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Zebert v. Guardianship of Baker

Court of Appeals of Mississippi

January 7, 2014

Jason ZEBERT, Appellant
v.
In the Matter of the GUARDIANSHIP OF Thomas E. BAKER, Appellee.

Page 973

Wayne Milner, attorney for appellant.

Harry Jones Rosenthal, attorney for appellee.

Before LEE, C.J., BARNES, and FAIR, JJ.

BARNES, J.

¶ 1. In 2000, the Rankin County Chancery Court appointed attorney Jason Zebert guardian over the person and estate of Thomas E. Baker. Zebert posted a bond for $35,000. From 2000 to 2008, Zebert provided the chancery court with required yearly accountings, which the court approved. However, in early 2009, Zebert failed to provide the chancery court with the eighth accounting (for the period beginning October 1, 2007, and ending September 30, 2008). An order to show cause for the past-due accounting was issued by Chancellor John Grant III on April 8, 2009. The order required Zebert to appear before the court on June 1, 2009. Several continuances (in response to Zebert's motions) were granted throughout the next year. In one of the motions for a continuance, Zebert asked to be replaced as guardian. Harry Rosenthal was appointed guardian over Baker and his estate on September 2, 2009.

¶ 2. On October 4, 2010, two years after the accounting was due, Zebert filed a " Petition Exhibiting Eighth Accounting of Estate." However, the petition only covered the period from October 1, 2007, to December 31, 2007. For the next several months, three more continuances for the " show cause" hearing were entered. On June 27, 2011, Judge Grant issued another show-cause order, requiring Zebert to appear for a hearing on July 26, 2011. After the hearing, Judge Grant found that the proper annual accounting had not been filed and approved. In his order dated July 26, 2011, Judge Grant found Zebert in contempt and ordered him to be incarcerated; the chancellor suspended the incarceration, however, until August 4, 2011, to allow Zebert time to " fil[e] and hav[e] approved all annual accounting(s) that are past due in this cause[.]"

¶ 3. Zebert subsequently filed a motion for the recusal of Judge Grant. On August 4, 2011, Judge Grant once again stayed Zebert's incarceration, this time until September 8, 2011, to allow Zebert and his counsel " additional time in which to prepare and present to the Court past due annual accountings that have not been properly filed or approved." A few days later, on August 8, Judge Grant recused himself, appointing the Honorable Dan Fairly to hear the matter. The order also sealed the prior orders of contempt (July 26, 2011; August 4, 2011) and the current August 8, 2011 order from public viewing until further order of the chancery court.

¶ 4. On September 8, 2011, Zebert filed another accounting " for the period beginning October 1, 2007, and ending July 27, 2011." It was in this accounting that Zebert noted that he had made " disbursements of $44,468.83 and $133,749.92 in loans extended on behalf of the Estate." It was also noted that at the beginning of the accounting period, Baker's account at First Commercial Bank held $164,909.93; at the end of the accounting period, the account only held $6,555.50. Attached as exhibits to the petition for accounting were spreadsheets of the account's income/expenses for this period. A short hearing

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was held before Judge Fairly, who ordered Zebert to provide all outstanding bank statements for Baker's account. Zebert told the chancellor that all remaining documentation would be available by September 19.

¶ 5. Yet, on that date, Zebert still had not provided bank statements, but merely copies of the checks for the vouchers. Consequently, Judge Fairly found Zebert in contempt for failure to present an acceptable accounting and fined him $1,500. The chancellor also continued " all other matters in this cause, including but not limited to the other findings of contempt and incarceration" until the next hearing on October 3, 2011, at which time the chancery court " expect[ed]" Zebert to produce bank statements and copies of cancelled checks. In a supplement to the accounting, filed that same day, Zebert explained that without obtaining the chancery court's approval, he had disbursed funds totaling $133,749.92 from Baker's estate for three different loans, all at five percent interest: (1) $75,000 to Sherri Baggett and Jimmie Susan Fowler from January 2008 to January 15, 2012; [1] (2) $37,000 to Fowler, payable January 15, 2012; and (3) $21,749.92 " made/advanced" to Fowler, payable January 15, 2012. Fowler was Zebert's employee; Baggett was a female acquaintance of Zebert's. As already noted, these disbursed funds reduced the assets of the estate from approximately $165,000 to $6,555.50. [2] The supplement also stated that the loans were secured by an interest in land located in Rankin County, Mississippi, with a value in excess of $350,000. However, although a description of the property was attached, there was no deed of trust for the property provided with the supplemental accounting.

¶ 6. Another show-cause hearing was held on July 18, 2012. At that hearing, Zebert was questioned about the unapproved disbursements from the estate, which he claimed involved loans to an employee and a female acquaintance. Zebert confessed he had not obtained approval from the court to make the disbursements. He also claimed that documentation regarding the disbursements had been inadvertently destroyed by water damage to his office during a storm. [3]

¶ 7. Judge Fairly found Zebert in civil contempt. He ordered Zebert to jail " until he purges himself of such contempt." Zebert, who is still incarcerated, appeals the order, claiming that the order of contempt was criminal in nature, rather than civil, and must be reversed since it is impossible for him to comply with the chancery court's order.[4] Finding no error, we affirm.

Page 975

STANDARD OF REVIEW

¶ 8. A chancellor's finding of contempt is reviewed for manifest error. Jones v. Mayo, 53 So.3d 832, 838 (¶ 21) (Miss.Ct.App.2011).

The decision to hold a person or entity in criminal or civil contempt ... is a discretionary function of the [chancery] court. Issues of contempt are questions of law to be decided on a case-by-case basis. Regarding a determination of contempt, a [chancery] court due to its temporal and physical proximity to the parties is infinitely more competent to decide the matter.

Corporate Mgmt. Inc. v. Greene Cnty., 23 So.3d 454, 466 (¶ 32) (Miss.2009) (internal citations and quotations omitted).

DISCUSSION

I. Whether the order of contempt issued by the chancellor was civil or criminal in nature.

¶ 9. At the hearing on July 18, 2012, Judge Fairly found Zebert to be in civil contempt " by clear and convincing evidence." The chancellor summarized:

You have woefully failed to properly account to this court, Mr. Zebert. This court has been abundantly patient with you. I can't imagine why ... Judge Grant didn't put you in jail [a] long time ago, because that's where you are going today. Until you properly account to this court for every penny of this man's money, you're going to sit over there in the Rankin County jail.
I adjudicate you to be in willful and contumacious contempt. I'm reinstating Judge Grant's Order incarcerating you; and you're going to jail, sir, until you account for every penny.

Zebert responded, " I understand what a proper accounting is, and I certainly can put that together" ; however, he later questioned the chancery court as to how he could accomplish that task while incarcerated. The chancellor said that was Zebert's problem to solve. The corresponding " Order of Contempt and Incarceration" stated that Zebert was " to present and have approved an accounting in this cause." (Emphasis added).

¶ 10. " The purpose of civil contempt is to compel compliance with the court's orders, admonitions, and instructions, while the purpose of criminal contempt is to punish." In re McDonald, 98 So.3d 1040, 1043 (¶ 5) (Miss.2012) (quoting Graves v. State, 66 So.3d 148, 151 (¶ 11) (Miss.2011)).

The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor's sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor " carries the key to his cell in his own pocket."

Page 976

On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court.

Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987) (citation omitted). A criminal-contempt penalty " [is] designed to punish the contemnor for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with the court order." C.K.B. v. Harrison Cnty. Youth Court, 36 So.3d 1267, 1273 (¶ 16) (Miss.2010) (quoting Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 868 (¶ 35) (Miss.2004)).

¶ 11. On appeal, Zebert claims that it is " factually and legally impossible" for him to present an approved accounting since he admittedly misappropriated funds from the estate and " perpetuated a fraud on the court." He also says compliance with the chancery court's order is physically impossible since, from jail, he has no access to the necessary documentation. Zebert therefore contends that since it is impossible for him to comply with the chancellor's directive, he was subjected to " constructive" criminal contempt, which requires the chancery court to provide him with " procedural due process safeguards." See Davis v. Davis, 17 So.3d 114, 120 (¶ 23) (Miss.Ct.App.2009). Zebert also argues that Judge Fairly should recuse himself since the record reflects that Judge Fairly had a personal bias against him.

¶ 12. Judge Fairly's reasoning for remanding Zebert into custody was to compel compliance with his order to present a proper accounting of funds. Judge Fairly never stated during the hearing that Zebert had to have an approvable accounting; he said that Zebert needed to provide a " proper" accounting. However, as already noted, the order for contempt and incarceration did state that Zebert was required " to present and have approved an accounting in this matter[.]" The footnote in the order further stated:

While accountings have been presented, none have been approved by the Court. All of the presented accountings and supplements fall woefully short of the statutorily required information necessary for the Court to approve same. Vouchers, presented by Mr. Zebert after being previously ordered by the Court, showed unauthorized and unapproved expenditures made by Jason T. Zebert.

This is the basis for Zebert's assertion that he cannot provide an accounting that would be approved, due to the misuse of funds.

¶ 13. We find no merit to Zebert's claims that the order was criminal in nature and that he is unable to comply with the order.[5] This is not a situation

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where Zebert owes money that he is not able to pay; he is merely being required to provide a statement of all income and disbursements to and from Baker's trust account, together with all his paperwork related to his management of Baker's funds from October 2007 to September 2008. Zebert even stated at the July 18, 2012 hearing that he would be glad to provide " whatever information, documentation, or accounting the court wishes to be presented." Yet, over one year later, the record is still devoid of any documentation as to where the misappropriated funds have gone. Despite the chancery court's language in the order, it is apparent from the record that Judge Fairly knew there were unapproved expenditures; he merely wanted Zebert to provide the documentation that would evidence where the funds went. Although Zebert claims nothing further could be gained by another accounting, we observe that appellate counsel for Zebert could not state with certainty that Zebert has provided all the documentation that he has. The fact remains that the only accounting for the period at issue in this case is incomplete and contains evidence of fraud. Zebert admits to being solely responsible for the missing funds; appellate counsel emphatically stated to the Court that Zebert was the " person who took the money and had it at his disposal." [6]

¶ 14. The dissent notes Zebert has a Fifth Amendment right not to incriminate himself by admitting to the embezzlement of funds. However, Zebert has invoked no such privilege and has not raised as an issue on appeal any deprivation of his constitutional rights. Furthermore, had he wished to invoke this privilege, Zebert should have done so starting with the first order by Judge Grant requesting the overdue accounting. It is generally held that any invocation of the privilege must be made at the outset. " The privilege [against self-incrimination] is not ordinarily self-executing[; ] it must be affirmatively claimed when self-incrimination is threatened, and a defendant may lose its benefit inadvertently, without making a knowing and intelligent waiver, simply by failing to invoke it." State v. Richard, 697 A.2d 410, 415 (Me.1997) (emphasis added) (citing Minnesota v. Murphy, 465 U.S. 420, 427-28, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)).[7]

Page 978

¶ 15. This Court also finds it a bit disingenuous for Zebert to assert that his incarceration makes it physically impossible to comply. Zebert had hired an attorney, Melissa Gardner Warren, to represent him at his initial " show cause" hearings. Judge Grant entered a continuance, staying Zebert's incarceration, on August 4, 2011, based on Warren's request that she be allowed to assist Zebert with preparing the accounting. Yet no explanation has been provided why the accounting was not completed at that time with Warren's assistance. Rosenthal, counsel for the Appellee and successor guardian to the estate, contends that the request by the chancellor " can be simply done, and would require less than three (3) days to prepare and present the same ... for the Court['s] review[.]" He also reported during oral argument before this Court, without objection, that he even visited the jail and offered to help Zebert, but was refused.

¶ 16. Although Zebert argues it is necessary that he be released from incarceration to address the pending federal charges against him, we are obliged to respect the chancery court's role " to act as the superior guardian" to those suffering from disability who are unable to act for themselves. In re Wilhite, 121 So.3d 301, 305 (¶ 11) (Miss.Ct.App.2013) (quoting Carpenter v. Berry, 58 So.3d 1158, 1163 (¶ 19) (Miss.2011)).

The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents[; ] and in general[,] will and must take all necessary steps to conserve and protect the best interest of these wards of the court.

Id. at 306 (¶ 11) (emphasis added) (quoting Carpenter, 58 So.3d at 1163 (¶ 19)).

¶ 17. Judge Fairly has aptly summarized Zebert's continuing unwillingness to provide what the chancery court has requested. At the hearing on September 19, 2011, when Zebert only provided copies of the checks to the court, instead of the requested bank statements, Judge Fairly said:

It is just positively clear you've been playing games with the court, Mr. Zebert. And, you know, you are purposely— I made— I couldn't have said bank statements— I bet I said it ten times when we were last here in court [on September 8, 2011], because there's no way I can do a reconciliation of that without the bank statements.

Subsequently, on November 14, 2012, Judge Fairly submitted a response to a

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motion for writ of habeas corpus filed by Zebert, concluding:

The Court had before it an abundance of evidence to find Zebert in willful and contumacious contempt of Court and ordered him jailed. Zebert committed a fraud upon the Court. He stole Baker's money. But that is not why he remains in jail. He remains in jail and, to the extent this Court has the power, will remain in jail until he gives the Court a full and complete accounting of all the funds which he wrongfully expended and, since he has failed to account for the money, presumably stolen. He offered no explanation as to where the money went that he transferred electronically to one of his personal accounts. This Court wants to ...

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