Ontario Teachers Plan Bd. v. Endurance Partners

[Cite as Ontario Teachers Plan Bd. v. Endurance Partners, 2013-Ohio-2267.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ONTARIO TEACHERS PLAN BOARD, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 MA 66
V. )
) OPINION
ENDURANCE PARTNERS, LLC et al., )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 201FJ26
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney Frederick S. Coombs
P.O. Box 6077
Youngstown, Ohio 44501
For Defendants-Appellants Attorney David C. Comstock
100 E. Federal Street, Suite 926
Youngstown, Ohio 44503
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: May 29, 2013
[Cite as Ontario Teachers Plan Bd. v. Endurance Partners, 2013-Ohio-2267.]
DONOFRIO, J.
{¶1} Defendants-appellants, Endurance Partners LLC and Edwin Yeo III,
appeal from a Mahoning County Common Pleas Court judgment finding Yeo in
contempt of court.
{¶2} This case originated from a judgment entry issued by the Supreme
Court of the State of New York. Plaintiff-appellee, the Ontario Teachers Pension
Plan Board, filed a motion in the trial court to enforce the foreign judgment.
{¶3} Appellee next filed a request for a debtor’s examination of Yeo. The
trial court signed the order on November 4, 2010, which required Yeo to appear at
appellee’s attorney’s office on November 22, 2010, to answer, under oath, questions
concerning his property and assets.
{¶4} Yeo did not appear on the scheduled date. Therefore, on December
21, 2010, appellee filed a motion for Yeo to appear and show cause why he should
not be held in contempt. On December 28, 2010, the trial court granted the motion
and entered an order directing Yeo to appear before the court and show cause why
he should not be held in contempt for failure to appear at the debtor’s examination.
{¶5} Yeo filed a memorandum in opposition where he asserted that he was
never served with the order for the debtor’s examination and, therefore, he could not
be in contempt of that order.
{¶6} Yeo next filed a motion for continuance of the show cause hearing
stating that he was not medically able to attend or participate in the hearing because
of a recent stroke, which he stated left him unable to participate in stressful situations
at that time.
{¶7} On appellee’s motion, a magistrate subsequently entered a decision
ordering Yeo to appear for an independent medical examination, to produce certain
documents previously requested, and to appear for a debtor’s examination within the
latter of 30 days of the decision or 40 days from the date of the medical examination.
{¶8} Yeo then filed a motion to vacate or reconsider the magistrate’s
decision ordering the medical examination, production of documents, and debtor’s
examination.
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{¶9} On July 6, 2011, appellee filed another motion for an order to show
cause why Yeo should not be held in contempt, this time for failing to produce the
requested documents within the time prescribed by the magistrate’s decision.
{¶10} On August 16, 2011, the trial court overruled Yeo’s motion to reconsider
or vacate the magistrate’s decision due to its untimely filing.
{¶11} On December 1, 2011, appellee filed another motion for an order for
Yeo to appear and show cause why he should not be held in contempt for his failure
to appear for the medical examination and again for his failure to produce the
requested documents.
{¶12} On December 6, 2011, the magistrate entered a decision granting
appellee’s motion and ordering Yeo to appear before the court on January 6, 2012, to
show cause why he should not be held in contempt.
{¶13} On January 10, 2012, the magistrate entered a decision stating that at
the scheduled January 6 show cause hearing, Yeo’s counsel appeared but Yeo did
not. The magistrate found that Yeo was served with a copy of the December 6 order,
both by regular mail and via his counsel, who reported that he forwarded the order to
Yeo. The magistrate also found, “[t]here is no indication that Mr. Yeo did not receive
notice of the Order. The magistrate further found there was no reason given at the
hearing for Yeo’s failure to comply with the court’s May 25, 2011 order directing him
to produce documents and appear for a medical examination. He found that Yeo’s
continued resistance to the court’s orders caused unnecessary expense to appellee
in the form of the fee paid to the doctor who was to conduct the medical examination
and for continued legal expenses. Thus, the magistrate found Yeo in contempt. He
directed Yeo to reimburse appellee $3,275 for the services of the doctor and $2,900
for attorney fees.
{¶14} Yeo filed a motion to set aside the magistrate’s decision asserting that
he was never served with the December 6 order. The trial court denied the motion.
It found that because Yeo had appeared through counsel during these proceedings,
he was deemed to be served by any delivery of the process or notice to his counsel.
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{¶15} Appellants filed a timely notice of appeal from the trial court’s judgment
denying the motion to set aside the magistrate’s decision.
{¶16} This court sent the case back on a limited remand for the trial court to
amend its judgment entry to define the rights, duties, and obligations of the parties.
{¶17} The trial court entered its amended judgment entry on June 28, 2012.
The court stated it would consider Yeo’s motion to set aside the magistrate’s decision
as an objection. It considered the objection. The court then found Yeo was deemed
to be served by any delivery of the process or notice to his counsel of record. Citing,
Quisenberry v. Quisenberry, 91 Ohio App.3d 341, 632 N.E.2d 916 (2d Dist.1993).
Thus, the court denied Yeo’s objection. The court then went on to find Yeo in
contempt for his failure to abide by the terms of the May 25, 2011 order as well as
prior orders of the court. It directed Yeo to reimburse appellee for the previous stated
sums. It further ordered Yeo to provide appellee with available dates within the next
two months when he could appear for the medical examination.
{¶18} Appellants now raise a single assignment of error that states:
THE TRIAL COURT ABUSED ITS DISCRETION BY RULING
THAT MR. YEO WAS SUCCESSFULLY SERVED WITH THE
COURT’S DECEMBER 6, 2010 [sic.] CONTEMPT ORDER.
{¶19} Appellants argue the trial court abused its discretion in finding that Yeo
was successfully served with the December 6, 2011 order. Without perfected
service, appellants contend, Yeo could not have been found in contempt. Appellants
assert the order was sent to Yeo’s counsel, not to Yeo. They assert that service on a
party’s counsel is not sufficient service on the party for contempt purposes. Further,
they assert the regular mail service to Yeo was returned and was unable to be
forwarded. Therefore, appellants contend Yeo was never served with the order.
{¶20} We review a trial court's contempt finding for abuse of discretion. State
ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75, 573 N.E.2d 62 (1991). An abuse
of discretion is more than an error of law or judgment; it implies that the trial court's
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judgment was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶21} In contempt cases, “a charge in writing shall be filed with the clerk of
the court, an entry thereof made upon the journal, and an opportunity given to the
accused to be heard, by himself or counsel.” R.C. 2705.03. Due process requires
that notice be reasonably calculated to reach a person alleged to be in contempt of
court. Hiscox v. Hiscox, 7th Dist. No. 06-CO-18, 2007-Ohio-1124, ¶47.
{¶22} Appellants claim that Yeo was never personally served with notice of
the December 6, 2011 magistrate’s decision ordering Yeo to appear before the court
to show cause why he should not be held in contempt. They do not dispute the fact
that Yeo’s counsel was served with the order. Likewise, they do not dispute the fact
that Yeo’s counsel forwarded the order to him.
{¶23} The docket reflects a copy of the December 6 order was mailed to
Yeo’s counsel.1 The parties state that a copy was also mailed to Yeo via regular
mail. Yeo contends he never received it. The record reflects, however, that the court
attempted to personally serve Yeo through the sheriff’s office with a copy of the order
and that the sheriff’s office failed to serve him. Either way, Yeo’s counsel received a
copy of the order and Yeo contends this was not sufficient service. At the show
cause hearing, Yeo’s attorney appeared. Yeo’s attorney reported to the court that he
forwarded the show cause order to Yeo.
{¶24} In support of their position, appellants rely on a single case, Hansen v.
Hansen, 132 Ohio App.3d 795, 726 N.E.2d 557 (1st Dist.1999). In Hansen, Mr.
Hansen filed a motion for contempt against Ms. Hansen for violating a custody order.
Mr. Hansen served that motion on Ms. Hansen's attorney. The court held a hearing,
but Ms. Hansen did not appear. The court found her in contempt.
{¶25} Ms. Hansen appealed. She argued, among other things, that the court
erred in finding her in contempt because she was not given proper notice of the
contempt proceedings and, thus, her due process rights were violated.
1 This is the same counsel who represents appellants in this appeal.
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{¶26} The First District agreed. It found that in most cases an attorney is an
agent for his client for purposes of service. Id. at 799. However, it found that,
“[c]onsidering the unique nature of contempt proceedings-as well as the fact that the
alleged contemnor is the person who faces punishment, not the attorney[,]” the
service on Ms. Hansen’s attorney was not sufficient. Id. The court stated that it
agreed with other cases that had held there generally must be an attempt to serve
such motions personally on the alleged contemnor. Id. at 800. It went on to reason:
Here, direct service on Ms. Hansen was never even attempted, much
less made. There is no evidence that Ms. Hansen even received notice
of the contempt motion from her attorney. Thus, we need not decide
whether, absent direct service, actual notice would have sufficed. In
fact, after the attorney was served with the contempt motion, the
attorney filed a motion to withdraw, specifically stating that she had
been unable to contact Ms. Hansen.
Id. Thus, the court found that Ms. Hansen’s due process rights were violated.
{¶27} The case at bar has two significant factual distinctions from Hansen.
First, in this case, the court did attempt to personally serve Yeo with the show cause
order. It sent a sheriff’s deputy to Yeo’s last known address in an attempt to serve
him. This attempt was unsuccessful; however, the attempt was made. Second, and
even more importantly, Yeo’s attorney received a copy of the order and reported to
the court that he forwarded the order to Yeo. (Magistrate’s Jan. 10, 2012 Order).
Yeo has not disputed this fact. Thus, Yeo had actual notice of the order.
{¶28} Additionally, other courts have found that service on a party’s attorney
is sufficient notice for contempt. See Evans v. Evans, 8th Dist. No. 2007CA00034,
2008-Ohio-2640 (notice to party’s attorney of contempt hearing was good service);
Quisenberry, 91 Ohio App.3d 341 (“because a motion for contempt is a written
motion as contemplated by Civ.R. 5, process may be served in accordance with the
methods permitted by that rule, i.e., by delivery, facsimile transmission, or ordinary
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mail service to the party or attorney representing that party”).
{¶29} Moreover, we need not determine whether service on a party’s attorney
is sufficient notice for contempt because this court has found that “[p]roper service is
not required if the alleged contemnor has actual notice of the contempt charges
pending against her.” (Emphasis added.) Hiscox, 7th Dist. No. 06-CO-18, ¶47.
{¶30} In this case, Yeo’s attorney represented to the court at the contempt
hearing that he had forwarded the show cause order to Yeo. Appellants do not
dispute that counsel forwarded the order to Yeo. Thus, Yeo had actual notice in this
case.
{¶31} Accordingly, appellants’ sole assignment of error is without merit.
{¶32} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, J., concurs.