Choate v. State.654

2021 Ark. App. 402

• Court: Court of Appeals of Arkansas
• Decided: October 20, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 402 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION I 2023.07.12 12:27:06 -05'00' No. CR-20-654 2023.003.20215 Opinion Delivered October 20, 2021 MARY CHOATE APPELLANT APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46JV-19-113] V. HONORABLE KIRK JOHNSON, JUDGE STATE OF ARKANSAS & J.J. APPELLEES REVERSED AND DISMISSED IN PART; DISMISSED IN PART

LARRY D. VAUGHT, Judge

Mary Choate appeals two orders entered by the Miller County Circuit Court: an

October 30, 2020 order finding her in contempt of court and sentencing her to thirty days in

jail, with twenty days suspended, and imposing a $500 fine; and a September 5, 2019 order

restraining her from being within 1000 feet of her place of employment. We reverse and

dismiss the October 30 order, and we dismiss the appeal related to the September 5 order.

In January 2019, Choate was hired by the newly elected Miller County judge Cathy

Hardin Harrison to serve as a consultant for the Miller County juvenile detention center (JDC).

Part of Choate’s responsibilities included addressing operational costs at the JDC. In May,

Choate was made the administrator of the JDC. Tyna Nix was a long-time employee of the

JDC and had served as the administrator before Choate. When Choate arrived at the JDC, she noticed that some employees would “disappear”

from the facility during the workday. According to Choate, Nix was one of the employees who

was often away from the JDC premises. Choate spoke with Nix about this, and Nix told

Choate that she was often in juvenile court when she was away from the JDC. When Choate

asked Nix why she was in court, Nix said that for twenty years a representative of JDC was in

court in case the judge had any questions. Choate said that Nix was no longer permitted to go

to court.

On Tuesday, August 20, 2019, Nix was asked by Holly Giles, the juvenile-court intake

officer, to ride along with an officer who was transporting a female juvenile detainee the

following day, and Giles told Nix she (Giles) would cover Nix in court. When Nix reported

this to Choate, Choate made arrangements for another employee to do the ride-along, and she

told Nix not to go back to court.

On the morning of Wednesday, August 21, Nix received a call from Lisa Houser, the

assistant for Judge Kirk Johnson of the Miller County Circuit Court, asking where Nix was.

Nix told Houser she was not permitted to go to court. Houser asked to speak with Nix’s

supervisor, but Nix said she was not available. Houser then asked Nix to come to court for

the juvenile hearings because the judge had requested her presence. Nix left the JDC for court.

While waiting outside the courtroom, with multiple other witnesses in the area, Nix

and Giles were approached by Choate. Choate asked Nix whether she was taking the day off,

and if not, she needed to leave. Choate told Nix that she (Choate) was in charge at the JDC

and that if Nix wanted to keep her job, she better get her “tail” back to the JDC. Nix told

Choate that she (Nix) had been asked to be there by the judge, to which Choate responded by

2 saying that Nix better not be “manipulating” her (Choate). Then Choate left. Witnesses

described Choate as angry, aggressive, harsh, upset, loud, agitated, and unprofessional.

Witnesses said that Choate was in Nix’s face and was pointing her finger at Nix. Following the

encounter, which by all accounts was less than twenty seconds long, Nix testified in two

juvenile cases. 1

On September 5, 2019, the circuit court entered two orders. In the first order, the court

found that Choate had “displayed outrageous behavior, coercion, and intimidation in public

unbecoming a supervisor by threatening [Nix] with termination while [Nix] was obeying a

summons from the Circuit Court to attend juvenile court on August 21, 2019.” The court also

found that a toxic work environment had been created at the JDC and that retaliation against

JDC employees was a possibility, so the court restrained and enjoined Choate from being

within 1000 feet of the JDC or the juvenile court offices.

In the second September 5 order, the circuit court ordered Choate to show cause as to

why she should not be held in contempt for instructing an employee to not comply with a

summons by the circuit court to appear to give testimony on August 21 and for being

disorderly by verbally abusing and threatening the employee who appeared per order of the

court. A show-cause hearing was held on August 18, 2020. Following the testimony of eleven

witnesses, the circuit court orally found Choate in contempt of court, finding that she “chose

to usurp the power of the court to call any witness it felt was necessary to provide information

1Choate’s appeal of the orders in this case arises from one of the two cases in which

Nix testified on August 21—case No. 46JV-19-113 involving juvenile JJ. Choate has filed a separate appeal of the same orders that were entered in the other case in which Nix testified on August 21—case No. 46JV-19-112 involving juvenile TJ. The companion appeal is Choate v. State, 2021 Ark. App. 397, which is also handed down today.

3 on a pending case,” and that Choate chose to “get down into a witness I summonsed and

berate her and threaten her.” The court sentenced Choate to serve thirty days in jail, with

twenty suspended, and ordered her to pay a $1000 fine.

On October 30, 2020, the court entered an order finding that it had been informed by

Houser that Nix was not present for court because she had been instructed by Choate not to

go; the court attempted to call Choate to discuss her position but was unable to make contact

with her; and after not being able to reach Choate, the court directly summoned Nix to appear.

The court further found that Choate attempted to interfere and intimidate a duly summoned

witness to appear to testify in court. On the basis of these and other findings, and relying on

the holding in Arkansas Department of Human Services v. Dowdy, 2018 Ark. 307, 558 S.W.3d 847,

the circuit court found Choate in criminal contempt of court and sentenced her to thirty days

in the county jail, with twenty days suspended, and reduced her fine to $500. Choate appeals

from the September 5, 2019, and the October 30, 2020 orders.

The standard of review in a case of criminal contempt requires the appellate court to

view the record in the light most favorable to the circuit court’s decision and to sustain that

decision if it is supported by substantial evidence. 2 Burrow v. J.T. White Hardware & Lumber Co.,

2018 Ark. App. 212, at 10, 547 S.W.3d 500, 506. Substantial evidence is evidence of sufficient

force and character that it compels a conclusion one way or another, forcing the mind to pass

2Citing Elder v. Elder, 2018 Ark. App. 276, 549 S.W.3d 919, Choate argues that this

court should review her appeal under the de novo standard of review. In Elder, this court stated that a finding of civil contempt will not be reversed unless it is clearly against the preponderance of the evidence. Id. at 5, 549 S.W.3d at 923. The standard of review employed in Elder does not apply to Choate’s criminal-contempt case.

4 beyond suspicion and conjecture. Id., 547 S.W.3d at 506. Issues of credibility are for the fact-

finder. Id., 547 S.W.3d at 506.

Arkansas law distinguishes criminal and civil contempt. Criminal contempt vindicates

the power and dignity of the court and constitutes punishment for disobedience of its orders,

while the purpose of civil contempt is to preserve and enforce the rights of private parties to

suits and to compel obedience to orders made for the benefit of those parties. Id. at 9, 547

S.W.3d at 505. Choate was found in criminal contempt.

Arkansas law also distinguishes between direct and indirect contempt. Direct contempt

is a contemptuous act “committed within the immediate presence of the [c]ourt . . . .” Ivy v.

Keith, 351 Ark. 269, 281, 92 S.W.3d 671, 678 (2002) (quoting Davis v. Merritt, 252 Ark. 659, 670,

480 S.W.2d 924, 930 (1972)). Indirect contempt is contemptuous behavior committed outside

the presence of the court. Id., 92 S.W.3d at 678. Because the alleged contempt by Choate

occurred outside the presence of the circuit court, it is indirect contempt.

The court’s authority to punish for direct and indirect criminal contempt is governed

by statute:

(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:

(1) Disorderly, contemptuous, or insolent behavior committed during the court’s sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;

(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings;

(3) Willful disobedience of any process or order lawfully issued or made by it;

(4) Resistance willfully offered by any person to the lawful order or process of the court; and

5 (5) The contumacious and unlawful refusal of any person to be sworn as a witness and when so sworn a similar refusal to answer any legal and proper interrogatory.

Ark. Code Ann. § 16-10-108 (a)(1)–(5) (Repl. 2010). The power to punish for contempt is

inherent in courts, and they may go beyond the powers given by statute. Carle v. Burnett, 311

Ark. 477, 483, 845 S.W.2d 7, 11 (1993). Our supreme court has interpreted section 16-10-

108(a)(3) and held that it is not a limitation on the power of the court to impose punishment

for disobedience of process. Id., 845 S.W.2d at 11.

Choate’s first argument on appeal is that the circuit court erred in finding her in

criminal contempt of court in its October 30 order. She argues that the only categories of

contempt in section 16-10-108 that could apply are the third and fourth categories, and she

contends that they do not apply because there is no evidence that the circuit court issued any

written order or process directed to her or anyone else. Choate is correct that the circuit court

did not issue any written order or process in this case.

Arkansas has repeatedly recognized that before a person may be found guilty of

contempt, he or she must have violated a court order that is definite in its commands and clear

as to what duties it imposes. Elder, 2018 Ark. App. 276, at 5–6, 549 S.W.3d at 923 (citations

omitted). However, in Carle, the supreme court held that an attorney who refused to attend

his client’s trial after the court verbally ordered him to do so constituted disobedience of

process. 311 Ark. at 483, 845 S.W.2d at 11. Therefore, a written order or process may not be

required in the contempt context.

Choate alternatively asserts that if subsections 16-10-108(a)(3)–(4) can be read to

contemplate verbal orders, there is no evidence that she willfully disobeyed or resisted a verbal

6 order because the record shows that she had no knowledge that Nix had been directed by the

circuit court to appear in court. This court has recognized that even one not a party to an

action, who has been served with an order, or who has notice of it, may be held in contempt

of the order. Ark. Dep’t of Hum. Servs. v. Gruber, 39 Ark. App. 112, 115, 839 S.W.2d 543, 544

(1992). It is undisputed that Choate was not served with an order of the circuit court in this

case; therefore, the question is whether she had notice of one.

When viewing the facts in the light most favorable to the State, the record reveals that

Choate was not aware of the court’s custom of having a JDC representative in court on a

weekly basis until August 20 when she was told about the custom by Nix. There is no evidence

that this custom was communicated to Choate by the court either verbally or via a written order

or process. 3

The evidence further demonstrates that Choate did not learn that Nix had been

personally summoned by the court’s assistant on August 21 until halfway through the twenty-

second exchange that took place between Nix and Choate outside the courtroom. Again, this

information came from Nix—Choate’s employee—not the court. And while there is evidence

that after Choate learned that Nix had been summoned by the court, Choate told Nix, “You

need to leave,” Nix did not leave. She testified as scheduled. Even viewing this evidence in the

light most favorable to the State, we hold that the August 20 and 21 conversations between

Nix and Choate cannot be construed as notice to her of a definite court order. Accordingly,

3This is consistent with the testimony of County Judge Harrison, who stated that she

was not aware of any policy or custom of the circuit court judges requiring a JDC employee to be in court every Wednesday morning.

7 we hold that there is a lack of substantial evidence supporting the finding that Choate willfully

disobeyed or resisted an order or process of the court.

We also hold that the court’s reliance on Dowdy is misplaced. In Dowdy, the appellants

(DHS, its attorney, and its caseworker) were found by the circuit court to be in direct criminal

contempt of court after DHS’s attorney told the caseworker, who had been in court that day,

to leave the courthouse when the hearing began so that she would not be able to testify. Our

supreme court held that substantial evidence supported the contempt finding because the

evidence showed that the attorney took affirmative action to absent the caseworker in order

to prevent the other party and the court from presenting or considering evidence relevant to

the case. 2018 Ark. 307, at 11, 558 S.W.3d at 854. The supreme court further found that this

action occurred directly in front of the circuit judge and that it tended to disrupt the circuit

court’s proceedings and impair the respect due to the court’s authority. Id., 558 S.W.3d at 854.

Dowdy is distinguishable for several reasons. First, those held in contempt in Dowdy

included a party, its attorney, and its employee, all of whom were directly involved in a case

before the circuit court. In contrast, Choate was not a party, an attorney, or a witness nor was

she otherwise involved with any case before the circuit court. Second, Dowdy is a direct-

contempt case—the contemptuous behavior occurred in the presence of the court. In the case

at bar, Choate’s alleged contemptuous actions occurred outside the presence of the court and

is subject to the restrictions in section 16-10-108. And third, the actions of the appellants in

Dowdy disrupted the proceedings by preventing the admission of potentially relevant evidence.

In contrast, Choate’s exchange with Nix did not affect the court’s proceedings in any way. The

8 hearing that was going on during the exchange between Nix and Choate was not disturbed,

and Nix testified in the two juvenile cases as scheduled.

Instead, we liken the instant case to Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195

(1984). In that case, the circuit court found the petitioners (who were parties in a case pending

before the circuit court) in indirect criminal contempt of court after they cursed at the

opposing attorney several times in the hallway of the courtroom after the legal proceedings

had finished for the day. The petitioners filed a writ of certiorari requesting that the contempt

finding be quashed, which our supreme court granted, stating:

We do not find that we have ever held that mere spoken words to a lawyer out of the presence of the court, which make no threat or attempt to interfere in any proceeding, amount to criminal contempt. Although the words in the present case may have rendered petitioners responsible for some other charge or suit they did not amount to criminal contempt. We do not find any substantial evidence that petitioners had any intent to or did commit contumacious acts. We quash the contempt citations because the undisputed facts reveal that only words were spoken to the attorney at a time and place where they did not in any manner reflect upon the integrity of the court or interfere to any degree with its proceedings. Petitioners did not even by innuendo attempt to influence the outcome of the proceedings or intimidate any witness or officer of the court.

Edwards, 284 Ark. at 64, 679 S.W.2d at 197.

Similar to the facts in Edwards, the encounter between Nix and Choate took place in

the hallway of the courthouse, only words were exchanged, no order or process was issued by

the court, and no legal proceedings were disrupted as a result of the encounter. We

acknowledge that the circuit court found that Choate “intimidated Nix for responding to the

court order to appear to give testimony in two juvenile cases with a veiled threat to her job”;

however, we hold that this finding does not dictate that we reach a result different than the

result the supreme court reached in Edwards.

9 In conclusion, we do not condone Choate’s behavior toward her employee, Nix. At

best, it was unprofessional, and by multiple accounts, it was aggressive, harsh, and

confrontational. However, even viewed in the light most favorable to the State, Choate’s

behavior simply does not rise to the level of indirect criminal contempt of court. Accordingly,

we reverse and dismiss the October 30 order.

Choate’s second point on appeal is that the circuit court erred when it imposed

draconian punishments against her in its September 5 and October 30 orders. In light of our

reversal and dismissal of the October 30 order, we do not reach the merits of her challenge to

the punishment in that order. With regard to Choate’s challenge to the punishment imposed

in the September 5 order—restraining Choate from being within 1000 feet of the JDC or the

juvenile court offices, we must dismiss that appeal for lack of jurisdiction.

Choate did not file a timely notice of appeal of the September 5 order, and it was an

appealable order. Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure–Civil provides:

“An appeal may be taken from a circuit court . . . from . . . [a]n interlocutory order by which

an injunction is granted . . . .” Ark. R. App. P.–Civ. 2(a)(6) (2021). The rule providing for

appeals from injunctions is an exception to the general rule that appeals may be taken only from

a “final judgment or decree.” Villines v. Harris, 340 Ark. 319, 324, 11 S.W.3d 516, 519 (2000)

(emphasis in original) (citing Ark. R. App. P.–Civ. 2(a)(1)). Because the September 5 order

restrained and enjoined Choate from her place of employment, it granted an injunction and

was an appealable order under Rule 2(a)(6).

An interlocutory appeal, however, was not required. Pursuant to Rule 2(a)(13), a civil

or criminal contempt order, which imposes a sanction and constitutes the final disposition of

10 the contempt matter, is an appealable matter. Ark. R. App. P.–Civ. 2(a)(13). Moreover, under

Rule 2(b), an appeal from any final order also brings up for review any intermediate order

involving the merits and necessarily affecting the judgment. Ark. R. App. P.–Civ. 2(b).

Therefore, the timely filing of a notice of appeal from the October 30 order could have

brought up an appeal from the September 5 order if the notice had properly designated the

September 5 order.

Rule 3(e) of the Arkansas Rules of Appellate Procedure–Civil provides in pertinent part

that a notice of appeal or cross-appeal shall designate the judgment, decree, order or part

thereof appealed from. Ark. R. App. P.–Civ. 3(e). The supreme court has stated that a notice

of appeal that fails to designate the judgment or order appealed from as required under Rule

3(e) is deficient, but such a defect is not necessarily fatal to the notice of appeal where it is

clear what order the appellant is appealing and the notice of appeal was filed timely as to that

order. Jewell v. Moser, 2012 Ark. 267, at 4–5.

In the case at bar, Choate has failed to substantially, or otherwise, comply with Rule

3(e) as it relates to the September 5 order. There is no mention at all of the September 5 order

in her notice of appeal. There are also no references in the notice to the findings the circuit

court made in that order. The notice is completely silent with respect to the September 5 order.

An appellant must file a valid notice of appeal as a prerequisite to this court’s exercise

of appellate jurisdiction over appellant’s case. Evans v. Deboer, 2009 Ark. App. 149, at 1. Because

no valid, timely notice of appeal has been filed in this case in relation to the September 5 order,

we dismiss Choate’s appeal of that order for lack of jurisdiction.

Reversed and dismissed in part; dismissed in part.

11 GRUBER and WHITEAKER, JJ., agree.

Jason Owens Law Firm, P.A., by: Jason E. Owens, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen., for appellee.