JUDE MARULLO * NO. 2023-CA-0157
VERSUS * COURT OF APPEAL EXTREME MOTOR SPORTS * OF NEW ORLEANS, LLC AND FOURTH CIRCUIT GEORGE ACKEL, III * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-04076, DIVISION “E” Honorable Omar Mason, Judge ****** Judge Nakisha Ervin-Knott ****** (Court composed of Judge Paula A. Brown, Judge Dale N. Atkins, Judge Nakisha Ervin-Knott)
David P. Vicknair Caitlin B. Carrigan James M. Montgomery, II SCOTT VICKNAIR, LLC 909 Poydras Street, Suite 2025 New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
Janna C. Bergeron ATTORNEY AT LAW 222 N. Vermont Street, Suite T Covington, LA 70433
COUNSEL FOR DEFENDANT/APPELLANT
VACATED AND REMANDED OCTOBER 25, 2023 NEK
PAB Appellant, Extreme Motor Sports of New Orleans, LLC (“Extreme”),
DNA appeals the district court’s judgment finding it to be in constructive contempt of
court and ordering it to pay $1,500.00 in attorney’s fees and $157.14 in court costs.
For the following reasons, we vacate the district court’s judgment and remand this
matter for further proceedings.
Relevant Facts and Procedural History
The underlying case involves a dispute over the transfer of a 2017 Jeep
Wrangler. In 2019, Appellee, Jude Marullo (“Marullo”), decided to purchase a new
Jeep Wrangler. Marullo wanted to trade in his older 2017 Jeep Wrangler in order to
reduce the taxes on his new purchase. Unsatisfied with the trade-in value from the
Chrysler dealership, Marullo made a deal with George Ackel (“Ackel”), wherein
Marullo would pay Ackel’s dealership, Extreme, $45,000.00 for it to pass through
to Chrysler. Chrysler then deducted the $45,000.00 from the sale price of the new
Jeep, thus reducing the taxable balance. The parties agreed that Ackel would not
buy the 2017 Jeep Wrangler. Rather, after the pass through was completed, Ackel
would attempt to sell the 2017 Jeep Wrangler on behalf of Marullo for $45,000.00.
However, when Ackel could not find a buyer for that price, Marullo requested that
1 the vehicle be transferred to another dealership. At this point, a dispute arose
between the parties regarding the transfer of the vehicle, and this suit followed.
On March 8, 2022, the parties appeared before the district court for a bench
trial. At the conclusion of the trial, the court ordered Extreme to return the Jeep to
Marullo within forty-five days of the rendition of the judgment. The court also
ordered Marullo to bear the responsibility of having the vehicle’s title transferred
back to his name. Per the court’s judgment, Extreme had until April 22, 2022, to
return the vehicle to Marullo. It is undisputed that this did not happen. Extreme did
not make the vehicle available for Marullo to pick up until April 26, 2022. The
next day, Marullo filed a motion for contempt.
The district court held a hearing on the motion for contempt on October 20,
2022, and granted the motion at the conclusion of the hearing. On November 10,
2022, the court issued a written judgment finding Extreme to be in constructive
contempt of court and ordering it to pay $1,500.00 in attorney’s fees and $157.14
in court costs. Extreme filed a devolutive appeal on January 9, 2023, and the
district court granted the appeal.
Assignment of Error
Extreme’s sole assignment of error is that the district court manifestly erred
in finding it to be in constructive contempt of court and ordering it to pay
attorney’s fees and costs.
Discussion
Contempt of Court, Generally
Contempt of court is “any act or omission tending to obstruct or interfere
with the orderly administration of justice, or to impair the dignity of the court or
respect for its authority.” La. C.C.P. art. 221. Direct contempt of court is either a
2 contempt committed in the presence of the court or a party’s failure to comply with
a subpoena or summons. See La. C.C.P. art. 222. Constructive contempt is “any
contempt other than a direct one.” La. C.C.P. art. 224. Constructive contempt
includes a party’s willful disobedience of a lawful judgment. Id. at (2). In order to
hold a party in constructive contempt, the district court must find that the party
committed the violation “intentionally, purposely, and without justifiable excuse.”
State through Dep’t of Child. & Fam. Servs. Child Support Enf’t v. Knapp, 2016-
0979, p. 13 (La. App. 4 Cir. 4/12/17), 216 So. 3d 130, 140 (quoting Burst v.
Schmolke, 2010-1036, p. 6 (La. App. 4 Cir. 4/6/11), 62 So. 3d 829, 833).
Nature of Contempt Proceedings
Our review of this case hinges on the nature of the contempt proceeding that
took place. “Contempt of court proceedings are either criminal or civil” in nature.
Succession of Bailey, 2020-0145, p. 5 (La. App. 4 Cir. 11/18/20), 311 So. 3d 422,
425 (citing Dazet Mortg. Sols. LLC v. Faia, 2012-486, p. 7 (La. App. 5 Cir.
4/10/13), 116 So. 3d 711, 717). To determine the nature of a contempt proceeding,
the appellate court must look to “the nature of the punishment imposed—that is,
whether the punishment is remedial or punitive.” Streiffer v. Deltatech Constr.,
LLC, 2019-0990, p. 7 (La. App. 4 Cir. 3/25/20), 294 So. 3d 564, 572. In a civil
suit, a contempt proceeding is civil in nature if the purpose of the proceeding is to
force compliance with a court order, but it is criminal in nature if the purpose is to
punish disobedience of a court order. Parish of Jefferson v. Lafreniere Park
Found., 1998-345, p. 8 (La. App. 5 Cir. 9/15/98), 720 So. 2d 359, 364 (citations
omitted). Civil contempt is remedial in nature and is imposed for the benefit of the
complainant, whereas criminal contempt is punitive in nature and meant to
vindicate the authority of the court. Streiffer, 2019-0990, p. 8, 294 So. 3d at 572
3 (quoting Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631, 108 S. Ct. 1423, 1429,
99 L.Ed.2d 721 (1988)). Furthermore, if the court orders that a fine be imposed, the
fine is considered remedial when it is paid to the complainant and punitive when it
is paid to the court. Id. (quoting Hicks ex rel. Feiock, 485 U.S. at 632, 108 S. Ct. at
In a civil contempt proceeding, the mover must prove the contempt through
a preponderance of the evidence. Id. at p. 9, 294 So. 3d at 573 (citing Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827, 114 S. Ct. 2552, 2557,
129 L. Ed.2d 641 (1994)). When a district court holds a party in civil contempt, the
appellate court will review the ruling under a manifest error standard and, if
sufficient evidence was presented, the appellate court will only reverse the ruling if
it can find that the district court abused its discretion. Id. at p. 9, 294 So. 3d at 573
(citations omitted). However, if the district court holds a party in criminal
contempt, the role of the appellate court is to review the evidence in a light most
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JUDE MARULLO * NO. 2023-CA-0157
VERSUS * COURT OF APPEAL EXTREME MOTOR SPORTS * OF NEW ORLEANS, LLC AND FOURTH CIRCUIT GEORGE ACKEL, III * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-04076, DIVISION “E” Honorable Omar Mason, Judge ****** Judge Nakisha Ervin-Knott ****** (Court composed of Judge Paula A. Brown, Judge Dale N. Atkins, Judge Nakisha Ervin-Knott)
David P. Vicknair Caitlin B. Carrigan James M. Montgomery, II SCOTT VICKNAIR, LLC 909 Poydras Street, Suite 2025 New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
Janna C. Bergeron ATTORNEY AT LAW 222 N. Vermont Street, Suite T Covington, LA 70433
COUNSEL FOR DEFENDANT/APPELLANT
VACATED AND REMANDED OCTOBER 25, 2023 NEK
PAB Appellant, Extreme Motor Sports of New Orleans, LLC (“Extreme”),
DNA appeals the district court’s judgment finding it to be in constructive contempt of
court and ordering it to pay $1,500.00 in attorney’s fees and $157.14 in court costs.
For the following reasons, we vacate the district court’s judgment and remand this
matter for further proceedings.
Relevant Facts and Procedural History
The underlying case involves a dispute over the transfer of a 2017 Jeep
Wrangler. In 2019, Appellee, Jude Marullo (“Marullo”), decided to purchase a new
Jeep Wrangler. Marullo wanted to trade in his older 2017 Jeep Wrangler in order to
reduce the taxes on his new purchase. Unsatisfied with the trade-in value from the
Chrysler dealership, Marullo made a deal with George Ackel (“Ackel”), wherein
Marullo would pay Ackel’s dealership, Extreme, $45,000.00 for it to pass through
to Chrysler. Chrysler then deducted the $45,000.00 from the sale price of the new
Jeep, thus reducing the taxable balance. The parties agreed that Ackel would not
buy the 2017 Jeep Wrangler. Rather, after the pass through was completed, Ackel
would attempt to sell the 2017 Jeep Wrangler on behalf of Marullo for $45,000.00.
However, when Ackel could not find a buyer for that price, Marullo requested that
1 the vehicle be transferred to another dealership. At this point, a dispute arose
between the parties regarding the transfer of the vehicle, and this suit followed.
On March 8, 2022, the parties appeared before the district court for a bench
trial. At the conclusion of the trial, the court ordered Extreme to return the Jeep to
Marullo within forty-five days of the rendition of the judgment. The court also
ordered Marullo to bear the responsibility of having the vehicle’s title transferred
back to his name. Per the court’s judgment, Extreme had until April 22, 2022, to
return the vehicle to Marullo. It is undisputed that this did not happen. Extreme did
not make the vehicle available for Marullo to pick up until April 26, 2022. The
next day, Marullo filed a motion for contempt.
The district court held a hearing on the motion for contempt on October 20,
2022, and granted the motion at the conclusion of the hearing. On November 10,
2022, the court issued a written judgment finding Extreme to be in constructive
contempt of court and ordering it to pay $1,500.00 in attorney’s fees and $157.14
in court costs. Extreme filed a devolutive appeal on January 9, 2023, and the
district court granted the appeal.
Assignment of Error
Extreme’s sole assignment of error is that the district court manifestly erred
in finding it to be in constructive contempt of court and ordering it to pay
attorney’s fees and costs.
Discussion
Contempt of Court, Generally
Contempt of court is “any act or omission tending to obstruct or interfere
with the orderly administration of justice, or to impair the dignity of the court or
respect for its authority.” La. C.C.P. art. 221. Direct contempt of court is either a
2 contempt committed in the presence of the court or a party’s failure to comply with
a subpoena or summons. See La. C.C.P. art. 222. Constructive contempt is “any
contempt other than a direct one.” La. C.C.P. art. 224. Constructive contempt
includes a party’s willful disobedience of a lawful judgment. Id. at (2). In order to
hold a party in constructive contempt, the district court must find that the party
committed the violation “intentionally, purposely, and without justifiable excuse.”
State through Dep’t of Child. & Fam. Servs. Child Support Enf’t v. Knapp, 2016-
0979, p. 13 (La. App. 4 Cir. 4/12/17), 216 So. 3d 130, 140 (quoting Burst v.
Schmolke, 2010-1036, p. 6 (La. App. 4 Cir. 4/6/11), 62 So. 3d 829, 833).
Nature of Contempt Proceedings
Our review of this case hinges on the nature of the contempt proceeding that
took place. “Contempt of court proceedings are either criminal or civil” in nature.
Succession of Bailey, 2020-0145, p. 5 (La. App. 4 Cir. 11/18/20), 311 So. 3d 422,
425 (citing Dazet Mortg. Sols. LLC v. Faia, 2012-486, p. 7 (La. App. 5 Cir.
4/10/13), 116 So. 3d 711, 717). To determine the nature of a contempt proceeding,
the appellate court must look to “the nature of the punishment imposed—that is,
whether the punishment is remedial or punitive.” Streiffer v. Deltatech Constr.,
LLC, 2019-0990, p. 7 (La. App. 4 Cir. 3/25/20), 294 So. 3d 564, 572. In a civil
suit, a contempt proceeding is civil in nature if the purpose of the proceeding is to
force compliance with a court order, but it is criminal in nature if the purpose is to
punish disobedience of a court order. Parish of Jefferson v. Lafreniere Park
Found., 1998-345, p. 8 (La. App. 5 Cir. 9/15/98), 720 So. 2d 359, 364 (citations
omitted). Civil contempt is remedial in nature and is imposed for the benefit of the
complainant, whereas criminal contempt is punitive in nature and meant to
vindicate the authority of the court. Streiffer, 2019-0990, p. 8, 294 So. 3d at 572
3 (quoting Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631, 108 S. Ct. 1423, 1429,
99 L.Ed.2d 721 (1988)). Furthermore, if the court orders that a fine be imposed, the
fine is considered remedial when it is paid to the complainant and punitive when it
is paid to the court. Id. (quoting Hicks ex rel. Feiock, 485 U.S. at 632, 108 S. Ct. at
In a civil contempt proceeding, the mover must prove the contempt through
a preponderance of the evidence. Id. at p. 9, 294 So. 3d at 573 (citing Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827, 114 S. Ct. 2552, 2557,
129 L. Ed.2d 641 (1994)). When a district court holds a party in civil contempt, the
appellate court will review the ruling under a manifest error standard and, if
sufficient evidence was presented, the appellate court will only reverse the ruling if
it can find that the district court abused its discretion. Id. at p. 9, 294 So. 3d at 573
(citations omitted). However, if the district court holds a party in criminal
contempt, the role of the appellate court is to review the evidence in a light most
favorable to the mover and determine whether the evidence “was sufficient for a
rational trier of fact to conclude that every element of the contempt charge was
proved beyond a reasonable doubt.” Billiot v. Billiot, 2001-1298, p. 5 (La.
1/25/02), 805 So. 2d 1170, 1174 (citing State in Interest of R.J.S., 493 So. 2d 1199,
1202 (La. 1986)). In a criminal contempt proceeding, the mover bears the burden
of proving the elements of the contempt beyond a reasonable doubt. See State v.
Mitchell, 2015-169, p. 4 (La. App. 5 Cir. 10/28/15), 178 So. 3d 203, 206 (citing
Hicks ex rel. Feiock, 485 U.S. at 632, 108 S. Ct. at 1429-30).
Did the district court err in finding Extreme to be in contempt of court?
Looking at the facts of the case, the contempt proceeding was civil in nature
because the only relief provided was attorney’s fees and court costs that were to be
4 paid to Marullo. The court did not impose a punitive fine for the benefit of the
court. As such, we review the district court’s ruling to determine whether Marullo
presented sufficient evidence for the district court to determine that Extreme
willfully violated the judgment.
At the hearing on the motion for contempt, Marullo bore the burden of
proving that Extreme defied the district court’s judgment intentionally, purposely,
and without a justifiable excuse. To do so, Marullo relied on emails attached to his
motion to prove Extreme’s willful disobedience. These emails show an exchange
between counsel regarding the transfer of the Jeep. However, Marullo failed to
formally introduce these emails into evidence. Courts cannot consider evidence
that has not been properly and officially offered and introduced. Landis Constr.
Co. v. State, 2015-1167, p. 3 (La. App. 1 Cir. 2/29/16), 199 So. 3d 1, 2-3 (citing
Denoux v. Vessel Mgmt. Servs., Inc., 2007-2143, p. 6 (La. 5/21/08), 983 So. 2d 84,
88). Documents that are attached to memoranda but not formally introduced are
not evidence. Id. Exhibits attached to a pleading are considered a part of that
pleading. La. C.C.P. art. 853. However, pleadings and attachments to motions are
not evidence. E.g. Andrews v. Marts, 2022-0576, p. 6 (La. App. 1 Cir. 11/15/22),
356 So. 3d 1059, 1063; Succession of Feingerts, 2017-0265, p. 11 (La. App. 4 Cir.
12/21/17), 234 So. 3d 1081, 1089. Even though these emails were attached to
Marullo’s motion and referenced at the hearing, they cannot be considered because
they were never formally introduced and admitted.
No other evidence was introduced at the hearing. There was nothing
properly before the district court for it to determine Extreme’s intention in failing
to timely return the Jeep. As such, we find that based on the lack of evidence
presented, Marullo failed to meet his burden, and the district court could not
5 conclude that Extreme willfully disobeyed its judgment. Thus, the district court
clearly erred in finding Extreme to be in constructive contempt of court. See Riley
v. Pennix, 442 So. 2d 563, 565 (La. App. 1st Cir. 1983) (citing Arceneaux v.
Domingue, 365 So. 2d 1330 (La. 1978) (“At the hearing, plaintiff formally
introduced neither testimonial nor documentary evidence tending to prove the
alleged fact of defendant’s wilful disobedience. . . . The finding of wilful
disobedience on the basis of a total absence of proof is clearly erroneous.”).
Decree
For the foregoing reasons, we hold that the district court erred in finding
Extreme to be in constructive contempt of court, vacate its judgment, and remand
the matter for further proceedings consistent with this opinion.
VACATED AND REMANDED