Appeal from Circuit Court of Cumberland County No. 85P21 Honorable Stephen R. Pacey, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
Defendant, Robert B. Cochonour, appeals the trial court's September 10, 2004, order finding that defendant remained in contempt pursuant to the court's July 29, 2002, order. We dismiss in part and affirm in part.
This is the second time this case has been before us on appeal, and the facts preceding that appeal are more fully set forth in In re Estate of Hayden, No. 4-02-0610 (October 21, 2003) (unpublished order under Supreme Court Rule 23). To summarize, on June 19, 2002, after the trial court allowed defendant to resign as executor of the estate of Jay E. Hayden (Estate), the court ordered defendant to (1) file a final account of his actions as executor, (2) file a current inventory, (3) produce all estate records or documents in his possession or subject to his control or direction, (4) produce all documents described in the Jay E. Hayden Foundation's (Foundation) June 4, 2002, subpoena, and (5) furnish a surety on defendant's June 1985 $2 million bond. Defendant raised various defenses to complying with the court's order, including fifth amendment privilege (U.S. Const., amend. V), on the basis that he was the subject of a grand jury investigation regarding his conduct as executor of the Estate, attorney-client privilege, and attorney work- product privilege. On July 22, 2002, the court rejected those defenses and directed defendant to comply with the June 19, 2002, order on July 29, 2002, or risk direct civil contempt.
On July 29, 2002, the trial court found defendant in direct civil contempt for failing to comply with the court's June 19, 2002, and July 22, 2002, orders. The court sentenced defendant to the Cumberland County jail for an indefinite term, but stayed the order pending an appeal. The order further provided that defendant could purge himself of contempt by (1) furnishing to the court copies of all estate records retained by him or anyone subject to his control and direction and (2) providing surety on his bond. The order also contained the following statement:
"20. Because the furnishing of estate records may be sufficient to construct a final account and current inventory as ordered by the [c]court, no sanction need be presently imposed with respect to the [c]court's orders to file a final account and current inventory."
Defendant appealed the order to this court, asserting that the trial court erred by finding him in contempt for (1) failing to produce retained copies of estate records because the attorney work-product privilege applied and (2) failing to provide a surety on his executor's bond because defendant asserted his fifth amendment rights (U.S. Const., amend. V). This court disagreed and affirmed. In re Estate of Hayden, No. 4-02-0610 (October 21, 2003) (unpublished order under Supreme Court Rule 23).
According to the trial court's September 10, 2004, order, in January 2003, while the case was pending on appeal, defendant pleaded guilty in Cumberland County case No. 03-DF-1 to felony theft of property exceeding $100,000 from the Estate and the Foundation. As part of the plea agreement, defendant agreed to answer all questions posed to him by the Attorney General about the Estate and without subpoena testify fully and truthfully at any court hearing, deposition, proceeding, trial, or administrative proceeding involving the Estate. Also, in June 2003, the court in the Estate case found that defendant breached his fiduciary duty and misappropriated estate funds and entered judgment against defendant in the amount of $5,222,522.10.
In December 2003, following the appeal, defendant filed a motion asking the trial court for direction on compliance with the orders affirmed by the appellate court and suggested that providing a surety was moot because of his conviction and the June 2003 judgment. In January 2004, defendant filed a notice of compliance and motion for discharge from the order of contempt asserting that counsel for defendant arranged for the delivery of 2 1/2 boxes to be delivered to the Cumberland County circuit clerk.
The docket entry for a hearing held on January 16, 2004 (we do not have the transcript on appeal), provides, in relevant part, as follows:
"Evidence re: delivery of records, records sealed, ruling on [m]otion for [d]direction--comply with the order. Surety not moot. Compliance with production of estate records not yet determined. [Defendant] ordered to comply with balance of 6/19/02 order and file final account and current inventory."
On February 2, 2004, defendant filed a petition for writ of fairness with memorandum stating that selected copies of the estate records were delivered to the clerk's office and arguing that the order that defendant provide a current inventory and final account violated the fifth amendment. On February 6, 2004, defendant filed a motion requesting that the court vacate its order directing him to file a final accounting and inventory.
On February 9, 2004, defendant filed a motion for protective order stating that defendant, by a designated custodian, delivered to the clerk of the court two boxes and a sheaf of papers constituting matters subpoenaed by the Cumberland County grand jury in 2002. Also on February 9, 2004, defendant filed a report to the court explaining the alleged impossibility of defendant obtaining a surety bond. The motion asserted that defense counsel's paralegal was unable to obtain a surety bond for defendant and that even if defendant completed an application for a surety, completion of the financial-statement section would waive defendant's fifth amendment right against self-incrimination. In February 2003, the court denied the motion to discharge, petition for writ of fairness, and motion to vacate.
Defendant subsequently filed numerous additional motions, including a motion to reconsider, a motion for an order permitting secular review, and a rider of explanation. In July 2004, at the hearing on defendant's compliance with the trial court's orders, defendant refused to answer questions based on his fifth amendment right against self-incrimination. The court found noncompliance with the orders and reserved sanctions.
A docket entry of August 13, 2004, stated that on September 10, 2004, the trial court would present findings and rule on sanctions regarding defendant's noncompliance. In an order dated September 10, 2004 (no transcript of this hearing was provided on appeal), the trial court found that defense counsel attempted to purge defendant of contempt "by proxy or argument." The court further held that defendant had the ability to purge himself of contempt but "refuses to do so by asserting [f]ifth [a]mendment claims which were denied by the [a]ppellate [c]court or not raised by [defendant] in his appeal." Consequently, the court entered the following order:
A. [Defendant] remains in contempt pursuant to the [c]court's ...