Obara v. ObaraObara v. Obara
- Reporters:
- ,
- Before:
- Hall, Donovan, Fain
HALL, J.
{¶ 1} David Obara appeals from the trial court‘s order finding him in contempt for failing to obey the court‘s preliminary injunction and also appeals from the order finding that he failed to satisfy the purge condition imposed by the court. Because the trial court
I. Background
{¶ 2} Elizabeth Obara (David‘s mother) filed a complaint against her son for money damages, replevin, and injunctive relief in an attempt to get back her coin collection, which she says she gave to David simply for safe keeping. She also filed a motion under
(1) Defendant David Obara is restrained from interfering with Plaintiff‘s possession of her Coin Collection;
(2) Defendant David Obara is restrained from selling, transferring, moving, relocating, and/or in any way disposing of the Coin Collection;
(3) Defendant David Obara is ordered to immediately identify the location of the Coin Collection;
(4) Defendant David Obara is ordered to immediately identify the identity of any person/entity to whom he has sold, gifted, transferred, and/or allowed to possess any item of gold, silver, or other portion of the Coin Collection, including the name, address, and date of the transaction; and
(5) Defendant David Obara is ordered to immediately restore possession of the Coin Collection to the Plaintiff.
Order Granting Relief (Oct. 16, 2014).
{¶ 3} Two months later, Elizabeth filed a motion asking the trial court to hold Obara
{¶ 4} On April 28 the trial court found that Obara had failed to satisfy the purge condition. The court said that “[a]lthough Defendant submitted information to the Court, indicating where the coin collection ‘might’ be located, or who ‘may’ have certain items, the Court finds that this is not sufficient to purge the finding of contempt, and Defendant fails to be in compliance with the Court‘s Order.” Entry and Order Finding Defendant, David J. Obara, in Contempt (Apr. 28, 2015). So the contempt penalty—the fine and jail sentence—remained.
{¶ 5} Obara immediately appealed the conviction and asked this Court to stay the jail sentence pending the outcome of the appeal. We declined to stay the sentence.
II. Analysis
{¶ 6} Obara assigns seven errors to the trial court, which we address in an order of our own. Elizabeth did not file a brief.
A. The validity of the preliminary injunction
{¶ 7} . The first assignment of error alleges that the trial court erred by ordering mandatory injunctive relief because such relief is not authorized by
{¶ 8} “[T]he purpose of a preliminary injunction is to preserve the status quo between the parties pending a trial on the merits.” Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, ¶ 17. An injunction seeks “to prevent or prohibit conduct or behavior of the defendant and to protect and restore rights or benefits of the plaintiff/movant.” 2 Darling, Klein, Terez, Baldwin‘s Ohio Practice: Civil Practice, Section 65:1 (Ed.2014). Sometimes “preservation of the court‘s ability to exercise meaningful review may require affirmative relief in order to prevent some future irreparable injury.” (Emphasis sic.) United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 348 (6th Cir.1998). Accordingly, “the injunctive order either compels the defendant to take affirmative action or prohibits the defendant from doing something.” 2 Darling, Klein, Terez at Section 65:1. Thus the trial court had the authority to grant mandatory injunctive relief designed to locate and preserve the coin collection to effectuate further relief.
{¶ 9} Even if we were to assume that the trial court did not have authority to positively mandate relief, Obara was still obligated to obey the injunction because the court was acting within the scope of its authority. State v. Christon, 68 Ohio App.3d 471, 475, 589 N.E.2d 53 (2d Dist.1990) (saying that “[o]rdinarily, even an order constituting reversible error must be obeyed so long as the order is made within the lawful scope of a court‘s authority“); State v. Kitchen, 128 Ohio App.3d 335, 342, 714 N.E.2d 976 (2d Dist.1998) (saying that “[g]enerally, * * * when a court acts within its authority, even those
{¶ 10} The first assignment of error is overruled.
B. Alternative remedies under R.C. 2705.10
{¶ 11}
{¶ 12} Civil contempt proceedings provide the remedy for failure to comply with a court order. “[A]lthough the proceedings are brought to preserve and enforce the rights of private citizens, the action is one between the court and the contemnor.” (Citation omitted.) Miller v. Koepke, 6th Dist. Wood No. 91WD076, 1992 WL 154191, *5 (June 30, 1992). “The essential element of a contempt proceeding is that the person facing contempt charges has obstructed the administration of justice in some manner.” Martin v. Martin, 179 Ohio App.3d 805, 2008-Ohio-6336, 903 N.E.2d 1243, ¶ 20 (2nd Dist.), citing State v. Kimbler, 31 Ohio App.3d 147, 151, 509 N.E.2d 99 (10th Dist.1986). “Accordingly, punishment by contempt is not prompted by injury * * * to the rights of another person * * *.” Kimbler at 151. Chapter 2705 provides a general remedy for contempt when no statute provides a remedy for the specific contempt at issue, like the failure to obey a subpoena issued by a county court,
{¶ 13} The third assignment of error is overruled.
C. No bond was necessary
{¶ 14}
{¶ 15} Recently, we adopted the position that “because
{¶ 16} The trial court here addressed this issue at the end of the preliminary injunction hearing: “In regards to bond in this matter, the Court is required to consider bond. And I have. And I find that zero bond will be set in this case, that there‘s not a need for a larger monetary bond other than that.” (Preliminary Injunction Tr. 50). “[T]he purpose of a bond is to assure relief to the enjoined party should that party eventually be vindicated.” Raney at ¶ 65. Obara did not allege that he would suffer any adverse financial consequences as a result of the injunction—or give any other reason why a bond should have been required. We conclude that the trial court did not abuse its discretion when it
{¶ 17} The seventh assignment of error is overruled.
D. The contempt finding
{¶ 18} The second and fourth assignments of error concern the contempt finding. The second assignment of error alleges that the trial court erred by finding Obara in contempt. The fourth assignment of error alleges that the court erred by finding that Elizabeth satisfied her burden of proof by clear and convincing evidence.1
{¶ 19} We review a trial court‘s finding of contempt for an abuse of discretion. Hoagland v. Hoagland, 2d Dist. Miami No. 2014-CA-30, 2015-Ohio-2426, ¶ 8. “An abuse of discretion implies that the trial court‘s attitude was unreasonable, arbitrary or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 20} The first issue is whether the contempt proceedings here were civil or criminal in nature. “Criminal contempt sanctions are unconditional, punitive in nature, and designed to vindicate the authority of the court.” (Citations omitted.) Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 14. “Civil contempt sanctions involve a conditional penalty ‘designed for remedial or coercive purposes and are often employed to compel obedience to a court order. * * * [They] are characterized as violations against the party for whose benefit the order was made.’ ” (Citation omitted.) Id. at ¶ 15, quoting State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555, 740 N.E.2d 265 (2001). ” ‘A contempt fine * * * is considered civil and remedial if it either “coerce[s] the defendant into compliance with the court‘s order, [or] * * * compensate[s] the complainant for losses sustained.” * * * Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge.’ ” Id., quoting Internatl. Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), quoting United States v. United Mine Workers of Am., 330 U.S. 258, 303-304, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Here, the contempt proceeding and sanctions were civil. The trial court‘s ruling gave Obara the opportunity to purge if he timely complied. Accordingly, the purpose of the jail term and fine was to coerce him to comply with the preliminary injunction, meaning that the contempt process was civil in nature.
{¶ 21} “Clear and convincing evidence is the standard of proof in civil contempt proceedings.” (Citation omitted.) Hoagland at ¶ 6. Obara contends that the trial court incorrectly applied the preponderance-of-the-evidence standard. We agree. At the end of the contempt hearing, the court said, “The Court, in considering all of the exhibits and the testimony here, does find that the Plaintiff has proven by a preponderance of the evidence that Mr. Obara did violate the Court‘s preliminary injunction order issued in October 16, 2014.” (Contempt Tr. 84-85).
{¶ 22} “[A]n abuse of discretion may be found when the trial court ‘applies the wrong legal standard.’ ” Ockunzzi v. Smith, 8th Dist. Cuyahoga No. 102347, 2015-Ohio-2708, ¶ 9, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). Because, as the Fourth District has said, “it is both unreasonable and unconscionable to hold an individual in civil contempt on a lesser
{¶ 23} Whether the evidence is sufficient to find Obara guilty of civil contempt under a clear-and-convincing standard of proof is an issue for the trial court to consider on remand and is not properly before us at this time.
{¶ 24} The second and fourth assignments of error are sustained.
E. The affirmative defense of impossibility
{¶ 25} The fifth assignment of error alleges that the court erred by failing to find that Obara had established the affirmative defense of impossibility. Whether an affirmative defense is established is an independent issue, so we consider this alleged error.
{¶ 26} Obara claims that it was impossible for him to comply with the injunction. ” ‘Impossibility to comply with a court order is a valid defense to an accusation of contempt[,] * * * [but] it is no defense if the accused brings the inability upon himself.’ ” Goddard-Ebersole v. Ebersole, 2d Dist. Montgomery No. 23493, 2009-Ohio-6581, ¶ 15, quoting Neff v. Neff, 2d Dist. Montgomery No. 11058, 1989 WL 13531 (Feb. 13, 1989). ” ‘[A] person who seeks to satisfy the court that his or her failure to obey an order or judgment was entirely due to the person‘s inability to render obedience carries the burden of establishing that fact.’ ” Wagshul v. Wagshul, 2d Dist. Montgomery No. 23564, 2010-Ohio-3120, ¶ 35, quoting 17 Ohio Jurisprudence 3d, Contempt, Section 62.
{¶ 27} Obara testified that it was not possible for him to determine the identity of
{¶ 28} In its contempt finding, the trial court focused on the injunction‘s orders to identify the location of Elizabeth‘s coin collection and to identify the people to whom Obara had not only sold coins but also given coins and people he has allowed to possess coins. As to location, Obara testified that there are three places where coins could be: a house in Richmond, Indiana, an apartment in Vandalia, and a house in Vandalia. Obara said that most of his personal property is at the Vandalia house. The two Vandalia properties are owned by Elizabeth, and according to Obara, she has banned him from setting foot on either property. He testified that when he went to the apartment in mid-2014, the police were there and told him that he was trespassing. He said that he never went back. Obara admitted that he never tried to get permission to access either Vandalia location to look for coins, despite the fact that Elizabeth‘s attorney had sent him a letter telling him that he needed to collect his property from the two locations. As to the coins, Obara testified that he had given coins to his wife.
{¶ 29} It appears from the evidence that Obara may bear at least part of the blame for not complying with the preliminary injunction. The evidence shows that he did not even try to get access to the locations where Elizabeth‘s coins might have been. The trial court reasonably found that Obara failed to prove that it was impossible for him to comply with the injunction.
{¶ 30} The fifth assignment of error is overruled.
F. The purge conditions are reasonable
{¶ 32} ” ‘The determination of whether a particular purge condition is unreasonable or impossible varies on a case-by-case basis and the contemnor must present sufficient evidence at the contempt hearing that the trial court‘s purge conditions are unreasonable or impossible for the contemnor to meet.’ ” (Citations omitted.) Bostick v. Bostick, 2d Dist. Champaign No. 2015-CA-13, 2016-Ohio-3354, ¶ 18, quoting Mackowiak v. Mackowiak, 12th Dist. Fayette No. CA2010-04-009, 2011-Ohio-3013, ¶ 51. Here, the purge condition was simply that, within four days, Obara comply with the mandatory orders in the injunction. We have already concluded that the trial court reasonably found that compliance was not impossible. We see nothing unreasonable about the purge condition.
{¶ 33} The sixth assignment of error is overruled.
G. The right to bail
{¶ 34} As a final matter, though Obara does not assign it as error, he claims that he was not given the right to bail under
III. Conclusion
{¶ 35} We have overruled all of the assignments of error except the second and fourth, both of which we have sustained. Therefore the trial court‘s April 27, 2015 order finding Obara in contempt and its April 28, 2015 order finding that he failed to satisfy the purge conditions are reversed. On remand, the court should determine whether or not Elizabeth proved by clear and convincing evidence that Obara failed to comply with the preliminary injunction.
DONOVAN, P.J., and FAIN, J., concur.
Copies mailed to:
Matthew D. DiCicco
Carlo C. McGinnis
Dennis Gump
Hon. Dennis J. Adkins