Opinion
June 15, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Robert L. McDougal, Denver, for plaintiffs in error.
Creamer & Creamer, George Louis Creamer, Denver, for defendant in error.
Page 446
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear here in reverse order of their trial court positions. Zolman E. Brown, plaintiff in the trial court, is referred to as the buyer; and the defendants Mack C. Simmons and Ruth M. Simmons are referred to as the sellers.
The sellers entered into a written contract with the buyer for the sale and purchase of certain improved real property for a sale price of $24,000. The sellers later refused to convey as required by the contract, and the buyer brought this action demanding specific performance of the contract. The parties settled this phase of the litigation by stipulating that the sellers would convey the property upon payment of the sum of $27,500 by the buyer. The court approved this stipulation and ordered the sellers, upon receipt of the purchase price, to convey title and deliver possession of the property to the buyer. The court also ordered that jurisdiction be retained for the purpose of enforcing the terms of the stipulation. The stipulated sales transaction was closed and possession of the property was delivered to the buyer.
After entering into possession of the property, the buyer filed a petition for a citation for contempt in which he alleged that the sellers had improperly removed certain bathroom and kitchen fixtures from the house located on the property, and that in removing these items the sellers had damaged the property. The buyer alleged in the petition that as a result of these wrongful acts of the sellers he had been damaged in an amount in excess of $750. A citation was issued and served, and the sellers filed an answer generally denying the allegations of the petition.
On November 8, 1968, the court held a hearing on the issues tendered. All of the parties testified, and, upon the basis of sharply conflicting testimony, the court found that the sellers had, in fact, removed the fixtures in question. The court further found that the seller had damaged the property in question and that they were in contempt. At the conclusion of this hearing the court did not enter a punitive order, but continued the case for determination of the amount of damages the buyer had sustained. Subsequent proceedings resulted in the entry of an order requiring the sellers to pay the sum of $3,500 to the buyer. The sellers here seek reversal of this judgment, asserting that the amount of the judgment is not supported by the evidence, and that the proceedings which culminated in the judgment were irregular. The record supports these claims of error.
R.C.P.Colo. 107(d) authorizes the court in a civil contempt proceeding to impose either a punitive order, a remedial order, or both. The purpose of a remedial order is to compensate the injured party for the loss occasioned by the contempt, and the amount of a remedial or compensatory order is limited to the damages and expenses resulting from the contempt. R.C.P.Colo. 107(d); Shapiro v. Shapiro, 115 Colo. 501, 175 P.2d 387. The amount ordered paid to the person damaged by the contempt must be based upon proof of damages actually sustained, and such proof must consist of evidence sufficient to support a judgment for damages in a civil action.
At the hearing on November 8, 1968, no evidence of damages was presented. At the conclusion of the hearing the court requested the buyer to submit a list of damages and continued the case for a further hearing. The buyer filed a document designated as 'Items of Damage Sustained by Plaintiff.' These items amounted to $5,195. The sellers then filed their objections to the reasonableness of the amounts of the claimed items of damage, and they also averred that certain of the amounts claimed were not recoverable items of damage.
A further hearing was held on December 31, 1968. At this hearing the buyer's exhibits, which consisted of estimates from suppliers of labor and materials, were submitted to the court. The sellers also submitted estimates of the cost of labor and materials in amounts less than those claimed by the buyer. The court refused to permit the presentation of the testimony of any witnesses, and apparently based its order on the estimates, which were inadmissible hearsay documents. The amount which the court ordered the sellers to pay the buyer was arrived at by conjecture, since the record is totally void of any admissible supporting evidence. Such a judgment is clearly erroneous.
The judgment is reversed, and the cause is remanded for a new trial on the issue of damages alone.
SILVERSTEIN, C.J., and PIERCE, J., concur.