Chemical Fireproofing Corp. v. Bronska

• Decision Date: 21 June 1977
• Docket Number: No. 38008,38008
• Parties: CHEMICAL FIREPROOFING CORPORATION, an Ohio Corporation d/b/a Acme Cleaning Service Division, Plaintiff-Respondent, v. Herbert B. BRONSKA and Engineered Cleaning Services, Inc., a Missouri Corporation, Defendants-Appellants. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 710

553 S.W.2d 710

CHEMICAL FIREPROOFING CORPORATION, an Ohio Corporation d/b/a Acme Cleaning Service Division, Plaintiff-Respondent, v. Herbert B. BRONSKA and Engineered Cleaning Services, Inc., a Missouri Corporation, Defendants-Appellants.

No. 38008.

Missouri Court of Appeals, St. Louis District, Division Two.

June 21, 1977.

Friedman & Fredericks, Melvin Friedman, Stuart J. Radloff, St. Louis, for defendants-appellants.

Cook, Murphy, Lance & Mayer, D. Jeff Lance, Daniel J. Murphy, St. Louis, for plaintiff-respondent.

McMILLIAN, Presiding Judge.

Appellants, Herbert Bronska and Engineered Cleaning Services, Inc., a corporation, hereinafter referred to as Bronska and ECS, respectively, appeal from an order of the circuit court of St. Louis County, Missouri, finding both guilty of criminal contempt and fining each of them $1,000.00. For reasons hereinafter given, we affirm.

This case has had a checkered existence, being punctuated at frequent intervals by motions to show cause as to why the appellants herein should not be punished for contempt for their willful violation of a court ordered injunction. The original litigation grew out of an employment relationship formerly existing between Chemical Fireproofing Corporation (CFC) and Bronska. For more details pertaining to the initial suit the reader is referred to Chemical Fireproofing Corporation v. Bronska, 542 S.W.2d 74 (Mo.App.1976). For our purposes here it suffices to say that our court sustained the judgment of the trial court entered 18 April 1975, enjoining Bronska and ECS, for a period of one year, from engaging in a business similar to CFC in the State of Missouri and Illinois, and, for a period of two years, from soliciting or dealing with persons, firms, or corporations in the states of Missouri and Illinois, which had been customers of CFC prior to 29 June 1974.

On 3 July 1975, the court, in response to a petition for an order to show cause, filed by CFC on 25 June 1975, held defendants in civil contempt for the violation of its 18 April 1975 injunctive order. In support of its finding that defendants were in civil contempt, the court found that after its 18 April 1975 order, defendants continued to engage in a business similar to that of CFC. From the record it appears that this matter is yet pending because no penalties have been assessed.

On 31 July 1975, CFC filed another petition seeking an order to show cause why defendants should not be held in both civil and criminal contempt for alleged violation of the injunctive order by acts occurring subsequent to the 3 July 1975 order based upon the 25 June 1975 petition. No disposition appears to have been made of the 31 July 1975 petition.

On 5 August 1975, the returned date for the 31 July 1975 petition, CFC filed a second petition (amended??) for an order to show cause seeking civil and criminal penalties for defendants' alleged violation of the 18 April 1975 injunction that occurred subsequent to the 3 July 1975 finding of the trial court that defendants were guilty of contempt. CFC's petition alleged that defendants' acts of selling services to General Motors Assembly Division, Warwick Hotel, Schnucks Markets, Barnes Hospital and Host International, all of whom were customers of CFC prior to 29 June 1974, were direct, willful and deliberate, and constituted an offense against the majesty of the law and the dignity and authority of the court.

After a 25 August 1975 hearing on the petition, the trial court found beyond a reasonable doubt that defendants not only violated the 18 April 1975 injunctive order but also found that defendants were guilty of willful disobedience of the court's order and that their acts and conduct constituted offenses against the majesty of the law and the dignity and authority of the court. Accordingly, the court found both Bronska and ECS guilty of criminal contempt and sentenced Bronska to ten (10) days in the custody of the warden of the St. Louis County jail and fined Bronska and ECS the sum of $3,000.00. After a conference with defendants' attorney, the court cancelled its original sentence of Bronska and thereafter suspended the imposition of sentence and placed Bronska on probation until 29 June 1975. The court left open the matter pertaining to civil contempt which was yet pending before the Honorable Harry J. Stussie (3 July 1975).

On November 7, 1975, CFC filed a notice of revocation of probation and sentencing, allegedly based upon infractions of the injunctive order and probation occurring after 25 August 1975. On 24 November 1975, after a hearing the court found both Bronska and ECS to be in violation of their probation, and accordingly sentenced Bronska to serve two days in the custody of the St. Louis County Welfare Department and imposed a $3,000 fine upon each defendant. On 12 December 1975, the court filed its findings of fact and amended the 24 Nov. 1975 order reducing the fines against each defendant to $1,000 and permitting them both to be on probation until 29 June 1976.

For reversal defendants argue that the trial court erred because: (1) the parent litigation out of which the contempt order arose was pending on appeal; (2) their conduct does not support a finding of criminal contempt; (3) the conviction of criminal contempt was improper, the fixed fine was erroneous, and (4) the injunction was too vague.

The appellants claim that they were improperly cited for contempt for failure to comply with an order when the litigation out of which the order grew is still pending on appeal. However, the general rule is: "An injunction which is strictly prohibitory in character is not stayed or superseded by an appeal from the order granting the injunction" 93 A.L.R. 709, 710, while "all proceedings on a mandatory injunction are stayed by an appeal from the order granting the injunction." Id. at 715.

The injunction in this case is a prohibitory injunction because it has the effect of preserving the status quo and operates to restrain the commission or continuance of an act. 28 Am.Jur., Injunction, § 18, p. 508. Therefore the filing of the supersedeas bond in this case did not, of itself, stay the injunction order pending appeal, and relators, unless excused under the circumstances, rendered themselves subject to contempt proceedings for the admitted violation of respondents' order. State ex rel. Jarboe v. Holt, 444 S.W.2d 857, 858-59 (Mo. banc 1969); State ex rel. Anheuser-Busch Brewing Ass'n v. Dillon, 96 Mo. 56, 8 S.W. 781, 783 (1888).

The power of a court to hold a person in contempt is essential to prevent its orders from becoming merely advisory for "(i)f parties make themselves the judge of the validity of the court order regularly entered respecting their conduct or course of action, then the courts become impotent and judicial power becomes a mockery." State v. Koon, 356 Mo. 284, 201 S.W.2d 446, 455 (banc 1947); Bessette v. W. B. Conkey Co., 194 U.S. 324, 327, 24 S.Ct. 665, 666, 48 L.Ed. 997 (1904). A court may order a party to be held in civil or criminal contempt of its orders. Although it is oftentimes difficult to tell which order of contempt is appropriate, the difference is crucial. Additional procedural safeguards are required in criminal contempt proceedings ¹ and there are different consequences for the contemnor. The occasions in which a civil contemnor may be imprisoned are far more limited than those in which the criminal contemnor may be imprisoned, and there are restrictions on the fines to the civil contemnor which do not apply to those levied against the criminal contemnor.

Review of contempt theories Before we can more fully explore the different consequences of the two contempt convictions, it is necessary to discuss the different purposes of these proceedings. The Supreme Court of this state recently did this in Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976).

In this well-considered opinion the court stressed that an order of civil contempt is to protect the party to the litigation in whose behalf the judgment has been rendered. "Its function is to provide a coercive means to compel the other party to the litigation to comply with the relief granted to his adversary." Id. at 566. Because the purpose of the civil contempt is to force the contemnor to comply with the judgment which has been rendered, the "civil contemnor has at all times the power to terminate his punishment by compliance with the order of the court." Id. As will become apparent, it is for this reason that the civil contemnor can be imprisoned only for a violation of mandatory, as opposed to a prohibitory, injunction. A mandatory injunction requires a person to affirmatively act, 43 C.J.S. Injunctions § 5 (1972), while a prohibitory injunction restrains the commission or continuance of an act. Id. at § 4. For example, the injunction in this case is a prohibitory injunction since it restrains the defendants from competing with CFC.

If a civil contemnor violates a mandatory injunction which orders him to perform a certain act, and is thereafter imprisoned, he has the power to terminate his punishment by simply performing the act. In this sense he has the keys to the jail in his pocket. If a civil contemnor however, is imprisoned for violating a prohibitory injunction, which ordered him to refrain from the activity he has just performed, the imprisonment is not coercive but punitive since it is chastening him for acts already committed. In this situation the contemnor is not able to voluntarily terminate his imprisonment by performing some act and the other party does not benefit because it is too late for the imprisonment to be coercive. Cf. Gompers v. Buck's Stove & R. Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1910).

In keeping with the view that the purpose of civil contempt is remedial, any fines charged against a civil contemnor must be related to the actual damages suffered by the injured party and must be...