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City of Cleveland v. Bryce Peters Financial Corp.

Court of Appeals of Ohio, Eighth District

August 22, 2013

CITY OF CLEVELAND PLAINTIFF-APPELLEE
v.
BRYCE PETERS FINANCIAL CORP. DEFENDANT-APPELLANT

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, 2008 CRB 030445.

ATTORNEYS FOR APPELLANT Larry W. Zukerman Paul B. Daiker S. Michael Lear Brian A. Murray Zuckerman.

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.

BEFORE: Blackmon, J., Boyle, P.J., and Rocco, J.

JUDGMENT

PATRICIA ANN BLACKMON, JUDGE.

(¶l} 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 clerk of court entered "not guilty" pleas on behalf of Bryce Peters in the respective cases and issued orders via regular U.S. mail to appear for trial. Bryce Peters failed to appear.

(¶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

10} Where appropriate, because of its interrelatedness, we will address Bryce Peters' assigned errors together.

(¶ 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 and daily accumulated fines were converted into a judgment against the owner. Later, the owner appeared in court, entered pleas of no contest in the respective cases, was found guilty, and fined. Thereafter, the owner filed motions to vacate the fines relating to the contempt findings. The trial court denied the motions and the owner appealed.

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; see also R.C. 2705.01(A). Sanctions for criminal contempt are punitive, rather than coercive, in nature, and are aimed at vindicating the authority of the court. Id. Criminal contempt sanctions are

(¶ 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 ...


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