AUDREY EVELYN ERICKSON V MEIJER INC
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STATE OF MICHIGAN
COURT OF APPEALS
AUDREY EVELYN ERICKSON,
UNPUBLISHED
May 12, 2000
Plaintiff-Appellant,
v
No. 215760
Grand Traverse Circuit Court
LC No. 97-016554-NO
MEIJER, INC,
Defendant-Appellee.
Before: Gage, P.J., and Meter and Owens, JJ.
PER CURIAM.
Plaintiff’s attorneys appeal as of right from an order sanctioning them for their failure to comply
with the trial court’s scheduling conference order. This case arises out of plaintiff’s slip-and-fall
accident in defendant’s grocery store. The two attorneys, who are brothers, represented plaintiff in the
lower court proceedings. Plaintiff’s attorneys complain that the trial court committed certain procedural
errors during the contempt proceedings, and that the court erred in finding that they violated the court’s
scheduling conference order. We disagree and affirm.
We review a trial court’s issuance of an order of contempt for an abuse of discretion. Dean v
Dean, 197 Mich App 739, 743; 496 NW2d 403 (1993). An abuse of discretion exists when the result
is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of
judgment, or the exercise of passion or bias. Schoensee v Bennett, 228 Mich App 305, 314-315; 577
NW2d 915 (1998). Plaintiff’s attorneys also complain of procedural errors that entail questions of law.
This Court reviews questions of law de novo. Cardinal Mooney High School v Michigan High
School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
Trial courts are permitted by statute “to punish by fine or imprisonment” attorneys who disobey
“any lawful order, decree, or process of the court.” MCL 600.1701(g); MSA 27A.1701(g).
Plaintiff’s attorneys first contend that they were subject to proceedings for criminal contempt because
their alleged contemptuous act altered the status quo so that it could not be restored; that is, the trial
attorney having failed to attend the settlement conference, the conference having been held, and the trial
having taken place with a verdict having been rendered, it was impossible for the alleged contemnors1 to
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rectify their failure to appear. Thus, the attorneys reason, the contempt proceedings were criminal in
nature since they were invoked to punish the attorneys for their noncompliance with the court’s order.
Our Supreme Court, in In re Dougherty, 429 Mich 81, 98; 413 NW2d 392 (1987), clarified
that in addition to criminal contempt, “there are two types of civil contempt sanctions, coercive and
compensatory.” Thus, altogether
there are three sanctions which may be available to a court to remedy or redress
contemptuous behavior: (1) criminal punishment to vindicate the court’s authority; (2)
coercion, to force compliance with the order; and (3) compensatory relief to the
complainant.
This Court’s recent opinion in In re Contempt of United Stationers Supply Co, 239 Mich App 496,
499; ___ NW2d ___ (2000), cited the above passage from In re Dougherty and explained:
Proceedings for civil contempt are instituted to preserve and enforce the rights
of private parties to suits and to compel obedience to orders and decrees made to
enforce those rights and administer the remedies to which the court has found the parties
are entitled. In re Contempt of Rapanos, 143 Mich App 483, 496; 372 NW2d 598
(1985). A court may issue an order to pay compensation for actual loss or injury
caused by a contemnor’s misconduct. . . .
***
In the instant case, the contempt sanction and court order for repayment were
compensatory, to defray defendant’s child support arrearage to Walker. Therefore, the
contempt sanction in the instant case is civil, not criminal, and a finding of wilful
disobedience of a court order is not necessary. Rather, the circuit court had to find that
respondent was neglectful or violated its duty to obey an order of the court. See MCL
600.1701; MSA 27A.1701. [Id., at 500-501.]
In this case, the trial court imposed sanctions in the form of costs to compensate the county for
the costs of the jury and to compensate the defendant for the wasted settlement conference. The
contempt sanctions were therefore civil, not criminal, and there was no requirement that there be proof
of willful noncompliance. In re Contempt of United Stationers Supply Co, supra at 501.
Plaintiff’s attorneys next complain that the court did not comply with MCR 3.606(A)(1) and
(2), because it did not commence the proceedings with an ex parte motion supported with affidavits.
The subrules on which they rely state:
(A) Initiation of Proceeding. For a contempt committed outside the immediate
view and presence of the court, on a proper showing on ex parte motion supported by
affidavits, the court shall either
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(1) order the accused person to show cause, at a reasonable time specified in
the order, why that person should not be punished for the alleged misconduct; or
(2) issue a bench warrant for the arrest of the person.
Where a contempt is committed in the immediate view and presence of the court, it may be
punished summarily. MCL 600.1711(1); MSA 27A.1711(1). Summary contempt need not be
initiated by “a proper showing on ex parte motion supported by affidavits” because all the facts
necessary to find the contempt are within the personal knowledge of the trial court. In re Contempt of
Robertson, 209 Mich App 433, 440-441; 531 NW2d 763 (1995). The contempt allegedly committed
by plaintiff’s attorneys was the failure of the trial attorney to attend the settlement conference.2 Failure
to appear as ordered at a court proceeding is a contempt committed outside the presence of the court
which may not be punished summarily. Id. at 438-441; In re McRipley, 204 Mich App 298, 301; 514
NW2d 219 (1994). That is because although the trial attorney’s “absence was certainly within the
personal knowledge of the [judge], the reason for his absence was not.” In re Contempt of
Robertson, supra at 440. Accordingly, “proceedings for contempt committed outside the presence of
the court must be initiated pursuant to the procedure set forth at MCR 3.606.” In re McRipley, supra
at 301.
Nevertheless, we conclude that the trial court’s apparent failure to comply with MCR 3.606(A)
does not entitle plaintiff’s attorneys to relief. MCR 3.606(A) provides a means of initiating proceedings
for a contempt that occurs “outside the immediate view and presence of the court.” Ordinarily such a
contempt will be initiated by an ex parte motion filed by the opposing party to the underlying action.
The fact that the proceeding is initiated by an ex parte motion is an indication that the contemnor’s
presence at, or knowledge of, the initial proceedings is not necessary. Rather, the requirement of an ex
parte motion appears to serve the function of providing the court with information regarding facts or
actions of which it would otherwise be unaware, and thereby demonstrating a basis for the initiation of
contempt proceedings by show cause order or bench warrant. MCR 3.606(A)(1) and (2). Having
provided a prima facie basis to invoke the court’s contempt power, the function of the ex parte motion
and supporting affidavits is ended; proof of the contempt must await the show cause hearing.
The instant case presents a hybrid situation: the trial court was aware that its order had not
been followed, but it was not aware of the reason the order was not followed. According to
Robertson, supra and McRipley, supra, the contempt proceedings could not be pursued summarily;
however, sufficient facts were known to the court upon which to invoke a show cause hearing, and the
court chose to initiate such a proceeding by order to show cause. By way of contrast, in In re
Contempt of Barnett, 233 Mich App 188, 189-191; 592 NW2d 431 (1998), the attorney’s
contemptuous behavior occurred in the hallway outside the courtroom and the trial judge was not privy
to the contempt. The necessity of filing an ex parte motion and supporting affidavits to inform the trial
judge of the allegedly contemptuous behavior is therefore apparent. Where the facts that form the basis
for the show cause are known to the trial court, and it is the trial court – rather than the opposing party
– that initiates the contempt, it makes little sense for the trial court itself to file an ex parte motion and
affidavits to support its decision to issue a show cause order.
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Moreover, the show cause order in this case provided sufficient notice of the basis for the
contempt charge to enable plaintiff’s attorneys to appropriately answer the charge.3 As this Court
stated in In re Contempt of Robertson, supra at 438:
It is well established that when a contempt is committed outside the presence of
the court, the law requires that the accused be advised of the charges against him,
afforded a hearing regarding those charges, and given a reasonable opportunity to meet
the charges by defense of explanation. . . . These minimal due process safeguards
require that an accused be given a reasonable time in which to prepare a defense to the
contempt charge. [Citations omitted.]
Also, in In re Albert, 383 Mich 722, 724; 179 NW2d 20 (1970), our Supreme Court considered a
similar claim and held:
Respondent’s assertion that a contempt procedure must include a show-cause
order based on an affidavit supporting the charged facts is not correct. A court’s
judicial notice of its own records is a wholly satisfactory “other method” of establishing
the failure or the fact of filing in a particular period – the gravamen of the charge here.
The show cause order issued in this case complied with minimum due process requirements. It
informed plaintiff’s attorneys of the basis for the allegation of contempt, provided for a hearing on the
allegation, and further provided a reasonable time in which to prepare a defense of the charge. In re
Contempt of Robertson, supra at 438. The trial court’s notice of the relevant facts from its own
knowledge constituted a sufficient basis from which to issue the show cause order. In re Albert, supra
at 724.
Furthermore, plaintiff’s attorneys claimed in their response to the show cause order that
pursuant to MCL 600.1711; MSA 27A.1711 the trial court was required to provide proof of the facts
charged either by affidavit or other method and that the court had failed to provide such proof prior to
issuing the show cause. The statute provides that when the alleged contempt has occurred outside the
immediate view and presence of the court, the court “may punish it by fine or imprisonment, or both,
after proof of the facts charged has been made by affidavit or other method and opportunity has
been given to defend.” MCL 600.1711(2); MSA 27A.1711(2) (emphasis supplied). The statute
clearly contemplates that the proof of the facts charged will be provided at the hearing, not prior to it;
it is also at the hearing that the alleged contemnor will be given the opportunity to defend against the
charge. Similarly, our Supreme Court in In re Albert, supra at 724, concluded that judicial notice of a
court’s own records “is a wholly satisfactory ‘other method’ of establishing” proof of the contempt.
The procedure followed in this case was therefore proper and the argument of plaintiff’s attorneys in
this regard is meritless.
Plaintiff’s attorneys next argue that the absence of an affidavit of facts rendered the entire
proceeding “less an evidentiary hearing and more inquisitorial.” As we noted above, the statute
provides that punishment for contempt may be imposed “after proof of the facts charged has been made
by affidavit or other method.” MCL 600.1711(2); MSA 27A.1711(2) (emphasis supplied). Proof by
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inquiries directed by the judge at counsel, and admissions by counsel, constitute proof by another
method. See In re Albert, supra at 724. The trial court questioned plaintiff’s attorneys and verified
that the attorney who tried the case had not been present at the settlement conference. The trial court
further ascertained the reason for the trial attorney’s failure to attend the settlement conference. We
conclude that the trial court complied with the requirements of the statute.
Plaintiff’s attorneys next contend that the trial court erred in not appointing another trial judge to
conduct the proceedings. Plaintiff’s attorneys cite People v Pillar, 233 Mich App 267, 270-271; 590
NW2d 622 (1998), a case involving a probation violation hearing, for the proposition that a case should
be assigned to a different judge if the trial judge is unable to put his previously expressed feelings out of
mind without substantial difficulty. Our review of the lower court record does not reveal any indication
that the trial judge was unable to set aside any previously expressed feelings without substantial
difficulty. The trial court did express its general frustration that plaintiff’s trial counsel did not attend the
settlement conference, but this frustration was based on the court’s feeling that the presence of trial
counsel was essential to the settlement process.
Our Supreme Court, in In re Albert, supra at 724-725, stated:
Equally untenable is the respondent’s assertion that the Court could not institute
these proceedings on its own motion without becoming so personally interested as to be
disqualified. The interest a court has in its relationship with the attorneys practicing
before it not only does not disqualify it from assaying their conduct in such practice, but
on the contrary obliges the court to scrutinize the conduct of attorneys as officers of that
court in sharing the awesome responsibility of effectively administering justice.
During the contempt proceedings, the trial court stated that in its experience, the presence of
trial counsel was necessary for the settlement process to be effective. Plaintiff’s attorneys complain that
the trial court found that the scheduling order was violated before trial even began, and that such a
finding was premature. Plaintiff’s attorneys fail to recognize that the issue during the contempt
proceedings was whether they had a sufficient reason to excuse the failure of trial counsel to attend the
settlement conference, and that whether trial counsel was absent from the settlement conference was not
disputed.
Although not cited on appeal by plaintiff’s attorneys, this Court’s decisions in In re Contempt
of Scharg, 207 Mich App 438; 525 NW2d 479 (1994) and People v Kurz, 35 Mich App 643; 192
NW2d 594 (1971), would at first blush appear to compel the conclusion that the trial court erred by
failing to assign the contempt hearing to another judge. However, after examining those decisions, we
conclude that they are distinguishable. Both decisions involved the disposition of criminal contempt
charges that arose during the course of criminal trials. In re Contempt of Scharg, supra at 439; Kurz,
supra at 645. Both cases rely on the decision of the United States Supreme Court in Mayberry v
Pennsylvania, 400 US 455; 91 S Ct 499; 27 L Ed 2d 532 (1971), a decision that also dealt with
criminal contempt that occurred during the course of a criminal trial. The Supreme Court advised that
where a judge “does not act the instant the contempt is committed, but waits until the end of the trial, on
balance, it is generally wise where the marks of the unseemly conduct have left personal stings to
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ask a fellow judge to take his place.” Mayberry, supra at 463-464 (emphasis supplied). The Court
emphasized the personal nature of the attacks made by the contemnor on the trial judge, and further
emphasized that the need to assign the contempt case to another judge was not required in every case.
Id. at 464-466. The Court concluded “that by reason of the Due Process Clause of the Fourteenth
Amendment a defendant in criminal contempt proceedings should be given a public trial before a judge
other than the one reviled by the contemnor.” Id. at 466.
This case did not involve criminal contempt or a personal attack on the trial judge. Therefore, in
the circumstances presented by this case, we conclude that our prior decision in In re Contempt of
Scharg, supra, does not control and that the trial court did not commit error requiring reversal by
declining to assign the conduct of the contempt hearing to another judge.
Plaintiff’s attorneys next argue that the appearance of Benjamin Hirsch at the settlement
conference constituted an appearance for all the attorneys in the firm. They rely on Eggleston v
Boardman, 37 Mich 14, 19 (1877) (finding that the retention of one member of a law firm served as
the retention of all the firm’s members, and that any may argue the client’s cause); MCR 2.117(B)(3)(b)
(“The appearance of an attorney is deemed to be the appearance of every member of the law firm.”);
Plunkett & Cooney, PC v Capitol Bancorp Ltd, 212 Mich App 325, 329; 536 NW2d 886 (1995)
(“a client’s employment of one member of a law firm is deemed to be the employment of the firm
itself”); and In re Attorney Fees & Costs, 233 Mich App 694, 706-707; 593 NW2d 589 (1999)
(holding that where the plaintiffs’ counsel filed a frivolous lawsuit that identified him as a lawyer with a
particular law firm, the trial court could properly impose joint and several sanctions on the individual
attorney and the law firm). Plaintiff’s attorneys also point to the fact that the trial court never ordered,
by name, any specific attorney to appear at the settlement conference.
Plaintiff’s attorneys’ argument would have merit were it not for a key fact. While the trial court
did not refer to any attorney by name in the scheduling order, the court did order “trial counsel” to
appear at the conference. The court’s order was conspicuous and unequivocal – both the scheduling
conference order and the settlement conference notice contained notations that emphasized, by way of
capital letters and underlining, the fact that “trial counsel” was to appear at the conference. As the court
explained, if plaintiff’s attorneys were uncertain regarding which of them was going to conduct the trial,
then both should have attended the conference. The court’s reasoning does not evidence a perversity of
will, a defiance of judgment, or the exercise of passion or bias. The court did not abuse its discretion in
sanctioning plaintiff’s attorneys for failing to comply with the scheduling order.
Plaintiff’s attorneys’ final argument is that the court’s sanctions improperly punished them for
protecting plaintiff’s right to prosecute a civil action through the retention of counsel, as guaranteed by
Const 1963, art 1, § 13 (“[a] suitor in any court of this state has the right to prosecute or defend his
suit, either in his own proper person or by an attorney.”). Because they did not raise this argument
before the trial court, it is not preserved for review. Alford v Pollution Control Industries of
America, 222 Mich App 693, 699; 565 NW2d 9 (1997). In any event, this argument is without merit
since plaintiff was given a trial and was represented by her retained attorney, and the sanctions were not
imposed on plaintiff. Moreover, the sanctions were imposed because plaintiff’s attorneys did not
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comply with the terms of the settlement conference order, not because they failed to reach a settlement
and instead took this case to trial.
Affirmed.
/s/ Hilda R. Gage
/s/ Patrick M. Meter
/s/ Donald S. Owens
1
The trial court found both attorneys in contempt for violating the scheduling conference order and
sanctioned them, along with their law firm, “jointly and severally” for a total of $1,375: $700 payable to
Grand Traverse County and $675 payable to defendant. Plaintiff’s attorneys do not challenge the trial
court’s determination of joint and several liability.
2
The trial court’s scheduling conference order provided in pertinent part:
Settlement will be fully explored at this Conference. TRIAL counsel and each
named party SHALL be present. Corporations, partnerships and governmental entities
SHALL be represented by persons with ultimate authority to settle the litigation.
Insurance company representatives and lien claimants, each with ultimate authority to
settle the litigation, SHALL be present.
The particular requirement that the trial attorney attend the scheduling conference was based on MCR
2.401(E) which provides:
The attorneys attending the conference shall be thoroughly familiar with the case
and have the authority necessary to fully participate in the conference. The court may
direct that the attorneys who intend to try the case attend the conference.
[Emphasis supplied.]
3
Separate show cause orders were issued on October 26, 1998 to Benjamin I. Hirsch and Jonathan C.
Hirsch, but they both provided in identical language that the named attorney was to appear on
November 4, 1998 “and show cause why you should not be punished for contempt for violation of this
Court’s Civil Conference Scheduling Order entered November 20, 1997, for the reason that the
settlement conference held October 2, 1998, was attended by attorney, Benjamin C. Hirsch [sic],
rather than by his associate and trial attorney, Mr. Jonathan C. Hirsch.” Benjamin and Jonathan Hirsch
filed a response to the show cause order on October 29, 1998.
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