National Union Fire Insurance v. Olympia Holding Corp. ( 2005 )


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  •                                                      [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT
    U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    July 21, 2005
    No. 04-15621           THOMAS K. KAHN
    Non-Argument Calendar           CLERK
    ________________________
    D. C. Docket No. 94-02081-CV-GET-1
    NATIONAL UNION FIRE INSURANCE COMPANY
    OF PITTSBURGH, PENNSYLVANIA,
    Plaintiff-Counter-Defendant-
    Appellee,
    versus
    OLYMPIA HOLDING CORPORATION
    a.k.a. P-I-E Nationwide, Inc., et al.,
    Defendants-Counter-Claimant-
    Cross-Claimant,
    LEONARD A. PELULLO,
    Defendant-Cross-Defendant-
    Counter-Claimant-Appellant,
    JOSEPH M. FIORAVANTI,
    Defendant-Appellant,
    NCNB NATIONAL BANK, et al.,
    Defendants-Counter-Claimants,
    NATIONSBANK OF FLORIDA, N.A., et al.,
    Defendants.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (July 21, 2005)
    Before BLACK, CARNES and MARCUS, Circuit Judges.
    PER CURIAM:
    The district court imposed civil contempt sanctions of $283,172.80 on
    Leonard Pelullo and Joseph Fioravanti, Appellants, for violation of its March 31,
    1997 permanent injunction. Appellants contend the district court abused its
    discretion by (1) finding them in contempt, (2) awarding an excessive amount of
    sanctions, and (3) not holding an evidentiary hearing. We affirm.
    I. BACKGROUND
    In 1994, National Union Fire Insurance Company of Pittsburgh,
    Pennsylvania (National Union) filed an interpleader action to resolve competing
    claims under a directors and officers insurance policy (D & O policy) it issued to
    P-I-E Nationwide, Inc. Pelullo, an officer and director of P-I-E, was indicted in
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    Jacksonville, Florida (Jacksonville action), as well as in Philadelphia,
    Pennsylvania (Philadelphia action) and Newark, New Jersey (Newark action).
    Pelullo made claims for coverage and defense costs under the D & O policy,
    eventually gaining coverage for the Jacksonville action but not the Philadelphia or
    Newark actions.
    On March 31, 1997, the district court granted National Union a permanent
    injunction “enjoining defendants from commencing or prosecuting any action
    affecting the proceeds of the policy.” National Union and Pelullo also entered into
    a Defense Costs Funding Agreement (“DCFA”), which followed the district
    court’s order and provided for defense costs to be provided from the D & O
    policy.
    On November 7, 2000, Pelullo and other plaintiffs, with assistance from
    counsel, Fioravanti, filed a civil RICO action in Philadelphia against National
    Union, law firms insured by National Union, and law firms retained by National
    Union to represent entities controlled by Pelullo. The first amended complaint,
    filed in February 2001, alleged that National Union and other defendants sought to
    limit National Union’s exposure by engaging in a RICO conspiracy, and made
    specific reference to the D & O policy and the March 31, 1997 district court order.
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    National Union filed a motion for order to show cause why Pelullo and
    Fioravanti should not be held in civil contempt for violating the March 31, 1997
    permanent injunction, which the district court granted on October 2, 2001. Pelullo
    then filed a second amended complaint on November 21, 2001, which reasserted
    the earlier claims and added two new claims against National Union, including an
    allegation that National Union breached the DCFA and acted in bad faith.
    On January 9, 2002, the district court issued an order finding Pelullo and
    Fioravanti in contempt and imposing sanctions. The monetary sanctions consisted
    of the “reasonable attorney’s fees, costs and expenses” National Union incurred as
    a result of defending the RICO complaint, as well as the “reasonable attorney’s
    fees, costs and expenses” incurred in prosecuting the motion for contempt. The
    district court also directed Pelullo and Fioravanti to dismiss the RICO action.
    More than two years of wrangling ensued regarding the appropriate amount
    of sanctions. On December 3, 2003, the district court issued an order finding that
    National Union was entitled to recover fees incurred for defending Pelullo’s RICO
    complaint through January 15, 2002, when those claims were dismissed, as well as
    fees incurred in prosecuting the motion for contempt.
    The district court’s final order was filed August 4, 2004, directing Pelullo
    and Fioravanti to pay $283,172.80 in sanctions, consisting of $219,128.97 for
    4
    National Union’s RICO defense and $64,043.83 for National Union’s prosecution
    of the motion for contempt. Pelullo and Fioravanti appeal.
    II. DISCUSSION
    We review a grant or denial of civil contempt for an abuse of discretion.
    Jove Eng’g, Inc. v. IRS, 
    92 F.3d 1539
    , 1545 (11th Cir. 1996). District courts “have
    inherent power to enforce compliance with their lawful orders through civil
    contempt.” Citronelle-Mobile Gathering, Inc. v. Watkins, 
    943 F.2d 1297
    , 1301
    (11th Cir. 1991) (citing Shillitani v. United States, 
    384 U.S. 364
    , 370, 
    86 S. Ct. 1531
    , 1535 (1966)). To achieve compliance, courts can impose both coercive and
    compensatory sanctions. 
    Id. at 1304.
    A.    Finding of contempt
    The district court’s January 9, 2002 order found Pelullo and Fioravanti in
    contempt of its March 31, 1997 permanent injunction. The 1997 order enjoined
    Pelullo “from commencing or prosecuting any action affecting the proceeds of the
    policy,” which encompasses not only actions seeking the proceeds themselves but
    also any action concerning the proceeds or undermining the final judgment of the
    district court. The district court’s January 2002 order found
    the only reasonable interpretation of the claims asserted by Pelullo is
    that the recovery sought would “affect [] the proceeds of the [D & O]
    policy” in violation of this court’s permanent injunction. For
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    example, Pelullo alleges a breach of the Defense Funding Agreement
    which specifically provided for payment out of policy proceeds.
    Furthermore, the damages sought by Pelullo include legal fees for the
    Philadelphia, Newark and Jacksonville Criminal Actions which were
    the subject of the instant interpleader action. Such relief would
    directly affect the proceeds of the D & O policy.
    We agree with the district court.
    Civil contempt orders should be upheld if the defendant’s contempt is clear
    and convincing, and demonstrates “(1) the allegedly violated order was valid and
    lawful; (2) the order was clear, definite and unambiguous; and (3) the alleged
    violator had the ability to comply with the order.” McGregor v. Chierico, 
    206 F.3d 1378
    , 1383 (11th Cir. 2000) (quotation omitted).
    Pelullo and Fioravanti do not argue the district court’s injunction was
    invalid or unlawful, or unclear and ambiguous. Nor do they argue they were
    unable to comply with the permanent injunction. Instead, they contend they did
    not willfully violate the district court’s injunction, and therefore they should not
    be held in contempt. But their subjective intent is not relevant: “[T]he focus of
    the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or
    intent of the alleged contemnors in complying with the order, but whether in fact
    their conduct complied with the order at issue.” Howard Johnson Co., Inc. v.
    Khimani, 
    892 F.2d 1512
    , 1516 (11th Cir. 1990).
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    By itself, Count X of the RICO complaint violated the permanent injunction
    because, if successful, it would affect the proceeds of the D & O policy. Count X
    alleged National Union breached the DCFA, which concerned the payment of
    legal fees by National Union to Pelullo under the D & O policy. Under Count X,
    paragraph 208(a) sought “the damages alleged in paragraph 182.” Paragraph 182
    outlined damages suffered by Pelullo, including millions of dollars in legal fees
    for the Philadelphia and Newark actions. In other words, Pelullo’s RICO
    complaint sought payment of legal fees, fines, forfeitures, and restitution for the
    Philadelphia and Newark actions. But the district court’s June 4, 1996 judgment
    (amended by the March 31, 1997 judgment) denied coverage and legal fees for
    Pelullo’s defense in the Philadelphia and Newark actions. Thus, the RICO
    complaint by Pelullo and Fioravanti would affect the proceeds of the D & O
    policy, which the district court’s permanent injunction expressly prohibited.
    Similarly, Count II alleged National Union organized and supervised a
    conspiracy to “ensure that M. Pelullo would remain incarcerated and be convicted
    in the Jacksonville Criminal Action, which conviction would then require
    Mr. Pelullo to reimburse National Union for Mr. Pelullo’s legal fees and costs paid
    by National Union under the D & O policy.” According to Count II, among the
    method and means employed by National Union included “National Union’s
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    breach of its obligations under the D & O Policy and the Funding Agreement.” If
    Pelullo succeeded on Count II, the proceeds of the D & O policy might be
    affected.
    The district court correctly determined Pelullo’s RICO complaint, if
    successful, would affect the D & O policy, and therefore violated its permanent
    injunction. We find no abuse of discretion.
    B.    Amount of sanctions
    Once a district court finds a party in contempt, it has “broad discretion in
    fashioning a contempt sanction.” Sizzler Family Steak Houses v. W. Sizzlin Steak
    House, Inc., 
    793 F.2d 1529
    , 1536 n.8 (11th Cir. 1986). As noted above, sanctions
    can be imposed for both coercive and compensatory reasons. 
    Citronelle-Mobile, 943 F.2d at 1304
    .
    As part of its sanctions, the district court sought to compensate National
    Union for the costs it incurred in defending the RICO complaint and in
    prosecuting the civil contempt order. In its December 3, 2003 order, the district
    court reviewed the attorneys’ fees paid by National Union, and found “the rates
    and hours billed are consistent with those charged by lawyers of similar
    experience in an action such as this.” The August 4, 2004 final order reaffirmed
    this finding: “[B]ased on the court’s review of the unredacted billing records filed
    8
    under seal by the plaintiff, the court adheres to its original finding that the fees
    requested by plaintiff are reasonable.” Thus, on two separate occasions, the
    district court reviewed the attorneys’ fees, costs, and expenses paid by National
    Union, and found them reasonable.
    We find no abuse of discretion in the district court’s calculation of sanctions
    for Pelullo’s and Fioravanti’s civil contempt.1
    C.     Evidentiary hearing
    Appellants contend the district court abused its discretion by failing to
    conduct an evidentiary hearing before holding them in contempt, claiming material
    facts were in dispute.
    “[W]hen there are no disputed factual matters that require an evidentiary
    hearing, the court might properly dispense with the hearing prior to finding the
    defendant in contempt and sanctioning him.” Mercer v. Mitchell, 
    908 F.2d 763
    ,
    769 n.11 (11th Cir. 1990). Here, there were no material issues of fact requiring an
    evidentiary hearing. The validity of the permanent injunction was never
    1
    Relying principally on Norman v. Hous. Auth. of City of Montgomery, 
    836 F.2d 1292
    (11th Cir. 1988), Appellants seek to import the lodestar method of calculating attorneys’ fees into
    a district court’s calculation of sanctions, but we see no reason to do so. Sanctions for civil
    contempt are not equivalent with typical payment of attorneys’ fees, and civil contempt sanctions
    do not require the use of the lodestar method. We yield to the broad discretion enjoyed by
    district courts in fashioning sanctions for civil contempt, and do not find the amount of sanctions
    unreasonable.
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    questioned, and neither party disputes that Pelullo and Fioravanti filed the RICO
    complaint. Neither party disputes the contents of that complaint, nor do they
    dispute the existence and validity of the DCFA. As to the amount of sanctions,
    National Union provided uncontradicted evidence of the attorneys’ fees, costs, and
    expenses it paid.
    Appellants challenge the interpretation of the facts, but not the existence of
    the facts themselves. Although they object to the fees paid by National Union,
    deeming them excessive, their concern goes to necessity and propriety, not the fact
    of whether the fees were paid.
    With no disputed material facts in issue, the district court did not abuse its
    discretion by not holding an evidentiary hearing before finding Pelullo and
    Fioravanti in contempt.
    III. CONCLUSION
    The district court did not abuse its discretion in finding Appellants in
    contempt. Nor did the district court abuse its discretion in determining the amount
    of sanctions, and by not holding an evidentiary hearing.
    AFFIRMED.
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