Moody v. State ex rel. Payne

• Decision Date: 09 September 1977
• Citation: 351 So.2d 547
• Parties: Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, etc., et al. SC 2215.
• Court: Alabama Supreme Court

Page 547

351 So.2d 547

Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, etc., et al.

SC 2215.

Supreme Court of Alabama.

Sept. 9, 1977.

Rehearing Denied Nov. 10, 1977.

William H. Mills of Clark & James, Birmingham, Newman, Shook & Newman, Dallas, Tex., Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Drayton Nabers, Jr. and William A. Robinson, Birmingham, for Protective Life Ins. Co.

James W. Webb and Edwin K. Livingston, Montgomery, for the Receiver, Charles H. Payne.

EMBRY, Justice.

Shearn Moody, Jr., appeals from a judgment of the Circuit Court of Jefferson County entered 1 November 1976, adjudging him in civil contempt on account of matters arising from receivership proceedings involving Empire Life Insurance Company of America.

The genesis, nature, and history of the Empire receivership are reported in Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976). Only a brief review of the pertinent facts relating to this appeal is needed here.

On 6 January 1975, the Circuit Court of Jefferson County issued a permanent injunction enjoining Moody and others from filing, or aiding in the filing of, any lawsuit, complaint or legal claim, in any court, related to the Empire receivership or the implementation of any order or decree of the circuit court, without the circuit court's prior approval. This court upheld the injunction on the basis it was expressly authorized by Tit. 28A, § 624(2), Code (Insurance Code), and supported by the undisputed evidence of record. See Moody v. State ex rel. Payne, supra.

In an order of the circuit court of 30 April 1975, Moody was held in civil contempt of the 6 January injunction for filing on 28 January 1975, in the United States District Court, an amended complaint in Allmon v. Bookout, Middle District of Alabama, Case No. 74-377-N, without obtaining the permission of the circuit court to do so. Allmon was nothing more than an attempt on Moody's behalf to stop the liquidation of Empire and to regain possession of its principal assets. The 30 April order prescribed that Moody do the following in order to purge himself of contempt:

"(a) Fully comply with all of the provisions of the Court's decree of January 6, 1975.

"(b) Appear in person before this Court on May 7, 1975, at 8:00 o'clock, A. M., in Room 223, Jefferson County Courthouse, 710 North 21st Street, in the City of Birmingham, Alabama, and then and there explain to this Court:

"(i) the reasons why the registered letter mailed to Moody on or about February 3, 1975 bearing the return address of this Court was not accepted by Moody when delivered to him;

"(ii) the reasons why Moody failed to appear before this Court at the proceedings held herein on March 10, 1975;

"(c) Take whatever action may be necessary to withdraw or cause to be withdrawn any and all support (financial or otherwise), aid or assistance which the said Shearn Moody, Jr. has provided or continues to provide to any of his agents, servants, employees or attorneys, which support, aid or assistance relates to the filing or maintenance of that certain case now pending on appeal from the United States District Court for the Middle District of Alabama, Northern Division, being Case No. 74-377-N, styled as follows: WILLIE ALLMON VS. JOHN G. BOOKOUT, ET AL.

"(d) File with this Court, within ten (10) days after the entry of this Order, a sworn statement setting forth in detail an accounting of all fees paid and other compensation or things of value furnished, since November 1, 1974 by or on behalf of Moody to any of the following persons or firms: Donald L. Collins; A. Eric Johnston; the firm of Collins & Johnston; Dale R. Major; Scott E. Manley; the firm of Saxe, Bacon, Bolen & Manley or any of its members or employees.

"(e) Require that each of the foregoing persons or firms or employees immediately furnish to the said Shearn Moody, Jr. sworn statements setting forth in detail:

"(i) the amount of any and all fees received by the foregoing persons from Moody or his agents or persons acting in concert with Moody or his agents since November 1, 1974;

"(ii) the amount of any and all funds expended by the foregoing persons since November 1, 1974, which funds relate in any way to the Allmon lawsuit, the affairs of Empire, its Receiver, or the receivership estate; and

"(iii) the exact purpose for which such expenditures were made, identifying with particularity the lawsuit, legal proceeding or other matter to which such expenditures were or are related.

The aforesaid sworn statements shall also itemize with particularity all funds or other compensation advanced by the foregoing persons, firms or employees to any other persons or firm in connection with the Allmon lawsuit. Upon receipt of said sworn statements by Moody, the same shall be forthwith filed with this Court.

"(f) File with this Court within ten (10) days after the entry of this Order a sworn statement setting forth in detail a record of all meetings and conferences attended by Moody since November 1, 1974 at which the Allmon lawsuit or the matters and things alleged in the Allmon complaint as amended came under discussion. Said sworn statement shall include the dates and places of any such meeting and conference and the names of all persons present.

"(g) Discharge any and all agents, servants, employees, and attorneys presently employed, directly or indirectly, by or on behalf of Moody, whose employment is or has in any way related to the filing or the litigation of the Allmon suit, unless it be affirmatively shown under oath that any such person had no knowledge of this Court's injunction of January 6, 1975; and provide this Court with written evidence of each such discharge within ten (10) days of entry of this order.

"(h) Appear in person before this Court on May 12, 1975, at 8:00 o'clock, A. M., in Room 223, Jefferson County Courthouse, 710 North 21st Street in the City of Birmingham, Alabama, and at such further times and places as the Court may direct, and show to the Court that this Order has been fully complied with.

"(i) Pay to Protective Life Insurance Company and the Receiver any and all costs and expenses incurred by them as a result of the failure and refusal of Moody to comply with the January 6, 1975 order, including, but not limited to, all costs of the contempt proceeding, including costs of investigation, preparation for and conduct of such proceeding, the costs of defending against the Allmon suit, and any and all reasonable attorneys' fees.

"(j) Promptly comply with any further orders of this Court relating to this matter."

On 16 June 1976, pursuant to terms of the 30 April order, the circuit court in an ex mero motu order, commanded Moody to appear before the court on 19 July 1976, to demonstrate he had purged himself of civil contempt and had fully complied with the 30 April order.

At the 19 July hearing, after denying Moody's request for a continuance because of his illness and inability to attend, oral testimony was taken and documentary evidence received on behalf of Protective Life Insurance Company, Charles H. Payne, and Moody; all interested parties in...