City of Pagedale v. Taylor

KAROHL, Judge,

dissenting.

The majority opinion holds the judgment entered is defective by finding defendants are in violation of a July 5, 1989, order which was not referenced in the motion for contempt or order to show cause. The enforcement order also incorporates the July 5, 1989, order. Thus, a new enforcement order must be considered and entered if appropriate. With this I concur. I must respectfully dissent, however, from the court’s ruling the pleadings were sufficient to support a judgment against John Taylor individually. The order to show cause and attached motion for contempt do not fully and fairly inform John Taylor of the conduct which is the basis for the contempt charge against him personally, nor do they provide him with a reasonable opportunity to prepare a defense. The contempt proceeding was based on the following pleading:

AMENDED MOTION FOR CIVIL CONTEMPT
COMES NOW Plaintiff, City of Page-dale, Missouri (hereafter “City”), and for its Amended Motion for Civil Contempt against Defendants John Taylor and Taylor Towing & Storage, Inc. (hereafter “Defendants”) states:
1. On or about October 28, 1986, this court issued its “Findings, Conclusions and Judgment,” providing in relevant part:
A. City is a fourth-class City located in St. Louis County, Missouri and existing pursuant to Chapter 79 of the Revised Statutes of Missouri.
B. Taylor is a resident of St. Louis County, Missouri.
C. Taylor is the sole owner of the property located at 6898 St. Charles Rock Road within the City (hereafter “Subject Property”), having acquired title on April 1, 1981, by deed recorded at Book 7321, page 659 of the St. Louis County Recorder of Deeds.
D. Taylor’s Towing is a Missouri corporation in good standing with its principal place of business located at Subject Property.
*727E. Taylor is the sole shareholder of Taylor Towing.
34. John Taylor and Taylor’s Towing & Storage, Inc. are permanently enjoined and restrained from the operation of a junkyard and/or automobile salvage yard, as defined in Ordinance No. 660, at the Subject Property known and numbered as 6898 St. Charles Rock Road, being more fully described in deed recorded in Book 7321, Page 659, of the St. Louis County Recorder of Deeds. The Subject Property is the property acquired by Taylor, subsequent to enactment of City Ordinance No. 660 and upon which neither Taylor nor Taylor’s Towing & Storage, Inc. has ever lawfully contacted any significant activity of such business.
2. Said “Findings, Conclusions and Judgment” remains in full force and effect, without benefit of any judicial stay.
3. Since October 28, 1986, to date, Defendants have continually operated junk yard and/or automobile salvage yard, as defined in Ordinance No. 660 of City, at the Subject Property in violation of said “Findings, Conclusions and Judgment.”
Specifically, Defendants violated said “Findings, Conclusions and Judgment” on the following dates and in the following manner:
a. On November 30, 1989, at 2:00 p.m., approximately 470 automobiles or motor vehicles of any kind for the purpose of either wrecking, dismantling, taking apart, removing parts therefrom or salvaging either automobiles or motor vehicles or parts thereof whether for resale, reuse or other disposition and used automobile parts or equipment on any yard, lot, premises, parcel or tract of land, as defined in Ordinance No. 660, were found on Subject Property known and numbered as 6869 St. Charles Rock Road, being more fully described in deed recorded in Book 7321, Page 659 of the St. Louis County Recorder of Deeds; [b.-k. are similar but involve other dates and variations not material to our decision.]
4.Said acts of Defendants constitute contempt of this Court’s prior “Findings, Conclusions and Judgment” and are a direct affront to this Court’s authority.
WHEREFORE, City prays for an Order holding Defendants in civil contempt and that the appropriate sanctions be imposed and further, that this Court award to City from Defendants its costs and attorney’s fees herein incurred.

The court then issued an order to show cause based upon the above motion. It states:

ORDER TO SHOW CAUSE
WHEREAS, Plaintiff, City of Page-dale, Missouri, has filed a Motion for Civil Contempt in the above-entitled cause, a copy of which is attached hereto and made a part hereof, charging that you have failed to comply with the Court’s “Findings, Conclusions and Judgment” filed herein on or about October 28, 1986, in respect to the operation of a junkyard and/or automobile salvage yard at 6898 St. Charles Rock Road, St. Louis, Missouri 63133, as defined in Plaintiff’s Ordinance No. 660. Counsel for Defendants has agreed to accept service on behalf of Defendants.
WHEREFORE, you, the said Defendants, are hereby commanded to be and appear before the Circuit Court of St. Louis County, Missouri, on the 6th day of July, 1990, at 10 a.m. in Division No. 5, and to show cause why an Order holding you in contempt should not be entered against you as prayed for in said Motion.

The court entered the following judgment:

JUDGMENT OF CONTEMPT
Now come the parties hereto, the [C]ity of Pagedale, Missouri, plaintiff in this action for indirect civil contempt, and John Taylor and Taylor’s Towing & Storage, Inc., in person and by their attorney; whereupon plaintiff’s motion for contempt having been heard and submitted *728to this Court, this Court now finds that John Taylor and Taylor’s Towing & Storage, Inc.:
1. Had full knowledge of this Court’s prior “Findings, Conclusions and Judgment,” dated October 28,1986, by their having fully participated in said action and in subsequent proceedings for contempt brought pursuant to the same; and
2. Had full knowledge of this Court’s prior Judgment of Contempt and Commitment Order of July 5, 1989,1 by their having fully participated in said action.
3. After appropriate service of notice of the charges and after a full hearing of these charges, this Court finds that John Taylor and Taylor’s Towing & Storage, Inc. are guilty of indirect civil contempt.
4. On November 30,1989 at 2:00 p.m., December 3, 1989 at 2:00 p.m., December 6, 1989 at 2:00 p.m., December 12, 1989 at 2:00 p.m., December 15, 1989, at 2:00 p.m., April 2, 1990 at 2:00 p.m., April 6, 1990 at 2:00 p.m., April 12, 1990 at 2:00 p.m., April 16,1990 at 2:00 p.m., May 2, 1990 at 2:00 p.m. and May 7, 1990 at 2:00 p.m., John Taylor and Taylor’s Towing & Storage, Inc. placed, stored or kept used automotive parts or equipment and/or placed, stored or kept for the purpose of wrecking, dismantling, taking apart, reuse or salvage, either automobiles, motor vehicles, used automobile parts or equipment therefrom, including, but not limited to, used automotive tires, used automotive engine blocks, used 100+ gallon inoperable fuel tanks, crushed automobiles, and a crusher used to wreck or crush said automobiles, all contrary to the [C]ity of Page-dale Ordinance No. 660 upon the Subject Property, located in 6898 St. Charles Rock Road within the City of Pagedale, Missouri, and more fully described in deed dated April 1, 1981, recorded at Book 7321, Page 659 of the St. Louis County Recorder of Deeds[’] Office.
5. John Taylor and Taylor’s Towing & Storage, Inc. have the means and ability to pay a fine.
6. John Taylor is the sole owner of Taylor’s Towing & Storage, Inc.
In its prior ruling of October 28, 1986, and July 5, 1989, this court found “the testimony of TAYLOR to have been not credible in most instances.” The Court finds no reasons to characterize differently John Taylor’s testimony before it on August 16, 1990.
Therefore to compel compliance with this Court’s orders of October 28, 1986, and July 5, 1989, a compliance that this court has previously exhausted all reasonable means to accomplish and which John Taylor has used every means to avoid and to violate in a consistent manner which can only be characterized as a flagrant, contumacious and contemptuous affront to this Court’s lawful authority [sic], it is hereby ordered:
1. John Taylor is sentenced to imprisonment at the County Jail of St. Louis County, Missouri on Thursday, September 27, 1990, at noon, until such time as he elects to adhere fully to the Court orders of October 28, 1986, and July 5, 1989, unless full and total compliance of this Order prior to said date is reported to this Court by plaintiff’s counsel; and
2. Defendants, jointly and severally, are ordered to pay to the City of Page-dale, Missouri, $11,000.00 pursuant to this Court’s previous Order of July 5, 1989, in which Defendants were ordered to pay $1,000.00 per day until Defendants elected to adhere to the original Order of October 28, 1986, directing them to discontinue any violation of Pagedale City Ordinance No. 660. By order of July 5, 1989, this Court retained continuing jurisdiction over this matter for a period of two years. Defendants are given up to September 27, 1990 in which to pay this fine.
*7293. To pay the City of Pagedale, Missouri $5,103.00 for attorney’s fees and costs sustained as a result of his refusal to abide by said Court Order; and
4. Defendants, jointly and severally, are ordered to pay $1,000.00 per diem until Defendnats [sic] elect to adhere fully and continually to this Court’s Order of October 28, 1986, directing them to discontinue any violation of Pagedale City Ordinance No. 660.
Therefore to allow John Taylor and Taylor’s Towing & Storage, Inc. to purge themselves in indirect civil contempt, this cause is continued to September 27,1990 at 9:30 a.m. in Division 5 of the St. Louis County Circuit Court.
IT IS ORDERED THAT John Taylor and Taylor’s Towing & Storage, Inc. may purge themselves of indirect civil contempt by paying to the City of Pagedale a total of $16,103.00 representing fines, attorney’s fees and costs.
IT IS FURTHER ORDERED THAT if John Taylor or Taylor’s Towing & Storage, Inc. failt to purge themselves of this indirect civil contempt, by September 27, 1990, John Taylor will be committed pursuant to this Court’s Commitment Order. This Court shall retain continuing jurisdiction over this matter for a period of two years.
Costs taxed against Defendants.
IT IS SO ORDERED.
September 13, 1990.
(SS)Arthur Litz JUDGE
(Our emphasis).

In order to sufficiently apprise the accused of the charges, he must be informed of (1) the time and place of the hearing; (2) the essential facts constituting the contempt charge; and (3) a description of the charge as contempt. State ex rel. O’Brien v. Moreland, 778 S.W.2d 400, 402 (Mo.App.1989). In essence, the motion and show cause order must fairly and fully inform the accused of the specific acts with which he is charged so that he may prepare an adequate defense. Kohlleppel v. Owens, 646 S.W.2d 860, 863 (Mo.App.1982). These requirements are applicable to civil as well as criminal contempt charges. Id. at 863.

My disagreement with the majority is over the specificity required to sufficiently apprise a defendant of the charges. The majority view depends on the matter of law that it is unnecessary to differentiate in this case between the conduct of the corporation and John Taylor individually. The majority asserts by virtue of sole ownership Taylor does not need notice of his individual acts separate from those of the corporation. They claim he was enjoined as the property owner from its prohibited use. I fail to find in the record any indication Taylor was enjoined as the property owner and not in some other capacity. Furthermore, the requisite intent for contempt is the intent to do the specific act prohibited by the court. See Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710, 716-717 (Mo.App.1977). The majority asserts, without explanation or citation to authority, it is unnecessary for John Taylor to be responsible for the improper use of the premises, it is only necessary he own the property and possibly have knowledge. I fail to understand how one without responsibility for an act or knowledge of an act can be charged with doing the act. It follows therefore, that to sufficiently notify a person charged with contempt, he must be informed of the acts that constitute the contempt performed by him or with his knowledge and consent. Only then would counsel for the individual know what evidence is relevant and material to a charge against the individual for purposes of advising defendant or conducting a defense.

Several interpretations can be given to the pleading. It can be said that all of the charged acts on the specified dates were done by Taylor and the corporation jointly. It could be argued the alleged acts were Taylor’s own acts individually and for the corporation. It may also be said the motion and order charges some acts were done by the corporation and some by Taylor independently of each other. This possibility is the problem. Acts done by others for the corporation are not automatically the acts of Taylor. When the charging *730order is not clear, as in this case, it is void. The court’s order must be definite and specific so as to exclude reasonable doubt of its meaning. Carter County R-1 School Dist. v. Palmer, 627 S.W.2d 664, 665 (Mo.App.1982). If it is possible to meet the requirement for definiteness in a single charging paragraph directed at two defendants this motion did not satisfy the requirement. The acts of more than one legal person charged in a single paragraph could be acts of one preformed wholly without any knowledge or participation of the other.

. The 1989 order was not within the motion for contempt.