CITY OF CLEVELAND, PLAINTIFF-APPELLEE vs. PARAMOUNT LAND HOLDINGS, LLC, DEFENDANT-APPELLANT
Nos. 96180, 96181, 96182, and 96183
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 25, 2011
[Cite as Cleveland v. Paramount Land Holdings, L.L.C., 2011-Ohio-4270.]
[Vacated opinion. Please see 2011-Ohio-5382.] Criminal Appeal from the City of Cleveland Municipal Court Case Nos. 08 CRB 41885, 08 CRB 37072, 09 CRB 04261, and 09 CRB 03590
BEFORE: Blackmon, P.J., Keough, J., and E. Gallagher, J.
Richard G. Lillie
Gretchen A. Holderman
Lillie & Holderman
75 Public Square, Suite 1313
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
By: Karyn J. Lynn
Assistant Director of Law
City of Cleveland Law Department
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} In this consolidated appeal, appellant Paramount Land Holdings, LLC (“Paramount“) appeals the trial court‘s denial of their motion to vacate and assign the following errors for our review:
“I. The housing court denied appellant its due process rights by denying appellant an opportunity to respond to the housing court‘s contempt citation in a formal hearing.”
“II. The housing court imposed contempt sanctions in excess of the statutorily defined limits.”
“III. The total fine constitutes an excessive fine in violation of the defendant‘s rights as guaranteed by the Eighth Amendment to the United States Constitution and Section 9 Article 1 of the Ohio Constitution.”
{¶ 2} Having reviewed the record and pertinent law, we affirm in part, and reverse in part the trial court‘s decision, and we remand for further proceedings consistent with this opinion. The apposite facts follow.
{¶ 3} Between September 15, 2008 and February 20, 2009, the City of Cleveland‘s Department of Health (“the City“) issued separate minor misdemeanor citations, in Case Numbers 08–CRB–37072, 08–CRB–41885, 09–CRB–03590, and 09–CRB–04261 for health code violations related to four of Paramount‘s properties. The City served Paramount with the summons and complaints, but Paramount failed to appear at the arraignments.
{¶ 4} The trial court continued the cases to its corporate docket, but Paramount again failed to appear. As a result of Paramount‘s continued failure to appear, despite being duly served between May 19, 2009 and August 10, 2009, the trial court scheduled show cause hearings in the respective cases. Because Paramount failed to appear at any of the show cause hearings, the trial court found them in contempt, and issued a per diem fine of $1,000.
{¶ 6} On November 7, 2009, Paramount, through counsel, appeared in court, and pleaded not guilty in all four cases. On March 18, 2010, after several pretrials had been conducted, Paramount retracted its former not guilty pleas and pleaded “no contest” to the charges. In a June 18, 2010 journal entry, the trial court found Paramount guilty of all charges. In a written sentencing decision that same day, the trial court imposed a $400,000 fine for the charges contained in Case No. 08–CRB–37072, and a $653,000 fine for the charges contained in Case No. 09–CRB–03590.
{¶ 7} On July 16, 2010, Paramount appealed the trial court‘s decision. In a decision dated July 7, 2011, we reversed the trial court‘s decision because it failed to comply with
Due Process Denial
{¶ 9} An appellate court‘s standard of review of a trial court‘s contempt finding is abuse of discretion. Cattaneo v. Needham, 5th Dist. No. 2009CA00142, 2010-Ohio-4841, citing State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 573 N.E.2d 62. An “abuse of discretion” connotes that the court‘s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140; Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028.
{¶ 10} In the instant case, both parties agree that the trial court found Paramount in indirect contempt. Indirect contempt is “misbehavior that occurs outside the actual or constructive presence of the court.” Pirtle v. Pirtle, 2d Dist No. 18613, 2001-Ohio-1539. However, they disagree on whether the contempt was civil or criminal. Paramount 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.
{¶ 11} Courts classify contempt as criminal or civil, depending upon the purpose of the sanction imposed. Camp-Out, Inc. v. Adkins, 6th Dist. No. WD-06-057, 2007-Ohio-3946; see, also,
{¶ 12} 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 (1996), 113 Ohio App.3d 708, 711, 681 N.E.2d 1383. Any sanction imposed for civil contempt must afford the contemnor the right to purge himself of the contempt. DeLawder v. Dodson, 4th Dist. No. 02CA27, 2003-Ohio-2092, ¶10.
{¶ 13} Here, the record establishes that the trial court found Paramount in indirect civil contempt. The contempt was civil because the trial court‘s sanctions were designed to coerce Paramount to appear. At the outset, Paramount was duly served with the summons and the complaints for all four cases, but Paramount failed to appear for the arraignments. After Paramount failed to appear at the arraignment, the trial court placed the cases on its corporate docket and sent out notices, which Paramount received. Paramount still failed to appear.
{¶ 14} Next, the trial court scheduled a show cause hearing for Paramount to appear and present evidence why they should not be held in contempt for their repeated failure to appear. However, Paramount failed to appear at the show cause hearing, despite being duly notified.
{¶ 16} On this record, despite Paramount‘s argument that its constitutional rights were violated, we conclude that they were given notice and an opportunity to be heard. As a result of Paramount‘s repeated failure to appear, the trial court had no alternative but to find them in civil contempt and begin assessing a daily contempt fine of $1,000 per property in an effort to compel their attendance.
{¶ 17} We also conclude that Paramount was afforded the opportunity to purge their contempt by simply appearing in court. The trial court‘s journal entry following Paramount‘s failure to appear at the show cause hearing, stated in pertinent part as follow:
“* * * The Court therefore finds that financial sanctions shall be imposed, in the form of $1,000 per diem, beginning on the day following the date ordered to appear, until such time as the defendant makes an appearance and enters a plea.” Journal Entry, June 16, 2009.
{¶ 18} As previously noted, when Paramount appeared in court, the trial court discontinued the daily fine. The immediate abandonment of the daily fines is conclusive evidence that its purpose was to coerce Paramount‘s attendance and not to punish them for a completed act. As such, we find no abuse of discretion in the trial court‘s decision. Accordingly, we overrule the first assigned error.
Excessive Fines
{¶ 20}
“(A) In all contempt proceedings, * * *. If the accused is found guilty, the court may impose any of the following penalties:
“(1) For a first offense, a fine of not more than two hundred fifty dollars, a definite term of imprisonment of not more than thirty days in jail, or both;
“(2) For a second offense, a fine of not more than five hundred dollars, a definite term of imprisonment of not more than sixty days in jail, or both;
“(3) For a third or subsequent offense, a fine of not more than one thousand dollars, a definite term of imprisonment of not more than ninety days in jail, or both.
{¶ 21} The record reveals that the instant matter involved Paramount‘s first offense for contempt. As such, pursuant to
Eighth Amendment Violation
{¶ 22} In the third assigned error, Paramount argues the amount of the per diem sanctions violated the Eighth Amendment to the United States Constitution. We disagree.
{¶ 23} 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, 817 N.E.2d 447, citing In re Grand Jury Proceedings (C.A.7, 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 (C.A.2, 1993), 2 F.3d 29, 30; Spallone v. United States (1988), 487 U.S. 1251, 1257, 109 S.Ct. 14, 101 L.Ed.2d 964.
{¶ 24} Here, given the civil nature of the contempt proceeding, the Excessive Fines Clause of the Eighth Amendment does not apply. Accordingly, we overrule the third assigned error.
Judgment affirmed in part and reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR