Ross v. Olsavsky , 2011 Ohio 1655 ( 2011 )

[Cite as Ross v. Olsavsky, 2011-Ohio-1655.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JACK ROSS, et al., )
) CASE NO. 09 MA 191
PLAINTIFFS-APPELLEES, )
)
- VS - ) OPINION
)
LINDA OLSAVSKY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from County Court No. 5,
Case No. 07 CVF 132 CNF.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellees: Attorney Edward T. Saadi
970 Windham Court, Suite 7
Youngstown, OH 44512
For Defendant-Appellant: Attorney Martin Hume
6 Federal Plaza Central
Suite 905
Youngstown, OH 44503-1506
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Dated: March 29, 2011
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DeGenaro, J.
{¶1} Appellant, Linda Olsavsky appeals the October 2, 2009 decision of the
Mahoning County Area Court No. 5 that overruled Olsavsky's motion to show cause. On
appeal, Olsavsky argues that the trial court erred in failing to find Appellees, Jack Ross, et
al. in contempt of the court's stay of execution because Ross repeatedly attempted to
collect on the judgment. Olsavsky also argued that the trial court erred in granting Ross's
motion for relief from stay of execution, but later conceded that her argument was moot.
{¶2} Ross's actions did not constitute impermissible attempts to collect on the
stayed judgment. Therefore, the trial court did not abuse its discretion by overruling
Olsavsky's contempt motion. Accordingly, the trial court's decision is affirmed.
Facts and Procedural History
{¶3} On July 27, 2007, Ross obtained a default judgment against Olsavsky in the
amount of $12,306.65. Subsequent to the resolution of an intervening bankruptcy filing
by Olsavsky, a garnishment order was issued to Olsavsky's employer, Sun Healthcare
Group, Inc., in November of 2008. The Order and Notice of Garnishment stated that the
judgment of $12,306.65, plus interest and costs, would presently require an estimated
total of $13,806.55 to be garnished from Olsavsky's wages. Her wages from Sun
Healthcare were garnished beginning in December of 2008.
{¶4} On February 17, 2009, Olsavsky filed a motion to vacate the July 27, 2007
default judgment, claiming that the judgment was void ab initio for failure of proper
service, or alternatively that she merited Civ.R. 60(B) relief. Olsavsky also filed a motion
to stay execution of judgment. The trial court denied both of Olsavsky's motions on April
10, 2009. On May 11, 2009, Olsavsky filed a notice of appeal and a motion to stay
execution of judgment pending her appeal. On May 13, 2009, the trial court granted
Olsavsky's motion and stayed execution of the April 10, 2009 judgment pending appeal.
Ross had collected $8,890.34 prior to the stay, and because of the trial court's stay order
the remaining ongoing garnishments were to be held in escrow.
{¶5} Ross filed an affidavit of the current balance due on garnishment on July 20,
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2009. On July 21, 2009, Olsavsky filed a motion to require plaintiffs to show cause why
they should not be held in contempt for violation of the order staying execution on the
judgment, arguing that Ross was circumventing the stay order by attempting to collect the
judgment debt through Case No. 4:08-CV-01227-PCE at the U.S. District Court for the
Northern District of Ohio. On the same day, Ross filed a motion for relief from stay of
execution and for disbursement of garnishment funds.
{¶6} The trial court denied the motion for relief and the contempt motion as they
were filed subsequent to Olsavsky's notice of appeal. Pursuant to a 45-day limited
remand from this court on August 19, 2009, the trial court ordered the parties to file briefs
in support of their respective July 21, 2009 motions, as well as proposed findings of fact
and conclusions of law.
{¶7} In her brief, Olsavsky alleged that Ross had made numerous attempts to
collect the remaining judgment amount, in violation of the trial court's May 13, 2009 order
to stay execution on the default judgment pending Olsavsky's appeal. Olsavsky alleged
that she had incurred $6,000.00 in attorney fees directly attributable to counsel's efforts to
contest Ross's improper actions. Olsavsky attached a number of exhibits to her brief,
including an uncertified copy of Ross's motion to vacate a decision in the Federal District
Court case, filed on July 17, 2009, a copy of the affidavit Ross filed on July 22, 2009, a
copy of a paystub reflecting a garnishment that occurred after Ross filed his affidavit, and
an unauthenticated copy of an email, allegedly sent from counsel for Ross to counsel for
Olsavsky, stating that Ross would commence proceedings to enforce his lien under the
federal case if the lien was not honored.
{¶8} On October 1, 2009, Sun Healthcare Group, Inc. filed an Answer of
Garnishment, noting that Olsavsky's final payment in satisfaction of the judgment had
been submitted to the trial court. On October 2, 2009, the trial court granted Ross's
motion for relief from stay, denied Olsavsky's contempt motion, and ordered the
immediate release of the escrow funds to Ross. On October 5, 2009 the limited stay
issued by this Court expired, as the 45th day fell on a Saturday. On October 5, 2009,
Olsavsky filed a motion to stay execution, but before this court had an opportunity to
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consider the motion, on October 9, the remaining judgment balance was released from
escrow to Ross as ordered by the trial court. On October 19, 2009, Ross filed a release
of garnishment and notice of satisfaction of judgment.
Motion for Relief
{¶9} In her first of two assignments of error, Olsavsky asserts:
{¶10} "The trial court erred in granting plaintiff-appellee's motion for relief from the
stay of execution."
{¶11} Ross argues that Olsavsky's assigned error is moot, because the July 27,
2007 judgment was executed in full as of October 9, 2009, and because this court
resolved Olsavsky's pending appeal in Ross's favor on March 25, 2010 in the case styled
Ross v. Olsavsky, 7th Dist. No. 09 MA 95, 2010-Ohio-1310. This court has held that
"when the judgment on which the stay is based has been fully executed, the issue
becomes moot." McCarthy v. Lippitt, 7th Dist. No. 04-MO-1, 2004-Ohio-5367, at ¶35.
Olsavsky correctly concedes that this argument is moot. Accordingly, Olsavsky's first
assignment of error is moot.
Motion for Contempt
{¶12} In her second assignment of error, Olsavsky asserts:
{¶13} "The trial court erred in failing to find plaintiff-appellees in contempt of court
for violation of the court's order staying execution on the judgment against the defendant-
appellant"
{¶14} Contempt is the disobedience or resistance to an order or command of a
court. R.C. 2705.02(A). It is conduct that engenders disrespect for the administration of
justice or tends to embarrass, impede, or disturb a court in the performance of its
functions. Denovchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 15, 520
N.E.2d 1362. A trial court has the broad discretion to determine the kind of conduct that
constitutes contempt of court. State ex rel. Seventh Urban, Inc. v. McFaul (1983), 5 Ohio
St.3d 120, 122, 449 N.E.2d 445, citing State v. Kilbane (1980), 61 Ohio St.2d 201, 15
O.O.3d 221, 400 N.E.2d 386, at paragraph one of the syllabus. A trial court's decision in
a contempt proceeding should therefore not be disturbed absent an abuse of discretion.
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State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 573 N.E.2d 62. In order to
find an abuse of discretion, the trial court's decision must prove to be unreasonable,
arbitrary or unconscionable, and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶15} Olsavsky argues that Ross violated the trial court's May 13, 2009 stay of
execution by filing a motion before the U.S. District Court for the Northern District of Ohio
in a separate case on July 17, 2009, by filing an Affidavit of Current Balance Due of
Garnishment Order with the trial court on July 22, 2009, and by an email correspondence
between counsel on August 8, 2009 referencing Ross's intent to enforce his creditor's lien
from the federal case. Olsavsky argues that the trial court abused its discretion by not
finding Ross in contempt for these actions, and by failing to award Olsavsky $6,000.00 in
attorney fees related to her defense against Ross's impermissible attempts to collect on
the stayed judgment.
{¶16} First, Ross's July 17, 2009 Motion to Vacate was filed with the U.S. District
Court for the Northern District of Ohio, in an action Olsavsky filed against Five Star
Quality Care, Inc. that was dismissed on July 9, 2009. Although the proceedings for that
separate case are not part of the record in this case, we can glean from this record that
Ross became a party to that federal case as an intervenor, and argued in that motion that
the federal court's decision to dismiss the case was based on a misrepresentation by
Olsavsky that the parties had settled the matter. Ross's motion sought to continue with
the federal case, and did not constitute a collection of Olsavsky's escrowed funds in the
present case.
{¶17} Second, pursuant to the trial court's order and instructions, Olsavsky's
personal earnings were to continue to be garnished under the original garnishment order,
but disbursement of the garnished amounts was stayed. Thus, all garnishments of
Olsavsky's wages subsequent to May 13, 2009 were held in escrow in compliance with
the trial court's order. While a continuous garnishment order remains in effect, R.C.
2716.031(B) allows a judgment creditor to file an affidavit of current balance due on
garnishment at any time, and R.C. 2716.031(A) requires the judgment creditor to do so at
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a minimum of once per year. Ross's July 22, 2009 affidavit served to provide notice of
the current accrual of interest and the remaining balance to be garnished and placed in
escrow, in compliance with R.C. 2716.03. Ross's affidavit did not constitute any sort of
attempt or demand to disburse the escrow funds.
{¶18} Finally, the trial court's May 13, 2009 order did not enjoin communication
between the parties or their counsel. The August 8, 2009 email correspondence between
counsel for Ross and Olsavsky did not constitute a violation of the stay. Although
Olsavsky apparently felt threatened by the correspondence expressing the intent to
attempt to collect the funds, the private correspondence between counsel had no legal
force or effect. See Hrabak v. Collins (1995), 108 Ohio App.3d 117, 124, 670 N.E.2d 281(in the context of Civ.R. 55(A)). Thus, the communication did not function to collect
Olsavsky's escrowed funds.
{¶19} The trial court's May 13, 2009 stay order functioned to enjoin Ross from
collecting the funds held in escrow. None of the actions described by Olsavsky
constituted a collection of those funds. Thus, the trial court did not abuse its discretion in
declining to find Ross in contempt of court, and denying Olsavsky's request for $6,000.00
in attorney fees. Olsavsky's second assignment of error is meritless. Accordingly, the
judgment of the trial court is affirmed
Waite, P.J., concurs.
Vukovich, J., concurs.