MAX N. TOBIAS, Jr., Judge.
Warren L. Reuther, Jr. ("Reuther"), the plaintiff herein, filed the instant appeal from a judgment finding him in contempt of court. After reviewing the record and applicable law, we reverse the trial court and set aside the judgment.
On 1 November 2001, Reuther filed suit for wrongful termination against James E. Smith, Jr. ("Smith"), his business partner's son, Reuther's nephew and then lawyer.
The preliminary injunction dated 4 April 2002, was narrowly drawn, stating:
The preliminary injunction was modified on 31 July 2004, to prohibit Reuther from performing additional acts,
The basis of the motion for contempt concerns a telephone call allegedly made by Reuther on 27 October 2004, to a fuel supplier of New Orleans Tours. The motion contends that Reuther acted as a representative of New Orleans Tours as well as New Orleans Paddlewheels during the conversation, in violation of the preliminary injunction.
On 2 December 2004, the trial court heard the matter. While Reuther did not file an opposition to the motion, he was prepared to present live testimony at the expedited trial. However, the trial court prevented Reuther from presenting any evidence and did not allow his attorney to present argument on his client's behalf, because an opposition had not been filed to the contempt motion. The only evidence presented by Smith in support of the motion was two affidavits. At the conclusion of the matter, the trial court found Reuther in contempt of court and assessed him a $15,000.00 fine to be paid directly to Smith plus attorney's fees, although no proof of attorney's fees was ever presented to the court. The judgment ultimately signed by the court awarded Smith the sum of $2,500.00 in attorney's fees. The trial court denied a subsequent motion for new trial filed by Reuther on 10 January 2005.
Reuther has listed seven assignments of error. These are:
Contempt of court proceedings in civil cases are governed by La. C.C.P. art. 221, et seq., which defines contempt as "any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority." See Lang v. Asten, Inc., 04-1665 (La.App. 4 Cir. 3/30/05), 900 So.2d 1031. The Code provides for two kinds of contempt, direct and constructive. Direct contempt of court is defined in La. C.C.P. art. 222 as "one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record." Constructive contempt is defined in La. C.C.P. art. 224 as "any contempt other than a direct one" and the article lists the following act, which constitutes a constructive contempt of court: the "wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court." La. C.C.P. art. 224(2). The burden of proof in a civil contempt proceeding is by a preponderance of the evidence and appellate review is the manifestly erroneous standard. Id. at p. 12, 900 So.2d at 1039. See also Davis v. Harmony House Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ denied, 01-3162 (La.2/22/02), 810 So.2d 1143.
In Dauphine v. Carencro High School, 02-2005 (La.4/21/03), 843 So.2d 1096, the Supreme Court stated:
Id. at 14-15, 843 So.2d at 1107-08.
La. C.C.P. art. 225 requires a trial of a constructive contempt allegation:
Punishment for contempt of court is found in La. R.S. 13:4611, which provides in pertinent part:
The matter before the trial court concerned an allegation of constructive
As this case involves criminal contempt, Reuther was entitled to confront and cross-examine the witnesses against him. La. Const. art. I, § 16. La. C.E. art. 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case. Due process affords a defendant the right of full confrontation and cross-examination of the witnesses testifying against him. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201-02. The trial court has discretion to control the extent of the examination of witnesses as long as it does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766, p. 6 (La.1/14/97), 688 So.2d 473, 479; State v. Huckabay, 00-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, writ denied, 02-0703 (La.11/1/02), 828 So.2d 564. Evidentiary rules may not supersede the fundamental right to present a defense. Id.
Generally, an affidavit is inadmissible as hearsay. King's Joint Venture v. Marino, 02-0847, p. 4 (La.App. 4 Cir. 9/25/02), 827 So.2d 521, 524, citing Arkla, Inc. v. Maddox and May Bros. Casing Service, Inc., 624 So.2d 34, 36 (La.App. 2 Cir.1993). In the rare instances where an
In the recent opinion of Lang v. Asten, Inc., 05-1119 (La.1/13/06), 918 So.2d 453, the Supreme Court granted the writ application of an insurance company that had been held in constructive contempt for failing to obey an order requiring that it provide its purported insureds a "full and complete defense" while the insureds' motion for new trial and then their appeal were pending and unresolved. The Court reaffirmed prior jurisprudence by quoting La. C.C.P. art 225(A), which requires a trial before a person can be found guilty of, and punished for, a constructive contempt of court.
After reviewing the record, we find that the trial court did not hold a trial or even an evidentiary hearing on the motion for constructive contempt. In addition, the affidavits, even if we were to find them admissible, which we do not, fail to allege that Reuther represented that he was acting as an agent for any of the hospitality enterprise corporations.
The first affidavit was executed by David B. Hecker ("Hecker"), the chief financial officer for Retif Oil & Fuel, L.L.C. ("Retif"), who stated that on 27 October 2004, he received a telephone call from Reuther inquiring as to the balance owed by New Orleans Tours and whether it was making payments on its account. Reuther advised Hecker that New Orleans Tours was experiencing financial problems. Hecker contacted Bob Gaudet ("Gaudet"), Retif's sales manager, and told him of the conversation. He then told Gaudet that it was his opinion that Reuther was formulating a list of creditors for bankruptcy purposes. During a subsequent telephone call, Reuther also inquired about New Orleans Paddlewheels' accounts receivable, but Hecker told him that Retif did not sell to that company. Reuther told Hecker that current management was "running the company into the ground." The affidavit does not show or prove that Reuther violated the preliminary injunction.
Erik K. Windstein ("Windstein"), the general manager of Airport Shuttle and the risk manager of New Orleans Hospitality Companies, executed the second affidavit. On 28 October 2004, he received a telephone call from John Manuel, a New Orleans Tours and Airport Shuttle mechanic, who told him that their fuel supplier, Retif, shut off the fuel pumps. Windstein called Gaudet and was told that the CFO for Retif [Hecker] had received a call from Reuther, wherein Reuther inquired about the accounts and receivables of New Orleans Tours. Gaudet also told Weinstein that Reuther informed Hecker that New Orleans Paddlewheels was filing for bankruptcy. Again, the affidavit does not show or prove that Reuther violated the preliminary injunction.
ARMSTRONG, C.J., concurs.
ARMSTRONG, C.J., Concurring.
I respectfully concur. However, in reading the record I do not see that the trial court prevented the plaintiff-appellant, Mr. Reuther, from calling witnesses or presenting evidence. The trial judge stated:
The trial judge unquestionably was alluding to Rules for Civil (Except for Family, Juvenile or Domestic Relations) Proceedings in District Courts—Rule 9.9 which states in pertinent part that:
As quoted above, Rule 9.9(d) states that the party who fails to file an opposition eight days in advance of the hearing may forfeit the right to oral argument—it does not state that the party forfeits the right to call witnesses or present evidence. Therefore, while Rule 9.9 might empower the trial court to prevent a party from arguing, it does not provide the trial court with authority to prevent a party from presenting such evidence as is contemplated under La. C.C.P. art. 225 calling for a trial of a constructive contempt charge. I note that at one point in addressing counsel for the plaintiff, the trial court stated that: "You could have called witnesses here." I believe that based on the record the trial court should be presumed to have limited its ruling to denying the plaintiff the right to oral argument. Argument is not evidence. Maurice v. Prudential Ins. Co., 02-0993, p. 7 (La.App. 4 Cir. 10/23/02), 831 So.2d 381, 386.
Additionally, I note that while the plaintiff argues in his brief to this Court that he was prevented from offering any evidence, he does not say what evidence he might have offered had be had the chance to do so or what he sought to prove thereby, i.e., he makes no showing or argument of prejudice.
However, I am compelled to agree with the result reached by the majority on other grounds, and, therefore, respectfully concur.