In re GMS Mgt. Co., Inc. v. Unpaid Court Costs, Fees & Delinquencies , 187 Ohio App. 3d 426 ( 2010 )

[Cite as In re GMS Mgt. Co., Inc. v. Unpaid Court Costs, Fees & Delinquencies, 187 Ohio App.3d 426, 2010-
Ohio-2203.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE GMS MANAGEMENT )
COMPANY, INC. )
)
APPELLANT, ) CASE NO. 09 MA 169
)
V.- ) OPINION
)
UNPAID COURT COSTS, FEES )
AND DELINQUENCIES, )
)
APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from County Court No. 4,
Case No. 09 OPEN.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
Michael Stavnicky and T. Christopher O’Connell, for appellant.
Paul J. Gains, Mahoning County Prosecuting Attorney, and Llinette Straford, Assistant
Prosecuting Attorney, for appellee
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: May 14, 2010
VUKOVICH, Presiding Judge.
¶{1} Plaintiff-appellant, GMS Management Company, Inc., appeals a decision
of Judge David D’Apolito of Mahoning County Court No. 4, which found that GMS owes
over $3,000 for court costs and ordered the clerk of that court to refuse to accept any
new pleadings even if court costs are advanced until all prior delinquent costs and fees
have been paid in full. We agree with appellant’s argument that this decision was
unconstitutionally entered without notice or an opportunity to be heard and is an
unconstitutional denial of access to the courts. For the following reasons, the judgment
of the trial court is reversed, and the case is remanded based upon constitutional
violations.
STATEMENT OF THE CASE
¶{2} On September 2, 2009, the court sua sponte entered a judgment entry
against GMS in a case the court created under the case number “09 OPEN” and
entitled In re GMS Mgt. Co., Inc. v. Unpaid Court Costs, Fees & Delinquencies. This
entry reads:
¶{3} “The court, sua sponte, finds that GMS Management Co., Inc. is
delinquent in its payments of court costs and fees owed to the court. The court finds
that the balance remains outstanding in an amount in excess of three thousand dollars
($3,000). The court further finds that a pattern of conduct has developed whereby GMS
Management has consistently failed to satisfy its financial obligations to this court. This
conduct has necessitated the court to file orders on two prior occasions suspending all
filings by GMS Management until the arrearages were satisfied in full.
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¶{4} “Therefore, it is ordered that to insure the proper administration of this
court, the clerk of Mahoning County Court #4 is hereby ordered not to accept any new
pleadings, with or without court costs advanced, until all prior delinquent costs and fees
have been paid in full and properly receipted from GMS Management Co., Inc.
¶{5} “It is so ordered.
¶{6} “There is no just cause for delay. This is a final appealable order.” (The
original was in all capital letters.)
¶{7} On September 24, 2009, an agreed judgment entry was filed in this 09
OPEN case. The entry noted that GMS had filed an original action in the Ohio Supreme
Court against the court and the clerk on August 6, 2009, relating to the court’s ability to
assess certain fees and charges and the timely processing of filings and court
proceedings. The entry stated that GMS had been paying its filing fees and writ fees for
evictions, and the court had been attempting to assess GMS for additional costs and
fees. The entry continued to state that GMS alleged that the court and the clerk had
improperly assessed GMS for costs associated with serving and/or enforcing writs of
restitution in conflict with R.C. 311.17 and 1923.09, alleging that these costs are to be
taxed against the debtor/defendant.
¶{8} The entry also disclosed that GMS had agreed to dismiss the original
action without prejudice and that the parties would proceed instead by way of a direct
appeal from the September 2, 2009 entry. In return for the dismissal, the court agreed
to stay the September 2 judgment and permit GMS to file new actions and to provide
GMS with an accounting of all court costs and fees associated with GMS matters for the
years 2005 through 2009. The stay of the September 2 judgment was also conditioned
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on GMS’s depositing $4,049.30 with the clerk to be held in trust pending the resolution
of the appeal.
¶{9} On September 29, 2009, GMS filed a timely appeal, attaching both
entries. In response to the brief filed by GMS, the prosecutor’s office submitted an
appellee’s brief on behalf of the trial court.
Assignment of Error Number One
¶{10} Appellant’s first assignment of error provides:
¶{11} “The trial court erred violating GMS’ due process rights by issuing a
judgment without notice or a right to be heard.”
¶{12} Rather than respond to the merits of this assignment, the trial court’s brief
merely counters that this issue is moot. The trial court urges that because it lifted the
sanction prohibiting new filings, there is no remedy for this court to grant, and any
opinion would be advisory. The trial court continues that the two exceptions to the
mootness doctrine are inapplicable.
¶{13} First, the court states that the issue is not capable of repetition but evading
review. The court states that GMS should have appealed the imposition of costs and
fees that it claims were wrongly imposed in the multiple cases giving rise to the court’s
September 2 order. This issue is discussed under assignment of error three, where the
trial court more thoroughly argues it. The court also claims that the issue of delinquent
fees will not arise again because there is a new court rule requiring payment of fees up
front. The court attaches a magistrate’s decision form with a blank, stating that the writ
shall issue “immediately upon receipt of costs and fees.” However, the blank is
optional, and this form is not a court rule. As for the second exception, the trial court
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urges that this is not a constitutional question or a matter of great public importance.
Yet the procedural due process issues raised here present constitutional questions.
¶{14} However, we need not confine our analysis to exceptions to the mootness
doctrine. Where the matter is not moot in the first place, the exceptions are irrelevant.
The trial court’s September 24, 2009 judgment entry did not moot the procedural due
process issues that resulted in the court’s September 2, 2009 judgment entry. The
portion of the September 24, 2009 entry lifting the sanction prohibiting new filings was
clearly and merely a stay. That is, the trial court ordered that it would “stay the
Judgment and permit GMS to file new pleading, motions, and actions” and declared:
¶{15} “[T]he Judgment entered by this Court on September 2, 2009, is hereby
stayed upon GMS depositing $4,049.30 with the Mahoning County Clerk of Court, which
deposit shall be held in trust by the Clerk pending the resolution of the Appeal. Payment
of this deposit is not satisfaction of the Judgment and shall not be deemed to satisfy the
Judgment. The Mahoning County Clerk of Court shall accept and process all new
pleading and filings from GMS.
¶{16} “Nothing contained herein shall be deemed a waiver or release by GMS of
any of its rights, remedies, causes of action or claims associated with the Dispute, the
Original Action, the Judgment or the Appeal.”
¶{17} A trial court’s act of temporarily lifting a sanction pending appeal and
requiring a deposit for this lifting is clearly the staying of a judgment rather than
settlement or mooting of the issue. See App.R. 7(A) (stay ordinarily sought in trial court
in the first instance) and (B) (stay may be conditioned on giving of bond). A stay does
not moot an appeal; rather, the very point of a stay pending appeal is to keep an appeal
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from becoming moot. See generally Am. Energy Corp. v. Datkuliak, 174 Ohio App.3d
398, 2007-Ohio-7199, ¶ 23-34 (failing to seek a stay mooted the appeal). Thus,
contrary to the trial court’s initial argument, GMS’s constitutional arguments were not
mooted by the September 24, 2009 entry.
¶{18} We now turn to the merits of this assignment of error. GMS complains
that the court entered an order in a nonexistent action prohibiting any new filings and
requiring the payment of an inexact amount (“in excess of” $3,000) without providing
notice or an opportunity to be heard. GMS equates the trial court’s actions with illegal
contempt proceedings, urging that no court order had been violated, no show-cause
order had been issued, and no opportunity to defend against the allegations had been
provided where GMS could evaluate the source of the fees and argue the statutory
requirements for payment of fees.
¶{19} This argument has merit. Both the Fourteenth Amendment to the United
States Constitution and Section 16, Article I of the Ohio Constitution guarantee due
process of law. Procedural due process ensures the opportunity to be heard after
notice of a hearing before depriving a party of a property interest. Ohio Assn. of Pub.
School Emp. v. Lakewood City School Dist. Bd. of Edn. (1994), 68 Ohio St.3d 175, 176.
Thus, a party must be given reasonable notice that is sufficient to allow that party to
prepare a defense and then must be provided a meaningful opportunity to be heard
before an order requires payment and simultaneously prohibits the exercise of a legal
right. See generally Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 542; Galt
Alloys, Inc. v. Key Bank Natl. Assn. (1999), 85 Ohio St.3d 353, 357; State v.
Hochhausler (1996), 76 Ohio St.3d 455, 459.
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¶{20} There is dearth of case law on the precise topic here. In one case
concerning the postjudgment addition of certain costs, a court-appointed guardian ad
litem had filed a postjudgment motion seeking $2,300 in fees. The motion had
apparently not been served on the parties. Nor did the court give notice and opportunity
to be heard before it ordered the guardian ad litem’s fees to be assessed as court costs,
which had previously been imposed upon the father. The Fourth District reversed and
remanded, finding that this judgment constituted a violation of procedural due process.
In re B.B.M. (Dec. 10, 1997), 4th Dist. No. 97CA2274.
¶{21} As GMS suggests, the court’s action here could be likened to a summary
contempt judgment. The failure to comply with a court order is indirect contempt. In re
Guardianship of Myers, 7th Dist. Nos. 02CA6 and 02CA42, 2003-Ohio-5308, ¶ 29. See
also R.C. 2705.02(A) (disobedience of or resistance to an order, judgment, or command
of a court or officer constitutes contempt). It is civil contempt when the purpose of the
punishment is coercive, remedial, and conditional and when the contemnor is usually
able to purge the contempt by compliance with the court order. In re Olivito, 7th Dist.
No. 04MA42, 2005-Ohio-2701, ¶ 21.
¶{22} Here, the court attempted to remediate a perceived delinquency and to
coerce GMS into satisfying it by imposing the punishment of denying access to the court
until the delinquency is cured. However, the court failed to provide notice or an
opportunity to be heard. The court essentially combined a complaint and a judgment in
one filing.
¶{23} As GMS points out, there also must be a pre-existing court order before
one could be found to be in violation of a court order. See Consol. United Methodist
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Church v. Knowles, 11th Dist. No. 2006-T-0110, 2007-Ohio-3383, ¶ 34 (“Proceedings
for contempt for noncompliance will not lie where the order does not expressly address
the alleged act of disobedience”), citing S. Euclid Fraternal Order of Police, Lodge 80 v.
D'Amico (1987), 29 Ohio St.3d 50 (because there was no court order of record directing
how the city was to proceed, the city could not be held in contempt of an order that
generally granted a judgment). Considering the state of our record, we cannot discern
whether the court had previously ordered GMS to pay this delinquency or whether GMS
was liable for the costs in the prior unidentified court actions.
¶{24} In any event, this indirect contempt, for failure to pay a sum supposedly
owed to the court, cannot be punished summarily. Olivito, 2005-Ohio-2701, at ¶ 23;
Myers, 2003-Ohio-5308, at ¶ 32. See also R.C. 2705.03 (where court is punishing
disobedience of court judgment, order, or command, a charge must be filed in writing
and entered in the journal, and the person charged must have the opportunity to be
heard); 2705.05 (in all contempt proceedings, the court must conduct a hearing). Such
action is a violation of procedural due process rights because notice and opportunity to
be heard are required before such a finding is made. Id.¶{25} We conclude that there was a due process violation when the trial court
sua sponte opened a case and, without notice or the opportunity to be heard, entered a
final order stating that no further filings would be accepted in any future or current cases
(even if costs were advanced in those cases) unless GMS paid costs that the court had
not required GMS to advance in multiple prior cases in which costs ended up being
assessed against the tenant. Whether the court was attempting to proceed as in the
case of a contempt or the court was creating a case to address outstanding fees in an
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attempt to get around the statutory contempt requirements, the procedure used
constituted a violation of the due process rights of GMS.
Assignment of Error Number Two
¶{26} Appellant’s second assignment of error alleges:
¶{27} “The trial court erred by denying and refusing GMS access to the courts.”
¶{28} Besides the fact that current and future access to the court was denied
without notice and an opportunity to be heard, GMS adds that denial of access to the
courts is acceptable only in certain limited circumstances, such as the case of a
vexatious litigator, and even then, the court cannot deny access when there is a
legitimate filing. GMS cites Article I, Section 16 of the Ohio Constitution, which
provides:
¶{29} “All courts shall be open, and every person, for an injury done him in his
land, goods, person, or reputation, shall have remedy by due course of law, and shall
have justice administered without denial or delay.”
¶{30} A vexatious-litigator case addressed due process and the constitutional
right to access to the courts. Mayer v. Bristow (2000), 91 Ohio St.3d 3. The court held
that the General Assembly had exercised a rational policy choice to force a vexatious
litigator into a single forum for preliminary review of his filings. Id. at 15. The court noted
that access to the courts is not denied regarding legitimate claims. Id. at 14.
¶{31} On the contrary, the trial court’s denial of access here was not pursuant to
a statute, as the trial court’s brief cites no legislative enactment that similarly permits the
denial of access to the courts in situations where a party owes the court money. The
trial court’s order here bars even legitimate filings where costs have been advanced and
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where the claims have no relation to the actions from which the dispute arose. As GMS
points out, even a vexatious litigator can have legitimate filings accepted for review, and
any barring of all future actions would be constitutionally infirm. See id. at 14; State ex
rel. Charvat v. Frye, 10th Dist. No. 06AP-100, 2006-Ohio-5947, ¶ 12 (prior vexatious
acts cannot be punished by refusing new legitimate actions); R.C. 2323.52(F)(1).
¶{32} The trial court’s order barring all current and future actions and filings,
even if fees were advanced and even in cases unrelated to the costs supposedly owed,
constitutes an improper denial of access to the courts. This is especially true where due
process was not respected (as discussed in the prior assignment of error). Cf. Mayer,
91 Ohio St.3d at 17-18 (the denial of access to the court by a mail restriction did not
result from a procedural due process violation because the vexatious-litigator statute
provided notice and an opportunity to be heard). See also R.C. 2323.52(C) (a
vexatious-litigator action shall proceed as a regular civil action). Therefore, this
assignment of error has merit.
¶{33} Finally, we note that the trial court’s brief raises its mootness argument in
response to this assignment as well. For the reasons set forth at the beginning of the
first assignment of error, this assignment of error is not moot. That is, a stay of a
judgment pending appeal does not moot a sanction. Plus, this is a constitutional
question, and review would be permitted in any event.
Assignment of Error Number Three
¶{34} GMS’s third assignment of error contends:
¶{35} “The trial court erred in assessing costs and charges to the plaintiff in
violation of R.C. 2335 et seq. and 311.17.”
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¶{36} GMS states that the court cannot come after it for delinquent costs that
were never assessed to it. GMS quotes landlord-tenant law providing: “If the judge
finds the complaint to be true, the judge shall render a general judgment against the
defendant, in favor of the plaintiff, for restitution of the premises and costs of suit.” R.C.
1923.09(A). GMS also points out that a writ-of-restitution statute provides that the
sheriff shall charge certain fees for the service and return of writs of possession or
restitution, “which the court or its clerk shall tax in the bill of costs against the judgment
debtor or those legally liable thereforfor the judgment.” R.C. 311.17.
¶{37} GMS continues by citing R.C. Chapter 2335, which reads as requiring
outstanding costs to be collected from the person who was said to be liable for them.
See R.C. 2335.18 (costs shall be taxed); 2335.19(4) (costs of party recovering shall be
carried in that person’s judgment and costs against whom judgment is rendered shall be
separately stated in the record or docket; party in whose favor judgment for costs
rendered cannot release debtor from obligation to pay costs unless that party previously
advanced costs to the clerk) and (B) (judgment for costs allows clerk to issue certificate
of judgment to collect against person liable for costs); and 2335.21 (remedy is to
execute against indebted party).
¶{38} Initially, the trial court’s brief states that the provisions within Chapter 2335
apply only to common pleas courts. GMS counters that these provisions do generally
apply to the clerk of county courts as well. See R.C. 2303.31 (“The duties prescribed by
law for the clerk of the court of common pleas shall, so far as they are applicable, apply
to the clerks of other courts of record”) and 2335.18 (“the costs * * * in any of the courts
of this state, shall be taxed and entered of record separately”). See also R.C. 2335.20
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(specifying “the clerk of the court or the judge of a county court, issuing execution for a
judgment as provided by section 2335.19”); and 2335.24(B)(3) (the term “legislative
authority” in the section dealing with contracts for collection services includes a board of
county commissioners “if the clerk of the court involved is the clerk of a county court”).
¶{39} The trial court insists that GMS could have filed a declaratory-judgment
action seeking to prohibit the court from holding it liable for these costs and to mandate
the court to remedy the past imposition of liability. This was essentially the purpose for
the original action in the Supreme Court. However, GMS decided to pursue the matter
by way of the direct appeal of the September 2, 2009 entry. Even if a declaratory-
judgment action may have been available, it would not disallow a direct appeal of a
judgment entry, as there is a right to appeal a final order to the court of appeals.
¶{40} Thus, the trial court contends that the appeal of this issue is untimely
because GMS should have filed an appeal from each case containing outstanding costs
and argued the assessment in each individual case. GMS responds that costs against
it were never part of any judgment until the September 2, 2009 entry, and thus it had
nothing to appeal in the individual cases, in which costs were typically assessed against
the evicted tenant.
¶{41} The answer to this question lies in the answer to the next issue raised by
the trial court’s brief: there is no record from which this court can make its ruling. The
record in this case consists merely of the September 2, 2009 judgment entry quoted
above and the September 24, 2009 stay order. GMS is unaware of the exact source of
the costs in each unidentified case. We remain unaware of which cases have
outstanding costs and what each individual cost assessment represents. At one point, it
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is suggested that GMS did pay for the writs of restitution; at another point, it is implied
that the cost of the writs had not been advanced; at yet another point, it is stated that
unknown additional fees were added.
¶{42} Moreover, we cannot resolve whether costs were assessed against the
tenant as opposed to GMS in each individual case. In fact, the trial court’s brief (by
arguing that GMS could have appealed in each individual case) suggests that costs
were assessed against GMS, whereas GMS disputes this suggestion.
¶{43} As the facts of the case are not contained in the record, we are unable to
apply the statutes to the facts of the case. Likewise, we are unable to enter an order
prohibiting certain actions without knowing whether the actions were actually performed
and without knowing the basis for those actions. We have not been asked to (nor could
we) add matter to the record that was not presented in this case below. See State v.
Ishmail (1978), 54 Ohio St.2d 402, 406.
¶{44} Notably, GMS does not actually dispute this barrier to our review in its
reply to the trial court’s brief on this topic. Rather, GMS points out that the reason for
the lack of a record was the trial court’s method of entering a judgment in a newly
created case without notice or an opportunity to be heard. This conclusion coordinates
with the first two assignments of error regarding the need to reverse and remand.
Regardless of the genesis of the lacking record, the file does not permit a review of the
court’s finding that GMS owes court costs.
Assignment of Error Number Four
¶{45} Appellant’s fourth assignment of error provides:
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¶{46} “The trial court has erred by failing to provide any refunds or accounting of
court costs as required by R.C. 1907.20.”
¶{47} As for entitlement to a refund, the record is inadequate to evaluate this
issue, as discussed above. Moreover, it is unknown what funds GMS claims should be
refunded: the deposit securing the stay (which is the subject of the prior assignment of
error) or some other funds.
¶{48} As for the lack of an accounting, the trial court’s brief states that this issue
is not ripe and that GMS cannot raise issues that occurred after the appeal was filed.
That is, the trial court allegedly has not provided an accounting for the years 2005
through 2009 after it agreed to do so in the September 24, 2009 judgment. This issue is
the subject of an original action filed by GMS against the clerk and the trial court in 7th
Dist. No. 10MA1.
¶{49} Although GMS filed a detailed reply brief here, the brief did not counter the
argument that this assignment of error improperly deals with occurrences subsequent to
the appeal. Because the failure to comply with the settlement portion of the September
24, 2009 judgment occurred after this appeal and is the subject of an original action, it is
not part of this appeal.
¶{50} In addition, as this case is being reversed and remanded as a result of
procedural-due-process violations and the access-to-the-courts violation, any lack of
sufficient notice reasonably calculated to allow GMS to present a defense may be
corrected by the notice issued by the trial court after the remand.
¶{51} Furthermore, considering the lack of a record in this case due to the
court’s failure to provide notice and an opportunity to be heard, we cannot actually
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discern what if anything had been provided to GMS regarding its liability for court costs.
Similarly, what the clerk does or does not do on a regular basis has not been
established in the record below.
¶{52} Thus, we cannot evaluate any suggestion here that the court or the clerk
failed to provide a proper accounting prior to entering the September 2, 2009 entry.
Accordingly, we cannot address this assignment of error.
¶{53} For the foregoing reasons, the judgment of the trial court is hereby
reversed, and this cause is remanded based on unconstitutional findings.
Judgment reversed
and cause remanded.
WAITE and DEGENARO, JJ., concur.
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