In re Rodman Excavation, Inc. d/b/a Rodman Companies San Antonio Division, Rodman Utilities, L.P., Rodman Power & Communications, LLC, Rodman Natural Resources, Inc., and Rodman Paving, Inc.--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00317-CV
IN RE RODMAN EXCAVATION, INC.

d/b/a RODMAN COMPANIES SAN ANTONIO DIVISION, et al.

 
Original Mandamus Proceeding (1)

Opinion by: Rebecca Simmons, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: July 3, 2007

 

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Factual and Procedural Background

The Rodman entities (2) and YC Partners, Ltd. d/b/a Yantis Company are competitors in the San Antonio residential subdivision construction market. In the context of litigation concerning a non-compete agreement, the trial court issued a temporary restraining order prohibiting the Rodman entities from "soliciting or hiring, directly or indirectly, any Yantis employee(s)." After Rodman utility operations manager Dario Guerra visited a Yantis job site and spoke to a Yantis employee, Yantis moved to enforce the temporary restraining order and hold the Rodman entities in contempt of court. At the contempt hearing, Yantis employee Victor Rios testified that Guerra offered him a higher paying job with the Rodman entities. Other witnesses testified that Guerra spoke to Rios about a pending police investigation but did not offer him a job. The trial court then signed a contempt order finding that the Rodman entities violated the temporary restraining order "by 'soliciting and/or contacting a [] Yantis employee [Victor Rios]' on March 22, 2007 at Yantis's Bluffs at Lost Creek job site on Ralph Fair Road in San Antonio, Texas." Based on this finding, the trial court assessed a single punishment, a $500.00 fine. The trial court further ordered the Rodman entities to pay Yantis reasonable and necessary attorneys' fees in the amount of $3,500.00.

The Rodman entities now seek mandamus review of this contempt order. They contend the contempt order is void because its contempt finding is vague and purports to punish them for conduct that was not prohibited, specifically "contacting" a Yantis employee. Yantis counters that "[t]he order is clear that Rodman violated the TRO through the conduct of Guerra, who improperly solicited Yantis employee Rios." Contempt Order Requirements

Mandamus is the proper mechanism to review a contempt order, like the one here, that does not impose incarceration as a punishment. In re Long, 984 S.W.2d 623, 625 (Tex. 1999); In re Garza, 126 S.W.3d 268, 270 (Tex. App.--San Antonio 2003, orig. proceeding). A contempt order is void if it is beyond the power of the court, or if it deprives the relator of liberty without due process of law. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005). Additionally, a contempt order is void when it purports to punish the contemnor for conduct that is beyond the scope of the trial court's prior order or decree. Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986); Ex parte Lee, 704 S.W.2d 15, 16 (Tex. 1986).

Contempt of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its authority. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). The contempt alleged in this case, the violation of a written court order outside of the court's presence, is called constructive contempt. (3) Id. In a constructive contempt case, the contempt order must clearly state in what respect the court's earlier order has been violated. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997). A contempt order cannot contain uncertainty or susceptibility of more than one construction or meaning. In re Green, 2007 WL 1164212, at *4 (Tex. April 20, 2007). The interpretation of a contempt order must not rest upon implication or conjecture. In re Houston, 92 S.W.3d 870, 875 (Tex. App.--Houston [14th Dist.] 2002, orig. proceeding). A contempt order is insufficient if its interpretation requires inferences or conclusions about which reasonable persons might differ. Id. at 877.

Depending on the nature and purpose of the penalty imposed, a contempt order may be characterized as civil in nature, criminal in nature, or both. In re Anascavage, 131 S.W.3d 108, 111 n.2 (Tex. App.--San Antonio 2004, orig. proceeding); Ex parte Johns, 807 S.W.2d 768, 770-771 (Tex. App.--Dallas 1991, orig. proceeding). In a civil contempt order, the penalty is aimed at persuading a contemnor to obey a previous order, i.e., requiring confinement unless and until the act required by the court is performed. In re Anascavage, 131 S.W.3d at 111 n.2; In re Houston, 92 S.W.3d at 876 n.2. By contrast, a criminal contempt order is punitive in nature, and no subsequent compliance can avoid the penalty assessed. In re Anascavage, 131 S.W.3d at 111 n.2; In re Houston, 92 S.W.3d at 876 n.2. In either situation, civil or criminal, the penalty imposed by the court may consist of a fine, or imprisonment, or both. Ex parte Johns, 807 S.W.2d 770-771.

Discussion

The challenged contempt order provides that the Rodman entities "violated" the temporary restraining order by "soliciting and/or contacting a Yantis employee." Thus, the face of the contempt order does not indicate if the trial court concluded that Guerra contacted Rios, solicited Rios, or did both. We hold that the contempt order is ambiguous because it fails to clearly state in what respect the temporary restraining order was violated. Accordingly, the contempt order is insufficient to serve as a basis for constructive contempt. See In re Green, 2007 WL 1164212, at *4 (concluding that the district court's strike-outs of language pertaining to health insurance made the order ambiguous about whether the court intended the failure of health insurance, standing alone, to serve as a sufficient basis for a contempt judgment). Also, the contempt order arguably punishes the Rodman entities for contacting Rios, conduct that is not prohibited by the temporary restraining order. See Ex parte Davila, 718 S.W.2d at 282 (contempt order was void when it purported to punish the relator for amounts that were not yet due under the terms of the prior order); Ex parte Lee, 704 S.W.2d at 16 (contempt order was void when it purported to find the relator in contempt for failing to produce documents and answer interrogatories when the relator was only under a court order to produce documents).

Yantis asserts that because this contempt order does not involve civil contempt and because no confinement has been ordered, strict compliance with contempt order requirements is unnecessary. Yantis provides no direct authority to support this argument, and we are not persuaded by it. We are of the opinion that an unequivocal contempt finding must support a constructive contempt order, whether its penalty is characterized as civil or criminal in nature. See Ex parte McClain, 762 S.W.2d 238, 241 (Tex. App.--Beaumont 1988, orig. proceeding) (concluding that "contempt orders must be clear in both 'civil contempt' and 'criminal contempt' cases, to afford the contemn[o]r the opportunity to purge and absolve himself, respectively.").

Alternatively, Yantis urges us to reform the contempt order by striking the phrase "and/or contacting" from it. A reviewing appellate court may sometimes reform a defective contempt order. Ex parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994). If a portion of a contempt order is void while valid in all other respects, an appellate court may strike the offending portion and otherwise deny relief. In re Anascavage, 131 S.W.3d at 112; In re Watson, 108 S.W.3d 531, 533 (Tex. App.--Houston [14th Dist.] 2003, orig. proceeding). To support its reformation argument, Yantis emphasizes that at the contempt hearing the trial judge said he had "heard enough to convince him on" "soliciting." Nevertheless, the trial judge also remarked that it was not "appropriate" for Guerra to be "contacting" Yantis employees under the temporary restraining order, and he deliberately inserted the phrase "and/or contacting" into the order he signed. The record thus indicates that "contacting" was a significant part of the trial court's contempt finding. (4) As such, we decline to remedy this contempt order by reformation. See Ex parte Davila, 718 S.W.2d at 282 (when one punishment is assessed for more than one act of contempt, and one act is not punishable by contempt, the entire judgment is void); Ex parte Lee, 704 S.W.2d at 17 (same).

Conclusion

We conclude that the flawed contempt finding renders the entire order void. (5) See Ex parte Davila, 718 S.W.2d at 282; Ex parte Lee, 704 S.W.2d at 17. Accordingly, we conditionally grant the writ of mandamus. The writ will only issue if the trial court fails to vacate its contempt order within ten days of the date of this opinion.

Rebecca Simmons, Justice

 

1. This proceeding arises out of Cause No. 2007-CI-03027, styled YC Partners, Ltd. d/b/a Yantis Company v. Zach Hall, et al., pending in the 285th Judicial District Court, Bexar County, Texas, the Honorable Michael Peden presiding. However, the challenged order was signed by the Honorable Larry Noll, presiding judge of the 408th Judicial District Court, Bexar County, Texas.

2. The relators in this mandamus proceeding are Rodman Excavation, Inc. d/b/a Rodman Companies, San Antonio Division; Rodman Utilities, L.P.; Rodman Power & Communications, LLC; Rodman Natural Resources, Inc.; and Rodman Paving, Inc.

3. Direct contempt occurs when the disobedient or disrespectful act is committed in the court's presence. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).

4. Yantis cites to In re Zapata, a case in which the trial court adjudicated the relator in contempt of court for failing to pay "child support, attorney's fees and court costs as ordered" in the amount of $160.00 for three separate months, even though the prior order had not ordered the relator to pay attorney's fees and court costs. 129 S.W.3d 775, 780 (Tex. App.--Fort Worth 2004, orig. proceeding). There, the appellate court concluded it could strike the "mistaken inclusion" of "attorney's fees and court costs" from the contempt order without harming the relator because the contempt finding was based on the relator's failure to pay the court-ordered amount of $160.00 per month. Id. Unlike the situation in In re Zapata, in this case the controversial language was not mistakenly included, but was purposefully added by the trial judge.

5. The Rodman entities further allege that the contempt order is based on the wrong standard of proof and is impermissibly vague because it does not state a deadline for payment of the fine and the attorney's fees. These issues are not necessary to the disposition of this case, and therefore, are not addressed in this opinion. See Tex. R. App. P. 47.1.