Carmen J. ALBARRAN, Appellant v. LIBERTY HEALTHCARE MANAGEMENT, Appellee
No. CV-13-561
Court of Appeals of Arkansas
Dec. 11, 2013
2013 Ark. App. 738
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with
Rule 6(b) , has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
This court has made clear that it expects compliance with the requirements of
On this 8th day of November, 2013, this matter comes before the Court, the Court being well and sufficiently advised does find as follows:
1. That this Court grants an extension of 30 days.
Although we have the appellants’ motion to the circuit court before us, we do not infer from its averments that
Remanded.
Karey W. Gardner, for appellee.
PHILLIP T. WHITEAKER, Judge.
The appellant, Carmen Albarran, appeals the order of the Benton County Circuit Court finding him in contempt. We affirm.
This appeal is related to our recent decision in Albarran v. Liberty Healthcare Mgmt., 2013 Ark. App. 598 (docketed in this court as CV-13-90). Albarran was involved in a car accident and sought treatment for his injuries from Dr. Rick Looper at the Accident and Injury Treatment Center, which was a “d/b/a” for the appellee, Liberty Healthcare Management. Dr. Looper submitted a $3,710 bill to Albarran‘s health insurer, which paid $637.43 toward Dr. Looper‘s bill. Albarran eventually settled his motor-vehicle-accident claims with the tortfeasor‘s liability insurer for $30,000. The insurer, however, wrote two separate checks: one to Albarran for $26,290, and the other one to Albarran and the Accident and Injury Treatment Center for $3,710, based upon a lien allegedly claimed by Liberty.
Albarran filed a petition for declaratory judgment against his health-insurance carrier and Liberty, seeking to have Liberty‘s alleged lien declared invalid. Albarran subsequently settled and dismissed his claim with his health-insurance carrier. Liberty filed a motion to dismiss the petition, denying that it had any ownership or authority over the “d/b/a” of “Accident and Injury Treatment Center” and disclaiming any interest in the proceeds of Albarran‘s settlement. The circuit court entered an order on October 11, 2012, granting Liberty‘s motion to dismiss and awarding attorney‘s fees of $4,410 to Liberty, to be paid within thirty days. Albarran filed a notice of appeal from that order.
Because the order did not dispose of all outstanding claims by all parties, the court subsequently certified the case as proper for appeal pursuant to
Albarran did not pay Liberty‘s attorney‘s fees within the thirty days provided by the circuit court‘s order. He did, however, file a motion in circuit court to stay collection of the award of attorney‘s fees pending his initial appeal, but he did not post a supersedeas bond. He argued that he could not pay the fee out of the proceeds of his tort settlement because, given the current lawsuit, he was unable to liquidate the settlement at that time. The circuit court denied the motion.1 Liberty attempted to informally collect its fee. When no payment was received, it filed a motion for contempt. Three days after the circuit court set the matter for a hearing, Albarran filed a response to Liberty‘s motion in which he asserted that he had filed his appellate transcript in CV-13-90, thus depriving the circuit court of jurisdiction to act.2
The standard of review in contempt cases depends on the kind of contempt that is at issue. Contempt is divided into criminal contempt and civil contempt. Ivy v. Keith, 351 Ark. 269, 279, 92 S.W.3d 671, 677 (2002). Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Johnson v. Johnson, 343 Ark. 186, 197, 33 S.W.3d 492, 499 (2000). Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. Because civil contempt is designed to coerce compliance with the court‘s order, the civil contemnor may free himself or herself by complying with the order. See Fitzhugh v. State, 296 Ark. 137, 139, 752 S.W.2d 275, 276 (1988). This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593, 67 S.Ct. 918, 91 L.Ed. 1117 (1947)). Here, the parties agree that the contempt citation imposed by the circuit court was civil in nature, because Albarran had the ability to avoid the court‘s sanctions by paying Liberty‘s attorney‘s fees.
Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Ingle v. Ingle, 2013 Ark. App. 660; Applegate v. Applegate, 101 Ark.App. 289, 275 S.W.3d 682 (2008). In our review, we defer to the superior position of the circuit judge to determine the credibility of witnesses and the weight to be given their testimony. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15.
In order to establish civil contempt, there must be willful disobedience of a valid order of a court. Ingle, supra. However, before one can be held in contempt for violating the court‘s order, the order must be definite in its terms and clear as to what duties it imposes. Id. Here, the circuit court‘s order that Albarran was found in contempt for violating was definite in its terms and clear as to what duties it imposed. Albarran was ordered to pay Liberty‘s attorney‘s fees of $4,410 within thirty days of the date of the order. Likewise, there is no question of Albarran‘s noncompliance with the order: he was ordered to pay within thirty days, and he concedes a failure to do so despite knowing that such failure could constitute contemptuous behavior.
Noncompliance with a court‘s order is not in and of itself contemptuous. The noncompliance must constitute willful disobedience for a finding of contempt. Albarran argues that he did not willfully disobey the court‘s order because he did not have the ability to comply. A court‘s
Albarran acknowledges that, as a civil contemnor, he theoretically holds the keys to his own prison. He argues, however, that “reality makes it clear there are no keys available” to him because he does not have the ability to pay the judgment in a lump sum to free himself of the contempt. He therefore maintains that the court‘s imposition of contempt sanctions on him “will ... be a sentence to debtor‘s prison.”
Our supreme court has rejected the “debtor‘s prison” argument. In Harrison v. Harrison, 239 Ark. 756, 394 S.W.2d 128 (1965), the court wrote as follows:
It is first contended on behalf of the petitioner that imprisonment for debt in a civil action is the effect of the order of commitment, and that this is forbidden by the Constitution.
Article 2, § 16, Const. 1874 .There are some courts which hold, in view of constitutional provisions forbidding imprisonment for debt, that disobedience of an order for payment of money under a judgment or decree cannot be punished as a contempt; but, according to the decided weight of authority, an order directing the payment of specific funds adjudged to be in the possession or control of the person at the time of the trial may be enforced by contempt proceeding, and punishment may be inflicted for disobedience of the order. [Citations omitted.]
In one of the cases cited above the Supreme Court of Minnesota said: “In the case at bar the imprisonment is for the contempt in refusing to obey an order of the court. It is true that the order relates to the debt evidenced by the judgment against the estate; but this in no way alters the fact that the imprisonment is for the contempt, not for the debt. And the contempt does not consist in the relator‘s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver. The fact that the property in question is to be handed over for the purpose of being applied to the payment of the judgment is in no way important. The commitment is, nevertheless, in no proper sense imprisonment for debt.”
Harrison, 239 Ark. at 759, 394 S.W.2d at 130 (quoting Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906)).
To the extent that Albarran argues that a circuit court may not use imprisonment as a punishment for civil contempt where the contemnor has failed to pay the other party‘s attorney‘s fees, he cites no authority in support of his position. To the contrary, caselaw indicates that imprisonment may be an appropriate sanction in such circumstances. See, e.g., Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007) (noting, without criticism, circuit court‘s order that, if appellant failed to abide by the conditions imposed by the court, which included payment of attorney‘s fees by a given date, he would be incarcerated for an additional fourteen days); Williams v. Ramsey, 101 Ark.App. 61, 270 S.W.3d 345 (2007) (ten-day period of incarceration fell
We therefore find no merit to Albarran‘s argument. This court has noted that judicial sanctions in civil-contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court‘s order, and to compensate the complainant for losses sustained. Pinnacle Point Props., LLC v. Metropolitan Nat‘l Bank, 2012 Ark. App. 268 (citing United States v. United Mine Workers of Am., 330 U.S. 258, 303-04, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). It has long been the rule in Arkansas that, in certain cases, a process for contempt may be used to effect civil remedies, the result of which is to make the innocent party whole from the consequences of contemptuous conduct. Id. (citing Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004); Walker v. Fuller, 29 Ark. 448, 469 (1874); Butler v. Comer, 57 Ark.App. 117, 942 S.W.2d 278 (1997)). Here, the court noted that there had been no testimony or evidence at the hearing demonstrating Albarran‘s inability to comply with the court‘s order, and the court found him in contempt but gave him another thirty days to comply; failing that, Albarran was to be brought to court to explain his inability to pay before he would be jailed.3 Albarran has consistently refused to pay the attorney‘s fees that the court ordered him to pay. The circuit court properly utilized the process available to it to coerce Albarran‘s compliance.
We therefore find no error in the circuit court‘s decision.
As a final point, Albarran also argues that the circuit court lacked jurisdiction to impose contempt sanctions in March 2013 because he lodged his record on appeal in CV-13-90 with this court in January 2013. See, e.g., Maxwell v. State, 2012 Ark. 251 (the filing of the transcript in an appellate court deprives a trial court of jurisdiction). The supreme court, however, has noted that even though the record may have been lodged with the appellate court, where no supersedeas bond has been filed, the trial court retains jurisdiction to enforce its orders. See Kearney v. Butt, 224 Ark. 94, 271 S.W.2d 771 (1954); East v. East, 148 Ark. 143, 229 S.W. 5 (1921). Because Albarran failed to post a supersedeas bond (and all of his motions for stay pending appeal were denied, both by the circuit court and this court), his argument lacks merit.
Affirmed.
VAUGHT and BROWN, JJ., agree.