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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS 

Brian A. Lee,

Petitioner Below, Petitioner

vs) No. 12-0809 (Monongalia County, 05-C-429)

Anne Davis,

Respondent Below, Respondent 

MEMORANDUM DECISION

Petitioner Brian A. Lee, by counsel Edmund Rollo, appeals the order of the Circuit Court of 

Monongalia County. Respondent Anne Davis, by counsel Ward Stone, Jr., has filed a response to the 

present appeal.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided by oral 

argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court 

finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is 

appropriate under Rule 21 of the Ru1es of Appellate Procedure.

On May 9, 2005, respondent obtained a $500,000 judgment against petitioner as damages for 

infecting the respondent with HIV. Petitioner was unable to satisfy the judgment. Petitioner’s mother died 

in December of 2005, and petitioner subsequently was informed he would receive $374,000 from his 

mother’s estate. Petitioner claimed in a deposition in December of 2007 that he had given his inheritance 

anonymously to 3,997 charities and no longer had any of the money. Another deposition was conducted 

and the evidence set forth by petitioner did not support the allegation that he had donated any of the 

money.

On June 11, 2008, respondent filed a motion for contempt and order to show cause, and the 

circuit court held petitioner in civil contempt for failure to provide his cellular phone billing records 

pursuant to respondent’s request. Petitioner was ordered to produce evidence to support his assertion that

he did, in fact, give the money away, and was ordered to answer interrogatories, but he refused to do so. 

Respondent filed a notice of petitioner’s failure to file answers to respondent’s interrogatories. A capias

for petitioner’s arrest was issued and petitioner was incarcerated on November 9, 2009. The court then 

ordered petitioner to produce corroborating evidence that he anonymously gave away his inheritance to 

charities. He failed to do so and, on July 21, 2010, petitioner was held in civil contempt and ordered to 

report to prison and remain there until he pays the sum of $363,000 to respondent. Petitioner later moved 

the court to dissolve the contempt order, and the court denied that motion by order entered on May 18, 

2012.

FILED 

December 16, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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Petitioner appealed the circuit court’s order denying his motion to dissolve the contempt 

order. We apply the following standard of review: 

In reviewing the findings of fact and conclusions of law of a circuit court

supporting a civil contempt order, we apply a three-pronged standard of review. 

We review the contempt order under an abuse of discretion standard; the

underlying factual findings are reviewed under a clearly erroneous standard; and

questions of law and statutory interpretations are subject to a de novo review. 

Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239, 241, 470 S.E.2d 193, 195 (1996). 

Petitioner asserts three assignments of error. First, petitioner argues that the trial court 

erred in refusing to release petitioner from incarceration on the basis of petitioner’s medical 

condition. Second, petitioner argues that the trial court committed plain error when it imposed a 

contempt sanction that seemed “criminal” in nature and not “civil”. Last, petitioner argues that 

the court erred in refusing to find that the civil contempt order had lost its coercive effect. 

We begin with petitioner’s first assignment of error. On November 17, 2012, petitioner 

filed a motion for bond reduction or, in the alternative, motion for home confinement. On 

December 17, 2012, a hearing was held regarding the motion and the evidence presented 

showed that petitioner’s health status required his release from prison. On December 18, 2012, 

he was released and placed on home confinement in order to receive treatment for his HIV 

infection. This Court has stated that “[t]he general rule, subject to certain exceptions, is that 

appeals will be dismissed where there is no actual controversy existing between the parties at the 

time of the hearing.” Syl. Pt. 1, W.Va. Bd. of Dental Examiners v. Storch, 146 W.Va. 662, 122 

S.E.2d 295, 296 (1961). Because petitioner has been released from prison and is able to receive 

treatment for his HIV, the issue has been rendered moot. See Gallery v. W.Va. Secondary Sch. 

Activities Comm’n, 205 W.Va. 364, 366, 518 S.E.2d 368, 370 (1999) (when there is no longer a 

dispute between the parties, the appeal is subject to dismissal). 

As to petitioner’s second assignment of error, our law clearly establishes that the 

sanction imposed on petitioner is civil, not criminal, in nature. This Court has held: 

Where the purpose to be served by imposing a sanction for contempt is to 

compel compliance with a court order by the contemner so as to benefit the party 

bringing the contempt action by enforcing, protecting, or assuring the right of 

that party under the order, the contempt is civil. 

Syl. Pt. 2, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 813 (1981). 

This Court also has held “[t]he appropriate sanction in a civil contempt case is an order that 

incarcerates a contemner for an indefinite term and that also specifies a reasonable matter in 

which the contempt may be purged thereby securing the immediate release of the contemner . . . . ”

Syl. Pt. 3, in part, id., 166 W.Va. at 660, 276 S.E.2d at 813. “In a contempt proceeding, whenever the 

defendant may effect his release from jail by performing such act or acts as the court directs, the 

contempt is civil in nature . . . .” Syl. Pt. 9, Eastern Associated Coal Corp. v. Doe, 159 W.Va. 200, 

201-02, 220 S.E.2d 672, 675 (1975). Therefore, the civil contemner is said to hold the keys to his own 

cell. Id. at 213, 220 S.E.2d. at 681. On the other hand, criminal contempt involves imposing a sanction to 
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punish to the contemner for an affront to an order or dignity of the court. Syl. Pt. 4, State ex rel. 

Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 813 (1981). “A contempt will be deemed criminal 

when a jail sentence is imposed and the contemnor is given no opportunity in the sentencing order for 

immediate release by purging himself of contempt by doing an act which is within his power to 

accomplish.” Syl. Pt. 1, Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980).

The contempt order resulted from petitioner’s lack of cooperation throughout the entire court

proceeding. When petitioner failed to bring forth evidence that he gave the money away, he was

incarcerated with the provision that he would be released when he paid respondent t h e $363,000. Here, 

petitioner “hold[s] the keys to his own cell.” This order was in place for the benefit of respondent in an 

attempt to secure her rights to the judgment and assist her in her effort to recover the money. Unlike a 

criminal contempt order, the contempt order did not involve an affront to the dignity of the court, nor was 

petitioner denied an opportunity to secure his immediate release. 

The last assignment of error is that the contempt order has lost its coercive effect. Petitioner 

asserts that because he gave the money to charity, he is wholly unable to pay the court ordered funds and, 

therefore, the contempt order is no longer coercive. A civil contempt order works as a remedy to 

enforce the rights of a private party by coercing contemner into compliance with a court order or decree. 

State ex rel. Zirkle v. Fox, 203 W.Va. 668, 673, 510 S.E.2d 502, 507 (1998). Civil contempt proceedings 

are not meant to punish the defendant but rather to benefit the Plaintiff. Floyd v. Watson, 163 W.Va. 65, 

70, 254 S.E.2d 687, 691 (1979). “[C]oercive measures influence the defendant to act in a way that will 

ultimately benefit the moving party.” Id. at 71, 254 S.E. 2d at 691. “The appropriate sanction in a civil

contempt case is an order that incarcerates a contemner for an indefinite term and that also specifies a 

reasonable manner in which the contempt may be purged thereby securing the immediate release of the 

contemner[.]” State ex rel. Robinson v. Michael, 166 W.Va. 660, 670, 276 S.E.2d 812, 818 (1981). 

However, a civil contempt order is inappropriate when the condemner has no ability to purge himself or 

the contempt order has lost its coercive effect. In re Yoho, 171 W.Va. 625, 631, 301 S.E.2d 581, 587 

(1983); Shillitani v. U.S., 384 U.S. 364, 371 (1966). Petitioner bears the burden of proof in showing 

that he cannot comply with the court order or that the order has lost its coercive effect. State ex rel. 

Zirkle v. Fox, 203 W.Va. 668, 673, 510 S.E.2d 502, 507 (1998); In re Dickinson, 763 F.2d 84, 87 (2d 

Cir. 1985); In re Crededio, 759 F.2d 589, 590-591 (7th Cir. 1985). “Ordinarily, it is for the district judge 

to determine when and if the borderline between coercion and punishment has been reached.” Soobzokov 

v. CBS, Inc., 642 F.2d 28, 31 (2d Cir. 1981). A district court judge will have virtually unreviewable 

discretion in determining whether the contempt order still has a coercive effect. Simkin v. U.S., 715 F.2d 

34, 38 (2d Cir. 1983).

Before the judge imposed the contempt order, petitioner was told on numerous occasions to 

provide proof in the form of phone records and mail receipts in order to prove that he did infact give the

money away. The burden of proof was on petitioner to show that he could not comply with the request to 

bring forth evidence that would support his assertion that he had given the money to charity. See State ex 

rel. Zirkle v. Fox, 203 W.Va. 668, 672, 510 S.E.2d 502, 506 (1998) (The defendant bears the burden of 

proof in showing an inability to comply with the court's order, ·and the inability was not occasioned by his 

own acts). The circuit court found petitioner had not met his burden of proof in showing he could not 

comply with the Court’s order. After reviewing the record, it is evident the trial court did not abuse its 

discretion in imposing the order as well as classifying the contempt as civil in nature. The record shows 

that petitioner has frustrated respondent’s attempts to collect evidence on two occasions. He also stated 

on a few occasions he intended not to comply. The order was within the circuit court’s discretion. The 
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court has presided over the case for eight years. Given the circuit court’s history, and the history between 

the two parties, the trial court used reasonable judgment fashioning coercive relief, and there is no 

evidence that the situation is not coercive still. The circuit court did not abuse its discretion.

For the forgoing reasons we affirm the Circuit Court of Monongalia civil contempt order issued 

July 21, 2010. 

 Affirmed. 

ISSUED: December 16, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II