Wooden by Wooden v. Park School Dist. R-3

• Decision Date: 18 June 1987
• Docket Number: D,R-3,No. 85CA0474,85CA0474
• Parties: 44 Ed. Law Rep. 786 Shane A. WOODEN, by his father and next friend, Wayne S. WOODEN, and Mark S. Weaver, by his father and next friend, Russell H. Weaver, Plaintiffs, v. PARK SCHOOL DISTRICTefendant. and Concerning Joseph P. JENKINS, n/k/a Joseph P. Genchi, Appellant, v. DISTRICT COURT In and For the EIGHTH JUDICIAL DISTRICT OF the STATE of Colorado, the Honorable John-David Sullivan, one of the Judges thereof, Appellee. . II
• Court: Colorado Court of Appeals

Page 1311

748 P.2d 1311

44 Ed. Law Rep. 786

Shane A. WOODEN, by his father and next friend, Wayne S.

WOODEN, and Mark S. Weaver, by his father and next

friend, Russell H. Weaver, Plaintiffs, v. PARK SCHOOL DISTRICT R-3, Defendant. and Concerning

Joseph P. JENKINS, n/k/a Joseph P. Genchi, Appellant, v. DISTRICT COURT In and For the EIGHTH JUDICIAL DISTRICT OF

the STATE of Colorado, the Honorable John-David

Sullivan, one of the Judges thereof, Appellee.

No. 85CA0474.

Colorado Court of Appeals,

Div. II.

June 18, 1987.

Rehearing Denied July 30, 1987.

Certiorari Denied Jan. 25, 1988.

Joseph P. Genchi, P.C., Joseph P. Genchi, Estes Park, for appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt Krikscium, Asst. Atty. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for appellee.

SMITH, Judge.

Joseph P. Jenkins, n/k/a Joseph Genchi, appeals the order of the trial court finding him in contempt of court for his failure to comply with C.R.C.P. 121 § 1-19 and imposing upon him a fine of $1000. We affirm.

Appellant was plaintiffs' attorney in the trial court in an action to recover damages from defendant school district for excessive use of force in its administration of corporal punishment. The trial date was set several months in advance and counsel for both parties were given copies of the court's general trial procedures which informed them, inter alia, that jury instructions and verdict forms were to be submitted to the court and opposing counsel at the hour the trial was to commence. These instructions warned counsel that sanctions would be strongly considered for failure to comply with this requirement.

Genchi, however, did not have his jury instructions or verdict forms prepared and ready for submission on Tuesday, October 9, 1984, the first day of trial. Upon being informed of this fact, the court ordered him to have them ready by the following Thursday morning. On Thursday morning, the 12th, he again did not have the instructions ready and instead filed a motion requesting more time to prepare them. The court denied the motion and Genchi finally tendered the instructions Tuesday, October 16th, one week after the trial had commenced.

The jury ultimately returned its verdict in favor of plaintiffs on October 20. The trial court subsequently concluded that the jury had been improperly instructed and granted defendants' motion for a new trial.

Thereafter, the court issued an order directing Genchi to show cause why he should not be held in contempt and be punished for his refusal to comply with the court's orders entered during trial as well as the pre-trial instruction and C.R.C.P. 121 § 1-19, both of which required that he deliver verdict forms and his proposed jury instructions to the court and opposing counsel at the commencement of trial. A hearing was held and the trial court found that Genchi's late submission of his instructions caused delay and confusion in the presentation of the evidence, contributed to instructional errors which resulted in the court's declaration of a mistrial, interfered with the orderly and timely conduct of the court's business, and detracted from the dignity of the court and the proceedings. The court further found that Genchi did not advance any good cause or reasonable excuse for not complying with its orders and instructions and with C.R.C.P. 121 § 1-19. It therefore found him in contempt and ordered that he pay a fine of $1000 in order to vindicate the dignity of the court.

Genchi first argues that contempt is not a proper sanction under the circumstances here. We disagree.

C.R.C.P. 107(a) provides "[M]isbehavior of any officer of the court in his official transactions and disobedience or resistance of any person to, or interference with, any lawful writ, process, order, rule, decree, or command of said court ... shall constitute contempt...." (emphasis added).

Initially, Genchi disputes the express finding made by the trial court th...