      

                                      STATE OF WEST VIRGINIA
                                    SUPREME COURT OF APPEALS

                                                                                                 
                                                                                             FILED
     Brian A. Lee,                                                                         December 16, 2013
     Petitioner Below, Petitioner                                                       RORY L. PERRY II, CLERK
                                                                                      SUPREME COURT OF APPEALS
                                                                                          OF WEST VIRGINIA 
     vs) No. 12-0809 (Monongalia County, 05-C-429)
      
      
     Anne Davis,
     Respondent Below, Respondent


                                      MEMORANDUM DECISION
      
             Petitioner Brian A. Lee, by counsel Edmund Rollo, appeals the order of the Circuit Court of
     Monongalia County. Respondent Anne Davis, by counsel Ward Stone, Jr., has filed a response to the
     present appeal.
      

             The Court has considered the parties’ briefs and the record on appeal. The facts and legal
     arguments are adequately presented, and the decisional process would not be significantly aided by oral
     argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court
     finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is
     appropriate under Rule 21 of the Ru1es of Appellate Procedure.
      
              On May 9, 2005, respondent obtained a $500,000 judgment against petitioner as damages for
     infecting the respondent with HIV. Petitioner was unable to satisfy the judgment. Petitioner’s mother died
     in December of 2005, and petitioner subsequently was informed he would receive $374,000 from his
     mother’s estate. Petitioner claimed in a deposition in December of 2007 that he had given his inheritance
     anonymously to 3,997 charities and no longer had any of the money. Another deposition was conducted
     and the evidence set forth by petitioner did not support the allegation that he had donated any of the
     money.
      
              On June 11, 2008, respondent filed a motion for contempt and order to show cause, and the
     circuit court held petitioner in civil contempt for failure to provide his cellular phone billing records
     pursuant to respondent’s request. Petitioner was ordered to produce evidence to support his assertion that
     he did, in fact, give the money away, and was ordered to answer interrogatories, but he refused to do so.
     Respondent filed a notice of petitioner’s failure to file answers to respondent’s interrogatories. A capias
     for petitioner’s arrest was issued and petitioner was incarcerated on November 9, 2009. The court then
     ordered petitioner to produce corroborating evidence that he anonymously gave away his inheritance to
     charities. He failed to do so and, on July 21, 2010, petitioner was held in civil contempt and ordered to
     report to prison and remain there until he pays the sum of $363,000 to respondent. Petitioner later moved
     the court to dissolve the contempt order, and the court denied that motion by order entered on May 18,
     2012.


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           Petitioner appealed the circuit court’s order denying his motion to dissolve the contempt
    order. We apply the following standard of review:
 
                 In reviewing the findings of fact and conclusions of law of a circuit court
          supporting a civil contempt order, we apply a three-pronged standard of review.
          We review the contempt order under an abuse of discretion standard; the
          underlying factual findings are reviewed under a clearly erroneous standard; and
          questions of law and statutory interpretations are subject to a de novo review.

Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239, 241, 470 S.E.2d 193, 195 (1996).
 
        Petitioner asserts three assignments of error. First, petitioner argues that the trial court
erred in refusing to release petitioner from incarceration on the basis of petitioner’s medical
condition. Second, petitioner argues that the trial court committed plain error when it imposed a
contempt sanction that seemed “ criminal” in nature and not “civil”. Last, petitioner argues that
the court erred in refusing to find that the civil contempt order had lost its coercive effect.
 
        We begin with petitioner’s first assignment of error. On November 17, 2012, petitioner
filed a motion for bond reduction or, in the alternative, motion for home confinement. On
December 17, 2012, a hearing was held regarding the motion and the evidence presented
showed that petitioner’s health status required his release from prison. On December 18, 2012,
he was released and placed on home confinement in order to receive treatment for his HIV
infection. This Court has stated that “[t]he general rule, subject to certain exceptions, is that
appeals will be dismissed where there is no actual controversy existing between the parties at the
time of the hearing.” Syl. Pt. 1, W.Va. Bd. of Dental Examiners v. Storch, 146 W.Va. 662, 122
S.E.2d 295, 296 (1961). Because petitioner has been released from prison and is able to receive
treatment for his HIV, the issue has been rendered moot. See Gallery v. W.Va. Secondary Sch.
Activities Comm’n, 205 W.Va. 364, 366, 518 S.E.2d 368, 370 (1999) (when there is no longer a
dispute between the parties, the appeal is subject to dismissal).
 
           As to petitioner’s second assignment of error, our law clearly establishes that the
    sanction imposed on petitioner is civil, not criminal, in nature. This Court has held:
 

                  Where the purpose to be served by imposing a sanction for contempt is to
          compel compliance with a court order by the contemner so as to benefit the party
          bringing the contempt action by enforcing, protecting, or assuring the right of
          that party under the order, the contempt is civil.

Syl. Pt. 2, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 813 (1981).
This Court also has held “[t]he appropriate sanction in a civil contempt case is an order that
incarcerates a contemner for an indefinite term and that also specifies a reasonable matter in
which the contempt may be purged thereby securing the immediate release of the contemner . . . . ”
Syl. Pt. 3, in part, id., 166 W.Va. at 660, 276 S.E.2d at 813. “In a contempt proceeding, whenever the
defendant may effect his release from jail by performing such act or acts as the court directs, the
contempt is civil in nature . . . .” Syl. Pt. 9, Eastern Associated Coal Corp. v. Doe, 159 W.Va. 200,
201-02, 220 S.E.2d 672, 675 (1975). Therefore, the civil contemner is said to hold the keys to his own
cell. Id. at 213, 220 S.E.2d. at 681. On the other hand, criminal contempt involves imposing a sanction to

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punish to the contemner for an affront to an order or dignity of the court. Syl. Pt. 4, State ex rel.
Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 813 (1981). “A contempt will be deemed criminal
when a jail sentence is imposed and the contemnor is given no opportunity in the sentencing order for
immediate release by purging himself of contempt by doing an act which is within his power to
accomplish.” Syl. Pt. 1, Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980).
 
         The contempt order resulted from petitioner’s lack of cooperation throughout the entire court
proceeding. When petitioner failed to bring forth evidence that he gave the money away, he was
incarcerated with the provision that he would be released when he paid respondent t h e $363,000. Here,
petitioner “hold[s] the keys to his own cell.” This order was in place for the benefit of respondent in an
attempt to secure her rights to the judgment and assist her in her effort to recover the money. Unlike a
criminal contempt order, the contempt order did not involve an affront to the dignity of the court, nor was
petitioner denied an opportunity to secure his immediate release.
 
         The last assignment of error is that the contempt order has lost its coercive effect. Petitioner
asserts that because he gave the money to charity, he is wholly unable to pay the court ordered funds and,
therefore, the contempt order is no longer coercive. A civil contempt order works as a remedy to
enforce the rights of a private party by coercing contemner into compliance with a court order or decree.
State ex rel. Zirkle v. Fox, 203 W.Va. 668, 673, 510 S.E.2d 502, 507 (1998). Civil contempt proceedings
are not meant to punish the defendant but rather to benefit the Plaintiff. Floyd v. Watson, 163 W.Va. 65,
70, 254 S.E.2d 687, 691 (1979). “[C]oercive measures influence the defendant to act in a way that will
ultimately benefit the moving party.” Id. at 71, 254 S.E. 2d at 691. “The appropriate sanction in a civil
contempt case is an order that incarcerates a contemner for an indefinite term and that also specifies a
reasonable manner in which the contempt may be purged thereby securing the immediate release of the
contemner[.]” State ex rel. Robinson v. Michael, 166 W.Va. 660, 670, 276 S.E.2d 812, 818 (1981).
However, a civil contempt order is inappropriate when the condemner has no ability to purge himself or
the contempt order has lost its coercive effect. In re Yoho, 171 W.Va. 625, 631, 301 S.E.2d 581, 587
(1983); Shillitani v. U.S., 384 U.S. 364, 371 (1966). Petitioner bears the burden of proof in showing
that he cannot comply with the court order or that the order has lost its coercive effect. State ex rel.
Zirkle v. Fox, 203 W.Va. 668, 673, 510 S.E.2d 502, 507 (1998); In re Dickinson, 763 F.2d 84, 87 (2d
Cir. 1985); In re Crededio, 759 F.2d 589, 590-591 (7th Cir. 1985). “Ordinarily, it is for the district judge
to determine when and if the borderline between coercion and punishment has been reached.” Soobzokov
v. CBS, Inc., 642 F.2d 28, 31 (2d Cir. 1981). A district court judge will have virtually unreviewable
discretion in determining whether the contempt order still has a coercive effect. Simkin v. U.S., 715 F.2d
34, 38 (2d Cir. 1983).
 

         Before the judge imposed the contempt order, petitioner was told on numerous occasions to
provide proof in the form of phone records and mail receipts in order to prove that he did in fact give the
money away. The burden of proof was on petitioner to show that he could not comply with the request to
bring forth evidence that would support his assertion that he had given the money to charity. See State ex
rel. Zirkle v. Fox, 203 W.Va. 668, 672, 510 S.E.2d 502, 506 (1998) (The defendant bears the burden of
proof in showing an inability to comply with the court's order, ·and the inability was not occasioned by his
own acts). The circuit court found petitioner had not met his burden of proof in showing he could not
comply with the Court’s order. After reviewing the record, it is evident the trial court did not abuse its
discretion in imposing the order as well as classifying the contempt as civil in nature. The record shows
that petitioner has frustrated respondent’s attempts to collect evidence on two occasions. He also stated
on a few occasions he intended not to comply. The order was within the circuit court’s discretion. The

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court has presided over the case for eight years. Given the circuit court’s history, and the history between
the two parties, the trial court used reasonable judgment fashioning coercive relief, and there is no
evidence that the situation is not coercive still. The circuit court did not abuse its discretion.
 
       For the forgoing reasons we affirm the Circuit Court of Monongalia civil contempt order issued
July 21, 2010.

                                                                                                 Affirmed.

ISSUED: December 16, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
 
 




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