United States Court of Appeals
For the First Circuit
Nos. 01-1928
01-2497
GOYA FOODS, INC.,
Petitioner, Appellee,
v.
WALLACK MANAGEMENT CO. ET AL.,
Respondents, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Stuart W. Berg, with whom Baer, Marks & Upham LLP was on
brief, for respondents-appellants Wallack Management Co. and 625
Park Corp.
H. Peter Haveles, Jr., with whom Cadwalader, Wickersham & Taft
was on brief, for respondent-appellant Ira Leon Rennert.
Arturo J. García-Solá, with whom Ira Brad Matetsky and
McConnell Valdés were on brief, for appellee.
May 17, 2002
SELYA, Circuit Judge. These appeals represent yet
another chapter in a seemingly interminable intrafamilial dispute
that has run a litigatory gauntlet stretching from Puerto Rico to
New Jersey. See, e.g., Goya Foods, Inc. v. Unanue-Casal, 275 F.3d
124 (1st Cir. 2001); Goya Foods, Inc. v. Unanue, 233 F.3d 38 (1st
Cir. 2000), cert. denied, 532 U.S. 1022 (2001); Quiros Lopez v.
Unanue Casal (In re Unanue Casal), 998 F.2d 28 (1st Cir. 1993);
Unanue-Casal v. Unanue-Casal, 898 F.2d 839 (1st Cir. 1990); Goya
Foods, Inc. v. Unanue-Casal, 141 F. Supp. 2d 207 (D.P.R. 2001);
Goya Foods, Inc. v. Unanue-Casal, 982 F. Supp. 103 (D.P.R. 1997);
Goya Foods, Inc. v. Unanue-Casal (In re Unanue-Casal), 164 B.R. 216
(D.P.R. 1993); Goya Foods, Inc. v. Unanue-Casal (In re Unanue-
Casal), 159 B.R. 90 (D.P.R. 1993); Quiros-Lopez v. Unanue-Casal (In
re Unanue-Casal), 144 B.R. 604 (D.P.R. 1992); Unanue Casal v.
Unanue Casal, 132 F.R.D. 146 (D.N.J. 1989); In re Settlement of
Accounts of Unanue, 710 A.2d 1036 (N.J. Super. Ct. App. Div. 1998);
In re Settlement of Accounts of Unanue, 605 A.2d 279 (N.J. Super.
Ct. Law Div. 1991). This chapter arises out of a matched set of
interlocutory orders entered by the district court with a view
toward barring the transfer of certain assets held in the name of
the wife of a judgment debtor (including a lavish Park Avenue
cooperative apartment). Despite their knowledge of these court
orders, the appellants — Wallack Management Co., 625 Park
Corporation, and Ira Leon Rennert — participated in a sale of the
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apartment. Acting on the petition of the original plaintiff, Goya
Foods, Inc., the district court found the appellants in contempt,
and awarded substantial monetary sanctions. The appellants ask us
to overturn (or, at least, to modify) this award.
The outcome of these appeals hinges primarily upon a
complex issue of first impression as to whether Goya's failure to
comply strictly with the requirements for perfecting orders
prohibiting the alienation of property resulted in the expiration
of those orders upon the court's subsequent entry of judgment in
the underlying case (and, therefore, left the appellants free to
consummate the challenged transaction). This close question has
been well briefed and argued on both sides by able counsel. We
conclude that, notwithstanding Goya's failure to satisfy the
literal requirements of Rule 56.4 of the Puerto Rico Rules of Civil
Procedure, the relevant orders remained legally binding upon the
appellants, given their actual knowledge of the prohibition.
Largely on that basis, we affirm the district court's contempt
findings against the appellants. We find no fault with the court's
choice of a monetary sanction, but we conclude that the court
misapprehended the relationship of prejudgment interest to that
award. Consequently, we vacate the separate award of prejudgment
interest and remand for reconsideration of the amount of the
monetary sanction.
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I. BACKGROUND
In setting the stage, we draw heavily upon our previous
distillation of the relevant facts. See Goya Foods, Inc. v.
Unanue, 233 F.3d at 41-42. We add details only where necessary.
Goya was founded by Charles Unanue's father in 1936. The
company prospered. Charles served as a Goya executive from the
late 1940s until 1969, when internecine warfare led to his ouster.
This, in turn, prompted no-holds-barred litigation involving Goya,
Charles, Charles's father, and other relatives. Pursuant to
settlements reached in 1972 and 1974, Charles received more than
$4,400,000; in exchange, he surrendered his ownership interest in
Goya and agreed that he would neither contest his father's will nor
file any claims against his father's estate. The settlement
agreements further provided that if any signatory wrongfully sued
another signatory, the transgressor would be liable for liquidated
damages equal to twice the victor's litigation expenses.
Charles's father died in 1976. Eleven years later,
Charles claimed that he was entitled to an inheritance from his
parents' estates (including certain Goya shares that his father had
placed in trust). The trustees resisted the claim and sought a
judgment in a New Jersey state court barring Charles from
maintaining any action against either the trust or his parents'
estates. After protracted litigation, the New Jersey court
enforced the 1974 settlement agreement, enjoined Charles from
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pressing further claims of entitlement, and entered judgment for
Goya, pursuant to the liquidated damages clause, for approximately
$6,900,000. In re Unanue, No. M-128817 (N.J. Super. Ct. Ch. Div.
1995) (unpublished opinion).
In the midst of this odyssey, Charles repaired to Puerto
Rico and filed a petition for personal bankruptcy. From that point
forward, the battle continued in both New Jersey and Puerto Rico.
Among other initiatives, Goya filed an adversary proceeding in the
bankruptcy court in which it contended that Charles was concealing
assets by placing them in the names of various straws (including
his wife, Liliane Unanue).
Eventually, the bankruptcy court dismissed Charles's
insolvency petition without granting him a discharge. In re
Unanue-Casal, No. 90-04490, slip op. at 5 (Bankr. D.P.R. 1995).
With the shield of bankruptcy shattered and a state court judgment
in hand, Goya mounted a new offensive. It sued Charles and Liliane
Unanue in Puerto Rico's federal district court, asserting that
Charles was the beneficial owner of various assets held in
Liliane's name, and, therefore, that it was entitled to reach and
apply those assets to satisfy the New Jersey judgment. To ensure
against dissipation of the assets, Goya moved for the imposition of
provisional remedies.
The district court granted the motion on November 17,
1995, and issued an ex parte order prohibiting the alienation of
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various properties held in Liliane's name. Pertinently, the order
encompassed a cooperative apartment located at 625 Park Avenue in
New York City (the Apartment). In a companion order, the court
barred any transfer or other alienation of the cooperative shares
memorializing Liliane's interest in the Apartment.1 Goya then
transmitted copies of the district court's orders to both 625 Park
(the cooperative housing association that owned the building) and
Wallack Management (the building's managing agent).
Almost two years later, the district court resolved the
underlying litigation, holding, inter alia, that Charles was the
beneficial owner of the cooperative shares and the Apartment, and
entering judgment to that effect. Goya Foods, Inc. v. Unanue-
Casal, 982 F. Supp. at 109-12. Although the ruling ordinarily
would have cleared the way for Goya to levy against the Apartment,
the court stayed execution pending appellate review. Id. at 112.
In February 1998, Goya informed both Wallack Management and 625
Park of the district court's decision and requested that it be
notified before any disposition was made of the Unanues' interest
in the Apartment.
1
A cooperative apartment is one that is owned by a corporation
(the cooperative). The ownership interest in the apartment is held
and conveyed in the form of shares in the corporation (known as
cooperative shares). A shareholder's right to occupy the
particular apartment that he or she "owns" derives from a
proprietary lease entered into between the corporation (qua
landlord) and the shareholder (qua tenant).
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That same month, Wallack Management informed Liliane that
she was in default of her obligation to make mandatory maintenance
payments to the cooperative, and that 625 Park would terminate her
interest and take possession of the Apartment unless she cured the
default. Adverting to this threat, Liliane asked the district
court for permission to sell the Apartment, and her attorney
informed Wallack Management that she had filed such a motion. The
court did not rule upon the request, but, rather, ordered counsel
to meet and discuss possible solutions to the dilemma.
In May 1998, Liliane agreed to sell the Apartment to
Rennert for $4,600,000. Prior to the closing, Rennert's attorneys
discovered that Goya had neglected either to record a cautionary
notice of lis pendens in the Manhattan land records or to file a
Uniform Commercial Code (UCC) statement anent the cooperative
shares. Concluding that the November 1995 orders had lapsed when
the district court entered judgment in November of 1997, Rennert's
counsel advised him that no effective judicial restraint precluded
Liliane from conveying clear title to the Apartment.2
The bylaws of the cooperative required 625 Park's
approval of any transfer of shares. After consultation with
counsel, 625 Park's board ratified the proposed sale of Liliane's
2
This conclusion was not self-evident. The attorney
originally retained by Liliane bowed out of the transaction based
on his belief that the proposed sale would, if consummated, violate
the November 1995 orders.
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shares (and, effectively, of the Apartment), on condition that
Rennert indemnify it for all loss, cost, or damage (including
litigation expenses) resulting from any challenge to the sale.
Rennert agreed to hold both Wallack Management and 625 Park
harmless, and the transaction proceeded.
The closing took place in June of 1998. From the
$4,600,000 purchase price, Wallack Management, acting as Liliane's
broker, received a $276,000 commission. Liliane's net proceeds
(well in excess of $4,000,000) were wired to a Swiss bank account.
The final version of the sales agreement included a confidentiality
clause.
Goya did not learn of the transaction until October of
2000. It immediately brought the matter to the district court's
attention. The court directed Charles and Liliane to appear
personally and show cause why they should not be adjudged in
contempt for violating the November 1995 orders. When neither
defendant appeared at the appointed time — the record suggests that
both Charles and Liliane sought sanctuary abroad — the court held
them in contempt, issued warrants for their arrest, and dissolved
the preexisting stay (thus allowing execution of the outstanding
judgment). Twenty-three days later, we affirmed the district
court's original judgment. We upheld, inter alia, the finding that
several properties held in Liliane's name (including the Apartment
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and the cooperative shares) were in actuality owned by Charles.
Goya Foods, Inc. v. Unanue, 233 F.3d at 44-46, 48.
Goya next petitioned the district court to hold Wallack
Management, 625 Park, and Rennert in civil contempt for defying the
November 1995 orders. The court directed the appellants to show
cause why they should not be so cited. The appellants made a
proffer but, following Goya's counter-proffer and a non-evidentiary
hearing, the district court determined that all three appellants
had violated the November 1995 orders by participating in the
purchase of the Apartment and the cooperative shares despite their
actual knowledge of those orders. Goya Foods, Inc. v. Unanue-
Casal, 141 F. Supp. 2d at 219, 224. Accordingly, the court
adjudged the appellants in civil contempt, and held them jointly
and severally liable to Goya for the $4,600,000 purchase price.3
Id. at 224. Although the appellants filed a notice of appeal,
Rennert, acting pursuant to a court order, deposited the sum of
$4,6000,000 in the registry of the district court (presumably in
lieu of a supersedeas bond). After some further skirmishing (not
relevant here), the court embellished the original award with
prejudgment interest. Goya Foods, Inc. v. Unanue-Casal, Civ. No.
95-2411 (D.P.R. Oct. 5, 2001) (unpublished opinion). A second
3
The district court also stated that it would grant attorneys'
fees to Goya, see Goya Foods, Inc. v. Unanue-Casal, 141 F. Supp. 2d
at 224, but the record on appeal contains no indication that a fee
award has eventuated. In all events, these appeals do not raise
any issues anent attorneys' fees.
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appeal followed. We consolidated the two appeals for briefing and
oral argument.
Our analysis is divided into three parts. We start by
grappling with the thorny issue of whether the unperfected November
1995 orders survived the entry of judgment in November 1997. Next,
we address the other aspects of the district court's finding of
contempt. Finally, we review the assessment of a monetary sanction
and the award of prejudgment interest.
II. THE NOVEMBER 1995 ORDERS
The crux of these appeals is whether the November 1995
orders precluding the transfer of the Apartment and the cooperative
shares were legally effective against the appellants when Rennert
acquired the assets in June of 1998. Our starting point is the
acknowledged power of a federal district court to issue orders
"providing for seizure . . . of property for the purpose of
securing satisfaction of the judgment ultimately to be entered in
the action." Fed. R. Civ. P. 64. By its terms, that rule allows
a federal court to borrow provisional remedies created by state
law. For this purpose, Puerto Rico is deemed the functional
equivalent of a state. E.g., HMG Prop. Investors, Inc. v. Parque
Indus. Rio Canas, Inc., 847 F.2d 908, 912-13 (1st Cir. 1988).
Following this paradigm, the court below made use of Rule
56 of the Puerto Rico Rules of Civil Procedure, 32 P.R. Laws Ann.
app. III, R. 56. In pertinent part, that rule empowers a court, on
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an ex parte application, to issue provisional remedies that it
deems "necessary to secure satisfaction of [an anticipated]
judgment." Id. R. 56.1. Such remedies include "an order of
attachment or of prohibition to alienate." Id. R. 56.4. The rule
then provides, however, that:
The attachment and prohibition to alienate
real property shall be effected by recording
them with the Registry of Property and
notifying the defendant. In case of personal
property, the order shall be carried out by
depositing the personal property in question
in court or with the person designated by it
under the claimant's responsibility.
Id.
The appellants appear to concede, at least tacitly, that
the district court intended the November 1995 orders to secure
Goya's potential recovery against Charles Unanue, and that those
orders constituted legally binding restraints while Goya's case
against Charles and his ostensible straws (including Liliane) was
pending in the district court. The appellants maintain, however,
that when the court entered final judgment in that case in November
of 1997 — in their view, the stay of execution and the ensuing
appeal make no difference — the provisional remedies envisioned by
those orders lapsed because Goya had not perfected them as required
by Rule 56.4.
This argument derives from the language of Rule 56.4.
Focusing on the drafters' use of the word "shall," the appellants
posit that the rule's recordation and seizure requirements are
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obligatory. Since the remedies granted by the district court vis-
à-vis the Apartment and the cooperative shares were provisional and
Goya never properly perfected them (it neither recorded the
prohibition against alienation of the Apartment nor ensured that
the cooperative shares were physically seized and delivered to the
court or some other properly designated custodian), the appellants
argue that those remedies expired upon the entry of judgment and,
thus, were no longer in effect some seven months later (when
Rennert acquired the assets).
Distilled to bare essence, we must determine the effect
of Goya's failure to comply with the recordation and seizure
requirements of Rule 56.4 prior to the district court's entry of
judgment. In the first instance, this is an abstract legal
question. Consequently, we afford de novo review. McCarthy v.
Azure, 22 F.3d 351, 354 (1st Cir. 1994); Liberty Mut. Ins. Co. v.
Comm'l Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).
The district court held that strict compliance with the
recordation and seizure requirements of Rule 56.4 was not necessary
in every situation. Goya Foods, Inc. v. Unanue-Casal, 141 F. Supp.
2d at 219. At first blush, that holding squares with the core
principle that undergirded our decision in HMG Property Investors.
There, we noted that the Supreme Court of Puerto Rico has construed
Rule 56 expansively:
Rule 56 of the Rules of Civil Procedure
confers upon the court sufficient flexibility
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to issue the measures which it deems necessary
or convenient, according to the circumstances
of the case, to secure the effectiveness of
the judgments. Its only limitation is that
the measure be reasonable and adequate to the
essential purpose of the same, which is to
guarantee the effectiveness of the judgment
which in due time may be rendered. This
flexibility, so necessary for the
administration of justice, is the greatest
virtue of Rule 56, virtue which we should
promote and preserve instead of mystifying it
with technical concepts and requirements.
847 F.2d at 913-14 (quoting F. D. Rich Co. v. Super. Ct., 99 P.R.R.
155, 173 (1970)). As this passage evinces, and as we concluded in
HMG Property Investors, flexibility is the hallmark of Rule 56.
This emphasis on flexibility is important in considering
how Rule 56.4's recordation and seizure requirements are intended
to operate. At bottom, those requirements serve to protect the
interests of innocent third parties (e.g., potential acquirers) who
come upon the scene unaware that property standing in a defendant's
name is subject to a priority lien. The recordation and seizure
requirements enable such a third party, in the exercise of due
diligence, to learn about attachments, restrictions on alienation,
and other impediments to the passage of marketable title. See,
e.g., 30 P.R. Laws. Ann. § 2051 (explaining that one of the
purposes of the Puerto Rico Registry of Property is to facilitate
the recordation of "judicial opinions which may affect the legal
capacity of the owners of record").
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We think it follows that if the raison d'etre of the
recordation and seizure requirements is to furnish notice that
specific property is subject to a court-imposed restriction, the
receipt of actual notice by a particular third party about the
existence of that restriction satisfies the rule's notice-giving
function as to that party. Indeed, insisting upon strict
compliance with the recordation and seizure requirements as to a
third party possessing such knowledge would plunge the courts into
the very vortex that the Supreme Court of Puerto Rico has
endeavored to avoid. See F. D. Rich Co., 99 P.R.R. at 173 (warning
against "mystifying" Rule 56 "with technical concepts and
requirements").
In this spirit, the Puerto Rico courts have demonstrated
their readiness to look to the facts and circumstances of each
case, as opposed to requiring unblinking, lockstep compliance with
the recordation and seizure requirements of Rule 56.4. The
decision in Freeman v. Superior Court, 92 P.R.R. 1 (1965), is a
good example. There, corporate shareholders aspired to block a
real estate transaction on the ground that the defendant was not
authorized to act on the corporation's behalf. Id. at 6-7. They
obtained an interlocutory order forbidding the parties to the
transaction from consummating it and served the order on the
affected parties. In an ensuing challenge, the Supreme Court of
Puerto Rico construed the order as a prohibition against alienation
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and concluded that it had become effective as to the parties in
interest at the moment that it was served upon them,
notwithstanding the plaintiffs' failure to record it. Id. at 21-
22. That order "effectively and firmly secured" the "effectiveness
of any judgment" that thereafter might be entered in the
plaintiffs' favor. Id. at 22.
The decision in Suarez v. Superior Court, 85 P.R.R. 522
(1962), is cut from the same cloth. There, the trial court granted
the plaintiff's motion to freeze the defendant's bank account. Id.
at 523-24. The plaintiff served the defendant with notice of the
freeze order, but neither seized the account nor deposited the
passbook into the registry of the court. Id. at 524. On
certiorari review, the Supreme Court of Puerto Rico determined that
the order was "of the nature of a prohibition to alienate" under
Rule 56.4 and upheld it as against the defendant (who had actual
notice). Id. at 529.
Freeman and Suarez share three salient similarities. In
each case, the movant (the party procuring the prohibitory order)
failed to comply with Rule 56.4's recordation or seizure
requirements. Yet in each case, the movant timely apprised the
complaining party of the court-imposed provisional remedy. And,
finally, in each case the Supreme Court of Puerto Rico overlooked
the lack of strict compliance with the requirements of Rule 56.4
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because the complaining party had received actual notice of the
prohibition in a timeous fashion.
Given these precedents, we decline to insist upon strict
compliance here. As said, the underlying purpose of Rule 56.4's
recordation and seizure requirements is to provide notice — and the
present appellants plainly knew of the November 1995 orders well
before they closed the transaction.4 Consequently, there is no
reason why the failure to record the prohibition against alienation
should blunt the legal force of the court's orders vis-à-vis the
appellants.
The appellants attempt to convince us otherwise by
reference to a pair of Puerto Rico cases.5 In the first such case,
4
In December 1995, Goya sent via certified mail copies of the
November 1995 orders, accompanied by an explanation of the legal
context surrounding them, to 625 Park and Wallack Management.
While no such mailing was directed to Rennert — Goya did not know
of his existence until well after he had acquired the Apartment —
Rennert has acknowledged that he too received copies of the orders
"sometime in 1995 or early 1996." To cinch matters, the district
court found that each of the appellants received timely notice of
its 1997 decision holding that Charles was the beneficial owner of
the cooperative shares (and, thus, of the Apartment), Goya Foods,
Inc. v. Unanue-Casal, 982 F. Supp. at 111-12, and the appellants do
not challenge this finding. Thus, each of the appellants had
actual notice of the November 1995 orders and of their relationship
to the Apartment and the cooperative shares.
5
The appellants also cite two bankruptcy court decisions. See
Quadrel Leasing de P.R., Inc. v. Carlos A. Rivera, Inc. (In re
Carlos A. Rivera, Inc.), 130 B.R. 377, 381-82 (Bankr. D.P.R. 1991);
FDIC v. Debtor & Trustee (In re Moscoso Villaronga), 111 B.R. 13,
16 (Bankr. D.P.R. 1989). Neither case adds anything to the
equation, and we decline to accord particular significance to these
decisions. See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148,
1151 (1st Cir. 1996) (explaining that a federal court applying
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Stargus Properties v. Superior Court, 101 P.R.R. 139 (1973), the
trial court entered a standstill order effectuating "the
prohibition to dispose of, or any condemnation proceeding over the
property object of this litigation." Id. at 143. The defendants
nonetheless sold a particular piece of property arguably affected
by the order. Even though the defendants claimed not to have known
about the standstill order and the plaintiff could provide no proof
of service, the trial court found them in contempt. Id. at 144.
The Puerto Rico Supreme Court vacated the finding,
concluding that the standstill order had not been "entered or
processed according to the provisions of Rule 56 of the Rules of
Civil Procedure." Id. at 146. In so holding, the court enumerated
the order's myriad defects, including the fact that it had been
issued sua sponte; that it completely failed to describe any
specific properties; that the plaintiffs had neglected to record
the order in the Registry of Property; and that, in all events, the
plaintiffs had not posted a proper bond. Id. at 146-47. These
combined infirmities were so severe that it is difficult, if not
impossible, to argue that the court attached decretory significance
to the failure to record, standing alone. We conclude, therefore,
that Stargus is sui generis, and that the decision does not stand
for the broad proposition that the Puerto Rico Supreme Court always
state law must heed the "rules of substantive law enunciated by the
state's highest judicial authority").
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insists upon strict compliance with the recordation and seizure
requirements of Rule 56.4.
The appellants' second case, Cooperativa Central v.
Flores, 68 P.R.R. 672 (1948), involved an attachment of commercial
goods owned by a merchant defendant. Pursuant to the trial court's
order, a marshal inventoried the goods in the defendant's shop and
designated a depository. Id. at 673. The court subsequently
ordered the goods sold at public auction. Id. at 673-74. The
Supreme Court of Puerto Rico halted the sale and voided the
attachment on the ground that the goods were not in custodia legis
(and, therefore, not properly seized) because the marshal lacked
the authority to designate a depository. Id. at 675-76. Whatever
Flores may teach as to how attachments of fungible goods must be
handled — a matter on which we take no view — we do not read the
decision as mandating, without exception, strict compliance with
Rule 56.4. Indeed, it seems safe to conclude that the Puerto Rico
Supreme Court's subsequent decision in Suarez, plainly relaxing
Rule 56.4's technical seizure requirements, 85 P.R.R. at 529,
trumps the appellants' proposed reading of Flores.
To sum up, Stargus and Flores cannot bear the weight that
the appellants pile upon them. The case law teaches that strict
compliance with the recordation and seizure requirements of Rule
56.4 is not essential in every case. Nor do we discern any other
colorable argument supporting the appellants' position that the
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provisional remedies expired upon the district court's entry of
judgment. While interlocutory orders sometimes may merge into a
judgment, e.g., John's Insulation, Inc. v. L. Addison & Assocs.,
Inc., 156 F.3d 101, 105 (1st Cir. 1998), it is unreasonable to
assume that any such merger occurred here. After all, timely
appeals ensued, and the district court specifically stayed the
execution of the judgment pending the completion of those appeals.6
Goya Foods, Inc. v. Unanue-Casal, 982 F. Supp at 112. In a
practical sense, the judgment rendered by the district court was
not final until "the availability of appeal [was] exhausted."
Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
That ends this aspect of the matter. We reject the
appellants' call for a mechanical construction of Rule 56.4 in
favor of a flexible construction that recognizes the practicalities
and the equities of individual situations. Following that path, we
hold that a failure to comply with the recordation and/or seizure
requirements of Rule 56.4, without more, does not render a court
order containing a prohibition against alienation invalid as to a
third party with actual notice of the terms of that restraint.
Given the idiosyncratic circumstances of this case — especially the
6
This stay comported with the practice in the commonwealth
courts. See 32 P.R. Laws Ann. app. III, R. 53.9 (stipulating that
the judgment of a Puerto Rico court is automatically stayed once it
is appealed). Given this fact, it seems reasonable to assume that
the Puerto Rico legislature did not intend provisional remedies
issued under Rule 56.4 to expire automatically upon the entry of
judgment in the trial court.
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appellants' patent knowledge of the November 1995 orders and Goya's
lack of a well-defined route for fulfilling Rule 56.4's recordation
and seizure requirements7 — we conclude that, even after the entry
of judgment, the November 1995 orders continued to safeguard Goya's
contingent interest in Charles's assets as to persons having actual
knowledge of those orders, and that the Apartment and the
cooperative shares remained subject to those orders when the
appellants participated in the June 1998 transaction.
III. CIVIL CONTEMPT
We next address whether the district court's findings of
civil contempt were properly grounded. This assessment employs
multiple standards of review. We scrutinize the lower court's
factfinding for clear error. Project B.A.S.I.C. v. Kemp, 947 F.2d
11, 15 (1st Cir. 1991). Withal, we evaluate its ultimate finding
on contempt for abuse of discretion, approaching that inquiry
7
The Apartment was located in New York City, so Goya was
unable to file a cautionary notice in the Puerto Rico Registry of
Property; and Goya likely was precluded from recording such a
notice in New York's real estate records because New York law
considers shares in a cooperative apartment to be personal
property. See In re Estate of Carmer, 530 N.Y.S.2d 88, 89 (N.Y.
1988). It is equally problematic whether the shares could have
been physically seized, or whether Goya, without Liliane's
cooperation, could have perfected a UCC-9 filing in New York. See
N.Y. U.C.C. § 9-203(1)(a) (1998). After all, Liliane not only fled
the country but also defied other court orders to deposit assets in
the registry of the court (e.g., the Emperor Equities shares).
Whatever the answers to these questions, the absence of a
straightforward methodology for satisfying the recordation and
seizure requirements of Rule 56.4 represents an additional
consideration that militates in favor of relaxing those
requirements here.
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"flexibly, with due regard for the circumstances." Langton v.
Johnston, 928 F.2d 1206, 1220 (1st Cir. 1991). In performing that
tamisage, we remain mindful that an error of law is the functional
equivalent of an abuse of discretion. In re Grand Jury Subpoena,
138 F.3d 442, 444 (1st Cir. 1998).
The fact that the appellants were not parties to Goya's
suit against the Unanues does not inoculate them against charges of
civil contempt. Nonparties may be liable for civil contempt
notwithstanding their nonparty status. See Microsystems
Software, Inc. v. Scandinavia Online AB, 226 F.3d 35, 43 (1st Cir.
2000); G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29,
34-35 (1st Cir. 1980). The critical datum is whether the nonparty
"was in active concert or participation with the party specifically
enjoined." Microsystems, 226 F.3d at 43. To satisfy that
criterion, "the nonparty must be legally identified with that
defendant, or, at least, deemed to have aided and abetted that
defendant in the enjoined conduct." Id.
Here, the district court rested its contempt finding upon
an "aiding and abetting" theory. The legal underpinning of such a
theory is impeccable: it has long been recognized that a nonparty
may be held in civil contempt if, and to the extent that, he
knowingly aids or abets an enjoined party in transgressing a court
order. See, e.g., Gemco Latinoamérica, Inc. v. Seiko Time Corp.,
61 F.3d 94, 98 (1st Cir. 1995). The question, then, reduces to
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whether the district court's deployment of the theory finds
sufficient footing in the record.
There are two elements essential to invocation of this
theory. The first is state of mind: a nonparty must know of the
judicial decree, and nonetheless act in defiance of it. The second
is legal identification: the challenged action must be taken for
the benefit of, or to assist, a party subject to the decree. Here,
both elements are foregone conclusions.
It cannot be gainsaid that each of the appellants had
actual knowledge of the November 1995 orders. See supra note 4.
This constitutes a solid foundation for the district court's
finding that the appellants possessed the requisite state of mind
to trigger civil contempt liability.
The appellants attempt to confess and avoid. They admit
knowledge of the November 1995 orders, but asseverate that they
lacked the requisite state of mind because they honestly believed
that those orders had lapsed. This asseveration is unpersuasive.
When a legitimate question exists as to the scope or
effectiveness of a court's order, those who know of the decree, yet
act unilaterally, assume the risk of mistaken judgments. See
Infusaid Corp. v. Intermedics Infusaid, Inc., 756 F.2d 1, 2 (1st
Cir. 1985) (emphasizing that a party who harbors "doubt about the
lawfulness of a proposed course of action" always can "ask the
district court for guidance"). Adhering to this principle, the
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appellants could have asked the district court for clarification as
to the enduring vitality of the November 1995 orders, but they
eschewed that course. They chose instead to rely on their own
judgment as to whether the orders remained in effect. In so doing,
the appellants acted at their peril. See McComb v. Jacksonville
Paper Co., 336 U.S. 187, 192 (1949).
The identification element is similarly open-and-shut.
Liliane Unanue was a party to the underlying action and, thus, a
person subject to the November 1995 orders. The record here
permits no reasonable conclusion but that the appellants aided and
abetted Liliane's violation of those orders. After all, each of
the three appellants played an essential role in consummating the
forbidden transaction. Wallack Management offered the Apartment
for sale, located a purchaser, and shepherded the transaction to
its climax. 625 Park facilitated the sale by placing its
imprimatur on the transfer of the Apartment and the cooperative
shares. Rennert purchased the Apartment and the shares from
Liliane, and executed an indemnity agreement in order to induce
others to approve the transaction. In view of these actions, we
must uphold the district court's finding that each of the
appellants knowingly aided and abetted a party's (Liliane Unanue's)
defiance of the November 1995 orders.
Given the foregoing, the conclusion seems inescapable
that the appellants are susceptible to liability for civil
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contempt. The appellants nonetheless attempt to refute this
conclusion, protesting that they acted throughout in good faith.
The district court gave this protestation short shrift, and so do
we.
The law is firmly established in this circuit that good
faith is not a defense to civil contempt. Star Fin. Servs., Inc.
v. AASTAR Mortgage Corp., 89 F.3d 5, 13 (1st Cir. 1996); accord
McComb, 336 U.S. at 191 ("An act does not cease to be a violation
of a law and of a decree merely because it may have been done
innocently."). The appellants fail to advance any sound reason why
this rule should not apply to nonparties. For our part, we
perceive no principled basis for allowing nonparties (but not
parties) to invoke a good-faith defense. We hold, therefore, that
nonparties are not entitled to raise a good-faith defense in a
civil contempt proceeding.
In a related vein, the appellants note that a contempt
finding will not lie unless the putative contemnor violates a court
order that is clear and unambiguous. Kemp, 947 F.2d at 16.
Starting from this premise, the appellants contend that the
uncertainty surrounding the effectiveness of the November 1995
orders prevents Goya from fulfilling this requirement. Their
contention is wide of the mark.
The test is whether the putative contemnor is "able to
ascertain from the four corners of the order precisely what acts
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are forbidden." Gilday v. Dubois, 124 F.3d 277, 282 (1st Cir.
1997) (citation omitted). Focusing the test within the four
corners of a document limits the inquiry to an examination of that
document's text. E.g., United States v. Anderson, 921 F.2d 335,
337-38 (1st Cir. 1990). Thus, the "clear and unambiguous" standard
applies to the language of the relevant court order, not to its
effectiveness. See Star Fin. Servs., 89 F.3d at 13 (concentrating
on the "unequivocal language" of the relevant order). This is as
it should be. Were we to honor the appellants' thesis — that
cobbling together a plausible legal argument about the
effectiveness of an order renders the order unclear or ambiguous
for contempt purposes — we would contradict our precedents
emphasizing that the "clear and unambiguous" inquiry is limited to
the four corners of the order itself. Consequently, we reject the
appellants' attempt to widen the lens of this inquiry to include
uncertainties about the legal efficacy of the November 1995 orders
(apart from those that might be inherent in the language of the
orders).
Turning to the language of the orders, it is difficult to
imagine how the November 1995 orders could have been worded in a
clearer, more unambiguous way. Those ukases plainly forbade not
only the Unanues but also "their agents, employees, and all persons
. . . acting in concert with them" from "alienating or in any way
assigning, transferring, selling, or otherwise disposing or
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encumbering [the Apartment,] including [the] cooperative shares
[associated therewith]." This language leaves no room for doubt as
to what the court intended.
The last piece of the puzzle is the requirement that the
moving party establish by clear and convincing evidence that the
putative contemnor violated the relevant court order. Kemp, 947
F.2d at 16; Langton, 928 F.2d at 1220. Here, the appellants left
behind an extensive paper trail memorializing the events leading up
to the transfer of the Apartment and the shares, and that
documentary array constitutes overwhelming proof that they
knowingly participated in a transaction expressly prohibited by the
November 1995 orders.
The appellants do not seriously question this conclusion,
but, rather, insist that the lower court was obliged to hold an
evidentiary hearing before it could find, by clear and convincing
evidence, that the appellants had abridged the November 1995
orders. This insistence is misplaced. In conjunction with the
show-cause order, Goya introduced documentary evidence that
established what the appellants knew, when they knew it, and the
nature of the various actions that they took.8 The appellants
8
The evidence showing that the appellants chose to participate
in bringing about the transfer of the Apartment and the cooperative
shares despite their actual knowledge of the ukases prohibiting
that very eventuality included a memorandum written by Wallack
Management's chief executive officer in March 1998 indicating his
awareness that an operative restraint "presently" prohibited
Liliane Unanue from selling the Apartment; 625 Park's steadfast
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failed to contradict this evidence. The record, therefore,
disclosed no genuine issue of material fact as to the appellants'
roles. Given that void, an evidentiary hearing would have been a
waste of time. See Morales-Feliciano v. Parole Bd., 887 F.2d 1, 6-
7 (1st Cir. 1989) (explaining that a party has a right to an
evidentiary hearing in a civil contempt proceeding only if, and to
the extent that, genuine issues of material fact exist).
That ends our discussion of the liability issue. For the
reasons elucidated above, we conclude that the district court did
not abuse its discretion in finding the appellants in civil
contempt.
IV. CONTEMPT SANCTIONS
The court below initiated the civil contempt proceeding
under its inherent power. See Shillitani v. United States, 384
U.S. 364, 370 (1966). Its authority to assess a sanction for
contempt derives from the same source. Roadway Express, Inc. v.
Piper, 447 U.S. 752, 764 (1980). A trial court has wide discretion
in its choice of sanctions. Ray v. Eyster (In re Orthopedic "Bone
Screw" Prods. Liab. Litig.), 132 F.3d 152, 156 (3d Cir. 1997).
Once the trial court has chosen a particular sanction, appellate
review is for abuse of discretion. EEOC v. Local 28 of Sheet Metal
refusal to consummate the sale unless and until Rennert agreed to
indemnify it against potential liability; and the confidentiality
clause through which Liliane and the appellants attempted to sweep
the entire transaction under the rug.
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Workers Int'l Ass'n, 247 F.3d 333, 336 (2d Cir. 2001); R.I. Hosp.
Trust Nat'l Bank v. Howard Communications Corp., 980 F.2d 823, 829
(1st Cir. 1992). When money is the sanction of choice, the abuse
of discretion standard pertains not only to the trial court's
selection of the sanction but also to its quantification of the
award. Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 721 (6th
Cir. 1996); Eck v. Dodge Chem. Co. (In re Power Recovery Sys.,
Inc.), 950 F.2d 798, 802-03 (1st Cir. 1991).
Federal courts are empowered to issue civil contempt
sanctions to "protect[] the due and orderly administration of
justice and . . . maintain[] the authority and dignity of the
court." Roadway Express, 447 U.S. at 764. In a civil contempt
proceeding, a monetary sanction, assessed for the purpose of
compensating the complainant for losses sustained by reason of the
contemnor's acts, is within the universe of permissible sanctions.
See United States v. United Mine Workers, 330 U.S. 258, 303-04
(1947). Thus, make-whole relief is a commonplace sanction for
civil contempt. So too are normal embellishments such as
attorneys' fees and costs. G. & C. Merriam, 639 F.2d at 41.
The amount of an award of make-whole relief, like the
amount of any monetary sanction that is remedial in nature, cannot
be plucked out of thin air. The amount of such a sanction must be
established by competent evidence, and must bear a reasonable
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relationship to the actual losses sustained by the injured party.
United Mine Workers, 330 U.S. at 304.
In this case, the lower court crafted a sanction with the
evident purpose of compensating the complainant for losses
sustained in consequence of the contemnors' violation of the
November 1995 court orders. To be specific, the court assessed a
compensatory sanction in the amount of $4,600,000 (the price paid
for the Apartment), and then tacked on roughly $1,400,000 in
prejudgment interest. As we explain below, the peculiar path that
the court took in arriving at the latter figure needlessly
complicated the matter.
We take first things first. The appellants' argument
that the base amount assessed was inherently speculative, or
grossly excessive, or both, is without merit. We rejected a
similar argument in Gemco Latinoamérica, a case in which a nonparty
bank had helped to arrange payments that violated an outstanding
attachment. 61 F.3d at 98. The district court held the bank in
civil contempt and imposed a sanction in the form of money damages.
Id. We affirmed both the court's choice of a monetary sanction and
its use of the funds that had been diverted as a measure of the
amount. Id. at 98-100. In reaching this result, we explained that
the bank's facilitative role made it "responsible for the full
effect" of the dissipated funds. Id. at 100. That precedent is
instructive here.
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Goya held a valid judgment against Charles Unanue, and
the district court had determined, in a decision since affirmed by
this court, that the judgment could be partially enforced by
levying against the Apartment and the cooperative shares. Goya's
opportunity to execute against those assets was frustrated by the
surreptitious sale and the subsequent transfer of the lion's share
of the proceeds to a Swiss bank account. The appellants each
played a facilitative role in consummating that forbidden
transaction. Under the circumstances, the value of the vanished
assets, as reflected by the purchase price actually paid in the
contumacious transaction, strikes us as an equitable yardstick for
measuring Goya's loss. See id. at 98, 100 (calculating damages for
contemnor's illegal seizure of store's inventory based upon
purchase price offered by a willing buyer); cf. Engine Specialties,
Inc. v. Bombardier Ltd., 605 F.2d 1, 20 (1st Cir. 1979) (basing
monetary contempt sanction upon contemnor's actual sales). We
hold, therefore, that the district court acted well within the
realm of its discretion in awarding Goya the base sum of
$4,600,000.
This leaves the question of prejudgment interest. If the
purpose of remedial contempt sanctions is to make an aggrieved
party whole, then it follows that a court should be able to fashion
sanctions that take into account not only the actual loss stemming
from the contumacious conduct but also the time value of any
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associated deprivation of funds. Accordingly, we hold that
prejudgment interest, as a theoretical matter, is an acceptable
component of a remedial sanction for civil contempt. See generally
McComb, 336 U.S. at 193 ("The measure of the court's power in civil
contempt proceedings is determined by the requirements of full
remedial relief.").
Despite this holding, the award of prejudgment interest,
as rendered in the case at bar, is problematic. The court opted to
apply Puerto Rico's prejudgment interest rule, 32 P.R. Laws Ann.
app. III, R. 44.3(b), lock, stock, and barrel to determine whether
prejudgment interest should be granted, and if so, in what amount.
In charting this course, the court seems to have lost sight of the
fact that it was operating under the aegis of its inherent power,
and instead approached the sanctions issue as if it were issuing an
award of damages in, say, a tort action.
The genesis of this decision is not clear. We note,
however, that the original action was brought by Goya under the
court's diversity jurisdiction. See 28 U.S.C. § 1332(a). We think
it likely, therefore, that the district court relied upon
precedents teaching that, in diversity cases, state law determines
"whether and how much pre-judgment interest should be awarded."
Fratus v. Republic W. Ins. Co., 147 F.3d 25, 30 (1st Cir. 1998);
see also Comm'l Union Ins. Co. v. Walbrook Ins. Co., 41 F.3d 764,
774 (1st Cir. 1994) (stating that a federal court sitting in
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diversity jurisdiction ordinarily should apply the law that a local
court sitting in the forum state would deem controlling in respect
to prejudgment interest).
The difficulty is that the Fratus rule is inapposite
here. Given that the district court convened the contempt
proceeding under its inherent power, the court was free to award
prejudgment interest as part and parcel of the contempt sanction,
or to decline to do so, as a matter of federal law. The Puerto
Rico rule simply was not controlling.9
The beacon by which we must steer is the Supreme Court's
decision in Chambers v. NASCO, Inc., 501 U.S. 32 (1991). There,
the district court, sitting in diversity jurisdiction, invoked its
inherent power and assessed attorneys' fees as a sanction for bad-
faith conduct during the litigation. Id. at 40-42. Before the
Supreme Court, the sanctioned party contended that the trial judge
was not free to order the payment of attorneys' fees as a sanction
for bad-faith conduct unless applicable state law recognized such
a praxis. The Court rejected this contention, explaining that
since the trial judge based the fee award on the sanctioned party's
9
Of course, the federal court, had it desired to make an
interest award, could have drawn upon any reasonable statutory
benchmark (state or federal) to set an appropriate rate. See
Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 224-25
(1st Cir. 1996) (observing that courts fashioning awards under
ERISA may use either state or federal rates in computing
discretionary awards of prejudgment interest). But, this was not
what the district court did.
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conduct during the course of the litigation, the use of federal law
as the source of authority for the award did not contravene the
Erie principle. Id. at 51-53 (citing Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938)). Extrapolating from Chambers, we hold that
when a federal district court sits in diversity jurisdiction, its
inherent power to impose monetary sanctions for contumacious
conduct during the course of litigation is not circumscribed by the
forum state's law regarding the imposition of sanctions. Accord
People by Abrams v. Terry, 45 F.3d 17, 23-24 (2d Cir. 1995). We
see no reason why this principle should not apply ex proprio vigore
to prejudgment interest when such an award is imposed as part of a
civil contempt sanction in a federal district court.
Based on the foregoing, we decline the parties' joint
invitation to confront the difficult, nuanced question of whether
the facts of record here bring this case within the confines of
Rule 44.3(b). Rather, we strike the district court's award of
prejudgment interest under that rule. But we do not stop there.
Although the district court employed the wrong vehicle en route to
an award of prejudgment interest, it plainly intended to afford
make-whole relief by taking into account, to some extent, the time
value of money. Under the circumstances, and in fairness to the
parties, we think that the court is entitled to reconsider the
question of remedies in light of our holding.
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We view the district court's options as broad. On the
one hand, it may decide to leave well enough alone ($4,600,000 is,
after all, a substantial amount of money). On the other hand, it
may decide that the equities counsel in favor of some increase in
the base award to compensate Goya for the time value of the
vanished purchase price. The parties have not briefed these
issues, and we believe that it should be open to them and to the
lower court, on remand, to explore such potential modifications to
the judgment. E.g., FDIC v. Consol. Mortgage & Fin. Corp., 805
F.2d 14, 21 (1st Cir. 1986) (remanding issue neither briefed nor
argued on appeal for further consideration).
V. CONCLUSION
We need go no further. For the reasons stated, we affirm
the judgment in part, vacate it in part, and remand for further
proceedings consistent with this opinion. As to those anticipated
proceedings, we intimate no view of either the propriety or the
wisdom of any particular outcome.
Affirmed in part, vacated in part, and remanded. Two-thirds costs
are taxed in favor of the appellee.
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