TOWNSHIP OF COLUMBUS V THOMAS MARKEL
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STATE OF MICHIGAN
COURT OF APPEALS
TOWNSHIP OF COLUMBUS
UNPUBLISHED
May 6, 1997
Plaintiff-Appellee,
v
THOMAS MARKEL and CATHERINE MARKEL,
No. 182853
St. Clair Circuit Court
LC No. 80-611267-CZ
Defendants-Appellants.
Before: Holbrook, Jr., P.J., and White and A.T. Davis, Jr.*, JJ.
PER CURIAM.
Defendants appeal as of right from the St. Clair Circuit Court’s order that required them to
comply with the township’s blight ordinance and awarded plaintiff $24,300 in penalties for defendants’
noncompliance with past orders, as well as $6,000 in attorney fees. We vacate the court’s order and
remand for further proceedings.
In September 1993, after nearly fourteen years of sporadic litigation regarding defendants’
alleged violation of plaintiff township’s blight ordinance, the trial court issued an “Order for Compliance
with Blight Ordinance” that concluded with the following penalty provisions:
IT IS FURTHER ORDERED AND ADJUDGED that if the Defendants have
not complied with this Order by the deadline date of September 18, 1993, then
commencing on September 19, 1993, there will be a penalty of $50.00 per day
assessed against the Defendants.
IT IS FURTHER ORDERED AND ADJUDGED that if there is compliance
with this Order there will be no attorney fees awarded to the Plaintiff. If there is non
compliance, the Court will review the issue of attorney fees at that time.
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
On January 17, 1995, the successor trial judge signed a proposed order drafted by plaintiff’s counsel,
finding defendants to be “in non-compliance and violation of the Judgment and Orders of this Court”
and ordering them to comply fully with the specific provisions of the judgment and orders by January
31, 1995. The court levied a $24,300 “penalty assessment”1 against defendants and further awarded
plaintiff $6,000 in attorney fees.
Although the trial court did not expressly rule that defendants’ noncompliance with the court’s
earlier judgment and orders (requiring compliance with plaintiff’s blight ordinance) constituted civil
contempt, we agree with the parties that this was the intended characterization. A party who disobeys a
lawful order of the court is punishable for contempt. MCL 600.1701(g); MSA 27A.1701(g); In re
Contempt of Calcutt, 184 Mich App 749; 458 NW2d 919 (1990). Pursuant to MCL 600.1711(2);
MSA 27A.1711(2), a person may be punished for any contempt committed outside the immediate view
and presence of the court “after proof of the facts charged has been made by affidavit or other method
and opportunity has been given to defend.” Here, defendants were denied procedural due process of
law because they were not afforded a full and fair opportunity to present a defense at the earlier show
cause hearing, and the court failed to make findings of fact or conclusions of law on the record. See
Fraternal Order of Police, Lodge #98 v Kalamazoo Co, 82 Mich App 312, 315-317; 266 NW2d
805 (1978). Furthermore, unlike Cross Co v UAW Local No 155, 371 Mich 184, 212-213; 123
NW2d 215 (1963), contempt charges against the present defendants were in abeyance at the time of
the hearing in question and defendants were given no notice that they would have to defend against
contempt charges at the hearing. Nor did the trial court utilize the record of any prior complete
contempt proceeding in making its decision. Accordingly, we remand this matter to the trial court for a
hearing, consistent with due process, to determine whether defendants are presently in contempt of the
court’s earlier judgment or orders. See In re Contempt of Dougherty, 429 Mich 81, 111-112; 413
NW2d 392 (1987).
Defendants also argue that the penalty assessed was excessive and in violation of law. Because
we have determined that defendants were denied procedural due process of law in the lower court, the
$24,300 penalty assessment and $6,000 attorney fee award are vacated. However, because we are
remanding this matter for a new hearing, we will address this issue in order to provide direction to the
lower court regarding the lawful boundaries for a contempt sanction. Pursuant to MCL 600.1715(1);
MSA 27A.1715(1), a fine for contempt may not exceed $250, and this amount may not be exceeded
by fining a party per diem for a continuing contempt. Catsman v City of Flint, 18 Mich App 641,
648-650; 171 NW2d 684 (1969); In re Contempt of Johnson, 165 Mich App 422; 419 NW2d 419
(1988). In addition to any other penalty imposed against a contemnor, an aggrieved party may be
indemnified for losses sustained as a direct result of the contempt, including attorney fees. MCL
600.1721; MSA 27A.1721; In re Contempt of Calcutt, supra at 758. See also Homestead
Development Co v Holly Twp, 178 Mich App 239, 244-246; 443 NW2d 385 (1989). Thus, in the
event that on remand defendants are found to be in civil contempt, they may be fined a maximum of
$250 and ordered to indemnify plaintiff for its actual attorney fees.
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The trial court’s January 17, 1995, order is vacated and this matter is remanded for further
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Donald E. Holbrook, Jr.
/s/ Alton T. Davis, Jr.
1
The amount is based on a $50 penalty for each of the 486 days (between September 19, 1993, and
January 17, 1995) that defendants were in noncompliance with the ordinance.
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