Karras v. Gannon

• Decision Date: 28 October 1983
• Docket Number: Nos. 14075,14078,s. 14075
• Citation: 345 N.W.2d 854
• Parties: Chris D. KARRAS, Plaintiff and Appellee, v. Stephan A. GANNON, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 854

345 N.W.2d 854

Chris D. KARRAS, Plaintiff and Appellee, v. Stephan A. GANNON, Defendant and Appellant.

Nos. 14075, 14078.

Supreme Court of South Dakota.

Considered on Briefs Oct. 28, 1983.

Decided Feb. 22, 1984.

Timothy J. Nimick of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for plaintiff and appellee.

Jeff Masten of Masten, Myrabo & Irons, P.C., Canton, for defendant and appellant.

WOLLMAN, Justice.

This is an appeal from a judgment holding appellant in contempt of court and from another judgment against him for damages resulting from his breach of a lease agreement and from his injury to the leased premises. Appellee has filed a notice of review with respect to the latter judgment. We affirm the judgment for damages and reverse the judgment of contempt.

In 1979 Chris Karras (appellee) leased certain farm land in Lincoln County to Stephen Gannon (appellant). After Gannon had failed to pay rent, Karras initiated a forcible entry and unlawful detainer action against him in October of 1981. Because Karras believed that there was a possibility that waste might be committed upon the leased premises and that the crops might not be properly harvested and accounted for, he applied for and the circuit court issued a temporary restraining order on October 15, 1981, requiring Gannon to give Karras twenty-four hours' notice prior to the beginning of harvest and allowing Karras or his agent to be present during the harvesting operations.

Although a trial on the matter was scheduled for October 23, 1981, no trial was held. On October 26, 1981, counsel for the parties signed a stipulation and agreement establishing the condition and duration of the lease arrangement and providing that upon noncompliance with the stipulation and agreement Karras could apply for judgment in accordance with the stipulation and agreement without giving further notice. One of the conditions in this agreement was that Gannon would notify Karras "within a reasonable time before each harvest is to commence."

At 1:00 p.m. on October 30, 1981, Gannon called Karras to inform him that he would begin harvesting in twenty minutes. Karras informed Gannon that twenty minutes was insufficient notice but that he or an employee could be present at the harvesting at 4:00 p.m. At 4:00 p.m. Karras and an employee went to the leased premises and found that Gannon was in the process of harvesting the crop. At approximately 5:30 p.m. substitute counsel for Karras and counsel for Gannon met with Judge Hurd at the latter's home. Gannon was in the field and could not be contacted to be present at the "hearing." Although there is no record of this hearing, Karras' subsequent affidavit stated that the court orally ordered "that twelve hours notice before harvesting was a reasonable notice and ordered counsel for Defendant to so notify the Defendant and to advise him to stop harvesting." Gannon's attorney informed Gannon of this verbal order the next morning.

On the evening of November 22, 1981, Gannon called Karras and informed him that he would begin harvesting at noon on the following day. It was raining and snowing the next day, however, and Gannon could not commence harvesting. Gannon proceeded to harvest on November 24 and November 25 without giving Karras further notice.

On December 18, 1981, a hearing was held on Karras' motion to hold Gannon in contempt of court for violating the court's temporary restraining order of October 15, 1981, and the court's verbal order of October 30, 1981, and to establish damages pursuant to the stipulation and agreement. The circuit court subsequently issued a judgment holding Gannon in contempt for violating the October 30, 1981, verbal order and ordered that Gannon be incarcerated in the Minnehaha County jail until he purged himself of contempt by paying Karras $150 as costs for bringing on the hearing for contempt.

Gannon contends that the circuit court erred in holding him in contempt for violation of the October 30, 1981, order. We agree.

Although neither party has made an issue of this, we note that there is some question whether the contempt proceedings against Gannon were civil or criminal in nature. In the early days of statehood, this court distinguished the two types of contempt as follows:

If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by fine or imprisonment, or both; and this is by way of punishment. In one case the private party is interested in the enforcement of the order, and, the moment he is satisfied, the imprisonment ceases. On the other hand, the state alone is interested in the enforcement of the penalty, it being a punishment which operates in terrorem, and by that means has a tendency to prevent a repetition of the offense in other similar cases.

State v. Knight, 3 S.D. 509, 514, 54 N.W. 412, 413 (1893). More recently, we recognized that the distinction between the two forms of contempt is not always clear:

Since the instant contempt was not committed in the presence of the court, it is constructive contempt subject to the procedures in SDCL 23A-38-2, unless it is civil in nature. The distinction between civil and criminal contempt is often confused. 3 Wright & Miller, Federal Practice and Procedure, Sec. 704. Contempt is civil where the contemnor may obtain relief if he acts according to a condition in the contempt order. In contrast, criminal contempt is unconditional. For example, the defendant is jailed or fined for a specific period or amount and cannot effect relief from the order. In any event, the same conduct can be subject to either criminal or civil contempt. Gompers v. Bucks Stove & R. Co., 221 U.S. 418, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911); United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 699, 91 L.Ed. 884 (1947).

Since both civil and criminal contempts result in punishment, the distinction exists in the character and purpose of the punishment. "If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Ibid., 31 S.Ct. at 498.

State v. Bullis, 315 N.W.2d 485, 487 (S.D.1982). We then went on to consider the four factors enumerated by the United States Supreme Court in Gompers v. Bucks Stove & R. Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911), as guidelines for making the distinction, which, in essence, are similar to those that this court set forth in State v. Knight, supra.

In the case before us, the distinction is indeed blurred. As far as we can tell from the record, at the time of the December 18 hearing on the contempt citation Gannon had completed the 1981 crop harvest. As there was nothing that a contempt order could coerce him to comply with, the judgment of contempt was in the nature of a punitive sanction to vindicate the court's authority. On the other hand, the judgment of contempt directed that Gannon be jailed until he had purged himself of contempt by paying Karras $150 as reimbursement for the costs of bringing on the contempt hearing. To that extent, then, the judgment of contempt was conditional and hence civil in nature. Moreover, the contempt proceedings were titled as part of the main case and did not indicate that the proceeding was criminal in nature.

Inasmuch as Gannon has not contended that the contempt proceedings were criminal and that he was therefore entitled to a jury trial pursuant to SDCL 23A-38-2, we need not decide whether the proceedings were truly civil or criminal in nature. We raise the issue only as an illustration of the consequences of the unorthodox manner in which Karras secured and then attempted to enforce the court's oral order.

The four elements of contempt are: "(1) the existence of an order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful or contumacious disobedience of the order." Rosseau v. Gesinger, 330 N.W.2d 522, 524 (S.D.1983).

Gannon acknowledged at the contempt hearing that he had knowledge of the trial court's verbal order of October 30, 1981, and he did not claim that he did not have the ability to comply with the order. Accordingly, the questions remaining are whether the verbal order constituted a valid basis for a contempt finding and whether Gannon willfully or contumaciously disobeyed the order.

In determining whether the verbal order was enforceable through the contempt power of the trial court, we must keep in mind the distinction between a void order and one which is merely erroneous, for disobedience of a void order is not punishable as contempt, whereas an order erroneously or improvidently entered must be complied with. Fienup v. Rentto, 74 S.D. 329, 52 N.W.2d 486 (1952).

Although Gannon argues that SDCL 21-8-2(5), which precludes the granting of an injunction to prevent the breach of a contract, deprived the trial court of jurisdiction to enter the order in question, we do not view the verbal order as constituting an injunction as such. Inasmuch as Gannon does not contend that the thirty minutes' notice he was given of the forthcoming hearing in Judge Hurd's living room deprived the trial court of jurisdiction to enter the verbal order, we conclude that the court was not without jurisdiction to enter the order, putting aside any questions we might have concerning the need for such precipitous judicial action in the face of so insubstantial the threatened harm.

SDCL 15-6-58 provides that "an order...