3.7Requirements for Affidavits
“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.” MCR 2.119(B)(1).
“Sworn or certified copies of all documents or parts of documents referred to in an affidavit must be attached to the affidavit unless the documents:
(a) have already been filed in the action;
(b) are matters of public record in the county in which the action is pending;
(c) are in the possession of the adverse party, and this fact is stated in the affidavit or the motion; or
(d) are of such nature that attaching them would be unreasonable or impracticable, and this fact and the reasons are stated in the affidavit or the motion.” MCR 2.119(B)(2).
The following subsections discuss how the formal requirements for affidavits in MCR 2.119(B) have been applied in the context of contempt proceedings.
A.Affidavits Must Be Based on Personal Knowledge
The affidavit attached to the ex parte motion “must be made on personal knowledge . . . and show affirmatively that the affiant, if sworn as a witness, can testify about the facts stated in the affidavit.” In re Contempt of Steingold, 244 Mich App 153, 158 (2000). “Although an affidavit must be verified by a person with personal knowledge of the facts, the court may rely on reasonable inferences drawn from the facts stated.” Id.
The affidavit requirements were not satisfied where the ex parte motion was supported with an unsworn, unsigned written statement of the conduct that allegedly constituted contempt. In re Contempt of Steingold, 244 Mich App at 156-157. Additionally, the statement contained hearsay statements made by unidentified individuals outside the presence of the plaintiff; accordingly, the hearsay statements were not based on the personal knowledge of the plaintiff. Id. at 159. The Court further found that the sworn portion of the form motion and order to show cause did not satisfy the requirements for affidavits because the statement that the alleged contemnor “wilfully created an obstruction of the performance of the court’s judicial duties” was not specific enough to support a finding of contempt. Id. at 159 (quotation marks omitted). Further, the alleged contemnor was served by facsimile instead of the required personal service. Id. at 158 (noting that the alleged contemnor did not challenge the validity of the manner of service).
An affidavit “was not necessarily premised on personal knowledge” where the affiant relied on other people from his company to get the data for the content of his affidavit, “was not aware” if the alleged contemnor was the person associated with the activity that potentially violated a discovery order, and could not establish contemptuous acts because he “could not detail what changes were made or whether the contents of the documents were modified” in violation of the discovery order. Ferranti v Electrical Resources Co, 330 Mich App 439, 446 (2019) (holding “the trial court erred by ordering a show-cause hearing on the basis of the submitted affidavit”).
The affidavit attached to the ex parte motion “must . . . state with specificity admissible facts establishing the grounds stated in the motion . . . .” In re Contempt of Steingold, 244 Mich App at 158. However, the affidavit need not be as detailed as a criminal information. Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202, 215 (1966). The court can only consider charges that the alleged contemnor has been notified of and allowed an opportunity to defend against. See In re Gilliland, 284 Mich 604, 613 (1938) (setting aside a conviction for indirect contempt because the charges were not filed against the accused, and he had no opportunity to answer them and prepare a defense).
The affidavits were not specific enough in regard to a defendant who was mentioned in two affidavits as being with a group of men, some of which were throwing stones, and as being in an authorized picket line. Cross Co, 377 Mich at 214. The Court held that these statements were not sufficient to support a charge of contempt against the defendant where the allegations of contempt were engagement in illegal threats, specific acts of violence, mass picketing, or being in such close association with those activities as to have been a part of what took place. Id. at 213-215.
The defendant’s conviction of criminal contempt was reversed where the charge stated in the show cause order was that the defendant failed to disclose, through perjury, his ownership interest in two automobiles, but he was convicted for criminal contempt based on making a false statement to conceal a bank account. In re Contempt of Rochlin, 186 Mich App 639, 649 (1990). “Due process required that [the] defendant receive more specific notice of the charge of which he was found guilty in order to give him the opportunity to prepare a defense against that particular charge.” Id. (holding that being informed of the charge during the plaintiff’s opening statement on the first day of the trial did not provide sufficient notice).
C.Service of Motion and Affidavit on Alleged Contemnor
“When proceedings for contempt for disobeying any order of the court are initiated, the notice or order shall be personally delivered to such party, unless otherwise specially ordered by the court.” MCL 600.1968(4). See also MCR 2.107(B)(1)(b). See also In re Smilay, 235 Mich 151, 156 (1926) (service of affidavit alleging violation of injunction on attorney for contemnor was insufficient); In re Contempt of Steingold, 244 Mich App at 158 (noting that personal service on the alleged contemnor is required where contempt proceedings for violating a court order are initiated).