Lead Opinion
R. Flay Cabiness appeals the order of the trial court finding him in contempt. He alleges the trial court erred by finding that he was in contempt of the trial court’s receivership order, which enjoined “all persons . . . from creating or enforcing liens upon the Receivership Properties without leave of the Court,” and by finding that he violated the order when he “fаiled and refused” to cancel his clients’ notice of liens. He further contends the trial court erred by finding that he need not be a party to the injunction or in privity with an enjoined defеndant to be subject to the injunction, by finding that constructive knowledge of the injunction was sufficient to support a finding of wilful contempt, and by finding that his conduct was wilful. Finally, he asserts the trial court erred by imposing sanctions under OCGA § 9-15-14 and by having improper ex parte communications with the receiver.
Michael G. Lambros
Cabiness was local counsel fоr Pateo Energy Express LLC, Pateo Energy Express II, LLC, and Pateo Energy Express III, LLC (“the Pateo Entities”). The circumstances underlying the issuance of the
The Camden County District Attorney in the name and on behalf of the State of Georgia filed an in personam RICO forfeiture complaint against [certain named] defendants ..., along with nine other individuals and twelve businesses, who are the current or former owners, officers or operators of three truck stops in south Georgia. [The complaint also included in rem forfeiture proceedings against the three truck stops.] In the complaint, the district attorney alleged that the fuel pumps at said truck stops were intentionally altered by defendants to indicate that customers were receiving a larger quantity of gasoline or diesel fuel than was actually dispensed; that defendants represented to customers that they were receiving premium grade gasoline while in fact they were receiving a lower octane gasoline; and that defendants have operated said truck stops as a continuous enterprise thrоugh a pattern of criminal activity including fraud and theft. Asserting that the above-listed defendants in personam individually constitute an enterprise as that term is used in the RICO Act, the district attorney аlleged that defendants conducted or participated in the affairs of “The Enterprise” through a pattern of racketeering activity consisting of the following predicаte acts, which, among the matters itemized by the district attorney, include the criminal acts of theft by deception and theft of services in violation of OCGA § 16-8-1 et seq. and the unauthorized use of financial transaction cards in violation of OCGA § 16-9-33.
(Punctuation and footnotes omitted.) Id. at 656.
Mr. Cabiness’s clients, the Pateo entities, were not among the defendants involved in the RICO action, but as part of those proсeedings, the trial court issued the receivership order placing the RICO defendants’ assets under the control of the receiver and prohibited all persons from creating liens against the рroperty in the receivership. After the property of some of the defendants was released from the receivership’s control, Cabiness’s clients obtained an agrеement to operate those stations. Subsequently, the receiver foreclosed on those stations, demanding possession and directing Cabiness’s clients to vacate them.
Then, Cabiness asserts, to protect the Pateo entities’ interest in improvements made at the stations, one of his clients, pro se, filed a notice of lien against the properties. Cabiness then forwarded copies
1. Because sаnctions were imposed against him for his past conduct, Cabiness was found in criminal contempt. “The distinction between criminal and civil contempt is that criminal contempt impоses unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” (Citation and punctuation omitted.) City of Cumming v. Realty Dev. Corp.,
On appeal of a criminal contempt conviction, the appropriate stаndard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essеntial elements of the crime beyond a reasonable doubt. [Cits.]” (Punctuation omitted.) In re Irvin,
The receivership order in this case did not apply directly to Cabiness, and the record shows that he, personally, neither filed the notice of lien nor took actiоn to have it filed, but that his client filed it pro se on the advice of another attorney. Consequently, Cabiness did not violate the receivership order. Huffman v. Armenia,
Accordingly, the trial court’s order holding Cabiness in contempt of court must be reversed.
2. Because we have found that Cabiness was not in contempt of the receivership order, the fine imposed upon him and the award of attorney fees and costs under OCGA § 9-15-14 are also reversed. The receiver’s motion to impose frivolous appeal sanctions upon Cabiness is denied. Cabiness’s othеr enumerations of error are moot.
Judgment reversed.
Notes
Although asserting that as the receiver he is not a party to the appeal, Lambrоs filed an appellee’s brief in this case.
Concurrence Opinion
concurring specially.
I concur fully and completely in the majority’s opinion. I write specially to emphasize the necessity for the exercise of the utmost care in imposing this most severe sanction. “Criminal contempt is a crime in the ordinary sense and the evidence of the contempt must be [proven] beyond a reasonable doubt. Contempt is a drastic remedy which ought not to deprive one of [his] liberty unless it rests upon a firm and proper basis.” (Citation and punctuation omitted.) In re Harris,