In re Moroun

814 N.W.2d 319, 295 Mich. App. 312
CourtMichigan Court of Appeals
DecidedFebruary 6, 2012
DocketDocket No. 308053
StatusPublished
Cited by58 cases

This text of 814 N.W.2d 319 (In re Moroun) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Moroun, 814 N.W.2d 319, 295 Mich. App. 312 (Mich. Ct. App. 2012).

Opinions

K. F. Kelly, J.

Appellants, Manuel J. Moroun and Dan Stamper, appeal as of right the trial court’s January 12, 2012, order directing that they be imprisoned in the Wayne County jail until defendant Detroit International Bridge Company (DIBC) fully complied with the trial court’s opinion and order of February 1, 2010. Moroun is a director of DIBC and Stamper is its president. Previously, on November 3, 2011, the trial court found DIBC in civil contempt for failing to comply with the February 1, 2010, order, which had been entered in the underlying lawsuit filed by plaintiff Michigan Department of Transportation (MDOT) against DIBC and Safeco Insurance Company of America.1 We conclude that appellants’ due-process rights were not violated and that the trial court was clearly acting within its inherent and statutory powers to order DIBC’s key decision-makers incarcerated pend[318]*318ing DIBC’s compliance with the trial court’s February 1, 2010, order. However, the commitment order requiring full compliance cannot stand because appellants do not have the immediate ability to completely finish construction and thus “purge” DIBC of the contempt. Because the commitment order does not provide appellants with the “keys to the jailhouse,” we vacate that portion of the trial court’s commitment order that continues incarceration until DIBC has “fully complied” and remand the case to the trial court. On remand, the trial court shall craft an order stating with particularity what act or duty appellants must perform both to ensure that DIBC will begin and continue compliance with the court’s February 1, 2010, order as well as to enable them to purge themselves of the contempt finding against DIBC. Accordingly, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I. BASIC FACTS AND PROCEDURAL HISTORY

The underlying lawsuit arises from the Ambassador Bridge Gateway Project, which is intended to facilitate the flow of traffic between the United States and Canada over the Ambassador Bridge (the Bridge) by constructing interstate freeway connections to the Bridge. DIBC owns and operates the Bridge. Stamper is the president of DIBC and is extensively involved in the operation and construction activities at the Bridge and in the defense of this lawsuit. Moroun has a living trust that is a minority shareholder of DIBC Holdings, Inc., which, in turn, owns DIBC. Moroun is also a director on the boards for DIBC and DIBC Holdings.

In April 2004, MDOT and DIBC executed an agreement, which required DIBC to construct Part A of the project in accordance with MDOT specifications and [319]*319standards; plans and designs were attached to the contract as exhibits. DIBC was responsible for 100 percent of the costs associated with Part A, including construction and property acquisition costs. Because DIBC was unable to acquire all the property interests needed to complete Part A, the contract was amended in February 2006, whereby MDOT assumed responsibility to acquire, through the power of eminent domain if necessary, the property interests encompassed by a portion of Part A. On March 12, 2007, a performance bond was executed, which provided that DIBC and Safeco “are held and firmly bound unto” MDOT in the penal sum of $34,664,650 and that “the condition of this obligation” is that “the above named principal shall and will, well and faithfully, and fully . . . execute and perform all of the obligations contained in the attached documents identified as Exhibits A through Exhibit E, listed below.” Exhibit E was described in the bond as “Plans for DIBC portion of the Ambassador Bridge/Gateway Project (Part A, DIBC portion) per MDOT/DIBC agreement as amended.” In November 2007, MDOT and DIBC also executed a maintenance agreement, whereby DIBC agreed to maintain and operate certain physical features or structures located on a portion of M-85, including a truck road and related infrastructure, and a gate system. The parties also agreed that DIBC could use M-85, the 1-75 exit ramp, and an access easement road in emergency situations, under certain conditions and limitations set forth in the agreement.

On June 24, 2009, MDOT filed a lawsuit against DIBC and Safeco alleging that DIBC had not performed the construction in accordance with the agreements. Among other claims, MDOT alleged that DIBC was constructing Part A according to a “Conflicting Design,” a plan not approved by MDOT, the Federal [320]*320Highway Administration, or the city of Detroit, which included (1) constructing permanent tollbooths in the location where DIBC had agreed to construct an access easement drive, (2) installing facilities including automobile-fueling pumps in the location where it had agreed to construct DIBC Ramp S04, the ramp over 23rd Street for traffic to Canada, (3) installing facilities including underground fuel tanks in the location where it had agreed to construct the two-lane truck road and DIBC Ramp S05, the ramp over 23rd Street carrying truck traffic to the interstate highways, and (4) constructing Pier 19 at a location that blocks construction of the two-lane truck road from the truck plaza, as well as a “special return route” for maintenance and emergency vehicles. MDOT sought a cease-and-desist order regarding ongoing construction activities by DIBC, reimbursement for costs associated with contractual breaches of the parties’ agreements, an order of specific performance to direct DIBC to engage in construction consistent with the agreement, damages incurred as a result of DIBC’s actions, and any other appropriate equitable and monetary relief.

On October 29, 2009, MDOT filed a motion for partial summary disposition pursuant to MCR 2.116(0(10), seeking a partial judgment ordering DIBC to construct the two-lane access road for the project. Two weeks later, on November 13, 2009, MDOT filed a second motion for partial summary disposition and an order for specific performance pursuant to MCR 2.116(0(10), seeking a partial judgment ordering DIBC to construct the necessary roads, ramps, and bridges to connect the 1-75 and 1-96 freeways directly to the Ambassador Bridge in accordance with the agreed-upon design for those structures. In response to these motions, DIBC essentially argued that the parties had developed a “flexible” plan, that they had merely committed to a [321]*321“design concept,” and that they did not memorialize any particular plan or agreement regarding the design or construction of particular roads, structures, or improvements. DIBC submitted the affidavit of Stamper to support its assertion that there was never “an immutable, final, agreed set of plans.”

On February 1, 2010, the trial court issued an opinion and order granting both motions and granting MDOT’s request for specific performance. The trial court found that MDOT and DIBC had “agreed on a design for DIBC’s Part A of the project,” as reflected in the agreements and incorporated into the performance bond, and that DIBC had not constructed Part A according to the agreed-upon design. In doing so, the trial court rejected DIBC’s arguments that it was not restricted by the contract to a particular design and that it could unilaterally substitute different access routes.

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Bluebook (online)
814 N.W.2d 319, 295 Mich. App. 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-moroun-michctapp-2012.