Birkenshaw v. City of Detroit

• Decision Date: 20 October 1981
• Docket Number: Docket Nos. 48654 and 49989-49994
• Citation: 313 N.W.2d 334,110 Mich.App. 500
• Parties: Robert BIRKENSHAW, d/b/a Bisco's Lounge, Plaintiff-Appellee, and Ioan Halmaghi, George David, Diana Huggins and Christopher Magnes, et al., Plaintiffs-Appellees, v. CITY OF DETROIT, a Michigan municipal corporation, Defendant-Appellant, and Philip Tannian, Police Commissioner of the City of Detroit, Donald Shoff, Albert Sanders and Thomas DeLore, jointly and severally, Defendants. 110 Mich.App. 500, 313 N.W.2d 334
• Court: Court of Appeal of Michigan — District of US

Page 334

313 N.W.2d 334

Robert BIRKENSHAW, d/b/a Bisco's Lounge Plaintiff-Appellee and Ioan Halmaghi, George David, Diana Huggins and Christopher Magnes, et al., Plaintiffs-Appellees, v. CITY OF DETROIT, a Michigan municipal corporation Defendant-Appellant and Philip Tannian, Police Commissioner of the City of Detroit, Donald Shoff, Albert Sanders and Thomas DeLore, jointly and severally, Defendants.

Docket Nos. 48654 and 49989-49994.

110 Mich.App. 500, 313 N.W.2d 334

Court of Appeals of Michigan.

Oct. 20, 1981.

Rehearing Denied Dec. 8, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 504] Durant & Durant, P. C., Detroit, for plaintiffs-appellees.

George W. Crockett, Jr., Acting Corp. Counsel, and Robert Horvath, Asst. Corp. Counsel, Detroit, for defendant-appellant.

Before RILEY, P. J., and CYNAR and GAGE ^*, JJ.

[110 MICHAPP 505] GAGE, Judge.

Six consolidated cases are involved in this appeal, all of which arose from the trial court's finding defendant City of Detroit guilty of criminal contempt of court.

Bisco's Lounge is an establishment which features sexually-oriented entertainment. It is owned and operated by plaintiff Birkenshaw. Plaintiffs Halmaghi, David, Magnes and Huggins were employees of Bisco's who were individually charged with fostering or participating in various acts of lewd and lascivious behavior.

In 1974, plaintiff Birkenshaw sued the City of Detroit, the Police Commissioner, the Detroit Police Department and certain police officers individually for alleged unwarranted arrest and harassment of the plaintiff himself and his customers and employees. On November 14, 1974, the trial court issued the first of three restraining orders restricting police entry into Bisco's Lounge. On April 16, 1975, the trial court issued an ex parte restraining order barring police entry except pursuant to a valid warrant or to a complaint that a felony was taking place therein. At a show-cause hearing on May 5, 1975, the trial court indicated a willingness to modify the ex parte order of April 16, 1975. However, a third restraining order, dissolving both the November 14, 1974, and the April 16, 1975, orders, was not entered until July 1, 1977.

In January 1978, Birkenshaw d/b/a Bisco's Lounge filed a petition seeking criminal contempt citations against the City of Detroit, the Detroit Police Department and various individual police officers for entering, arresting and harassing the petitioner and his employees in violation of the restraining orders. Plaintiff alleged that defendants violated the ex parte order of April 16, 1975, [110 MICHAPP 506] on ten separate occasions. Plaintiff also alleged that on July 20, 1977, defendants violated the temporary restraining order of July 1, 1977. After lengthy contempt hearings, the trial court issued an opinion on June 30, 1978, in which it concluded that although the individual police officers had not acted in contempt of court, the Detroit Police Department had wilfully and intentionally violated the restraining orders then in effect. On August 15, 1978, the trial court entered an order against the City awarding plaintiff Birkenshaw $15,000 for loss of time, reasonable attorney fees and other expenses, and an additional $3,600 plus court costs for reasonable attorney fees in the contempt proceedings.

Plaintiff then filed a motion for reconsideration and defendant City of Detroit filed a motion for a new trial or, alternatively, to modify, alter or amend the judgment. On November 15, 1978, plaintiff's motion was granted. The trial court awarded plaintiff Birkenshaw $70,784.49 for attorney fees and costs generated from defending cases resulting from police entry into Bisco's in violation of the temporary restraining orders. The court also awarded $3,600 for exemplary damages. Further, the court ordered that "all evidence, whether tangible or intangible, emanating from observations by defendant City of Detroit 'in violation of the temporary restraining order' shall be suppressed".

Defendant City of Detroit raises seven issues on this appeal. First, defendant argues that the trial court erred in ruling that the ex parte order of April 16, 1975, was not dissolved until July 1, 1977. In support, defendant posits an argument of equitable substance over form. Since the trial judge expressed his dissatisfaction with the extent and scope of the temporary restraining order and [110 MICHAPP 507] a desire for its modification on May 5, 1975, defendant submits that the order was de facto dissolved on that date. We do not agree. "The rule is well established that courts speak through their judgments and decrees, not their oral statements or written opinions." Tiedman v. Tiedman, 400 Mich. 571, 576, 255 N.W.2d 632 (1977), accord, Hosner v. Brown, 40 Mich.App. 515, 199 N.W.2d 295 (1972), LeTarte v. LeTarte, 32 Mich.App. 289, 188 N.W.2d 673 (1971). The trial court did not err in finding that the ex parte order of April 16, 1975, was not dissolved by oral pronouncement of the court on May 5, 1975. The order remained in effect until modified by a subsequent written order.

Second, defendant argues that the plaintiff's contempt action was barred by the equitable doctrine of laches. Without reaching the merits of this contention, we note that since the defense of laches was not raised in the trial court below, the issue cannot now be considered on appeal. American Electrical Steel Co. v. Scarpace, 399 Mich. 306, 309, 249 N.W.2d 70 (1976), Boden v. Renihan, 299 Mich. 226, 300 N.W. 53 (1941).

Defendant next contends that the trial court erred in finding that the City of Detroit wilfully and intentionally violated the temporary restraining orders of April 16, 1975, and July 1, 1977. The City avers that insufficient evidence was set forth to support the trial court's finding. Further, defendant argues that the trial court did not comply with GCR 1963, 517 in setting forth adequate findings of fact with respect to the alleged violation of the July 1, 1977, order.

An essential element of the crime of criminal contempt is that the defendant acted culpably, in "wilful disregard or disobedience of the authority or orders of the court". People v. Matish, 384 Mich. [110 MICHAPP 508] 568, 572, 184 N.W.2d 915 (1971). The question presented is whether there was sufficient evidence of that element from which a rational trier of fact could find defendant guilty of such beyond a reasonable doubt.

At the contempt hearings, the City argued that it could not have acted in wilful violation of the ex parte order of April 16 because its attorney had advised it as of May 5, 1975, that the order was no longer in effect. The trial court below specifically noted defendant's argument but after examination of "the overall proof, testimony and exhibits" concluded that the defendant City of Detroit wilfully and intentionally violated the restraining orders in effect. The court specifically found that plaintiff had established beyond a reasonable doubt that defendant "had knowledge of the contents and existence of the temporary restraining orders and their injunctive nature".

Under GCR 1963, 517.1, an appellate court will set aside the findings of fact of a trial judge sitting without a jury only when such findings are clearly erroneous. Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976). A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. We are not left with such a conviction and thus find no error.

We further find unpersuasive defendant's argument that there was insufficient evidence that on July 20, 1977, defendant violated the order of July 1, 1977. The July 1, 1977, order provided in part that "defendants, their agents, servants and employees, shall be and hereby are restrained from harassing the plaintiff, his employees, or patrons". [110 MICHAPP 509] A definition of harassment was attached to the order and was apparently read into the record. Defendant argues that since the definition of harassment was not part of the order, the City could not be cited for contempt for violating such. Defendant has neither cited authority nor presented policy arguments in support of this contention. It is therefore abandoned. People v. Sullivan, 97 Mich.App. 488, 491, 296 N.W.2d 81 (1980).

Defendant also argues that any injunction against "harassment" is void for vagueness. Citation to Morgan v. Detroit, 389 F.Supp. 922 (E.D.Mich.1975), and People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976), is inapposite since both cases address statutory due process challenges.

Defendant argues that the trial court's failure to set forth specific findings of fact on the alleged violation of the July 1, 1977, order constituted a violation of GCR 1963, 517. Rule 517.1 specifically provides that a court's findings "will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts". Minimal compliance with the court rule is satisfactory, provided it reveals the factual basis for the court's ultimate conclusions. Brevity alone is not fatal to a trial court's opinion. Powell v. Collias, 59 Mich.App. 709, 714, 229 N.W.2d 897 (1975), citing Commercial Construction Co. v. Elsman Enterprises, Inc., 22 Mich.App. 238, 241, 177 N.W.2d 447 (1970). The trial court's opinion in this case reveals the factual basis for its ultimate conclusions. We find that the opinion of June 30, 1978, at least minimally complies with the requirements of GCR 1963, 517.1 with respect to defendant's violation of the July 1, 1977, temporary restraining order.

[110 MICHAPP 510] The City next challenges the award of $70,734.49 in costs and attorney fees, contending that the costs were not proximately caused by defendant's actions and, further,...