CITY OF CLEVELAND v. BRYCE PETERS FINANCIAL CORP.
Nos. 98006, 98007, 98008, 98009, 98010, 98011, 98012, 98013, 98014, 98015, 98016, 98017, 98018, 98019, 98020, 98021, 98022, 98023, 98024, 98078, 98079, 98163, and 98164
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 22, 2013
[Cite as Cleveland v. Bryce Peters Fin. Corp., 2013-Ohio-3613.]
Criminal Appeal from the Cleveland Municipal Court Case Nos. 2009 CRB 042296, 2009 CRB 034825, 2009 CRB 034198, 2009 CRB 041737, 2010 CRB 033117, 2009 CRB 034199, 2009 CRB 034200, 2009 CRB022077, 2009 CRB 015353, 2010 CRB 005488, 2009 CRB 007511, 2008 CRB 028553, 2009 CRB 013716, 2009 CRB 028376, 2009 CRB 007512, 2009 CRB 017481, 2009 CRB 015354, 2009 CRB 034826, 2009 CRB 030883, 2009 CRB 017482, 2009 CRB 031358, 2008 CRB 040378, and 2008 CRB 030445
JUDGMENT: AFFIRMED
BEFORE: Blackmon, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: August 22, 2013
Larry W. Zukerman
Paul B. Daiker
S. Michael Lear
Brian A. Murray
Zuckerman, Daiker & Lear
3912 Prospect Avenue, East
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Barbara Langhenry
Director of Law
By: William H. Armstrong, Jr.
Katherine Zvomuya
Barbara A. Tamas
Assistant Directors of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
{1} In this consolidated appeal, appellant, Bryce Peters Financial Corp. (“Bryce Peters“), appeals the trial court‘s contempt finding and related financial sanctions. Bryce Peters assigns eight errors for our review.1
{2} Having reviewed the record and pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
{3} Between July 2008 and December 2010, the city of Cleveland (“the City“) issued multiple housing code violation notices regarding properties owned by Bryce Peters. The City‘s building and housing inspectors sent the notices to Bryce Peters indicating that the code violations were of a nature that would require demolition or immediate repair. The notices gave Bryce Peters 30 days from the issuance of the citations to correct the violations.
{4} After 30 days had elapsed, the City‘s inspectors reinspected the properties and found that the violations had not been corrected. Thereafter, the City issued citations for Bryce Peters’ failure to comply with the order of the Director of Building and Housing. These citations resulted in 23 separate cases filed against Bryce Peters.
{5} The trial court scheduled arraignments in the respective cases and served the summonses by certified mail to Bryce Peters’ address in Reno, Nevada, that were either signed for or refused by Bryce Peters. Bryce Peters failed to appear at any of the arraignments. After successive failure to appear at the arraignments, the trial court continued the cases to its corporate docket and sent out summonses, but Bryce Peters again failed to appear. The City‘s
{6} As a result of Bryce Peters’ failure to appear, the trial court scheduled show-cause hearings in the respective cases. The trial court notified Bryce Peters via regular U.S. mail that sanctions for contempt may include per diem fines. Bryce Peters failed to appear at any of the show-cause hearings, the trial court found it in contempt, and issued per diem fines of $1,000, beginning on the day following the date he was ordered to appear, until such time as Bryce Peters made an appearance or entered a plea.
{7} Thereafter, the trial court scheduled status hearings approximately every 45 days, but Bryce Peters failed to attend. At each status hearing, the trial court converted the accrued per diem fines from the date of the previous status hearing, in the respective cases, to civil judgments for collections. After more than a year had elapsed since Bryce Peters was found in contempt, the trial court ceased scheduling status hearings.
{8} Eventually, the trial court issued an order for Bryce Peters to be re-summoned by bailiff service. On February 3, 2012, the housing court obtained personal service on Bryce Peters. On February 7, 2012, a representative of Bryce Peters appeared and entered not guilty pleas in the 23 underlying cases.
{9} On February 23, 2012, Bryce Peters filed notices of appeal relative to the contempt findings in the respective cases. We dismissed the appeals as untimely, but Bryce Peters filed an application for reconsideration, which we granted, and reinstated the appeal. On April 26, 2012, we consolidated the 23 separate cases for briefing, hearing, and disposition.
Contempt Finding
{11} Preliminarily, an appellate court‘s standard of review of a trial court‘s contempt finding is abuse of discretion. Cattaneo v. Needham, 5th Dist. Licking No. 2009 CA00142, 2010-Ohio-4841, citing State ex rel., Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991). An “abuse of discretion” connotes that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
{12} In the instant case, as previously noted, Bryce Peters had been summoned to appear in court in reference to numerous housing code violations, spanning multiple properties, and resulting in 23 separate cases filed against the corporate entity. When Bryce Peters failed to appear at the arraignment, the trial court placed the cases on its corporate docket, ordered Bryce Peters to appear, but to no avail.
{13} The trial court then ordered Bryce Peters to appear to show cause why it should not be held in contempt, but Bryce Peters was still unresponsive. Ultimately, the trial court found Bryce Peters in contempt, issued a per diem fine of $1,000, in each case, for every day that the corporation remained in contempt. After the trial court found Bryce Peters in contempt and began assessing the per diem fines, a corporate representative appeared, resulting in the cessation of the fines.
{14} Not long ago, we addressed substantially identical issues in Cleveland v. Paramount Land Holdings, LLC, 8th Dist. Cuyahoga Nos. 96180, 96181, 96182, and 96183, 2011-Ohio-5382. In Paramount, numerous health code violations were found at multiple properties of the owner. Because the owner failed to appear, a contempt finding was entered
{15} On appeal, we found that, as a result of the owner‘s repeated failure to appear, the trial court had no alternative but to find the owner in civil contempt and begin assessing a daily contempt fine, per property, in an effort to compel the owner‘s attendance. When the owner appeared in court, the trial court discontinued the daily fine. In Paramount, we held that the immediate abandonment of the daily fines was conclusive evidence that its purpose was to coerce the owner‘s attendance and not to punish the owner for a completed act. We find our reasoning in Paramount instructive.
{16} In the third and fifth assigned errors, Bryce Peters argues the trial court abused its discretion by issuing show-cause or contempt citations and ultimately finding the corporation in indirect contempt.
{17} In the instant case, both parties agree that the trial court found Bryce Peters in indirect contempt. Indirect contempt is “misbehavior that occurs outside the actual or constructive presence of the court.” Pirtle v. Pirtle, 2d Dist Montgomery No. 18613, 2001-Ohio-1539. However, they disagree on whether the contempt was civil or criminal. Bryce Peters argues the contempt was criminal and thus, it was entitled to a hearing. The City agrees that under the law, criminal contempt would require a hearing, but it maintains that the contempt was civil.
{18} Courts classify contempt as criminal or civil, depending upon the purpose of the sanction imposed. Camp-Out, Inc. v. Adkins, 6th Dist. Wood No. WD-06-057, 2007-Ohio-3946;
{19} imposed as “punishment for the completed act of disobedience” and usually consist of fines and/or an unconditional period of incarceration. McCall v. Cunard, 6th Dist. Sandusky No. S-07-013, 2008-Ohio-378, citing In re Purola, 73 Ohio App.3d 306, 596 N.E.2d 1140 (1991).
{20} A sanction imposed for civil contempt, on the other hand, is remedial or coercive in nature and is imposed for the benefit of the complainant. Id., citing Carroll v. Detty, 113 Ohio App.3d 708, 711, 681 N.E.2d 1383 (4th Dist.1996). Any sanction imposed for civil contempt must afford the contemnor the right to purge himself of the contempt. DeLawder v. Dodson, 4th Dist. Lawrence No. 02CA27, 2003-Ohio-2092, ¶ 10.
{21} Here, the record establishes that the trial court found Bryce Peters in indirect civil contempt. The contempt was civil because the trial court‘s sanctions were designed to coerce Bryce Peters to appear. Bryce Peters’ assertion that it was inherently punitive and therefore criminal is simply inaccurate. Punishment is inherent in contempt. In re J.M., 12th Dist. Warren No. CA2008-01-004, 2008-Ohio-6763, ¶ 47. The fact that a contempt finding may result in punishment does not necessarily define it as criminal contempt. The discussion below will reveal that coercion was the main focus of the trial court‘s decision.
{22} At the outset, we note that Bryce Peters was duly served with the summonses and the complaints by certified mail for all 23 cases, that was signed for in the majority of instances by one of its agents, but failed to appear for the arraignments. After Bryce Peters failed to
{23} Finding Bryce Peters unresponsive, the trial court scheduled show-cause hearings for Bryce Peters to appear and present evidence why it should not be held in contempt for its repeated failure to appear. However, this too fell short of motivating Bryce Peters to appear at the show-cause hearing, despite being duly notified.
{24} It was at this stage that the trial court resorted to finding Bryce Peters in contempt and began assessing the daily fines to coerce its appearance. After more than a year of the trial court‘s assessment of the daily fines in the respective cases, Bryce Peters entered an appearance. Once Bryce Peters appeared, the trial court immediately discontinued the daily fines.
{25} Despite Bryce Peters’ argument to the contrary, the trial court‘s decision to find it in civil contempt and begin assessing a daily contempt fine of $1,000 per day for each case, was geared towards compelling the corporate entity‘s attendance. We conclude, as we did in Paramount, that the immediate cessation of the daily fines is conclusive evidence that its purpose was to coerce Bryce Peters’ attendance and not to punish it for a completed act.
{26} Nonetheless, specifically, within the fifth assigned error, Bryce Peters argues that there is no evidence that the company acted intentionally in failing to appear. However, we have previously held that a violation of a court order need not be willful to constitute civil contempt. Kurincic v. Kurincic, 8th Dist. Cuyahoga No. 76505, 2000 Ohio App. LEXIS 3957 (Aug. 31, 2000).
{27} Further, because the purpose of sanctions in a case of civil contempt is to compel the contemnor to comply with lawful orders of a court, the fact that the contemnor may not have acted in intentional disregard of a court order is not a defense to a charge of civil contempt.
Jurisdiction
{28} In the first and second assigned errors, Bryce Peters argues he was not properly served with the show-cause orders or contempt citations, thus, the trial court lacked jurisdiction. Specifically, Bryce Peters argues the contempt proceeding was an independent proceeding and the trial court should have also served notices by certified mail or should have issued a warrant to effect its attendance.
{29} In the discussion of the third and fifth assigned errors, we concluded that the trial court found Bryce Peters in civil contempt. Where contempt is civil in nature, the civil rules regarding notice apply. Home S&L Co. v. Midway Marine, Inc., 7th Dist. Mahoning No. 10 MA 109, 2012-Ohio-2432, citing Bierce v. Howell, 5th Dist. Delaware No. 06 CAF 05 0032, 2007-Ohio-3050.
{30} Under
{31} Further, there is no specified manner of process required for the filing of a motion for civil contempt, a person serving such a motion may do so in any manner authorized by the Ohio Rules of Civil Procedure. In re I.U., 2d Dist. Champaign No. 2007 CA 9, 2007-Ohio-6264, citing Quisenberry v. Quisenberry, 91 Ohio App.3d 341, 346, 632 N.E.2d 916 (2d Dist.1993).
{32} In the instant case, the record reveals that Bryce Peters was duly served with the summonses and complaints for the 23 cases that resulted from the multitude of code violations in and about its numerous properties. Given that the show-cause orders or contempt citations were services of papers subsequent to the original complaint, pursuant to
{33} Further, regarding the notion that the trial court should have issued a warrant, we note, pursuant to
Trial in Absentia
{34} In the fourth assigned error, Bryce Peters argues the trial court abused its discretion by trying, convicting, and sentencing it in absentia. In support of its contention, Bryce Peters cites our decision in Cleveland v. Washington Mut. Bank, 179 Ohio App.3d 692, 2008-Ohio-6956, 903 N.E.2d 384, vacating the conviction from a trial that was held in absentia. That decision was affirmed by the Ohio Supreme Court in Cleveland v. Washington. Mut. Bank, 125 Ohio St.3d 541, 2010-Ohio-2219, 929 N.E.2d 1039.
{35} However, unlike Washington Mut., where the trial of the underlying criminal matter was held in absentia, only the contempt findings took place outside Bryce Peters’ presence. The contempt findings took place in “absentia” because Bryce Peters chose not to appear. Thus, the instant case is distinguishable from Washington Mut.
{37} In a civil contempt, unlike criminal, an alleged contemnor is entitled only to those rights afforded in a civil action. Id., citing Schrader v. Huff, 8 Ohio App.3d 111, 456 N.E.2d 587 (9th Dist.1983). Given that this was an indirect civil contempt proceeding, Bryce Peters was only entitled to notice and an opportunity to be heard. The trial court provided said notice, but Bryce Peters failed to appear.
{38} Thus, contrary to Bryce Peters’ assertion, an alleged contemnor in a civil contempt action may be tried in absentia if he or she was provided appropriate notice and an opportunity to be heard. Accordingly, we overrule the fourth assigned error.
Excessive Fines
{39} In the sixth assigned error, Bryce Peters argues the contempt fines assessed violated its right to be free excessive fines and punishment as guaranteed by the Eighth Amendment to the United States Constitution.
{40} As we have previously discussed, the trial court found Bryce Peters in indirect civil contempt. The excessive fines clause of the Eighth Amendment does not apply to civil contempt sanctions. Ohio Elections Comm. v. Ohio Chamber of Commerce & Citizens for a Strong Ohio, 158 Ohio App.3d 557, 2004-Ohio-5253, 817 N.E.2d 447 (10th Dist.), citing In re Grand Jury Proceedings (7th Cir. 2002), 280 F.3d 1103, 1110 (“a fine assessed for civil contempt does not implicate the Excessive Fines Clause“). See also United States v. Mongelli (2d Cir. 1993), 2 F.3d 29, 30; Spallone v. United States, 487 U.S. 1251, 1257, 109 S.Ct. 14, 109 S.Ct. 20, 101 L.Ed.2d 964 (1988).
{41} Here, given the civil nature of the contempt proceeding, the Excessive Fines Clause of the Eighth Amendment does not apply. Paramount at ¶ 2. Accordingly, we overrule the sixth assigned error.
Opportunity to Purge Civil Contempt
{42} In the seventh assigned error, Bryce Peters argues the trial court failed to provide it with an opportunity to purge the contempt.
{43} A sanction for civil contempt must allow the contemnor to purge himself of the contempt. Coventry Grp., Inc. v. J.L. Gottlieb Agency, Inc., 8th Dist. Cuyahoga No. 94185, 2010-Ohio-4135, citing Tucker v. Tucker, 10 Ohio App.3d 251, 461 N.E.2d 1337 (10th Dist.1983).
{44} In the instant case, the opportunity to purge the contempt involved the simple act of appearing in court. The record reveals that when Bryce Peters finally appeared in court, the trial court immediately terminated the per diem fines on the respective cases. Because Bryce Peters was given the opportunity to purge its contempt by appearing in court and the fines stopped the moment an appearance was entered, we find no abuse of discretion. Paramount at ¶ 17.
{45} Nonetheless, Bryce Peters argues the company was not given the opportunity to purge because the accumulated per diem fines remained after it made an appearance. We are not persuaded. If the contempt fines were wiped clean, once the contemnor appeared in court, there would be no incentive for the offending party to hastily appear to stop the accumulating fines. Wiping the fines clean as Bryce Peters urges, would render the coercive intent of civil contempt
{46} We conclude that finding Bryce Peters in indirect civil contempt was geared to coerce its attendance and the accumulating per diem fines served to get the company‘s attention. An individual charged with civil contempt purges himself or herself of the contempt by appearing before the court and demonstrating compliance with the court‘s order. Purola, supra, 73 Ohio App.3d at 311. This is all that is required and exactly what happened in the instant case. Consequently, we find no abuse of discretion. Accordingly, we overrule the seventh assigned error.
Failure to Issue Written Charges
{47} In the eighth assigned error, Bryce Peters argues the trial court abused its discretion by failing to properly issue written charges.
{48}
{49} In the instant case, the trial court‘s notice stated in pertinent part as follows:
Defendant having failed to appear, a representative of the defendant is ORDERED to appear before this Court * * * to show cause why the
defendant, or one of its representatives, should not be punished for criminal or civil contempt of court. As a corporation, the defendant is hereby advised that it must be represented by counsel in order to appear. At the contempt proceedings, the defendant may obtain the presence of witnesses in its own behalf by compulsory process if necessary and may cross-examine the witnesses against it. Contempt must be proven by clear and convincing evidence (civil contempt) or beyond a reasonable doubt (criminal contempt). Sanctions for contempt may include a per diem fine, or such other relief as the court deems appropriate.
{50} Despite Bryce Peters’ assertions, the above notice sufficiently apprised it that civil or criminal contempt charges could be brought against it; that as a corporation, it had to be represented by counsel, explained its rights regarding calling witnesses and cross-examining witnesses against it, and outlined the standard of proof. As a result of Bryce Peters’ repeated failure to appear, the trial court had no alternative but to find it in civil contempt and begin assessing a daily contempt fine of $1,000 per property in an effort to compel its attendance. As such, we find no abuse of discretion. Accordingly, we overrule the eighth assigned error.
{51} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Cleveland Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., CONCURS;
KENNETH A. ROCCO, J., DISSENTS (SEE ATTACHED DISSENTING OPINION.)
KENNETH A. ROCCO, J., DISSENTING:
{52} Although I agree with the majority‘s determination that this case involves charges of indirect, civil contempt, I would reverse on the basis that Bryce Peters was not properly served with notice of the contempt charges.
{53} When one is accused of indirect, civil contempt, due process requires that the accused is provided with adequate notice of the charges against him or her. Sansom v. Sansom, 10th Dist. Franklin No. 05AP-645, 2006-Ohio-3909, ¶ 26. “Notice is sufficient when it apprises an alleged contemnor of the charges * * * so that he or she is able to prepare a defense.” Id. at ¶ 27. Without proper notice, a later contempt finding is invalid. Id. Notice is effectuated by proper service of process, which is determined on a case-by-case basis. Tube City, Inc. v. Halishak, 8th Dist. Cuyahoga No. 88287, 2007-Ohio-2118, ¶ 19.
{54} The issue in this case comes down to which civil rule regarding service of process applies. Bryce Peters was served with notices of the contempt charges and the impending contempt hearings by regular mail. If
{56} This conundrum is highlighted in the instant case: the question as to whether Bryce Peters had knowledge about the underlying charges was the very subject of the contempt proceedings. There was no evidence in the record that Bryce Peters had knowledge of the court dates that had been set forth in the original summonses, and this issue went to the very heart of the contempt charges.
{57} For this reason, the majority‘s reliance on Home S&L Co. v. Midway Marine, Inc., 7th Dist. Mahoning No. 10 MA 109, 2012-Ohio-2432, is misplaced. In Home S&L, the Seventh District concluded that
{59} Because a contempt proceeding is an independent proceeding, because Bryce Peters had not entered an appearance or otherwise acted in a manner indicating awareness about the underlying charges against it, and because the question as to whether Bryce Peters knew about the underlying matter was the very subject of the contempt charges, I would hold that the court was required to serve notice of the contempt charges in a manner consistent with
Assignments of Error
I. The trial court abused its discretion and erred to the prejudice of defendant-appellant by failing to properly serve defendant-appellant with notice of the orders to appear and show cause and/or the charges of contempt, and therefore violated defendant-appellant‘s state and federal constitutional rights to due process of law.
II. The trial court abused its discretion and erred to the prejudice of appellant by issuing a “show-cause” order and/or a contempt citation prior to obtaining personal jurisdiction over the appellant. As such, the trial court lacked subject matter and/or personal jurisdiction over the contempt citations. (App. Case Nos.: CA 12 098079; CA 12 098015; CA 12 098009).
III. The trial court abused its discretion and erred to the prejudice of appellant by issuing a “show-cause” order and/or a contempt citation in response to appellant‘s failure to appear in response to summons and/or the court abused its discretion and/or the court abused its discretion and erred to the prejudice of appellant by issuing “show-cause” orders, finding appellant guilty of contempt of court for failing to appear in response to summonses and/or court orders to appear herein, and/or by imposing fines of $1,000 per day for said contempt, all in violation of
IV. The trial court abused its discretion and erred to the prejudice of appellant by trying, convicting and sentencing the appellant in absentia for indirect contempt of court, in violation of appellant‘s state and federal constitutional rights to be present at all critical stages of a criminal proceedings, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
V. The trial court abused its discretion and erred to the prejudice of appellant by finding appellant in indirect contempt of court, as the evidence presented at the contempt hearing was insufficient to establish by evidence beyond a reasonable doubt that appellant acted intentionally in failing to appear for trial. (1-21-11 Journal Entry 328-231; Tr. pp. 1-9).
VI. The trial court abused its discretion by subjecting appellant to daily contempt fines while also issuing warrants for appellant‘s arrest, in violation of appellant‘s state and federal constitutional rights to be free from excessive fines and/or excessive punishment, as guaranteed by the Eighth and
VII. The trial court abused its discretion and erred to the prejudice of appellant by failing to provide the contemnor with an opportunity to purge the indirect civil contempt sanctions.
VIII. The trial court abused its discretion and erred to the prejudice of appellant by failing to properly charge appellant in writing and/or by shifting the burden of proof upon appellant in its “order to show cause.”