Home S. & L. Co. v. Midway Marine, Inc.
2012 Ohio 2432
Ohio Ct. App.2012Background
- Mercure, on behalf of Midway Marine, Inc., secured a loan from Home Savings & Loan Co. secured by a yacht and motor lien.
- A writ of possession was issued; Home Savings sought replevin and a money judgment for unpaid amounts.
- Mercure was served with the writ and deposition occurred; he invoked Fifth Amendment rights regarding the yacht’s location.
- A show-cause contempt hearing was held; Mercure did not attend, though counsel appeared; the magistrate found indirect civil contempt.
- The trial court adopted the magistrate’s decision, ordered purge by producing the yacht or jail/fine, and later issued a contempt judgment.
- Service of the contempt motion and the hearing notice were challenged by Mercure but were deemed proper; the contempt remained tied to the writ of possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contempt was civil or criminal in nature | Mercure’s conduct reflects civil contempt aimed at coercing production of the yacht. | The court’s punitive tone and consequences convert it into criminal contempt. | Civil contempt; penalties were coercive and purgable. |
| Whether due process was violated by service/notice and absence at hearing | Service on Mercure and counsel complied with Civ.R. 5; hearing adequacy and notice were reasonable. | Notice may have been deficient because Mercure did not appear personally and service questions were raised. | Notice and hearing were reasonable; due process satisfied. |
| Whether trial counsel provided ineffective assistance | Counsel acted strategically; objections to the magistrate would not have altered the outcome. | Counsel should have objected to the magistrate’s decision rather than filing purge efforts. | No ineffective assistance; counsel’s actions were not patently deficient and did not prejudice. |
Key Cases Cited
- Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (Ohio 1980) (civil contempt context; punishment not automatically criminal)
- Bierce v. Howell, 2007-Ohio-3050 (5th Dist. 2007) (civil contempt service notice distinctions across districts)
- Quisenberry v. Quisenberry, 91 Ohio App.3d 341 (1993) (civil contempt notice generally governed by Civ.R. 5)
- DeLawder v. Dodson, 2003-Ohio-2092 (4th Dist. 2003) (civil contempt; purgeability of sanctions)
- Brown, Brown v. et al., 125 Ohio App.3d 257 (1998) (definition and scope of contempt; direct vs indirect)
- Adams v. Epperly, 27 Ohio App.3d 51 (1985) (right to notice and hearing in contempt proceedings)
- Ottawa Hills v. Afjeh, 2012-Ohio-125 (6th Dist. 2012) (reasonable notice standard under Civ.R. 6(D) in contempt)