in Re Anthony L. Bannwart , 2014 Tex. App. LEXIS 6349 ( 2014 )

Opinion issued June 12, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01001-CV
NO. 01-13-01094-CV
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IN RE ANTHONY L. BANNWART, JR., Relator
Original Proceeding on Petition for Writ of Habeas Corpus and Petition for
Writ of Prohibition
OPINION
Relator, Anthony L. Bannwart, requests habeas corpus relief from a
November 19, 2012 trial court “Judgment of Contempt-Anthony Bannwart” and
seeks a writ of prohibition preventing the trial court from holding further criminal
contempt proceedings.1 On November 26, 2013, after a preliminary review of
relator’s petition for writ of habeas corpus, we ordered relator released upon his
posting of a bond in the amount of $1000.00, pending a final determination of his
petition. Because we conclude that relator is entitled to habeas relief, we grant his
petition for writ of habeas corpus, order relator released from the bond set by this
Court on November 26, 2013, and order him discharged from custody. We deny
relator’s petition for writ of prohibition.
Background
The underlying suit involves the foreclosure of real property located in
Brazoria County, Texas. Relator represented third-party defendant, Michael
Robinson (“Robinson”), in the underlying suit. In 2011, real party in interest,
Black Sigma, LLC (“Black Sigma”), sought a temporary injunction to prevent
Robinson from conducting a trustee’s sale of the Brazoria County property. An
order granting the temporary injunction was signed by the trial court on
September 1, 2011. On October 7, 2011, the trial court signed an amended order
granting the temporary injunction, which “relate[d] back to, the Order granting
temporary injunction of September 1, 2011.” Subsequently, an interlocutory
1
The underlying case is Black Sigma, LLC v. John P. Benkenstein, David A.
Chaumette, Howard F. Cordary, Jr., and Michael P. Robinson, cause number
64769, pending in the 23rd District Court of Brazoria County, Texas, the
Honorable Ben Hardin presiding.
2
appeal from the amended temporary injunction order was filed in this Court,
appellate cause number 01-11-00917-CV, by relator’s client, Robinson.2
On May 22, 2012, Black Sigma filed a “Motion for Contempt and for
Referral to the Trial Court to Enforce Temporary Injunction” in appellate cause
number 01-11-00917-CV, arguing that relator, among others, should be held in
contempt for violating the trial court’s temporary injunction orders. In its motion,
Black Sigma asserted that relator was involved in the substitute trustee’s sale of the
Brazoria County property in violation of the trial court’s temporary injunction
orders.
On June 7, 2012, this Court issued an “Order of Abatement and Referral of
Enforcement Proceeding to the Trial Court,” which referred the enforcement
proceeding of the temporary injunction orders to the trial court for that court to
hear evidence and grant appropriate relief. The contempt proceedings, which are
the subject of relator’s petition for writ of habeas corpus and for writ of
prohibition, subsequently commenced in the trial court.
On November 19, 2012, the trial court found relator guilty of civil contempt
for violating the September 1, 2011 temporary injunction order. Specifically, the
trial court found that relator violated the trial court’s order:
2
Relator has since withdrawn as counsel for Robinson and no longer represents
Robinson in appellate cause number 01-11-00917-CV.
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1. By advising Michael Robinson that the Order Granting
Temporary Injunction of September 1, 2011 was void; and
2. By failing to advise Michael Robinson not to proceed with a
substitute trustee’s sale on September 6, 2011.
The contempt order further provided that relator “shall be confined in the Brazoria
County Jail until he purges himself of contempt by taking action to cause the
execution and recording of a document in form acceptable to the Court vacating
the said substitute trustee’s deed, effective September 6, 2011.”
On August 9, 2013, relator attempted to purge himself of contempt by filing
an “Amended Motion to Vacate Substitute Trustee’s Deed.” In response, on
October 7, 2013, the trial court presented relator with an “Order and Declaratory
Judgment on Amended Motion to Vacate Substitute Trustee’s Deed,” as a means
of reversing the September 6, 2011 substitute trustee’s sale. The order required
relator to acknowledge by signature approval of both the substance and form of the
proposed order. The order also required the signature of relator’s client, Robinson,
and a certification by relator that Robinson’s signature was genuine. The signed
order, along with other documents, was to be presented to the trial court by
November 4, 2013. It does not appear from the record that relator returned the
documents to the trial court complete with the required signatures and certification.
In his petition, relator states that, at the time Robinson’s signature was
required on the trial court’s proposed order, Robinson was located out of state and
4
was unable to travel due to serious health conditions. Therefore, relator could not
certify the authenticity of Robinson’s signature, who could not sign the order in
relator’s presence.3
On November 8, 2013, the trial court issued a capias for the arrest of relator
based on the trial court’s November 19, 2012 civil contempt order. Relator
subsequently filed a petition for writ of habeas corpus and writ of prohibition with
this Court.4 We ordered relator released upon his posting of a bond, pending full
submission of the matter. We also requested a response from Black Sigma, which
was filed on December 18, 2013.
Writ of Habeas Corpus
Standard of Review
The purpose of a habeas corpus proceeding is not to determine the ultimate
guilt or innocence of the relator, but only to ascertain whether the relator has been
3
Relator also notes that on November 4, 2013, the trial court allowed relator to
withdraw as Robinson’s counsel, finding that Robinson had discharged relator.
4
The portion of relator’s petition relating to relator’s request for a writ of
prohibition concerns criminal contempt proceedings, rather than the
aforementioned civil contempt proceedings, that were also initiated against relator
in 2012. The criminal contempt proceedings against relator were referred by the
trial court to The Honorable Olen Underwood, the Presiding Judge of the Second
Judicial Administrative Region, pursuant to Texas Government Code section
21.002(d). See TEX. GOV’T CODE ANN. § 21.002(d) (West 2004). Judge
Underwood assigned The Honorable Bob Wortham, now former judge of the 58th
District Court of Jefferson County, to hear and determine the criminal contempt
proceedings. At the time relator filed his petition, relator stated that the criminal
contempt proceedings were still pending. To date, the parties have not notified the
Court otherwise.
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unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig.
proceeding). In a habeas corpus proceeding, the order or judgment challenged is
presumed to be valid. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—
Houston [1st Dist.] 1990, orig. proceeding). For this Court to order the release of a
relator in a habeas corpus proceeding, we must find that the trial court’s order
directing the relator to be incarcerated is void because of a lack of jurisdiction or
because the relator was deprived of liberty without due process of law. In re
Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig.
proceeding). The relator bears the burden of showing that he is entitled to relief.
In re Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig.
proceeding).
Analysis
Relator asserts his confinement is illegal because: (1) the September 1, 2011
order of temporary injunction upon which relator’s contempt is founded is void;
(2) the charges of contempt are too vague and ambiguous to provide relator with
adequate notice to prepare a defense; (3) the September 1, 2011 temporary
injunction order did not enjoin the conduct for which relator was found in
contempt; (4) the judgment of civil contempt is void because it lacks specificity
regarding the acts relator must perform to purge himself of contempt; (5) the
evidence was legally and factually insufficient to support a finding of civil
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contempt; and (6) the capias was not issued sufficiently close in time to the trial
court’s judgment of civil contempt. Because we sustain relator’s fourth issue, we
do not address the other issues in relator’s petition.
In his fourth issue, relator asserts that his due process rights were violated
because the trial court’s judgment of civil contempt did not specify in clear and
unambiguous language what relator must do to purge himself of contempt. We
agree.
The trial court found relator guilty of civil contempt in its November 19,
2012 order of contempt. Civil contempt is considered remedial and coercive in
nature. Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding); In
re Houston, 92 S.W.3d 870, 876 n.2 (Tex. App.—Houston [14th Dist.] 2002, orig.
proceeding). “The object of civil contempt is to coerce the contemnor to comply
with some order of the court.” Ex parte Durham, 921 S.W.2d 482, 485 (Tex.
App.—Corpus Christi 1996, orig. proceeding); see also Ex parte Zinn, No. 04-95-
00525-CV, 1996 WL 11423, at *4 (Tex. App.—San Antonio Jan. 11, 1996, orig.
proceeding) (not designated for publication) (“The purpose [of civil contempt] is to
persuade the contemnor to obey a prior order.”).
A contemnor may procure his release from the restraint on his liberty by
compliance with the provisions of the court’s order. In re Houston, 92 S.W.3d at
876 n.2; see also Ex parte Zinn, 1996 WL 11423, at *4 (“Imprisonment is
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conditional upon obedience; the judgment provides that the contemnor is to be
imprisoned unless and until he performs a specified affirmative act.”). Because of
this, when civil contempt is imposed, the order must spell out exactly what duties
and obligations are imposed and what the contemnor can do to purge the contempt.
In re Tsertos, No. 01-11-00170-CV, 2011 WL 941571, at *1 (Tex. App.—Houston
[1st Dist.] Mar. 14, 2011, orig. proceeding) (mem. op); In re Houston, 92 S.W.3d
at 877; see also In re Johnson, No. 14-09-00775-CV, 2009 WL 4345405, at *2
(Tex. App.—Houston [14th Dist.] Dec. 3, 2009, orig. proceeding) (mem. op.)
(“[O]rder must tell the contemnor in clear, specific, and unambiguous words how
to gain release from contempt.”); Ex parte Williams, 866 S.W.2d 751, 753–54
(Tex. App.—Houston [1st Dist.] 1993, orig. proceeding) (“[O]rder must specify in
clear language the actions which the contemnor must perform in order to gain
release.”). The failure of an order of contempt to specify in clear and unambiguous
language what the contemnor is required to do to purge himself and escape the
restraint on his liberty renders the order invalid. See Ex parte Zinn, 1996 WL
11423, at *4–5; Ex parte Rosser, 899 S.W.2d 382, 387 (Tex. App.—Houston [14th
Dist.] 1995, orig. proceeding).
Here, the trial court’s civil contempt order stated the following with respect
to the manner in which relator may purge himself of civil contempt:
Anthony Bannwart shall be confined in the Brazoria County Jail until
he purges himself of contempt by taking action to cause the execution
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and recording of a document in form acceptable to the Court vacating
the said substitute trustee’s deed, effective September 6, 2011.
This purging condition does not clearly or specifically notify relator of the
action he needs to take to purge himself of contempt and escape the restraint on his
liberty. The provision fails to specify the type of document relator is required to
execute and record in order to vacate the substitute trustee’s deed and leaves open
for interpretation the form of the required document, given that the only guideline
is that it must be in a “form acceptable to the [trial court].”
We hold that the purging provision of the contempt order does not “spell out
exactly” in clear and unambiguous language what relator must do to purge the
contempt. See In re Houston, 92 S.W.3d at 877; see also In re Johnson, 2009 WL
4345405, at *2 (order must tell contemnor in “clear, specific, and unambiguous
words” how to purge himself of contempt). Therefore, the contempt order is void.
See Ex parte Rosser, 899 S.W.2d at 387 (order that does not clearly set out action
relator must take is void). Relator’s fourth issue is sustained.
Writ of Prohibition
In his petition, relator also seeks a writ of prohibition “directing Judge
Wortham to abate further activity against [relator] in the criminal contempt
matter.” Relator asserts that the writ of prohibition is “necessary to protect the
subject matter of this appeal and the prior appeal of the underlying Injunction
Order.” We presume relator is asserting that the writ of prohibition is necessary to
9
protect the subject matter of the interlocutory appeal from the amended temporary
injunction order that is pending in this Court, appellate cause number 01-11-
00917-CV.
An appellant court may issue a writ of prohibition to protect the subject
matter of an appeal or to prohibit unlawful interference with enforcement of an
appellate court’s judgment. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680,
683 (Tex. 1989). However, relator does not demonstrate how the criminal
contempt proceedings involving relator are a threat to the subject matter of an
appeal currently pending in this Court. Cf. Burton v. Trevathan, No. 01-91-00218-
CV, 1991 WL 36987, at *2 (Tex. App.—Houston [1st Dist.] Mar. 19, 1991, orig.
proceeding) (not designated for publication) (declining to prevent trial court from
hearing contempt proceedings arising from alleged violation of temporary
injunction that was being appealed because relator failed to show how subject
matter of pending appeal would be destroyed).
Further, in appellate cause number 01-11-00917-CV, we specifically abated
the appeal and referred the enforcement proceeding of the temporary injunction
orders to the trial court to hear evidence and grant appropriate relief. See TEX. R.
APP. P. 29.4 (“[T]he appellate court may refer any enforcement proceeding to the
trial court with instructions to . . . hear evidence and grant appropriate relief.”). In
accordance with this Court’s order, both civil and criminal contempt proceedings
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were commenced against relator in the trial court. Relator now seeks to prohibit,
through his request for a writ of prohibition, the continuance of the criminal
contempt proceedings which were initiated pursuant to this Court’s “Order of
Abatement and Referral of Enforcement Proceeding to the Trial Court.” We deny
relator’s petition for writ of prohibition.
Conclusion
We grant relator’s petition for writ of habeas corpus, order relator released
from the bond set by this Court on November 26, 2013, and order relator
discharged from custody.5 We deny relator’s petition for writ of prohibition.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley, and Brown.
5
Since the capias was issued to enforce the contempt order which has been found
void, the capias is also hereby rendered void. See Ex parte Rosser, 899 S.W.2d
382, 387 n.13 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).
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