Town of Nottingham v. Cedar Waters, Inc.

• Decision Date: 25 April 1978
• Docket Number: No. 7975,7975
• Citation: 385 A.2d 851,118 N.H. 282
• Parties: TOWN OF NOTTINGHAM v. CEDAR WATERS, INC.
• Court: New Hampshire Supreme Court

Page 851

385 A.2d 851

118 N.H. 282

TOWN OF NOTTINGHAM v. CEDAR WATERS, INC.

No. 7975.

Supreme Court of New Hampshire.

April 25, 1978.

Shute, Engel & Frasier, Exeter (Robert L. Steuk, Exeter, by brief), for plaintiff.

Keefe, Dunnington & Cappiello, Dover (Thomas C. Dunnington, Jr., Dover, by brief), for defendant.

DOUGLAS, Justice.

This is an appeal from a finding of contempt arising out of a dispute concerning enforcement of the zoning regulations of the town of Nottingham. We reverse the order below and clarify the distinction between civil and criminal contempt.

The defendant Cedar Waters, Inc., is the owner of a mobile home, located in the plaintiff town of Nottingham in an area that is zoned "residential agricultural." The plaintiff sought to enjoin the defendant from maintaining a mobile home in the town without having it placed upon a "continuous permanent foundation of concrete or any other masonry wall" as was required by the town zoning ordinances then in effect. But see RSA 47:22-b (Supp.1977) making such requirements invalid. After a hearing before a master, the Rockingham County Superior Court granted the injunction on September 29, 1976. The court ordered the defendant to comply with the zoning ordinance or remove the mobile home within 30 days. The defendant seasonably filed a reserved case, but later withdrew the appeal, thus causing the order to become final on December 3, 1976.

On February 9, 1977, a motion for contempt was then filed against Robert Bonser, who was the president of the defendant corporation and its principal stockholder. The motion for contempt was dismissed on February 24, 1977, on the grounds that Robert Bonser, in his individual capacity, was not a proper party to the suit. A second motion for contempt was filed naming Cedar Waters, Inc. as the contemnor. The court found the defendant corporation in contempt, ordered it to fully comply with the order of December 3, and ordered payment of attorney's fees in the amount of $500 and a fine of $50 a day for each day of noncompliance after May 2, 1977.

The defendant then filed a motion for clarification and requested an order to compel the plaintiff to submit detailed foundation plans that would meet the specifications of the ordinance as the plaintiff interpreted them. The motion was denied on May 6, 1977, and the defendant was ordered to pay an additional $200 in attorney's fees to the plaintiff. The defendant filed a motion for rehearing, which was denied on June 6, 1977.

A motion for a capias was filed in which the plaintiff alleged that the defendant had failed to pay fines and attorney's fees. The capias was heard on June 6. The defendant, with the approval of the court, was represented by a lay attorney. During the hearing, the attorney for the plaintiff made clear that he was before the court "on an equitable petition, not a criminal petition." He stressed that he was merely trying to enforce prior court orders in a "civil, equitable proceeding." Nevertheless, the court imposed a five-month jail sentence on Mr. Bonser without notifying either him or the defendant that it was considering the matter to be criminal contempt. The defendant and Robert Bonser seasonably excepted to the court's ruling, and Perkins, J., transferred the matter here.

Contempt is "an offense at common law a specific and substantive offense" that is separate and distinct from the matter in litigation out of which the contempt arose. State v. Towle, 42 N.H. 540, 544 (1861). The character and purpose of the punishment distinguishes the two classes of contempt. In civil contempt, the punishment is remedial, coercive, and for the benefit of the complainant. Civil contempt proceedings may result in money fines payable to the complainant or in an indeterminate jail sentence until the contemnor complies with the court order. Thus the contemnor is said to carry the "keys to the jail" in his pocket and stands committed until he performs the affirmative act required by the court's order. Gompers v. Buck Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Cheney v. Richards, 130 Me. 288, 155 A. 642 (1931). The purpose of prosecution for criminal contempt is to protect the authority and vindicate the dignity of the court. The sentence is punitive and determinate, and no amount of repentance will remit it. Stern v. Chandler, 153 Me. 62, 134 A.2d 550 (1957).

Contempts are also either direct or indirect. A direct contempt is one committed in the presence of the court and in its immediate view, all elements of the contempt being clearly observable by the court. See, e. g., Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888); cf. State v. Costantino, 107 R.I. 215, 266 A.2d 33 (1970). Indirect contempt is one committed outside the presence of the court and without the judge having full personal knowledge of every element of the contempt. Establishment of the contempt thus depends upon proof of facts of which the court could not take judicial notice. Charles Cushman Co. v. Mackesy, 135 Me. 490, 200 A. 505 (1938). The significance of the distinction between direct and indirect contempt lies in the procedural requirements to which the court must adhere.

Direct contempts may be punished summarily. The word summarily as used in this context does not refer to the timing of the action, but to the procedure. Summary procedure dispenses with the issuance of process, service of complaint and answer, holding of hearings, taking of evidence, listening to arguments, filing of legal memoranda, submission of findings and all that goes with a conventional court trial....