Capps v. South Carolina Department of Transportation

THOMAS, J.,

concurring in part and dissenting in part by separate opinion:

I respectfully dissent. In my opinion the trial court’s ruling should be affirmed in full since the record provides evidence supporting the trial court’s issuance of civil contempt sanctions against Kent.

“A determination of contempt is a serious matter and should be imposed sparingly; whether it is or is not imposed is within the discretion of the trial judge, which will not be disturbed on appeal unless it is without evidentiary support.” Haselwood v. Sullivan, 283 S.C. 29, 32-33, 320 S.E.2d 499, 501 (Ct.App.1984). A decision regarding contempt should be reversed only if it lacks evidentiary support or the trial judge has abused his discretion. Stone v. Reddix-Smalls, 295 S.C. 514, 516, 369 S.E.2d 840, 840 (1988).

“The power to punish for contempt is inherent in all courts and is essential to preservation of order in judicial proceedings.” Browning v. Browning, 366 S.C. 255, 262, 621 S.E.2d 389, 392 (Ct.App.2005). A court’s ability to find someone in contempt “is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts; and consequently to the due administration of justice.” In re Terry, 128 U.S. 289, 303, 9 S.Ct. 77, 32 L.Ed. 405 (1888) (citations omitted), quoted with approval in Miller v. Miller, 375 S.C. 443, 453, 652 S.E.2d 754, 759 (Ct.App.2007). Those who commit offenses calculated to ob*642struct, degrade, and undermine the administration of justice are subject to the court’s inherent authority to levy contempt, and this power cannot be abridged. State ex rel. McLeod v. Hite, 272 S.C. 303, 305, 251 S.E.2d 746, 747 (1979). Without the power to find individuals in contempt of court, “the administration of the law would be in continual danger of being thwarted by the lawless.” Miller, 375 S.C. at 453-54, 652 S.E.2d at 759 (citing Terry, 128 U.S. at 303, 9 S.Ct. 77).

Contempt results from the willful disobedience of a court order. Lindsay v. Lindsay, 328 S.C. 329, 345, 491 S.E.2d 583, 592 (Ct.App.1997). A willful act is one “done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law.” Spartanburg County Dep’t of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988) (citing Black’s Law Dictionary 1434 (5th ed.1979)). The determination of contempt ordinarily resides in the sound discretion of the trial judge. State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct.App.1994). “A finding of contempt ... must be reflected in a record that is ‘clear and specific as to the acts or conduct upon which such finding is based.’ ” Tirado v. Tirado, 339 S.C. 649, 654, 530 S.E.2d 128, 131 (Ct.App.2000) (quoting Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 918 (1982)).

The majority holds the record lacks evidence demonstrating Kent knew a traffic citation is inadmissible in a court of law. I disagree. The majority’s finding disregards the courtroom experience Kent presented while being qualified as an expert witness. During his qualification as an expert witness, Kent explained he has testified “a couple of hundred” times in “the areas of accident reconstruction and roadway effect on vehicular accidents.” Kent further explained he has evaluated accidents for twenty-two years and even formed his own engineering firm that engages in accident reconstruction.

The record also evinces the willfulness of Kent’s utterance. Ignoring his prior courtroom experience, Kent was still aware of the inadmissibility of accident reports since immediately before he announced, “I also noted that — from this report that Mr. Conner was cited for failure to yield right of way,” the *643Capps’ counsel made a hearsay objection to the narrative portion of the accident report being published to the jury and the parties argued about the parameters of Kent’s testimony. In the ongoing discussion, the trial court noted “there is a distinction between relying on [the accident report] and publishing it [to the jury].” The Capps’ counsel also mentioned that a statute prohibits publishing an accident report to the jury. Indeed, Kent displayed his familiarity with the rules of court by admitting he misspoke and stating he had never done that before. After Kent’s statement and the ensuing objection, the jury was removed from the courtroom while the Capps’ counsel argued for a mistrial. The attorney for SCDOT responded by stating, “I didn’t know that was coming in at that time, your Honor.”

The majority also disregards the trial court’s extensive explanations to the jury regarding the contemptuous conduct and Kent’s -willfulness in disclosing Connor’s citation to the jury. “[B]efore a court may find a person in contempt, the record must clearly and specifically reflect the contemptuous conduct.” Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 705 (Ct.App.2001). The trial court patiently explained to the jury its belief Kent knew the comment was inappropriate and still deliberately mentioned the citation with the knowledge that “evidence of whether or not a citation was issued is just inadmissible in any civil trial.” In assessing sanctions against Kent for civil contempt, the trial court explained Kent made a “leap far beyond what the court would ever allow in an intentional way from a witness who’s testified many times ... [and] would well know that evidentiary rule.” The trial court also cited Kent’s demeanor, which cannot be reviewed on appeal, as support for holding him in civil contempt.

The majority does not fully address whether the sanctions against Kent constituted civil or criminal contempt. I would find the sanctions were civil in nature. “The determination of whether contempt is criminal or civil depends upon the underlying purpose of the contempt ruling.” Miller, 375 S.C. at 456, 652 S.E.2d at 761. “In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive or both: when a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking *644to give effect to the law’s purpose of modifying the contemnor’s behavior to conform to the terms required in the order.” Hicks v. Feiock, 485 U.S. 624, 635, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). “If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine.” Miller, 375 S.C. at 457, 652 S.E.2d at 761 (citing Floyd v. Floyd, 365 S.C. 56, 75-76, 615 S.E.2d 465, 475-76 (Ct.App.2005)).

The trial court never referred to the sanctions as criminal contempt. To the contrary, the trial court made efforts to indicate the contempt was civil in its order denying reconsideration of the sanctions when it stated, “the Court has determined that payment to the Humane Society does not further the ends of justice in this case, and instead directs that the payment be made to Plaintiffs counsel, to be credited against the costs of making and prosecuting the motion for a new trial.” See Hicks, at 631, 108 S.Ct. 1423 (“If it is for civil contempt the punishment is remedial, and for the benefit of the complainant.”); Jarrell v. Petoseed Co., 331 S.C. 207, 209, 500 S.E.2d 793, 794 (Ct.App.1998) (“Civil contempt sanctions serve two functions: to coerce future compliance and to remedy past noncompliance.”). In addition to compensating the Capps for Kent’s wrongful conduct, the remedial sanction issued by the trial court also resulted in Kent’s continued testimony without further mention of the citation issued to Connor.

In light of this court’s standard of review, the support found in the record, and the clear explanations given by the trial court, I would affirm the trial court’s order in full.