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Appellants' Brief RECEIVED by Michigan Court of Appeals 1/20/2012 5:03:41 PM STATE OF MICHIGAN IN THE COURT OF APPEALS IN RE MANUEL J. MOROUN and DAN STAMPER, Court of Appeals No. 308053 Appellants, MICHIGAN DEPARTMENT OF TRANSPORTATION, Wayne County Case No. 09-015581-CK Plaintiff, v DETROIT INTERNATIONAL BRIDGE COMPANY, and SAFECO INSURANCE COMPANY OF AMERICA, Defendants. APPELLANTS MANUEL J. MOROUN AND DAN STAMPER’S BRIEF ON APPEAL ORAL ARGUMENT REQUESTED KERR, RUSSELL AND WEBER, PLC MOGILL, POSNER & COHEN William A. Sankbeil (P19882) Kenneth M. Mogill (P17865) Joanne Geha Swanson (P33594) Jill M. Schinske (P70958) Attorneys for Appellant Manuel J. Moroun Attorneys for Appellant Dan Stamper 500 Woodward Avenue, Suite 2500 27 E Flint Street, 2nd Floor Detroit, MI 48226 Lake Orion MI 48362 (313) 961-0200 (248) 814-9470 [email protected] {35809/1/DT648448.DOCX;1} RECEIVED by Michigan Court of Appeals 1/20/2012 5:03:41 PM TABLE OF CONTENTS INDEX OF AUTHORITIES........................................................................................................... ii STATEMENT OF BASIS FOR JURISDICTION ......................................................................... v STATEMENT OF QUESTIONS PRESENTED ........................................................................... vi INTRODUCTION .......................................................................................................................... 1 CONCISE STATEMENT OF FACTS AND PROCEEDINGS ..................................................... 3 A. Mr. Stamper and Mr. Moroun ................................................................................. 3 B. Sanctions Imposed By the January 12 Order and Subsequent Proceedings ........... 9 ARGUMENT ................................................................................................................................ 12 I. Where, in Litigation Between an Agency of the State and a Corporation, a Trial Court Orders Two Individuals Affiliated With the Corporation to Be Jailed Until the Trial Court Determines There Has Been Completion of a Construction Project Without Having Given Notice to Either to Show Cause Why They Should Not Be Personally Sanctioned, the Trial Court’s Order is Unconstitutional, Violates the Notice and Hearing Requirements of MCL 600.1711(2) and MCR 3.606(A), and Must Be Reversed. ............................................................................................................ 12 A. The Standard of Review is De Novo. ................................................................... 12 B. Mr. Moroun and Mr. Stamper Are Not DIBC. ..................................................... 12 C. Absent an Order to Show Cause Specifically Naming Mr. Moroun and Mr. Stamper, Neither Has Received the Fair Notice to Which They Are Entitled as a Matter of Due Process, Statute and Court Rule. .............................. 15 II. Because the Trial Court’s Order Jailing Appellants Did Not Give Them the “Keys To Their Cells” and Was Not the Least Restrictive Alternative Adequate to the Proposed End, It Was a Manifestly Improper Use of the Civil Contempt Power and Is Invalid as a Matter of Law. .................................................................................... 20 III. The February 1 Order Is Not Definite And Specific Enough To Serve As The Basis Of A Contempt Finding. ......................................................................................... 26 A. The Order DIBC Has Allegedly Violated Is Not Clear And Definite, A Prerequisite To Any Contempt Charge. ................................................................ 26 B. The February 1 Order Contains Contradictory Commands And It Is Therefore Impossible For DIBC To Comply. ....................................................... 32 C. The Court Has Abandoned Paragraph 8 Of The Gateway Project Thus Making It Impossible for DIBC To Finish Construction. ..................................... 34 IV. Where, As Here, the Judge Who Ordered Incarceration Acted As Both Accuser and Finder of Fact, and Has Become Personally Embroiled in the Litigation, Any Further Proceedings Regarding Appellants Should Be Held Before a Different Judge. ............... 36 RELIEF REQUESTED ................................................................................................................. 39 {35809/1/DT648448.DOCX;1} i RECEIVED by Michigan Court of Appeals 1/20/2012 5:03:41 PM INDEX OF AUTHORITIES Cases Crampton v Department of State, 395 Mich 347; 235 NW2d 352 (1975) ...................................................................................... 39 DeGeorge v Warheit, 276 Mich App 587; 741 NW2d 384 (2007) .............................................................................. 12 Edidin v Detroit Econ Growth Corp, 134 Mich App 655; 352 NW2d 288 (1984) .............................................................................. 27 Elliott v Bradshaw, 59 So3d 1182 (Fla App, 2011) .................................................................................................. 22 Elliott v Smith, 47 Mich App 236; 209 NW2d 425 (1973) ................................................................................ 12 Grace v Center for Auto Safety, 72 F3d 1236 (CA 6, 1996) ........................................................................................................ 18 Henry v Rouse, 345 Mich 86; 75 NW2d 836 (1956) .......................................................................................... 27 Holmes v Holmes, 281 Mich App 575; 760 NW2d 300 (2008) .............................................................................. 33 In re Contempt of Auto Club Ins Assoc, 243 Mich App 697; 624 NW2d 443 (2000) .............................................................................. 17 In re Contempt of Dudzinski, 257 Mich App 96; 667 NW2d 68 (2003) .................................................................................. 24 In re Contempt of Rochlin, 186 Mich App 639; 465 NW2d (1991) ..................................................................................... 17 In re Contempt of Scharg, 207 Mich App 438; 525 NW2d 479 (1994) .............................................................................. 39 In re Contempt of Steingold, 244 Mich App 153; 624 NW2d 504 (2000) .............................................................................. 17 In re Hague, 412 Mich 532; 315 NW2d 524 (1982) ...................................................................................... 24 In re MB, 101 Wash App 425; 3 P3d 780 (2000) ..................................................................................... 22 In re Murchison, 349 US 133; 75 S Ct 623; 99 L Ed 942 (1954) ......................................................................... 37 In re Oliver, 333 US 257; 68 S Ct 499; 92 L Ed 682 (1948) ......................................................................... 15 {35809/1/DT648448.DOCX;1} ii RECEIVED by Michigan Court of Appeals 1/20/2012 5:03:41 PM In the Matter of Hirsch, 116 Mich App 233; 323 NW2d 349 (1982) .............................................................................. 39 In the Matter of Meizlish, 72 Mich App 732; 250 NW2d 525 (1976) ................................................................................ 24 Kline v Kline, 104 Mich App 700; 305 NW2d 297 (1981) .............................................................................. 13 KLN v State, 881 NE2d 39 (Ind App, 2008) .................................................................................................. 22 Laker v Soverinsky, 318 Mich 100; 27 NW2d 600 (1947) ........................................................................................ 27 Lawrence M Clarke, Inc v Richco Constr, Inc, 489 Mich 265; 803 NW2d 151 (2011) ...................................................................................... 15 M & C Corp v Erwin Behr GmbH & Co, KG, 2007 US Dist LEXIS 101806, unpublished opinion of the US District Court, ED Mich, issued February 9, 2007 (Docket No. 91-CV-74110-DT) ....................................... 18 M & M Aerotech, Inc v Dept of Treasury, 1999 Mich App LEXIS 2745 unpublished opinion per curiam of the Court of Appeals, issued November 23, 1999 (Docket No. 211460) .................................................................... 12 Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976) ...................................................................... 15 Mayberry v Pennsylvania, 400 US 455; 91 S Ct 499; 27 L Ed 2d 532 (1971) .................................................................... 37 Mead v Batchler, 435 Mich 480; 460 NW2d 493 (1990) ...................................................................................... 14 NLRB v Cincinnati Bronze, Inc, 829 F2d 585 (CA 6, 1987) ........................................................................................................ 26 People v Johnson, 407 Mich 134; 283 NW2d 632 (1979) ...................................................................................... 16 People v Kurz, 35 Mich App 643; 192 NW2d 594 (1971) ................................................................................ 39 People v Lowenstein, 118 Mich App 475; 325 NW2d 462 (1982) .............................................................................. 39 People v Matish, 384 Mich 568; 184 NW2d 915 (1971) ...................................................................................... 24 Porter v Porter, 285 Mich App 450; 776 NW2d 377 (2009) .......................................................................
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