Opinion
No. 306254 No. 306258
09-20-2012
KELLY O'CONNOR, Petitioner-Appellee, v. NICK VALCANIANT, Respondent-Appellant. KELLY O'CONNOR, Petitioner-Appellee, v. HELEN VALCANIANT, Respondent-Appellant.
UNPUBLISHED
Lapeer Circuit Court
LC No. 11-044016-PH
Lapeer Circuit Court
LC No. 11-044017-PH
Before: MURPHY, C.J., and MARKEY and WHITBECK, JJ. PER CURIAM.
Respondents filed separate appeals that have been consolidated for appellate review. In Docket No. 306254, respondent Nick Valcaniant appeals as of right an order holding him in criminal contempt for violating a personal protection order (PPO). In Docket No. 306258, respondent Helen Valcaniant appeals that same order, which also held her in criminal contempt for violating a PPO. Respondents raise the same issues on appeal in a joint appellate brief. We affirm.
Respondents are husband and wife and own property next to petitioner, who purchased her property in 2007. Respondents first came before the trial court in 2004 in a dispute over their property line with petitioner's predecessor in interest. The previous owner of petitioner's property had built a garage that encroached on respondents' property. In 2006, the parties to that litigation reached a settlement agreement, whereby petitioner's predecessor was to pay respondents a sum of money in exchange for respondents executing a deed to cure the encroachment. Although respondents received and accepted the money, they were not pleased with the result of losing some of their property and they refused to honor the agreement. Consequently, the trial court had to remove invalid liens filed by respondents and placed on the property now owned by petitioner, and the court had to compel respondents to execute the deed required by the settlement agreement, which deed placed the garage entirely within the boundaries of petitioner's property. The record reflects that respondents have simply not been able to accept the fact that the garage no longer encroaches on their property under the boundary line established in the earlier litigation, settlement agreement, and resulting deed.
In 2011, petitioner tried to sell her property, but respondents interfered with sales by continuing to call into question the property line as evidenced through the placement of stakes, flags, and painted lines, by contacting petitioner's real estate agents and threatening litigation over the property line if the agents continued to seek purchasers, and by otherwise discouraging potential buyers. Petitioner also complained of respondents engaging in stalking-like activities, such as videotaping her movements when she was outside. Petitioner sought separate PPOs against each respondent in an effort to prevent the continuing interference with prospective home sales and to generally stop respondents' offensive conduct. The trial court granted the PPOs on May 20, 2011. The PPOs prohibited respondents from engaging in certain conduct that included, but was not limited to, "placing an object on or delivering an object to property owned . . . or occupied by the petitioner" and "entering onto or remaining on property owned . . . or occupied by the petitioner." Respondents moved to terminate the PPOs. However, at the conclusion of the June 13, 2011, hearing on the motion to terminate the PPOs, the trial court found that there was sufficient evidence supporting the continuation of the PPOs, including photographs and various communications supporting petitioner's claims. The trial court also allowed an amendment of the PPOs so as to include a provision requested by petitioner. The amendment provided that respondents "shall remove all stakes at or near the prop line & shall be prohibited from interfering with the sale of Petitioner's home in any way." The amended PPOs were not signed by the trial court until more than two weeks later on June 29, 2011.
On June 23, 2011, petitioner filed motions to show cause why respondents should not be found in contempt of court for violating the PPOs. Orders to show cause were issued, and a hearing was conducted. Petitioner testified that less than a week after the June 13 hearing, June 19 to be precise, she noticed that stakes and utility flags had been planted in and around the property line. While old stakes and flags had been removed after the June 13 hearing, someone, according to petitioner, had now placed new stakes and flags near the property line. Petitioner also discovered fresh paint on her grass and on the back of her garage. She indicated that the paint on the garage had not been there as of the June 13 hearing. The petitioner submitted supporting photographs. She did not personally observe anyone applying the paint or planting the stakes and utility flags. There was testimony by a licensed land surveyor that he had placed wooden stakes at the property line on June 15, 2011, after respondents requested him to "relocate the corners" that he had previously surveyed in 2006. A utility locator testified that he marked electrical lines for purposes of the MISS DIG act, MCL 460.701 et seq., using flags and paint, some of which were placed on petitioner's property, after respondents contacted MISS DIG on the evening of June 13, 2011, relative to construction of a fence. Another utility locator testified that he marked Verizon phone lines on the properties with flags after a MISS DIG call was placed by respondents on the evening of June 13, 2011. A fencing contractor testified that respondents contacted him about obtaining an estimate to construct a fence three feet inside respondents' property line, which the contractor suggested was a bad idea as compared to placing it directly on the property line. The fencing contractor could not recall whether the date of June 14, 2011, which was written down on a document, was the date that respondents contacted him or the date that he went to the property. The surveyor, fencing contractor, and two utility locators all emphatically testified that they did not mark petitioner's garage with paint and that respondents stayed on their own property during the visits. Respondents testified that they wished to construct a fence, which is why MISS DIG and the others were contacted, that they never entered or placed any objects on petitioner's property, and that they did not mark petitioner's garage with paint. Petitioner denied that she marked her own garage with paint.
The record reflects that the front of petitioner's garage had been marked by paint at a time predating the entry of the original PPOs. Respondents assumed that the paint on the front of the garage had been put there by a surveyor sometime in late 2010 as part of a survey that they had authorized. It is the paint on the rear of the garage that is ultimately the focus of the trial court's ruling, and it is the paint at that location which petitioner claimed was new, postdating the May 2011 PPOs and the June 13, 2011, hearing. The photographs of paint on the front and back of the garage appear to be boundary-type markings, and Mr. Valcaniant indicated in the June 13 hearing that the painted lines showed that the garage "was six foot on our property."
The trial court issued a written opinion and order, finding that respondents violated the PPOs and holding them in criminal contempt. The court found beyond a reasonable doubt that respondents violated the original May 20 PPOs by entering petitioner's property "and applying additional line paint on [p]etitioner's garage to mark what they believed to be the property line." The trial court found it "inconceivable that anyone other than the [r]espondents could have applied that paint." The court then indicated that respondents had acknowledged that they requested and authorized the staking of the property after June 13, 2011, and the court noted that respondents were arguing, in response to the staking, that the original PPOs did not prohibit such conduct and that the amended PPOs were irrelevant with respect to the conduct because they were not signed by the court until June 29, 2011. The court stated that its June 13 ruling was well understood by respondents and constituted "a binding order" on June 13. The trial court then immediately returned to a discussion regarding the paint on the garage, ruling that respondents "offered no credible explanation as to who painted the garage." The court further stated that based on respondents' "past conduct and continued refusal to accept the agreements and ruling as to the property line, the [c]ourt has no doubt that they are responsible for the new paint on the garage in clear violation of the [PPOs]." The ruling makes plain that the trial court found that the PPO violations stemmed chiefly, if not entirely, from the paint markings on the back of petitioner's garage. While not clear from the opinion and order, the court perhaps also found that the amended PPOs were violated when respondents requested and authorized the staking of the property line after June 13, 2011. The court did not state that respondents violated the original PPOs by planting stakes and/or utility flags on petitioner's property.
On appeal, respondents first argue that the amended PPOs were made effective June 29, 2011, and were thus not in force when the alleged conduct occurred on or around June 19, 2011; therefore, they could not be in violation of the PPOs. We find it unnecessary to address the question whether respondents violated the amended PPOs, given that the trial court found that respondents violated the original PPOs, which were indisputably in effect on June 19, by marking the back of petitioner's garage with paint. Respondents next argue that the placement of MISS DIG utility flags on petitioner's property did not constitute "placing an object on or delivering an object to property owned . . . by the petitioner" under the terms of the original PPOs. Respondents contend that there was no violation because the flags were placed for legitimate reasons and not for the purpose of harassing petitioner. While we believe that the reason or purpose for planting the utility flags is irrelevant in regard to whether the original PPOs were violated and that causing others, via the MISS DIG calls, to place flags, i.e., objects, on petitioner's property would be a violation of the original PPOs, the trial court never found that respondents violated the original PPOs with respect to the placement of utility flags or stakes. Accordingly, respondents' argument is not pertinent to resolving this appeal.
The PPOs provided that they were "effective when signed," see MCL 600.2950(9), and the amended PPOs were signed on June 29.
The fact that respondents made the MISS DIG calls on the very evening of the day that the court adamantly warned them not to continue engaging in the harassment of petitioner, which calls they certainly understood would result in more flagging and grass painting, is representative of their ongoing defiant conduct.
Respondents next argue that petitioner failed to prove beyond a reasonable doubt that they put paint on petitioner's garage in violation of the original PPOs, that the trial court effectively placed the burden on respondents to prove that they were not responsible for the paint marks, and that the court improperly based its decision on respondents' past conduct and the previous boundary litigation. Respondents maintain that the evidence against them was circumstantial, self-serving, questionable, and clearly insufficient to satisfy the burden of proof, even when viewing the evidence in a light most favorable to petitioner.
"We review a trial court's issuance of a contempt order for an abuse of discretion." Porter v Porter, 285 Mich App 450, 454; 776 NW2d 377 (2009). An abuse of discretion standard recognizes that there is more than one reasonable and principled outcome. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). "An abuse of discretion occurs . . . when the trial court chooses an outcome falling outside this principled range of outcomes." Id. "Moreover, a trial court's factual findings are reviewed for clear error and questions of law are reviewed de novo." Porter, 285 Mich App at 454-455.
"A personal protection order is effective and immediately enforceable anywhere in this state when signed by a judge." MCL 600.2950(9). If a respondent violates a PPO, the petitioner may file a motion to have the respondent found in contempt. MCR 3.708(B)(1). With respect to a criminal-contempt hearing, the petitioner "has the burden of proving the respondent's guilt of criminal contempt beyond a reasonable doubt." MCR 3.708(H)(3). "The rules of evidence apply to both criminal and civil contempt proceedings." Id. In In re Contempt of Henry, 282 Mich App 656, 677; 765 NW2d 44 (2009), this Court, addressing a claim that the evidence was insufficient to support a criminal contempt finding, observed:
"This Court reviews de novo a challenge to the sufficiency of the evidence in a bench trial." "The evidence is viewed in a light most favorable to the prosecution to determine whether the trial court could have found that the essential elements of the crime were proven beyond a reasonable doubt." "Circumstantial evidence and reasonable inferences that arise from the evidence can constitute sufficient proof of the elements of the crime." [Citations omitted.]
With respect to criminal contempt proceedings, this Court "may not weigh the evidence or the credibility of the witnesses in determining whether there is competent evidence to support" the trial court's ruling. Id. at 668-669.
Here, there was testimonial and photographic evidence that the back of petitioner's garage was marked with paint after the original PPOs were issued and served and that the entire garage was indeed on petitioner's property. Further, putting paint on petitioner's garage would be a violation of the original PPOs if it was respondents who entered upon petitioner's property and committed the act - respondents make no argument to the contrary. Additionally, the paint marks on the rear of the garage appeared in the nature of a boundary line; a boundary line that was consistent with the boundary that respondents had repeatedly claimed was the true property line and showed an encroachment. Moreover, the persons who worked on or around the property line, i.e., the surveyor, fencing contractor, and two utility locators, emphatically denied marking petitioner's garage with paint, and we will not interfere with the trial court's assessment that they were credible witnesses. Petitioner also denied marking her garage with paint, and we will not second guess the trial court's conclusion that she was being truthful. Viewing the evidence in a light most favorable to petitioner, it was sufficient to support the trial court's contempt rulings, as the circumstantial evidence and reasonable inferences arising from that evidence could reasonably lead one to conclude that respondents marked the rear of petitioner's garage with paint. Although respondents both denied engaging in the conduct of painting the garage, credibility assessments, once again, are left to the trier of fact to determine. And we find nothing improper with respect to the trial court taking into consideration respondents' past conduct and continuing defiance for purposes of assessing their credibility and as circumstantial evidence of contemptible acts. In regard to respondents' argument concerning the alleged shifting of the burden of proof, although the trial court did comment that respondents "offered no credible explanation as to who painted the garage," the overall opinion and order reflected that the court understood that the burden was on petitioner, and the court expressly recognized that "[t]he [p]etitioner has the burden of proving the [r]espondent[s'] guilt for criminal contempt beyond a reasonable doubt." Reversal is unwarranted.
At the June 13, 2011, hearing to terminate the PPOs, which predated the conduct at issue, Mr. Valcaniant remarked that perhaps a surveyor had put paint markings on the back of the garage in an earlier survey. However, as noted above, petitioner testified at the show cause hearing that the paint on the rear of the garage was new, postdating the June 13, 2011, hearing and the May 2011 PPOs, and there was not any evidence suggesting otherwise.
Next, respondents argue that the trial court erred in ordering them to pay attorney fees incurred by petitioner as a result of the PPO proceedings. Respondents maintain that MCR 3.708(H)(5)(a), which applies to sentences for criminal contempt, only allows for a jail sentence of no more than 93 days and a fine of no more than $500. On the other hand, according to respondents, MCR 3.708(H)(5)(b), which applies to sentences for civil contempt, allows for a fine or imprisonment as set forth in MCL 600.1715 and MCL 600.1721, and it is MCL 600.1721 that authorizes an attorney fee award as indemnification for an actual loss or injury. Citing the maxim expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another), respondents contend that, because MCR 3.708(H)(5)(a), the sentencing provision for criminal contempt, does not refer to and incorporate MCL 600.1721 like the civil contempt provision does, there can be no attorney fee award in a criminal contempt case as § 1721 is rendered inapplicable by the court rules.
MCR 3.708(H)(5)(a) specifically provides that "[i]f the respondent pleads or is found guilty of criminal contempt, the court shall impose a sentence of incarceration for no more than 93 days and may impose a fine of not more than $500.00."
MCR 3.708(H)(5)(b) provides that "[i]f the respondent pleads or is found guilty of civil contempt, the court shall impose a fine or imprisonment as specified in MCL 600.1715 and MCL 600.1721." MCL 600.1721, which addresses contempts, provides:
If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.
In Taylor v Currie, 277 Mich App 85, 100; 743 NW2d 571 (2007), this Court examined MCL 600.1721 and ruled as follows:
[U]nder a plain reading of MCL 600.1721, a court must order a person found to be in contempt of court to indemnify any person who suffers an actual loss or injury as a result of the contemnor's misconduct. The sum required by MCL 600.1721 "may include attorney fees that occurred as a result of the other party's contemptuous conduct."
Because MCL 600.1721 does not make a distinction between civil and criminal contempt, but rather requires a trial court to order a contemnor to
indemnify any person who suffers an "actual loss or injury" caused by the contemnor's "misconduct," we hold that the indemnification sanction mandated by MCL 600.1721 applies even when a trial court imposes a punitive (i.e., criminal) sanction on a contemnor. [Citations omitted.]
In Contempt of Henry, 282 Mich App at 685-686, this Court, relying on Taylor, reached the same conclusion in the context of criminal contempt. We do note that neither the Taylor nor the Contempt of Henry panel discussed or mentioned MCR 3.708(H)(5), but the court rule provisions were in place when both cases were decided and the opinions are binding precedent on the general issue of whether attorney fees can be recovered in criminal contempt cases. Furthermore, while MCR 3.708(H)(5)(b) directs a sentencing court to utilize MCL 600.1715 and MCL 600.1721 in civil contempt proceedings, this does not necessarily mean that a court is precluded, when sentencing for criminal contempt, from imposing punishment under MCL 600.1721 in addition to the punishment set forth for criminal contempt under MCR 3.708(H)(5)(a), which itself contains no express language of exclusivity. Finally, we would note that, assuming a conflict between MCR 3.708(H)(5)(a) and MCL 600.1721 existed, a penalty for criminal contempt is clearly a matter of substantive law and not one of practice and procedure; therefore, MCL 600.1721 would control. See generally McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).
Lastly, respondents argue that the trial court exhibited personal bias against them, denying respondents their due process right to a fair and impartial hearing. Respondents rely on MCR 2.003(C)(1)(a) and (b), which provide:
(1) Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:
(a) The judge is biased or prejudiced for or against a party or attorney.
(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, [556] US [868]; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.
"We review a trial court's factual findings regarding a motion for disqualification for an abuse of discretion and its application of the facts to the law de novo." In re MKK, 286 Mich App 546, 564; 781 NW2d 132 (2009). Due process requires that all parties have an unbiased and impartial decisionmaker. Cain v Dep't of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996). "A trial judge is presumed to be impartial and the party who asserts partiality has a heavy burden of overcoming that presumption." In re MKK, 286 Mich App at 566. "Disqualification on the basis of bias or prejudice cannot be established merely by repeated rulings against a litigant, even if the rulings are erroneous." Id. Additionally, remarks that are critical of or hostile toward a party, counsel, or a party's case, "ordinarily do not establish disqualifying bias." Id. at 567. Opinions formed by a judge on the basis of introduced facts or events that transpired during the proceedings "do not constitute bias or partiality unless there is a deep-seated favoritism or antagonism such that the exercise of fair judgment is impossible." People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999).
Respondents claim that the trial court should have been disqualified because it rendered rulings unfavorable to respondents on the basis of a grievance filed by Mrs. Valcaniant against the court. "Letters, or even complaints, to the Judicial Tenure Commission alone do not require disqualification of a trial judge." Ireland v Smith, 214 Mich App 235, 249; 542 NW2d 344 (1995). The record reflects that the trial court based its rulings not on any grievance brought against the court but on the facts of the case, which established respondents' continual disregard for the court's rulings and the law. At times, the court displayed justifiable frustration with respondents, but this was not due to any bias or prejudice against them; it was predicated on the facts, respondents' conduct, and the events that transpired during the proceedings. Indeed, the trial court, at the June 13, 2011, hearing, implored respondents to abide by the PPOs and the prior settlement agreement and warned them of the consequences of not doing so, yet they immediately chose to aggravate the situation.
In further support of their disqualification argument, respondents complain that the trial court issued the ex-parte PPOs absent any supporting police reports; however, a police report is not necessary and an ex-parte PPO can be issued on the basis of a "verified complaint, written petition, or affidavit." MCR 3.705(A)(2); see also MCR 3.703. Respondents also point to the fact that the amended PPOs had an expiration date of one year and that most PPOs are typically effective for a six-month period. However, MCL 600.2950a(13) provides that a PPO "is valid for not less than 182 days." (Emphasis added.) Accordingly, there is a six-month minimum requirement and nothing prohibits a court from issuing a PPO that is effective for a year. Respondents also argue that bias and prejudice were shown when the trial court denied their motion to adjourn the proceedings on July 11, 2011; however, the record reflects that the court ultimately continued the proceedings beyond July 11 and that respondents had the opportunity, which was exercised, to challenge the disqualification ruling before the chief judge and to present whatever evidence they desired on subsequent hearing days.
Respondents next contend that bias and prejudice were shown when the court allowed the admission, at the June 13, 2011, hearing to terminate the PPOs, of hearsay evidence against them, i.e., several emails demonstrating that respondents had been contacting real estate agents and a title company in an effort to subvert petitioner's attempts to sell her property. However, these emails were not admitted to prove the truth of the matters asserted therein, MRE 801(c); rather, they were admitted to show the effect on the readers of the emails. See People v Fisher, 449 Mich 441, 449-450; 537 NW2d 577 (1995) (statements may be admitted to show the effect on the hearer or reader when the effect is relevant, and the policies underlying the hearsay rule are inapplicable because the statements are not being admitted to prove the truth of the matters asserted). The matters asserted in the emails pertained to respondents' claims of ownership and problems with the property line and encroachment, which petitioner was certainly not attempting to establish. Rather, she was simply seeking to show that respondents were trying to interfere with and disrupt a sale of her home, which was the effect on those persons receiving the emails. Also, the emails showed that respondents were defying the settlement agreement and the court's ruling in the earlier litigation.
Finally, respondents contend that bias and prejudice were shown when the court ordered them to post a $5,000 security bond, where they had limited means and the court had not yet found them in contempt. However, respondents fail to cite any authority that prohibited the court from ordering the posting of a bond, and under the circumstances of this case, it appeared to be warranted.
In sum, there was nothing erroneous with respect to the court's rulings, and even if they were erroneous, it would not support disqualification. In re MKK, 286 Mich App at 566. Respondents have failed to establish a basis for disqualification under MCR 2.003. Reversal is unwarranted.
Affirmed.
William B. Murphy
Jane E. Markey
William C. Whitbeck