Omni Holding and Dev. Corp. v. 3D.S.A., 03-841.

• Citation: 356 Ark. 440,156 S.W.3d 228
• Decision Date: 25 March 2004
• Docket Number: No. 03-841.,03-841.
• Parties: OMNI HOLDING AND DEVELOPMENT CORPORATION and Tom Papachristou v. 3D.S.A., INC.
• Court: Supreme Court of Arkansas

156 S.W.3d 228

356 Ark. 440

OMNI HOLDING AND DEVELOPMENT CORPORATION and Tom Papachristou v. 3D.S.A., INC.

No. 03-841.

Supreme Court of Arkansas.

March 25, 2004.

Lyons, Emerson & Cone, P.L.C., by: Scott Emerson, Jonesboro, for appellant Omni Holding and Development Corporation.

Fogleman & Rogers, by: Joe M. Rogers, West Memphis, for appellee.

ROBERT L. BROWN, Justice.

Appellant Omni Holding and Development Corporation (Omni) appeals from an order, finding it to be in civil contempt for refusing to deliver to appellee 3D.S.A., Inc. (3D), all of the aviation property it was ordered to deliver by the circuit court. The circuit court further found Omni's "managing officer," Tom Papachristou, in criminal contempt for personally directing Omni employees to switch data plates on several planes and for intentionally refusing to deliver certain items in the order of delivery in an assembled manner. The circuit court fined Omni $75,000, to be payable to 3D, and sentenced Papachristou to sixty days' imprisonment. Omni raises four points on appeal: (1) that the circuit court erred in finding it in civil contempt and Papachristou in criminal contempt; (2) that the circuit court erred in awarding 3D possession of a plane which was the property of another person not made a party to the action; (3) that Arkansas Code Annotated § 18-60-819 (Repl.2003), is unconstitutional as applied to the facts of this case; and (4) that the circuit court erred in admitting certain FAA reports into evidence because they were hearsay. We affirm the contempt order of the circuit court as modified.

On January 23, 2003, 3D filed a replevin action against Omni. The complaint asserted that under an aircraft and equipment lease agreement which expired on December 31, 2002, 3D had leased nine separate aircraft, logbooks, spraying equipment, and spare parts to Omni. 3D alleged that it had demanded the return of its property, both orally and in writing, but Omni had refused to return the property. 3D further asserted that the value of the nine aircraft totaled $610,000, and that it was entitled to the sum of $25,000 for wrongful detention of its property.

Omni answered 3D's complaint and denied that 3D had a superior right to possession of the planes and other items. Omni admitted that the aircraft were leased to it by 3D but claimed the lease had been renewed. It further admitted that it refused to return the aircraft, because it had expended great time and expense in preparing the planes for its participation in the Boll Weevil Eradication Program in the upcoming season. A hearing was held by the circuit court, at the conclusion of which, the court ruled:

The Court will order immediate possession of the 9 aircraft identified by the contract to ... 3D SA Corporation, now an Arkansas corporation, according to the proof. And they're to be delivered along with all log books and parts and equipment that is associated with each aircraft.

....

I'm ordering [these 9 airplanes] returned to the registered owner. In fact that's not even in dispute — the right to possess on the part of Omni is based upon the lease. The lease expired December the 31st. Your argument that the clause that required some vague notice that would extend the contract, I don't buy. I do buy your argument — and will hear that at a later time — that you may be damaged as a result of that, that there might be a breach of one of the terms of the contract and under that breach, you sustained damages. I'm not hearing the issue of damages today.

....

[With respect to two planes which may have had their data plates swapped,] I'll order that the two aircraft in question are not to be disturbed, modified, altered, or in any way delivered to third parties until such time as proper authorities can identify the rightful aircraft.

On February 10, 2003, the circuit court entered its order of delivery and directed the sheriff to take possession of the property at issue and deliver it to 3D. It further directed Omni to aid and assist the sheriff in this and expressly ordered Omni not to interfere with delivery of the property. The court set a bond in the amount of $1,120,000 to enable Omni to obtain redelivery of the property. The court also ordered that two Cessna airplanes, N-9091F, and N-19236G, be impounded and held by the sheriff for the sheriff and 3D to determine which of the two planes was 3D's property.

On February 20, 2003, 3D filed a petition for contempt in the circuit court, alleging that 3D had continuously sought delivery of the property set forth in the order of delivery, but that Omni had failed to comply with that order. In particular, the petition asserted that Omni: (1) failed to aid and assist in effecting delivery by delaying delivery of some of the property; (2) failed to provide access to all of Omni's premises; (3) interfered with the Sheriff and 3D in effecting delivery; and (4) removed, altered, destroyed, or substituted certain property or parts. The petition added that Omni had failed to deliver certain log books, failed to deliver or account for certain engines and propellers, and had delivered certain unidentifiable engine parts. 3D requested that Omni and its president, Kim Crockett, and its general manager, Papachristou, be ordered to appear and show cause why they should not be held in contempt.

A show-cause hearing was ordered by the court, and on April 10, 2003, the contempt hearing commenced.¹ Testimony was taken and at the conclusion of the hearing, the court ruled:

From the evidence I've heard, I have no difficulty at all in finding that Omni Corporation made — is in contempt of Court-and made a direct effort to conceal property that the corporation or its agents, officers, or employees knew or had reason to believe was the property of 3D Corporation subject to a lease and that they made deliberate efforts to conceal the identity of that property and to return to 3D property other than the property covered by the lease, which was owned by 3D.

I'm specifically finding that Omni Corporation — the corporation itself — is in civil contempt.

I'm also specifically finding that Tom Papachristou was the managing officer or employee of Omni Corporation, that he had the duties and responsibilities to conduct the day-to-day activities of the business with regard to maintaining and flying and contracting the aircraft.

I'm finding specifically that he personally directed employees or agents to remove the data plates from two aircraft, to swap engine parts, and I'm finding him in criminal contempt and am going to sentence him to 60 days in the county jail.

....

I'm persuaded somewhat by the argument that has been made that the money award, if any, should be perhaps reserved for an argument to the jury. On the other hand, I feel that a money award against the corporation is appropriate, and I'm going to allow a $75,000 civil contempt judgment in the way of civil damages for willful violation of the Court's Order.

....

Mr. Papachristou can extricate himself from the criminal contempt by immediate compliance with the previous Order of the Court. That would include delivery of all of the parts and equipment, the GPS's, radios, spray equipment, and the other attachments belonging to the leased property at the time he received it and in working condition. Short of that, he'll serve the 60 days in jail.

....

Yeah, I think to make 3D whole will be a part of that. In order to purge himself of contempt, he'll have to make 3D whole to the extent of that civil judgment and the return of the other items.

An order memorializing the court's ruling on contempt was entered on May 19, 2003. In that order, the court found Omni in civil contempt and stated that the award of $75,000 against Omni "is found by the court to be in the nature of punitive damages against Omni." The court also said that Papachristou could purge himself of the criminal-contempt sentence of sixty days' imprisonment "by immediately delivering to 3D all of the properties Omni was ordered to deliver ... and the payment of $75,000.00 to 3D to make 3D whole[.]" The court concluded that delivery of the items to 3D shall in no way result in the purging of the award of $75,000.00 "punitive damages" against Omni and in favor of 3D unless such sum is paid.

Omni subsequently asked the court to amend its findings, and to stay its order pending appeal, and to declare Ark.Code Ann. § 18-60-819 unconstitutional. On May 29, 2003, an order was entered in which the circuit court set the amounts for cash or corporate bonds to be posted by Omni for various actions it might desire to take with respect to certain pieces of property. The order further fixed a supersedeas cash bond in the amount of $75,000 for Omni and bond for Papachristou in the amount of $75,000 to remain free pending the appeal of his conviction for criminal contempt. Both bonds were posted. The court denied Omni's motion to amend findings and its motion to declare Ark.Code Ann. § 18-60-819 unconstitutional.

I. Contempt

Omni's principal contention in this appeal is that the circuit court erred in finding it in civil contempt and Papachristou in criminal contempt, because 3D failed to show that either party willfully committed any wrongful act after the entry of the February 10, 2003 order of delivery. Omni further asserts that if it damaged or mistreated 3D's planes, 3D had an adequate remedy at law in the form of damages. It contends that there was no credible proof that Omni interfered with the delivery of the property pursuant to the court's order, and further, that the court's order was unclear in its directive to return assembled planes when the court also ordered Omni not to touch or alter the planes. Omni maintains that the circuit court erred in its findings of contempt, because the court "inter-mingled civil and criminal contempt." Omni urges that punishing it or its agents with contempt basically amounts to imprisonment for debt, which...