Ex Parte Gerdes

• Decision Date: 26 January 2006
• Docket Number: No. 13-05-487-CV.,13-05-487-CV.
• Citation: 228 S.W.3d 708
• Parties: Ex parte Roger GERDES, Jr.
• Court: Texas Court of Appeals

228 S.W.3d 708

Ex parte Roger GERDES, Jr.

No. 13-05-487-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

January 26, 2006.

Dean M. Blumrosen, George McCall Secrest, Jr., Houston, for relator.

Murray Fogler, McDade Fogler Maines, L.L.P., Paul J. Franzettti, Houston, for real party in interest.

Before Justices YAÑEZ, CASTILLO, and GARZA.

OPINION

Opinion by Justice YAÑEZ.

This habeas corpus proceeding arises from a contempt order against Roger Gerdes for his failure, as a judgment debtor, to comply with an injunction relating to the preservation of assets subject to judgment. We conclude the contempt order is void. Accordingly, we grant the writ of habeas corpus and order Gerdes discharged from the trial court's judgment of contempt.

Contempt and Habeas Corpus

An original habeas corpus proceeding is a collateral attack on a contempt order. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967) (orig.proceeding); Ex parte Casillas, 25 S.W.3d 296, 298-99 (Tex.App.-San Antonio 2000, orig. proceeding). As such, the sole purpose of the proceeding is to determine whether the contemnor was afforded due process of law or if the order of contempt is void. See Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979) (orig.proceeding); In re Levingston, 996 S.W.2d 936, 937 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding). A court will issue a writ of habeas corpus if the order underlying the contempt is void or if the contempt order itself is void. Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.1983) (orig.proceeding); Gordon, 584 S.W.2d at 688. A contempt order is void if it is beyond the power of the court to enter it or if it deprives the relator of liberty without due process of law. Casillas, 25 S.W.3d at 299; Ex parte Friedman, 808 S.W.2d 166, 168 (Tex.App.-El Paso 1991, orig. proceeding).

Background

The parties are involved in a post-judgment collection dispute. The trial court entered three separate turnover orders against Gerdes and in favor of the judgment creditors, John Kennamer, Mora Kennamer, and Laguna Vista International, Inc. The October 14, 2002, turnover order required Gerdes to produce stock certificates or other physical evidence of ownership in three separate corporations. The December 2, 2002, turnover order required Gerdes to produce any original evidence of ownership of property in the name of Immobiliaria Don Rogelio S. de R.L. de C.V. The January 8, 2003, turnover order required Gerdes to produce originals of ownership and transfer documents executed by Gerdes and his wife, Carolyn Gerdes. On February 10, 2003, the trial court held Gerdes in civil contempt and ordered Gerdes incarcerated "until such time as he fully complies with the October 14, 2002 and December 2, 2002 turnover orders."¹

During the course of the underlying proceedings, the trial court entered several orders requiring the preservation of the property and assets at issue in the lawsuit. Before trial, on September 6, 2001, the trial court entered an order restraining the parties or agents from "selling, transferring, wasting or destroying any assets relating to the business and properties of Laguna Vista lodge." On July 31, 2002, after trial, the trial court's final judgment² expressly continued the injunction that had been entered on September 6, 2001. On October 28, 2002, the trial court entered an order restraining Gerdes or his agents from "transferring, selling, wasting, or encumbering the Laguna Vista lodge business, assets, and real property." The trial court's February 10, 2003 contempt order continued the October 28, 2002 injunction for "so long as Gerdes refuses to comply" with the turnover orders.

On February 7, 2005, Kennamer filed a motion for an order of contempt against Gerdes for violating the trial court's injunction prohibiting the encumbrance of judgment assets. According to the motion, Gerdes had leased the Laguna Vista property on August 7, 2003. On March 11, 2005, the trial court agreed and again held Gerdes in contempt. The court's March 11, 2005 contempt order, which is at issue in this proceeding, provides, in part:

1. By order dated September 6, 2001, the Court entered an order enjoining the parties (or any persons acting in concert with them) from "selling, transferring, wasting or destroying any assets relating to the business and properties of Laguna Vista Lodge."

2. On July 31, 2002, the Court entered its Final Judgment in this case, awarding a net recovery in favor of John Kennamer against Roger Gerdes, Jr. ("Gerdes") in the amount of $915,392.65. The Final Judgment continued the injunction set out above until 10 days after the judgment became final for purposes of execution.

3. On February 10, 2003, the Court entered an order of contempt against Gerdes for his refusal to comply with two turnover orders (dated October 14, 2002, and December 2, 2002). In that order, Gerdes and those acting in concert with him were enjoined and restrained from "transferring, selling, wasting or encumbering the Laguna Vista lodge business, assets, and real property" until such time as Gerdes complies with the Turnover Orders.

4. On August 7, 2003, Gerdes, or someone acting in concert with him, caused a lease to be made, encumbering the property in Mexico where the Laguna Vista lodge is located. At that time, Gerdes had not complied with the Turnover Orders, and therefore the injunction was in force and effect. Gerdes still has not complied with the Turnover Orders.

5. The making of the lease encumbers the Laguna Vista lodge business, assets, and real property and constitutes a willful violation of the injunction order in force and effect.

The Court further finds that Gerdes' willful violation of the injunction order justifies holding Gerdes in contempt. Gerdes is already incarcerated in the Matagorda County Jail, having been held in contempt by this Court's order of February 10, 2003. Because he may be held on that contempt finding until March 16, 2005 (which is 18 months after he was first confined), it is this Court's order that Gerdes continue to be confined for so long after March 16, 2005 until the earlier of (a) Gerdes' compliance with all of this Court's turnover orders, including the orders dated October 14, 2002, December 2, 2002, and January 8, 2003,³ or (b) the expiration of 18 months after March 16, 2005.

By five issues, Gerdes contends that the contempt order is void because (1) the movant for contempt, John Kennamer, failed to prove that Gerdes violated the injunction order entered by the trial court which served as the sole basis for the trial court's finding of contempt; (2) Gerdes was adjudged guilty of criminal contempt without being afforded his constitutional right to trial by jury, in violation of the sixth amendment to the United States Constitution and article 1, section 10 of the Texas Constitution; (3) the term of imprisonment imposed by the trial court exceeded the maximum punishment allowed by statute; (4) Gerdes was deprived of his constitutional right to the assistance of counsel; and (5) Gerdes was deprived of adequate notice to prepare for the contempt hearing in violation of the due process clause of the fourteenth amendment of the United States Constitution and rule of civil procedure 21.

Analysis

As will be discussed more fully below, we agree with Gerdes that the contempt order is void. First, and fundamentally, the contempt order is structurally defective insofar as it attempts to punish Gerdes for an act of criminal contempt by continuing or prolonging his confinement for a prior act of civil contempt. Second, Gerdes was deprived of his right to counsel at the contempt hearing.

In connection with his second and third issues, and in his reply to Kennamer's response to the petition for writ of habeas corpus, Gerdes argues that the instant contempt order impermissibly attempts to continue the punishment assessed for his prior act of civil contempt. Gerdes argues that: "[He] has been confined for civil contempt for 18 months for non-compliance with the Court's order relative to the turnover orders. He cannot lawfully be confined any longer for violating the Court's orders in that regard." Gerdes also argues that the punishment assessed by the trial court exceeds the maximum allowed by statute.

We agree with Gerdes's contentions.

In the instant case, the motion for contempt stated that Gerdes was "subject to criminal (or punitive) contempt for blatant disobedience of [the] Court's injunction." Accordingly, the contemptible conduct at issue is deemed to be constructive contempt rather than direct contempt. See Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995) (direct contempt occurs within the presence of the court, while constructive contempt occurs outside the court's presence); Ex parte Durham, 921 S.W.2d 482, 485 (Tex.App.-Corpus Christi 1996, orig. proceeding) (same).

The motion distinguished the act currently subject to contempt, that is, Gerdes's violation of the trial court's injunctions prohibiting encumbrance of the judgment property, from that generating the "prior order of coercive contempt," that is, Gerdes's failure to comply with the trial court's turnover orders. Kennamer argued that the trial court's power to hold Gerdes in punitive contempt was not restricted by the prior order of coercive contempt. The motion sought incarceration for "punitive contempt."

Despite Kennamer's request for punitive contempt based on Gerdes's violation of the court's injunction prohibiting the encumbrance of the judgment property, the contempt order at issue in this cause ostensibly assesses a coercive punishment intended to secure Gerdes's compliance with the court's turnover orders. Specifically, the order provides that Gerdes shall "continue to be confined for so long after March 16, 2005 until the earlier of (a) Gerdes' compliance with all of this Court's turnover orders, including the orders dated October 14, 2002, December 2, 2002, and January 8, 2003, or (b) the...