Appellees Brief - MLive.com

STATE OF MICHIGAN
IN THE COURT OF APPEALS
MICHIGAN DEPARTMENT OF
TRANSPORTATION
Court of Appeals No. 308053
v
Plaintiff-Appellee,
Wayne Circuit Court No. 09-015581-CK
DETROIT INTERNATIONAL BRIDGE
COMPANY,
Defendant-Appellant,
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AND SAFECO INSURANCE COMPANY
OF AMERICA
Defendants.
/
BRIEF OF APPELLEES MICHIGAN DEPARTMENT OF
TRANSPORTATION
ORAL ARGUMENT REQUESTED
Bill Schuette
Attorney General
John J. Bursch (P57679)
Solicitor General
Counsel of Record
Richard A. Bandstra (P31928)
Chief Legal Counsel
Robert L. Mol (P36898)
LuAnn Cheyne Frost (P42974)
Michael Dittenber (P72238)
Assistant Attorneys General
Attorneys for Michigan Department of
Transportation
Transportation Division
P.O. Box 30050
Lansing, MI 48909
Dated: January 27, 2012 517-373-3445

TABLE OF CONTENTS
Page
Table of Contents ............................................................................................................ i
Index of Authorities ...................................................................................................... iv
Counter-Statement of Jurisdiction ............................................................................. vii
Counter-Statement of Questions Presented ................................................................ ix
Introduction ................................................................................................................... 1
Counter-Statement of Facts and proceedings .............................................................. 5
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1. MDOT Complaint and Summary Disposition Motions ................ 5
2. DIBC‘s appeal of the February 1, 2010 Opinion and Order ........ 7
3. DIBC‘s direct efforts to avoid compliance with the
February 1, 2010 Opinion and Order and avoid the show
cause contempt hearing. .............................................................. 12
4. DIBC‘s parallel efforts to avoid compliance with the
February 1, 2010 Opinion ........................................................... 15
5. The first show cause contempt hearing ...................................... 17
6. The trial court‘s efforts to address DIBC‘s continuing noncompliance
.................................................................................... 21
a. March 15, 2011 Opinion and Order of the Court. ............ 21
b. June 17, 2011 Opinion and Order of the Court. .............. 21
c. June 13, 2011 Order to Show Cause. ............................... 23
d. July 8, 2011 Order. ........................................................... 27
e. August 11, 2011 Opinion and Order. ............................... 29
f. September 1, 2011 Adjournment of Hearing Order. ....... 31
g. November 3, 2011 Opinion and Order—Second
Contempt ........................................................................... 32
h. December 13, 2011 Opinion and Order of the Court. ...... 37
i

Argument ..................................................................................................................... 38
I. This Court lacks jurisdiction to review the merits of the trial court‘s
February 1, 2010 opinion and order. ................................................................ 38
A. Analysis .................................................................................................. 38
II.
The trial court appropriately sanctioned DIBC corporate officials
Moroun and Stamper after proper notice and an opportunity to be
heard. ................................................................................................................. 41
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III.
IV.
A. Standard of Review ................................................................................ 41
B. Analysis .................................................................................................. 41
1. Appellants had full notice of the show cause hearing and
possible imposition of civil coercive sanctions. ........................... 44
2. Appellants had a full opportunity for hearing. .......................... 46
The trial court‘s imprisonment of DIBC officials was not outside the
range of principled outcomes in light of DIBC‘s refusal to comply with
the court‘s order for nearly two years. ............................................................. 47
A. Lack of preservation ............................................................................... 47
B. Standard of Review ................................................................................ 48
C. Analysis .................................................................................................. 49
The February 1, 2010 opinion and order is sufficiently ―specific‖ and
―definite‖ to support the trial court‘s second finding of contempt. .................. 54
A. Lack of preservation ............................................................................... 54
B. Standard of Review ................................................................................ 55
C. Analysis .................................................................................................. 56
1. Appellants waived their right to challenge the specificity
of the February 1, 2010 opinion and order. ................................ 56
2. The law of the case doctrine preludes Appellants‘
challenge to the specificity of the February 1, 2010
opinion and order. ........................................................................ 57
ii

3. Appellants have waived this argument by not providing
any legal authority or supporting analysis. ............................... 58
V. The trial court did not act as both accuser and fact finder, nor has the
trial court been personally embroiled in the litigation.................................... 59
A. Failure to preserve ................................................................................. 59
A. Standard of Review ................................................................................ 59
B. Analysis .................................................................................................. 60
Conclusion and Relief Requested ................................................................................ 64
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iii

INDEX OF AUTHORITIES
Page
Cases
Armstrong v. Guccione, 470 F3d 89, 110 (2d Cir NY 2006) ....................................... 63
Bilokumsky v Tod, 263 US 149, 153-154 (1923) ......................................................... 42
Cain v Dept of Correction, 451, Mich 470; 548 NW2d 210 (1996).............................. 59
Cain v Dept of Corrections, 451, Mich 470; 548 NW2d 210 (1996) ............................ 61
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Crampton v Dep't of State, 395 Mich 347; 235 NW2d 352 (1975) .............................. 59
Davis v Henry (In re Contempt of Henry), 282 Mich App 656 (2009) ........................ 41
Gompers v Buck’s Stove & Range Co, 221 US 418, (1911) ........................................... 1
Groves v Dep’t of Corrs., __ Mich App__, COA Docket No. 302640, December
6, 2011. ...................................................................................................................... 58
In re Contempt of Dougherty, 429 Mich 81; 413 NW2d 392 (1987) ...................... 50, 51
In Re Contempt of Henry Scharg, 207 Mich App 438; 525 NW2d 479 (1994) ........... 50
In re Contempt of Henry, 282 Mich App 656; 765 NW2d 44 (2009) ............... 41, 55, 56
In re Meizlish, 72 Mich App 732; 250 NW2d 525 (1976) ............................................ 49
In re: MKK, 286 Mich App 546; 781 NW2d 132 (2009) ............................................. 59
Kloian v Schwartz, 272 Mich App 232; 725 NW2d 671 (2006) .................................. 59
Mahlen Land Corp v Kurtz, 355 Mich 340; 94 NW2d 888(1959) ............................... 61
Mich. Dep’t of Transp. v Detroit Int’l Bridge Co., No. 10-13767 ................................ 39
Mine Workers v Bagwell, 512 US at 828 ............................................................... 51, 63
N.L.R.B. v Cincinnati Bronze, Inc., 829 F2d 585 (6th Cir. 1987) .............................. 58
Napier v Jacobs, 429 Mich 222; 414 NW2d 862 (1987) .............................................. 48
Paul v University Motor Sales Co, 283 Mich 587 (1938) ............................................ 41
iv

People v Kowalski, 489 Mich. 488; 803 NW2d 200 (2011) .......................................... 54
People v Kurz, 35 Mich App 643; 192 NW2d 594 (1971) ............................................ 50
Porter v Porter, 285 Mich App 450; 776 NW2d 377 (2009) ............................ 47, 49, 55
Re Contempt of Henry Dudzinski, 257 Mich App 96; 667 NW2d 68 (2003) .............. 50
United Mine Workers v Bagwell, 512 US 821; 114 S Ct 2552; 129 L Ed 2d 642
(1994) ........................................................................................................................ 51
United States v Harris, 582 F3d 512, 520 (3d Cir NJ 2009) ...................................... 63
United States v Hochschild, 977 F2d 208, (6th Cir. 1992) ......................................... 44
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United States v United Mine Workers, 330 US 258; 67 S Ct 677; 91 L Ed 884
(1947) ........................................................................................................................ 50
United States v Wilson, 221 US 361, 55 L Ed 771, 31 S Ct 538 (1911) ..................... 44
US v Ryslander, 460 US 752, 103 S Ct 1548; 75 LEd 2d 521 (1983) ......................... 62
v Detroit Racing Assoc., 130 Mich App 322 (1983) .................................................... viii
Walker v. Henderson (In re United Stationers Supply Co), 239 Mich App 496;
608 NW2d 105 (2000) ............................................................................................... 49
Walters v Nadell, 481 Mich 377 (2008) ....................................................................... 48
Wilson, supra, 221 US at 376 ...................................................................................... 44
Statutes
MCL 450.1261(b).......................................................................................................... 47
MCL 600.1701 .......................................................................................................... 9, 10
MCL 600.1715 .............................................................................................................. 51
MCL 600.1750 .............................................................................................................. 10
MCL 600.611 ...................................................................................................... 9, 10, 30
MCL 600611 ................................................................................................................. 24
v

Rules
MCR 7.205(f)(3) ..................................................................................................... vii, 40
MCR 2.003 .................................................................................................................... 59
MCR 2.114 .................................................................................................................... 22
MCR 3.310(C)(4) .......................................................................................................... 44
MCR 3.606 .................................................................................................................... 47
MCR 7.202(6)(a) ........................................................................................................... vii
MCR 7.202(6)(a)(i) ....................................................................................................... 39
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MCR 7.203(A) ............................................................................................................... vii
MCR 7.203(B) .............................................................................................................. viii
MCR 7.204 .................................................................................................................... vii
MCR 7.204(A) ............................................................................................................... 39
MCR 7.204(A)(1)(a) ...................................................................................................... 40
vi

COUNTER-STATEMENT OF JURISDICTION
There are, in essence, four appeals being presented to this Court. Even
though the Detroit International Bridge Company (DIBC) is the named defendant
in the case, it filed a motion for leave to file a brief amicus curiae (along with the
brief itself) which challenges both the trial court‘s January 12, 2012 Opinion &
Order imposing the civil sanction of imprisonment of DIBC corporate officials
Manual ―Matty‖ Moroun and Dan Stamper to compel DIBC‘s compliance with the
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trial court‘s February 1, 2010 Opinion and Order, and the underlying order
granting MDOT summary disposition and directing DIBC to specifically perform
the Gateway Project.
The corporate officials filed their own claim of appeal, captioned as In Re
Contempt of Manuel J. Moroun and Dan Stamper, even though there is no trial
court case of that name and they were not sanctioned for contempt in their
individual capacities, but rather as DIBC‘s key decision makers. The corporate
officials also appeal the same two orders, the February 1, 2010 order and the
January 12, 2012 order.
Significantly, this Court lacks jurisdiction over the appeals of the February 1,
2010 order, because it was entered more than 12 months ago. MCR 7.205(f)(3).
Argument I of DIBC‘s proposed ―amicus‖ brief and Argument III of the corporate
officials brief should be struck, as this Court struck the similar attack on the
February 1, 2010 order recently brought by DIBC in COA No. 307306.
And this Court does not have jurisdiction under MCR 7.203(A), MCR 7.204
and MCR 7.202(6)(a), as claimed by both DIBC and its corporate officials, because
vii

the January 12, 2012 order is not a final order appealable by right.
It appears this
Court has treated the corporate officials‘ claim of appeal as an application for leave
to appeal under MCR 7.203(B) the January 12, 2012 Opinion and Order, Guzowski
v Detroit Racing Assoc., 130 Mich App 322 (1983), and granted it. (January 13,
2012 Order: ―On the Court‘s own motion, the Court orders that appellants‘ appeal
from the January 12, 2012 order of the Wayne County Circuit Court is
EXPEDITED.‖).
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viii

COUNTER-STATEMENT OF QUESTIONS PRESENTED
1. Does this Court lack jurisdiction to review the merits of the trial
court‘s February 1, 2010 Opinion and Order
Appellant‘s answer:
Appellee‘s answer:
Trial court‘s answer:
No.
Yes.
Yes.
2. Did the trial court appropriately sanction DIBC corporate officials
Moroun and Stamper after proper notice and an opportunity to be
heard
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Appellant‘s answer:
Appellee‘s answer:
Trial court‘s answer:
No.
Yes.
Yes.
3. Did DIBC fail to establish that the trial court‘s imprisonment of DIBC
officials was outside the range of principled outcomes in light of DIBC‘s
refusal to comply with the court‘s order for nearly two years
Appellant‘s answer:
Appellee‘s answer:
Trial court‘s answer:
No.
Yes.
Yes.
4. Did DIBC fail to establish that the trial court‘s February 1, 2010
opinion and order is insufficiently ―specific‖ and ―definite‖ to support
the trial court‘s second finding of contempt
Appellant‘s answer:
Appellee‘s answer:
Trial court‘s answer:
No.
Yes.
Yes.
5. Did DIBC fail to establish that the trial court judge cannot act
impartially over the remainder of the proceedings as the trial court did
ix

not act as both accuser and fact finder, nor has the trial court been
personally embroiled in the litigation
Appellant‘s answer:
Appellee‘s answer:
Trial court‘s answer:
No.
Yes.
Yes.
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x

INTRODUCTION
The power of the courts to punish for contempt ―is a necessary and integral part of
the independence of the judiciary, and is absolutely essential to the performance of
the duties imposed on them by law. Without it they are mere boards of arbitration,
whose judgments and decrees would be only advisory.‖ Gompers v Buck’s Stove &
Range Co, 221 US 418, 450 (1911).
A century later, Justice Lamar‘s words retain their luster. Contempt is the
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judiciary‘s primary enforcement mechanism to compel obedience to judicial orders
and judgments.
On February 1, 2010, Judge Prentis Edwards granted MDOT partial
summary disposition in its breach of contract action against DIBC and ordered
DIBC to specifically perform the Gateway Project under the terms of the Gateway
Agreement. Since that time, DIBC has relentlessly challenged that order, through
voluminous motions and appeals in state and federal forums, but has never
complied with it. In the words of Judge Edwards: ―DIBC has simply ignored the
requirements of the February 1, 2010 Order.‖ (11/3/11 Opinion and Order, p.9).
DIBC‘s conduct forced Judge Edwards to convene a civil-contempt hearing,
culminating in a January 10, 2011 order finding DIBC in civil contempt of court.
Even the contempt order did not change DIBC‘s conduct, forcing Judge Edwards to
conduct a second, multi-month contempt hearing. On November 3, 2011, Judge
Edwards again found DIBC in civil contempt of court for non-compliance with the
February 1, 2010 order. As sanctions, Judge Edwards issued a $7,500 fine and
ordered Appellants Moroun and Stamper imprisoned until DIBC either complies
1

with the February 1, 2010 order or when Appellants are no longer in a position to
comply with the order.
The Gateway Project was scheduled to be completed in 2008. DIBC was
ordered to specifically perform that agreement on February 1, 2010. Judge
Edwards patiently waited and continued to provide Appellants with process for
nearly two whole years, acting only following a lengthy hearing involving additional
voluminous testimony and exhibits.
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Judge Edwards acted fully within his inherent and statutory authority in
issuing coercive contempt sanctions in response to DIBC‘s continuing disobedience.
His sanctioning of a party that has refused to comply with a court order for nearly
two years cannot in any sense be considered an abuse of discretion. Moreover,
Judge Edwards‘ order clearly and definitively explains what Appellants must do to
end their jail term. The proverbial ―keys‖ to Appellants‘ release require only that
Appellants comply with the February 1, 2010 order which provided a concrete list of
directives. In addition, Judge Edwards reiterated in his November 3, 2011 order
that compliance with the February 1, 2010 order includes rectifying the following
issues:
1. The location of pier 19 interferes with the path of the
truck road required by the Performance Bond and
Maintenance Agreement.
2. DIBC has not constructed the two-lane truck road from
the truck plaza so S02.
3. DIBC has not submitted construction plans to re-align the
three piers of SO1 [Piers 11, 12, 13] that were constructed
in conflict with the four-lane road.
2

4. DIBC‘s plans for the Access Road do not conform to the
requirements of the February 1, 2010 Order of this Court.
5. DIBC has not constructed the north or south special
return routes required by the Maintenance Agreement.
6. The design of 21st Street does not satisfy the
requirements of the Plans attached to the Performance
Bond.
7. DIBC has not conveyed the customary easement for
highway purposes as required by the August 11, 2011
Order of this Court. [11/3/11 Order at p.10.]
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A chief tenet of civil contempt is that the contemnor be able to purge the
contempt by complying with the violated order. The January 12, 2012 order
provides that Appellants will purge their contempt when they have ―fully complied
with the February 1, 2010 Order of this Court or they no longer have the power to
comply with the February 1, 2010 Order of this Court.‖ (1/12/12 Order at p.6.) To
purge their contempt, Appellants need only demonstrate to the trial court that they
have: (1) complied with the February 1, 2010 order; or (2) lack the power to comply
with that order. They have not done so, nor have they made any attempts to that
end.
Accordingly, MDOT respectfully requests that this Court affirm Judge
Edwards‘ January 12, 2012 order in all respects. Aside from jail, the only realistic
alternative for ensuring compliance is one that DIBC has already rejected:
(1) requiring DIBC to pay into escrow an amount sufficient to pay for the Gateway
Project improvements, (2) appointing of a receiver to manage the construction, and
3

(3) barring DIBC from raising any further legal challenges to the receiver‘s actions
or the work‘s completion.
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4

COUNTER-STATEMENT OF FACTS AND PROCEEDINGS
The corporate officials‘ statement of facts and proceedings does not present
all material facts and proceedings, favorable and unfavorable, as this Court‘s rules
require. With apologies for the length, MDOT offers the following counterstatement
of facts and proceedings. It is not possible to summarize concisely the
ways DIBC has thwarted the parties‘ agreement and the trial court‘s orders.
1. MDOT Complaint and Summary Disposition Motions
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On June 24, 2009, MDOT filed a breach of contract complaint against DIBC
and Safeco Insurance Company of America. The substance of MDOT‘s complaint
was that the parties had agreed to a final agreed design of DIBC‘s portion of the
Gateway Project—which DIBC secured and guaranteed to construct in the
$34,664,650 performance bond issued by Safeco. (Complaint 10, 11). Rather
than constructing the agreed design, DIBC followed a conflicting design and built
various structures and facilities in direct conflict with the agreed design.
(Complaint 32). The Complaint included the plan sheet detailing DIBC‘s
conflicting design and construction, including S01 piers 11, 12, 13 and 19, along
with conflicting duty free building, fuel pumps and other facilities, and toll booths,
among others. (Complaint 32, Exhibit 10). MDOT also attached a color plan sheet
created by DIBC depicting the agreed design (Compliant p. 9, fn 12 and Exhibit 12).
The overall design that DIBC agreed to construct was further detailed on sheet C-1
and 1 of 6 in Exhibit E to the performance bond. (MDOT Complaint 87 and 88,
and Exhibits 20 and 21).
5

On October 29, 2009 MDOT filed a motion for partial summary disposition to
require DIBC to construct a two-lane access road. (Appendix 1). This road was
required by the February 17, 2006 Amendatory Agreement and November 5, 2007
Maintenance Agreement.
On November 13, 2009 MDOT filed a second motion for partial summary
disposition to compel DIBC to complete construction of its portion of the Gateway
Project in accordance with the agreed design, and to remove all conflicting
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structures (Appendix 2). An exhibit depicted DIBC‘s conflicting construction
overlaid on the agreed design, which included the following conflicts: .
S01 piers 11, 12 and 13 in the pathway of the 4/3 lane road.
S01 pier 19 (a/k/a pier 1 of its second span) in the pathway of the two-lane
truck road.
The duty free building, parking, auto fueling stations, and related facilities in
the pathway of the 4/3 lane road and the S04 and S05 bridges over 23 rd
Street.
Toll booths directly in the path of the two-lane access road. (Appendix 3).
Both of MDOT‘s partial summary disposition motions were based on (C)(10)—lack
of any genuine issue of material fact. Furthermore, in both motions MDOT
requested specific performance.
After DIBC filed responses, and hearing oral argument, on February 1, 2010
the trial court issued its opinion and order finding there were no genuine issues of
material fact and granting MDOT‘s motions. The Court found:
There was an agreed design for DIBC‘s portion of the project (Part A) (Order
at pp. 9, 11 and 12).
6

DIBC guaranteed construction of the agreed design in the performance bond
(Order, pp. 9, 11 and 12).
DIBC has not constructed its portion according to the agreed design (Order,
pp. 9 and 12).
DIBC constructed structures in conflict with the public roads and ramps in
the agreed design (Order, pp. 12 and 13).
DIBC constructed substantial roads and ramps following unapproved designs
(Order, p. 13).
As a result of these findings, the Court granted MDOT‘s request to require
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DIBC to construct the two-lane access road and to compel DIBC to construct its
portion of the Gateway Project in compliance with the agreed design. The Court
ordered specific performance ―to complete construction of its portion of the Gateway
Project in compliance with the design incorporated in the Performance Bond‖.
(Order, p. 15). The Court further ordered DIBC to submit a detailed time table for
completing construction of DIBC‘s portion, including removing conflicting
structures.
2. DIBC’s appeal of the February 1, 2010 Opinion and Order
After the trial court issued the February 1, 2010 Order enforcing the
unambiguous Gateway Agreements, DIBC filed a motion for stay pending appeal
claiming the order would require DIBC to immediate undertake significant
construction, and acknowledging that the Order was immediately enforceable,.
(Appendix 4). DIBC did not allege it did not know what it was supposed to build.
Rather, DIBC represented that if its appeals were denied, it would fully perform
7

and satisfy the February 1, 2010 Order. (Motion p. 9, Appendix 4). Attached to
DIBC‘s motion was the affidavit of DIBC‘s president, Mr. Stamper, where Mr.
Stamper made this commitment under oath:
8. In the event that the ultimate appellate decision
regarding this Court‘s February 1, 2010 Opinion and
Order is completely affirmed, DIBC will perform or satisfy
the February 1, 2010 Opinion and Order as directed by
the Court of Appeals or the Supreme Court.
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9. In the event that this appeal is dismissed, DIBC would
perform or satisfy the February 1, 2010 Opinion and
Order. (Appendix 4).
The gravamen of DIBC objections to the February 1, 2010 Order was the allegation
that the Order somehow reformed the parties‘ contracts.
On February 17, 2010 MDOT filed an answer opposing DIBC‘s request for a
stay noting that all of DIBC‘s arguments were specious as the trial court‘s February
1, 2010 Order granted specific performance; merely enforcing DIBC‘s agreement
with MDOT to construct its portion of the Gateway Project in accordance with the
agreed design. The trial court denied the stay on February 19, 2010 following oral
argument.
On February 19, 2010 DIBC timely filed an Emergency Application for Leave
to Appeal the February 1, 2010 Order to this Court (COA Case 296567).
Concurrent with this application, DIBC also filed a Motion for Immediate
Consideration and Motion to Stay Effects of the February 1, 2010 Order,
acknowledging that the February 1, 2010 Order was immediately enforceable as it
would require immediate massive demolition and significant construction. Again,
8

DIBC did not claim the Order was unclear as to what DIBC was required to build.
On March 17, 2010 this Court issued an order denying DIBC‘s Motion for Stay and
denying DIBC‘s Emergency Application for Leave to Appeal.
Despite admitting to this Court and to the trial court below that the February
1, 2010 Order was immediately enforceable and would require immediate,
significant demolition and/or construction, after this Court denied DIBC‘s Motion
for Stay and Application for Leave to Appeal, on March 26, 2010, DIBC filed a
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motion with the trial court alleging that the February 1, 2010 Order was
unenforceable and that DIBC had no obligation to comply with this Order.
(Appendix 5).
MDOT opposed the motion, noting DIBC‘s noncompliance and requesting the
Court exercise its authority to secure future compliance, citing MCL 600.1701 et
seq., MCL 600.611, and the Court‘s inherent authority to enforce its orders.
(Appendix 5, pp. 4-12). Oral argument was scheduled for April 23, 2010.
On April 16, 2010, oral argument was held on several motions filed in DIBC‘s
Court of Claims lawsuit against MDOT and the State Transportation Commission
arising out of the Gateway Project which had been joined with the underlying case
before Judge Edwards. (See COA Case 298276). Before addressing those motions,
the Court asked DIBC about its failure to comply with the Court‘s February 1, 2010
Order, in which the Court had ordered DIBC to submit a construction schedule
within 21 days. After hearing DIBC claim that the parties were not present for that
case, the Court demanded an answer. DIBC admitted that it had not complied with
9

the Court‘s February 1, 2010 Order requiring it to submit a schedule within 21 days
of that order. (April 16, 2010 Tr. 4-6, Appendix 7) 1
On April 23, 2010, the trial court heard oral argument on DIBC's March 26,
2010 Motion for Revisions, Clarifications, and/or Amendment of February 1, 2010
Order and denied it ruling that its February 1, 2010 Order was effective and
enforceable. The Court further found DIBC‘s motion was frivolous and ordered
DIBC to reimburse MDOT for its attorney fees incurred in preparing a response and
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appearing at the hearing in the amount of $2,600.(April 23, 2010 Tr., Appendix 8)
The order was entered on September 23, 2010 delayed due to DIBC‘s first
―objectively unreasonable‖ removal to federal Court. (Appendix 9).
At the end of the April 23, 2010 hearing, in response to MDOT's request for
the Court to exercise its contempt authority,(MDOT‘s Response, p. 2 and 4-12,
Appendix 6). the Court directed MDOT‘s counsel to prepare an order to show cause:
I'm going to direct that the State prepare an Order to Show
Cause for the president of the Bridge Company, Dan Stamper, appear
in this courtroom on May 10, 2010 at 8:30 a.m. to show cause why the
Order has not been complied with, why the construction cannot be
done within one year, to show cause why the Safe Guard Insurance
con, [Safeco Insurance Co.] insurance contract should not be required
to step in and pick up the construction of this project.
And this will be civil contempt, and the Notice should specify
civil contempt. The sanctions under civil contempt, I'm sure that all of
us are aware, are different from that under criminal. This will be civil
contempt. The authorization for that may be found at MCL 600.1701,
MCL 600.1750, MCL 600.611. (April 23, 2010 Tr. @ 26).
1 DIBC did not file its proposed schedule until April 22, 2010, nearly 2 months after
the Court ordered deadline.
10

On April 27, 2010, the trial court issued an Order to Show Cause directing
Dan Stamper, as President of DIBC, to personally appear before the Court and
show cause why DIBC should not be held in civil contempt for failure to comply
with the terms and provisions in the Court‘s February 1, 2010 Order.(Appellant‘s
Appendix 11). DIBC was also ordered to show cause why construction of DIBC‘s
portion of the Gateway Project could not be completed within one year, and why the
Court should not require Safeco Insurance Company of America to step in and
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complete construction of DIBC‘s portion of the Gateway Project. The Order to Show
Cause was personally served on Mr. Stamper that same day (Appendix 10).
On April 27, 2010, DIBC filed an Application for Leave to Appeal with the
Michigan Supreme Court (Case No. 140991), appealing this Court‘s March 17, 2010
Order denying DIBC‘s application for leave to appeal along with the trial court‘s
February 1, 2010 Order. DIBC also filed a Motion to Stay Effect of February 1,
2010 Order and a Motion for Immediate Consideration. In its filings, DIBC again
acknowledged that the trial court‘s order was immediately enforceable, as DIBC
again recited the immediate, massive construction and demolition that the trial
court‘s Order would require. Again, DIBC did not claim it did not know what it was
required to build under the February 1, 2010 Order. In a supplemental filing, DIBC
also raised the April 27, 2010 Order to Show Cause and requested that proceeding
be stayed as well.
On May 28, 2010 the Michigan Supreme Court issued an Order denying
DIBC‘s emergency application for leave to appeal.
11

3. DIBC’s direct efforts to avoid compliance with the
February 1, 2010 Opinion and Order and avoid the show
cause contempt hearing.
The trial court rescheduled the show-cause hearing for June 10, 2010. Three
days before the hearing, DIBC filed a Notice of Removal, removing the case to
Federal Court (USDC ED Mich Case No. 2:10-cv-12234). On August 17, 2010, US
Federal District Judge Patrick Duggan issued an Opinion and Order remanding the
case to the Wayne County Circuit Court. (Appendix 11) The District Court ruled
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that DIBC‘s removal was untimely and that the Court lacked federal jurisdiction as
there was no federal question presented. The District Court further granted
MDOT‘s request for $9,600 in attorney fees incurred in preparing the motion to
remand, because DIBC‘s removal was ―objectively unreasonable.‖(Order at p10-11,
Appendix 11).
The trial court rescheduled the show cause hearing for September 23, 2010.
Three days before the hearing, Superior Global Logistics LLC, a trucking company
that claimed it uses the Ambassador Bridge, filed a federal complaint against
MDOT to force MDOT to open certain ramps. (Appendix 12). Concurrent with this
federal complaint, Superior Global also filed a motion to intervene in the underlying
case, alleging that it desired to intervene and assert federal claims only against
DIBC, not MDOT, even though its motion to intervene asserted numerous
allegations solely against MDOT. (Appendix 13). DIBC assisted Superior Global in
preparing its Motion to Intervene to assert claims against DIBC. (Appendix 13, at
‘s 24, 29, 37 and 51).
12

The very next day, DIBC filed a Notice of Removal removing the case back to
federal court for a second time. (USDC ED Mich Case No 2:10-cv-13767) DIBC
based its second removal solely on Superior Global‘s Motion to Intervene which had
been filed, but not granted. DIBC did not perfect its removal (filing with the Wayne
County Circuit Court Clerk as required under 28 USC 1446(d)) 2 until after the start
of the September 23, 2010 show cause hearing. Mr. Stamper and DIBC‘s attorneys
failed to attend the September 23, 2010 show cause hearing, despite being directed
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to appear. Safeco‘s counsel appeared and acknowledged the Court‘s directive to
appear. (September 23, 2010 Tr. 3-7, Appendix 14).
On September 27, 2010, MDOT filed an emergency motion to remand and for
costs and fees. Numerous motions were filed by DIBC and various other parties,
either to intervene, delay, or to prevent a timely remand.
On November 5, 2010 Federal District Court Judge Patrick J. Duggan issued
an Opinion and Order remanding the case to the state court for a second time.
(Appendix 15). The opening paragraph of the Court‘s Order rejected DIBC‘s
―schemes‖ to avoid compliance with the Wayne County Circuit Court‘s February 1,
2010 Order and April 27, 2010 Order to Show Cause:
On September 21, 2010 the Detroit International Bridge Company
(―DIBC‖) removed this action for a second time from the Wayne County
Circuit Court asserting federal question jurisdiction. On September
27, 2010, the Michigan Department of Transportation (―MDOT‖) filed
an emergency motion for remand and for costs and fees. That motion
has been fully briefed. In the meantime, the Court has been flooded
with motions filed by DIBC and parties scheming with DIBC to keep
2 Under 28 USC 1446(d), removal is effective only after all adverse parties are
given written notice and a copy of the notice is filed with the state court clerk.
13

the action in federal court. Considering this Court’s more than thirtythree
years as a judicial officer, DIBC may be entitled to its recognition
as the party who has devised the most creative schemes and maneuvers
to delay compliance with a court order. DIBC‘s schemes fail, however,
as they lack support in the law of this Circuit. Therefore, DIBC is not
entitled to receive this Court's jurisdiction over the removed matter
and MDOT is entitled to an award of the fees and costs it incurred as a
result of DIBC's improper removal.(November 5, 2010 Opinion and
Order @ pg 1-2, Appendix 15).
The federal court held that under federal law, a motion to intervene cannot form the
basis for federal question removal jurisdiction. The court also held that DIBC‘s
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removal was again improper and ruled that an award of costs and fees, including
attorney fees was appropriate. This award of costs and fees included all costs and
fees incurred as a result of the removal as well as costs and fees incurred
responding to motions precipitated by the removal.
On November 29, 2010, the Federal District Court issued an Opinion and
Order Awarding Plaintiffs Fees and Costs Pursuant to 28 U.S.C. § 1447(c).
(Appendix 16). The Court ordered DIBC to pay MDOT $30,630 within seven days of
the Order. 3
3 Despite DIBC‘s allegation that it respects court authority (See Stamper
testimony, December 9, 2010 Tr at p. 113, Appendix 17) and acknowledgement that
it must obey a court‘s order until reversed (DIBC application in COA 302330 at p.
26), DIBC did not pay the $30,630 as ordered within the seven day court-ordered
deadline. Rather DIBC did not pay this amount until January 12, -- the second day
after Mr. Stamper was incarcerated for DIBC‘s initial contempt, over five weeks
late. Similarly, DIBC did not pay the $9,600 it was ordered to pay by the federal
court as a result of its first ―objectively unreasonable‖ removal, until January 12,
2011, over five months after the Federal Court‘s August 17, 2010 Opinion and
Order, (Appendix 11). See DIBC‘s payments in Appendix 19. Furthermore, DIBC
still has not paid MDOT the $2,600 it was ordered to pay MDOT in the Court‘s
September 23, 2010 Order (Appendix 9). This amount has been due and payable for
over 1 yr. 4 months per the Court‘s Oder.
14

4. DIBC’s parallel efforts to avoid compliance with the
February 1, 2010 Opinion
Concurrent with DIBC‘s direct attempts to avoid the February 1, 2010 Order
and avoid facing the April 27, 2010 Order to Show Cause thru its federal court
removals, DIBC and its owners mounted an indirect attempt to interfere with and
prevent completion of DIBC‘s portion of the Gateway Project in accordance with the
Gateway Agreements as ordered by the Court in the February 1, 2010 Order.
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On June 9, 2010, three trucking companies owned by and under the control of
DIBC‘s owners filed a federal complaint against MDOT‘s director and the chairman
of the State Transportation Commission.(Appendix 18). These DIBC affiliates
sought a mandatory preliminary injunction to force MDOT to open certain newly
constructed Gateway Project interstate ramps that would force traffic directly into
the middle of DIBC‘s portion of the Gateway Project. This would prevent DIBC‘s
construction of the public roads DIBC agreed to construct under the Gateway
Agreements and as ordered in the February 1, 2010 Order.
On June 30, 2010, MDOT‘s Director and the State Transportation
Commission Chairman filed a Motion to Dismiss DIBC‘s affiliates‘ complaint,
pointed out that DIBC was under a State court order to build the public roads it
agreed to build in the Gateway Agreement, and that the relief DIBC‘s affiliates
were seeking would prevent completion of this project MDOT. (Appendix 20 at p. 2).
They also opposed the affiliates‘ request for a mandatory preliminary injunction.
(Appendix 21). The federal court heard oral argument on DIBC's affiliate's Motion
for a Mandatory Preliminary Injunction and Defendants' Motion to Dismiss and
15

took the motions under advisement. The Federal Court also allowed Superior
Global to intervene, dismissed Superior Global‘s separate lawsuit, thereby
consolidating all of the issues in one case. 4
This consolidated case was resolved when the federal court dismissed all the
complaints. On January 13, 2011, U.S. District Judge David Lawson issued an
Opinion and Order Granting Defendants‘ Motion to Dismiss, Denying Motions and
Emergency Motions for Preliminary Injunction, Dismissing Amended and
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Intervener Complaints, and Denying Other Motions as Moot. (Appendix 22).
Recognizing that there was one state law claim remaining, the district court
declined to exercise supplement jurisdiction over this claim. The court indicated
that the important and perhaps overriding consideration in declining to exercise
jurisdiction over the state law claim was that these DIBC affiliates and other
plaintiffs had engaged in manipulative tactics. Noting Judge Duggan‘s earlier
finding regarding DIBC‘s ―maneuvering‖, Judge Lawson ruled:
Another important, perhaps overriding, consideration weighs heavily
against exercising supplemental jurisdiction in this case as well. As
the Sixth Circuit has noted, ―[a] district court may also ‗consider
whether the plaintiff has engaged in any manipulative tactics when it
decides whether to remand a case. If the plaintiff has attempted to
manipulate the forum, the court should take this behavior into account’
in determining whether the balance of factors supports a remand of the
state-law claims.‖ The present case falls squarely within that rubric.
From the standpoint of the named plaintiffs, who are affiliated with the
controlling interests of DIBC, and apparently the intervening plaintiffs
as well, the case represents another attempt to gain an upper hand in
4 DIBC mentioned these lawsuits as a possible excuse for its disobedience to the
February 1, 2010 Order, LaCross testimony, December 9, 2010, Tr., pp. 22 and 131-
132. (Appendix 17).
16

the dispute between the state and DIBC over completion of DIBC’s
portion of the Gateway Project.
As noted earlier, DIBC and MDOT are involved in litigation over that
issue pending in the Wayne County, Michigan circuit court. DIBC
attempted to remove that case to this Court, with support from some of
the same freight companies who have intervened in the present case.
In granting the State‘s motion to remand, another judge of this Court
wrote:
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On September 21, 2010, the Detroit International Bridge
Company (―DIBC‖) removed this action for a second time
from the Wayne County Circuit Court asserting federal
question jurisdiction. On September 27, 2010, the
Michigan Department of Transportation (―MDOT‖) filed
an emergency motion for remand and for costs and fees.
That motion has been fully briefed. In the meantime, the
Court has been flooded with motions filed by DIBC and
parties scheming with DIBC to keep the action in federal
court. Considering this Court‘s more than thirty-three
years as a judicial officer, DIBC may be entitled to its
recognition as the party who has devised the most
creative schemes and maneuvers to delay compliance with
a court order.
Mich. Dep’t of Trans. v. Det. Int’l Bridge Co., No. 10-13767, Op. and
Order of Remand [dkt #30] at 1-2 (footnote omitted) (Nov. 5, 2010)
(Duggan, J.). Because the present case can be seen as another such
―maneuver.‖ the Court declines to exercise supplemental jurisdiction
over the remaining state law claim. (Appendix 22 at 22-23).
5. The first show cause contempt hearing
The show cause contempt hearing finally commenced on December 8, 2010.
At the very start, DIBC submitted a written motion for relief from the show cause
order claiming the Court lacked jurisdiction to proceed because of the absence of an
affidavit to support the contempt charges. Nowhere did DIBC allege a lack of
knowledge as to what it was required to construct under the February 1, 2010
17

Order. After hearing oral argument, the motion was denied. (12/08/2010 Hrg. Tr.,
pp. 11-12 Appellant‘s Appendix 21).
The hearing continued on December 8, 9, and 13, 2010. DIBC presented the
testimony of Thomas LaCross, its engineering consultant and representative for the
project, and Dan Stamper, president of DIBC. Mr. Victor Judnic, MDOT‘s engineer
overseeing the Gateway Project testified for MDOT. The Court received numerous
exhibits into evidence.
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At the hearing, DIBC did not present any evidence to show it complied with
the February 1, 2010 Order. (1/10/2011 Opinion and Order, p 7, Appellant‘s
Appendix 19). Quite the opposite, DIBC presented a proposed three-year schedule
to construct a design that was totally contrary to the design detailed in Exhibit E to
the $34,664,650 performance bond that DIBC guaranteed to construct, and which
DIBC was ordered to construct in the February 1, 2010 Order.(1/10/2011 Opinion
and Order, p 5-6, Appellant‘s Appendix 19). Rather than present any credible
evidence—DIBC President Mr. Stamper blamed everyone else—principally MDOT:
Q. So, correct me if I‘m wrong, it‘s all MDOT's fault
A. I‘m not saying it‘s all MDOT's fault. I’m saying MDOT is at fault
for us not being able to move forward, and I think that’s very clear.
(Stamper, 12/9/2010 Tr 162, Appendix 17).
MDOT presented evidence demonstrating that DIBC had essentially done
nothing since the February 1, 2010 Order to comply with the Court‘s Order. (Judnic,
12/8/2010 Tr 51-59, Appellant‘s Appendix 21). Even DIBC‘s witness, Mr. LaCross,
admitted that active construction on DIBC‘s Part A stopped as of October 2009.
18

(LaCross, 12/9/2010 Tr 50 and 70, Appendix 17). Mr. LaCross further admitted that
DIBC had not constructed any of the public roads or structures detailed in the plans
in Exhibit E to the performance bond. (LaCross, 12/9/2010 Tr 50, 53-54 and 69,
Appendix 17). Mr. LaCross even admitted that DIBC had not performed any of the
work that DIBC detailed in its own proposed three-year schedule, which it filed
with the Court on April 22, 2010. (LaCross, 12/9/2010 Tr 82, Appendix 17). MDOT
presented a proposed schedule to show that it was possible for DIBC‘s portion to be
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completed within one year. (1/10/2011 Opinion and Order, Appellant‘s Appendix
19).
On January 10, 2011, the parties presented oral argument. The Court ruled
from the bench and then issued its written Opinion and Order. The trial court found
the record devoid of any credible evidence to support DIBC‘s claims. ((1/10/2011
Opinion and Order p 8, Appellant‘s Appendix 19). The Court further found that
DIBC exhibited a complete disregard for the Court‘s Order:
The tactics used by DIBC have rendered useless any efforts to obtain
compliance with the February 1, 2010 Order of this Court. The actions
of DIBC have served to hinder and delay the enforcement of the Order
of this Court. DIBC has shown a complete disregard for the February
1, 2010 Order of this Court. DIBC has chosen not to comply with the
February 1, 2010 Order of this Court. The Court records contain the
Order from the United States District Court remanding the case to this
Court for the second time. The Order is further evidence of how the
actions of DIBC impeded the functioning of the Court. The United
States District Court stated the following in its Order of November 5,
2010:
Considering this Court‘s more than thirty-three years as a
judicial officer, DIBC may be entitled to its recognition as
the party who has devised the most creative schemes and
maneuvers to delay compliance with a court order.
19

DIBC‘s schemes fail, however, as they lack support in the
law of this Circuit.
The conduct that resulted in the noncompliance by DIBC occurred outside
of the view and presence of the Court. DIBC is presently under a
duty to comply with the Court Order and it has the ability to comply.
In considering all the evidence presented, the Court found that the record
contains clear and unequivocal evidence that DIBC was presently not complying
with the Court‘s February 1, 2010 Order of the Court. The Court further found by
clear and unequivocal evidence that DIBC‘s conduct impaired the authority and
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impeded the functioning of the Court. The trial court held DIBC in civil contempt:
The Court has considered the evidence, as well as the arguments of the
parties and finds by clear and unequivocal evidence that DIBC is
presently not complying with the February 1, 2010 Order of this Court.
This Court further finds by clear and unequivocal evidence that DIBC's
conduct impairs the authority and impedes the functioning of this
Court. DIBC is in civil contempt of this Court.
Given the history of the case, the trial court determined that ―stringent
sanctions are needed to bring about compliance with the February 1, 2010 Order of
this Court.‖ (1/12/2011 Opinion and Order, p 9, Appellant, Appendix 19). Among
the civil coercive sanctions imposed was the imprisonment of DIBC‘s president, Mr.
Stamper. The Court also ordered DIBC to complete its portion of the project by
January 10, 2012. Mr. Stamper was released later that day after DIBC restarted
some work.
On January 31, 2011, DIBC filed its second interlocutory appeal challenging
the first contempt order (January 10, 2011 Opinion and Order) and again
challenging the trial court‘s February 1, 2010 Order granting summary disposition
20

and ordering specific performance. (COA 302330). DIBC also filed a motion for a
stay. On March 18, 2011 this Court denied DIBC‘s request for a stay and denied
DIBC‘s appeal.
6. The trial court’s efforts to address DIBC’s continuing
non-compliance
a. March 15, 2011 Opinion and Order of the Court.
DIBC had been ordered to construct the two-lane access road that was part of
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the agreed design for the benefit of both private property owners and MDOT in the
February 1, 2010 Order, (2/1/10 Order, p. 15). But on January 21, 2011, DIBC filed
a motion seeking to be excused from constructing this road. After briefing, oral
argument was held on February 11, 2011. At this hearing DIBC‘s counsel
represented that DIBC would construct this road as DIBC agreed in its contract
with MDOT and as ordered by the Court. (2/11/11 Motion Tr., pp. 10, 11 and 14-15,
Appendix 23). DIBC‘s counsel indicated DIBC was aware what it was required to
construct. On March 15, 2011, the trial court issued an order denying DIBC‘s
motion to modify the February 1, 2010 Order. The Court found the order required
DIBC to construct the two-lane access road for use by private property owners as
well as MDOT. The Court reaffirmed that the February 1, 2010 Order required
DIBC to construct the two-lane access road. (3/15/11 Order, p. 2, Appendix 24).
b. June 17, 2011 Opinion and Order of the Court.
On January 28, 2011 DIBC filed a second motion for relief from the February
1, 2011 Opinion and Order. DIBC requested that the Order be vacated based on
21

DIBC‘s claim that MDOT‘s supporting affidavit was hearsay and not based on
personal knowledge. Over the next several months, DIBC submitted numerous
supplemental filings asserting additional grounds. After hearing oral argument, on
June 17, 2011, the Court issued its Opinion and Order denying DIBC‘s motion. The
Court found that DIBC had engaged in a series of legal tactics in an attempt to
thwart implementation of the Court‘s February 1 Order:
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On February 1, 2010, this Court entered an Order granting summary
disposition in favor of the Michigan Department of Transportation
(MDOT). Since that time, the Detroit International Bridge Company
(DIBC) has initiated a series of legal tactics in an attempt to thwart
the implementation of that Order. Included in those attempts are
DIBC‘s failed petitions to the Michigan Court of Appeals and the
Michigan Supreme Court for relief. DIBC has twice improperly
removed this case to the United States District Court for the Eastern
District of Michigan. In addition, this Court considered DIBC's Motion
for Relief from the February 1, 2010 Order filed January 21, 2011,
pursuant to MCR 2.612(C)(1)(e) relating to the maintenance of an
easement and the construction of a two lane access road. The Court
issued an Order denying the relief sought in the January 21, 2011
motion on March 15,2011. (June 17, 2011 Opinion and Order, p. 1,
Appendix 25).
After addressing the merits of DIBC‘s motion and finding no basis for
vacating the February 1, 2010 Opinion and Order, the Court addressed MDOT‘s
request for sanctions on the grounds that DIBC‘s motion and supplemental filings
were frivolous. The Court found DIBC had failed to satisfy the conditions
established by MCR 2.114 or MCL 600.2591, and was indeed frivolous:
A review of the data presented by DIBC, the records in this case, and
the applicable law indicates that DIBC‘s motion was frivolous. The
law and experience informed DIBC that there were no reasonable
bases to believe the facts underlying its position. In addition, DIBC‘s
legal positions lack any arguable legal merit. (Op and Order, p. 7,
Appendix 25).
22

On July 22, 2011 the court issued an Order awarding MDOT the full amount of its
fees and costs incurred defending against DIBC‘s frivolous motion -- $26,440 in
attorney fees and $4,112.50 in costs.
c. June 13, 2011 Order to Show Cause.
Although almost five months had passed since the trial court issued its
January 10, 2011 Order requiring DIBC to complete its portion within one year,
MDOT observed DIBC had not started construction on any of the dedicated public
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roads detailed in the agreed design, nor had DIBC removed any conflicting
structures. Accordingly, on June 1, 2011 MDOT filed a motion for relief to show
real and meaningful progress towards timely completion of the Gateway Project.
(Appellant‘s Appendix 12). MDOT requested the Court to order DIBC to undertake
specific remedial action within a set time frame. These included removing pier 19,
which conflicts with the pathway of the two-lane dedicated truck road, the auto
fueling stations, pumps, etc. that conflict with the 4/3 lane road and the two-lane
truck road and remediating piers 11, 12 and 13 that conflict with the 4/3 lane road.
MDOT further requested the Court to establish specific civil purgable penalties for
these deadlines. (MDOT motion, p.3).
On June 7, 2011, DIBC filed its response, claiming MDOT was seeking to
improperly modify the February 1, 2010 and January 10, 2011 orders and that
DIBC had plenty of time to fully comply with those orders. DIBC again challenged
the underlying facts alleging no conflict existed between the SO1 piers 11, 12, 13
and 19 and the various public roads, even though the trial court had previously
23

granted summary disposition concerning these very issues in the February 1, 2010
Order.
The hearing on the motion was scheduled for June 9, 2011. Before the
hearing commenced, MDOT filed an ex parte motion for a continuation of the
contempt proceedings for DIBC‘s continuing violation of this Court‘s February 1,
2010 Order. (Appendix 26A). MDOT pointed out that DIBC had not removed any
conflicting structures or constructed any public roads per the agreed design in
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violation of the Court‘s February 1 Order. MDOT‘s motion was supported by the
affidavit of Victor Judnic.
The hearing was held on June 9, 2011. After hearing oral argument from
both sides, the Court took MDOT‘s motion for real and meaningful relief under
advisement, 5 along with MDOT‘s motion for further contempt proceedings. The
Trial Court expressed frustration with DIBC‘s moving targets for the required work:
We are in the enforcement phase regarding this Order. The Plaintiff
MDOT has filed this motion pursuant to MCL 600611 asking for
specific dates for certain tasks to be completed. And the Court does
have authority under that statute to put in force certain requirements
in order to assure that the Court‘s Order is carried through. But under
the background and history of this case I don‘t know how practical that
will be if we set a month from now or two weeks from now for certain
tasks to be completed given the fact that the Order essentially is
asking that the Bridge company do what they‘re supposed to do
anyway, except for the narrow time lines that they‘re asking to be
attached.
And there‘s also a question regarding the sanctions that are being
asked, the monetary sanctions. I don‘t know if this is the case at this
juncture for those sanctions to be considered. I think if we look at the
case law regarding that, United Mine Workers case, the federal case
5 This motion remains under advisement.
24

that talks about the process you have to go through in order to put
those monetary sanctions in force. We‘ve talked about that before in
this case.
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We also have the Dougherty case, the Michigan case that talks about
sanctions. So I don‘t know if, if by looking at that we‘re simply
spinning our wheels. The fact of the matter is that on February 1 st ,
2010 this Court entered an Order that required the Bridge company to
comply with the contracts, the agreements and do construction in
conformity with the design that was attached to the Performance Bond
and to remove structures that were in the path of that design. So
really that, that‘s what we‘re trying to achieve. As part of that we
asked that, required that the Bridge Company submit a timetable that
– or a schedule to ensure that compliance would be made with the
February Order within one year.
Now, the Bridge Company is really questioning whether or not the
February 1 st and January 10 th Orders are being complied with. And I,
I‘m very concerned because I received a letter from Mr. Sweeney who
was one of the engineers from MDOT and he did a detailed report
regarding his assessment of what he felt was not being done insofar as
progress made to get this project completed and also reviewed and has
been reviewing the biweekly reports that are prepared.
The Court ordered that the parties meet biweekly and that we received
a report regarding progress. We wanted to know what tasks have been
planned, what tasks have been completed and the status of the other
plans, and we‘ve been receiving that. I believe we received ten
biweekly reports up until now, and looking at those reports up until
now, and looking at those reports it‘s hard to tell what if any progress
is being made.
I think if there is a problem with compliance, and there‘s some
suggestions that there is, I‘m not so sure that MCL 6001711(2) would
be the proper way to address that problem. And also if that occurs we
also need to look at the role Safeco, the insurer, the guarantor is going
to play. This project has to be completed.
In addition, there are also questions relating to the accuracy or reliability
of the, of the timetable that has been submitted with the biweekly
reports. And I‘ll just pick out a couple of examples to show. For
example, the timetable lists the start date and then they list a finish
date, and they list over a 100various tasks to be completed. Of those
100 and so tasks there are only about eight tasks left to be done, except
that those eight tasks are very large jobs that have to be taken care of.
25

The timetable lists, for example, that S02 has to be completed. In the
January, January 25th report, and that was the very first report that
we received, I believe, it gave a finish date of August 16th. The latest
report that I received, May 31st, 2011 gives a December 7 completion
date, finish date. There‘s a difference of four months, so it‘s just been
moved up four months. I don‘t know. If it‘s, if the timetables have any
meaning we can‘t have the floating.
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So your idea, Mr. Mol, of maybe nailing it down a little bit more
specifically makes some sense. We‘ve got floating dates. The
construction on the site, for example, listed under S02, 7-18-11 listed
in January, January 25th, 2011 report has now been shifted to
November 9th, 2011. So how meaningful is that report How reliable
is that report And is that simply, are we simply just going through
the motions by preparing these reports without any real intent to
comply with, with the requirements of the, of the Court's Orders.
You have submitted an ex-party request here and I‘m going to review
that to see if, if -- some movement has to be made here. We are simply
not getting the job done. I am not interested in meeting and renegotiating
the contract. I‘m not interested in doing that. I‘ve
assigned and appointed a monitor to look at what progress has been
made. There are people who are skilled and have understanding of
this project who are supposed to be meeting. They have met ten times
and we don‘t have any progress.
According to the progress report timetable we are supposed to be
halfway through. I just don‘t see the progress. Maybe I‘m mistaken.
Maybe there is something that will come out that would convince me
otherwise, but I am leaning very strongly towards signing the ex-parte
order so that we can have a hearing to decide whether or not there has
been compliance. And if there has not been compliance then the Court
will have to put in place whatever remedies will guarantee that
compliance will be, will be had in this case.
I‘m going to take this motion under advisement. I‘m not going to adopt
the, the requests that are being made because for the reason I‘ve
stated. I don‘t know if we set these schedules if it‘s going to make any
difference. We‘ve already set the schedules. We‘ve already set the
schedules and it is alleged that they haven‘t made any difference.
And then the other concern, of course, is the monetary, and I‘ll have to
do some more research regarding that. But also we need to get the
insurer. That‘s why they put the Bond up there, so if the project falls
26

apart have somebody to come in and take care of it. So they have a
responsibility, and we will look at that.
We‘re going to adjourn. I will look at the ex-parte and I‘ll sign it if I
agree with it. So if you want to stay for a few minutes, you can do that.
(6/9/2011 Motion Tr., pp. 61-66, Appendix 26B).
On June 13, 2011, the trial court issued the second Order to Show Cause to
DIBC (Appendix 27). The Order was directed to Dan Stamper, President, Detroit
International Bridge Company. Mr. Stamper was ordered to personally appear
before the Court and show cause why the Detroit International Bridge company
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should not be held in civil contempt for failure to comply with the terms and
provisions of the Court‘s February 1, 2010 Order. The June 13, 2011 Order to Show
Cause was personally served on Mr. Stamper as president of DIBC on June 21,
2011. (POS, Appendix 28). The Order to Show Cause was also served on DIBC‘s
resident agent, Pat Moran on June 16, 2011, (POS, Appendix 29), on DIBC‘s legal
counsel on June 16, 2011, (POS, Appendix 30) and on Safeco‘s counsel on June 14,
2011 (POS, Appendix 31).
d. July 8, 2011 Order.
On July 8, 2011, the trial court issued an order addressing the show cause
proceeding that had been held the previous day and the enforcement of the
February 1, 2010 Order mandating specific performance. (Appendix 32). On the
first day of the show cause hearing, DIBC presented Mr. Anderson, an engineer
employed by Defendant Safeco in this case. (7/7/11 Tr., pp. 130-131). Mr. Anderson
admitted he was not an independent expert, as he was hired by Safeco, DIBC‘s
27

surety. (7/7/11 Tr., pp. 154). Mr. Anderson candidly admitted that DIBC
constructed the S01 structure in violation of the Gateway Agreement by failing to
first submit preliminary and final construction plans to MDOT for MDOT‘s review
and approval prior to construction. He admitted that DIBC ―just went ahead and
built it‖ in violation of the agreement. (7/7/11 Tr., pp. 157-158 Appellant‘s Appendix
23). More disturbing, while Mr. Anderson testified that in his professional opinion
DIBC could still complete its portion of the project within the court ordered one
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year—what DIBC was constructing was not the agreed design, but an alternative.
(7/7/11 Tr., pp. 165-168, Appellant‘s Appendix 23).
At the end of the hearing day, the Court indicated its continuing concerns
about whether the project would be completed by the Court ordered deadline:
THE COURT: We‘re going to adjourn this matter so that you can
complete your presentations.
This project was supposed to have been completed in 2008. We have
approximately 180 days left to complete the project, and now I‘m not at
all sure that given what we have been through, our experiences in this
case, that that‘s going to be sufficient time to achieve our goal,
although it appears that some things are happening. What I want to
do, I think that the insurance company Safeco is going to have to take
a greater role in this, play a larger part in this.
For the adjourned hearing, matter of fact, within 14 days from this,
from this date I want Safeco to present a detailed plan that they may
implement in order to take care of the obligations that are covered by
the Performance Bond, and that should be given to the Bridge
Company as well as MDOT, and responses to that can be given, should
be given within 14 days after receipt. I‘m going to prepare an order
incorporating all of this.
28

Also I want Mr. LaCross to prepare a detailed progress report relating
to the status of S01, S02, S03, the Fort Street M-65 truck route, the
emergency access road, the four/three-lane road that carries traffic to
Canada and also the S-32 bridge, and I want that report by August 8 th .
(7/7/11 Tr., pp. 176-177 Appellant‘s Appendix 23).
Accordingly, in order to evaluate the possibility of greater involvement by the
bonding company, Safeco, the Court issued an Order requiring Safeco to present a
detailed plan for Safeco to complete DIBC‘s portion of the project covered by the
bond. The Court also ordered DIBC to submit a detailed explanation regarding the
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status of certain roads and structures.
e. August 11, 2011 Opinion and Order.
On July 18, 2011 DIBC filed a motion seeking to force MDOT to open its
inbound freeway ramps. DIBC alleged its construction of the S02 ramp was at a
standstill unless MDOT either opened its freeway ramps or immediately granted
DIBC an easement over state land to complete construction.
On August 2, 2011 MDOT filed its response opposing DIBC‘s motion. MDOT
pointed out DIBC was not constructing the agreed design as ordered by the Court in
the February 1, 2010 Order, but rather an alternate unapproved conflicting design.
Oral argument was held on August 5, 2011. At the hearing, DIBC
represented it was now not seeking a permanent interest in MDOT‘s property—an
easement—but rather only a temporary permit to use state land. MDOT indicated
that if that was so, all DIBC had to do was to file a proper permit application.
29

On August 11, 2011, the Court issued its Opinion and Order pursuant to
MCL 600.611. (Appellant‘s Appendix 24) The Court again expressed its concern
with DIBC‘s failure to comply with the Court‘s February 1, 2010 specific
performance order:
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In the introduction to this motion DIBC points out that in the last 60
days, it has greatly increased the pace of required construction within
Part A of the Gateway Project. Notwithstanding the recent accelerated
pace of construction, the completion date for this project expired over
two years ago. The April 23, 2004 Agreement slated completion of the
project for 48 months after the date of the agreement. The court
records clearly indicate that for a time starting in late 2009 up until
the recent surge in construction, DIBC performed virtually no work on
Part A. DIBC‘s evasion of construction activities continued even after
this Court entered an Order on February 1, 2010 specifically directing
DIBC to commence construction.
MDOT has suggested that DIBC has filed this motion in an attempt to
revise the agreement. Dan Stamper‘s letter and accompanying
drawings on July 8, 2011, lends some credence to the notion that DIBC
plans to alter the design for an access road. If that is true, it would be
a violation of the Agreement and the Orders of the Court. What is
clear is that there is no basis for DIBC‘s claim that unless this motion
is grated it will not be able to complete S02. That claim is in direct
contradiction to testimony that has been given at various hearings
conducted by this Court relating to the Gateway Project. There are
options available to DIBC, including filing an application for a permit
to temporarily use State property that will allow it to complete S02
without the opening of the ramps or granting it an easement. This is
not an excuse for not complying with this Courts Orders of February 1,
2010 and January 10, 2011.
It is also important to note that stepped up construction activities do
not necessarily indicate compliance with the agreed design. For
example, DIBC claims that S01 is done yet the C-1 drawing of the
agreed design requires the construction of a four lane road that
proceeds in a southerly direction under S01. The records in this case
show that S01 has been constructed at variance with the design in
Exhibit E plans to the Performance Bond. Piers 11, 12, and 13
conflicts with the required four lane road for outbound traffic to
Canada. Construction must proceed in conformity with the agreed
30

design in the Exhibit E plans to the Performance Bond. (8/11/11
Order, pp. 5-6 Appellant‘s Appendix 24).
In addition the Court again noted DIBC‘s S01 piers 11, 12 and 13 were
constructed in conflict with the four lane road, and needed to be corrected. (8/11/11
Order, p 6, Appellant Appendix 24). While the Court rejected all of DIBC‘s claims,
the Court ruled that if DIBC filed a permit application, MDOT was to facilitate the
processing of the application for the temporary use of the property to complete the
S02 construction. The Court further ordered DIBC to immediately convey to MDOT
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the customary easement for highway purposes to enable MDOT to construct S32.
Finally, the Court ordered DIBC to submit comprehensive construction plans to
MDOT for all of the components remaining to be constructed in accordance with the
agreed design including the access road and special return routes. (8/11/11 Order at
6-7, Appellant‘s Appendix 24).
f. September 1, 2011 Adjournment of Hearing Order.
On September 1, 2011 after the second full day of show cause hearings, the
Court issued an order rescheduling the continuing hearing and addressing DIBC‘s
president‘s refusal to recognize his obligation to construct its portion according to
the agreed design in Exhibit E. (Appendix 33). At the hearing, DIBC president Mr.
Stamper testified that DIBC does not intend to construct the roads as depicted in
Exhibit E‘s overall site sheet C-1. (9/1/11 Tr., pp. 152-153, Appellant‘s Appendix 3).
Accordingly, the Court issued its order specifically reminding DIBC that the overall
31

site plan sheets C-1 6 in Exhibit E depict the configurate of the components that
DIBC is required to construct:
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During the hearing, the testimony elicited by both parties has often
produced extraneous information that will have no bearing on the
inquiry that is the focus of this hearing. The issue presented by this
Order to Show Cause is whether DIBC complied with the February 1,
2010 and January 10, 2011 Orders of this Court. More particularly,
has DIBC complied with the November (sic) 23, 2004 Agreement
between MDOT and DIBC, Exhibit E of the Performance Bond, and
the Maintenance Agreement. The Project Site Plan (C-1 drawing),
shows the configuration of the components required to be constructed
by DIBC. With the exception of any agreed upon changes to the design
by the parties, conformity with the C-1 drawing is required. (9/1/11
Order, pp. 1-2 Appendix 33).
g. November 3, 2011 Opinion and Order—Second
Contempt
Pursuant to the trial court‘s June 13, 2011 Order to Show Cause, evidentiary
hearings were held on July 7, September 1, and October 3 and 4, 2011. DIBC called
its engineering consultant Mr. LaCross, Safeco‘s engineering consultant Mr.
Anderson, Mr. Judnic, an engineer with HNTB, MDOT‘s design consultants for this
project, and Mr. Sweeney, MDOT‘s design engineer to testify. DIBC further had its
president, Mr. Stamper, testify over the course of two days. (9/1/11 Tr., p. 133,
Appellant‘s Appendix 3 and 10/3/11 Tr., p. 37, MDOT Appendix 34). At the
conclusion of the evidentiary hearing the Court heard oral argument from both
sides. (10/5/11 Tr., Appendix 35). The Court further requested each side submit
6 This sheet C-1 is the agreed design referenced in MDOT‘s complaint (Complaint
87 and Complaint Exhibit 20) and MDOT‘s Motion for Summary Disposition
which was granted by the Court in the February 1 Order.
32

proposed findings, recommended conclusions, and proposed remedies, limited to 10
pages. (10/5/11 Tr., pp. 61-62).
On October 21, 2011, MDOT and DIBC filed their proposed findings of fact,
recommendations and remedies. (MDOT, Appendix 36; DIBC; Appendix 37).
MDOT requested the appointment of a receiver; DIBC proposed no remedy. Since
the proposed findings of fact, recommendations and remedies were limited to 10
pages, in order to fully brief the issue of the possible appointment of a receiver, on
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October 24, 2011 MDOT filed a motion and supporting brief for the appointment of
a receiver. (Appendix 38). On October 31, 2011 DIBC and Safeco filed responses.
On November 3, 2011 the Court issued its decision.(Appellant‘s Appendix 6).
The Court found DIBC was not constructing its portion of the project—the public
roads directly connecting the Ambassador Bridge to the interstate freeways—in
accord with the agreed design. In fact, the Court found just the opposite—DIBC
was continuing to construct in conflict with the approved design in the Court‘s
orders:
In addition, DIBC has prepared plans for parts of the remaining
construction that do not conform to the requirement of the Order of the
Court. However, DIBC remains steadfast in its insistence that the
construction and prepared plans are in compliance with the February
1, 2010 Order of the Court. The conduct and statements of DIBC
confirm the fact that DIBC is not presently complying and does not
intend to comply with the Order of this Court. DIBC has repudiated
the February 1, 2010 Order of this Court. Mr. Stamper‘s claim that
DIBC submitted plans to MDOT that were not timely objected to is at
odds with the statements of Mr. Anderson, engineer for the security
firm employed by Safeco, Mr. LaCross Project Manager for DIBC, and
the other evidence in the case. DIBC did not submit construction plans
to MDOT for S01 prior to construction. DIBC has requested that
MDOT approve as-built construction plans for S01 under the
33

provisions of Section 8 of the Gateway Agreement. However, there is
no provision for approval of as-built construction plans in Section 8 of
the Gateway Agreement. The Gateway Agreement requires that each
party submit preliminary and final construction plans for review and
approval before the start of construction. DIBC has not complied with
that requirement. As a result of DIBC‘s failure to provide preconstruction
plans, the construction of S01 is at variance with C-1.
Some of the S01 piers are in direct conflict with the 4 lane road under
S01.
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The evidence shows that DIBC has made several design changes that
have not been approved by MDOT and built unapproved construction
that is in conflict with the approved contract design and the Order of
this Court. In addition, DIBC has not constructed or corrected various
components as required by the February 1, 2010 Order of this Court.
The list includes the following items that are not in compliance with
the February 1, 2010 Order of this Court.
1. The location of pier 19 interferes with the path of the truck road
required by the Performance Bond and Maintenance Agreement.
2. DIBC has not constructed the two-lane truck road from the truck
plaza to S02.
3. DIBC has not submitted construction plans to re-align the three
piers of S01 that were constructed in conflict with the four-lane road.
4. DIBC‘s plans for the Access Road do not conform to the
requirements of the February 1, 2010 Order of this Court.
5. DIBC has not constructed the north or south special return routes
required by the Maintenance Agreement.
6. The design of 21 st Street does not satisfy the requirements of the
Plans attached to the Performance Bond.
7. DIBC has not conveyed the customary easement for highway
purposes as required by the August 11, 2011 Order of the Court.
(11/3/11 Order, p. 10, Appellant‘s Appendix 6).
The Court further found that DIBC is not presently complying and does not
intend to comply with the Court‘s orders—thereby impairing the authority and
impeding the functioning of the Court:
34

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The evidence shows that DIBC is not presently complying and does not
intend to comply with the Order of this Court. DIBC has not
constructed S01 in conformity with C-1 which is part of the plans
attached to the Performance Bond. DIBC has not constructed the 4
lane road under S01, the truck road and the access road as required by
the February 1, 2010 Order of this Court. Further DIBC has not
submitted construction plans to bring the nonconforming construction
into compliance with the Order of this Court. The conduct of DIBC
outside of the view and presence of the Court has made ineffectual
efforts to obtain compliance with this Court‘s Order of February 1,
2010. DIBC‘s conduct has served to impede the implementation of the
Order of this Court and impair the authority of the Court. DIBC has
chosen to build the nonconforming construction and prepared
nonconforming construction plans instead of complying with the plans
attached to the Performance Bond and the Maintenance Agreement.
The Court records contain the Order of the United States District
Court rejecting DIBC‘s second attempt to remove this matter to the
that Court. The language used in that Order aptly reflects the
continuing decision of DIBC to impede the enforcement of this Court‘s
Order. The Judge of the United States District Court stated the
following in his Order of November 5, 2010:
Considering this Court‘s more than thirty-three years as a judicial
officer, DIBC may be entitled to its recognition as the party who has
devised the most creative schemes and maneuvers to delay compliance
with a court order. DIBC‘s schemes fail, however, as they lack support
in the law of this Circuit.
The conduct of DIBC that resulted in its failure to comply with the
February 1, 2010 Order of this Court occurred outside of the view and
presence of the Court. DIBC is presently under a duty to comply with
the February 1, 2010 Order of this Court and it has the ability to
comply. Over 20 months have passed since the February 1, 2010 Order
was entered without any significant effort on the part of DIBC to
comply with the Court‘s Order. The records in this case clearly show
that S01 has been constructed at variance with the design in Exhibit E
plans to the Performance Bond and the Maintenance Agreement.
Piers 11, 12, and 13 conflict with the required four lane road for
outbound traffic to Canada. The construction plans for the truck road
and the access road do not comply with the requirements of the Court
Orders. Construction plans that meet the requirements of the
approved design have not been submitted.
35

The Court has considered the evidence as well as the arguments of the
parties and finds by clear and unequivocal evidence that DIBC is
presently in violation of the February 1, 2010 Order of this Court. This
Court further finds by clear and unequivocal evidence that DIBC‘s conduct
impairs the authority and impedes the functioning of this Court.
DIBC is in civil contempt of this Court. (11/3/11 Order, pp. 11-12,
Appellant‘s Appendix 6).
As a result of the Court‘s determination that DIBC was in civil contempt, the
Court addressed the issue of sanctions. First, the Court noted that the purpose of
any sanctions was to coerce compliance, and it was clear that DIBC did not intend
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to obey the Court‘s orders.
The purpose for sanctions here is to coerce compliance by DIBC with
the February 1, 2010 Order. Notwithstanding the surge in
construction initiated in May 2011, it is clear that DIBC is not and
does not intend to carry out construction in conformity with the plans
attached to the Performance Bond and the Maintenance Agreement. As
the United States District Court Judge correctly pointed out, DIBC has
devised the most creative schemes and maneuvers to delay compliance
with a Court Order.
The tactics used by DIBC have rendered useless any efforts to obtain
compliance with the February 1, 201 Order of this Court. The actions
of DIBC have served to hinder and delay the enforcement of the Order
of this Court. (11/3/11 Order, p. 12).
The Court then served notice to DIBC and its officials that it was considering
a number of possible coercive civil sanctions, including imprisonment:
The Dougherty case and MCL 600.1715(2) indicate that in civil
contempt cases where there is an omission to do what is still within
the contemnor‘s power to do, imprisonment may be imposed until he
performs or no longer has the power to perform. (11/3/11 Order, p. 12,
Appellant‘s Appendix 6).
* * *
Financial sanctions as well as imprisonment may be imposed as an
option. (11/3/11 Order, p. 12, Appellant‘s Appendix 6)
36

The other possible coercive civil sanction the Court identified included: (1) financial
coercive sanctions; (2) requiring Safeco, the surety to assume responsibility and
complete construction; (3) have MDOT take over and complete the construction; (4)
have another construction company complete DIBC‘s portion; or (5) appoint a
receiver over DIBC with full authority to complete the construction.
h. December 13, 2011 Opinion and Order of the Court.
Incredibly, on November 23, 2011 less than three weeks after the Court
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issued its November 3, 2011 Order finding DIBC in contempt for failing to comply
with the Court‘s February 1 Order, DIBC filed a motion requesting an order finding
that it had substantially completed its construction of the project. DIBC further
requested the trial date be scheduled to determine damages.
On December 13, 2011 the trial court denied DIBC‘s motion. (Appellant‘s
Appendix 29). The Court found DIBC‘s motion was merely a motion for
reconsideration that rehashed the same issues on which the Court had already
ruled:
Michigan Department of Transportation (MDOT) filed this case on
June 24, 2009, seeking specific performance of the contract and
damages relating to al alleged breach of the contract by DIBC. On
October 29, 2009 and November 13, 2009, MDOT filed motions for
summary disposition seeking specific performance on the contract. On
February 1, 2010, this Court granted MDOT‘s summary disposition
motion for specific performance of the contract. On April 27, 2010, this
Court issued an Order to Show Cause requiring Dan Stamper,
President of the DIBC, to appear before this Court on May 10, 2010
and show cause why the DIBC should not be held in civil contempt for
failure to comply with the terms and provisions of the Court‘s Order of
February 1, 201. On January 10, 2011, this Court found DIBC in civil
contempt for failing to comply with the February 1, 2010 Order. DIBC
37

was sanctioned and again ordered to comply with the February 1, 2010
Order. On June 9, 2011, MDOT filed a motion pursuant to MCR
3.606(A) for relief as a result of the alleged continuing failure of DIBC
to comply with the February 1, 2010 Order. On November 3, 2011,
DIBC was again found in contempt for its failure to comply with the
February 1, 2010 Order.
* * *
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DIBC‘s motion merely rehashes the same issues that have been ruled
on by the Court. DIBC has not demonstrated a palpable error by
which the Court and the parties have been misled. There is no basis
for a finding that DIBC has completed its performance pursuant to the
February 1, 2010 Order of this Court. This matter is not ready for a
trial on the issue of damages at this time. The damages cannot be
accurately determined until DIBC has completed its obligations under
the Order of this Court. A trial date will be established after DIBC has
fully complied with the February 1, 2010 Order. (12/13/11 Order, pp.
1-2, Appellant‘s Appendix 29).
ARGUMENT
I. This Court lacks jurisdiction to review the merits of the trial court’s
February 1, 2010 opinion and order.
A. Analysis
Albeit couched in terms of contempt, Appellants‘ challenge is an untimely
attack on the trial court‘s February 1, 2010 opinion and order. Although Appellants
contend that the order is not ―definite‖ and ―specific‖ so as to sustain a contempt
finding, a fair reading of the brief indicates that Appellants‘ challenge to the
―specificity‖ of the order is little more than a thinly-veiled attack on the order‘s
merits. That is, Appellants can easily ascertain what they have been ordered to
perform, but they happen to disagree with those requirements.
This is DIBC‘s sixth attempt (at least) to seek interlocutory appellate review
of the merits of the February 1, 2010 order:
38

DIBC Filing
Disposition
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COA Case No. 296567—Emergency
Application for Leave to Appeal
MSC Case No. 140991— Emergency
Application for Leave to Appeal
COA Case No. 302330—Delayed
Application for Leave to Appeal
COA Case No. 307306—Application for
Leave to Appeal
COA Case No. 307382—Claim of Appeal
Application denied for ―failure to
persuade the Court of the need for
immediate appellate review.‖ (3/17/10
Order)
Application denied because the Court
was ―not persuaded that the questions
presented should be reviewed by this
Court.‖ (5/28/10 Order)
Application denied for ―failure to
persuade the Court of the need for
immediate appellate review.‖ (3/18/11
Order)
Application denied for ―failure to
persuade the Court of the need for
immediate appellate review.‖ In
addition, ―[o]n the Court‘s own motion,
Issue II of the application, which
pertains to the trial Court‘s February 1,
2010, order is STRICKEN.‖ (1/10/12
Order)
Dismissed for lack of jurisdiction
because, inter alia, ―even if the February
1, 2010, order were considered the final
order as defined in MCR 7.202(6)(a)(i),
the appeal is not timely with respect to
this order. See MCR 7.204(A).‖
(12/20/11 Order)
In addition, DIBC twice attempted to remove this case to federal district
court, prompting a federal district judge to describe DIBC as ―the party who has
devised the most creative schemes and maneuvers to delay compliance with a court
order.‖ Mich. Dep’t of Transp. v Detroit Int’l Bridge Co., No. 10-13767 (11/5/10 Op.
& Order, p.3) (Appendix 15).
This Court lacks jurisdiction to review the February 1, 2010 opinion and
order. An appeal of right from a final judgment must be taken within 21 days after
39

the order enters. MCR 7.204(A)(1)(a). This time limitation is jurisdictional. MCR
7.204(A). An application for leave to appeal must also be filed within 21 days after
the order enters. MCR 7.205(A)(1). A party may also file a delayed application for
late appeal, but it must do so within 12 months of the order‘s entry. MCR
7.205(F)(3).
A challenge to the February 1, 2010 order, whether by right or by application,
is thus untimely, as that challenge needed to be filed by March 1, 2010. The current
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application is untimely by over 22 months. Moreover, a delayed application needed
to be filed no later than February 1, 2011, and Appellants are nearly a year tardy on
that front too.
As this Court has previously determined, it lacks jurisdiction to consider the
merits of the trial court‘s February 1, 2010 order, because any challenge to that
order is untimely at this juncture. Those portions of Appellants‘ brief challenging
that order should be stricken for want of jurisdiction. See 1/10/12 Order, COA Case
No. 307306; 12/20/11 Order, COA Case No. 307382.
Finally, setting aside the jurisdictional issue would not alter the outcome:
[I]t is settled that issues previously raised and addressed by this Court
in an interlocutory appeal are binding on us in subsequent appeals, the
facts remaining materially the same. Marysville v Pate, Hirn & Bogue,
Inc, 196 Mich. App. 32, 33; 492 N.W.2d 481 (1992); People v Freedland,
178 Mich. App. 761, 770; 444 N.W.2d 250 (1989). Here, it is undisputed
that the facts remained materially the same throughout this lengthy
dispute. [Int‘l Union, United Auto. Aerospace & Agric. Implement
Workers, Local Union 6000 v. State, 211 Mich App 20, 27; 535 NW 2d
210 (1995)]
Thus, even if the Court had jurisdiction to review the merits of the February
1, 2010 order, it would be bound by prior panels‘ rulings.
40

II.
The trial court appropriately sanctioned DIBC corporate officials
Moroun and Stamper after proper notice and an opportunity to be
heard.
A. Standard of Review
Whether due process has been provided to a contemnor is a question of law,
subject to review de novo. A trial court‘s findings in a contempt proceeding are
reviewed for clear error and must be affirmed if supported by competent evidence.
The appellate court may not weigh the evidence or the credibility of the witnesses in
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determining whether there is competent evidence to support the findings. Davis v
Henry (In re Contempt of Henry), 282 Mich App 656, 668 (2009).
B. Analysis
Messrs. Moroun and Stamper decry that they cannot be held responsible for
DIBC‘s violation of the trial court‘s orders because shareholders, officers and
directors are legally distinct from a corporation. (Appellant‘s Brief, p 12). But the
Michigan Supreme Court has made it abundantly clear: ―the statement that a
corporation is an artificial person or entity apart from its members is merely a
description in figurative language of a corporation viewed as a collective body; a
corporation is really an association of persons and no judicial dictum or legislative
enactment can alter this fact.‖ Paul v University Motor Sales Co, 283 Mich 587, 602
(1938). The abstraction of the corporate entity should never be allowed to bar out
and pervert the real and obvious truth, stating:
A corporation will be looked upon as a legal entity, as a general rule,
and until sufficient reason to the contrary appear; but when the notion
of legal entity is used to defeat public convenience, justify wrong,
41

protect fraud, or defend crime, the law will regard the corporation as
an association of persons.
The fiction that the corporate existence and corporate functions are
distinct from that of the stockholders is introduced for convenience and
to subserve the ends of justice; but when invoked in support of an end
subversive of its policy, it should be, and is, disregarded by the courts.
[Id.]
The trial court found that Manuel ―Matty‖ Moroun, Dan Stamper, and
Matty‘s son Mathew were the key decision makers at DIBC, with the responsibility
to ensure that DIBC fully complies with the order of the court and that they have
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the power to do so. (1/12/12 Opinion & Order, p 4, 5). (Appellant‘s Appendix 1).
Appellants argue that there is nothing in the record supporting the court‘s finding
that Mr. Moroun is a decision maker regarding the Gateway Project or DIBC‘s
compliance with court orders. (Appellant‘s Brief, p 8). But there is abundant
competent record evidence.
Mr. Moroun concedes that he is a board director of DIBC and that his trust is
a minority shareholder in DIBC Holdings, which owns DIBC. (Appellant‘s Brief, p
4). But he fails to disclose to this Court that he is also a board director of DIBC
Holdings (See 12/20/2012 MDOT Response Motion to Excuse Moroun, Exhibit 3).
Furthermore, he does not contest that his living trust holds the majority of voting
shares in DIBC Holdings, (1/12/2012 Hearing on Motion to Excuse Moroun, TR p 9)
(Appellant‘s Appendix 9)., nor does he assert he does not retain control over his
living trust. As Mr. Justice Brandeis declared in Bilokumsky v Tod, 263 US 149,
153-154 (1923), ―Silence is often evidence of the most persuasive character.‖
42

It is clear that DIBC does not observe corporate formalities. When
questioned about his authority over the Gateway Project, DIBC‘s President Dan
Stamper first claimed that he requested a clarification from the Board which gave
him a letter (not offer into evidence) giving him the authority for the day-to-say
management of the Gateway Project; if anything outrageous comes in, into play,
that I have to go back to the Board with.‖ (9/01/11 2011 Show Cause Hearing Tr p
141) (Appellant‘s Appendix 9)..
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Yet on cross-examination he, we not sure if he was a director of DIBC,
(he is Appellant‘s Brief, p 30), could not name the directors of DIBC‘s board, and
admitted that he was actually a director of CenTra, and answers to the CenTra
board, which consists of Matty, Mathew and Nora Moroun (Matty‘s wife.) (9/01/11
Show Cause Hearing, Tr pp. 148-152) (Appellant‘s Appendix 9)..
The trial court did not impose sanctions on Mr. Moroun or Mr. Stamper in
their individual capacity, but rather due to their control of DIBC. Mr. Moroun
admitted this in his reply brief before the trial court where he stated: ―Mr. Moroun
has not been subpoenaed to appear in his individual capacity relative to the Court‘s
sanction determination.‖ (Mr. Moroun‘s January 9, 2012 Reply in Support of Mot to
Excuse Non-party Manuel J. Moroun p 2). (Appellant‘s Appendix 8). Appellants
now claim the opposite.
The United States Supreme Court has held that when board executives fail to
perform a corporate duty, ―they, no less than the corporation itself, are guilty of
disobedience and may be punished for contempt.‖ United States v Wilson, 221 US
43

361, 366, 55 L Ed 771, 31 S Ct 538 (1911). In terms of fundamental due process
rights, this case is indistinguishable from the long line of cases invoking the
equitable principle that ―whenever an injunction, whatever its nature may be, is
directed to a corporation, it also runs against the corporation‘s officers‘, in their
corporate capacities.‖ United States v Hochschild, 977 F2d 208, 211 (6th Cir. 1992),
citing 10 W Fletcher, Private Corporations § 4875 (1970 ed.) and opinions of four
other United States Circuit Courts of Appeal. Under Michigan‘s court rules, if a
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party corporation is enjoined, the injunction is binding also on its non-party officers,
agents, servants, employees, and attorneys, and on those persons in active concert
or participation with them who receive actual notice of the order. MCR 3.310(C)(4).
1. Appellants had full notice of the show cause hearing and
possible imposition of civil coercive sanctions.
Appellants claim that they had no notice that they may be at risk for DIBC‘s
contempt. But as the United States Supreme Court said long ago, ―[a] command to
the corporation is in effect a command to those who are officially responsible for the
conduct of its affairs.‖ Wilson, supra, 221 US at 376. Citing Wilson, the Texas,
Supreme Court aptly held:
Since a corporation is capable of violating a court order only if its
agents act or refrain from acting, it follows that an order directed at a
corporation is binding on agents authorized to act on its behalf,
whether specifically named in the order or not. Were this not true,
entities could delegate their disobedience to physical actors who, since
they would be beyond judicial power, would have no reason to
recognize or obey it. (Ex parte Chambers, 898 SW2d 257; 38 Tex Sup J
448 (1995(attached).
44

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Both Mr. Moroun and Mr. Stamper received notice that the corporation they
controlled was subject to a show cause contempt hearing and that the possible
coercive civil sanction included imprisonment. Mr. Stamper himself had previously
been imprisoned in his official capacity as president of DIBC as the result of the
trial court‘s first finding of contempt (January 10, 2010 contempt order). Mr.
Moroun admits that in his director capacity, he has been informed of the status of
the Gateway Project and the legal proceedings. (12/12/2011 Motion to excuse nonparty
Manuel J. Moroun at p 4 (Appellant‘s Appendix 7).
The corporate officials were further given full notice of the show cause
contempt proceedings when the trial court issued its June 13, 2011 Order to Show
Cause where Mr. Stamper was once again ordered to appear and show cause why
DIBC should not be held in contempt. The order was personally served on Mr.
Stamper and served on DIBC‘s corporate agents, Pat Moran. (Appendix 28, 29).
The corporate officials cite no authority for holding that they were
individually entitled to notice of the contempt proceedings, when the proceedings
were directed to the corporation over which they exercise control, not to them
personally. They claim that In re Contempt of Auto Club Ins Assoc, supra, stands
for that proposition, asserting, ―[n]otably and understandably, the rule does not
treat notice to an alleged contemnor as notice to the alleged contemnor‘s agents or
employees.‖ Appellant‘s Brief at p. 5. But that case does not stand for that
proposition, rather, for the polar opposite, that notice directed to an individual
employee is not notice to the corporation.
45

Notice was again given in the November 3, 2011 Opinion and Order, where
after finding DIBC in contempt, the trial court specifically indicated that it was
considering the option of financial sanctions plus imprisonment as coercive civil
sanctions for this contempt (November 3, 2011 Opinion and Order, p 12).
(Appellant‘s Appendix 6). The court then ordered DIBC‘s owner Mr. Moroun and
the top corporate official, Dan Stamper, to appear for the hearing on January 12,
2012 to determine sanctions. Messrs. Stamper and Morouns‘ attendance at the
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hearing confirms they had notice and the Motions for Release Pending Appeal that
they had already prepared (1/12/12 TR pp 20-21) (Appellant‘s Appendix 9) confirm
they had notice they might be imprisoned.
2. Appellants had a full opportunity for hearing.
The corporate executives also claim they had no opportunity for a hearing.
Moroun, as owner and director, and Stamper, as director and corporate president of
DIBC, were given a full opportunity for an evidentiary hearing pursuant to the
Court‘s June 13, 2011 Order to Show Cause. Evidentiary hearings were held on
July 27, 2011, September 1, 2011, and October 3, 4, and 5, 2011. In addition, Mr.
Stamper, as President of DIBC, specifically testified at these show cause contempt
hearings (See September 1, 2011 Transcript and October 3, 2011 Transcript).
(Appellant‘s Appendix 9, Appendix 34). Mr. Moroun as a Director and Owner of
DIBC was well aware of these hearings. Mr. Stamper testified that he answered to
the Board of Centra, specifically naming Mr. Moroun. (September 1, 2011
Transcript at pp. 151-152.) In addition, Mr. Moroun specifically admitted that he
46

was aware of the Gateway Project and the legal proceedings. (Motion to Excuse
Non-Party Manuel J. Moroun from Appearance at the January 12, 2012 hearing at
p 4.) (Appellant‘s Appendix 7). Appellants had the opportunity for a hearing and
an opportunity to address the contempt of the corporation they control.
―[I]n a civil contempt proceeding, the accused must be accorded rudimentary
due process, i.e., notice and an opportunity to present a defense, and the party
seeking enforcement of the court‘s order bears the burden of proving by a
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preponderance of the evidence that the order was violated.‖ Porter v Porter, 285
Mich App 450, 456-457 (2009). The accused in this case is the DIBC corporation. It
is uncontested that DIBC received notice and an opportunity to present a defense
per MCR 3.606.
450.1261(b).
A corporation is a person for purposes of judicial proceedings. MCL
Moreover, Stamper and Moroun individually had opportunity to defend. Mr.
Stamper testified at the show cause hearings and Mr. Moroun exercised opportunity
to defend though filing a motion to be excused from attending the January 12 th
hearing, the reply, and argument January 12 th . He is entitled to no further
opportunity for a hearing.
III.
The trial court’s imprisonment of DIBC officials was not outside the
range of principled outcomes in light of DIBC’s refusal to comply
with the court’s order for nearly two years.
A. Lack of preservation
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On appeal, the corporate officials claim the trial court did not impose the
appropriate sanction and that the trial court is going to keep them imprisoned until
the individuals responsible for the actual construction of the Gateway Project
complete their work. (Appellant‘s Brief, p 23, 24). These issues were not raised
before the trial court even though Appellants filed an emergency motion for release
and brief with the trial court following the January 12, 2012 order. This is a
substantial flaw in this appeal; the trial court ordered that Mr. Moroun and Mr.
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Stamper‘s imprisonment would cease ―when they no longer had the power to comply
with the February 1, 2010 Order of this Court‖ or DIBC has fully complied with the
order. (1/12/12/ Opinion & Order, p 6.) (Appellant‘s Appendix 1). This is directly
contradictory to the appellant‘s claim that the court intends ―that Mr. Moroun and
Mr. Stamper remain incarcerated until the project is completed, not just until they
have done all they can do to see to its completion.‖ Appellant‘s Brief, p 23. ―There
is something unseemly about telling a lower court it was wrong when it never was
presented with the opportunity to be right.‖ Napier v Jacobs, 429 Mich 222, 228-
229; 414 NW2d 862 (1987).
Moreover, imposing the preservation requirement avoids the untenable
position of permitting the losing side to second-guess its tactical decisions after they
do not produce the desired results. Walters v Nadell, 481 Mich 377, 388 (2008).
B. Standard of Review
The trial court‘s issuance of a contempt order is reviewed for an abuse of
discretion. ―The abuse of discretion standard recognizes that there will be
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circumstances where there is no single correct outcome and which require us to
defer to the trial court‘s judgment; reversal is warranted only when the trial court‘s
decision is outside the range of principled outcomes.‖ Porter v Porter, 285 Mich App
450, 455; 776 NW2d 377 (2009).
C. Analysis
―Proceedings for civil contempt are instituted to preserve and enforce the
rights of private parties to suits and to compel obedience of orders and decrees made
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to enforce those rights and administer the remedies to which the court has found
the parties are entitled.‖ Walker v. Henderson (In re United Stationers Supply Co),
239 Mich App 496; 608 NW2d 105 (2000). Nearly two years ago, the trial court
determined that MDOT and the People of the State of Michigan were entitled to
specific performance of the Gateway Agreement and ordered that DIBC build the
project according to the design it agreed to, not according to the design it has
subsequently found more favorable to its interests. Since April of 2010, MDOT has
invoked the trial court‘s civil contempt authority to enforce its rights and compel
DIBC to comply with the court‘s orders. The trial court has invoked ever increasing
measures to compel compliance with its orders, to no avail.
The corporate officials assert that the trial court‘s order should be reversed,
claiming the court did not invoke ―the least possible power adequate to the end
proposed,‖ 7 citing In re Meizlish, 72 Mich App 732, 740; 250 NW2d 525 (1976). But
7 This phrase first appeared in the United States Supreme Court opinion in
Anderson v Dunn, 19 US 204, 231; 5 L Ed 242 (1821) where the court found that
49

In re Meizlish was a criminal contempt proceeding, and Michigan courts have
referenced this requirement in only three other criminal contempt opinions. In Re
Contempt of Henry Dudzinski, 257 Mich App 96; 667 NW2d 68 (2003), In Re
Contempt of Henry Scharg, 207 Mich App 438; 525 NW2d 479 (1994); People v Kurz,
35 Mich App 643; 192 NW2d 594 (1971). There does not appear to be any binding
precedent that Michigan‘s appellate courts are to apply this standard upon review
of civil contempt proceedings. Nonetheless, the corporate officials have not shown
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that there was a lesser sanction than imprisonment that would accomplish the trial
court‘s purpose of getting the Gateway Project completed.
When considering a measure to coerce compliance, the court must exercise
its discretion in considering ―the character and magnitude of the harm threatened
by continued contumacy, and the probable effectiveness of any suggested sanction
in bringing about the result desired.‖ In re Contempt of Dougherty, 429 Mich 81, 98;
413 NW2d 392 (1987), citing United States v United Mine Workers, 330 US 258, 304;
67 S Ct 677; 91 L Ed 884 (1947). The trial court‘s order was not outside the range of
principled outcomes so as to constitute an abuse of discretion. Porter, supra.
The range of principled outcomes available for civil contempt is broad, and
includes the ―paradigmatic coercive, civil contempt sanction‖ of ―confining a
contemnor indefinitely until he complies with an affirmative command such as an
order ―to pay alimony, or to surrender property ordered to be turned over to a
imprisonment is the least possible power adequate to the end proposed. Corporal
punishment or death being noted as beyond the extent of punishment that could be
imposed.
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eceiver, or to make a conveyance.‖ United Mine Workers v Bagwell, 512 US 821,
828; 114 S Ct 2552; 129 L Ed 2d 642 (1994).
The trial courts in Michigan are without one of the significant tools used
throughout the rest of the country to coerce a corporation to comply with a court
order, imposition of per diem fines until there is compliance, since it has been held
that MCL 600.1715 limits monetary coercive measures to $7,500.00. In Re
Contempt of Green, COA Docket No. 252855, decided August 25, 2005. (An
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argument can be made that the monetary limit applies only in criminal contempt
proceedings as MCL 600.1715 states that ―punishment for contempt may be a fine
of not more than $7,500.00‖ and civil contempt fines are a coercive measure, not
punishment for past contumacious conduct. Additionally, although the legislature
may set punishment for criminal offenses, it has no authority to limit courts
inherent civil contempt authority. In re Contempt of Dougherty, 429 Mich 81, 91-92
n 14; 413 NW2d 392 (1987). But the trial court here recognized the $7,500
limitation as applying in this case; as MDOT is not convinced that serious per diem
fines will coerce compliance by DIBC, it reserves that argument for another day.)
The trial court looked at a number of possible outcomes for compelling
compliance with its order, going so far as inviting the parties to submit practical
recommendations for getting the project completed. MDOT noted a number of
alternatives, but ultimately proposed the appointment of a receiver over DIBC‘s
portion of the Gateway Project, who would be responsible for hiring a design firm to
complete the construction plans and a construction firm to complete the
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construction (or a joint venture formed for the sake of this project). Appendix 36,
38. DIBC vehemently opposed such a measure claiming that ―the appointment of a
receiver is a remedy of last resort and should not be used when another, less drastic
remedy exists,‖ citing Ypsilanti Charter Township v Kircher, 281 Mich App 251,
273; 761 NW2d 761 (2008). DIBC 10/31/2011 Response to MDOT Motion for
Appointment of a Receiver, p 4. (Appendix 38). DIBC did not propose other less
drastic remedies or ―principled outcomes‖ so to speak.
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When the trial court found DIBC in contempt of court for the second time, on
November 3, 2011, it set out the options it was considering to effectuate compliance
with its February 1, 2010 order, including requiring the surety to take over, having
MDOT or a construction company complete DIBC‘s portion of the project, financial
sanctions, imprisonment, or appointment of a receiver. (Appellant‘s Appendix 6).
In its January 12, 2012 Opinion and Order, the trial court set out four
options it considered to coerce DIBC to comply with its February 1, 2010 Order:
1. Require the Safeco Insurance Company (Safeco) to complete the
project.
2. Allow an independent construction company to complete the project.
3. Impose financial sanctions and order the imprisonment of the owner
and officers of the DIBC until DIBC complies with the February 1,
2010 Order.
4. Appoint a receiver to stand in the place of the owner and officers of
DIBC to make decisions to comply with the February 1, 2010 Order.
The court then analyzed each of those options and explained its reasoning for
rejecting them as inadequate to secure the Gateway Project‘s completion:
52

One of the options considered was to require DIBC’s surety Safeco to
take over the responsibility for completing the project. A default has
been taken against Safeco. However, even without the default, Safeco
as surety is liable for the responsibilities of its principle DIBC, which
includes completing the project and monetary damages. On July 8,
2011, Safeco was ordered to submit a detailed plan that may be
implemented to complete DIBC‘s portion of the Gateway Project.
MDOT as well as DIBC were given an opportunity to respond to
Safeco’s plan. A fair review of the information submitted by the parties
in response to Safeco’s plan makes it clear that this project would be
bogged down with further litigation in addition to needless delays if
Safeco was ordered to take on the construction at this time. Requiring
Safeco to take on the construction obligations of DIBC is not the best
option available at this time.
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The use of an independent contractor to complete DIBC‘s portion of the
project would also be challenging. There are funding considerations,
oversight concerns, probable litigation, as well the contractor’s need to
assess the construction requirements which could prove to be a
formidable task for a contractor new to the project. The contractor
would be required to arrange for the completion of construction
drawings for review and approval by MDOT. The assessment and
coordination of the construction needed would require interaction with
other entities resulting in further delays. The use of an independent
contractor would further delay the completion of the project and would
therefore not be the best option to use to complete the project.
The use of a receiver would likely produce many of the same problems
as those anticipated by the use of an independent contractor. At the
Court’s direction, the parties presented briefs discussing their
positions regarding the appointment of a receiver. In addition, a
hearing was conducted on December 1, 2011, at which time
representatives from MDOT, DIBC, and Safeco were allowed to make
oral presentations. Based on the information that has been presented,
it appears that the appointment of a receiver at this time would
generate a number of issues resulting in additional delays. There are
funding issues that would likely bring about additional litigation and
delays. There are also the concomitant problems of safeguarding the
funds and coordinating construction activities. The receiver would be
required to hire design consultants, develop plans for approval by
MDOT and obtain bids for construction contracts. Appointing a
receiver at this time would likely greatly prolong the time required for
the completion of the project. The appointment of a receiver at this
time would not be the best option to complete this project.
53

After careful review it appears that the use of any of the previously
discussed options at this time would result in further inconvenience for
the motoring public and the residents of the area, have an adverse
impact on international trade, and result in further litigation and
delays. [01/12/12 Opinion & Order, p 3-4].
After two months of deliberation, the trial determined that DIBC is best
equipped to complete Part A and that the decision makers at DIBC, including
Messrs. Matty Moroun, Dan Stamper, and Matty‘s son Mathew Moroun, have the
obligation and the power to ensure the completion of its portion of the Project in
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accordance with the February 1, 2010 Order. ―Despite the fact that the decision
makers at DIBC have the power to complete DIBC’s portion of the Project in
accordance with the February 1, 2010 Order, it is clear from the records of this case
that only stern actions by the Court will coerce them to fulfill their obligations.‖
1/12/12 Opinion and Order, p 5. (Appellant‘s Appendix 1). Messrs. Moroun and
Stamper have failed to establish the trial court‘s order imprisoning them until they
no longer have the power to comply with the February 1, 2010 order was an abuse
of discretion warranting reversal of the trial court‘s order of imprisonment.
IV.
The February 1, 2010 opinion and order is sufficiently “specific” and
“definite” to support the trial court’s second finding of contempt.
A. Lack of preservation
―When defense counsel clearly expresses satisfaction with a trial court's
decision, counsel‘s action will be deemed to constitute a waiver,‖ and a litigant who
waives a right may not seek appellate review as there is no error. People v
Kowalski, 489 Mich. 488, 503; 803 NW2d 200 (2011). DIBC did not preserve this
54

issue; quite the opposite, DIBC affirmatively represented to the trial court that
DIBC knows what it is suppose to build. (10/3/11, Tr., p. 126 and 10/5/11 Tr., p.57)
(Appellant‘s Appendix 34, 35).
The Corporate Officials also did not preserve this issue. They did not raise
this matter before the trial court. Plus, given that the Corporate Officials were
sanctioned in their official capacities as DIBC‘s president, directors and owner, they
are bound by their corporation‘s representatives and waiver of this issue.
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Because DIBC repeatedly admitted on the record that it understood the
requirements of the February 1, 2010 opinion and order, DIBC and its Corporate
Officials waived the right to challenge the specificity of that order.
B. Standard of Review
The standard of review of an order finding a litigant in contempt of court is
well settled, ―[t]he issuance of an order of contempt rests in the sound discretion of
the trial court and is reviewed only for an abuse of discretion.‖ In re Contempt of
Henry, 282 Mich App 656, 671; 765 NW2d 44 (2009). Reversal is warranted only
when the trial court's decision is outside the range of principled outcomes. Porter v
Porter, 285 Mich App 450, 455; 776 NW2d 377 (2009).
However, the standard of proof for civil contempt of court is not settled, as
noted in In re Estate of Chenault, unpublished opinion of the Court of Appeals,
issued August 17, 2010 (Docket Nos. 288515; 289843, 289845):
The standard of proof for civil contempt is identified in Porter, 285
Mich.App. at 457, 776 N.W.2d 377, and In re Contempt of Auto Club
Ins. Ass’n, 243 Mich.App. at 712-713, 624 N.W.2d 443, as the
55

preponderance of the evidence standard. Other cases refer to a more
stringent ―clear and unequivocal‖ evidence standard for civil contempt,
see In re Contempt of Robertson, 209 Mich.App. at 438-439, 531
N.W.2d 763, and In re Contempt of Calcutt, 184 Mich.App. 749, 757,
458 N.W.2d 919 (1990), but those cases rely on People v. Matish, 384
Mich. 568, 184 N.W.2d 915 (1971), which appears to have involved
criminal contempt.
Yet even using the more stringent standard, trial courts contempt orders
must be affirmed on appeal if there is competent evidence to support them.‖ In re
Contempt of Henry, 282 Mich App at 668. ―The appellate court may not weigh the
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evidence or the credibility of the witnesses in determining whether there is
competent evidence to support the findings.‖ Id.
C. Analysis
1. Appellants waived their right to challenge the specificity
of the February 1, 2010 opinion and order.
Appellants contend that the February 1, 2010 opinion and order is not
―specific‖ and ―definite‖ so as to serve as a basis for a finding of contempt. DIBC
presented the same argument in both its application for leave (Case No. 307306)
and its claim of appeal (Case No. 387302) in regard to the trial court‘s November 3,
2011 order. In response to DIBC‘s assertion, MDOT cited to DIBC‘s in-court
statements to the contrary, wherein DIBC repeatedly represented that it knew full
well how to comply with the order:
THE COURT: Well, let me understand what you‘re saying. Are you, is
your position that you, your client didn‘t know what it was to
construct
MR. JOHN: No, not at all. [10/3/11 Tr., p.126.]
. . .
56

There‘s been the suggestion that DIBC is complaining to your Honor
that DIBC does not know what DIBC is supposed to build. If that‘s the
interpretation given to what I said, that‘s a misunderstanding. . . .
DIBC knows what it‘s supposed to build. Your Honor said build
according to the Contract, the Agreed Design and the Maintenance
Agreement. Mr. LaCross [DIBC‘s engineer] knows what‘s in the
Performance Bond Set of Drawings. . . and we are using and relying
upon Mr. LaCross to tell us what‘s in Exhibit E. That‘s what we are
building. [10/5/11 Tr., p.57.] (Appendix 35).
Appellants cannot now challenge the specificity and meaning of an order that
DIBC specifically and repeatedly represented that it fully understood.
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2. The law of the case doctrine preludes Appellants’
challenge to the specificity of the February 1, 2010
opinion and order.
The law-of-the-case doctrine precludes a court from issuing a contrary ruling
on an issue that has already been decided in a case:
The law of the case doctrine holds that a ruling by an appellate court
on a particular issue binds the appellate court and all lower tribunals
with respect to that issue. Driver v. Hanley (After Remand), 226
Mich.App. 558, 565, 575 N.W.2d 31 (1997). Thus, a question of law
decided by an appellate court will not be decided differently on remand
or in a subsequent appeal in the same case. Id. [Ashker v Ford Motor
Co., 245 Mich App 9, 13; 627 NW2d 1 (2001).]
While a denial of leave for interlocutory appeal may not be the most common
application of the doctrine, the policy underlying that doctrine applies with equal
force here. This Court previously denied DIBC‘s application for interlocutory appeal
in Case No. 307306, involving this identical issue, for ―failure to persuade the Court
of the need for immediate appellate review.‖ In the absence of the application of the
rule, there would be nothing to stop a party from filing—as here—repeated
interlocutory appeals on the same issue.
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This Court has previously determined that it need not review the ―specificity‖
or ―definiteness‖ of the February 1, 2010 order on an interlocutory basis. That
decision is binding on this panel, and this panel should not reach a contrary
conclusion on the same issue in this case.
3. Appellants have waived this argument by not providing
any legal authority or supporting analysis.
Furthermore, Appellants have not presented any legal analysis or argument
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on this claim. Rather, they merely ―announce [their] position and leave it to this
Court to discover and rationalize the basis for the claim.‖ Groves v Dep’t of Corrs., __
Mich App__, COA Docket No. 302640, December 6, 2011.
Appellants claim that the order is not ―specific‖ and ―definite‖ enough to
sustain a contempt finding, but no effort is made to discuss the legal significance of
these terms or their applicability to contempt proceedings. The only citation on this
point, N.L.R.B. v Cincinnati Bronze, Inc., 829 F2d 585 (6th Cir. 1987), uses the
terms in passing, without comment or analysis, and provides no guidance.
Appellants do not reference any case law interpreting this requirement, whether
from Michigan courts or elsewhere. They proceed instead to attack the merits of the
February 1, 2010 order, which cannot be assailed at this juncture.
Moreover, MDOT addressed this argument at length in its response to
DIBC‘s most recent application for leave to appeal (Case No. 306307), in which
DIBC presented this exact claim. (MDOT‘s Resp. at pp. 15–19.) MDOT identified
numerous DIBC admissions and pointed out several incorrect or contradictory
58

statements made by DIBC in regard to its argument. As stated above, this Court
held that this issue did not occasion interlocutory appellate review.
In sum, Appellants have left it for this Court to investigate whether the
February 1, 2010 order is ―specific‖ or ―definite‖ enough to sustain a contempt
conviction, and they have instead once again aired their grievances with the merits
of the trial court‘s decision. Any argument regarding the ―specificity‖ or
―definiteness‖ of the February 1, 2010 order has been abandoned.
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V. The trial court did not act as both accuser and fact finder, nor has
the trial court been personally embroiled in the litigation.
A. Failure to preserve
To preserve an issue regarding disqualification, a motion must be filed within
14 days after the moving party discovers the basis for disqualification complying
with all of the requirements of MCR 2.003. Kloian v Schwartz, 272 Mich App 232,
244; 725 NW2d 671 (2006). No motion was ever filed. Nor did the corporate
officials file a Crampton motion with the trial court below raising this issue. Cain v
Dept of Correction, 451, Mich 470, 496; 548 NW2d 210 (1996), citing Crampton v
Dep't of State, 395 Mich 347; 235 NW2d 352 (1975).
A. Standard of Review
A trial court‘s factual findings concerning a motion for disqualification are
reviewed for an abuse of discretion, its application of facts to the law de novo. In re:
MKK, 286 Mich App 546, 564; 781 NW2d 132 (2009).
59

B. Analysis
The corporate officials have failed to establish any actual bias, prejudice, or
any evidence that the trial court has become personally embroiled in the litigation.
Rather, they allege the trial court has become personally embroiled in the litigation
simply where the trial court performed its duty in ruling on the various motions
pending before the Court and enforcing the Court‘s orders. It is every trial court‘s
responsibility to rule on motions filed before it and to enforce the Court‘s orders.
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This cannot constitute bias or personal embroilment.
They first allege that the trial court was acting as both accuser and fact
finder with respect to contempt, citing various criminal contempt proceedings. This
is not true. Not only is this not criminal contempt, but MDOT filed motions
requesting contempt proceedings due to DIBC‘s continuing refusal to comply with
the Court‘s orders. (See MDOT‘s June 1, 2011 Motion for Real and Meaningful
Relief, Appendix 12 and June 9, 2011 Motion for continuation of Contempt
Proceedings, Appendix 26A). The trial court was not both the accuser and fact
finder.
Next, they allege that the trial court is personally embroiled in the litigation
based on their claims that the trial court summarily sanctioned them without
affording any due process or any ability to purge the contempt. These allegations
are totally without merit as addressed above; they had full notice and an
opportunity to be heard.
The corporate officials‘ allegation of personal embroilment in the litigation,
based upon the trial court‘s ruling on three motions, is also unsupported and
60

without merit. Michigan law is clear that repeated rulings against a litigant, even
if erroneous, are not grounds for disqualification. Every court must form an opinion
as to the merits of the matter before it, and this opinion cannot constitute bias or
prejudice. Mahlen Land Corp v Kurtz, 355 Mich 340, 350; 94 NW2d 888(1959);
Cain v Dept of Corrections, 451, Mich 470, 496; 548 NW2d 210 (1996).
Moreover, their claim that they filed a Motion for Revision, Clarification
and/or Amendment of the February 1 st Order, ―so that it can understand clearly
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what it is that the Court is directing it to do in order to comply with that very vague
order‖ (Appellants‘ Brief, p 38), is disingenuous at best. That motion (Appendix 5)
claimed DIBC was not clear if the order was immediately enforceable, not that the
order did not direct DIBC as to what it was to do.
The corporate officials‘ accusation that the trial court‘s denial of DIBC‘s
motion to schedule an immediate trial is somehow a power grab to remain in control
is spurious. The February 1, 2010 Order granting partial summary disposition is
not a final order, as DIBC itself admitted in its previous appeals, and any resulting
damage will not be known until DIBC fully performs and completes construction.
These facts are not in dispute. DIBC used these facts before the Michigan Supreme
Court in an effort to persuade the Supreme Court to grant its emergency application
for leave to appeal the February 1 Opinion and Order. (DIBC‘s April 27, 2010
Emergency Application for Leave to Appeal, pp. 11-15, Supreme Court Case No.
140991). It cannot be bias, prejudice or any personal embroilment where the trial
court reached the same conclusion as DIBC.
61

Finally, the corporate officials claim the trial court used imprisonment to
coerce DIBC ―into accepting MDOT‘s interpretation of the disputed portions of the
Agreement without any appellate review by this Court.‖ (Brief, p. 39). First, the
corporate officials‘ claim concerning the lack of appellate review is false. DIBC has
fully prosecuted appeals of the February 1, 2010 Opinion and Order in COA Case
296567, SC Case 140991, COA Case 302330, and COA Case 307306. DIBC simply
cannot accept the fact that the appellate courts have disagreed with DIBC‘s
RECEIVED by Michigan Court of Appeals 1/27/2012 7:20:43 PM
allegation of error and were not persuaded to grant leave to appeal. Second, any
suggestion that the trial court is coercing DIBC to accept MDOT‘s interpretation is
also without merit. The trial court granted MDOT‘s motions for partial summary
disposition based upon the evidence presented. DIBC participated in that hearing.
The Court‘s February 1 ruling has been reviewed by this Court on numerous
occasions as well as the Michigan Supreme Court. It is not MDOT‘s interpretation;
it is a valid Court order. Third, it is axiomatic that a litigant is required to comply
with a court order unless and until it is reversed on appeal; even if the order was a
final judgment, DIBC would be required to comply with it while an appeal is
pending.
Moreover, the corporate officials have not taken any steps toward producing
evidence to the trial court that DIBC has complied with the order, or that they have
done everything they can to bring about compliance. US v Ryslander, 460 US 752,
757-758, 103 S Ct 1548; 75 LEd 2d 521 (1983). It is telling that these officials claim
it is unfair that they may be imprisoned ―beyond the time that each could possibly
62

take any action to attempt to secure DIBC’s compliance with the order.‖ Appellants‘
Brief, p 23. As they are the majority of the board of directors of DIBC, as president
and controlling shareholder, they need to do more than attempt to secure DIBC‘s
compliance, they must do everything possible to assure DIBC‘s compliance. They
should be mindful that a self-induced impossibility is not a defense; as the court
held in United States v Harris, 582 F3d 512, 520 (3d Cir NJ 2009), ―we simply
cannot countenance a situation where a contemnor's insistence on continuing his
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contumacious conduct inures to his benefit, and we surely do not believe that the
Constitution requires such a result. To the contrary, a valid order of civil contempt
does not become punitive simply because the contemnor persists in punishing
himself.‖
The United States Court of Appeals of the Second Circuit, citing Mine
Workers v Bagwell, 512 US at 828, has held that ―the length of coercive
incarceration, in and of itself, is not dispositive of its lawfulness‖ Armstrong v.
Guccione, 470 F3d 89, 110 (2d Cir NY 2006), (even when a litigant was unable to
convince the court for six years that he was incapable of complying with the order,
there was no due process violation).
The trial court, whose order has been openly defied for two years, who has
dealt extensively with DIBC and is most familiar with its delaying tactics, should be
first to determine if DIBC has complied with its order, or if the corporate officials
have done everything possible to bring about compliance.
63

The corporation officials‘ allegations of bias, prejudice and personal
embroilment are without merit. A trial court‘s performance of its duty to rule on
motions and enforce its orders does not constitute grounds for any disqualification.
CONCLUSION AND RELIEF REQUESTED
DIBC and Messrs. Moroun and Stamper, the corporate officials who
constitute the majority of the key decision makers of DIBC, were afforded notice
and an opportunity to be heard before the trial court imposed the measures it
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determined were the least adequate to accomplish the purpose of bringing about
DIBC‘s compliance with its contract and the court order. The trial court fully
considered a variety of options, all of which were within the range of principled
outcomes. Aside from incarceration, the only realistic alternative for ensuring
compliance is one that DIBC has already rejected: (1) requiring DIBC to pay into
escrow an amount sufficient to pay for the Gateway Project improvements, (2)
appointing a receiver to manage the construction, and (3) barring DIBC from
raising any further legal challenges to the receiver‘s action or the work‘s completion.
The trial court did not abuse its discretion in imprisoning these corporate officials
until DIBC complies with the court order, or they no longer have the power to
comply with the order.
64

MDOT respectfully requests that this Court affirm Judge Edwards‘ January
12, 2012 order in all respects.
Respectfully submitted,
Bill Schuette
Attorney General
John J. Bursch (P57679)
Solicitor General
Counsel of Record
RECEIVED by Michigan Court of Appeals 1/27/2012 7:20:43 PM
Dated: January 27, 2012
65
Richard A. Bandstra (P31928)
Chief Legal Counsel
/s/ Robert L. Mol
Robert L. Mol (P36898)
LuAnn Cheyne Frost (P42974)
Michael Dittenber (P72238)
Assistant Attorneys General
Attorneys for Michigan Department of
Transportation
Transportation Division
P.O. Box 30050
Lansing, MI 48909
517-373-3445