98-345 La.App. 5 Cir. 9/15/98, Parish of Jefferson v. Lafreniere Park Foundation

• Decision Date: 15 September 1998
• Citation: 720 So.2d 359
• Parties: 98-345 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 359

720 So.2d 359

98-345 La.App. 5 Cir. 9/15/98

The PARISH OF JEFFERSON, The East Jefferson Park and

Community Center and Playground District of the

Parish of Jefferson and the Jefferson

Parish Council v. The LAFRENIERE PARK FOUNDATION, et al.

No. 98-C-345.

Court of Appeal of Louisiana, Fifth Circuit.

Sept. 15, 1998.

Writ Denied Oct. 28, 1998.

Robert T. Garrity, Jr., Richard E. Anderson, Harahan, Louisiana, for Lafreniere Park Foundation, Thomas G. Chambers, II and Carol Berlier, in their representative capacities.

A. Bruce Netterville, Gretna, Louisiana, for Thomas G. Chambers, II and Carol Berlier, in their representative capacities.

Thomas P. Anzelmo, Metairie, Louisiana, for respondents The Parish of Jefferson, et al.

Panel composed of Judges H. CHARLES GAUDIN, JAMES L. CANNELLA and THOMAS F. DALEY.

[98-345 La.App. 5 Cir. 2] CANNELLA, J.

In this Writ Application, the relators, The Lafreniere Park Foundation (the Foundation), Thomas G. Chambers, III (Chambers), President of the Foundation, and Carol Berlier (Berlier), Executive Director of the Foundation, contest a judgment finding them in contempt of court for failing to abide by a consent judgment.

On October 22, 1996, suit was filed by the respondents, The Parish of Jefferson (the Parish), The East Jefferson Park and Community Center and Playground District of the Parish of Jefferson and the Jefferson Parish Council against the relators for mismanagement of funds. A Temporary Restraining Order (TRO) freezing the Foundation's money was issued. A hearing on the preliminary injunction was continued several times and the TRO extended. As a result, relators sought relief from this court, which denied supervisory writs. In January of 1997, the Louisiana Supreme Court granted writs and ordered the trial [98-345 La.App. 5 Cir. 3] to hold a hearing on the preliminary injunction on January 24, 1997. ¹

On January 24, 1997, the parties entered into a consent judgment, which was read into the record of the court. It states:

All funds and assets held in control by Lafreniere Park Foundation shall only be expended on Lafreniere Park in the normal and lawful business and operating expenses of the Foundation, including professional fees that were capable of being expended prior to August 28th, 1996. The sum of $325,00 will be reserved exclusively for part [sic] expenditures.

And I believe the third item is this case is set for trial on the merits February 27th at 9:00.

The trial was continued and the TRO dissolved. The consent judgment was never reduced to writing and the case was not heard on February 27, 1997. After several continuances, the case was eventually heard on November 14, 1997 and judgment was read and rendered on that date and signed on November 19, 1997. Therein the trial judge granted a declaratory judgment in favor of respondents, ruling that the funds and assets held or controlled by the Foundation were to be expended only on Lafreniere Park. That judgment also ordered that all funds and assets presently held or controlled by the Foundation be transferred into the registry of the court within seven days of the trial and that the Foundation submit all books and records to the Parish for an accounting to be prepared by the Parish and submitted to the court. The judgment also permanently enjoined relators from disbursing any funds to any organization, charitable or otherwise, other than to the Parish for the benefit of Lafreniere Park. A second judgment was rendered in response to a Writ of Quo Warranto previously filed by [98-345 La.App. 5 Cir. 4] The writ was issued, declaring that the amendments made by relators to the Articles of Incorporation of the Foundation which changed the stated purpose of the Foundation were null and void. [Relators filed appeals from both judgments, which were affirmed by this court in The Parish of Jefferson, et al. v. Lafreniere Park Foundation, et al., No. 98-CA-146 c/w 98-CA-147 (La.App. 5th Cir. 7/28/98), 716 So.2d 472.]

On November 24, 1997, the Foundation deposited three checks into the court registry in the total amount of $49,020.95. ² As a result, in December of 1997, the respondents filed a Motion for Contempt against relators for violating the consent judgment of January 24, 1997. Respondents alleged that under the agreement, relators were to reserve $325,000 for park expenditures and that relators had not expended any money since the agreement on the park. They contended that relators should have deposited an additional $276,159.05 in the court registry, in conformity with the January 24, 1997 consent judgment and the November of 1997 judgment.

A hearing on the contempt motion was partially held on January 26, 1998 and completed on March 9, 1998. In February, relators discovered that respondents intended to call Chambers and Berlier to testify at the hearing. Chambers and Berlier objected, asserting that they would assert their Fifth Amendment right against self-incrimination. The trial judge ruled that respondents could call Chambers and Berlier to the stand as witnesses against each other and that she, the trial judge, would decide the Fifth Amendment issue on a question by question basis. Chambers and Berlier filed a writ application in [98-345 La.App. 5 Cir. 5] court. We found the issue to be premature. The Parish of Jefferson, et al. v. Lafreniere Park Foundation, et al., 98-C-228, (La.App. 5th Cir. 2/26/98). The Louisiana Supreme Court also denied writs, without comment. The Parish of Jefferson, et al. v. Lafreniere Park Foundation, et al., 98-0589 (La.3/9/98), 712 So.2d 858.

During the contempt hearing, when Chambers and Berlier were called to testify, a blanket objection was made based on each witness's right against self-incrimination. The trial judge overruled the blanket objection. Both Chambers and Berlier were questioned, without further objection.

Following the contempt hearing, the trial judge found the Foundation to be in contempt of court for failing to produce certain documents as mandated by the November 14, 1997 and December 16, 1997 orders. The trial judge fined the Foundation $500 for each contempt, for a total of $1000 and ordered the Foundation to perform acts to be determined by the Court at a later hearing and to replace the funds that were depleted by a method to be determined at that later hearing set for March 27, 1998. The trial judge also found Chambers and Berlier individually to be in contempt of court for "knowingly violating" the January 24, 1997 consent agreement and fined each one $500. In addition, the trial judge ordered all Bingo proceeds, except for $2,500, to be deposited in the court registry and no other Bingo funds to be withdrawn from the Bingo account for any reason.

The Foundation, Chambers and Berlier filed an application for supervisory writs complaining that the trial judge erred in finding them in contempt of court. They argue that the agreement read into the record was not a judgment, but a contract that respondents breached by continuing the matter past the February trial date. Thus, they argue that the contempt articles do not apply and [98-345 La.App. 5 Cir. 6] have no cause of action for contempt. Second, they argue that they did not violate the November judgment because they deposited the funds that were in their control, as ordered. Third, relators assert that the trial judge erred in forcing them to testify over their blanket objections, in violation of their right against self-incrimination under the U.S. Constitution and the Fifth Amendment. Fourth, relators assert that the trial judge erred in ordering the Bingo proceeds to be paid into the court registry, in violation of La.R.S. 33:4861.5, the charitable Bingo and Keno licensing law.

A. APPLICABILITY OF THE CONTEMPT REMEDY

La.C.C. art. 3071 provides that:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their difference by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form. (Emphasis added.)

Once a consent agreement has been read into the record, it becomes a legal judgment, even if the agreement is not reduced to writing. As a final, valid judgment, such an agreement may be punished by contempt. Alagdon v. Guertin, 97-0235 (La.App. 4th Cir. 10/1/97), 701 So.2d 480, 482. As the agreement read into the record in this case is a legal judgment, the proceedings for contempt are applicable. Thus, respondents are afforded a cause of action for contempt of court.

Relators also complain that the trial date was a condition of the agreement [98-345 La.App. 5 Cir. 7] that respondents breached this agreement by causing the trial date to be continued so many times that they were forced to incur large legal expenses. Thus, they argue, the trial court erred in finding them in contempt of court and the agreement should be rescinded.

Whether respondents breached the agreement is not pertinent for the purpose of the contempt proceedings. The contempt hearing only involves the issue of whether relators violated the court order. Thus, recission is not a remedy here. In addition, we note that the record reflects that relators did not object to the continuances.

B. LEGAL ANALYSIS OF CONTEMPT

Contempt proceedings in civil cases are regulated by La.C.C.P. art. 221-227 and La.R.S. 13:4611. La.C.C.P. art. 224 states:

A constructive contempt of court is any contempt other than a direct one.

Any of the following acts constitute a constructive contempt of court:

(2) Wilful disobedience of any...