WARREN DROOMERS V JOHN R PARNELL
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STATE OF MICHIGAN
COURT OF APPEALS
BARBARA DROOMERS, Personal
Representative of the Estate of WARREN
DROOMERS, Deceased,
UNPUBLISHED
February 12, 2009
Plaintiff-Appellee,
v
No. 278162
Oakland Circuit Court
LC No. 2000-024779-CK
JOHN R. PARNELL, PARNELL &
ASSOCIATES, P.C., and MUSILLI,
BAUMGARDNER, WAGNER & PARNELL,
P.C.,
Defendants,
and
RALPH MUSILLI and WALTER
BAUMGARDNER,
Appellants.
Before: Servitto, P.J., and Talbot and Owens, JJ.
PER CURIAM.
Appellants Ralph Musilli and Walter Baumgardner, shareholders of defendant law firm
Musilli, Baumgardner, Wagner & Parnell, P.C., appeal as of right, challenging the trial court’s
orders partially reinstating a criminal contempt judgment requiring them to pay fines and serve
30 days in jail, and to pay compensatory damages. We affirm, and remand to the trial court for a
recalculation of statutory interest and entry of a judgment incorporating the recalculated interest
amount.
In a prior appeal, this Court affirmed the trial court’s finding of contempt, but remanded
for clarification regarding whether the trial court meant to impose sanctions for criminal or civil
contempt. Droomers v Parnell, unpublished opinion per curiam of the Court of Appeals, issued
June 30, 2005 (Docket No. 253455).
Appellants first argue that both the trial court and the chief judge erred in denying their
motion to disqualify the trial judge. We disagree.
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In reviewing a trial court’s decision on a motion to disqualify a judge, the court’s findings
of fact are reviewed for an abuse of discretion, while the application of the law to the facts is
reviewed de novo. Olson v Olson, 256 Mich App 619, 637-638; 671 NW2d 64 (2003). An
abuse of discretion occurs only when the court’s decision is outside the range of “reasonable and
principled outcome[s].” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006).
Appellants no longer argue that disqualification was required under MCR 2.003(B)
because of actual bias. Instead, they argue that disqualification was required on constitutional
grounds, given that they had filed a federal lawsuit and a Judicial Tenure Commission (“JTC”)
complaint against the judge and, therefore, the judge was the target of personal criticism by
appellants, giving rise to the appearance of impropriety.
A judge may be disqualified without a showing of actual bias “where experience teaches
us that the probability of actual bias . . . is too high to be constitutionally tolerable.” Crampton v
Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975) (internal quotations and citations
omitted); see also Kloian v Schwartz, 272 Mich App 232, 244; 725 NW2d 671 (2006). Among
the situations presenting such a risk are: (1) where the trial judge “has a pecuniary interest in the
outcome,” (2) where the judge “has been the target of personal abuse or criticism from the party
before him,” (3) where the judge is “enmeshed in [other] matters involving petitioner,” and (4)
where the judge may have “prejudged the case because of prior participation.” Crampton, supra
at 351; Kloian, supra at 244-245. However, “disqualification for bias or prejudice is only
constitutionally required in the most extreme cases.” Cain v Dep’t of Corrections, 451 Mich
470, 498; 548 NW2d 210 (1996).
Appellants appear to argue that a lower standard for disqualification on due process
grounds should apply in the present case because the case had been dismissed (and not yet
reinstated) when the federal lawsuit and the JTC complaint were filed. However, appellants
offer no authority to support applying a lower standard in such a case. If a lower standard were
applied, an attorney would be able to pre-disqualify any judge by simply filing a frivolous
lawsuit or complaint before filing a case. We therefore reject appellants’ argument.
The existence of a judicial tenure complaint against a trial judge does not automatically
disqualify the judge from hearing this case. Ireland v Smith, 214 Mich App 235, 249; 542 NW2d
344 (1995), mod on other grounds 451 Mich 457, 547 NW2d 686 (1996); Olson v Olson, 256
Mich App 619, 642-643; 671 NW2d 64 (2003). By analogy, appellants’ filing of a federal
lawsuit, by itself, was not grounds for disqualification under either the court rule or on
constitutional grounds. Appellants’ federal lawsuit and their JTC complaint were both found to
be frivolous, and the trial court’s disqualification was not constitutionally required because of
them. “To hold otherwise would allow an attorney to judge shop by filing even frivolous
grievances.” Coble v Green, 271 Mich App 382, 390; 722 NW2d 898 (2006). Thus, the trial
court and chief judge did not abuse their discretion in denying appellants’ motion to disqualify
the trial judge.
Appellants next argue that the trial court lacked jurisdiction to reinstate the contempt
judgment. They additionally argue that reinstatement was precluded by principles of res judicata
and double jeopardy. We find no merit to these arguments.
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Whether a court has jurisdiction is a question of law to be reviewed de novo. Sierra Club
Mackinac Chapter v Dep’t of Environmental Quality, 277 Mich App 531, 544; 747 NW2d 321
(2008). The applicability of the doctrine of res judicata is also a question of law to be reviewed
de novo. Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153
(1999). Similarly, whether double jeopardy applies is a question of law that is reviewed de
novo. People v White, 212 Mich App 298, 304-305; 536 NW2d 876 (1995).
The trial court reinstated the contempt judgment in response to plaintiff’s motion for
relief from the court’s prior order dismissing the case with prejudice pursuant to a settlement
agreement. The parties’ agreement specifically provided that if appellants failed to comply with
the settlement, the contempt judgment could be reinstated. Moreover, MCR 2.612(C) provides
that a court may relieve a party from a judgment, under appropriate circumstances. Thus, even
without considering the clear language of the settlement agreement, the circuit court had
jurisdiction to consider plaintiff’s motion for relief from the final judgment of dismissal with
prejudice. Further, because this case did not involve a subsequent action, or a second
punishment or a second prosecution, appellants’ res judicata and double jeopardy arguments
have no merit. See Ozark v Kais, 184 Mich App 302, 307; 457 NW2d 145 (1990); see also
Const 1963, art 1, § 15.
Appellants next argue that plaintiff, as a civil litigant, lacked standing to prosecute a
criminal contempt proceeding. That argument was squarely rejected by this Court in DeGeorge
v Warheit, 276 Mich App 587, 598-600; 741 NW2d 384 (2007), and need not be considered
further.
Next, appellants argue that the trial court erred in reinstating the contempt judgment, and
by failing to make any findings of fact or conclusions of law. We disagree.
A trial court’s decision on a motion for relief from judgment is reviewed for an abuse of
discretion. Peterson v Auto-Owners Ins Co, 274 Mich App 407, 412; 733 NW2d 413 (2007).
In this case, all the facts were of record and were well known to the parties and the court.
Further, under MCR 2.517(A)(4), “[f]indings of fact and conclusions of law are unnecessary in
decisions on motions unless findings are required by a particular rule. See, e.g., MCR 2.504(B).”
MCR 2.612 does not require any findings on a motion for relief from judgment. Thus, the trial
court’s failure to make specific findings of fact is not grounds for relief.
Appellants argue that they were financially unable to pay the settlement, so relief from
judgment was inappropriate under MCR 2.612(C)(1)(c), for fraud, misrepresentation, or other
misconduct. At the hearing below, however, appellants indicated that they simply reconsidered
the wisdom of the settlement agreement. Moreover, appellants even attempted to deposit the
settlement funds with the federal court. Only later did they file for bankruptcy. Under the
circumstances, there was sufficient evidence that appellants committed fraud, misrepresentation
or other misconduct to warrant relief from the judgment of dismissal. Thus, the trial court did
not abuse its discretion in granting plaintiff’s motion for relief from the judgment of dismissal.
Appellants also argue that the reinstatement orders revived their right to appeal the trial
court’s December 14, 2005, order after remand. Questions of law are reviewed de novo.
Cardinal Mooney High School v Michigan High School Athletic Ass'n, 437 Mich 75, 80; 467
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NW2d 21 (1991). We do not question appellants’ standing to challenge any orders issued by the
trial court after remand as part of this appeal. MCR 7.203(A) provides for appeals by right from
a final order. Generally, an appellant may challenge all prior interim rulings of the trial court as
part of an appeal by right, such as this one, and this Court has jurisdiction to consider such
challenges. See Tomkiw v Sauceda, 374 Mich 381, 385; 132 NW2d 125 (1965); Attorney Gen v
Pub Service Comm, 237 Mich App 27, 39-40; 602 NW2d 207 (1999). The parties do not argue
that this appeal should have proceeded by leave rather than by right. Thus, the usual rules of
appeals by right apply, and this Court may consider appellants’ challenges to orders issued by the
trial court after remand. But that does not mean that appellants’ prior appeal in Docket No.
268480 should be deemed reinstated. That appeal was voluntarily dismissed pursuant to the
parties’ settlement agreement. The settlement agreement is silent regarding reinstatement for
failure to comply with the agreement, and no motion for reinstatement was ever filed with this
Court. Thus, we find no basis for reinstating appellants’ prior appeal.
For their last claim of error, appellants argue that the trial court erred in awarding
damages to plaintiff as part of its finding of criminal contempt. We disagree.
On December 4, 2003, the trial court issued identical orders against Musilli,
Baumgardner, and Parnell, holding them in contempt, and requiring them to appear before the
court “for a determination of the fines and the damages caused by this contempt.” At that
hearing, however, the issue of damages was not considered. Damages were not mentioned in the
order subsequently entered by the court. The contemnors appealed on January 27, 2004, before
any consideration of damages by the trial court.
On appeal, this Court affirmed the trial court’s finding of contempt, but remanded for
clarification whether the trial court intended to impose sanctions for civil or criminal contempt.
Droomers, supra, slip op at 1, 6-7. This Court did not address the issue of damages, except to
quote In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 714; 624 NW2d 443 (2000),
for the proposition that, when a court finds someone in criminal contempt, “[t]he court may also
require a criminal contemnor to pay compensation for damages caused by the contemptuous
conduct.” Id., slip op at 6.
“The power of the lower court on remand is to take such action as law and justice may
require so long as it is not inconsistent with the judgment of the appellate court.” People v
Fisher, 449 Mich 441, 446-447; 537 NW2d 577 (1995). In Taylor v Currie, 277 Mich App 85,
100; 743 NW2d 571 (2007), this Court held that the contempt statute, MCL 600.1721, requires a
trial court to order a contemnor to indemnify any person who suffers an actual injury as a result
of the contempt, even when the contemnor is found in criminal contempt.
Here, the trial court’s award of compensatory damages was not inconsistent with this
Court’s remand order, and was required by law and justice. Because this Court did not
previously reach the issue of damages, the trial court remained free to consider it on remand.
See Fisher, supra at 447; see also K & K Constr, Inc v Dep’t of Environmental Quality, 267
Mich App 523, 544; 705 NW2d 365 (2005). Therefore, compensatory damages were properly
ordered by the trial court.
Appellants argue that the trial court simply allowed plaintiff to use the trial court’s
powers of coercion to force appellants to satisfy the civil judgment entered against their law firm.
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This Court rejected this argument in DeGeorge, supra at 598-599, and appellants’ attempts to
distinguish DeGeorge are unavailing.
Appellants also argue that the trial court erred in imposing damages in the amount of the
civil judgment ($431,350.00). However, the record discloses that appellants failed to submit any
evidence to dispute the voluminous documentary evidence submitted by plaintiff in support of
his request for damages. Thus, appellants failed to create a question of fact concerning the
amount of damages sustained by plaintiff as a result of appellants’ contempt. Accordingly,
appellants have failed to show that the trial court erred in failing to hold an evidentiary hearing,
or in its decision concerning the amount of the damages sustained by plaintiff.
Finally, we note that because the judgment at issue was entered some time ago and
remains unpaid, the amount of statutory interest awarded in the judgment pursuant to MCL
600.6013(6) requires recalculation. We therefore remand to the trial court for a recalculation of
statutory interest and entry of a judgment incorporating the recalculated interest amount.
Affirmed and remanded to the trial court for a recalculation of statutory interest and entry
of a judgment incorporating the recalculated interest amount. We do not retain jurisdiction.
Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Deborah A. Servitto
/s/ Michael J. Talbot
/s/ Donald S. Owens
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