THOMAS W. ROBERTS v. ST. GEORGE BANK LIMITED
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RENDERED: August 20, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001312-MR
THOMAS W. ROBERTS
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 95-CI-01974
ST. GEORGE BANK LIMITED
APPELLEE
OPINION
AFFIRMING
* * *
BEFORE:
BUCKINGHAM, EMBERTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Thomas W. Roberts (Roberts) appeals from an
order of the Kenton Circuit Court denying his motion to lift a
civil contempt order.
In February 1996, a judgment was entered in favor of
St. George Bank Limited (St. George) against Roberts for
$814,281.93 plus interest.
The basis for the judgment was the
trial court’s finding that Roberts had wrongfully converted funds
not belonging to him.1
Roberts was subsequently served with a
subpoena duces tecum by St. George, the purpose of which was for
him to identify any financial assets he possessed which could be
used to satisfy the judgment against him.
When Roberts refused
to comply with the subpoena, St. George filed a motion seeking to
have Roberts held in contempt.
In May 1996, the trial court
issued an order holding Roberts in contempt, and further
providing that if he did not produce the subpoenaed documents by
a date certain, he would “be incarcerated in the Kenton County
Jail until the documents are produced.”
Roberts did not produce
the documents by the date set forth in the contempt order, and he
left the trial court’s jurisdiction.2
In March 1998, Roberts filed a motion to lift the
contempt order, with the purported purpose behind the motion
being his desire to return to Kenton County to defend an
unrelated action.
Roberts’s motion and accompanying letter to
St. George’s counsel stated that he had provided all of the
subpoenaed documents in question.
St. George filed a response
indicating that it had not had sufficient time to examine the
documents to determine if they were sufficient to constitute
compliance with the subpoena duces tecum, and the trial court
1
In October 1995, funds in the amount $8,255.07 were to be
transferred from St. George to Roberts’s account at the
Huntington Bank in Kenton County, Kentucky. During the
processing of the transfer, the decimal point became misplaced so
that the amount transferred was not $8,255.07 as expected, but
was $822,507.00 instead. As a result, Roberts received
$814,281.93 more than had been requested.
2
Roberts apparently left Kentucky for Florida during this
period of time.
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thereafter issued an order denying Roberts’s motion to lift the
contempt order.
In April 1998, Roberts filed a second motion to lift
the contempt order.
St. George responded by stating that
Roberts’s production of the documents in question “is not
controlling as to the lifting of the contempt citation.”
St.
George also stated that it had not finished reviewing the
documents provided by Roberts.
The trial court issued an order denying Roberts’s
motion in which it found that St. George’s review of the
documents “is irrelevant to the contempt Order issued by this
Court for the failure of Thomas Roberts to follow its orders.”
The court refused to lift the contempt order at that time and
stated that Roberts must “[a]t a minimum” personally appear
before the court before consideration would be given to the
lifting of the contempt order (emphasis ours).
The trial court’s
order further stated that “[o]nce he presents himself to this
Court, this Court will consider the strong possibilities of
criminal contempt and incarceration for the twenty-two months of
continued defiance of this Court’s Order.
It certainly is not
sufficient to come back after it is all over.”
Roberts’s appeal
of that order followed.
Roberts argues that the trial court found him in civil
contempt rather than criminal contempt and that he was purged of
contempt when he complied with the trial court’s order and
produced the requested documents.
He notes that the purpose of
the contempt order was to coerce him to furnish the documents and
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further notes that the language of the contempt order states that
his failure to produce the documents requested by the subpoena
would result in his incarceration “until the documents are
produced.”
He maintains that his compliance with the court’s
order purges him of contempt and that the trial court erred in
not lifting the contempt order.
“Contempt is the willful disobedience of--or open
disrespect for--the rules or orders of a court” and “may be
either civil or criminal.”
Commonwealth ex rel. Bailey v.
Bailey, Ky. App., 970 S.W.2d 818, 820 (1998).
“Civil contempt
involves the failure of one to do something under order of court-generally for the benefit of a party litigant.”
Id.
See also
Commonwealth v. Burge, Ky., 947 S.W.2d 805, 808 (1996), cert.
denied, ____ U.S. ____, 118 S. Ct. 422, 139 L. Ed. 2d 323 (1997).
Civil contempt, unlike criminal contempt, is not intended to
punish but is intended to coerce.
Bailey, 970 S.W.2d at 820.
The purpose and objective of civil contempt is “to goad one into
action or to compel obedience to a course of conduct . . . .”
Id.
The “defining characteristic of civil contempt is the fact
that contemnors ‘carry the keys of their prison in their own
pockets.’”
(1993).
Blakeman v. Schneider, Ky., 864 S.W.2d 903, 906
In other words, once the contemnor complies with the
order of the court, he or she is purged of the contempt and may
be released from incarceration.
The trial court’s contempt order was clearly a finding
of civil contempt meant to coerce Roberts into supplying the
documents in question.
If Roberts’s claim that he has produced
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all of those documents is true, he is purged of his civil
contempt because one found in civil contempt may not be
incarcerated “beyond the opportunity to purge himself of his
contempt.”
Id.
The question in this case is whether Roberts has
purged himself of the civil contempt by providing all of the
documents in question.
The trial court has stated that Roberts must personally
appear in the Kenton Circuit Court in order to prove that he has
purged himself of the contempt.
We agree.
the court and left its jurisdiction.
Roberts has defied
Now that he wants to come
back, he says he is willing to comply and has furnished some
documents, which he says are all the requested documents.
What
he wants is to require the court to make a ruling prior to his
return that he has fully complied with the court’s order, and
thereby purge himself of the contempt, and for the court to quash
the bench warrant.
to Roberts’s return.
We wouldn’t require the court to rule prior
Roberts is holding all the cards; if the
court finds Roberts has not complied with the discovery request
fully, he won’t return.
Roberts must return and be served with
the bench warrant - which includes incarceration.
As soon as
practical, the trial court can conduct a hearing as required by
Regional Jail Auth. v. Tackett, Ky., 770 S.W.2d 225 (1989) to see
if Roberts has complied with its order to the extent that he did
purge himself of the civil contempt.
If so, he will be released
immediately or at least bonded out and tried on the separate
criminal contempt charge.
If we require the trial judge to pre-
judge the case, we are in effect requiring the judge to make a
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deal.
The integrity of the court system is at stake and we will
not allow a contemptuous person to dictate how we should run our
courts.
It is understandable that the trial court is frustrated
in not being able to enforce its orders to coerce compliance with
a subpoena due to Roberts’s absence from the jurisdiction.
In
most instances of this nature, the person in contempt could
simply be arrested and jailed to coerce compliance.
However, the
inability of the trial court to have Roberts arrested and
Roberts’s unwillingness to personally appear before the court do
not change the nature of the existing proceeding against him from
one of civil contempt to one of criminal contempt.
In short, if
the trial court determines that Roberts has complied with the
contempt order by producing all of the documents in question,
then he has purged himself of the civil contempt, and the
criminal contempt matter is a separate issue, which the trial
court may consider pursuing as stated in its April 30, 1998
order.
Therefore, the order of the Kenton Circuit Court is
affirmed.
EMBERTON, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, DISSENTS BY SEPARATE OPINION.
BUCKINGHAM, JUDGE, DISSENTING.
I agree with the
majority’s opinion that the trial court’s contempt order was a
finding of civil contempt meant to coerce Roberts into supplying
the requested documents.
I also agree with the majority’s
opinion that Roberts is purged of civil contempt if he has
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supplied all the documents in question, because he may not be
incarcerated “beyond the opportunity to purge himself of his
contempt.”
(1993).
Blakeman v. Schneider, Ky., 864 S.W.2d 903, 906
However, I disagree with the majority’s opinion that
Roberts may be made to personally appear in the Kenton Circuit
Court in order to prove that he has purged himself of the
contempt.
The majority states that Roberts must return, be served
with a warrant, and be incarcerated in jail prior to a hearing to
determine whether he has purged himself of contempt.
There is
nothing in the contempt order which would mandate such an
appearance by Roberts.
Furthermore, in its motion for contempt,
St. George made it plain that the subpoena duces tecum “was a
subpoena for documents only and would not require the presence of
Roberts.”
In short, as this is a civil contempt matter, I
conclude that the trial court should first determine whether
Roberts has purged himself of contempt and that Roberts’s
appearance and arrest should not be required.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen T. McMurtry
Covington, Kentucky
H. Lawson Walker II
Mary Ann Stewart
Covington, Kentucky
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