in Re Darien Vivero Capoche ( 2012 )

Opinion issued November 29, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-01063-CV
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IN RE DARIEN VIVERO CAPOCHE, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
Darien Vivero Capoche brought this original habeas corpus proceeding after
the district court held her in contempt and committed her to county jail for failing to
comply with a turnover order issued pursuant to section 31.002 of the Texas Civil
Practice and Remedies Code (West 2008). 1 We conclude that Capoche was denied
due process of law because she was not provided with adequate notice of when and
how she had allegedly violated the underlying order, and we order Capoche be
discharged from custody.
BACKGROUND
On May 20, 2011, the 257th Judicial District Court of Harris County rendered
judgment in Case No. 2010-31777 in favor of Philippe Camile Julien Magnier and
against Darien Vivero Capoche in the amount of $66,598.84. After perfecting his
lien against Capoche’s non-exempt property, Magnier filed an “Application for
Turnover Relief After Judgment.” After a hearing on the motion, the trial court
issued an “Order for Turnover Relief After Judgment” on May 22, 2012 (Turnover
Order), appointing Henry Radoff as receiver and master in chancery under Texas
Rule of Civil Procedure 171, with all powers available thereunder.
On June 29, 2012, Magnier filed a motion to hold Capoche in contempt of the
Turnover Order (Motion for Contempt). The trial court held an evidentiary hearing
on the Motion for Contempt on October 8, 2012, during which both Magnier and
Capoche were present. After the hearing, the trial court issued an order finding
1 This original proceeding arises out of Case No. 2010-31777, styled In the Interest of
D.O.M., Minor Child, in the 257th District Court, Harris County, Texas, the
Honorable Judy Warne, presiding.
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Capoche in contempt of the Turnover Order and committing her to county jail
(Commitment Order). On November 20, 2012, Capoche filed the underlying
petition for writ of habeas corpus alleging, inter alia, that she was denied due process
of law because the Motion for Contempt failed to adequately provide her with notice
of when and how she has allegedly violated the Turnover Order.
In the present case, we agree that the Motion for Contempt lacked the
requisite specificity. In the Motion for Contempt, Magnier simply alleged that
Capoche had “refused to cooperate with the [r]eceiver’s request to answer and
provide documents,” as set forth in the receiver’s affidavit which was attached and
incorporated for all purposes. The receiver’s affidavit stated that Capoche was “not
cooperating with the [r]eceiver’s request to provide said documents as reference[d]
in the attached Exhibit A.” Exhibit A provided a laundry list of thirty categories of
financial documents that the receiver requested from Capoche.
Although both the Motion for Contempt and the attached receiver’s affidavit
broadly asserted that Capoche failed or refused to cooperate with the receiver’s
request for documents, neither the Motion for Contempt nor the receiver’s affidavit
expressly and unambiguously identified how Capoche had failed or refused to
cooperate. Did Capoche produce some of the requested items? None? Did she
provide the receiver with the wrong documents? There is simply no way to know
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how Capoche was in violation of the Turnover Order, or what precisely she needed
to do to be in compliance with the Turnover Order, based upon the Motion for
Contempt and its attachments.2
“Due process of law demands that before a Court can punish for a contempt
not committed in its presence, the accused must have full and complete notification
of the subject matter, and the show cause order or other means of notification must
state when, how and by what means the defendant has been guilty of the alleged
contempt.” Ex Parte Carney, 903 S.W.2d 345, 346 (Tex. 1995) (per curiam)
(citing Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969)). Because the Motion
for Contempt did not give Capoche full and complete notice of when, how, and by
what means she was guilty of contempt, the motion failed to provide Capoche with
adequate notice and is therefore void. See Ex Parte Carney, 903 S.W.2d at 346–47
(granting relator’s petition for writ of habeas corpus because, although turnover
order it was based upon was relatively specific, judgment creditor’s motion for
contempt merely alleged that realtor had failed to comply with turnover order and
therefore, motion for contempt lacked “the requisite specificity” sufficient for fair
notice).
2 Magnier filed a response to Capoche’s petition for writ of habeas corpus and
attached portions of Capoche’s July 24, 2012 deposition and the August 22, 2012
deposition of Radoff, the appointed receiver. In his deposition, Radoff testified
that as of that date, Capoche had neither contacted his office nor provided him with
any of the requested documents.
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Accordingly, we grant Capoche’s petition for writ of habeas corpus and we
order her immediate discharge from custody.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Sharp.
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