Jeffrey K. Harman and Rita Gay Harman v. Joey W. Harman ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Bumgardner
UNPUBLISHED
JEFFREY K. HARMAN AND
RITA GAY HARMAN
MEMORANDUM OPINION*
v. Record No. 1914-13-3 PER CURIAM
JANUARY 14, 2014
JOEY W. HARMAN, FONNIE HARMAN,
STEPHANIE CAMPBELL AND
CLECO CORPORATION
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Michael L. Moore, Judge
(Robert M. Galumbeck; Galumbeck, Dennis & Kegley, on brief), for
appellants.
(A. Benton Chafin, Jr.; Chafin Law Firm, P.C., on brief), for
appellees.
Jeffrey K. Harman and Rita Gay Harman appeal the trial court’s June 11, 2013 order finding
Jeffrey in contempt of its December 5, 2011 order. Finding no error in the trial court’s decision, we
summarily affirm. See Rule 5A:27.
The December 5, 2011 order was the culmination of protracted litigation between Jeffrey
and his brother, Joey Harman,1 sorting out their respective interests in Cleco Corporation. In the
wake of appellant’s action to dissolve Cleco Corporation, appellee filed an election to purchase
appellant’s shares. Both parties presented extensive evidence regarding the assets of the company,
including expert testimony regarding the company’s value. After considering the evidence, the trial
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Although other persons and entities are parties to this action, the dispute, at its core,
concerns the two brothers. For the sake of simplicity, this opinion will refer to Jeffrey as
“appellant” and to Joey as “appellee.”
court made findings regarding the value of the company and its equipment, all of which were
incorporated into the December 5, 2011 order.
Pursuant to that order, appellee was ordered to pay a specific sum for appellant’s shares by
December 6, 2011, and appellant was ordered to transfer his shares. Pursuant to paragraph 20 of the
order, appellant was also ordered to return personal property belonging to Cleco Corporation. That
paragraph stated as follows:
The Plaintiffs [Jeffrey, et al.] are ORDERED to return all of the
personal property of Cleco Corporation removed by Plaintiffs or
Plaintiffs’ children, including all items in their possession, to Cleco
Corporation on or before December 6, 2011.
The next paragraph, paragraph 21, provided further that
[d]efendants [Joey, et al.] shall have the right to proceed hereafter
in a separate action, if necessary, against the parties herein and/or
to recover or seek damages to, if any, the personal property
currently or in the future identified as property of Cleco
Corporation if not returned by Plaintiffs, Plaintiffs’ children, or
other parties in possession of same.
On June 4, 2012, appellee moved the trial court for a rule to show cause why appellant
and his family members should not be imprisoned and/or fined for their failure to comply with
the December 5, 2011 order by “not returning all of the personal property of Cleco Corporation
removed by Plaintiffs or Plaintiffs’ children, including all items in their possession, to Cleco
Corporation on or before December 6, 2011.” Following a hearing on the show cause motion,
the trial found appellant remained in possession of several items of personal property belonging
to Cleco, and held him in contempt. The trial court ordered appellant to return a skid steer track
and a four-wheeler to Cleco within ten days, and to pay Cleco $393.50 for fender flares, bed
caps, a ready lift, and a cold air kit. The trial court sentenced him to thirty days in jail, all of
which was suspended on the condition that appellant comply with the trial court’s order. The
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trial court noted that the contempt finding would be purged upon appellant’s compliance with the
order.2
In reviewing the trial court’s factual findings supporting its judgment of contempt, we
give the findings “great weight and will not . . . disturb[] [them] on appeal unless plainly wrong
or without evidence to support [them].’” Fisher v. Salute, 51 Va. App. 293, 303, 657 S.E.2d 169,
174 (2008) (quoting Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997)).
Wesley Wallace, a shop supervisor manager for Cleco, and Stephanie Campbell, the
Cleco officer manager, testified that the company purchased truck accessories for the company
truck which were not returned with the truck upon the sale of appellant’s interest. These items
included the fender flares, bed caps, ready lift, and cold air kit (hereinafter “truck accessories”).
Appellee offered receipts into evidence supporting this testimony.
Appellee also produced a receipt indicating that the company had purchased a set of
metal tracks to be used with a skid steer. Wallace noted that the metal tracks had been taken to
appellant’s home “to do a job” and had not been returned.
Appellant acknowledged he had a set of skid-steer tracks that belonged to the company
on his property. He also admitted he had a four-wheeler that had been purchased by Cleco.
Appellant was uncertain as to whether the four-wheeler was deducted from the purchase price he
was paid for his share of the company, but maintained that it was not on the equipment list when
the trial court determined the company’s value. While appellant testified that the four-wheeler
and the truck accessories were charged to him personally, he produced no evidence supporting
that testimony.
2
The record is silent as to whether appellant purged the contempt finding by complying
with the trial court’s June 11, 2013 order.
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On appeal, appellant maintains the trial court erred by finding him in contempt because
the items of personal property he had not returned were either his personal property or were not
included in the December 5, 2011 order. He contends the only items he was obligated to return
pursuant to the December 5, 2011 order were those listed in the October 21, 2011 letter opinion
in which the trial court made its factual findings regarding the value of the company shares and
equipment. That letter opinion included the following provision:
7. Items Removed By Jeff Harman or His Children
All office products, uniforms, cell phones, laptop or desktop
computers that are owned by CLECO are to be returned to CLECO
immediately after the purchase of plaintiffs’ stock by defendant.
Appellant asserts these are the only items found by the trial court to have been “removed” by
him and his family, and therefore, any other Cleco property in his possession was not subject to
paragraph 20 of the December 5, 2011 order.
We disagree. “It ‘is within the discretion of the trial court’ to conduct civil contempt
proceedings[;] thus we review the exercise of a court’s contempt power under an abuse of discretion
standard.” Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 706, 643
S.E.2d 151, 154 (2007) (quoting Arvin, Inc. v. Sony Corp. of Am., 215 Va. 704, 706, 213 S.E.2d
753, 755 (1975)). A trial court may hold an offending party in contempt for “‘acting in bad faith or
for willful disobedience of its order.’” Commonwealth Dep’t of Soc. Servs. ex rel Graham v.
Bazemore, 32 Va. App. 451, 455, 528 S.E.2d 193, 195 (2008) (quoting Alexander v. Alexander, 12
Va. App. 691, 696, 406 S.E.2d 666, 669 (1991)). “‘[B]efore a person may be held in contempt for
violating a court order, the order must be in definite terms as to the duties thereby imposed upon
him and the command must be expressed rather than implied.’” Winn v. Winn, 218 Va. 8, 10, 235
S.E.2d 307, 309 (1977) (quoting Wood v. Goodson, 485 S.W.2d 213, 217 (Ark. 1972)).
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Trial courts “have the authority to interpret their own orders,” and appellate courts “give
deference to the interpretation adopted by the lower court.” Fredericksburg Constr. Co., Inc. v.
J.W. Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000). Here, the trial court
reasonably interpreted the December 5, 2011 order based on the plain language in paragraph 20
requiring appellant and his family to return all of Cleco’s personal property “in their possession.”
The evidence was undisputed that the items appellant was ordered to return or purchase
pursuant to the June 11, 2013 order belonged to the corporation. Appellant’s only defense was
that those items were not specifically listed among those recited in the trial court’s October 21,
2011 letter opinion as items which had been removed by appellant and his family.
As we cannot say the trial court abused its discretion, we summarily affirm its decision
holding appellant in contempt.3 Rule 5A:27.
Affirmed.
3
As the trial court did not abuse its discretion by finding appellant in contempt, we also
find no error in its award of attorney’s fees against him. See Arvin, Inc., 215 Va. at 706, 213
S.E.2d at 755 (“‘[I]t is within the discretion of the trial court to include, as an element of
damages assessed against the defendant found guilty of civil contempt, the attorneys’ fees
incurred in the investigation and prosecution of the contempt proceedings, both under the
common law . . . and under express statutory provisions . . . .’” (quoting Annot., “Allowance of
Attorneys’ Fees in Civil Contempt Proceedings,” 43 A.L.R. 3d 793, 796, et seq. (1972)).
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