Tyler v. Heywood
| Decision Date | 27 July 1999 |
| Docket Number | No. A-97-1301.,A-97-1301. |
| Citation | 598 N.W.2d 73,8 Neb. App. 553 |
| Parties | Billy Roy TYLER, appellant, v. Calvin HEYWOOD et al., appellees. |
| Court | Nebraska Court of Appeals |
Billy Roy Tyler, pro se.
Don Stenberg, Attorney General, and Linda L. Willard, Lincoln, for appellees.
Billy Roy Tyler appeals from the district court's dismissal of his action against Calvin Heywood, Robert Madsen, Harold Clark, E. Benjamin Nelson, Frank Hopkins, Raymond Edelman, Don Stenberg, and the Nebraska Department of Corrections (defendants). On appeal, Tyler asserts the court erred in dismissing the case. Because we conclude that the court erroneously dismissed the case, we reverse, and remand.
On September 17, 1997, Tyler filed a petition captioned "Civil Action and Praecipe." In the petition, Tyler asserted that he has been held continuously in solitary confinement "for 400 days or so" and has received disciplinary segregation of "almost 1,000 days ... in the `hole.'" Tyler prayed for a declaration that his legal and constitutional rights had been violated by the allegedly excessive solitary confinement, an injunction against further violations of his rights, an order removing him from disciplinary segregation, "$50,000,000 punitive and compensatory damages," and whatever other relief deemed appropriate by the court.
On November 13, 1997, the defendants filed a motion to make more definite and certain. In the motion, the defendants asserted that the petition was "so vague and ambiguous that they cannot reasonably frame a responsive pleading." They prayed for an order requiring a more definite statement of Tyler's claim against the defendants, specifically setting forth the cause of action being brought against each individual defendant.
On November 25, 1997, a telephonic conference call was conducted as a hearing on the defendants' motion. The defendants' attorney argued the substance of the motion to make more definite and certain, and asked the court for relief. The following colloquy then occurred:
The above exchange constitutes the end of the recorded hearing. After the hearing had been concluded, the court entered minutes indicating that "[b]ased on plaintiff's contemptuous conduct during this hearing, this case is dismissed." Tyler timely appeals to this court.
On appeal, Tyler has asserted that the district court "erred in denying Relator Plenary Review and erred in dismissing Appellant's case upon demurrer."
Although Tyler characterizes the court's dismissal as a dismissal "upon demurrer," our review of the record does not reveal any demurrer ever filed, argued, or ruled upon. On the contrary, it appears that the court dismissed this action upon the court's own motion. The only motion pending before the court, according to the transcript, was a motion to make more definite and certain. As such, we are presented with the question of whether the court properly dismissed this case on the court's own motion.
Neb.Rev.Stat. § 25-2121 (Reissue 1995) expresses that "[e]very court of record shall have power to punish by fine and imprisonment, or by either," persons who commit contemptuous acts. It has long been recognized, and is beyond dispute, that the statute is a codification of the common law of contempt and does not supplant a court's inherent contempt powers. In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996); In re Contempt of Potter, 207 Neb. 769, 301 N.W.2d 560 (1981); Paasch v. Brown, 199 Neb. 683, 260 N.W.2d 612 (1977); Kasparek v. May, 174 Neb. 732, 119 N.W.2d 512 (1963). See, also, Hawes v. State, 46 Neb. 149, 64 N.W. 699 (1895) ().
The Nebraska Supreme Court, as well as the Legislature, has drawn a distinction between direct contempt and constructive contempt. The distinction between the two is that the actions which constitute direct contempt occur in the presence of the court so that the court has personal knowledge of the facts and has no need to inform itself of them by using witnesses or other evidence. In re Contempt of Potter, supra. The actions which constitute constructive, or indirect, contempt occur outside the presence of the court, and the court must inform itself of the facts through the use of witnesses or other evidence. Id. Direct contempt may be punished summarily, whereas in cases of constructive contempt, the court must bring the accused party before the court, notify the party of the accusation against him, and allow him a reasonable time to make his defense. See id. See, also, Neb. Rev.Stat. § 25-2122 (Reissue 1995); In re Application of Niklaus; Niklaus v. Holloway, 144 Neb. 503, 13 N.W.2d 655 (1944); In re Interest of Simon H., 8 Neb.App. 225, 590 N.W.2d 421 (1999).
An additional distinction in contempt proceedings exists concerning the type of sanction imposed, coercive or punitive. Coercive sanctions are those which aim to compel future obedience to the court's orders and decrees, and punitive sanctions are those which punish past disrespectful or contumacious conduct, vindicating the court's authority. In re Contempt of Liles, 216 Neb. 531, 344 N.W.2d 626 (1984). When a coercive sanction is imposed, it has been said that the party being sanctioned holds the proverbial keys to his jail cell because the sentence is conditioned upon his continued noncompliance with the court's order. Id.; Hammond v. Hammond, 3 Neb.App. 536, 529 N.W.2d 542 (1995). When a punitive sanction is imposed, the sanction is much more like a criminal sentence, because it is not subject to mitigation if the sanctioned party complies with the court's order. In re Contempt of Liles, supra; Hammond v. Hammond, supra. A punitive contempt sanction is a final, appealable order. Hammond v. Hammond, supra. Additionally, it has been held that contempt proceedings are in their nature criminal, that no presumptions will be indulged in to support a conviction for contempt, and that contempt proceedings are governed by the strict rules of construction applicable to criminal prosecutions. See, e.g., Paasch v. Brown, supra; Thomas v. Thomas, 132 Neb. 827, 273 N.W. 483 (1937); Wright v. Wright, 132 Neb. 619, 272 N.W. 568 (1937); Hawes v. State, 46 Neb. 149, 64 N.W. 699 (1895).
In the present case, it is beyond dispute that Tyler's actions and profanities directed at the court during the hearing constituted direct contempt. The sanction imposed was ordered as a punishment for that contemptuous action and was a punitive sanction. The issue before us is whether or not dismissal of a litigant's petition is a permissible punitive sanction for direct contempt.
Our research has revealed a lack of authority in this jurisdiction on the question of whether a district court can deny a plaintiff the privilege of proceeding with a cause of action as a summarily imposed sanction for contempt. The closest case that we can find to reaching this issue is Winter v. Doane, 210 Neb. 499, 315 N.W.2d 262 (1982). In Winter v. Doane, the Supreme Court affirmed a finding of contempt and the dismissal of a cross-petition. We note that the opinion was a per curiam opinion signed by only five judges, two of whom were district court judges sitting with the Supreme Court on that particular case. There is no analysis to explain the holding, nor is there any further authority offered on the issue. We are unable to tell if the sanction was imposed summarily or after notice and a haring, and we are unable to tell if the sanction was imposed as a coercive or punitive sanction. In short, we cannot determine the basis for the holding, or how to apply it to other circumstances.
In In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996), the Supreme Court directly addressed, and discussed, the issue of whether the district court could impose a sanction beyond a fine or imprisonment as a sanction for contempt. In In re Interest of Krystal P. et al., the Supreme Court was specifically concerned with whether an award of attorney fees could be a proper sanction for contempt. The Supreme Court first recognized that the statutory section outlining a court of record's authority to impose a fine or imprisonment as a sanction for contempt is not meant to supplant the court's inherent powers concerning contempt. The Supreme Court then analyzed the issue of imposing attorney fees as a sanction under the same rules applicable to imposing attorney fees outside the context of contempt actions. The Supreme Court concluded that there was a uniform course of practice in this jurisdiction of using attorney fees as a sanction for contempt, and affirmed the district court's use of such fees as a sanction in the case at issue.
We find the Supreme Court's analysis and treatment of the issue of attorney fees as a potential sanction for contempt in In re Interest of Krystal P. et al., supra, to be instructive and helpful in considering the similar issue in the present case. In both In re Interest of Krystal P. et al. and the present case, the issue on review concerns the propriety of imposing a sanction other than a fine or...
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Tyler v. Heywood
...but on the district court's own motion, as a sanction for appellant's direct act of contempt upon the court. Tyler v. Heywood, 8 Neb.App. 553, 598 N.W.2d 73 (1999). The Court of Appeals further determined that the district court lacked the authority to dismiss a case upon its own motion for......
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