Mengedoht v. Samuelson, No. A-07-069 (Neb. App. 3/4/2008), A-07-069.

• Decision Date: 04 March 2008
• Docket Number: No. A-07-069.,A-07-069.
• Citation: Mengedoht v. Samuelson, No. A-07-069 (Neb. App. 3/4/2008), No. A-07-069. (Neb. App. Mar 04, 2008)
• Parties: JAN MAJOR MENGEDOHT ET AL., APPELLANTS, v. MATT SAMUELSON AND WILFRED LOOBY, PERSONAL REPRESENTATIVE OF THE ESTATE OF PERCY HUE, APPELLEES.
• Court: Nebraska Court of Appeals

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JAN MAJOR MENGEDOHT ET AL., APPELLANTS, v. MATT SAMUELSON AND WILFRED LOOBY, PERSONAL REPRESENTATIVE OF THE ESTATE OF PERCY HUE, APPELLEES.

No. A-07-069.

Court of Appeals of Nebraska.

Filed March 4, 2008.

INBODY, Chief Judge, and IRWIN and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Pursuant to this court's authority under Neb. Ct. R. of Prac. 11B(1) (rev. 2006), this case was ordered submitted without oral argument. Jan Major Mengedoht, Doug Cameron, and Tim R. Wulf (collectively the Appellants) bring this appeal from an order of the district court for Washington County denying a request for habeas relief. This case involves a contempt sanction imposed in a civil case and requires us to examine the basic characteristics of civil and criminal contempt sanctions and to examine the nature of habeas corpus as a means for reviewing civil contempt sanctions. We conclude that the district court erred in failing to grant an evidentiary hearing to determine whether the Appellants are entitled to relief from the coercive civil contempt sanction, and we reverse, and remand with directions.

II. BACKGROUND

On January 8, 2007, the Appellants filed a petition seeking habeas corpus relief. In the petition, the Appellants set forth the relevant procedural history of the underlying civil action in which the county court for Washington County had imposed a contempt sanction.

The underlying civil action in the county court was a probate proceeding. In the probate proceeding, the county court entered an order compelling the Appellants to submit to a deposition and to provide various financial documents to the personal representative, Wilfred Looby. The personal representative sought the deposition and financial documents for purposes of calculating taxes due in the probate proceeding. The Appellants appeared for the deposition but asserted their Fifth Amendment right against self-incrimination in response to the personal representative's questioning and refused to provide the requested financial documents without compensation.

The county court entered an order finding the Appellants in contempt for violating the court's previous discovery order. As a sanction, the county court awarded a financial judgment against each of the Appellants and in favor of the personal representative and sentenced each of the Appellants to 30 days in jail. The court's contempt order specified that each of the Appellants could avoid any part of the jail term if they submitted to a new deposition and complied with the previous discovery order. The order did not provide that the financial judgment could be purged through any action of the Appellants.

In the petition for habeas corpus relief, the Appellants alleged that the county court, through the discovery order, was compelling the Appellants to be witnesses against themselves in violation of the Fifth Amendment right against self-incrimination and was compelling them to surrender property without compensation. As such, the Appellants sough a writ of habeas corpus providing relief from the contempt sanctions.

On January 9, 2007, the day after the petition was filed, the district court entered an order denying the request for habeas corpus relief. The court provided no explanation or reasoning, and the court's order does not suggest that any hearing was held on the merits of the Appellants' petition. This appeal followed.

III. ASSIGNMENT OF ERROR

The Appellants' only assignment of error is that the district court erred in refusing to grant habeas corpus relief.

IV. ANALYSIS

1. CHARACTERISTICS OF CIVIL AND CRIMINAL CONTEMPT PROCEEDINGS

The Nebraska appellate courts have distinguished the characteristics of civil contempt proceedings and the characteristics of criminal contempt proceedings. The character, nature, or purpose of a contempt proceeding is determined by the procedure used in a trial to determine whether there is contempt and the sanction imposed. City of Beatrice v. Meints, 12 Neb. App. 276, 671 N.W.2d 243 (2003).

A civil contempt proceeding is instituted to preserve and enforce the rights of the private parties to a suit, to compel obedience to orders and decrees made to enforce such rights, and to administer the remedies to which the court has found the parties to be entitled. Id. Civil contempt proceedings are brought in the name of a party litigant and result in the imposition of coercive sanctions. See id. When a coercive sanction is imposed, the contemnor holds the keys to his or her jail cell because the sentence is conditioned upon the contemnor's continued noncompliance with the court's order. City of Beatrice v. Meints, supra. Coercive civil contempt sanctions aim to compel future obedience to the court's orders and decrees. Smeal Fire Apparatus Co. v. Kreikemeier, 271 Neb. 616, 715 N.W.2d 134 (2006); In re Contempt of Liles, 216 Neb. 531, 344 N.W.2d 626 (1984). An order imposing a coercive sanction in a civil contempt proceeding is always subject to modification by the contemnor's conduct and thus is not a final, appealable order. City of Beatrice, supra. Coercive civil contempt sanctions are not reviewable by direct appeal and can only be attacked collaterally by habeas corpus. Smeal Fire Apparatus Co. v. Kreikemeier, supra; In re Contempt of Liles, supra.

A criminal contempt proceeding is instituted to preserve the power and vindicate the dignity of the court and to punish for disobedience of the court's prior orders. City of Beatrice v. Meints, supra. Criminal contempt proceedings are brought where the act charged was not committed in the presence of the court and are prosecuted in the name of the State and by information and result in the imposition of punitive sanctions. Id. When a punitive criminal contempt sanction is imposed, the sanction is much like the sentence in a criminal case, in that it is absolute and not subject to mitigation if the contemnor alters his future conduct toward the court. Smeal Fire Apparatus Co. v. Kreikemeier, supra; In re Contempt of Liles, supra. Punitive criminal contempt sanctions seek to punish past disrespectful or contumacious conduct and vindicate the court's authority. Id. An order imposing a punitive sanction takes on the aspects of a final order or of an order affecting a substantial right issued in a special proceeding, both of which are reviewable on appeal, and is therefore reviewable by direct appeal. Id.; City of Beatrice v. Meints, supra.

2. NATURE OF CONTEMPT PROCEEDING AND SANCTION IN CASE AT BAR

In the present case, the contempt proceedings appear to have been conducted as a civil contempt. In their petition for habeas corpus relief, the Appellants alleged that the personal representative "filed a motion for sanctions asking [the county court] to fine and imprison [the Appellants] for contempt of court." In its contempt order, the county court noted that the contempt findings were precipitated by "the Second Amended Motion for Sanctions." As such, it is apparent that the contempt proceeding was brought by the personal representative in his capacity as a representative of the estate in the original civil action, not by information in the name of the State. See City of Beatrice v. Meints, 12 Neb. App. 276, 671 N.W.2d 243 (2003).

In its order, the county court specifically found each of the Appellants "in willful contempt of Court." The court then ordered each of the Appellants to pay a financial judgment and ordered each of the Appellants to serve a jail term. With respect to the jail terms, the county court specified that the jail term was to commence on a specific date, "provided if [the Appellants] shall, prior to that date, or any time after the incarceration, submit to a deposition and comply in all respects with the subpoena previously served on [them] and appear ... by answering all questions propounded, [they] shall be relieved of the thirty (30) day sentence, or any remaining portions thereof." The county court provided no similar means for the Appellants to purge themselves of the financial judgment.

When a trial court imposes a definite sanction, not subject to mitigation, that sanction is a punitive sanction. See Smeal Fire Apparatus Co. v. Kreikemeier, 271 Neb. 616, 715 N.W.2d 134 (2006); City of Beatrice v. Meints, supra. For example, in Smeal Fire Apparatus Co. v. Kreikemeier, supra, the Supreme Court held that a fine that is no longer subject to mitigation possesses the indicia of finality and is appealable as a punitive sanction. Similarly, in City of Beatrice v. Meints, supra, this court held that a sanction of a term of imprisonment for a definite period of time was a punitive sanction. As such, our review of the record indicates that the county court, in a civil contempt proceeding, imposed both a punitive sanction and a coercive sanction.

3. DISPOSITION CONCERNING PUNITIVE SANCTION

As noted, we conclude that the county court's contempt order was entered in the context of a civil contempt proceeding, but contained a punitive contempt sanction in the form of a definite financial judgment that amounted to a fine. To the extent the county court imposed a punitive sanction in a civil contempt proceeding, that sanction would have been subject to being declared invalid if properly presented on appeal.

In City of Beatrice v. Meints, 12 Neb. App. 276, 671 N.W.2d 243 (2003), this court was presented with an appeal from a contempt sanction imposed by a trial court in a civil contempt proceeding. Although the contempt proceeding was civil in nature, we concluded that the trial court had imposed a punitive sanction. We concluded that because the sanction imposed was punitive, the contempt order was a final order which we had jurisdiction to review. We also concluded that a sentence in a prosecution for contempt, except that committed in open court, which is wholly punitive, may be properly imposed only in proceedings instituted and tried as for...