that it, in an instant, just appeared before him in his, the northbound, lane; that he did not remember anything from the time of the accident until he arrived at the jail.

Gary Fett, one of defendant’s co-workers who was at the bar with the group of meat department employees between 3 p.m. and 8 or 9 p.m., testified that defendant had around eight drinks during that period; that the whole group was a little loud; that there was some slurring of speech; and that they talked about the same subject over and over. He believed defendant was affected by the alcohol he consumed.

Helen Whiting, the bartender until 10 p.m., testified that she served defendant six or seven drinks up until that time; that she sat at defendant’s table from 10 p.m. until he left at about 11 p.m.; that he did not appear intoxicated.

Jeffrey Farnsworth, another of defendant’s coworkers, was present at the gathering from about 3 p.m. until defendant left at 11 p.m. He testified that defendant did not appear intoxicated when he left.

Lieutenant Leonard Dexter of the Washtenaw County Sheriffs Department was in charge of the investigation of the accident. The trial court ruled that he qualified as an expert in accident reconstruction. On the basis of the measurements, photographs and observations he made at the scene on the night of the accident, he testified that everything indicated that the collision occurred in the southbound lane.

Harold Sherman of the University of Michigan Safety Research Institute, on the basis of the measurements and photographs admitted in evidence, and on the basis of his observations made at the scene on the night of the accident, testified that the collision occurred in the southbound lane, that it could not have occurred in the northbound lane.

Gerald Wieczorek, an accident investigator who testified on behalf of defendant, investigated the scene and the two vehicles involved nearly two weeks after the accident occurred. On the basis of the evidence admitted at trial and his observations, he testified that the collision occurred in the northbound lane. Although the trial court did permit Mr. Wieczorek’s opinion testimony to go to the jury, it ruled outside the presence of the jury that he did not qualify as an expert in accident reconstruction.

Defendant raises eight issues on appeal, two of which merit discussion. He first contends that the trial court committed reversible error in admitting, over defendant’s objection, evidence of the Breathalyzer results. The Breathalyzer tests were administered pursuant to MCL 257.625c et seq.; MSA 9.2325(3) et seq. There can be no doubt that the evidence of the results was inadmissible in this, a manslaughter, prosecution. People v Keen, 396 Mich 573; 242 NW2d 405 (1976). The question becomes whether the error was so offensive to the" maintenance of a sound judicial process that it never can be regarded harmless; and, if not so basic, whether we can declare a belief that the error was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). We have little difficulty in concluding that the admission of Breathalyzer results in a manslaughter prosecution is not an error so basic that it never can be regarded as harmless, and proceed to the second element of the harmless error test.

The probative value, and the impact on a jury, of scientific evidence such as Breathalyzer results cannot be gainsaid. This is especially so where, as here, the prosecutor, in closing argument, placed some emphasis on the Breathalyzer evidence; and the court, in its charge, instructed the jury that a 0.18% blood alcohol level gives rise to a legal presumption that the defendant was under the influence of intoxicating liquor. However, we have reviewed the record in this matter very carefully. The evidence against defendant is overwhelming. By his own admission, he consumed six or seven mixed drinks at the bar between about 4 p.m. and 11 p.m., the time of the accident. One of defendant’s co-workers present at the bar testified that defendant was affected by the alcohol he consumed. There is credible testimony that he entered the southbound lane of Carpenter Road and forced two cars off the road before colliding with the Hoeman vehicle. The police officers who encountered defendant at the scene of the crime, and who, due to the nature of their work, have considerable experience in such matters, concluded that he was highly intoxicated. Defendant’s bizzare behavior at the time provides ample substantiation of their conclusion. The doctor who examined defendant at the hospital concluded that he was intoxicated. Lieutenant Dexter, a qualified expert in accident reconstruction, arrived at the scene and gathered evidence and made his observations shortly after the mishap occurred. He concluded that all the evidence indicated that the collision occurred in the southbound lane. Mr. Sherman, who also was present at the scene shortly after the accident, reached the same conclusion. Only Mr. Wieczorek, who investigated the accident nearly two weeks after it occurred, and who the trial court ruled was not an expert in accident reconstruction, reached a contrary conclusion. On this record we can, and do, declare a belief that the erroneous admission of the Breathalyzer results was harmless beyond a reasonable doubt. Had that evidence been excluded, we are convinced that defendant would still have been convicted.

Defendant also contends that he was denied his constitutional right to a speedy trial by the 37-month delay between his arrest and his trial. The United States Supreme Court in Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972), established the definitive test in this area:

"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. * * * Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 US at 530.

To be sure, the delay in trying this case was considerable. All of the reasons for it do not appear in the record and it is difficult to apportion precisely the delay to the discernible causes. However, we do observe that defendant requested, caused or acquiesced in a number of the delays. A significant part of the delay must be charged to him. We also note that he filed some seven pretrial motions and an interlocutory appeal to this Court. We do not fault him for this, but it must be recognized that the judicial process requires a reasonable amount of time to dispose of such preliminary matters. Further, defendant at no time moved the lower court to fix a trial date. Rather, on February 17, 1976, less than two weeks before the trial was scheduled to begin, he filed a motion to dismiss for denial of his right to a speedy trial. While some may view this as shrewd trial "gamesmanship”, we are singularly unimpressed with an allegation of error based on delay, where, as here, defense counsel showed markedly less concern with bringing the matter to trial than with contriving to build error into the record for purposes of appeal. See People v Nuss, 75 Mich App 346, 360; 254 NW2d 883 (1977) (Beasley, J„ dissenting). In light of the facts that defendant has made no showing of prejudice from the delay, and that our review of the record has revealed none, we will not permit such a stratagem to prevail. Defendant was not denied his constitutional right to a speedy trial.

In sum, we find no reversible error.

Affirmed.

       MCL 257.625; MSA 9.2325.

       Three other of defendant’s co-workers who were present at the bar also testified. However, as they all left the bar before, or by, 6 p.m., they could offer no testimony as to defendant’s alcohol consumption later in the evening, or his condition at 11 p.m.

       We note that, although the trial court never expressly ruled that Mr. Sherman qualified as an expert in accident reconstruction, his opinion testimony was offered on the premise that he was an expert and defendant did not object to its admission on the ground that he was not so qualified.

       At the time of defendant’s trial, such Breathalyzer results had been held admissible in a manslaughter prosecution. People v Keen, 56 Mich App 84; 223 NW2d 700 (1974). It was only after defendant’s conviction that the Supreme Court reversed this Court and held to the contrary. People v Keen, 396 Mich 573; 242 NW2d 405 (1976). However, the Supreme Court’s holding in Keen is retroactive. People v Carter, 78 Mich App 394, 398; 259 NW2d 883 (1977), modified, 402 Mich 851; 261 NW2d 182 (1978). See, also, People v Weaver, 74 Mich App 53; 253 NW2d 359 (1977).

       See MCL 257.625a; MSA 9.2325(1).

       US Const, Am VI.

       On appeal, defendant has not even alleged prejudice. Rather, he relies exclusively on the doctrine that after an 18-month delay prejudice is presumed. People v Grimmett, 388 Mich 590, 606; 202 NW2d 278 (1972). Whatever the import of this rule, we do not believe that it precludes us from weighing heavily against defendant his failure to show even a reasonable possibility of actual prejudice. In fact, the Supreme Court did exactly that in Grimmett.

       Defendant in the case at bar was released on bond the day after the accident and has remained continuously at liberty to this date. Thus, he did not suffer oppressive pretrial incarceration. While recognizing that the extended pendency of serious criminal charges must have caused defendant some personal anxiety, we are dissuaded from according this factor great weight by his failure to move the trial court for an earlier trial date. Finally, we discern no way in which his defense was significantly impaired. If anything, the result of the delay was that the people’s burden of proving guilt beyond a reasonable doubt was increased.