Cleveland v. Paramount Land Holdings, L.L.C.

[Cite as Cleveland v. Paramount Land Holdings, L.L.C., 2011-Ohio-4270.]
[Vacated opinion. Please see 2011-Ohio-5382.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96180, 96181, 96182, and 96183
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
PARAMOUNT LAND HOLDINGS, LLC
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART AND REMANDED
Criminal Appeal from the
City of Cleveland Municipal Court
Case Nos. 08 CRB 41885, 08 CRB 37072, 09 CRB 04261, and 09 CRB 03590
BEFORE: Blackmon, P.J., Keough, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 25, 2011
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ATTORNEYS FOR APPELLANT
Richard G. Lillie
Gretchen A. Holderman
Lillie & Holderman
75 Public Square, Suite 1313
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
By: Karyn J.Lynn
Assistant Director of Law
City of Cleveland Law Department
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} In this consolidated appeal, appellant Paramount Land Holdings, LLC
(“Paramount”) appeals the trial court’s denial of their motion to vacate and assign the
following errors for our review:
“I. The housing court denied appellant its due process rights by
denying appellant an opportunity to respond to the housing court’s
contempt citation in a formal hearing.”
“II. The housing court imposed contempt sanctions in excess of the
statutorily defined limits.”
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“III. The total fine constitutes an excessive fine in violation of the
defendant’s rights as guaranteed by the Eighth Amendment to the
United States Constitution and Section 9 Article 1 of the Ohio
Constitution.”
{¶ 2} Having reviewed the record and pertinent law, we affirm in part, and
reverse in part the trial court’s decision, and we remand for further proceedings consistent
with this opinion. The apposite facts follow.
{¶ 3} Between September 15, 2008 and February 20, 2009, the City of
Cleveland’s Department of Health (“the City”) issued separate minor misdemeanor
citations, in Case Numbers 08–CRB–37072, 08–CRB–41885, 09–CRB–03590, and
09–CRB–04261 for health code violations related to four of Paramount’s properties.
The City served Paramount with the summons and complaints, but Paramount failed to
appear at the arraignments.
{¶ 4} The trial court continued the cases to its corporate docket, but Paramount
again failed to appear. As a result of Paramount’s continued failure to appear, despite
being duly served between May 19, 2009 and August 10, 2009, the trial court scheduled
show cause hearings in the respective cases. Because Paramount failed to appear at any
of the show cause hearings, the trial court found them in contempt, and issued a per diem
fine of $1,000.
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{¶ 5} Thereafter, the trial court scheduled several status hearings, which
Paramount did not attend. The trial court subsequently converted the daily accumulated
fines into a judgment against Paramount of $28,000 per property, for a total of $112,000.
{¶ 6} On November 7, 2009, Paramount, through counsel, appeared in court, and
pleaded not guilty in all four cases. On March 18, 2010, after several pretrials had been
conducted, Paramount retracted its former not guilty pleas and pleaded “no contest” to the
charges. In a June 18, 2010 journal entry, the trial court found Paramount guilty of all
charges. In a written sentencing decision that same day, the trial court imposed a
$400,000 fine for the charges contained in Case No. 08–CRB–37072, and a $653,000 fine
for the charges contained in Case No. 09–CRB–03590.
{¶ 7} On July 16, 2010, Paramount appealed the trial court’s decision. In a
decision dated July 7, 2011, we reversed the trial court’s decision because it failed to
comply with Crim.R. 11. Cleveland v. Paramount Land Holdings, L.L.C., Cuyahoga
App. No. 95448, 2011-Ohio-3383. On September 16, 2010, Paramount filed a motion to
vacate the $112,000 in fines relating to the trial court’s finding of contempt. On
November 19, 2010, the trial court denied Paramount’s motion to vacate. Paramount
now appeals.
Due Process Denial
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{¶ 8} In the first assigned error, Paramount argues it was denied due process of
law when the trial court imposed multiple unconditional fines without affording them a
hearing. We disagree.
{¶ 9} An appellate court’s standard of review of a trial court’s contempt finding is
abuse of discretion. Cattaneo v. Needham, 5th Dist. No. 2009CA00142,
2010-Ohio-4841, citing State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 573
N.E.2d 62. An “abuse of discretion” connotes that the court’s attitude is unreasonable,
arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,
450 N.E.2d 1140; Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028.
{¶ 10} In the instant case, both parties agree that the trial court found Paramount in
indirect contempt. Indirect contempt is “misbehavior that occurs outside the actual or
constructive presence of the court.” Pirtle v. Pirtle, 2d Dist No. 18613, 2001-Ohio-1539.
However, they disagree on whether the contempt was civil or criminal. Paramount
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.
{¶ 11} Courts classify contempt as criminal or civil, depending upon the purpose
of the sanction imposed. Camp-Out, Inc. v. Adkins, 6th Dist. 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
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court. Id. Criminal contempt sanctions are 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. No. S-07-013, 2008-Ohio-378, citing In re
Purola (1991), 73 Ohio App.3d 306, 596 N.E.2d 1140.
{¶ 12} A sanction imposed for civil contempt, on the other hand, is remedial or
coercive in nature and is imposed for the benefit of the complainant. Id., citing Carroll
v. Detty (1996), 113 Ohio App.3d 708, 711, 681 N.E.2d 1383. Any sanction imposed for
civil contempt must afford the contemnor the right to purge himself of the contempt.
DeLawder v. Dodson, 4th Dist. No. 02CA27, 2003-Ohio-2092, ¶10.
{¶ 13} Here, the record establishes that the trial court found Paramount in indirect
civil contempt. The contempt was civil because the trial court’s sanctions were designed
to coerce Paramount to appear. At the outset, Paramount was duly served with the
summons and the complaints for all four cases, but Paramount failed to appear for the
arraignments. After Paramount failed to appear at the arraignment, the trial court placed
the cases on its corporate docket and sent out notices, which Paramount received.
Paramount still failed to appear.
{¶ 14} Next, the trial court scheduled a show cause hearing for Paramount to
appear and present evidence why they should not be held in contempt for their repeated
failure to appear. However, Paramount failed to appear at the show cause hearing,
despite being duly notified.
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{¶ 15} It was at this juncture that the trial court found Paramount in contempt and
began assessing the daily fine to coerce Paramount’s appearance. Paramount finally
appeared after the trial court began assessing the daily fines. Once Paramount appeared,
the trial court immediately stopped the daily fines.
{¶ 16} On this record, despite Paramount’s argument that its constitutional rights
were violated, we conclude that they were given notice and an opportunity to be heard.
As a result of Paramount’s repeated failure to appear, the trial court had no alternative but
to find them in civil contempt and begin assessing a daily contempt fine of $1,000 per
property in an effort to compel their attendance.
{¶ 17} We also conclude that Paramount was afforded the opportunity to purge
their contempt by simply appearing in court. The trial court’s journal entry following
Paramount’s failure to appear at the show cause hearing, stated in pertinent part as follow:
“* * * The Court therefore finds that financial sanctions shall be
imposed, in the form of $1,000 per diem, beginning on the day
following the date ordered to appear, until such time as the defendant
makes an appearance and enters a plea.” Journal Entry, June 16, 2009.
{¶ 18} As previously noted, when Paramount appeared in court, the trial court
discontinued the daily fine. The immediate abandonment of the daily fines is conclusive
evidence that its purpose was to coerce Paramount’s attendance and not to punish them
for a completed act. As such, we find no abuse of discretion in the trial court’s decision.
Accordingly, we overrule the first assigned error.
Excessive Fines
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{¶ 19} In the second assigned error, Paramount argues $1,000 daily fines per
property was excessive. We agree.
{¶ 20} R.C. 2705.05 states in pertinent part as follows:
“(A) In all contempt proceedings, * * *. If the accused is found guilty,
the court may impose any of the following penalties:
“(1) For a first offense, a fine of not more than two hundred fifty
dollars, a definite term of imprisonment of not more than thirty days in
jail, or both;
“(2) For a second offense, a fine of not more than five hundred dollars,
a definite term of imprisonment of not more than sixty days in jail, or
both;
“(3) For a third or subsequent offense, a fine of not more than one
thousand dollars, a definite term of imprisonment of not more than
ninety days in jail, or both.
{¶ 21} The record reveals that the instant matter involved Paramount’s first offense
for contempt. As such, pursuant to R.C. 2705.05(A), the maximum fine should have
been $250 per day. Thus, the trial court erred in imposing a fine of $1,000 per day.
Accordingly, we sustain the second assigned error.
Eighth Amendment Violation
{¶ 22} In the third assigned error, Paramount argues the amount of the per diem
sanctions violated the Eighth Amendment to the United States Constitution. We
disagree.
{¶ 23} The excessive fines clause of the Eighth Amendment does not apply to civil
contempt sanctions. Ohio Elections Comm. v. Ohio Chamber of Commerce & Citizens for
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a Strong Ohio, 158 Ohio App.3d 557, 817 N.E.2d 447, citing In re Grand Jury
Proceedings (C.A.7, 2002), 280 F.3d 1103, 1110 (“a fine assessed for civil contempt does
not implicate the Excessive Fines Clause”). See, also, United States v. Mongelli
(C.A.2, 1993), 2 F.3d 29, 30; Spallone v. United States (1988), 487 U.S. 1251, 1257, 109
S.Ct. 14, 101 L.Ed.2d 964.
{¶ 24} Here, given the civil nature of the contempt proceeding, the Excessive Fines
Clause of the Eighth Amendment does not apply. Accordingly, we overrule the third
assigned error.
Judgment affirmed in part and reversed in part, and remanded to the trial court for
further proceedings consistent with this opinion.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR