Appellees Brief - MLive.com

RECEIVED by Michigan Court of Appeals 1/27/2012 7:20:43 PM
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.
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