Opinion
A23A0865
10-18-2023
TRINITY PROPERTY CONSULTANTS, LLC et al. v. BLANKEMEYER et al.
NOT TO BE OFFICIALLY REPORTED
MERCIER, C. J., MILLER, P. J., and HODGES, J.
MILLER, Presiding Judge.
Trinity Property Consultants, LLC and FPA/WC Ansley Place, LLC (collectively "Trinity Property") seek review of the trial court's order holding them in contempt of a settlement agreement and a subsequent trial court order enforcing the settlement agreement. On appeal, they argue that (1) the evidence was insufficient to show that their failure to abide by the terms of the settlement agreement was wilful; (2) the trial court imposed an excessive fine as punishment; and (3) the trial court's award of attorney fees was improper. Because none of these arguments have merit, we affirm.
"[T]he question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion." (Citation omitted.) Stardust, 3007, LLC v. City of Brookhaven, 348 Ga.App. 711 (824 S.E.2d 595) (2019).
The record shows that Caleb and Courtney Blankemeyer filed a complaint against their landlord, Trinity Property, for damages sustained from a flood in their apartment. On May 19, 2022, the parties entered into a settlement agreement that required Trinity Property to "remove or cause to be removed" any negative reports that Trinity Property made on the Blankemeyers' credit reports within 10 days of the execution of the agreement. The settlement agreement further provided that if any dispute arose from the agreement, the prevailing party would be entitled to recover its costs and expenses, including reasonable attorney fees.
Over a month later, when the negative credit reports had still not been removed, the Blankemeyers moved to enforce the settlement agreement. On July 7, 2022, the superior court entered an order requiring Trinity Property to remove all negative reports from the Blankemeyers' credit reports and pay $1,375 attorney fees within seven days of entry of the order. When the defendants failed to comply with the order, the Blankemeyers filed a motion to hold Trinity Property in contempt. Following a hearing, the superior court entered an order on August 19, 2022 which (1) found Trinity Property in wilful contempt of the court's July 2022 order; (2) fined Trinity Property $52,000 as punishment for the contempt; (3) ordered Trinity Property to cause all negative reports to be removed from the Blankemeyers' credit reports within 10 days of the order; and (4) ordered Trinity Property to pay an additional $1,930 in attorney fees. This appeal followed.
1. Trinity Property first argues that there was insufficient evidence to show that its failure to correct the Blankemeyers' credit reports was wilful. It specifically argues that correcting the credit reports required actions from third party credit reporting agencies Experian and TransUnion, and so it could not be held in contempt for failing to complete an act over which it had no control. This argument is unavailing.
As an initial matter, we conclude that the trial court found Trinity Property in criminal contempt, not civil contempt.
Once an act has been determined to constitute contempt of court, the action the court takes to deal with the contempt determines whether the contempt is deemed 'criminal' contempt or 'civil' contempt. The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior contempt to preserve the court's authority and to punish disobedience of its orders. Civil contempt, on the other hand, is conditional punishment which coerces the contemnor to comply with the court order.(Citations omitted.) Stardust, 3007, Inc., supra, 348 Ga.App. at 711-712. In this case, the trial court's imposition of a fine and attorney fees was not conditional on Trinity Property's future obedience with its order, nor did the contempt order provide a basis for purging the contempt through compliance. The order instead clearly imposed a punishment on Trinity Property for its past disobedience. Therefore, the trial court found Trinity Property in criminal contempt.
"On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation omitted.) In re Otuonye, 279 Ga.App. 468, 470 (1) (631 S.E.2d 500) (2006). "The powers of the several courts to issue attachments and inflict summary punishment for contempt of court shall extend only to cases of [d]isobedience or resistance by any . . . party . . . to any lawful writ, process, order, rule, decree, or command of the courts[.]" OCGA § 15-1-4 (a) (3).
In order to establish criminal contempt, there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so wilfully. And to show wilfulness, there must be proof beyond a reasonable doubt that the alleged contemnor had the ability to comply with the court order[.] It is essential to constitute a contempt that the thing ordered to be done be within the power of the person against whom the order is directed.(Citations and punctuation omitted.) Thomas v. Dept. of Human Resources, 228 Ga.App. 518, 519 (492 S.E.2d 288) (1997).
Here, at the contempt hearing on August 10, 2022, the Blankemeyers presented evidence that the negative reports from Trinity Property were still appearing on their credit reports and that they had been denied a loan based on these negative reports. In response, Trinity Property first admitted that it had failed to pay the first attorney fee award due to a "bureaucracy situation." As for the credit reports, Trinity Property submitted a series of emails between it and a third-party vendor that occurred between June 17, 2022, and July 11, 2022. Trinity Property alleged that these emails show that it asked the credit agencies to purge the negative reports in May 2022. The trial court noted, however, that the emails contain multiple unavailable attachments, which made it very difficult to determine what actions Trinity Property had actually taken before the deadline. Based on the evidence at the hearing, the trial court found that Trinity Property had taken no timely actions to remove the negative credit reports, in violation of its order enforcing the settlement agreement.
Trinity Property submitted corrected versions of these emails as attachments to a motion for reconsideration, and we will address infra the contents of the corrected emails.
On appeal, Trinity Property argues that the trial court erred by making this determination because the emails show that it removed the negative credit reports as of May 27, 2022, which was before the May 29 deadline. This argument is unavailing because the trial court was entitled to credit the Blankemeyers' evidence that the negative reports had not been removed from their credit histories over any of the conflicting evidence that Trinity Property submitted. See Affatato v. Considine, 305 Ga.App. 755, 760 (2) (a) (700 S.E.2d 717) (2010) ("[A] trial court in a contempt action is vested with broad discretionary power when the evidence is conflicting, and it is the role of the trial court, not the appellate courts, to assess the credibility of the witnesses.") (citations and punctuation omitted).
But even considering the evidence more closely, Trinity Property's argument is unavailing. We observe that a July 11, 2022 email states that "[t]he account was closed as assigned in error on the 27th[.]" But we do not discern from the email that the account was closed in May, as opposed to a later month. Crucially, the emails show that the apparent first action that Trinity Property ever took to correct the credit reports occurred on June 17, 2022, and an email dated June 27, 2022, provides the first indication that the account was closed. Thus, the trial court was entitled to conclude that the "27th" referenced in the emails was June 27, and not May 27, which was well outside the time that Trinity Property was supposed to take action under the settlement agreement. A rational factfinder could therefore conclude beyond a reasonable doubt that Trinity Property failed to take any timely action to contact Experian or TransUnion to remove the negative credit reports.
Also, given that Trinity Property has failed to put forth a valid excuse for failing to take any timely action to correct the Blankemeyers' credit reports, the trial court was authorized to conclude that the failure to comply was wilful. See Otuonye, supra, 279 Ga.App. at 470-471 (1) (trial court was authorized to conclude that attorney's failure to appear at a calendar call "was tantamount to wilful disregard of the court's command" when he failed to put forth any valid reason for failing to appear). The trial court was therefore entitled to conclude beyond a reasonable doubt that Trinity Property was in criminal contempt.
To the extent Trinity Property argues that it cannot be held in contempt because the final actions to clear the credit reports needed to be taken by the third parties Experian and TransUnion, this argument fails. As the Blankemeyers correctly argue, this is not a situation where a trial court ordered a party to perform the impossible -Trinity Property voluntarily agreed "to remove or cause to be removed" the Blankemeyers' credit reports within a certain time frame when it signed onto the settlement agreement. It cannot now complain that it was impossible to do what it had previously agreed to do. In other words, "[Trinity Property's] contempt was not in simply failing to [correct the Blankemeyers' credit reports], but in wilfully creating the impossibility by accepting an obligation [it] knew [it] would be unable to fulfill." In re Spruell, 227 Ga.App. 324, 325-326 (1) (489 S.E.2d 48) (1997) (attorney who failed to appear at trial was properly found in contempt when he agreed to represent a client at the trial while knowing that he would be out of the country on the day of the trial); see also In re Mauldin, 242 Ga.App. 350, 352-353 (1) (529 S.E.2d 653) (2000) (citizen who failed to return to jury duty due to a prior commitment was properly found in contempt because his "own conduct created the impossibility upon which [he] attempted to rely"). The correction of the Blankemeyers' credit reports was also not entirely reliant on the actions of third parties. It was Trinity Property's responsibility to initiate the correction procedures with the credit reporting agencies, and Trinity Property failed to take any action to correct the credit reports or to have them corrected by the credit reporting agencies within the relevant time frame. Compare Thomas, supra, 228 Ga.App. at 519 (judgment of contempt reversed where the undisputed evidence showed that the appellant lacked any authority to reduce the number of persons residing in a care home or to have that number reduced, which the trial court had previously ordered).
Accordingly, the evidence was sufficient for the trial court to find Trinity Property in criminal contempt of the settlement agreement.
2. In its final two enumerations of error, Trinity Property argues that the fee amount that the trial court imposed by the trial court was excessive and that the trial court's award of attorney fees was improper. These arguments similarly fail.
The Blankemeyers argue that Trinity Property has failed to preserve these arguments because it failed to raise them below. However, "[c]riminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both." (Citation omitted.) Carlson v. Carlson, 324 Ga.App. 214, 216 (1) (748 S.E.2d 304) (2013). By challenging the validity of the trial court's punishment as unauthorized by law, the appellants are essentially seeking to vacate a void sentence. "A sentence is void if the court imposes punishment that the law does not allow." (Citation omitted.) Hood v. State, 343 Ga.App. 230, 232 (1) (807 S.E.2d 10) (2017). A void and illegal sentence "requires the reviewing court to vacate the conviction and sentence even if the error was not raised in the trial court and indeed even if it is not enumerated as error on appeal." Nazario v. State, 293 Ga. 480, 485 (2) (b) (746 S.E.2d 109) (2013). We may therefore address Trinity Property's arguments notwithstanding the fact that they were not raised below to the extent that they raise a colorable claim that the trial court's punishment was void.
As an initial matter, it appears that Trinity Property is basing its arguments on the premise that the trial court found it in civil contempt. As noted above, the trial court found it in criminal contempt, not civil contempt. Thus, Trinity Property's arguments will be addressed to the extent that they are applicable to criminal contempt.
(a) First, we reject Trinity Property's argument that the amount of fines imposed by the trial court was excessive and constituted cruel and unusual punishment.
"Under OCGA § 15-6-8 (5), a superior court may punish criminal contempt by fines not exceeding $1,000.00, by imprisonment not exceeding 20 days, or both. These penalties are applicable to each separate act of contempt found by the trial court." (Citations omitted.) Stardust, 3007, LLC, supra, 348 Ga.App. at 717 (2). "Whether a contempt of court has been committed in the violation of an injunctive order, and how it shall be treated, are questions for the discretion and judgment of the court that issued the order, and its discretion will not be interfered with by this Court unless there is an abuse of discretion." (Citation and punctuation omitted.) Id. at 718 (2).
Here, the trial court concluded that Trinity Property violated the settlement agreement in four different ways: once for each of the two Blankemeyers for each of the two credit reporting agencies. It then imposed a $500 fine for each of the four violations for each day that the credit reports were not corrected, arriving at a total value of $52,000. The trial court acted within its discretion to assess the situation this way and determine the number of separate acts of contempt that it did. See Stardust, 3007, LLC, supra, 348 Ga.App. at 717-718 (2) (trial court did not abuse its discretion by determining that a business committed three violations of a permanent injunction and then imposed separate criminal contempt fines each day for each of the three violations for as long as the business operated in violation of the injunction). Further, the $500 fine imposed per act was within the statutory limits. See OCGA § 15-6-8 (5). Finally, the Blankemeyers presented evidence that they were harmed by Trinity Property's failure to abide by the terms of the settlement agreement because they were denied a loan based on the negative reports on their credit history.
Because the fine is rationally related to the contempt, is within the statutory limits, and does not appear grossly out of proportion to the conduct exhibited, the fine was not excessive or cruel and unusual. See Mauldin, 242 Ga.App. at 353 (2) ("A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds.") (citation omitted).
(b) Trinity Property finally argues that the trial court's award of attorney fees was improper under OCGA § 9-15-14 because the trial court failed to make any legal conclusions or factual findings to support the award and did not base the award on any identifiable sanctionable conduct. The trial court, however, imposed attorney fees pursuant to the attorney fees provision in the settlement agreement, not OCGA § 915-14. This contractual provision only stated that "[i]n the event that any dispute occurs between the parties that arises out of or is related to this Agreement the prevailing party in such dispute shall be entitled to recover its costs and expenses, including the prevailing party's reasonable attorney's fees." Because the trial court granted the Blankemeyers' motion for contempt, they are the prevailing parties. And contrary to Trinity Property's allegation, the trial court expressly determined that the amount of attorney fees was reasonable. Because the trial court was not required to do more to award attorney fees under the settlement agreement, this enumeration of error is without merit.
Therefore, we affirm the trial court's order finding Trinity Property in contempt of the settlement agreement and the order enforcing the agreement.
Judgment affirmed.
Hodges, J, concurs Mercier, C J, concurs in judgment only.