# Holifield v. Mullenax Financial & Tax Advisory Group, Inc. > Court of Appeals of Arkansas · April 15, 2009 · 2009 Ark. App. 280 URL: https://www.frixlaw.com/law-library/cases/9621725 ## Case - **Full name:** Jeff HOLIFIELD, Appellant, v. MULLENAX FINANCIAL & TAX ADVISORY GROUP, INC., Appellee - **Court:** Court of Appeals of Arkansas - **Decided:** April 15, 2009 - **Citations:** 2009 Ark. App. 280; 307 S.W.3d 608; 2009 Ark. App. LEXIS 477 - **Precedential status:** Published - **Opinion:** Dissent by Marshall - **Judges:** John B. Robbins - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9621725 ## How later opinions describe it (automated extraction) - holding that an order was not specific enough to hold a litigant in contempt when ordered to submit to discovery on an “expedited basis,” but no time frame was otherwise specified ## Opinion text MARSHALL, J., dissenting. The question here is whether the circuit court’s decision holding Holifield in civil contempt for foot dragging during discovery is clearly against the preponderance of the evidence. Hunt v. Perry, 357 Ark. 224, 231 , 162 S.W.3d 891, 894 (2004) (standard of review). It is not. 1. For more than seven months, Holi-field was under the circuit court’s twice-repeated order to comply with discovery on “an expedited basis.” Early in that seven-month period, Holifield gave a deposition. He agreed, under oath, during his deposition to provide certain documents— tax returns, notes, and audio recordings. Holifield agreed to make production “not in the next couple of days, but soon.” It 18took seven months, two motions to compel, and at least one hearing to get Holi-field to fulfill his promise. Our court reverses Judge Brantley’s considered decision holding Holifield in contempt by concluding that the court’s discovery orders were not clear enough to put Holifield on notice of his discovery obligations. Our court stumbles. Of course an order must be definite about a party’s obligations to support a contempt citation for violating the order. Ivy v. Keith, 351 Ark. 269, 279 , 92 S.W.3d 671, 677 (2002). But definiteness depends on context. These orders were definite enough in the circumstances presented. We do not face a dispute about whether expedited meant production in ten days or twenty. In that context, the order would not be definite enough. Whatever the precise meaning of expedited may be, taking seven months to produce materials you’ve promised to turn over “soon” is not expediting anything. Holifield acknowledges that he knew what materials he had agreed to give his former employer. So there was no definiteness problem on what should have been produced. The question was when. The preponderance of the evidence supports the circuit court’s answer: delaying an agreed production of documents for months and months in the face of a repeated court order to respond to discovery expeditiously was contemptuous. lüOur court highlights the fact that Mul-lenax did not propound formal discovery under the Rules of Civil Procedure and suggests the necessity of doing so to make a contempt citation stick. I strongly disagree. And I am troubled by the message our court sends our Bar. Lawyers and parties should cooperate in discovery. They must do so. Our law should encourage discovery by agreement. In the best traditions of the Arkansas Bar, the lawyers here scheduled the depositions by agreement. There were no unexpected notices of deposition to produce one’s client somewhere next week. Counsel tried to follow the same collegial process about the documents. The record shows, however, that Holifield slow-walked production notwithstanding his lawyer’s efforts to follow through. Our court rules exist to help resolve lawsuits fairly, efficiently, and justly. But no rule can save us if lawyers and their clients do not work together to get the case resolved. We should not discourage this cooperation by requiring brothers and sisters at the Bar to blanket each other in paper discovery before a circuit court can sanction a party who broke his promise and violated a court order. Holifield’s conduct was troubling, as the circuit court found, for two more reasons. First, both parties were seeking summary judgment on an expedited basis. Holi-field’s materials were needed in that effort. Second, one of the recordings that Holi-field belatedly produced contains statements by Holifield that seem inconsistent |inwith his previously filed summary-judgment papers. These circumstances were an additional, and proper, basis for the circuit court holding Holifield (not his lawyer) in contempt. 2. The parties cite and wrestle with our recent decision in Applegate v. Applegate, 101 Ark.App. 289 , 275 S.W.3d 682 (2008), on whether this citation was for civil or criminal contempt. We should also take this opportunity to clarify the holding, and disavow some dicta, in Applegate. There, the court ordered a former spouse to pay various marital debts, but set no timetable or deadline for payment. We reversed a later contempt citation for nonpayment. Rightly so, because the order did not provide a clear and definite time for repayment. 101 Ark.App. at 294-95 , 275 S.W.3d at 686 . Moreover, the contempt citation contained no finding of wilful disobedience. Ibid. These holdings were correct. But Applegate also contains some loose words. The opinion suggests that an un-purgable fine payable to another party can never be civil contempt. 101 Ark.App. at 294 , 275 S.W.3d at 685-86 . This suggestion is wrong. Civil contempt is often remedial, requiring payment of attorney’s fees (for example) by a recalcitrant party to the party who needed discovery. Ap-plegate recognizes this law earlier in the opinion. 101 Ark.App. at 293 , 275 S.W.3d at 685 . The Supreme Court and the Arkansas Supreme Court have both been clear on this point too. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-32 , 108 S.Ct. 1423 , 99 L.Ed.2d 721 (1988); Omni Holding & Development Corp. v. 3D.S.A., Inc., 356 Ark. 440, 454 , 156 S.W.3d 228, 238 (2004). Civil contempt can be either “compensatory or coercive in nature. A compensatory penalty is a remedial fine to compensate one party for the other party’s noncompliance.” Terry Crabtree, Contempt Law in Arkansas, 51 ARK. L. Rev. 1, 4 (1998). Most Rule 37 sanctions present this kind of situation. We should therefore address and reject Applegate’s dicta, which mistakenly says that civil contempt cannot include non-purgable fines payable to the other party. The fine assessed by the circuit court here, for example, presents precisely this situation: the $500.00 in attorney’s fees was to compensate Mullenax for, and thus remedy, Holifield’s noncompliance with the court’s expedited-discovery order. Judge PITTMAN and I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9621725. Public record. Not legal advice.