294 So.3d 564
La. Ct. App.2020Background
- Ann and Richard Streiffer obtained a final merits judgment against Deltatech Construction, LLC after trial and appeals; the judgment became final when the Louisiana Supreme Court denied writs.
- The Streiffers filed a motion to examine Deltatech as judgment debtor; the trial court ordered Deltatech’s manager, Sandra Tomasetti, to appear and produce documents.
- Deltatech filed a motion to quash the judgment-debtor examination; hearings were set for May 24 and continued to June 21, 2019.
- On May 24 Tomasetti did not appear; counsel for Deltatech emailed staff saying he had advised her not to appear pending the motion to quash; a contempt motion was set.
- On June 21 the trial court denied the motion to quash; Tomasetti again failed to appear and counsel explained he had instructed her not to attend; the court held Deltatech in contempt and awarded the Streiffers attorneys’ fees and costs.
- Deltatech appealed the contempt judgment; the Fourth Circuit affirmed and denied the Streiffers’ request for frivolous-appeal damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to appear at judgment-debtor exam was a direct contempt requiring summary adjudication | Streiffer: failure to appear after valid subpoena is direct contempt; summary procedure appropriate | Deltatech: proceeding was constructive because initiated by motion and La. C.C.P. art. 225 protections required | Held: Direct contempt; failure to comply with a subpoena is a direct contempt and summary procedure was proper |
| Whether the contempt was civil or criminal (and required criminal safeguards) | Streiffer: sanction was remedial (attorneys’ fees/costs) to enforce compliance — civil contempt | Deltatech: labeled conduct/penalty was criminal, triggering beyond-a-reasonable-doubt proof and full criminal protections | Held: Civil contempt; penalty remedial (compensatory) so criminal safeguards not required |
| Whether Deltatech (LLC) can be held in contempt for Tomasetti’s failure to appear | Streiffer: Tomasetti was ordered to appear as Deltatech’s manager; her failure is imputable to the LLC | Deltatech: subpoena directed to Tomasetti personally, not the company | Held: LLC liable; subpoena ordered her to appear in her capacity as manager, so her absence imputable to Deltatech |
| Whether the appeal was frivolous and warranted appellate damages | Streiffer: appeal lacks merit and is for delay; request attorneys’ fees on appeal | Deltatech: appeal raises non-frivolous issues | Held: Appeal not frivolous; frivolous-appeal damages denied |
Key Cases Cited
- In re Oliver, 333 U.S. 257 (1948) (due-process requirements for contempts not committed in the court’s presence)
- Cooke v. United States, 267 U.S. 517 (1925) (foundation for limited summary procedure for contempts in open court)
- Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994) (distinguishing civil vs. criminal contempt by character of relief)
- Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624 (1988) (character of relief controls civil/criminal label of contempt)
- McComb v. Jacksonville Paper Co., 336 U.S. 187 (1948) (willfulness not required element of civil contempt)
- Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911) (classic statement on remedial vs punitive contempt sanctions)
- In re Milkovich, 493 So.2d 1186 (La. 1986) (Louisiana recognition of contempt power and related protections)
- State ex rel. Collins v. Collins, 110 So.2d 545 (La. 1959) (advice of counsel is not a defense to contempt for failing to obey court order)
- Too Easy Entm’t, LLC v. Seven Arts Pictures, Inc., 943 So.2d 1194 (La. App. 4 Cir. 2006) (judgment-debtor properly served who fails to appear may be punished by contempt)