651 N.E.2d 1048 | Ohio Ct. App. | 1995
Contemnor-appellant Philip M. Manogg appeals from a judgment of the Court of Common Pleas of Wyandot County finding him in direct contempt of court. For the reasons that follow, the judgment of the trial court is affirmed.
On August 9, 1994, Judge Robert D. Walker presided over a hearing on the plaintiff's motion for summary judgment in the fraudulent conveyance case. The appellant prepared and served copies of a memorandum opposing the plaintiff's motion for summary judgment on all the parties involved with the litigation. The appellant filed the original memorandum opposing the plaintiff's motion for *731 summary judgment with the Wyandot County Clerk of Courts on August 8, 1994. This memorandum contained the following language:
"* * * Plaintiff is ESTOPPED from joining in Manogg and Wheatley Company, an Ohio Corporation at this time. All of the defendants now made a party to plaintiffs and Walker fraud applied to the court to be made parties earlier. [Sic.]" * * *
At the August 9, 1994 hearing, the following exchange between Judge Walker and the appellant occurred:
"THE COURT: This Court set this matter down for hearing and before the Court[.] Mr. Manogg suggested that there was probably some issues for a jury trial. The Court responded thereto indicating that it would not entertain any jury trial as this case was primarily a real estate case and that it did not require a jury. * * * Mr. Manogg on August 8th, I believe, is that correct Mr. Manogg you filed a —
"MR. MANOGG: I don't know what date it was filed.
"THE COURT: Memorandum in opposition to plaintiff and Beitler motions for summary judgment.
"MR. MANOGG: I prepared it, I didn't file it personally.
"THE COURT: You sent it by mail?
"MR. MANOGG: Right.
"THE COURT: To the — This is the document if you were to look at this, come up to the bench; is that the document?
"MR. MANOGG: Yes, sir.
"THE COURT: On page three of this document it has been acknowledged as prepared by Mr. Manogg, the last line is noteworthy. I'm going to read the entire third paragraph, `Plaintiff is estopped from joining in Manogg and Wheatley Company, an Ohio Corporation, at this time. All of the defendantsnow made a party to plaintiff's and Walker fraud apply to theCourt to be made parties earlier.' [Sic.] [Emphasis added.]
"I'm reading over, Mr. Manogg. You've indicated to the court that this is your document, your handwriting, you did it; is that correct[?]
"MR. MANOGG: Certainly.
"THE COURT: Very well, sir, you are in contempt of this Court, you are going to be fined five hundred dollars and you are going to be committed to the Wyandot County jail there to stay for a period of thirty days, effective right now.
"MR. MANOGG: May I ask a question sir? *732
"(THEREUPON MR. MANOGG WAS ESCORTED OUT OF THE COURTROOM BY THE WYANDOT COUNTY SHERIFF'S DEPARTMENT.)"
The trial court incorporated its contempt citation into a judgment entry dated August 9, 1994. In that entry, the trial court reduced the appellant's fine from $500 to $250, but did not reduce the appellant's jail time. From that sentence the appellant brings this appeal. This court stayed the sentence pending the appeal.
The appellant's first assignment of error attacks the validity of the trial court's order finding him in direct contempt. Since the balance of the appellant's assignments of error are concomitantly related to the first, their viability hinges on our determination of his first assignment of error.
In Windham Bank v. Tomaszczyk (1971),
Contempt is classified as either civil contempt or criminal contempt. Denovchek, supra; Brown v. Executive 200, Inc. (1980),
Criminal contempt may be direct or indirect. Direct contempt is misbehavior "committed in the presence of or so near the court as to obstruct the due and orderly administration of justice, and punishment therefor may be imposed summarily without the filing of charges or the issuance of process." In reLands (1946),
Courts have the discretion and power to determine the kind and character of conduct which constitutes direct contempt of court. State v. Kilbane (1980),
In this case, the appellant's actions constituted direct contempt. The appellant prepared an official memorandum and filed it with the clerk of courts knowing that the trial judge would read it. The appellant served copies of the memorandum on all the parties involved in the litigation. The trial judge read the memorandum in his chambers. At the August 9 hearing, the appellant admitted that he had prepared and filed the memorandum that accused the judge of engaging in a fraud. The appellant's actions were tantamount to calling the trial court judge a fraud in open court and were designed to disrupt the court proceedings set for the August 9 hearing on the plaintiff's motion for summary judgment.
While the appellant's contumacious acts did not occur in the actual presence of the trial judge, the acts of filing the memorandum with the clerk of courts and serving the memorandum on all the parties involved in the litigation sufficiently involved court personnel and officers of the court so as to occur within the constructive presence of the trial judge. State exrel. Seventh Urban, Inc. v. McFaul (1983),
Direct contempt may be summarily punished. R.C.
"A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice."
Thus, the procedural rights of due process that the appellant claims he has been denied are inapplicable since he was found in direct criminal contempt. See *735 In re Lands,
The appellant's first assignment of error is overruled. Since the remaining eight assignments of error are derivative in nature from the appellant's first assignment of error, they are also overruled for the foregoing reasons.
Judgment affirmed.
SHAW, P.J., and HADLEY, J., concur.