This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1517

Coco’s Heart Dog Rescue,

Respondent,

vs.

Ann Marie Hawthorne,

Appellant.

Filed April 13, 2015

Affirmed

Hooten, Judge

Washington County District Court

File No. 82-CV-14-2100

John C. Conard, Brian R. Christiansen, Hellmuth & Johnson, PLLC, Edina, Minnesota 

(for respondent)

Barry S. Edwards, Barry S. Edwards Law Offices, Minneapolis, Minnesota (for 

appellant)

Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and 

Hooten, Judge. 

U N P U B L I S H E D O P I N I O N

HOOTEN, Judge

Appellant challenges the district court’s decision to hold her in contempt of court, 

asserting that the district court erred by designating the proceeding as one involving a 

constructive civil contempt, instead of constructive criminal contempt, and, in doing so, 
2

failed to provide her with the required procedural safeguards. Because the district court 

did not err by using its constructive civil contempt powers to conduct this proceeding and 

impose accompanying sanctions, and because the district court considered and rejected 

appellant’s criminal contempt arguments before holding her in contempt, we affirm.

FACTS

This case arises from a dispute between appellant Ann Marie Hawthorne and 

respondent Coco’s Heart Dog Rescue over the ownership of a rescue dog named Dixie. 

In January 2014, Hawthorne signed a foster-home agreement with Coco’s Heart, in which 

she agreed to temporarily care for and house rescue dogs while Coco’s Heart attempted to 

place the animals with permanent owners. Sometime after she signed the agreement,

Hawthorne began providing foster care to Dixie for Coco’s Heart. The parties eventually 

disagreed as to the proper course of veterinary care for Dixie, and Coco’s Heart 

attempted to regain possession of Dixie. Hawthorne refused to return Dixie; instead, she 

claimed ownership of the dog and sought to transfer Dixie to another rescue agency.

In April 2014, Coco’s Heart brought a replevin action against Hawthorne for the 

wrongful possession of Dixie. In conjunction with a motion seeking to recover Dixie 

from Hawthorne prior to a hearing under Minn. Stat. § 565.24, subd. 1 (2014), the 

executive director of Coco’s Heart submitted an affidavit, along with the foster-home 

agreement with Hawthorne and other supporting documents, in which she explained that

according to the terms of the agreement, Dixie was owned by Coco’s Heart, Hawthorne 

could not adopt Dixie unless such adoption was approved by Coco’s Heart, and that 
3

Hawthorne could not transfer Dixie to another rescue facility or home. There is nothing 

in the record on appeal indicating that Hawthorne responded to this motion. 1

On May 1, 2014, the district court held a review hearing and ordered Hawthorne to

either return Dixie or deposit a $700 bond subject to three conditions: (1) Dixie being 

alive and well; (2) Dixie would not be transferred or transported to any other person or 

entity absent a court order; and (3) Hawthorne was to appear before the district court on 

May 7, 2014. Hawthorne did not return Dixie or post a bond, but appeared with her 

attorney at the May 7 hearing. After that hearing, the district court ordered Hawthorne to 

surrender Dixie to Coco’s Heart. The district court further ordered that the Oakdale 

Police Department and a person from Coco’s Heart were to retrieve Dixie from 

Hawthorne’s home and, in the event Hawthorne did not surrender the dog or disclose 

where the dog was, Hawthorne was to personally appear before the district court on May 

9 and show cause as to why she should not be held in contempt. Hawthorne did not post 

a bond, surrender Dixie, or disclose Dixie’s whereabouts. 

Coco’s Heart moved the district court for an order of contempt against Hawthorne 

and requested damages and attorney fees under Minn. Stat. § 588.11 (2014). In response 

 

1

The record does not contain any transcripts of any of the hearings that took place before 

the district court. It is appellant’s responsibility to order a transcript “of those parts of the 

proceedings not already part of the record which are deemed necessary for inclusion in 

the record.” Minn. R. Civ. App. P. 11.02, subd. 1(a). When an appellant fails to provide 

a transcript, appellate review is “limited to whether the trial court’s conclusions of law 

are supported by the findings.” Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 

(Minn. App. 1995). Accordingly, the record on appeal consists of the written 

submissions of the parties to the district court and the district court orders.
4

to this motion for contempt, an evidentiary hearing was held on June 9, 2014. At the 

hearing, both parties were represented by counsel. 

According to the July 7 district court order issued after the hearing, Hawthorne

testified that she had not returned Dixie because she was confused as to the requirements 

of the district court’s May 7 order. Hawthorne further claimed that Dixie had been stolen 

from her home shortly after the May 7 hearing and that she had reported this theft to the 

police. However, the district court found that there was no “legitimate dispute” about the 

ownership of Dixie, Hawthorne’s understanding of its orders, or whether Dixie was 

“stolen.” In finding that Hawthorne’s testimony lacked credibility, the district court 

pointed out several inconsistencies in her testimony about the theft of Dixie, including the 

fact that nothing else in her home was stolen, even though there were expensive 

electronics in the home, there were no signs of forced entry, and her claim that she had 

earlier lost her house keys and garage door opener was not communicated to the police

when she reported the theft. The district court also found that in addition to the lack of 

evidence corroborating her story, Hawthorne had posted on the Internet soon after the 

May 7 hearing that she had been ordered to surrender Dixie and “fear[ed] for this dog’s 

safety,” contradicting her testimony that she wanted to return the dog to Coco’s Heart. 

The district court made a preliminary determination that Coco’s Heart had incurred a 

minimum of $4,550 in damages and attorney fees.

Based upon these findings and conclusions regarding Hawthorne’s “incredible 

testimony,” the district court held her in contempt for failure to comply with its prior

orders and sentenced her to 90 days in jail, with the sentence to commence on August 18, 
5

2014. The contempt order further provided that Hawthorne could purge the contempt and 

not have to serve the 90-day jail sentence if she either surrendered Dixie to Coco’s Heart

or paid damages and attorney fees to Coco’s Heart by August 18, 2014. 

After leaving the record open for further submissions only on the issue of attorney 

fees, the district court entered an award of damages and attorney fees in favor of Coco’s 

Heart in the amount of $4,550 on August 27 and ordered that “all other conditions and 

findings and conclusions” in its July 7, 2014 order “remain[ed] in full force and effect.” 

In accordance with the district court’s order that there was to be no “further reason for

delay,” judgment was entered on August 28, 2014. There is no evidence in the record 

that Hawthorne paid the damages and attorney fee award or returned Dixie to Coco’s 

Heart, and the record indicates that she began her sentence on the contempt finding and 

brought this appeal.

D E C I S I O N

I.

After Hawthorne’s appeal was filed, this court ordered the parties to serve and file 

informal memoranda addressing whether the issues raised in Hawthorne’s brief were 

presented to and decided by the district court and, if not, whether the appeal should be 

dismissed on the ground that Hawthorne improperly raises issues for the first time on 

appeal. The primary argument Hawthorne raises in this appeal is that the district court 

erred in treating her constructive contempt proceeding as a civil contempt, rather than a 

criminal contempt, and that she was not afforded the procedural safeguards afforded in a 

constructive criminal contempt proceeding. 
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It appears from the record that shortly after the evidentiary hearing, the parties 

filed submissions with the district court on June 30, 2014. In a proposed order, 

presumably submitted by Hawthorne’s attorney, there is a finding that Coco’s Heart 

“appeared to be seeking a criminal sanction” for contempt, and also a conclusion of law 

stating that “when a party faces criminal sanctions for constructive contempt, her case 

‘should not be prosecuted by attorneys other than those representing the state,’” quoting 

Peterson v. Peterson, 278 Minn. 275, 281, 153 N.W.2d 825, 830 (1967). The submission 

proposed that the motion for contempt would be denied and the replevin action would be

dismissed without prejudice. In the district court’s subsequent July 7 contempt order, it 

cited numerous civil cases in support of its conclusion that the hearing involved 

constructive civil contempt and that it had “the power to punish contempt by fine and/or 

imprisonment” under Minn. Stat. § 588.02 (2014).

We conclude, based upon this proposed order and the district court’s July 7 

contempt order, that Hawthorne’s argument on appeal was presented to the district court,

and the district court implicitly considered and rejected Hawthorne’s argument by 

specifically finding that this was a constructive civil contempt proceeding which included

imprisonment if the purge conditions were not satisfied.

2 Accordingly, we may review 

these issues here. See Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn. 

 

2

The July 7 contempt order only left the record open for the parties’ submissions 

regarding damages and attorney fees. Because the district court had already ruled on the 

contempt motion in its July 7 order, it was not necessary for the district court to 

reconsider these same issues in its August 27 order. In fact, the later order provided that 

other than the confirmation of the award of damages and attorney fees, “[a]ll other 

conditions and findings . . . in [the] order dated July 7, 2014 remain in full force and 

effect.” 
7

2001) (“[A] reviewing court generally may consider only those issues that the record 

shows were presented to and considered by the [district] court.”).

II.

Hawthorne’s primary argument on appeal is that the district court erred in its 

contempt order by imposing criminal, not civil, contempt conditions without following 

criminal contempt procedures. We review a district court’s use of contempt powers for 

an abuse of discretion and reverse the fact findings of a contempt order only if those 

findings are clearly erroneous. In re Welfare of J.B., 782 N.W.2d 535, 538 (Minn. 2010).

Both parties acknowledge that the district court correctly found constructive 

contempt in this case, but Hawthorne contends that the sanctions imposed by the district 

court show that the contempt was criminal in nature. We look to “the court’s purpose in 

sanctioning the contemnor” in determining whether contempt is civil or criminal. State v. 

Martin, 555 N.W.2d 899, 900 (Minn. 1996). Contempt designed to punish past 

misconduct is traditionally regarded as criminal contempt, id., while “[c]ivil contempt 

sanctions are intended to operate in a prospective manner and are designed to compel 

future compliance with a court order.” Mower Cnty. Human Servs. v. Swancutt, 551 

N.W.2d 219, 222 (Minn. 1996) (quotation omitted). The civil form of the underlying 

proceeding and the contempt order’s use of a “purge provision” are two indications that a 

contempt order is civil, not criminal. Id. A contempt order that includes a determinate 

jail sentence is civil in nature if accompanied by a purge clause. See id.

Hawthorne argues that the contempt order was criminal because it contained no 

real purge clause, as her only options were to “go to jail or pay attorney’s fees,” and that 
8

she could not purge the contempt by producing a dog that was stolen from her. She also 

alleges that the determinate 90-day jail sentence renders the order criminal. But, 

Hawthorne misstates the conditions of the district court’s order, and an examination of 

the order shows that it was civil in nature. 

Both the district court’s July 7 and August 27 orders made clear that Hawthorne 

could purge the contempt by returning Dixie to Coco’s Heart:

Pending entry of a money judgment against 

[Hawthorne,] [Hawthorne] may rid her[self] of this contempt 

finding and satisfy the same and not have an obligation to pay 

to [Coco’s Heart] any further money judgment by securing 

and delivering to [Coco’s Heart] the live dog Dixie . . . .

Both orders then provided that Hawthorne “shall be deemed to have fully complied with 

this contempt order,” with the required payment and jail sentence vacated, if she returned 

Dixie to Coco’s Heart. Contrary to Hawthorne’s contentions, she merely needed to 

return Dixie to Coco’s Heart in order to avoid the contempt sanctions. And while she 

claims that such return was impossible due to the alleged theft of Dixie from her home, 

the district court rejected her testimony that the dog had been stolen. Because Hawthorne

failed to order a transcript of that hearing, she cannot challenge this finding on appeal. 

See Mesenbourg, 538 N.W.2d at 494. Even if she could dispute the district court’s 

findings, we would defer to the district court’s determination that her claim that Dixie 

was stolen lacked credibility. See Szarzynski v. Szarzynski, 732 N.W.2d 285, 298 (Minn. 

App. 2007). The existence of the purge clause also refutes her contention that the 

determinate 90-day sentence set by the district court indicates criminal contempt. See 

Mower Cnty., 551 N.W.2d at 222. A final indication of civil contempt is that the order 
9

grew out of a civil replevin action, not a criminal prosecution. See id. (providing that 

underlying proceeding was a civil matter). 

We conclude that the district court’s contempt orders were civil, not criminal in 

nature, as they were designed “to induce future performance of a valid court order, not to 

punish for past failure to perform.” Zaldivar v. Rodriguez, 819 N.W.2d 187, 196 (Minn. 

App. 2012) (quotation omitted). Hawthorne held “the keys to the jail,” Mower Cnty., 551 

N.W.2d at 224, and her continued unwillingness to comply with the district court’s 

mandate that she return Dixie to Coco’s Heart does not transform this civil contempt into 

criminal contempt. The district court did not abuse its discretion by holding Hawthorne 

in constructive civil contempt.

III.

Hawthorne further argues that the district court did not follow required dueprocess procedures in holding her in contempt. Because we conclude that the district 

court held her in constructive civil contempt, we address only her arguments as to civil 

contempt. While the full panoply of criminal due-process protections are not required in 

civil contempt proceedings, “notice and an opportunity to be heard” must be afforded to 

contemnors. Id. at 223. Minnesota caselaw has expanded the notice and hearing 

requirements and prescribed that a civil contempt proceeding must meet the following 

requirements:

(1) the court has jurisdiction over the subject matter 

and the person;

(2) a clear definition of the acts to be performed;

(3) notice of the acts to be performed and a reasonable 

time within which to comply;
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(4) an application by the party seeking enforcement 

giving specific grounds for complaint;

(5) a hearing, after due notice, to give the 

nonperforming party an opportunity to show compliance or 

the reasons for failure;

(6) a formal determination by the court of failure to 

comply and, if so, whether conditional confinement will aid 

compliance;

(7) an opportunity for the nonperforming party to show 

inability to comply despite a good faith effort; and

(8) the contemnor’s ability to gain release through 

compliance or a good faith effort to comply.

Id. (quotation omitted). 

Hawthorne cites these requirements in her brief, but provides no argument that the 

district court failed to meet any one of them. Therefore, she appears to have waived this 

claim. See In re Estate of Rutt, 824 N.W.2d 641, 648 (Minn. App. 2012) (“An 

assignment of error in a brief based on mere assertion and not supported by argument or 

authority is waived unless prejudicial error is obvious on mere inspection.” (quotation 

omitted)), review denied (Minn. Jan. 29, 2013). 

Even if we were to address this issue, there is no indication that the district court 

failed to follow the procedural requirements of constructive civil contempt. The district 

court clearly ordered the return of the dog, the subject of the replevin action, and gave 

Hawthorne ample opportunity to comply. She failed to do so, Coco’s Heart moved to 

have her held in contempt, and the district court held a hearing at which Hawthorne was 

given an opportunity to explain her failure to comply. The district court found that 

Hawthorne could not reasonably explain her noncompliance and determined that a jail 

sentence and reimbursement to Coco’s Heart would induce future compliance, while 
11

allowing Hawthorne to purge those sanctions if she returned Dixie. It was only because 

of Hawthorne’s failure to comply with either of the two purge conditions that she had to 

serve her jail sentence for contempt. We conclude that there is no showing that the 

district court failed to satisfy the procedural requirements of constructive civil contempt.

Affirmed.