                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1517

                               Coco’s Heart Dog Rescue,
                                     Respondent,

                                           vs.

                                Ann Marie Hawthorne,
                                     Appellant.

                                  Filed April 13, 2015
                                       Affirmed
                                     Hooten, Judge

                           Washington County District Court
                              File No. 82-CV-14-2100

John C. Conard, Brian R. Christiansen, Hellmuth & Johnson, PLLC, Edina, Minnesota
(for respondent)

Barry S. Edwards, Barry S. Edwards Law Offices, Minneapolis, Minnesota (for
appellant)

      Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and

Hooten, Judge.

                        UNPUBLISHED OPINION

HOOTEN, Judge

      Appellant challenges the district court’s decision to hold her in contempt of court,

asserting that the district court erred by designating the proceeding as one involving a

constructive civil contempt, instead of constructive criminal contempt, and, in doing so,
failed to provide her with the required procedural safeguards. Because the district court

did not err by using its constructive civil contempt powers to conduct this proceeding and

impose accompanying sanctions, and because the district court considered and rejected

appellant’s criminal contempt arguments before holding her in contempt, we affirm.

                                        FACTS

      This case arises from a dispute between appellant Ann Marie Hawthorne and

respondent Coco’s Heart Dog Rescue over the ownership of a rescue dog named Dixie.

In January 2014, Hawthorne signed a foster-home agreement with Coco’s Heart, in which

she agreed to temporarily care for and house rescue dogs while Coco’s Heart attempted to

place the animals with permanent owners. Sometime after she signed the agreement,

Hawthorne began providing foster care to Dixie for Coco’s Heart. The parties eventually

disagreed as to the proper course of veterinary care for Dixie, and Coco’s Heart

attempted to regain possession of Dixie. Hawthorne refused to return Dixie; instead, she

claimed ownership of the dog and sought to transfer Dixie to another rescue agency.

      In April 2014, Coco’s Heart brought a replevin action against Hawthorne for the

wrongful possession of Dixie. In conjunction with a motion seeking to recover Dixie

from Hawthorne prior to a hearing under Minn. Stat. § 565.24, subd. 1 (2014), the

executive director of Coco’s Heart submitted an affidavit, along with the foster-home

agreement with Hawthorne and other supporting documents, in which she explained that

according to the terms of the agreement, Dixie was owned by Coco’s Heart, Hawthorne

could not adopt Dixie unless such adoption was approved by Coco’s Heart, and that




                                            2
Hawthorne could not transfer Dixie to another rescue facility or home. There is nothing

in the record on appeal indicating that Hawthorne responded to this motion. 1

       On May 1, 2014, the district court held a review hearing and ordered Hawthorne to

either return Dixie or deposit a $700 bond subject to three conditions: (1) Dixie being

alive and well; (2) Dixie would not be transferred or transported to any other person or

entity absent a court order; and (3) Hawthorne was to appear before the district court on

May 7, 2014. Hawthorne did not return Dixie or post a bond, but appeared with her

attorney at the May 7 hearing. After that hearing, the district court ordered Hawthorne to

surrender Dixie to Coco’s Heart. The district court further ordered that the Oakdale

Police Department and a person from Coco’s Heart were to retrieve Dixie from

Hawthorne’s home and, in the event Hawthorne did not surrender the dog or disclose

where the dog was, Hawthorne was to personally appear before the district court on May

9 and show cause as to why she should not be held in contempt. Hawthorne did not post

a bond, surrender Dixie, or disclose Dixie’s whereabouts.

       Coco’s Heart moved the district court for an order of contempt against Hawthorne

and requested damages and attorney fees under Minn. Stat. § 588.11 (2014). In response




1
  The record does not contain any transcripts of any of the hearings that took place before
the district court. It is appellant’s responsibility to order a transcript “of those parts of the
proceedings not already part of the record which are deemed necessary for inclusion in
the record.” Minn. R. Civ. App. P. 11.02, subd. 1(a). When an appellant fails to provide
a transcript, appellate review is “limited to whether the trial court’s conclusions of law
are supported by the findings.” Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494
(Minn. App. 1995). Accordingly, the record on appeal consists of the written
submissions of the parties to the district court and the district court orders.

                                               3
to this motion for contempt, an evidentiary hearing was held on June 9, 2014. At the

hearing, both parties were represented by counsel.

       According to the July 7 district court order issued after the hearing, Hawthorne

testified that she had not returned Dixie because she was confused as to the requirements

of the district court’s May 7 order. Hawthorne further claimed that Dixie had been stolen

from her home shortly after the May 7 hearing and that she had reported this theft to the

police. However, the district court found that there was no “legitimate dispute” about the

ownership of Dixie, Hawthorne’s understanding of its orders, or whether Dixie was

“stolen.” In finding that Hawthorne’s testimony lacked credibility, the district court

pointed out several inconsistencies in her testimony about the theft of Dixie, including the

fact that nothing else in her home was stolen, even though there were expensive

electronics in the home, there were no signs of forced entry, and her claim that she had

earlier lost her house keys and garage door opener was not communicated to the police

when she reported the theft. The district court also found that in addition to the lack of

evidence corroborating her story, Hawthorne had posted on the Internet soon after the

May 7 hearing that she had been ordered to surrender Dixie and “fear[ed] for this dog’s

safety,” contradicting her testimony that she wanted to return the dog to Coco’s Heart.

The district court made a preliminary determination that Coco’s Heart had incurred a

minimum of $4,550 in damages and attorney fees.

       Based upon these findings and conclusions regarding Hawthorne’s “incredible

testimony,” the district court held her in contempt for failure to comply with its prior

orders and sentenced her to 90 days in jail, with the sentence to commence on August 18,


                                             4
2014. The contempt order further provided that Hawthorne could purge the contempt and

not have to serve the 90-day jail sentence if she either surrendered Dixie to Coco’s Heart

or paid damages and attorney fees to Coco’s Heart by August 18, 2014.

       After leaving the record open for further submissions only on the issue of attorney

fees, the district court entered an award of damages and attorney fees in favor of Coco’s

Heart in the amount of $4,550 on August 27 and ordered that “all other conditions and

findings and conclusions” in its July 7, 2014 order “remain[ed] in full force and effect.”

In accordance with the district court’s order that there was to be no “further reason for

delay,” judgment was entered on August 28, 2014. There is no evidence in the record

that Hawthorne paid the damages and attorney fee award or returned Dixie to Coco’s

Heart, and the record indicates that she began her sentence on the contempt finding and

brought this appeal.

                                     DECISION

                                             I.

       After Hawthorne’s appeal was filed, this court ordered the parties to serve and file

informal memoranda addressing whether the issues raised in Hawthorne’s brief were

presented to and decided by the district court and, if not, whether the appeal should be

dismissed on the ground that Hawthorne improperly raises issues for the first time on

appeal. The primary argument Hawthorne raises in this appeal is that the district court

erred in treating her constructive contempt proceeding as a civil contempt, rather than a

criminal contempt, and that she was not afforded the procedural safeguards afforded in a

constructive criminal contempt proceeding.


                                             5
       It appears from the record that shortly after the evidentiary hearing, the parties

filed submissions with the district court on June 30, 2014.         In a proposed order,

presumably submitted by Hawthorne’s attorney, there is a finding that Coco’s Heart

“appeared to be seeking a criminal sanction” for contempt, and also a conclusion of law

stating that “when a party faces criminal sanctions for constructive contempt, her case

‘should not be prosecuted by attorneys other than those representing the state,’” quoting

Peterson v. Peterson, 278 Minn. 275, 281, 153 N.W.2d 825, 830 (1967). The submission

proposed that the motion for contempt would be denied and the replevin action would be

dismissed without prejudice. In the district court’s subsequent July 7 contempt order, it

cited numerous civil cases in support of its conclusion that the hearing involved

constructive civil contempt and that it had “the power to punish contempt by fine and/or

imprisonment” under Minn. Stat. § 588.02 (2014).

       We conclude, based upon this proposed order and the district court’s July 7

contempt order, that Hawthorne’s argument on appeal was presented to the district court,

and the district court implicitly considered and rejected Hawthorne’s argument by

specifically finding that this was a constructive civil contempt proceeding which included

imprisonment if the purge conditions were not satisfied.2 Accordingly, we may review

these issues here. See Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn.

2
  The July 7 contempt order only left the record open for the parties’ submissions
regarding damages and attorney fees. Because the district court had already ruled on the
contempt motion in its July 7 order, it was not necessary for the district court to
reconsider these same issues in its August 27 order. In fact, the later order provided that
other than the confirmation of the award of damages and attorney fees, “[a]ll other
conditions and findings . . . in [the] order dated July 7, 2014 remain in full force and
effect.”

                                            6
2001) (“[A] reviewing court generally may consider only those issues that the record

shows were presented to and considered by the [district] court.”).

                                             II.

       Hawthorne’s primary argument on appeal is that the district court erred in its

contempt order by imposing criminal, not civil, contempt conditions without following

criminal contempt procedures. We review a district court’s use of contempt powers for

an abuse of discretion and reverse the fact findings of a contempt order only if those

findings are clearly erroneous. In re Welfare of J.B., 782 N.W.2d 535, 538 (Minn. 2010).

       Both parties acknowledge that the district court correctly found constructive

contempt in this case, but Hawthorne contends that the sanctions imposed by the district

court show that the contempt was criminal in nature. We look to “the court’s purpose in

sanctioning the contemnor” in determining whether contempt is civil or criminal. State v.

Martin, 555 N.W.2d 899, 900 (Minn. 1996).             Contempt designed to punish past

misconduct is traditionally regarded as criminal contempt, id., while “[c]ivil contempt

sanctions are intended to operate in a prospective manner and are designed to compel

future compliance with a court order.” Mower Cnty. Human Servs. v. Swancutt, 551

N.W.2d 219, 222 (Minn. 1996) (quotation omitted). The civil form of the underlying

proceeding and the contempt order’s use of a “purge provision” are two indications that a

contempt order is civil, not criminal. Id. A contempt order that includes a determinate

jail sentence is civil in nature if accompanied by a purge clause. See id.

       Hawthorne argues that the contempt order was criminal because it contained no

real purge clause, as her only options were to “go to jail or pay attorney’s fees,” and that


                                             7
she could not purge the contempt by producing a dog that was stolen from her. She also

alleges that the determinate 90-day jail sentence renders the order criminal.        But,

Hawthorne misstates the conditions of the district court’s order, and an examination of

the order shows that it was civil in nature.

       Both the district court’s July 7 and August 27 orders made clear that Hawthorne

could purge the contempt by returning Dixie to Coco’s Heart:

                     Pending entry of a money judgment against
              [Hawthorne,] [Hawthorne] may rid her[self] of this contempt
              finding and satisfy the same and not have an obligation to pay
              to [Coco’s Heart] any further money judgment by securing
              and delivering to [Coco’s Heart] the live dog Dixie . . . .

Both orders then provided that Hawthorne “shall be deemed to have fully complied with

this contempt order,” with the required payment and jail sentence vacated, if she returned

Dixie to Coco’s Heart. Contrary to Hawthorne’s contentions, she merely needed to

return Dixie to Coco’s Heart in order to avoid the contempt sanctions. And while she

claims that such return was impossible due to the alleged theft of Dixie from her home,

the district court rejected her testimony that the dog had been stolen. Because Hawthorne

failed to order a transcript of that hearing, she cannot challenge this finding on appeal.

See Mesenbourg, 538 N.W.2d at 494. Even if she could dispute the district court’s

findings, we would defer to the district court’s determination that her claim that Dixie

was stolen lacked credibility. See Szarzynski v. Szarzynski, 732 N.W.2d 285, 298 (Minn.

App. 2007). The existence of the purge clause also refutes her contention that the

determinate 90-day sentence set by the district court indicates criminal contempt. See

Mower Cnty., 551 N.W.2d at 222. A final indication of civil contempt is that the order


                                               8
grew out of a civil replevin action, not a criminal prosecution. See id. (providing that

underlying proceeding was a civil matter).

       We conclude that the district court’s contempt orders were civil, not criminal in

nature, as they were designed “to induce future performance of a valid court order, not to

punish for past failure to perform.” Zaldivar v. Rodriguez, 819 N.W.2d 187, 196 (Minn.

App. 2012) (quotation omitted). Hawthorne held “the keys to the jail,” Mower Cnty., 551

N.W.2d at 224, and her continued unwillingness to comply with the district court’s

mandate that she return Dixie to Coco’s Heart does not transform this civil contempt into

criminal contempt. The district court did not abuse its discretion by holding Hawthorne

in constructive civil contempt.

                                             III.

       Hawthorne further argues that the district court did not follow required due-

process procedures in holding her in contempt. Because we conclude that the district

court held her in constructive civil contempt, we address only her arguments as to civil

contempt. While the full panoply of criminal due-process protections are not required in

civil contempt proceedings, “notice and an opportunity to be heard” must be afforded to

contemnors.      Id. at 223.   Minnesota caselaw has expanded the notice and hearing

requirements and prescribed that a civil contempt proceeding must meet the following

requirements:

                       (1) the court has jurisdiction over the subject matter
                and the person;
                       (2) a clear definition of the acts to be performed;
                       (3) notice of the acts to be performed and a reasonable
                time within which to comply;


                                              9
                        (4) an application by the party seeking enforcement
                giving specific grounds for complaint;
                        (5) a hearing, after due notice, to give the
                nonperforming party an opportunity to show compliance or
                the reasons for failure;
                        (6) a formal determination by the court of failure to
                comply and, if so, whether conditional confinement will aid
                compliance;
                        (7) an opportunity for the nonperforming party to show
                inability to comply despite a good faith effort; and
                        (8) the contemnor’s ability to gain release through
                compliance or a good faith effort to comply.

Id. (quotation omitted).

         Hawthorne cites these requirements in her brief, but provides no argument that the

district court failed to meet any one of them. Therefore, she appears to have waived this

claim.     See In re Estate of Rutt, 824 N.W.2d 641, 648 (Minn. App. 2012) (“An

assignment of error in a brief based on mere assertion and not supported by argument or

authority is waived unless prejudicial error is obvious on mere inspection.” (quotation

omitted)), review denied (Minn. Jan. 29, 2013).

         Even if we were to address this issue, there is no indication that the district court

failed to follow the procedural requirements of constructive civil contempt. The district

court clearly ordered the return of the dog, the subject of the replevin action, and gave

Hawthorne ample opportunity to comply. She failed to do so, Coco’s Heart moved to

have her held in contempt, and the district court held a hearing at which Hawthorne was

given an opportunity to explain her failure to comply. The district court found that

Hawthorne could not reasonably explain her noncompliance and determined that a jail

sentence and reimbursement to Coco’s Heart would induce future compliance, while



                                              10
allowing Hawthorne to purge those sanctions if she returned Dixie. It was only because

of Hawthorne’s failure to comply with either of the two purge conditions that she had to

serve her jail sentence for contempt. We conclude that there is no showing that the

district court failed to satisfy the procedural requirements of constructive civil contempt.

       Affirmed.




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