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DIVISION TWO
ROBERT P. GREENE, ) ED102851
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
v. ) 1 ISL-CC04007
)
PINETREE/WESTBROOKE )
APARTMENTS, LLC, ET AL., ) Honorable Thomas J. Prebil
)
Respondents. ) FILED: January 19, 2016

Introduction

Robert P. Greene (Greene) appeals from the judgment of the trial court entering an order
of civil contempt against him in his ongoing civil lawsuit against Pinetree/Westbrooke
Apartments, LLC, Gannon Joint Venture, L.P., the Gannon Management Company of Missouri,
William E. Franke, David Weygandt, John Shipley, Michelle Sinn, and Christin McKay
(collectively, Respondents). He argues the trial court erred in granting civil contempt because
there was no order that could serve as a basis for the civil—contempt judgment, the civil-contempt
judgment failed to set forth facts showing contempt, and there was insufﬁcient evidence
supporting the grant of damages. We reverse and remand for further proceedings in accordance
with this opinion.1

1 Greene has ﬁled a motion to strike Respondents’ Supplemental Legal File, Volume II of II on the basis that it
contains documents not before the trial court when it entered the judgment now before us on appeal. Our review of

Background

Greene and Respondents are involved in ongoing litigation regarding Greene’s
allegations that Respondents diverted or mismanaged funds from Pinetree Club and Westbrooke
Village Apartment complexes (the Apartments) for Franke’s personal use, thus breaching
ﬁduciary duties to Greene, a minority owner of the Apartments and a limited partner of Gannon
Joint Venture, resulting in a loss of equity to Greene totaling millions of dollars. During the
litigation, Respondents entered into a contract to sell the Apartments, and the trial court ordered
that all sale proceeds alter payment of the mortgage debt and closing costs would be held by the
court registry pending the resolution of the litigation. The court further ordered that because
Greene’s interests were protected by the court’s order, Greene must withdraw his pending
notices of It's pendens by June 9, 2014. Greene did so on June 13, 2014.

Thereafter, Greene ﬁled a motion for procedural safeguards regarding the sale’s proceeds
of the Apartments, requesting the trial court to enter an order requiring, as relevant to this appeal,
Respondents to provide Greene with a draft closing statement at least one day prior to closing.
Aﬁer a hearing on July 9, 2014, the trial court denied the motion, noting the procedural
safeguards were unnecessary and expressing disapproval of requests that were the “piecemeal
type of stuff that we don’t seem to be able to rid ourselves of in these cases.”

Although the trial court declined to require that Respondents provide Greene with a draft
closing statement, the next day, July 10, 2014, Greene contacted the title company by email to

request a copy of the closing statement in advance of the closing date. Respondents then ﬁled a

Respondents’ Supplemental Legal File, Volume II, reveals that it includes a Revised Memorandum of Filing
containing four exhibits that were submitted to the trial court on October 15, 2015. The judgment on appeal before
this Court was entered on January 30, 2015, more than nine months prior to the exhibits included in Respondents’
Supplemental Legal File, Volume [1. We will not consider evidence that was not before the trial court when it
entered its judgment. gee The Bus. Bank of St. Louis v. Apollo lnvs, Inc., 366 S.W.3d 76, 78 n.2 (M0. App. ED.
2012). Accordingly, Greene’s motion to strike Respondents’ Supplemental Legal File, Volume II of i1 is granted.

2

 

 

 

motion for contempt and an application for a show-cause order, asserting that Greene’s action in
contacting the title company violated the court’s prior “determination” and had jeopardized the
sale of the Apartments. Respondents requested the court require Greene to show cause as to why
he should not be held in contempt for his violation of the court’s prior ruling on Greene’s request
for an advance copy of the draft closing statement. Respondents recognized the trial court had
not issued an order after the July 9 hearing, but argued that was because the parties were
reviewing the transcript before submitting a written order for the court’s determination. Neither
party ever submitted an order.

The trial court granted Respondents’ application for a show-cause order, setting the
contempt motion for a hearing. At the contempt hearing, Greene argued the trial court lacked
jurisdiction to issue a show-cause order and to make a ﬁnding of contempt because there was no
court order that Greene violated. Respondents argued that the trial court had issued an oral order
at the July 9 hearing stating Greene was not entitled to a copy of the closing statement, and,
regardless, even if the trial court had not issued an order, the court still had the inherent power to
impose sanctions. The trial court issued a judgment stating:

The damages hearing with respect to the order to show cause is
called and heard by this Court. Based upon the evidence adduced,
the Court hereby orders, adjudges and decrees that the amount of
thirty three thousand ﬁve hundred sixty nine dollars ($33,569.00)
is awarded to [Respondents] and against [Greene].
Greene ﬁled a motion to amend and/or set aside the judgment, which the trial court denied.

Respondents thereafter ﬁled garnishment applications and orders to collect on the judgment.

This appeal follows.

 

 

Discussion

Greene argues the trial court erred in granting Respondents’ motion for contempt and
application for show cause order (contempt motion) because (1) there was no order entered by
the trial court with which Greene failed to comply, (2) the trial court failed to issue a judgment
setting forth facts showing contempt, and (3) no evidence was adduced attributing the cause of
Respondents’ alleged damages to Greene’s actions. Point I is dispositive, and thus we do not
consider the remaining points on appeal.

In his first point on appeal, Greene challenges the trial court’s grant of Respondents’
contempt motion, arguing the contempt judgment was improper because there was no existing
order with which he failed to comply. We agree.

We review the trial court’s order holding a person in civil contempt for whether there is
substantial evidence supporting the order, it is against the weight of the evidence, or it
erroneously applies or declares the law. In re Estate of Downs, 300 S.W.3d 242, 246 (Mo. App.
W.D. 2009). Civil contempt is intended to beneﬁt the party in whose favor an order, judgment,
or decree was entered, by enforcing compliance with the relief granted. In re Marriage of Crow
& Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003). To establish a prima facie case for civil
contempt, the complaining party has the burden to show: (i) the other party’s obligation to
perform or refrain from an action as required by a court’s order, and (2) the failure to meet that
obligation. See Henderson v. Henderson, 389 S.W.3d 260, 266 (Mo. App. E.D. 20l2).
Contempt is only available where the trial court has ordered a party to performer not perform a
speciﬁc act but the party refuses to comply with the trial court’s order. State ex rel. Euclid Plaza

Assocs. v. Mason, 81 S.W.3d 573, 577 (Mo. App. ED. 2002). The court order serving as a basis

 

 

for contempt “must be so speciﬁc and deﬁnite as to leave no reasonable basis for doubt as to its
meaning.” Id. (citation and internal quotation marks omitted).

Greene here did not violate any “speciﬁc and deﬁnite” order of the trial court. The trial
court did not issue a written order of any sort. Although Respondents assert the trial court issued
an oral order by stating Greene was “not entitled to” the relief sought, our careful review of the
record does not reveal this language. Rather, the court declined to grant Greene’s motion
requesting that. the court require a draft closing statement at least one day prior to closing,
ﬁnding such relief unnecessary. In doing so, the trial court expressed irritation with Greene’s
request, but the court did not explicitly say Greene was “not entitled” to that relief. To the extent
Respondents argue that the necessary implication of the trial court’s words is that Greene was
not entitled to that relief, “[i]t is well established that a court may not, in a contempt proceeding,
expand by implication an order of a trial court.” 11. Here, without an express order prohibiting
Greene from contacting the title company for an advance draﬁ closing statement, the trial court
cannot hold him in civil contempt for doing so.

Respondents argue that even if there was no order upon which the trial court could base
contempt, the trial court had the inherent authority to impose sanctions. While the trial court
does indeed have the power to grant sanctions, see Mitalovich v. Toomey, 217 S.W.3d 338, 340
(Mo. App. ED. 2007), there is no evidence that it did so here. The judgment referred to the
application for a show-cause order, which was part of the motion for contempt, and made no
mention of sanctions. Although there is no requirement that the word “sanction” appears in the
judgment, there must be a “clear indication” that the trial court’s action was intended as an award
of sanctions. E McLean v. First Horizon Home Loan, C013,, 369 S.W.3d 794, 802 (Mo. App.

WI). 2012).

 

   

   

No such “clear indication” exists in the record here. Rather, Respondents had ﬁled a
motion for contempt that made no request for sanctions; Respondents stated the hearing was on
their “motion for contempt[/]damages” and was a “civil contempt proceeding  [s]eeking
damages”; the trial court at the hearing further characterized Greene’s arguments-«that there was
no order that couid form the basis of the motion for contempt--as “an objection to
[Respondents’] motion for contempt”; and after evidence on damages the trial court stated: “So
the motion will be granted and damages  awarded to [Respondents] in this case.” In response
to Greene’s arguments at the hearing that there was no order upon which to base contempt,
Respondents stated the trial court had the inherent power to issue sanctions instead; however, the
court did not declare it was proceeding on this inherent power to sanction, nor did Respondents
explicitly request that the trial court issue sanctions. In sum, other than two passing oral
references to the trial court’s inherent power to issue sanctions, all the pleadings and court
proceedings discuss the pending motion as one solely for contempt. This court is unwilling to
allow Respondents to transmute the trial court’s civil contempt judgment into a sanctions
judgment after the fact.

Regardless, even if the trial court had acted on its inherent power to issue sanctions, this
power is not unfettered. While a party or the court sua Sponte can initiate a procedure to impose
sanctions, the basic due process principles of notice and opportunity to be heard apply. Q;
Noland v. State Farm Mut. Auto. Ins. Co., 853 S.W.2d 327, 331 (Mo. App. W.D. 1993)
(involving sanctions under Rule 55.03); D.S.P. v. R.E.P., 800 S.W.2d 766, 771 (Mo. App. ED.
1990) (involving sanctions under Section 514.205, RSMo. (1986)). Trial courts must exercise
caution in invoking their inherent power to sanction, “because [i]t is only one short step from the

assertion of inherent power to the assumption of absolute power.” A.J.H. ex rel. M.J.H. v.

M.A.H.S., 364 S.W.3d 680, 682 (Mo. App. ED. 2012) (citation and internal quotation marks
omitted). Accordingly, courts “must comply with the mandates of due process.” McLean, 369

S.W.3d at 801 (quoting Chambers v. NASCO Inc., 501 U.S. 32, 50 (1991)). Here, Greene had

 

no notice prior to the hearing on the motion for contempt that Respondents or the court would
seek to impose sanctions. Because the notice requirement of due process had not been met,
sanctions would not have been appropriate here, had the trial court issued sanctions.

Without a court order speciﬁcally prohibiting Greene from contacting the title company,
he cannot be held in civil contempt for having disobeyed a court order, and thus the trial court
erred in granting damages against Greene. E In re Estate of Downs, 300 S.W.3d at 246.
Further, the trial court did not exercise its inherent power here to impose sanctions, and even if
the trial court had, the imposition of sanctions would not have been appropriate, because Greene
did not receive notice before the hearing that Respondents were seeking sanctions. While the
trial court’s power to ﬁnd a party in contempt or to sanction a party is vital to the integrity of
court proceedings and the enforcement of trial court rulings, the trial court’s power of contempt
and sanctions must be tempered by following proper procedure, as these trial court powers are
potent. Point I is granted.2

Conclusion

We reverse the trial court’s judgment granting damages on Respondents’ motion for

2 Although it is unnecessary to reach Point I], in civil contempt cases, the contempt judgment must set forth the facts
and circumstances that constitute contempt. 555 In re Estate of Zimmerman, 320 S.W.2d 617, 620 (Mo. App. ED.
1991). Here, the trial court’s contempt judgment failed to include any facts establishing a basis for civil contempt,
including which order Greene allegedly violated. This lack of speciﬁcity was also fatal to the trial court’s civil
contempt judgment.

 

contempt, and we remand with instructions to enter judgment for Greene in accordance with this

opinion.

  

ertner, J12, Judge

   

Philip M. Hess, P. J., concurs.
Angela T. Quigless, J ., concurs.

