Cleveland v. Bank of New York Mellon
2013 Ohio 3157
Ohio Ct. App.2013Background
- BONY purchased property at sheriff’s sale; deed recorded Jan 19, 2012 and delivered to its counsel Feb 3, 2012. City cited the property for a single-day housing-code violation on Jan 23, 2012 and mailed a summons ordering BONY to appear Feb 29, 2012. BONY failed to appear.
- Court placed case on its corporation docket, sent additional notices to BONY and various corporate contacts, and set hearings May 7 and a show-cause date July 2 after continued nonappearance; BONY failed to attend those dates as well.
- On July 2 the municipal court found BONY in contempt and imposed a $1,000 per diem fine to coerce appearance until BONY appeared and entered a plea. Fines accrued to $90,000 through Sept. 30, 2012.
- BONY finally appeared Oct 1, 2012, entered a not-guilty plea, the city later dismissed the underlying charge, and BONY moved to mitigate sanctions. The trial court reduced the accumulated sanctions to $45,000.
- BONY appealed, arguing (inter alia) the contempt was criminal (triggering heightened due-process protections) because the city ultimately did not benefit, the per-diem fines were excessive and punitive, and BONY lacked dominion over the property on the citation date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Nature of contempt: civil or criminal? | Court imposed fines to coerce appearance; contempt is civil. | BONY: dismissal of underlying charge means sanctions weren’t for complainant’s benefit, so contempt is criminal. | Civil contempt — fines were coercive to secure appearance; contempt purged when BONY appeared. |
| 2. Were due-process protections required/violated? | City: court complied with show-cause procedure and advised rights; BONY had opportunity to be heard. | BONY: if contempt is criminal, court needed to provide full criminal protections before sanctioning. | No due-process violation; court followed R.C. 2705.03, provided notice and opportunity to be heard; BONY did not avail itself. |
| 3. Was a $1,000 per diem fine an appropriate coercive sanction for a corporate contemnor? | Per-diem fines are an appropriate civil coercive device for a corporation that cannot be imprisoned; necessary to compel appearance. | BONY: per-diem fines are punitive and disproportionate given misdemeanor nature. | Per-diem fine lawful and not an abuse of discretion to coerce corporate compliance. |
| 4. Was the mitigated sanction amount (reduction to $45,000) arbitrary or unreasonable? | Court weighed aggravating and mitigating factors (multiple prior nonappearances, deliberate choice not to appear, subsequent cooperation) and reduced sanctions partially. | BONY: fines excessive given lack of control over property at citation date and low maximum penalty for underlying offense. | Reduction to $45,000 upheld; sanction was within trial court’s discretion after balancing factors. |
Key Cases Cited
- State ex rel. Celebrezze v. Gibbs, 69 Ohio St.3d 69 (Ohio 1994) (standard for reviewing contempt decisions)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard)
- Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (Ohio 1980) (distinguishing civil and criminal contempt; purpose-based analysis)
- Liming v. Damos, 133 Ohio St.3d 509 (Ohio 2012) (criminal-contempt due-process requirements)
- Dayton’s Women Health Ctr. v. Enix, 68 Ohio App.3d 579 (Ohio Ct. App.) (civil-contempt coercive purpose)
- Int’l Union v. Bagwell, 512 U.S. 821 (U.S. 1994) (per-diem fines analyzed as coercive sanctions analogous to coercive imprisonment)