Cadle Co. v. Lobingier

• Decision Date: 21 June 2001
• Citation: 50 S.W.3d 662
• Parties: (Tex.App.-Fort Worth 2001) THE CADLE COMPANY, DANIEL C. CADLE A/K/A DAN CADLE, AND CITIZENS AGAINST CORRUPT ATTORNEYS, APPELLANTS v. DAVID B. LOBINGIER, APPELLEE NO. 2-98-257-CV
• Court: Texas Court of Appeals

Page 662

50 S.W.3d 662 (Tex.App.-Fort Worth 2001)

THE CADLE COMPANY, DANIEL C. CADLE A/K/A DAN CADLE, AND CITIZENS AGAINST CORRUPT ATTORNEYS, APPELLANTS v. DAVID B. LOBINGIER, APPELLEE

NO. 2-98-257-CV

Court of Appeals of Texas, Fort Worth

JUNE 21, 2001

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Alan Wilson, Fort Worth, F. Dean Armstrong, Flossmoor, IL, Rittenhouse and Savant, P.C., William W. Rittenhouse, Austin, for Appellant.

Bourland, Kirkman, Seidler, & Evans, L.L.P., David L. Evans, Thomas M. Michel, Fort Worth, for Appellee.

EN BANC and DAVID L. RICHARDS, J. (Sitting by Assignment).

OPINION ON EN BANC REVIEW

SAM J. DAY, JUSTICE

I. Introduction

After reviewing David B. Lobingier's motion for en banc review, we grant the motion in part and deny it in part. We withdraw our opinion and judgment of October 5, 2000 and substitute the following in their place.

In this appeal, The Cadle Company (Cadle), Daniel C. Cadle a/k/a Dan Cadle (Daniel), and Citizens Against Corrupt Attorneys (CACA) attack three separate judgments: this court's 1996 contempt judgment, the trial court's arrearage judgment, and the trial court's 1998 contempt judgment. We dismiss in part and reverse and render in part.

II. 1996 Contempt Judgment

In November 1992, Lobingier obtained a judgment against Cadle for $300,000. Cadle unsuccessfully appealed that judgment to this court, the Texas Supreme Court, and the United States Supreme Court. See Cadle Co. v. Bankston & Lobingier, 868 S.W.2d 918 (Tex. App.--Fort Worth), writ denied per curiam, 893 S.W.2d 949 (Tex. 1994), cert. denied, 516 U.S. 810 (1995). The judgment was never superseded and was not paid until January 11, 1999.

In January and December 1995, Lobingier obtained two turnover orders in the trial court against Cadle and Daniel in an attempt to collect the $300,000 judgment. In July 1996, we held Cadle and Daniel in contempt of court for failing to comply with the 1995 turnover orders.

In several of their points, the Cadles¹ collaterally attack our 1996 contempt judgment, asserting it is void. Where, as here, the contemnor is not restrained, mandamus is the proper vehicle for collaterally attacking a contempt judgment. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding). The Cadles have twice attacked our 1996 contempt judgment via petition for writ of mandamus to the Texas Supreme Court on the very grounds they now assert in this appeal. Both times the supreme court has denied the petitions.² Accordingly, except to explain the basis for our civil contempt order, we will not revisit those issues a third time.

III. Civil v. Criminal Contempt

Our 1996 contempt judgment imposed on the Cadles a $500-per-day fine for every day after the date of the judgment that they did not comply with the 1995 turnover orders. The Cadles assert we could not assess the $500-per-day fine because a per diem fine for two isolated acts of contempt--the violation of two turnover orders--is impermissible under section 21.001(b) of the government code. This argument is based on the incorrect assumption that the fine is a criminal contempt fine, when it is actually a civil contempt fine. As we discuss below, criminal contempt sanctions are limited by section 21.001(b), but civil contempt sanctions are not.

There are two types of contempt: civil and criminal. The classifications of civil and criminal contempt have nothing to do with the characterization of the underlying case or the burdensomeness of the contempt order. Ex parte Powell, 883 S.W.2d 775, 778 (Tex. App.--Beaumont 1994, orig. proceeding); Ex parte Johns, 807 S.W.2d 768, 771 (Tex. App.--Dallas 1991, orig. proceeding). Rather, the distinction between civil and criminal contempt lies in the nature and purpose of the penalty imposed. Ex parte Busby, 921 S.W.2d 389, 391 (Tex. App.--Austin 1996, pet. ref'd); see also Shillitani v. United States, 384 U.S. 364, 369-70, 86 S. Ct. 1531, 1535 (1966) ("'It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish' civil from criminal contempt. . . . The test may be stated as: what does the court primarily seek to accomplish by imposing sentence?").

In a civil contempt order, the court exerts its contempt power to persuade the contemnor to obey a previous order, usually through a conditional penalty. Because the contemnor can avoid punishment by obeying the court's order, the contemnor is said to "carr[y] the keys of imprisonment in his own pocket." Busby, 921 S.W.2d at 391 (citing Johns, 807 S.W.2d at 770); see also Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding). Conversely, a criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a contemnor for some completed act that affronted the court's dignity and authority. In criminal contempt proceedings, the court punishes the contemnor for improper past acts, and no subsequent voluntary compliance can enable the contemnor to avoid punishment. Busby, 921 S.W.2d at 391.

Our 1996 contempt judgment contains a "hybrid" contempt order that assesses sanctions for both civil and criminal contempt. See Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) (orig. proceeding) (recognizing that courts can incorporate both forms of contempt into one order). The civil contempt part of the order imposes a prospective, $500-per-day fine from the date of the judgment forward to coerce the Cadles' future compliance with the 1995 turnover orders. The Cadles controlled the amount of this fine and could have avoided paying it altogether or stopped its accrual by complying with the turnover orders. The criminal contempt part of the order, which is governed by section 21.001(b), punishes Daniel with 180 days in jail for refusing to comply with the turnover orders up through the date of our contempt judgment.³ Daniel could not avoid this punishment once it was imposed, regardless of whether he later complied with the turnover orders.

The cases the Cadles rely on to challenge our civil contempt fine are inapposite because they all involve fines for criminal contempt.⁴ Section 21.002 allows a court to punish each act of criminal contempt with a fine of not more than $500 or confinement in the county jail for not more than six months, or both. Tex. Gov't Code Ann. § 21.002(b) (Vernon Supp. 2001). Because our fine is civil, however, it is not governed by section 21.002. See Ex parte Shaklee, 939 S.W.2d 144, 145 n.2 (Tex. 1997) (orig. proceeding) (noting that section 21.002(b) sets out maximum punishment for criminal contempt); In re Cantu, 961 S.W.2d 482, 489 (Tex. App.--Corpus Christi 1997, orig. proceeding) (stating that section 21.002(b) merely sets out punishments allowed for criminal contempt and that coercive confinement for civil contempt is not limited by section 21.002(b)); Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.--El Paso 1994, orig. proceeding) (holding that punishment for criminal contempt--but not civil contempt--is limited by section 21.002(b)); see also Tex. Gov't Code Ann. § 21.002(e) (Vernon Supp. 2001) (providing that section 21.002 "does not affect a court's power to confine a contemnor to compel him to obey a court order").

The Cadles concede that indefinite, coercive confinement to induce compliance with a court order is authorized by section 21.002(e), but assert section 21.002 does not authorize the assessment of a daily coercive fine. While section 21.002 does not expressly authorize a coercive fine, it does not prohibit one. Although we could find no Texas case law directly on point, in the federal system, a coercive fine "is a standard remedy in civil contempt." Blankenship & Assocs. v. NLRB, 54 F.3d 447, 450 (7th Cir. 1995). "A close analogy to coercive imprisonment is a per diem fine imposed for each day a contemnor fails to comply with an affirmative court order. Like civil imprisonment, such fines exert a constant coercive pressure, and once the jural command is obeyed, the future, indefinite, daily fines are purged." Int'l Union v. Bagwell, 512 U.S. 821, 829, 114 S. Ct. 2552, 2558 (1994); see also Alberti v. Klevenhagen, 46 F.3d 1347, 1359 (5th Cir. 1995) (upholding district court's imposition of prospective, per-inmate fine imposed to alleviate prison overcrowding).

We believe a coercive fine is appropriate here because the unique circumstances of this case would render an order for coercive confinement meaningless. Cadle is an entity and therefore is not subject to coercive confinement. Daniel is an out-of-state resident whose extradition to Texas would likely be a lengthy and costly process.⁵ Accordingly, we included the coercive fine in our 1996 contempt judgment.

IV. Arrearage Judgment

As we discussed, our 1996 contempt judgment fined the Cadles $500 per day from the date of the judgment until they complied with the two 1995 turnover orders issued by the trial court.⁶ Nearly two years later, in May 1998, when the Cadles still had not complied with the turnover orders, the trial court reduced the $500-per-day fine to judgment and rendered an arrearage judgment for Lobingier in the amount of $346,500.

Our 1996 contempt judgment did not make the coercive fine payable to Lobingier, and the Cadles assert the trial court erred by rendering judgment that the fine was payable to Lobingier rather than the sovereign. A contempt fine is not payable to a private litigant. Rosser, 902 S.W.2d at 962; Edrington v. Pridham, 65 Tex. 612, 617 (1886). Thus, the trial court erred by making the amount of the arrearage judgment payable to Lobingier.

Lobingier contends the contempt fine should be payable to him because a civil contempt fine is for the benefit of the litigant. See Ex parte Dolenz, 893 S.W.2d 677, 680 (Tex. App.--Dallas 1995, orig. proceeding) (noting that court's civil or coercive power is remedial in nature for...