Kayode v. Midas Construction LLC

• Court: District of Columbia Court of Appeals
• Decided: April 11, 2024
• Docket: 21-CV-0561
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 21-CV-0561

EVELYN KAYODE, APPELLANT,

v.

MIDAS CONSTRUCTION, LLC, et al., APPELLEES.

Appeal from the Superior Court of the District of Columbia (2019-CA-007457-B)

(Hon. Fern Flanagan Saddler, Trial Judge)

(Submitted January 30, 2024 Decided April 11, 2024)

Evelyn Kayode, pro se.

E. Andrew Cole and Flora K. Lee were on the brief for appellees.

Before MCLEESE, HOWARD, and SHANKER, Associate Judges.

SHANKER, Associate Judge: Appellant Evelyn Kayode, proceeding pro se,

sued appellees Midas Construction, LLC, and its owner and president, Milos

Mihajlovic, in Superior Court, asserting claims for breach of contract, negligence,

and violations of the District of Columbia Consumer Protection Procedures Act

(“CPPA”) arising from Midas Construction’s renovation of Ms. Kayode’s property

in the District. The trial court dismissed the complaint on the ground that a 2

forum-selection clause in the parties’ contract specified Montgomery County,

Maryland, as the agreed-upon forum for any disputes related to the contract. That

dismissal is not before us.

The trial court also awarded the defendants attorneys’ fees and costs in the

amount of $14,462.27 pursuant to a contractual provision addressing breach of the

contract by the property owner; then, after Ms. Kayode failed to pay, the court held

Ms. Kayode in civil contempt, ordered her to immediately comply with its order

awarding attorneys’ fees, and entered a money judgment against her. That contempt

order is the subject of this appeal. Ms. Kayode, again proceeding pro se, argues that

the trial court exceeded its discretion in holding her in civil contempt. We agree and

reverse the trial court’s order holding Ms. Kayode in contempt because we conclude

that contempt is an inappropriate remedy for failure to pay an order awarding

attorneys’ fees and costs.

Background

A. Dismissal of the Complaint and Attorneys’ Fees Award

According to the complaint—which is not before us—Ms. Kayode and Midas

Construction entered into a contract in 2016 under which Midas Construction agreed

to renovate Ms. Kayode’s property in Southeast D.C. in exchange for payment in the 3

amount of $184,550. The complaint alleged that Midas Construction failed to

comply with the terms of the contract, failed to secure the appropriate construction

permits, and misrepresented its experience and skills, and it asserted claims for

breach of contract, negligence, and unlawful trade practices in violation of the

CPPA, D.C. Code § 28-3904.

The contract provided that “any action commenced to enforce the terms of

this Contract must be brought in the Courts situated in Montgomery County,

Maryland,” and Midas Construction moved to dismiss the complaint on that ground.

After holding a hearing, the trial court granted the motion, concluding that “the

parties specifically negotiated the instant forum selection clause and have evidenced

a clear intention to litigate any breach or threatened breach of the subject contract in

the courts of Montgomery County, Maryland,” and that Ms. Kayode had “failed to

provide any compelling argument as to why enforcement of the parties’ forum

selection clause would be unreasonable.”

As part of its motion to dismiss, Midas Construction also sought attorneys’

fees and costs pursuant to a provision of the contract stating that, in the event of a

breach by the property owner (Ms. Kayode) and a resulting legal dispute, Midas

Construction would be entitled to “all costs and reasonable attorney’s fees.” Midas

Construction argued that Ms. Kayode breached the contract by filing suit in the 4

District of Columbia rather than in Maryland. The trial court, in an order also not

before us, granted Midas Construction attorneys’ fees and costs totaling $14,462.27.

B. Civil Contempt

Three months after the trial court ordered Ms. Kayode to pay Midas

Construction’s attorneys’ fees and costs, Midas Construction moved for an order to

show cause why Ms. Kayode (who by then had retained counsel) should not be held

in constructive civil contempt, 1 or, in the alternative, for the court to reduce the

award to a judgment, asserting that Ms. Kayode had not paid the fees and costs and

that she and her counsel were not responding to Midas’s communications and

demands. The trial court issued an order to show cause and held two hearings.

After the second hearing, with Ms. Kayode not having paid the attorneys’ fees

and costs and the parties having failed to resolve the issue on their own, the trial

court held Ms. Kayode in civil contempt, stating that the “award of fees was clear

and unambiguous” and that Ms. Kayode had “not paid the attorneys[’] fees awarded

to Defendants by this Court.” The court added that Ms. Kayode had “not sufficiently

demonstrated that there has been any substantial performance, or that [she was]

1 “If the conduct constituting the contempt occurs out of the presence of the court, it may be further characterized as ‘indirect’ or ‘constructive’ contempt.” Thompson v. Thompson, 559 A.2d 311, 314 n.4 (D.C. 1989). 5

unable to pay the amount awarded.” The court thus held Ms. Kayode in civil

contempt, ordered her to “immediately come into compliance” with its order

awarding attorneys’ fees and costs, and entered a judgment against her in the amount

of $14,462.27. At the same time, the court “encourage[d] the parties to continue to

try and resolve this matter, and to come to a reasonable and feasible compromise, or

resolution of the matter concerning payment of fees and costs.” And the court denied

Midas’s request for additional attorneys’ fees and costs associated with legal work

following the court’s dismissal of Ms. Kayode’s complaint, stating that that request

“goes beyond compensation for losses sustained.”

This appeal followed.

Analysis

Before we may proceed to the merits, “[w]e [must] first determine whether

we have jurisdiction to entertain [this] appeal[ ].” Deloatch v. Sessoms-Deloatch,

229 A.3d 486, 488 (D.C. 2020). We conclude that we possess appellate jurisdiction

and, on the merits, we reverse the trial court’s contempt order.

A. Jurisdiction

“This court has consistently held that ‘where the trial court has imposed no

remedial or coercive sanction conditioned upon compliance with [a] contempt order, 6

an adjudication of civil contempt lacks the certainty, specificity, and finality

essential for judicial review.’” Crane v. Crane, 614 A.2d 935, 939 (D.C. 1992) (per

curiam) (quoting D.D. v. M.T., 550 A.2d 37, 42-43 (D.C. 1988)). “[T]he

embarrassment and unpleasantness of having been found in contempt, without more,

will not create a justiciable controversy, and . . . an individual so adjudicated does

not have the right to appeal simply to clear his or her name.” D.D., 550 A.2d at 43;

see Ashcraft v. Ashcraft, 318 A.2d 284, 285 (D.C. 1974) (“We notice also that the

trial court imposed no remedial or coercive sanction conditioned upon . . . obedience

to the contempt order. Consequently, the order lacks the certainty, specificity and

finality essential for judicial review.”). Accordingly, we must determine whether

the contempt order imposed either a coercive or a remedial sanction.

In our view, the contempt order imposed a remedial sanction upon

Ms. Kayode. The contempt order did three things. It (1) found Ms. Kayode in

contempt of the June 16, 2020, order awarding attorneys’ fees, (2) entered a

judgment against Ms. Kayode in the amount of $14,462.27, and (3) ordered

Ms. Kayode to “immediately come into compliance with” the court’s order. None

of these are coercive contempt sanctions because they are not conditional—that is,

they do not “afford[ ]” Ms. Kayode “an opportunity to purge” herself of the

contempt. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829

(1994) (using “a per diem fine imposed for each day a contemnor fails to comply 7

with an affirmative court order” as a paradigmatic example of a coercive civil

contempt sanction in the form of a fine); see D.D., 550 A.2d at 43 (conditional

imprisonment or conditional daily fine “are probably the most familiar sanctions in

civil contempt proceedings designed to coerce compliance with the mandate of the

court”). But the court’s order that Ms. Kayode “come into immediate compliance”

with its order and pay the $14,462.27 constituted a remedial sanction because it

sought to compensate Midas Construction “for losses sustained” in the course of the

litigation. Int’l Union, 512 U.S. at 829 (quoting United States v. United Mine

Workers of Am., 330 U.S. 258, 304 (1947)); see Giles v. Crawford Edgewood

Trenton Terrace, 911 A.2d 1223, 1224 (D.C. 2006) (“We likewise have recognized

that compensation is an appropriate remedial purpose of civil contempt.”).

It is true that the sanctions imposed by the contempt order are quite similar to

those already imposed in the initial attorneys’ fee award, which also totaled

$14,462.27. If the contempt order amounted to no more than a reiteration of the

prior award, we would likely lack appellate jurisdiction to review it because

Ms. Kayode would have suffered no new injury. Cf. Auger v. D.C. Bd. of Appeals

& Rev., 477 A.2d 196, 207 (D.C. 1984) (deeming an appeal moot because it sought

review of a “redundant” order). 8

The contempt order, however, broke new remedial ground. The initial

attorneys’ fee award created a judgment that Midas Construction could have

executed on after thirty days. See Super. Ct. Civ. R. 54(a) (“‘Judgment’ as used in

these rules includes a decree and any order from which an appeal lies.”); id.

R. 58(a)(3) (for purposes of entering judgment, “a separate document is not required

for an order disposing of a motion . . . for attorney[s’] fees”); id. R. 62(a) (“execution

on a judgment and proceedings to enforce it are stayed for 30 days after its entry,

unless the court orders otherwise”); see also D.C. Code § 15-301 (for purposes of

the statutory provisions relating to execution on a judgment, “‘judgment’ includes

an unconditional decree for the payment of money”). The contempt order’s

command that Ms. Kayode “immediately come into compliance with this Court’s

Order,” however, did something different. The command to comply with the order

immediately was a personal order compelling Ms. Kayode to take a specific act—

namely, pay the attorneys’ fee award. As a result, the order fell under D.C. Super.

Ct. Civ. R. 70. If Ms. Kayode were to violate that court order, she could expose

herself to a panoply of further contempt sanctions, such as conditional imprisonment

or fines. See D.C. Super. Ct. Civ. R. 70 (allowing a court to “hold the disobedient

party in contempt” if they fail to “perform any . . . specific act” ordered by the court).

That was not the case for the initial award of attorneys’ fees. That award constituted

a money judgment, which is governed instead by D.C. Super. Ct. Civ. R. 69. Rule 69 9

does not authorize contempt as a sanction for noncompliance but rather instructs

judgment holders to enforce their judgment “by a writ of execution, unless the court

directs otherwise.” Id. R. 69(a); see also D.C. Code § 15-307 (“A writ of fieri facias

issued upon a judgment of . . . the Superior Court of the District of Columbia is a

lien from the time of its delivery to the marshal upon all the goods and chattels of

the judgment defendant . . . .”). A “money judgment,” unlike a specific order by a

court to act, is “not a personal order to the defendant that is enforceable by

contempt.” 12 Richard L. Marcus, Federal Practice and Procedure § 3011 (3d ed.).

Because the court’s directive requiring immediate compliance as part of the

contempt order exposed Ms. Kayode to the possibility of future sanctions that were

unavailable in the absence of contempt, it constituted a contempt sanction sufficient

to create a justiciable controversy.

B. Merits

Having assured ourselves of our jurisdiction, we now proceed to the merits.

We hold that the trial court’s contempt order exceeded its discretion.

“Superior Court judges have express authority to ‘punish for disobedience of

an order or for contempt committed in the presence of the court.’” Eisenberg v.

Swain, 233 A.3d 13, 22 (D.C. 2020) (quoting D.C. Code § 11-944(a) (2012 Repl.)). 10

“In addition to its statutorily derived authority, the court retains a well-established

power to punish for contempt that is ‘inherent in the nature and constitution of a

court . . . arising from the need to enforce compliance with the administration of the

law.’” Id. (omission in original) (quoting Brooks v. United States, 686 A.2d 214,

220 (D.C. 1996)). “The decision whether to hold a party in civil contempt is

confided to the sound discretion of the trial judge[ ] and will be reversed on appeal

only upon a clear showing of abuse of discretion.” Id. (citing In re T.S., 829 A.2d

937, 940 (D.C. 2003)); see Wagley v. Evans, 971 A.2d 205, 210 (D.C. 2009) (“We

review an adjudication of civil contempt for abuse of discretion.”).

Contempt as a remedy for Ms. Kayode’s failure to pay the prior award of

attorneys’ fees and costs was beyond the trial court’s discretion here. As we have

already explained, the award of attorneys’ fees and costs constituted a money

judgment. See Super. Ct. Civ. R. 54(a); id. 58(a)(3). And money judgements should

be enforced by seeking a writ of execution or fieri facias. See id. R. 69(a); D.C.

Code § 15-307. Indeed, as we held in In re Estate of Bonham, “absent statutory

authority or exceptional circumstances, contempt in general, and the imposition of

imprisonment in particular, are not appropriate means to enforce a money judgment

or an award of counsel fees and costs.” 817 A.2d 192, 195 (D.C. 2003). 11

To be sure, our opinion in Bonham discussed “the ancient but now largely

discredited practice of imprisonment for debt,” id. at 194, and we focused primarily

on D.C. Code § 15-320(c), which provided (and still provides) that where a decree

only directs the payment of money, the defendant may not be imprisoned except

where otherwise permitted, id. But we spoke more broadly of the principle that,

where other adequate remedies, such as execution on the judgment, are available,

contempt “in general” is not an appropriate means to enforce a money judgment. Id.

at 195; see id. at 196 (the holder of the judgment for attorneys’ fees and costs failed

to “point to any exceptional circumstances or established principles that would allow

him to secure payment through contempt rather than by resort to a writ of execution

or other comparable remedies” (quotations omitted)); see also CFTC v. Escobio, 946

F.3d 1242, 1251-52 (11th Cir. 2020) (“Injunctions, and other coercive equitable

remedies, have historically been enforceable via the court’s civil contempt powers.

Money judgments, on the other hand, are enforceable ‘by a writ of execution, unless

the court directs otherwise.’” (quoting Fed. R. Civ. P. 69)). We are aware of no

special circumstances in this case that justify a departure from the ordinary course

and warrant the imposition of contempt.

The trial court permitted Midas Construction to enforce its money judgment

through contempt rather than the traditional process of obtaining a writ of execution

or fieri facias. In doing so, it exposed Ms. Kayode to the risk of additional future 12

penalties such as fines or even conditional imprisonment. Guided by our prior

decision in Bonham, we hold that the use of contempt as a remedy for the

nonpayment of a money judgment in this case exceeded the trial court’s discretion.

Our holding has no bearing on the pre-existing order awarding Midas attorneys’ fees

and costs.

Conclusion

For the foregoing reasons, we reverse the trial court’s order holding

Ms. Kayode in civil contempt.

So ordered.