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STATE OF MICHIGAN
COURT OF APPEALS


AUDREY EVELYN ERICKSON, Plaintiff-Appellant, v MEIJER, INC, Defendant-Appellee.

UNPUBLISHED May 12, 2000

No. 215760 Grand Traverse Circuit Court LC No. 97-016554-NO

Before: Gage, P.J., and Meter and Owens, JJ. PER CURIAM. Plaintiff's attorneys appeal as of right from an order sanctioning them for their failure to comply with the trial court's scheduling conference order. This case arises out of plaintiff's slip-and-fall accident in defendant's grocery store. The two attorneys, who are brothers, represented plaintiff in the lower court proceedings. Plaintiff's attorneys complain that the trial court committed certain procedural errors during the contempt proceedings, and that the court erred in finding that they violated the court's scheduling conference order. We disagree and affirm. We review a trial court's issuance of an order of contempt for an abuse of discretion. Dean v Dean, 197 Mich App 739, 743; 496 NW2d 403 (1993). An abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Schoensee v Bennett, 228 Mich App 305, 314-315; 577 NW2d 915 (1998). Plaintiff's attorneys also complain of procedural errors that entail questions of law. This Court reviews questions of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991). Trial courts are permitted by statute "to punish by fine or imprisonment" attorneys who disobey "any lawful order, decree, or process of the court." MCL 600.1701(g); MSA 27A.1701(g). Plaintiff's attorneys first contend that they were subject to proceedings for criminal contempt because their alleged contemptuous act altered the status quo so that it could not be restored; that is, the trial attorney having failed to attend the settlement conference, the conference having been held, and the trial having taken place with a verdict having been rendered, it was impossible for the alleged contemnors1 to

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rectify their failure to appear. Thus, the attorneys reason, the contempt proceedings were criminal in nature since they were invoked to punish the attorneys for their noncompliance with the court's order. Our Supreme Court, in In re Dougherty, 429 Mich 81, 98; 413 NW2d 392 (1987), clarified that in addition to criminal contempt, "there are two types of civil contempt sanctions, coercive and compensatory." Thus, altogether there are three sanctions which may be available to a court to remedy or redress contemptuous behavior: (1) criminal punishment to vindicate the court's authority; (2) coercion, to force compliance with the order; and (3) compensatory relief to the complainant. This Court's recent opinion in In re Contempt of United Stationers Supply Co, 239 Mich App 496, 499; ___ NW2d ___ (2000), cited the above passage from In re Dougherty and explained: Proceedings for civil contempt are instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made to enforce those rights and administer the remedies to which the court has found the parties are entitled. In re Contempt of Rapanos, 143 Mich App 483, 496; 372 NW2d 598 (1985). A court may issue an order to pay compensation for actual loss or injury caused by a contemnor's misconduct. . . . *** In the instant case, the contempt sanction and court order for repayment were compensatory, to defray defendant's child support arrearage to Walker. Therefore, the contempt sanction in the instant case is civil, not criminal, and a finding of wilful disobedience of a court order is not necessary. Rather, the circuit court had to find that respondent was neglectful or violated its duty to obey an order of the court. See MCL 600.1701; MSA 27A.1701. [Id., at 500-501.] In this case, the trial court imposed sanctions in the form of costs to compensate the county for the costs of the jury and to compensate the defendant for the wasted settlement conference. The contempt sanctions were therefore civil, not criminal, and there was no requirement that there be proof of willful noncompliance. In re Contempt of United Stationers Supply Co, supra at 501. Plaintiff's attorneys next complain that the court did not comply with MCR 3.606(A)(1) and (2), because it did not commence the proceedings with an ex parte motion supported with affidavits. The subrules on which they rely state: (A) Initiation of Proceeding. For a contempt committed outside the immediate view and presence of the court, on a proper showing on ex parte motion supported by affidavits, the court shall either

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(1) order the accused person to show cause, at a reasonable time specified in the order, why that person should not be punished for the alleged misconduct; or (2) issue a bench warrant for the arrest of the person. Where a contempt is committed in the immediate view and presence of the court, it may be punished summarily. MCL 600.1711(1); MSA 27A.1711(1). Summary contempt need not be initiated by "a proper showing on ex parte motion supported by affidavits" because all the facts necessary to find the contempt are within the personal knowledge of the trial court. In re Contempt of Robertson, 209 Mich App 433, 440-441; 531 NW2d 763 (1995). The contempt allegedly committed by plaintiff's attorneys was the failure of the trial attorney to attend the settlement conference.2 Failure to appear as ordered at a court proceeding is a contempt committed outside the presence of the court which may not be punished summarily. Id. at 438-441; In re McRipley, 204 Mich App 298, 301; 514 NW2d 219 (1994). That is because although the trial attorney's "absence was certainly within the personal knowledge of the [judge], the reason for his absence was not." In re Contempt of Robertson, supra at 440. Accordingly, "proceedings for contempt committed outside the presence of the court must be initiated pursuant to the procedure set forth at MCR 3.606." In re McRipley, supra at 301. Nevertheless, we conclude that the trial court's apparent failure to comply with MCR 3.606(A) does not entitle plaintiff's attorneys to relief. MCR 3.606(A) provides a means of initiating proceedings for a contempt that occurs "outside the immediate view and presence of the court." Ordinarily such a contempt will be initiated by an ex parte motion filed by the opposing party to the underlying action. The fact that the proceeding is initiated by an ex parte motion is an indication that the contemnor's presence at, or knowledge of, the initial proceedings is not necessary. Rather, the requirement of an ex parte motion appears to serve the function of providing the court with information regarding facts or actions of which it would otherwise be unaware, and thereby demonstrating a basis for the initiation of contempt proceedings by show cause order or bench warrant. MCR 3.606(A)(1) and (2). Having provided a prima facie basis to invoke the court's contempt power, the function of the ex parte motion and supporting affidavits is ended; proof of the contempt must await the show cause hearing. The instant case presents a hybrid situation: the trial court was aware that its order had not been followed, but it was not aware of the reason the order was not followed. According to Robertson, supra and McRipley, supra, the contempt proceedings could not be pursued summarily; however, sufficient facts were known to the court upon which to invoke a show cause hearing, and the court chose to initiate such a proceeding by order to show cause. By way of contrast, in In re Contempt of Barnett, 233 Mich App 188, 189-191; 592 NW2d 431 (1998), the attorney's contemptuous behavior occurred in the hallway outside the courtroom and the trial judge was not privy to the contempt. The necessity of filing an ex parte motion and supporting affidavits to inform the trial judge of the allegedly contemptuous behavior is therefore apparent. Where the facts that form the basis for the show cause are known to the trial court, and it is the trial court

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