Zebert v. (In re Baker)

• Decision Date: 07 January 2014
• Docket Number: No. 2012–CA–01480–COA.,2012–CA–01480–COA.
• Citation: 129 So.3d 972
• Parties: Jason ZEBERT, Appellant v. In the Matter of the GUARDIANSHIP OF Thomas E. BAKER, Appellee.
• Court: Mississippi Court of Appeals

129 So.3d 972

Jason ZEBERT, Appellant

v.In the Matter of the GUARDIANSHIP OF Thomas E. BAKER, Appellee.

No. 2012–CA–01480–COA.

Court of Appeals of Mississippi.

Jan. 7, 2014.

Wayne Milner, attorney for appellant.

Harry Jones Rosenthal, attorney for appellee.

Before LEE, C.J., BARNES, and FAIR, JJ.

BARNES, J., for the Court:

¶ 1. In 2000, the Rankin County Chancery Court appointed attorney Jason Zebert guardian over the person and estate of Thomas E. Baker. Zebert posted a bond for $35,000. From 2000 to 2008, Zebert provided the chancery court with required yearly accountings, which the court approved. However, in early 2009, Zebert failed to provide the chancery court with the eighth accounting (for the period beginning October 1, 2007, and ending September 30, 2008). An order to show cause for the past-due accounting was issued by Chancellor John Grant III on April 8, 2009. The order required Zebert to appear before the court on June 1, 2009. Several continuances (in response to Zebert's motions) were granted throughout the next year. In one of the motions for a continuance, Zebert asked to be replaced as guardian. Harry Rosenthal was appointed guardian over Baker and his estate on September 2, 2009.

¶ 2. On October 4, 2010, two years after the accounting was due, Zebert filed a “Petition Exhibiting Eighth Accounting of Estate.” However, the petition only covered the period from October 1, 2007, to December 31, 2007. For the next several months, three more continuances for the “show cause” hearing were entered. On June 27, 2011, Judge Grant issued another show-cause order, requiring Zebert to appear for a hearing on July 26, 2011. After the hearing, Judge Grant found that the proper annual accounting had not been filed and approved. In his order dated July 26, 2011, Judge Grant found Zebert in contempt and ordered him to be incarcerated; the chancellor suspended the incarceration, however, until August 4, 2011, to allow Zebert time to “fil[e] and hav[e] approved all annual accounting(s) that are past due in this cause[.]”

¶ 3. Zebert subsequently filed a motion for the recusal of Judge Grant. On August 4, 2011, Judge Grant once again stayed Zebert's incarceration, this time until September 8, 2011, to allow Zebert and his counsel “additional time in which to prepare and present to the Court past due annual accountings that have not been properly filed or approved.” A few days later, on August 8, Judge Grant recused himself, appointing the Honorable Dan Fairly to hear the matter. The order also sealed the prior orders of contempt (July 26, 2011; August 4, 2011) and the current August 8, 2011 order from public viewing until further order of the chancery court.

¶ 4. On September 8, 2011, Zebert filed another accounting “for the period beginning October 1, 2007, and ending July 27, 2011.” It was in this accounting that Zebert noted that he had made “disbursements of $44,468.83 and $133,749.92 in loans extended on behalf of the Estate.” It was also noted that at the beginning of the accounting period, Baker's account at First Commercial Bank held $164,909.93; at the end of the accounting period, the account only held $6,555.50. Attached as exhibits to the petition for accounting were spreadsheets of the account's income/expenses for this period. A short hearing was held before Judge Fairly, who ordered Zebert to provide all outstanding bank statements for Baker's account. Zebert told the chancellor that all remaining documentation would be available by September 19.

¶ 5. Yet, on that date, Zebert still had not provided bank statements, but merely copies of the checks for the vouchers. Consequently, Judge Fairly found Zebert in contempt for failure to present an acceptable accounting and fined him $1,500. The chancellor also continued “all other matters in this cause, including but not limited to the other findings of contempt and incarceration” until the next hearing on October 3, 2011, at which time the chancery court “expect[ed]” Zebert to produce bank statements and copies of cancelled checks. In a supplement to the accounting, filed that same day, Zebert explained that without obtaining the chancery court's approval, he had disbursed funds totaling $133,749.92 from Baker's estate for three different loans, all at five percent interest: (1) $75,000 to Sherri Baggett and Jimmie Susan Fowler from January 2008 to January 15, 2012; ¹ (2) $37,000 to Fowler, payable January 15, 2012; and (3) $21,749.92 “made/advanced” to Fowler, payable January 15, 2012. Fowler was Zebert's employee; Baggett was a female acquaintance of Zebert's. As already noted, these disbursed funds reduced the assets of the estate from approximately $165,000 to $6,555.50. ² The supplement also stated that the loans were secured by an interest in land located in Rankin County, Mississippi, with a value in excess of $350,000. However, although a description of the property was attached, there was no deed of trust for the property provided with the supplemental accounting.

¶ 6. Another show-cause hearing was held on July 18, 2012. At that hearing, Zebert was questioned about the unapproved disbursements from the estate, which he claimed involved loans to an employee and a female acquaintance. Zebert confessed he had not obtained approval from the court to make the disbursements. He also claimed that documentation regarding the disbursements had been inadvertently destroyed by water damage to his office during a storm. ³

¶ 7. Judge Fairly found Zebert in civil contempt. He ordered Zebert to jail “until he purges himself of such contempt.” Zebert, who is still incarcerated, appeals the order, claiming that the order of contempt was criminal in nature, rather than civil, and must be reversed since it is impossible for him to comply with the chancery court's order.⁴ Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. A chancellor's finding of contempt is reviewed for manifest error. Jones v. Mayo, 53 So.3d 832, 838 (¶ 21) (Miss.Ct.App.2011).

The decision to hold a person or entity in criminal or civil contempt ... is a discretionary function of the [chancery] court. Issues of contempt are questions of law to be decided on a case-by-case basis. Regarding a determination of contempt, a [chancery] court due to its temporal and physical proximity to the parties is infinitely more competent to decide the matter.

Corporate Mgmt. Inc. v. Greene Cnty., 23 So.3d 454, 466 (¶ 32) (Miss.2009) (internal citations and quotations omitted).

DISCUSSION

I. Whether the order of contempt issued by the chancellor was civil or criminal in nature.

¶ 9. At the hearing on July 18, 2012, Judge Fairly found Zebert to be in civil contempt “by clear and convincing evidence.” The chancellor summarized:

You have woefully failed to properly account to this court, Mr. Zebert. This court has been abundantly patient with you. I can't imagine why ... Judge Grant didn't put you in jail [a] long time ago, because that's where you are going today. Until you properly account to this court for every penny of this man's money, you're going to sit over there in the Rankin County jail.

I adjudicate you to be in willful and contumacious contempt. I'm reinstating Judge Grant's Order incarcerating you; and you're going to jail, sir, until you account for every penny.

Zebert responded, “I understand what a proper accounting is, and I certainly can put that together”; however, he later questioned the chancery court as to how he could accomplish that task while incarcerated. The chancellor said that was Zebert's problem to solve. The corresponding “Order of Contempt and Incarceration” stated that Zebert was “to present and have approved an accounting in this cause.” (Emphasis added).

¶ 10. “The purpose of civil contempt is to compel compliance with the court's orders, admonitions, and instructions, while the purpose of criminal contempt is to punish.” In re McDonald, 98 So.3d 1040, 1043 (¶ 5) (Miss.2012) (quoting Graves v. State, 66 So.3d 148, 151 (¶ 11) (Miss.2011)).

The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor's sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor “carries the key to his cell in his own pocket.”

On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court.

Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987) (citation omitted). A criminal-contempt penalty “[is] designed to punish the contemnor for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with the court order.” C.K.B. v. Harrison Cnty. Youth Court, 36 So.3d 1267, 1273 (¶ 16) (Miss.2010) (quoting Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 868 (¶ 35) (Miss.2004)).

¶ 11. On appeal, Zebert claims that it is “factually and legally impossible” for him to present an approved accounting since he admittedly misappropriated funds from the estate and “perpetuated a fraud on the court.” He also says compliance with the chancery court's order is physically impossible since, from jail, he has no access to the necessary documentation. Zebert therefore contends that since it is impossible for him to comply with the chancellor's directive, he was subjected to “constructive” criminal contempt, which requires the chancery court to provide him with “procedural due process safeguards.” See Davis v. Davis, 17 So.3d 114, 120 (¶ 23) (Miss.Ct.App.2009). Zebert also argues that Judge Fairly should recuse himself since the record reflects that Judge Fairly had a personal bias against him.

¶ 12. Judge Fairly's reasoning for remanding Zebert into custody was to compel compliance...