CITY OF MONROE, Plaintiff-Appellee, v. Robert A. EVANS, Defendant-Appellant.
No. 14193.
Court of Appeal of Louisiana, Second Circuit.
June 10, 1980.
385 So. 2d 912
JASPER E. JONES, Judge.
Charles D. Patten, III, Asst. City Atty., Monroe, for plaintiff-appellee. Joseph A. Cusimano, Jr., Farmerville, for defendant-appellant. Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
Appellant, Robert A. Evans, appeals an order of the trial court finding him in contempt of a June 5, 1979 judgment rendered by the Fourth Judicial District Court for the Parish of Ouachita. We reverse the contempt conviction.
These lengthy proceedings commenced May 11, 1977 when the City of Monroe filed an expropriation proceeding against Evans. The object of the suit was the expropriation of a cottonwood tree located on Evans’ property. The tree was alleged to be blocking
“It is further agreed to by all parties that the tree in question shall be owned by the City of Monroe in its entirety.”
On this date a judgment was rendered which provides:
“Considering the above and foregoing Joint Motion To Dismiss:
Let the matter be dismissed at the cost of Plaintiff and let the City of Monroe be declared owner of the tree which is the subject of the suit.”
A review of this judgment establishes it did nothing more than declare the City to be the owner of the tree.
On September 24, 1979, the City filed a Rule For Contempt alleging that Evans should be punished for “refusing to comply with the order of this Honorable Court“. The order here referred to was the one quoted above which was rendered June 5, 1979. Evans had prompted the City‘s rule by refusing to allow the Northeast La. Tree Service, who was employed by the City, to cut down the tree. When the Tree Service representative came to Evans’ property in order to view the tree and make preparations for its removal the following day, Evans proceeded to chain a monkey in the tree and then to park two trucks under the tree. The City alleged Evans’ refusal to allow the City to cut down the tree constituted a contempt of court.
The trial court found Evans to be in contempt of the June 5, 1979 order and ordered him placed in the Ouachita Parish jail until he permitted the City to cut down the tree.
On appeal the issues are (1) is this contempt conviction reviewable on appeal? and (2) is the contempt conviction valid?
The majority of the jurisprudence holds that a review of a contempt conviction may be had only by application for supervisory writs. See Pearce v. Dozier, 181 So.2d 432 (La.App.2d Cir. 1965); The Advertiser, Div. of Independent, Inc. v. Charles B. Tubbs, 199 So.2d 426 (La.App.3d Cir. 1967); Wall v. Wall, 230 So.2d 420 (La.App.1st Cir. 1969); Pasternack v. Lubritz, 280 So.2d 352 (La.App.3d Cir. 1973); Matter on Carter, 357 So.2d 1175 (La.App.3d Cir. 1978). However, we have found a substantial number of cases wherein contempt convictions are reviewed on direct appeal, as well as cases in which the contempt convictions have been reviewed on appeal while the appellate court was reviewing other related appealable matters. See Lambert v. Adams, 347 So.2d 883 (La.App.3d Cir. 1977); Weeks v. Weeks, 349 So.2d 1008 (La.App.2d Cir. 1977); Wright v. Dept. of Hwys., 359 So.2d 635 (La.App.1st Cir. 1978); Rosselli v. Rosselli, 352 So.2d 370 (La.App.4th Cir. 1977); N. O. Fire Fighters Asso. Local 632 v. City of N. O., 260 So.2d 779 (La.App.4th Cir. 1972); Bruner v. Bruner, 373 So.2d 971 (La.App.2d Cir. 1979).
Evans did not employ an attorney until after he appealed the contempt judgment in proper person. We have the authority to “do justice” on the record,
The jurisprudence interpreting
“It is not every act rendering ineffectual an order of court which can be followed by a peremptory order from the court to the party who has brought about that result to replace matters as they were, and, failing so to do, to be committed to prison. The following of such a course of action and the infliction of such a penalty is one for which the court should be able to find legal authority.”
More recently, in Lambert v. Adams, supra, the Third Circuit cited the above two cases as well as
Because of the relative sparsity of Louisiana jurisprudence on the subject of contempt convictions based upon an alleged violation of an order, we looked to the law of our sister states in order to better evaluate appellant‘s contempt conviction. Corpus Juris Secundum provides at pp. 31-32 of Vol. 17 as follows:
“To justify adjudging one guilty of contempt for alleged violation of an order, it must contain a mandatory or prohibitive provision and prescribe definitely what he is to do, ...”
The Iowa case of Lynch v. Uhlenhopp, 78 N.W.2d 491, 248 Iowa 68 (1956), discusses at length the law of contempt citing authorities from Colorado, Ohio New York and California for the rule that before an adjudication of contempt can be made there must be a violation of a judgment which clearly directs what a party is or is not to do. See also McMullin v. City & County of Denver, 242 P.2d 240, 125 Colo. 231 (1952) wherein the court refused to hold defendant guilty of contempt of a judgment which did nothing more than adjudicate property rights. The court said:
“The violation of property rights and the right of property ownership, even when such rights have been decreed by a court with full jurisdiction, does not constitute contempt of court. If the property rights of plaintiff have been interfered with, our laws provide appropriate procedure and remedies therefor.
Our reading of the various cases cited, discloses that where decrees have been contemptuously violated, such decrees contained either or both prohibitory or mandatory provisions. If we recognize and approve the attempt here to change a quiet-title decree into an injunctive decree, the disastrous results would be interminable.” Id. 242 P.2d at p. 242. See also Uservo, Inc. v. Selking, 28 N.E.2d 61, 217 Ind. 567, 1940, which stated 28 N.E.2d at p. 63:
“In Kelly v. City of Cape Girardeau, 230 Mo.App. 137, 89 S.W.2d 693, 696, the court said: `It is an accepted legal proposition that for the decree of a court to suffice to be the basis of a charge of contempt by reason of a party‘s disobedience to or noncompliance with it, it must be specific and definite so as to inform the party to be bound thereby what he is to do or what he is not to do. Magel v. Gruetli Benivolent Society of St. Louis, 203 Mo.App. 335, 218 S.W. 704‘“.
Under the Louisiana and common-law jurisprudence appellant cannot be held in contempt of the order declaring the City to be the owner of the tree, for his acts of placing the monkey in the tree and placing the trucks under the tree are not willful disobedience of this order. There has been no direct court order telling Evans to remove these objects or not to place these objects in the path of the tree, or to do no act that interferes with the City‘s removal of the tree. While it is true that appellant‘s acts have frustrated and hindered the City, nevertheless, his acts did not impair the dignity of the court.
The City should have obtained an order directing Evans not to interfere with the removal of the tree. If Evans had then performed the acts which he performed in this instance a contempt proceeding would have been appropriate. Since the City failed to obtain such an order and because there was no direct order for which Evans could have been held in contempt, the contempt conviction is fatally defective. We REVERSE the judgment holding Evans in contempt of court and set aside the contempt sentence.