Cliett v. Hammonds

• Decision Date: 26 July 1962
• Docket Number: No. 19533.,19533.
• Citation: 305 F.2d 565
• Parties: Irene Smith CLIETT, Appellant, v. Mamie S. HAMMONDS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

305 F.2d 565 (1962)

Irene Smith CLIETT, Appellant, v. Mamie S. HAMMONDS et al., Appellees.

No. 19533.

United States Court of Appeals Fifth Circuit.

June 28, 1962.

Rehearing Denied July 26, 1962.

COPYRIGHT MATERIAL OMITTED

Newton B. Schwartz, Houston, Tex., for appellant.

W. H. Betts, Hempstead, Tex., George L. McGhee, Houston, Tex., for appellees.

Before TUTTLE, Chief Judge, and RIVES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case involving an attack on a judgment finding Mrs. Cliett guilty of contempt for disobedience of the orders of the District Court grows out of the controversy which has raged between the parties in this Court, and the one below, for over a quarter of a century.¹ It has now run the gamut of every Judge of the Southern District (save the most recent who assumed office in December 1961), plus at least two others from outside the District sitting by designation.

After prolonged litigation which definitely put ownership of the one-half interest in the lands in question in the Hammonds,² Mrs. Cliett, still unconvinced by all of these judgments and opinions, persisted in obstruction to this obvious determination of legal ownership. As this was accompanied by an actual threat of armed resistance, the District Court had further hearings with a result that on July 8, 1958, Judge Ingraham entered an injunction against further interference with the prior orders of the District Court (as affirmed by this Court). The injunction had the effect, therefore, of making willful interference, obstruction, or noncompliance a violation both of the underlying substantive orders as to ownership and possession of the land as well as the explicit injunction. This order first enjoined Mrs. Cliett from entering or remaining upon the property, using or exercising dominion over it in any way, such as running cattle, maintaining fences, or the like, or interfering by threats of bodily injury or otherwise with their exclusive right of enjoyment, of use and possession. And then in very positive terms the injunction forbade Mrs. Cliett taking any legal action in any Court (except possibly the Southern District of Texas) or the filing of affidavits or other legal papers asserting that she was the owner of these lands.³ On appeal this order was affirmed.⁴

As a matter of historical background, Mrs. Cliett, refusing to obey this injunction, was adjudged by Judge Rizley, then sitting by designation, to be in contempt and a judgment of punishment was entered on May 26, 1960, in a proceeding which all seem now to regard as one for criminal contempt. After commencement of the service of the sentence of confinement, the balance of the punishment was remitted. This was done upon a showing that Mrs. Cliett had purged herself of her current obstructive violations of the order and, in open court, had assured the Court that she "would in all things respect and observe the injunction unless and until said decree granting said injunction is set aside or vacated by this or another court of competent jurisdiction in the proceedings brought by her under Rule 60(b) * * *."

Thereafter the Hammonds filed suit in the Texas State Court against Mrs. Cliett for an accounting for rents and revenues during her wrongful occupancy and enjoyment of their lands for the period from 1955 to 1960. In this State Court action, Mrs. Cliett filed an answer and cross action (as well as amendments to each of them) in which in the plainest of terms she contended, as she always has, that she was the owner of these lands. This was not done with any subtlety or guarded implied criticism of the Federal Court judgments declaring title to be in the Hammonds. It was an outright blunt attack which, recognizing and referring to the extended litigation. charged that such judgments were fraudulent and void. The State Court, both by the defense to the action for rent and her affirmative cross action seeking an adjudication of the title in her, was therefore put in the position of determining again every contention which had been rejected in the Federal District Court and affirmed by us. She also filed a sworn lis pendens notice with the County Clerk of Waller County asserting ownership of the lands.

On December 11, 1961, the Hammonds through their counsel of record, brought this state of affairs to the attention of the District Court. This was done by a detailed, precise, verified petition. It concluded with a prayer seeking an order to show cause to Mrs. Cliett and her then attorney why each of them "should not be punished for violating such injunction." Judge Garza entered the order which required each of them to show cause why each of them "should not be punished as for contempt."

After an extended hearing in which he patiently heard and reheard the long involved story of this litigation, the contentions so earnestly, but unsuccessfully held, and evidence consisting of certified copies of all of the pertinent State Court papers, as well as the oral testimony of Mrs. Cliett and her then attorney, Judge Garza entered the order of January 19, 1962, now under review. He found each of them guilty of contempt by reason of the action taken by each in the pending State Court suit and the filing of the lis pendens. On that finding, he adjudged that unless Mrs. Cliett, within twenty days,⁵ would purge herself by taking specified action to withdraw the pleadings, lis pendens, etc. asserting ownership in the State Court action, she was to be confined in jail for a period of 90 days.⁶ The order further provided that if during such 90-day confinement she did not purge herself of contempt, then each day thereafter would constitute a continuance of contempt for which the Court would impose further punishment.

Several things stand out with vividness. First, on the record made, there is simply no doubt that by the actions taken by her in the State Court litigation, Mrs. Cliett violated paragraphs (c) and (d) of the injunction. Second, the acts constituting the violation being continuous in nature, a judgment as for civil contempt could properly provide for confinement until she purged herself. Third, and perhaps most important for our immediate purposes, a part of the judgment entered imposed what was actually punishment as for a criminal contempt, but this was done without following the procedures prescribed for criminal contempt. Fourth, and as a corollary to third, the proceeding was actually conducted and considered as though it was for civil, not criminal, contempt.

The complicating factor in this case is that the judgment partakes of both civil and criminal contempt, even though the proceedings were in the nature of civil only. Thus, with respect to the very element of the jail sentence itself, a specific time (30 days) was allowed in which she could purge herself. Had she done so within that period, the confinement was expressly remitted entirely. Thus far the objective of the judgment was to coerce the recalcitrant party into compliance with the Court's decrees. That is the mark of civil contempt. Coca-Cola Co. v. Feulner, S.D.Tex., 1934, 7 F. Supp. 364. The sanction imposed by the judgment is commonly referred to as remedial. But after the expiration of that 30-day period without compliance, the 90-day jail sentence automatically became unconditional in execution and duration. No provision was made for release from imprisonment once the 90-day confinement commenced. This was unrelated to contemporary compliance with the Court's decree. Its objective was to punish. Its coercive character was only indirect. This part of the judgment was then the means by which the authority of the Court, not the mere interest of the parties, was vindicated. It was, in purpose and effect, criminal contempt. Gompers v. Buck's Stove & Range Co., 1911, 221 U.S. 418, 444-45, 31 S.Ct. 492, 55 L.Ed. 797; United States v. United Mine Workers, 1947, 330 U.S. 258, 303-304, 67 S.Ct. 677, 91 L.Ed. 884; In re Michael, 1945, 326 U.S. 224, 227, 66 S.Ct. 78, 90 L.Ed. 30.

Of course the requirement that determination of criminal contempt be distinguished from civil contempt far transcends mere formal identification. Though both may under many circumstances actually be tried together — and therefore by the same Judge simultaneously — and be based on and grow out of identical acts as to which the evidence will likewise be identical, there are basic fundamental differences compelling differences in the trial and adjudication of the two "cases."

In a proceeding as for criminal contempt, the defendant-respondent must be accorded all of the protections due one standing a traditional trial of a criminal offense charged by indictment. Nye v. United States, 1941, 313 U.S. 33, 52-53, 61 S.Ct. 810, 85 L.Ed. 1172. One important substantive requirement is that the respondent is presumed to be innocent and must be found guilty. More than that, that finding requires evidence showing guilt beyond a reasonable doubt. Coca-Cola v. Feulner, S.D.Tex., 1934, 7 F.Supp. 364 at 365. It is therefore entirely conceivable that one might be found guilty of civil contempt and then be thereby subjected to coercive restraints pending compliance, and at the same time be found not guilty of the charge of criminal contempt.

In addition the distinction is important in procedural consequences such as, for example, the mode and time of appeal (10 days under F.R.Crim.P. 37 (a) (2), 18 U.S.C.A. in contrast to 30 days under F.R.Civ.P. 73(a), 28 U.S. C.A.). Similarly, while the burden on the prosecution for criminal contempt is heavier than for civil contempt, the respondent in the criminal contempt is severely limited in defenses. For in a criminal contempt the validity of the order allegedly disobeyed is not open to question in the slightest degree. Disobedience constitutes a contempt even though the order is set aside on appeal or otherwise becomes ineffective. In contrast, civil contempt falls with the order...