Lynn Beth Baum v. David Baum

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

LYNN BETH BAUM, UNPUBLISHED

May 26, 2022

Plaintiff/Counterdefendant-Appellee,

v No. 355489

Oakland Circuit Court

DAVID BAUM, DB ACQUISITION, LLC, DAVID LC No. 2015-149725-CZ

M. BAUM REVOCABLE TRUST, MADISON

EQUITIES, LLC, N.W. PROPERTIES, LLC, and

ALLIANCE EQUITIES, LLC,

Defendants,

and

DAVID BAUM, PC,

Defendant/Cross-Defendant,

and

HOWARD BAUM,

Defendant/Counterplaintiff/Cross-

Plaintiff,

and

FRASER EQUITIES, LLC,

Defendant-Appellant.

LYNN BETH BAUM,

Plaintiff/Counterdefendant-Appellee,

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v No. 355491

Oakland Circuit Court

DAVID BAUM, DB ACQUISITION, LLC, DAVID LC No. 2015-149725-CZ

M. BAUM REVOCABLE TRUST, MADISON

EQUITIES, LLC, N.W. PROPERTIES, LLC, and

FRASER EQUITIES, LLC,

Defendants,

and

DAVID BAUM, PC,

Defendant/Cross-Defendant,

and

HOWARD BAUM,

Defendant/Counterplaintiff/Cross-

Plaintiff-Appellant,

and

ALLIANCE EQUITIES, LLC,

Defendant-Appellant.

Before: MURRAY, P.J., and SAWYER and M. J. KELLY, JJ.

PER CURIAM.

This case involves two separate criminal contempt proceedings that arose from plaintiff

Lynn Baum’s attempt to recover funds that her husband, David Baum, had transferred to his

brother, Howard Baum, and to Howard’s companies in contemplation of Lynn and David’s

divorce.1 In Docket No. 355489, one of Howard’s companies, Fraser Equities, LLC, appeals as of

right the trial court’s order holding it in contempt of court. We reverse in Docket No. 355489

because the court clearly erred when it found that Fraser was in contempt. In Docket No. 355491,

Howard and his company Alliance Equities, LLC, appeal as of right the trial court order finding

them in contempt of court. Because none of Howard and Alliance’s arguments warrant reversal,

we affirm in Docket No. 355491.

1

For ease of reference, the parties will be referred to by their first names.

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I. BASIC FACTS

In contemplation of his divorce from Lynn, David transferred marital funds to his brother,

Howard. Lynn filed a fraudulent-transfer claim, which proceeded to a jury trial. Following the

trial, a jury found that David had fraudulently transferred $240,583.90 to Madison Equities and

$771,451.76 to Fraser Equities. Thereafter, Lynn moved for entry of judgment against Howard,

Madison Equities, and Fraser Equities (the Howard defendants) in the amount of $1,159,737.23.

She also requested an injunction prohibiting any of the Howard defendants from transferring any

of its assets until satisfaction of the judgment. Relevant to the issues raised on appeal, on

December 17, 2018, the court entered an injunction prohibiting “further disposition by the debtor,

David Baum[,] and the transferees, Howard Baum, Madison Equities, LLC and Frasier [sic]

Equities, LLC for the assets transferred or of their other property.” Subsequently, on March 20,

2019, as relevant to this appeal, the court entered an opinion and judgment that awarded Lynn

$982,927.08 as to Fraser.

On August 19, 2019, Lynn moved to require the Howard defendants to show cause why

they should not be held in contempt for violating the December 17, 2018 injunction. Lynn asserted

that four months after entry of the injunction and two days after entry of the trial court’s March

20, 2019 judgment, Fraser violated the injunction by selling real property for $680,000. Following

a hearing, the trial court granted Lynn’s motion for a show cause. At the show-cause hearing, the

primary issue was whether the court’s December 17, 2018 order, enjoining Fraser from transferring

any of its assets, survived entry of the March 20, 2019 opinion and judgment. Although Fraser

had entered into a purchase agreement to sell its property while the injunction was effective, the

property was not transferred until two days after entry of the March 20 judgment. Howard also

asserted that any violation of the injunction was not willful because he had relied on his lawyer’s

advice that the December 2018 injunction was no longer effective.

The contempt proceedings related to the alleged violation of the December 17, 2018

injunction were not quickly resolved. While they were ongoing, Lynn moved for relief

supplementary to judgment under MCL 600.6101 et seq. and MCR 2.621. The court granted her

motion and, on November 14, 2019 entered the following injunction:

[A]n injunction is issued against Alliance and Howard Baum, their officers, agents,

servants, employees, and attorneys, and on those persons in active concert or

participation with them who receive actual notice of the order by personal service

or otherwise, forbidding them to make or suffer any transfer or other disposition of,

or to interfere with, any property belonging to the Judgment Debtors [Fraser

Equities and Madison Equities], or to which they may be entitled or which may

thereafter be acquired by or become due to said Judgement Debtors, or to pay over

or otherwise dispose of any moneys due or to become due to such Judgment

Debtors, . . . .

On January 3, 2020, Lynn filed a motion for entry of a second order requiring Howard and

Alliance Equities to appear and show cause why they should not be held in contempt for violating

the court’s November 14, 2019 injunction. Lynn argued that both Howard and Alliance violated

the court’s order because the same day the order was entered, Howard withdrew $370,000 from

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Alliance’s bank account. Lynn maintained that Howard should be held responsible individually

and as the sole member of Alliance.

After granting Lynn’s motion to show cause as to Howard and Alliance, the court held a

hearing on February 28, 2020, regarding whether Howard and Alliance intentionally violated the

court’s November 14, 2019 order. Lynn introduced evidence, including Howard’s admissions,

that showed that Alliance had issued a cashier’s check in the amount of $370,000 approximately

45 minutes after the trial court issued the November 14, 2019 injunction. The check was drawn

from Alliance’s funds and was made out to Alliance. Howard’s and Alliance’s defense was that

because the check was made out to Alliance and was still under Alliance’s control, there was no

“transfer” in violation of the court’s order.

The court took the matter under advisement and said it would issue its decision at 8:30 a.m.

on March 6, 2020, and it ordered Howard to appear at that time. As described in Baum v Baum,

unpublished per curiam opinion of the Court of Appeals, issued June 24, 2021 (Docket Nos.

351269 and 353066), p 7, Howard was not present for the 8:30 a.m. proceeding. The court afforded

Howard additional opportunities to appear at 11:00 a.m. and 3:00 p.m., but he did not meet any of

those deadlines. Id. The court ultimately held Howard in contempt of court, and this Court

affirmed. Id. at 21-25.

With Howard being remanded to jail for his contemptuous conduct for failing to appear,

the court noted that it would hold its opinion and order on the underlying criminal contempt charge

related to the $370,000 in abeyance. Thereafter, following delays attributable to the COVID-19

pandemic and Howard’s motion to have the trial judge disqualified, the court issued its opinion

and judgment on November 12, 2020. Regarding the first criminal contempt matter, the court held

that the March 2019 judgment did not extinguish the December 2018 injunction. It then found

that Howard was not in contempt, individually and as Fraser’s agent, because, although he violated

the 2018 injunction, he lacked the necessary mens rea to have willfully or intentionally violated it

because he sought the advice of his lawyer. However, the court found that Fraser was in criminal

contempt because it had not received any advice as to whether the December 17, 2018 injunction

remained in effect after the March 2019 judgment was entered.

Regarding the second criminal contempt matter, the court found that both Howard and

Alliance had “willfully disregarded and/or disobeyed” the November 14, 2019 injunctive order.

The court found that Howard, on behalf of Alliance, withdrew $370,000 from Alliance’s account

less than an hour after the court entered its order prohibiting transfers of property and possessed

the resulting cashier’s check, made out to Alliance, from November 14, 2019, until January 22,

2020. The court found that such possession was done with the intent to interfere with the

transferring of Alliance’s property. Likewise, the court found that Alliance had engaged in

criminal contempt through the actions of Howard, its agent.

This appeal follows.

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II. DOCKET NO. 355489—THE FIRST CONTEMPT PROCEEDING

A. STANDARD OF REVIEW

Fraser argues that the trial court erred by holding it in criminal contempt. We review a

trial court’s decision regarding a contempt motion for an abuse of discretion, but review its factual

findings for clear error. DeGeorge v Warheit, 276 Mich App 587, 591; 741 NW2d 384 (2007).

“Clear error exists when the reviewing court is left with a definite and firm conviction that a

mistake has been made.” Id.

B. ANALYSIS

“The elements necessary to support a conviction of criminal contempt are (1) a wilful

disregard or disobedience of the order of the court, and (2) that the contempt is clearly and

unequivocally shown.” People v MacLean, 168 Mich App 577, 579; 425 NW2d 185 (1988). “A

wilful disregard consists of an act, omission, or statement tending to impair the authority or impede

the functioning of the court.” Id. at 579. Here, at the first criminal contempt hearing, Fraser and

Howard offered evidence that Howard had sought the advice of a lawyer regarding the legality of

selling the Fraser property. Howard’s lawyer informed him that it was legal because, in the

lawyer’s opinion, the injunction was no longer in effect after entry of the March 20, 2019

judgment. Based on that evidence, the court found

the record support that Howard sought legal advice; however, it also finds that [his

lawyer] did not file an appearance in this case but there was evidence to support

that [his lawyer] represented Howard only. Based on the factual record as well as

the Michigan law cited by [Lynn], this Court finds that an attorney’s legal advice

is not a valid defense to criminal contempt charges; however, based upon the entire

record, this Court is unable to conclude—beyond a reasonable doubt—that Howard

willfully or intentionally violated this Court’s injunction order given the fact that

he sought [his lawyer’s] advice prior to proceeding with the sale of Fraser’s

property.

Thus, it is clear that the court found that Howard, personally, was not in contempt on the sole basis

that he lacked the requisite intent.

But with regard to Fraser, the trial court found:

the record does not reflect Fraser received any advice—legal or otherwise.

Specifically, [Howard’s lawyer] testified at the hearings. This Court finds that he

did not represent Fraser and did not give any advice to Fraser. There was no

argument or evidence presented that [Howard’s lawyer] represented Fraser.

Therefore, this Court finds that [Howard’s lawyer] did not represent Fraser at the

time (March 20, 2019 to March 22, 2019). Instead, this Court finds that [a different

lawyer] was Fraser’s attorney during the court proceedings and he filed an

appearance as Fraser’s attorney. Further, there is no evidence that [Fraser’s lawyer]

advised Fraser that (1) 2018 Injunction could be extinguished with a judgment and

(2) that Howard could sell Fraser Property. As such, this Court does not find that

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Fraser had any legal advice as to its decision to proceed with the sale of the Fraser

Property.

In sum, the court first found that Howard did not possess the necessary intent to violate the

December 2018 injunction, but reached the opposite conclusion with respect to Fraser. The flaw

in the court’s reasoning is that Howard was Fraser’s sole member and agent. Fraser, as an artificial,

nonliving, nonsentient, business entity, was incapable of truly having any intent. See Green v

Ziegelman, 310 Mich App 436, 450-451; 873 NW2d 794 (2015). Instead, such entities can only

act, and are imputed with knowledge, through its employees. Upjohn Co v New Hampshire Ins

Co, 438 Mich 197, 213; 476 NW2d 392 (1991). Thus, corporations are considered to have

acquired the collective knowledge of its employees. Id. at 213-214. As a result, in order to find

that Fraser had the requisite intent, the court necessarily had to find that one of Fraser’s agents

possessed this intent. Thus, given that the court expressly found that Fraser’s sole agent did not

possess this intent, we conclude that the court clearly erred by finding that Fraser willfully violated

the December 2018 injunction. It is not rational to impute a different intent to Fraser in light of

the court’s finding that Howard, Fraser’s sole agent, lacked criminal intent. We therefore reverse

the order holding Fraser in contempt.2

III. DOCKET NO. 355491—THE SECOND CONTEMPT PROCEEDING

A. SUFFICIENCY OF AFFIDAVIT

Howard and Alliance first argue that the trial court erred by proceeding with the show-

cause hearing because Lynn’s motion to show cause was defective on account of the accompanying

affidavit. This issue involves the interpretation and application of court rules, which this Court

reviews de novo. Kernen v Homestead Dev Co, 252 Mich App 689, 692; 653 NW2d 634 (2002).

“A trial court has inherent and statutory authority to enforce its orders.” In re Moroun, 295

Mich App 312, 331; 814 NW2d 319 (2012). “The trial court must carry out the proper procedures

before it can issue an order holding a party or individual in contempt of court.” Id. MCR 3.606(A)

states:

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

(1) order the accused person to show case, 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.

In turn, the supporting affidavits must meet the requirements of MCR 2.119(B)(1), which provides:

2

Given our resolution, we need not address the additional arguments raised by Fraser on appeal in

Docket No. 355489.

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If an affidavit is filed in support of or in opposition to a motion, it must:

(a) be made on personal knowledge;

(b) state with particularity facts admissible as evidence establishing or

denying the grounds stated in the motion; and

(c) show affirmatively that the affiant, if sworn as a witness, can testify

competently to the facts stated in the affidavit.

In his affidavit, Lynn’s lawyer identified the November 14, 2019 injunction prohibiting

any transfer of any of Alliance’s assets, and he averred that on that same day, $370,000 was

withdrawn from Alliance’s bank account. He explained that he had personal knowledge of the

transaction based on his review of bank records, which he obtained through a subpoena.

On appeal, Howard and Alliance argue that Lynn’s lawyer’s affidavit is defective because

it was based on hearsay and not personal knowledge. They note, in particular, that Lynn’s lawyer

was not present at the purported transfer of money. 3 Their argument, however, fails to recognize

that the bank records referenced in the affidavit fall within an exception to the hearsay rule. MRE

803(6) specifically excepts from the hearsay rule records that are kept in the course of a regularly

conducted business activity.4 Consequently, because Lynn’s lawyer affidavit establishes that he

had personal knowledge regarding how he obtained the business record and had personal

knowledge about the contents of the business record, the affidavit complied with MCR 3.606(A)

and MCR 2.119(B)(1), and the court did not err by granting Lynn’s motion to conduct a show-

cause hearing.5

B. QUASHING OF SUBPOENA

Howard and Alliance next argue that the trial court erred by quashing their subpoena to

have Lynn’s lawyer testify at the show-cause hearing. This Court reviews for an abuse of

3

Howard and Alliance also contend that the affidavit should be deemed deficient because it states

that Lynn’s lawyer could testify “completely” instead of “competently.” But they offer no

authority that this alteration in words is fatal to an affidavit. Indeed, it is presumed that every

person is competent to be a witness. MRE 601.

4

The trial court later admitted the bank record, with Howard and Alliance taking no issue with its

admission. In addition to the bank record itself, an affidavit from a representative of the bank was

admitted. The significance of that affidavit from the custodian of the record was to show that the

record was maintained in the course of a regularly conducted business activity.

5

Howard and Alliance’s reliance on Ferranti v Electrical Resources Co, 330 Mich App 439; 948

NW2d 596 (2019) is misplaced. In that case, the affiant provided the content for his affidavit after

asking “members of [his] support team and [the] operations team to pull the data that was being

requested.” Id. at 446. This Court held, among other deficiencies in the affidavit, that the affiant

lacked personal knowledge. Id. Yet, unlike this case, there is no hearsay exception to the

information the affiant learned from others. As a result, this case is distinguishable from Ferranti.

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discretion a trial court’s decision to quash a subpoena. Fette v Peters Constr Co, 310 Mich App

535, 547; 871 NW2d 877 (2015). “MCR 2.506 is the general rule governing the issuance of

subpoenas” compelling a person to testify at trial. In re Investigation of March 1999 Riots in East

Lansing, 463 Mich 378, 380 n 1; 617 NW2d 310 (2000). The proper way to challenge such a

subpoena is stated in MCR 2.506(H).

Here, Lynn’s lawyer moved under MCR 2.506(H) to quash the subpoena. However, he

further argued that the subpoena was defective because it did not comport with MCR 2.506(G)(1),

which provides, in pertinent part, that “[t]he fee for attendance and mileage provided by law must

be tendered to the person on whom the subpoena is served at the time of service.” At the hearing,

without addressing Lynn’s lawyer’s other arguments, the court granted the motion to quash the

subpoena solely on the basis that there were no fees tendered to Lynn’s lawyer at the time of

service.

Although nothing in the language of MCR 2.506(G)(1) precludes its application to criminal

or quasi-criminal matters, Howard and Alliance argue that in criminal proceedings, the witness

and mileage fees can be paid after the witness testified. On appeal, they direct this Court to cases

from our Supreme Court that show that fees do not need to be tendered until after the witness has

testified.

They first rely on Chase v Kalamazoo Circuit Judge, 154 Mich 271; 117 NW 660 (1908),

which involved a criminal prosecution for violating a provision of the pure food act. Id. at 271-

272. Although the county prosecutor was representing the people, a representative of the Attorney

General’s office was assisting. Id. at 272. The prosecutor’s office and the Attorney General’s

office disagreed about who was responsible for paying witness fees. The prosecutor argued that

under the pure food act, the expense of the witnesses and officers should be paid by the state, while

the Attorney General argued that the fees should be paid by the county, just like in other criminal

cases. Id. The Court admonished the parties and ruled as follows:

Fees in criminal cases are not required to be paid in advance. They are only

paid after the trial upon due proof of attendance. The statute makes it “the duty of

all prosecuting officers of this state to prosecution to completion all suits brought

under the provisions of this act upon the complaint of the commissioner or of any

citizen.” Section 20, No. 193, p 362, Pub Acts 1895. We find nothing in the statute

to authorize the issuing of a subpoena in any other than in the ordinary form. The

proper time to raise the question of liability is after the expenses have been incurred,

and by some proper proceeding to determine whether the state or the county is

liable. Criminal trials should not be delayed by raising questions of this character.

It was the duty of the prosecuting attorney to instruct the clerk to issue subpoenas

in the ordinary form and in the customary way. The court, when the matter was

brought to its attention, should have instructed its clerk to issue the usual subpoenas

in criminal cases. [Id. at 273.]

Thus, it appears that the Court determined that fees in criminal cases are not required to be paid in

advance by interpreting a statute.

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Howard and Alliance have not identified a pertinent statute allowing witness fees to be

paid after a witness testifies. To the extent that there is a statute that applies to the present

circumstance and allows witness fees to be paid after a witness testifies, such a requirement would

directly conflict with the current court rule. It is clear that when a witness is to be paid his fee is a

matter of procedure and not one of substantive law. Being a matter of pure procedure, the court

rule would take precedence. See Stenzel v Best Buy Co, Inc, 320 Mich App 262, 279; 906 NW2d

810 (2017). Therefore, our Supreme Court’s interpretation of a statute in 1908 is not controlling.

Howard and Alliance also rely on In re Petition of Labor Mediation Bd, 365 Mich 645,

655; 114 NW2d 183 (1962), in which the Court ruled that “[t]he trial judge correctly held that

tendering of witness fees to defendants at the time the subpoenas were served was not required.”

First, the Labor Mediation case involves the authority of the state’s labor mediation board and did

not involve a criminal proceeding, id. at 647, so it does not stand for the proposition that Howard

and Alliance suggest (that in criminal cases, witness fees do not need to be paid until after the

witness testifies). Second, the Court’s pronouncement again was an interpretation of statutory law,

1948 CL 423.1 et seq. and 1948 CL 423.201 et seq., which are known as the labor mediation act

and the public employment relations act. Labor Mediation, 365 Mich at 647 & n 1, 652 & n 3.

There is no contention that these statutory provisions involving labor mediation boards pertain to

the instant criminal contempt proceeding in a civil case.

Howard and Alliance lastly impliedly suggest that the trial court should have entertained

other, less severe remedies for failing to comply with MCR 2.605(G)(1). They cite Castillon v

Roy, 412 Mich 873 (1981), in which the Supreme Court held that the trial court abused its

discretion when it quashed a subpoena “without further inquiry into the circumstances.” Id. The

Court stated that “the evidence at issue was essential to a fair hearing of plaintiff’s claims.” Id.

This case is distinguishable because Lynn’s lawyer’s testimony would not be essential to a fair

hearing.6 Lynn’s lawyer’s testimony ostensibly would have clarified how he obtained various

documents from the bank. But how he received the documents was not pertinent to any defense.

Indeed, at the time of the court’s ruling, Howard had already submitted an affidavit in which he

admitted that, as sole member of Alliance, he withdrew $370,000 from Alliance’s bank account.

Howard and Alliance defended on the ground that because the funds were contained within a

cashier’s check made out to Alliance, and because Alliance maintained control over the check,

there was no “transfer” of funds. Thus, Lynn’s lawyer’s limited knowledge would have been of

no assistance in resolving any pertinent factual disputes. Accordingly, the court did not abuse its

discretion when it quashed the subpoena to compel Lynn’s lawyer’s to appear and testify.

6

At the hearing, the defense lawyer admitted that Lynn’s lawyer’s testimony was not “essential”

when he conceded that he did not know if he would need to call Lynn’s lawyer’s as a witness.

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For the same reasons, Howard and Alliance’s claim that they were denied the right to

present a defense is without merit.7 Howard and Alliance argue on appeal that by quashing the

subpoena, the trial court “precluded [them] from presenting testimony Plaintiff was without

admissible evidence as to (i) who requested the cashier’s check, (ii) precisely when it was requested

and (iii) under what circumstances it was requested.” However, at the February 28, 2020 hearing,

Howard and Alliance’s lawyer stipulated to the admission of the copy of the cashier’s check “with

the understanding that this is a copy of the document that I gave [Lynn’s lawyer] in court on or

about January 22nd, and I believe I tendered to the Court a colored copy of that.” Thus, Howard

and Alliance’s lawyer knew how Lynn’s lawyer received a copy of the check. Additionally,

Howard and Alliance do not explain how it is relevant who requested the record of the cashier’s

check (from the bank), precisely when that request was made, and under what circumstances the

request was made. Based on our own review of the record, we do not see how any of that

information has any material evidentiary value. Indeed, none of those inquiries relates to whether

Howard or Alliance willfully violated the trial court’s 2019 injunction. As a result, Howard and

Alliance have failed to show how, if they were precluded from presenting a defense, the error was

outcome-determinative.

C. FACTUAL FINDING OF PERSONAL INVOLVEMENT

Howard argues that the trial court’s finding that he was the person who withdrew the

$370,000 on behalf of Alliance was not supported by the admissible evidence. Specifically, he

challenges the court’s findings that he was the person who personally requested the cashier’s check

and withdrew the $370,000 from Alliance’s bank account. Howard claims that in order for the

court to have reached these conclusions, it had to have relied on proposed Exhibit 4, a copy of a

withdrawal slip from the bank. Proposed Exhibit 4 was never admitted into evidence. Thus, the

question is whether the trial court’s findings are clearly erroneous after a review of the entire

(admissible) record. See Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990) (stating

that a review of whether a finding was clearly erroneous requires consideration of “all the

evidence”).

We do not have a definite and firm conviction that the trial court made a mistake when it

found that Howard was the person who requested the cashier’s check and withdrew the money

from Alliance’s bank account. Notably, the trial court, as the finder of fact, was permitted to draw

logical inferences from the evidence. See People v Oros, 502 Mich 229, 239; 917 NW2d 559

(2018) (“ ‘Circumstantial evidence and reasonable inferences arising from that evidence can

constitute satisfactory proof of the elements of a crime.’ ”) (citation omitted); People v Reese, 491

Mich 127, 156; 815 NW2d 85 (2012) (stating that the trial court is permitted to make findings on

the basis of logical inferences from the testimony). Howard had admitted that he was the sole

7

Howard and Alliance aver, with no argument in support, that the denial of the right to present a

defense is a structural error requiring reversal. By failing to present support for this claim, they

have abandoned review of it. See People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480

(1998) (“An appellant may not merely announce his position and leave it to this Court to discover

and rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with

little or no citation of supporting authority.”).

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member of Alliance and that Alliance had withdrawn the $370,000 from its account. It is well

established that corporations and other business entities can only act through their agents. AB

Petro Mart, Inc v Ali T Beydoun Ins Agency, Inc, 317 Mich App 290, 296 n 2; 892 NW2d 460

(2016); see also MCL 450.4401(a) (stating that members of LLCs are considered managers) and

MCL 450.4406 (stating that managers are agents of the LLC). Therefore, with Howard being

Alliance’s sole member and manager, and there being no evidence of anyone else acting on behalf

of Alliance, the trial court did not clearly err by finding that Howard was the person who initiated

and effectuated the withdrawal of the $370,000.

D. OTHER FACTUAL FINDINGS

Howard and Alliance argue that the trial court clearly erred by finding that they willfully

violated the court’s November 14, 2019 order. First, Howard and Alliance argue that there was

no violation of the order because there was no “transfer” of funds. The order however precluded

them from “mak[ing] or suffer[ing] any transfer or other disposition of, or to interfere with, any

property belonging to the Judgment Debtors . . . .” Thus, the injunction not only prohibited the

“transfer” of property, but also prohibited “other disposition” and more importantly, it prohibited

them from “interfer[ing]” with property.

Although the defense expert opined that creating a cashier’s check does not “transfer”

funds but merely qualifies as a “certification” of funds, the trial court was not obligated to accept

that opinion. See People v Jackson, 390 Mich 621, 625 n 2; 212 NW2d 918 (1973). Moreover,

the court was free to find that the creation of the cashier’s check constituted an interference with

property. “Interfere” is defined, in pertinent part, as “to interpose in a way that hinders or

impedes.” Merriam-Webster’s Collegiate Dictionary (11th ed). The evidence showed that

Alliance created a cashier’s check made out to itself in the amount of $370,000, which removed

the funds from its bank account. Alliance then proceeded to hold onto the check until it was

ordered to redeposit the funds two months later. There is no apparent purpose, other than to create

interference, for one to create a cashier’s check in the person’s own name and to hold onto it.

Neither Howard nor Alliance proffered any explanation for this action. Consequently, from the

record evidence, the trial court did not clearly err by finding that the $370,000 withdrawal and

creation of a cashier’s check violated the November 14, 2019 order.

Howard and Alliance also argue that they cannot be held in contempt because there was

insufficient evidence to show that they possessed the requisite mens rea. As noted before, a finding

of criminal contempt requires there to be a willful disregard or disobedience of a court order.

MacLean, 168 Mich App at 579. Howard and Alliance contend that because there was no evidence

that they had actual knowledge of the November 14, 2019 order, it is impossible to satisfy the

“willful” element. We disagree.

Evidence was admitted that showed that the November 14, 2019 order was entered at

approximately 4:00 p.m. and that the $370,000 withdrawal occurred approximately 47 or 48

minutes later. Howard and Alliance do not seriously challenge these findings and even accepted

them at the hearing. In attempting to prove that Howard and Alliance possessed actual knowledge

of the court’s injunction, Lynn directed the court to the fact that Howard and Alliance were served

with the order electronically. Although Howard and Alliance argued that this did not prove actual

knowledge because only their lawyers were actually notified through the electronic service, logical

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inferences are permissible and minimal circumstantial evidence is needed to prove a defendant’s

state of mind. See Oros, 502 Mich at 239 (citation omitted). The circumstantial evidence

supported an inference that after their lawyers were notified of the order’s existence, Howard and

Alliance were informed about it. Indeed, the temporal proximity between the issuance of the order

and the withdrawal of funds is circumstantial evidence that Howard and Alliance knew about the

order. This is especially true when there was nothing else in the record—other than the issuance

of the order—that would prompt Alliance to take this action. Further, with no explanation

(plausible or otherwise) for why Alliance needed or wanted to deplete its bank account and issue

a cashier’s check in its own name, it was permissible for the court to infer that the transfer was

done in defiance of the court’s order and with intent to create interference with the funds.

Therefore, the trial court did not clearly err.

E. APPLICABILITY OF MCL 600.1721

Howard and Alliance argue that the trial court erred by relying on MCL 600.1721 in

ordering restitution as part of their punishment for being found in criminal contempt. In its

opinions and orders finding Howard and Alliance in criminal contempt, the trial court sentenced

them, in pertinent part, to “pay for restitution to Lynn Baum pursuant to MCL 771.3(1)(e), MCL

600.1721 and Taylor v Currie, 277 Mich App 85[; 743 NW2d 571] (2008).” Notably, the trial

court relied on three different authorities to impose the sanction of restitution: MCL 771.3(1)(e),

MCL 600.1721, and Taylor. On appeal, Howard and Alliance only contest the appropriateness of

two of those authorities; they do not address MCL 771.3(1)(e). It is well established that an

appellant’s failure to dispute the basis of a trial court’s ruling constitutes a waiver. See Pegasus

Wind, LLC v Tuscola Co, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 355715);

slip op at 20 (stating that this Court need not review a claim of error when the appellant fails to

address the basis of the lower court’s ruling). By failing to address the trial court’s reliance on

MCL 771.3(1)(e), Howard and Alliance have abandoned any challenge to the imposition of

restitution.

F. DUE PROCESS

Howard argues that the trial court violated his due-process rights by imposing his

punishment for criminal contempt. Howard never raised this issue in the trial court, so it is

unpreserved. We review unpreserved constitutional issues for plain error affecting substantial

rights. People v Posey, 334 Mich App 338, 346; 964 NW2d 862 (2020).

MCL 600.1715(1), which governs punishment for criminal contempt, provides:

Except as otherwise provided by law, punishment for contempt may be a

fine of not more than $7,500.00, or imprisonment which . . . shall not exceed 93

days, or both, in the discretion of the court. The court may place an individual who

is guilty of criminal contempt on probation in the manner provided for persons

guilty of a misdemeanor as provided in chapter XI of the code of criminal

procedure, 1927 PA 175, MCL 771.1 to 771.14a.

The trial court, while relying on this provision, imposed the following jail sentence as part of

Howard’s punishment:

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 Howard Baum shall be sentenced to 60 days in the Oakland County Jail.

This Court suspends 50 days of Howard Baum’s sentence. The remaining

10 days shall be held in abeyance and is subject to execution at any time

without further order or review or subsequent hearing.

On appeal, Howard claims that the open-ended enforcement of the 10-day imprisonment

violates his due-process rights as a probationer. See People v Sutton, 322 Mich 104; 33 NW2d

681 (1948) (stating that a probationary order must be sufficiently clear to notify the probationer

what is required of him). However, we do not read the trial court’s order as providing that the 10-

day sentence would be enforced upon violation of probation. The plain language of the order

allows the trial court to enforce it “at any time.” Accordingly, we will review this issue in context.8

An open-ended, delayed execution of a sentence of imprisonment was addressed in People

v Levandoski, 237 Mich App 612; 603 NW2d 831 (1999). In Levandoski, the defendant pleaded

guilty to operating a vehicle while impaired and was sentenced to 90 days in jail. Id. at 614.

However, because of a shortage of jail space, the defendant was sent home until further notice. Id.

More than five years after his guilty plea, the defendant was notified that he was to report to jail

to serve his 90-day sentence. Id. at 615. This Court reversed and held that the defendant’s due-

process rights were violated. Id. at 622. This Court noted that the constitution prohibits “the

government from requiring a defendant to serve his sentence at any time after the sentence is

imposed.” Id. This Court explained that a sentence is not automatically voided because of the

state’s delay in implementing it; rather a review of “the totality of the circumstances” is needed to

determine if a defendant’s due-process rights would be violated. Id. at 623. One of the main

factors to consider is the length of time between the imposition and the attempted execution of a

sentence Id.

Because there has been no attempt to enforce the 10-day sentence, this issue is not ripe for

appellate review. Due process is implicated when there is, among other things, a deprivation of

liberty. See Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 201; 761 NW2d 293 (2008).

Until the 10-day sentence is enforced, Howard will not have been deprived of any liberty.

Moreover, because the primary concern is the amount of time that has passed between sentencing

and the enforcement of that sentencing, with there being no attempt at enforcement yet, that factor

cannot properly be analyzed.9 Accordingly, any claim related to the enforcement of that sentence

is premature and not ripe for appellate review, see Van Buren Twp v Visteon Corp, 319 Mich App

538, 554; 904 NW2d 192 (2017) (stating that a party has to have sustained an actual injury for a

claim to be ripe). We, therefore, decline to address it at this time.

8

To the extent Howard avers that the terms of his probation are not clear, that argument has no

merit. The order of probation clearly spells out the requirements: it sets the start and end dates of

probation; it requires Howard to not violate any criminal law; it requires Howard to seek

permission of the court before leaving the state; and it requires him to pay restitution to Lynn.

9

Likewise, because this issue is not ripe and was not raised in the trial court, there is nothing in

the record addressing the totality of the circumstances, such as Howard’s conduct since the date of

sentencing. See Levandoski, 237 Mich App at 623-626.

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IV. CONCLUSION

In Docket No. 355489, we reverse the court’s order holding Fraser in criminal contempt of

court. We do not retain jurisdiction. Fraser, as the prevailing party, may tax costs. MCR 7.219(A).

In Docket No. 355491, we affirm. Lynn, as the prevailing party, may tax costs. MCR 7.219(A).

/s/ Christopher M. Murray

/s/ David H. Sawyer

/s/ Michael J. Kelly

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