Contempt of Rapanos, In re

Decision Date29 August 1985
Docket NumberDocket No. 77832
Citation372 N.W.2d 598,143 Mich.App. 483
PartiesIn re CONTEMPT OF RAPANOS 143 Mich.App. 483, 372 N.W.2d 598
CourtCourt of Appeal of Michigan — District of US

[143 MICHAPP 485] Gerald L. White, Pros. Atty., and Lawrence Wm. Smith, Asst. Pros. Atty., Midland, for plaintiff.

Bodman, Longley & Dahling by Richard D. Rohr and Robert G. Brower, Detroit, for defendant.

Before DANHOF, C.J., and T.M. BURNS and BEASLEY, JJ.

PER CURIAM.

Defendant appeals as of right from his January 10, 1984, conviction by the trial judge on four counts of criminal contempt. On February 3, 1984, defendant was fined and sentenced to serve five days imprisonment for each of his convictions, the terms to run concurrently. Defendant appeals as of right.

According to the evidence in this case, defendant's brother, Nicolaos Rapanos, filed a civil suit against defendant on August 4, 1981, after the two brothers' 30-year business relationship as Rapanos [143 MICHAPP 486] Enterprises had deteriorated. On that same day, the trial court issued a temporary restraining order stating that defendant was enjoined from:

"[T]aking any actions, including without limitation, buying, selling, assigning, transferring or encumbering any business and investment property, hiring or terminating the employment of any employees, and withdrawing any funds or writing any checks with respect to the said business and real property without the written approval of plaintiff."

On November 10, 1981, the trial judge issued an order to show cause why defendant should not be held in criminal contempt. This order was entered after Nicolaos Rapanos had complained of 37 alleged violations of the restraining order. Nicolaos Rapanos, through the Midland County Prosecutor's office, proceeded on eight of the 37 charges. The charges and defendant's respective defenses included:

1) That defendant on August 26, 1981, executed a mortgage to the Peoples National Bank and Trust Company of Bay City for a loan of $100,000 using property owned generally by Rapanos Enterprises as collateral without obtaining the approval of Nicolaos Rapanos or the court. Defendant claimed as a defense that he did not intentionally violate the temporary restraining order, that the mortgage was contemplated months before the temporary restraining order was issued, and that he procured the mortgage on the good faith reliance upon his attorney's advice.

2) That on August 31, 1981, defendant paid property taxes in excess of $40,000 on property owned by Rapanos Enterprises, without approval of his brother or the court. Defendant claimed that he did not intend to violate the temporary restraining order, and that he acted in good faith [143 MICHAPP 487] reliance on his attorney's advice as his defense to this claim.

3) That defendant violated a September 30, 1981, court order requiring that all files, books and records relating to the Rapanos account be immediately returned to the Rapanos' place of business, by not timely returning the documents. Defendant defended on the grounds that the order was ambiguous and that he thought it only applied to the Rapanos bank account and related accounting books.

4) That in violation of a court order preventing harassment and intimidation of Rapanos' employees, defendant threatened Dennis Fritz, the court-appointed temporary comptroller for Rapanos Enterprises, by telling Fritz, "I will get you for this. I'll get you." Defendant denied making this statement.

5) That defendant improperly retained rental payments in the amount of $2,350 from the rental of a piece of property known as the "Bauknecht property" in violation of the temporary restraining order which required that all income from the Enterprises' business had to be deposited into the Rapanos account. Defendant claimed that the property was registered in his wife's name and, therefore, he had the right to keep income from its rental.

6) That defendant had the advertisement on six billboards belonging to Rapanos Enterprises painted out without Nicolaos Rapanos's or the court's permission. In defense, defendant alleged that the temporary restraining order was ambiguous and that he had relied upon his attorney's advice that he could white-out the signs.

7) That prior to the initiation of a civil litigation against defendant by his brother, defendant deeded the Lutz property to his wife.

[143 MICHAPP 488] 8) That on March 4, 1982, defendant wrote a check to his wife in the amount of $2,400 out of Rapanos Enterprises monies without proper approval. Defendant claims that he was justified in his actions since the $2,400 was in payment of property taxes.

The trial judge ruled that only four of the actions taken by defendant constituted criminal contempt. The four contemptuous acts, according to the court, were: (1) execution of the August 26, 1981 mortgage; (2) failure timely to return business documents as required by the court's order; (3) retaining rental receipts on the Bauknecht property; and (4) issuance of the $2,400 check to his wife.

Defendant now claims that his conviction on each of these four counts was erroneous since his conduct did not meet the requisite standard for a finding of criminal contempt. In reviewing the sufficiency of the evidence in an appeal from a bench trial, this Court must determine whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find essential elements of the crime proven beyond a reasonable doubt, or whether the court clearly erred. People v. Simpson, 132 Mich.App. 259, 263, 347 N.W.2d 215 (1984), lv. granted 419 Mich. 922 (1984).

To support a conviction of criminal contempt, two elements must be proven beyond a reasonable doubt. Michigan ex rel. Wayne Prosecutor v. Powers, 97 Mich.App. 166, 171, 293 N.W.2d 752 (1980). Those two elements are: (1) that the individual engaged in a wilful disregard or disobedience of the authority or orders of the court, and (2) that the contempt must be clearly and unequivocally shown. People v. Matish, 384 Mich. 568, 572, 184 N.W.2d 915 (1971). Additionally, although no Michigan[143 MICHAPP 489] courts have required this element, the United States Supreme Court and several federal courts have required that the contemptuous act must be shown to pose an imminent threat to the administration of justice, not merely an affront to the sensitivities of the judge. In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 (1972). Gordon v. United States, 592 F.2d 1215, 1217 (C.A.1, 1979), cert. den. 441 U.S. 912, 99 S.Ct. 2011, 60 L.Ed.2d 384 (1979). In the case at bar, defendant claims that his conviction on four counts of contempt was not supported by the evidence since, with regard to each count, according to defendant, the record did not establish that defendant clearly and unequivocally violated the court order or that violation of the court order did not constitute an obstruction of justice.

The first count of contempt of which defendant was convicted concerned his action in obtaining a mortgage on the 10 Plex property in the amount of $100,000 on August 26, 1981. First, defendant claims that since the 10 Plex property is titled solely in the name of defendant and his wife, the August 4, 1981, temporary restraining order was not applicable to this transaction since the temporary restraining order only prohibited actions with regard to property that was jointly owned by defendant and his brother. The August 4, 1981, temporary restraining order provided in part that defendant was restrained and enjoined from taking any actions, including encumbering any business and investment property, with respect to the said businesses and real property of Rapanos Enterprises without the approval of Nicolaos Rapanos.

A review of the record in this case establishes that defendant did clearly and unequivocally violate this court order contrary to what defendant claims on appeal. The transcript shows that defendant[143 MICHAPP 490] knew at the time he took out the mortgage in question that the 10 Plex property was part of the disputed property in which defendant's brother claimed to own one-half interest. In fact, the complaint in the civil suit initiated by Nicolaos Rapanos on August 4, 1981, expressly stated that Nicolaos Rapanos believed that he had the right to one-half ownership of the 10 Plex property despite the fact that the property was titled in defendant's name. Moreover, Nicolaos Rapanos testified at defendant's criminal contempt trial that defendant had previously brought a motion to compel Nicolaos Rapanos to help pay the debt on the mortgage encumbering the 10 Plex property. Therefore, the record shows that defendant clearly and unequivocally violated the temporary restraining order by encumbering property that was alleged to be part of the business and real property belonging to Rapanos Enterprises. Craig v. Kelley, 311 Mich. 167, 18 N.W.2d 413 (1945).

Moreover, defendant's claim that the element of obstruction of justice was not established beyond a reasonable doubt through the evidence at trial is also without merit. Nicolaos Rapanos testified at trial that defendant had been engaging in a consistent pattern of taking out mortgages to borrow money which placed Nicolaos Rapanos into debt and posed a financial threat to the brothers' business. This conduct prevented the orderly disposition of the civil case initiated by Nicolaos Rapanos. Hence, the evidence at trial supported the fact that defendant's conduct resulted in an obstruction of justice and the trial court's finding was not clearly erroneous.

Defendant's next claim of error concerns his conviction for contempt with regard to his late return of Rapanos Enterprises' files. The trial court on September 30, 1981, ordered defendant to [143 MICHAPP 491] immediately return all the files, books, records and documents relating to...

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8 cases
  • In re Estate
    • United States
    • Michigan Supreme Court
    • July 26, 2013
    ... ... MARY BETH KELLY, J. [494 Mich. 371]In this case, we decide whether a civil contempt petition that seeks indemnification damages under MCL 600.1721 imposes tort liability within the meaning of MCL 691.1407(1) of the governmental tort ... to the due administration of law and the protection of the rights of suitors ) (citation omitted) (emphasis added), and In re Contempt of Rapanos, 143 Mich.App. 483, 496, 372 N.W.2d 598 (1985) (Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to ... ...
  • In re Contempt of Dorsey
    • United States
    • Court of Appeal of Michigan — District of US
    • September 9, 2014
    ... ... Specifically, appellant argues that she did not act willfully because she was confused about the order and intended to consult with counsel before testing. Appellant cites this Court's opinion in In re Contempt of Rapanos, 143 Mich.App. 483, 495, 372 N.W.2d 598 (1985), for the proposition that a person does not willfully violate an order when they act in good faith reliance on an attorney's advice. Appellant argues that [i]f good faith reliance on an attorney's advice prevents willfulness then a good faith intent ... ...
  • In re Contempt of United Stationers Supply Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • April 4, 2000
    ... ... In re Contempt of Rapanos, 143 Mich.App. 483, 496, 372 N.W.2d 598 (1985). A court may issue an order to pay compensation for actual loss or injury caused by a contemnor's misconduct. Dougherty, supra at 97, 413 N.W.2d 392 (violation of a permanent injunction for trespassing could be subject to compensatory civil contempt ... ...
  • Contempt of Rochlin, In re, Docket No. 114828
    • United States
    • Court of Appeal of Michigan — District of US
    • December 17, 1990
    ... ... Defendant acknowledges on appeal that, at the time of his contempt trial, he had fully complied with the court's order. Thus, there was no need for the trial court to coerce compliance with its order, and criminal contempt proceedings were appropriate. See In re Contempt of Rapanos, 143 Mich.App. 483, 496-497, 372 N.W.2d 598 (1985). Moreover, the trial court's purpose in imposing sanctions was to remedy acts which constituted "an imminent threat to the orderly administration of justice ... " The Court's intent was to punish defendant for his past failure to produce the ... ...
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