Streiffer v. Deltatech Constr., LLC

• Decision Date: 25 March 2020
• Docket Number: NO. 2019-CA-0990,2019-CA-0990
• Citation: 294 So.3d 564
• Parties: Ann STREIFFER, Wife of/and Richard Streiffer v. DELTATECH CONSTRUCTION, LLC and Sandra Tomasetti
• Court: Court of Appeal of Louisiana — District of US

294 So.3d 564

Ann STREIFFER, Wife of/and Richard Streiffer

v.DELTATECH CONSTRUCTION, LLC and Sandra Tomasetti

NO. 2019-CA-0990

Court of Appeal of Louisiana, Fourth Circuit.

March 25, 2020

James A. Gonczi, Michael S. Ricci, Jonathan L. Schultis, RICCI PARTNERS, LLC, 101 W. Robert E. Lee Boulevard, Suite 400, New Orleans, LA 70124, COUNSEL FOR PLAINTIFF/APPELLEE

Karl J. Guilbeau, 1048 Lakeshore Blvd, Slidell, LA 70448, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Rosemary Ledet )

Judge Rosemary Ledet

This is a contempt proceeding arising in a civil action. From the trial court's July 9, 2019 judgment holding Deltatech Construction, LLC ("Deltatech") in contempt, Deltatech appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Ann and Richard Streiffer sued Deltatech, a contractor they hired to renovate their home, and Sandra Tomasetti, Deltatech's managing member, for breach of contract and damages. After a three-day trial, the trial court entered judgment in the Streiffers’ favor and against Deltatech and Ms. Tomasetti (the "Merits Judgment"). On appeal, this court affirmed the Merits Judgment as to Deltatech but reversed as to Ms. Tomasetti. Streiffer v. Deltatech Constr., LLC , 18-0155 (La. App. 4 Cir. 10/10/18), ––– So.3d ––––, 2018 WL 4923559. The Louisiana Supreme Court denied Deltatech's writ application, rendering the Merits Judgment final. Streiffer v. Deltatech Constr., LLC , 18-2107 (La. 2/18/19), 263 So.3d 1154.

Subsequently, the Streiffers sought to enforce the Merits Judgment by filing a motion to examine Deltatech as the judgment debtor (the "Judgment Debtor Motion").¹ The trial court ordered "that the Manager of Deltatech Construction, LLC, Sandra Tomasetti, appear in Open Court on the 24th day of May, 2019 at 9:00 a.m. to be examined as Judgment Debtor under the provisions of Louisiana Code of Civil Procedure Articles 2451 through 2456." The trial court further ordered that "that the Manager of Deltatech Construction, LLC, Sandra Tomasetti, be further notified and summoned to produce at the above time the books, papers, financial statements, and all other documents described in the Motion to Examine the Judgment Debtor." In response, Deltatech filed a motion to quash the Judgment Debtor Motion, contending that the Merits Judgment was unenforceable (the "Motion to Quash"). The Motion to Quash was also set for hearing on May 24, 2019.

At the May 24, 2019 hearing, neither Deltatech nor its counsel appeared. The Streiffers orally moved to have Deltatech held in contempt for failing to appear (the "Contempt Motion"). The trial court set the Contempt Motion for hearing on June 21, 2019, and continued the Judgment Debtor Motion and the Motion to Quash to the same date.

At the June 21, 2019 hearing, counsel for both parties appeared. The trial court denied the Motion to Quash and turned to the Judgment Debtor Motion. Ms. Tomasetti, however, failed to appear. The trial court inquired of Deltatech's counsel why Ms. Tomasetti had failed to appear. Deltatech's counsel responded as follows:

Your Honor has already mention[ed] that I may take [the ruling denying the Motion to Quash] to the Fourth Circuit, I would file a suspensive appeal which would quash any obligation of the judgment debtor to be here to submit to the opposing party records of the LLC.

Based on this response, the trial court held Deltatech in contempt and ordered Deltatech to pay the Streiffers’ attorney's fees and costs (the "Contempt Judgment").

This appeal by Deltatech followed. The Streiffers answered Deltatech's appeal, seeking frivolous appeal damages pursuant to La. C.C.P. art. 2164.²

DISCUSSION

Although Deltatech assigns errors on appeal regarding both the Contempt Judgment and the denial of the Motion to Quash, we focus our discussion on the Contempt Judgment.³ We divide our discussion into three parts: (1) the law of contempt; (2) Deltatech's arguments on appeal; and (3) the Streiffers’ request for frivolous appeal damages.

The Law of Contempt

A contempt of court is "any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority." La. C.C.P. art. 221. "The authority to punish for contempt of court falls within the inherent power of the court to aid in the exercise of its jurisdiction and to enforce its lawful orders." In re Succession of Horrell , 07-1533, p. 12 (La. App. 4 Cir. 10/1/08), 993 So.2d 354, 365 (quoting de Nunez v. Bartels , 97-1384, p. 13 (La. App. 1 Cir. 9/9/98), 727 So.2d 463, 470, in turn citing In re Merritt , 391 So.2d 440, 442 (La. 1980) ) (internal quotation marks omitted). This is so because "[t]he power to punish contemptuous conduct is essential to the fair and efficient administration of justice and to the preservation of the dignity and authority of the courts." In re Milkovich , 493 So.2d 1186, 1188 (La. 1986) (citing Wood v. Georgia , 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), and In re Masinter , 355 So.2d 1288 (La. 1978) ).

The law of contempt presents a double dichotomy—direct and constructive; civil and criminal. As one commentator put it:

Contempts of court are classified according to two criteria. An act of contempt is either direct or indirect. Furthermore, a contempt proceeding is either civil or criminal. This creates four types of contempt: direct civil contempt, direct criminal contempt, indirect civil contempt, and indirect criminal contempt.

Paul A. Grote, Purging Contempt: Eliminating the Distinction Between Civil and Criminal Contempt , 88 WASH. U.L. REV. 1247, 1248 (2011). These dichotomies determine the procedure required to adjudicate a contempt. The direct-constructive dichotomy is governed by the alleged contumacious act; the civil-criminal dichotomy is governed by the punishment imposed. We separately address each dichotomy.

The Direct-Constructive Dichotomy

Direct contempt is either a contumacious act "committed in the immediate view and presence of the court and of which it has personal knowledge" or "a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record." La. C.C.P. art. 222. A constructive contempt of court is any contempt other than a direct one. La. C.C.P. art. 224.

The procedures for adjudicating direct and constructive contempt are different. The reason for the difference is constitutional. As the United States Supreme Court explained in In re Oliver , 333 U.S. 257, 275-76, 68 S.Ct. 499, 508-09, 92 L.Ed. 682 (1948) :

Except for a narrowly limited category of contempts, due process of law as explained in [ Cooke v. United States , 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767 (1925) ] requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court's authority before the public.’ If some essential elements of the offense are not personally observed by the judge, so that [he] must depend upon statements made by others for his knowledge about these essential elements, due process requires, according to the Cooke case, that the accused be accorded notice and a fair hearing as above set out.

Consistent with these due process requirements, the Louisiana Legislature has codified the procedures for adjudicating direct and constructive contempts. The procedure for adjudicating a direct contempt is codified in La. C.C.P. art. 223 as follows:

A person who has committed a direct contempt of court may be found guilty and punished therefor by the court forthwith, without any trial other than affording him an opportunity to be heard orally by way of defense or mitigation. The court shall render an order reciting the facts constituting the contempt, adjudging the person guilty thereof, and specifying the punishment imposed.

By contrast, the procedure for adjudicating a constructive contempt is codified in La. C.C.P. art. 225 as follows:

A. Except as otherwise provided by law, a person charged with committing a constructive contempt of court may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly. The rule to show cause may issue on the court's own motion or on motion of a party to the action or proceeding and shall state the facts alleged to constitute the contempt. A person charged with committing a constructive contempt of a court of appeal may be found guilty thereof and punished therefor after receiving a notice to show cause, by brief, to be filed not less than forty-eight hours from the date the person receives such notice why he should not be found guilty of contempt and punished accordingly. The person so charged shall be granted an oral hearing on the charge if he submits a written request to the clerk of the appellate court within forty-eight hours after receiving notice of the charge. Such notice from the court of appeal may be sent by registered or certified mail or may be served by the sheriff. In all other cases, a certified copy of the motion, and of the rule to show cause, shall be served upon the person charged with contempt in the same manner as a subpoena at least forty-eight hours before the time assigned for the trial of the rule.

B. If the person charged with contempt is

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