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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2006-2007

2060023

Ramon Namphy
v.
Mike Sheffield
Appeal from Mobile Circuit Court
(CV-06-1039)

BRYAN, Judge.

The defendant Ramon Namphy appeals a judgment insofar as
it found him in contempt for failing to pay the plaintiff Mike
Sheffield $17,900 by August 7, 2006. We reverse and remand.

On April 26, 2004, Sheffield leased a commercial building
to Namphy, and Namphy agreed to pay Sheffield, among other

things, rent and the cost of insurance. On March 27, 2006,
Sheffield sued Namphy, seeking damages for Namphy's alleged
breach of the lease. Sheffield alleged that Namphy had failed
to timely pay rent and the cost of insurance he owed Sheffield
under the lease. Sheffield later added claims of unlawful
detainer and ejectment, seeking to recover possession of the
building.

Namphy and Sheffield entered into a settlement agreement
("the first agreement"). In the first agreement, Sheffield
promised to "release" his claims against Namphy if Namphy
would purchase the building from Sheffield for a total
purchase price of $640,000 and, in addition, pay Sheffield a
nonrefundable attorney's fee in the amount of $5,000. Namphy,
in turn, agreed to purchase the building from Sheffield in
accordance with the terms of the first agreement if Sheffield
would "release" his claims against Namphy. The first agreement
provided that $20,000 of the $640,000 purchase price would be
nonrefundable earnest money and that that $20,000 and the
$5,000 nonrefundable attorney's fee would be paid as follows:
$5,000 on April 28, 2006; $5,000 on May 5, 2006; and $15,000
on May 12, 2006. The first agreement also provided that the

$620,000 balance of the purchase price would be paid at
closing; that the deadline for closing was July 12, 2006; and
that, during the period from May until the date of the
closing, Namphy would pay Sheffield rent in the amount of
$5,500 per month. Finally, the first agreement provided that,
if Namphy violated any of the terms of the first agreement,
Namphy would immediately vacate the building and Sheffield
would be entitled to pursue both his claim for damages for
breach of the lease and a claim for damages for breach of the
first agreement.

Namphy apparently made some of the payments due before
closing under the first agreement; however, he was unable to
close by July 12, 2006. As a result, the parties entered into
a second settlement agreement ("the second agreement") on July
27, 2006. The second agreement contained a provision in which
Sheffield agreed to extend the deadline for closing to August
12, 2006, if Namphy, on July 27, 2006, paid Sheffield (1) a
fee of $9,000 and (2) $928.75 for insurance; otherwise, the
terms of the second agreement were essentially the same as the
terms of the first agreement.

However, Namphy failed to pay the $9,928.75 on July 27.
As a result, the parties entered into a third settlement
agreement ("the third agreement") on July 28, 2007. The third
agreement increased the purchase price for the building from
$640,000 to $645,000 and extended to July 31, 2006, the
deadline for Namphy to pay the $9,928.75; otherwise, the terms
of the third agreement were essentially the same as the terms
of the second agreement.

Namphy failed to pay the $9,928.75 by July 31.
Accordingly, on August 4, 2006, Sheffield moved the trial
court to order Namphy to vacate the building and to remove all
tires and debris from the building immediately. That same day,
the parties reached another agreement that was incorporated
into an agreed order ("the agreed order") entered by the trial
court. In pertinent part, the agreed order stated:

"1. [Namphy] shall pay with certified funds
$17,900.00 to [Sheffield's attorney] by ... August
7, 2006. Provided [Namphy] does so, the option to
purchase the building, which is the underlying basis
of [Sheffield's] complaint, shall be extended to
8/20/2006 ....

"2. If [Namphy] fails to pay the funds as set
forth above in paragraph (1) of this order, on
8/8/2006 an order of eviction shall issue against
[Namphy,] giving him (14) days to vacate the
premises. Moreover, [Namphy's] option to purchase

the property will immediately terminate and

[Sheffield] may list the property for sale.

"3. If [Namphy] pays the funds set out above in
paragraph (1), he shall have until ... August 20,
2006[,] to close on the purchase of the building in
question at the previously agreed upon price of
$625,000.00.[1]

"4. If [Namphy] fails to close by 8/20/2006, on
8/21/2006 an order for eviction will issue giving
[Namphy] 14 days to vacate and the option to
purchase will immediately terminate and [Sheffield]
may list the property for sale.

"5. If [Namphy] is forced to vacate by order of
court, the court orders [Namphy] to remove all
debris, tires[,] and materials from the building and
pr[e]mises during said 14 days within [which Namphy]
has to vacate."

When Namphy failed to pay Sheffield $17,900 by August 7,

2006, the trial court entered, on August 15, an order ("the

August 15 order") ordering Namphy to vacate the building and

to remove all debris and tires by 5:00 p.m. on August 22,

2006. On September 8, 2006, Sheffield moved the trial court to

find Namphy in contempt on the grounds that Namphy had

violated the agreed order by failing to pay Sheffield $17,900

by August 7, 2006, and had violated the August 15 order by

1As noted above, the parties had actually agreed to a
purchase price of $645,000.

failing to vacate the building and to remove all tires and
debris from the building by 5:00 p.m. on August 22, 2006.

On October 5, 2006, the trial court heard argument
regarding whether it should find Namphy in contempt. With
respect to his failure to pay the $17,900, Namphy argued that
he should not be found in contempt because, he said, the
agreed order made payment of the $17,900 optional rather than
mandatory. That is, he argued that the agreed order gave him
the option of (1) paying the $17,900 by August 7, 2006, in
which case he would preserve his option to purchase the
building and preserve his right to possession, or (2)
refraining from paying the $17,900, in which case he would
forfeit his option to purchase the building and an order
evicting him from the building would issue on August 8, 2006.
With respect to his failure to remove all of the tires and
debris from the building by August 22, 2006, Namphy argued
that the appropriate remedy for a violation of an order
requiring a party in possession of property to vacate the
property is an award of compensatory damages for any loss
suffered by the party entitled to possession rather than a
finding of contempt against the party who failed to vacate.

Sheffield, on the other hand, argued that the agreed
order stated that Namphy "shall" pay the $17,900 on August 7,
which, according to Sheffield, made Namphy's payment of the
$17,900 on August 7 mandatory rather than optional and that
contempt is a proper remedy for violation of a court order
making the payment of a sum of money mandatory and for
violation of an order ordering a party to vacate property. At
the conclusion of the hearing, the trial judge orally ruled
that he found Namphy to be in contempt (1) for failing to pay
Sheffield the $17,900, as required by the agreed order, and

(2) for failing to remove all tires and debris from the
building by August 22, 2006, as required by the August 15
order. He further ruled that Namphy would be incarcerated for
contempt unless Namphy paid Sheffield $17,900 by 5:00 p.m.
that day. Later that same day, the trial judge entered a
written order confirming his oral ruling.

Namphy did not file a postjudgment motion challenging the
trial court's judgment. Instead, Namphy, on October 5,
petitioned this court for a writ of mandamus ordering the
trial court to set aside the judgment insofar as it ordered
Namphy to pay the $17,900 by 5:00 p.m. on October 5 or suffer

incarceration. This court ordered that Namphy's petition for
a writ of mandamus would be treated as an appeal.

On appeal, Namphy first argues that the trial court erred
in finding him in contempt for his failure to pay the $17,900
because, he says, the agreed order made his payment of the
$17,900 optional rather than mandatory. We find the agreed
order to be ambiguous regarding whether the payment of the
$17,900 by Namphy was optional or mandatory. On the one hand,
the first sentence of the agreed order states that Namphy
"shall" pay the $17,900 by August 7, 2006, which suggests that
payment of the $17,900 was mandatory. On the other hand, the
second sentence of the agreed order states that, provided
Namphy pays the $17,900 by August 7, 2006, his option to
purchase the building will be extended until August 20, 2006,
which suggests that he had the option of (1) paying the
$17,900 to extend his option to purchase the building until
August 20, 2006, or (2) refraining from paying the $17,900, in
which case his option to purchase the building would terminate
on August 7, 2006. Given this ambiguity regarding whether the
agreed order made payment of the $17,900 mandatory or
optional, it was error for the trial court to find Namphy in

contempt for his failure to pay the $17,900. Accordingly, we
reverse the trial court's judgment insofar as it found Namphy
in contempt for his failure to pay the $17,900 and ordered him
to pay it or suffer incarceration, and we remand the case to
the trial court for further proceedings consistent with this
opinion. Because we reverse that aspect of the trial court's
judgment on the basis of Namphy's first argument, we pretermit
discussion of Namphy's second argument, which challenges that
same aspect of the trial court's judgment. Namphy has not
challenged the trial court's judgment insofar as it found him
in contempt for his failure to remove all the tires and debris
by August 22, 2006. Consequently, we express no opinion
regarding that aspect of the trial court's judgement.

REVERSED AND REMANDED.

Pittman, J., concurs.

Thompson, P.J., and Moore, J., concur in the result,

without writings.
Thomas, J., concurs in the result, with writing.

THOMAS, Judge, concurring in the result.

I concur in the result because I believe the better
ground upon which to base our reversal of the contempt
judgment is that payment of a contractual debt cannot be
coerced by a contempt citation, see Ex parte Parker, 334 So.
2d 911, 912 (Ala. Civ. App. 1976)(quoted in Dolberry v.
Dolberry, 920 So. 2d 573, 576 (Ala. Civ. App. 2005)).  I think
that Namphy essentially made that argument when he asserted
that the parties' settlement agreement incorporated into the
agreed order (1) made payment of $17,900 "optional," and (2)
set out the consequences for nonpayment. I do not believe the
agreement was in any sense ambiguous.

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