Compensatory Civil Contempt Order Is Not ‘Final Order’ Appealable Of Right

An order imposing compensatory civil contempt sanctions is not a “final order” appealable of right, the Michigan Court of Appeals has ruled, addressing an “unresolved” question about the appellate court’s jurisdiction.

In Alpena County Board of County Road Comm’rs v Tadajewski (Docket No. 374166), the Alpena County Circuit Court found the defendant failed to comply with a previous judgment recognizing the plaintiff’s public right-of-way and prohibiting further encroachments on it. As a result, the trial court held the defendant in contempt. The trial court also imposed compensatory sanctions under MCL 600.1721, including attorney fees and expenses the plaintiff incurred to remove the encroaching obstructions.

The defendant claimed an appeal of right from the trial court’s order.

The Court of Appeals dismissed the appeal, finding it did not have jurisdiction.

The defendant’s “contumacious conduct caused plaintiff to incur expenses, which the trial court compensated through sanctions imposed under MCL 600.1721,” the Court of Appeals said. “Because an order imposing compensatory civil contempt sanctions is not a final order under MCR 7.202(6), this Court lacks jurisdiction over an appeal of right from such an order.”

Court of Appeals Judge Matthew S. Ackerman wrote the published decision, joined by Judge Brock A. Swartzle and Judge Christopher M. Trebilcock.

Background

The defendant owns land adjacent to Geronimo Road in Alpena County. The plaintiff sued the defendant in December 2022, claiming Geronimo Road “is a public right-of-way” and the defendant had been “placing dangerous obstructions on the portion of the roadway adjacent to his property.”

The plaintiff filed a motion for summary disposition, which the Alpena County trial court granted. In August 2023, the trial court ruled “in a final order that a highway-by-user under MCL 221.20 had been established and that defendant was not to place any encroachments in the Geronimo Road right-of-way.” The defendant did not appeal that order.

More than one year later, the defendant filed a motion claiming the right-of-way “was 33 feet wide, despite the clear language in MCL 221.20 that a highway-by-user is 4 rods, or 66 feet, wide.” The trial court denied the defendant’s motion. The defendant filed a claim of appeal, which was dismissed for being untimely.

The defendant subsequently placed additional encroachments in the right-of-way. Thereafter, the plaintiff sought a hearing to show cause why the defendant should not be held in contempt for failing to adhere to the court’s August 2023 final order.

In December 2024, the trial court found the defendant in contempt. The trial court assessed sanctions of $6,992 in attorney fees and $629.84 in expenses the plaintiff incurred to remove the encroaching obstructions.

The defendant filed a claim of appeal from that order.

Compensatory Civil Contempt

In its analysis, the Court of Appeals pointed out this case presented “unresolved questions” about the appellate court’s jurisdiction.

“The leading discussion of our jurisdiction in contempt proceedings is in In re Moroun, 295 Mich App 312 … (2012),” the Court of Appeals noted. In Moroun, the appeals court explained: “‘Criminal contempt is a crime and, therefore, an order finding a party in criminal contempt of court and sanctioning the party is a final order from which the contemnor may appeal as of right. However, an order finding a party in civil contempt of court is not a final order for purposes of appellate review.’”

Therefore, to determine whether it had jurisdiction, the Court of Appeals said it had to first “identify the type of contempt involved.” Although the trial court labeled the defendant’s conduct as civil contempt, “we review de novo whether contempt was civil or criminal, and ‘[i]t is irrelevant whether the trial court labels the contempt as civil or criminal.’”

Moreover, Moroun “observed that the distinction between civil and criminal contempt is that civil contempt is coercive, while criminal contempt is punitive,” the Court of Appeals said, referencing In re Contempt of Dougherty, 429 Mich 81 (1987). “As … Dougherty … explained: ‘If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by fine or imprisonment, or both; and this is by way of punishment.’”

However, “[i]f those were the only categories, the sanction for defendant’s defiance of a prior order could be seen as punitive rather than coercive and therefore criminal,” the Court of Appeals observed. “But Moroun did not account for the fact that not all civil contempt is coercive. As Dougherty explained, ‘there are two types of civil contempt sanctions, coercive and compensatory.’”

In this case, the trial court ordered the defendant to pay the plaintiff “’a sufficient sum to indemnify [it]’ for an ‘actual loss,’ consistent with MCL 600.1721 – a compensatory sanction that Dougherty recognized as a form of civil contempt,” the Court of Appeals said. “But as an order of civil contempt, it still comes within the rule of Moroun, which holds that an order of civil contempt is not a final order appealable of right.”

Therefore, the defendant “was … required to seek review by application for leave rather than by claim of appeal,” the Court of Appeals held.

Prior Appellate Decisions

The Court of Appeals continued by observing that “[s]ome unpublished opinions of this Court have reached a contrary conclusion regarding our jurisdiction over appeals from orders of compensatory civil contempt.”

Under MCR 7.203(A)(1), “we have jurisdiction over an appeal of right from a final order as defined in MCR 7.202(6),” the Court of Appeals wrote. “That rule includes, among other categories, ‘a postjudgment order awarding or denying attorney fees and costs under court rule or other law.’ … Relying on this provision, those opinions reasoned that a compensatory civil contempt order that includes attorney fees falls within that definition. … We disagree.”

MCR 7.202(6)(a)(iv) “predates Moroun” and “therefore cannot be read as abrogating Moroun or as a subsequent change in law,” the Court of Appeals said. “More importantly, a compensatory contempt award is not an award of ‘attorney fees and costs’ within the meaning of that rule. Section 1721 bars a party from recovering damages in a separate action once a compensatory sanction has been imposed, thereby preventing a double recovery.”

Meanwhile, “the very fact that what would otherwise be recovered twice is damages underscores that a compensatory contempt award is itself a form of damages,” the Court of Appeals explained. “The award here was therefore a form of damages – measured in part by plaintiff’s attorney fees – not an award of attorney fees as such. … That conclusion is reinforced by the reference in MCR 7.202(6)(a)(iv) to ‘costs.’ Taxation of costs is governed comprehensively by MCL 600.2401 et seq., and the expenses plaintiff incurred to remove defendant’s debris from the right-of-way are not taxable costs under that scheme.”

Accordingly, “[w]e … hold that MCR 7.202(6)(a)(iv) does not confer appellate jurisdiction in this circumstance,” the Court of Appeals concluded. “An order of civil contempt is therefore ‘[a]ny other judgment … from the circuit court,’ ‘reviewable only on application for leave to appeal’ under MCL 600.308(2)(c). Because defendant filed a claim of appeal rather than an application for leave to appeal, we lack jurisdiction and must dismiss this appeal.”