Fittante v. Schultz, Docket No. 4717
| Decision Date | 26 November 1969 |
| Docket Number | No. 3,Docket No. 4717,3 |
| Citation | 20 Mich.App. 259,174 N.W.2d 29 |
| Parties | Rosina FITTANTE, Plaintiff-Appellant, v. Irving SCHULTZ, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Theodore G. Albert, Detroit, for appellant.
Santini & Jacobs, Ironwood, for appellee.
Before R. B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.
The plaintiff seeks to hold the defendant in contempt of court for failure to carry out the terms of a consent decree entered in 1962.
The defendant is the owner of property adjacent to the plaintiff's property. Both the plaintiff's and the defendant's homes are built within a few feet of the common boundary line. When the defendant built his home he raised the elevation of his property approximately 4 feet causing fill dirt to slide onto the plaintiff's property. In 1962 a consent decree was entered requiring the defendant to construct in 'a workmanlike manner without interference from the plaintiff' a retaining wall of specified dimensions made of concrete block set on concrete footings. Despite further disputes between the parties, the wall was completed in 1963.
In 1967 the plaintiff filed a motion for an order to show cause why the defendant should not be committed for contempt alleging that the defendant was not maintaining the wall. A hearing was held in June, 1967. The trial judge found that the wall was a 'haphazard affair.' At the conclusion of the hearing he ordered the matter held in abeyance until the defendant could secure the advice of some competent person as to what should be done. The judge stated that he did this because neither the plaintiff nor her son would ever be satisfied 'no matter what defendant did in an effort to repair and maintain the wall.'
Meanwhile the defendant lowered the wall at the rear of the property (where it was tilted) to eliminate the danger of it falling. He also attempted to jack up the footing of the wall to straighten it. There is evidence that the plaintiff or her son impeded the defendant's efforts to repair the wall, but they assert that the defendant was interfering with their use of plaintiff's property.
The court concluded that a concrete block wall 'is never going to hold up' and stated that the substance of the opinion of contractors is that the only permanent solution is to remove the existing wall and to erect a poured concrete wall rather than a wall of concrete blocks and it was estimated that this would cost more than $6,000.
The defendant has nine children, three of whom still reside at home and are going to school. He had been unemployed for 2 years and the family was on relief. He is partially crippled and walks with a cane.
The court found that the front half of the wall is still in fair condition and that because of the lowering of the wall at the rear of the property it no longer constitutes a hazard to life and limb. The court further found that the wall was not constructed in a workmanlike manner and due to the elements the rear half of the wall is now cracked and crooked. The court, nevertheless, declined to hold the defendant in contempt, stating:
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People v. McCartney
...Circuit Judge, 154 Mich. 485, 117 N.W. 1052 (1908); Klimek v. Borkowski, 259 Mich. 383, 243 N.W. 313 (1932); Fittante v. Schultz, 20 Mich.App. 259, 174 N.W.2d 29 (1969). The punishment being criminal in nature, it follows that double jeopardy attaches and the instant case must be and is * W......
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People v. McCartney
...contempt adjudication was criminal in nature. We held that it was and presently adhere to that determination. See Fittante v. Schultz, 20 Mich.App. 259, 174 N.W.2d 29 (1969). However, we noted that "[t]he double jeopardy bar against dual prosecution for the same act is thus applicable under......