Home S. & L. Co. v. Midway Marine, Inc.

[Cite as Home S. & L. Co. v. Midway Marine, Inc., 2012-Ohio-2432.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
HOME SAVINGS AND LOAN CO. ) CASE NO. 10 MA 109
OF YOUNGSTOWN, OHIO )
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MIDWAY MARINE, INC. dba )
MIDWAY LEASING, INC., et al. )
)
DEFENDANTS-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 09 CV 1971
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. James G. Floyd
1200 Metropolitan Tower
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. John C. Ragner
Atty. Andrew T. Hayes
Atty. Steven R. Hobson
Towne, Hanna & Rasnick Co., L.P.A.
388 South Main Street, Suite 402
Akron, Ohio 44311
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: May 25, 2012
[Cite as Home S. & L. Co. v. Midway Marine, Inc., 2012-Ohio-2432.]
WAITE, P.J.
Summary
{¶1} In this appeal Mercure presents three issues: first, whether a trial
court’s civil contempt finding becomes criminal due to the court’s obvious disapproval
of Appellant’s actions. Second, whether Appellant’s due process rights were violated
by an alleged failure of service argument that Appellant failed to raise in the trial
court. Third, whether Appellant received ineffective assistance of counsel in the trial
court. Our review of the record reveals that all of Appellant’s arguments lack merit
and the trial court’s decision is affirmed.
{¶2} This appeal revolves around a finding of contempt against Appellant,
Michael Mercure who operated a business known as Midway Marine, Inc. Midway
Marine, Inc., while a party to the underlying action, is not a party to the instant
appeal. The record reveals the following: Appellant Mercure, on behalf of Midway
Marine Inc. executed a secured purchase money loan agreement with Home Savings
& Loan Co., Appellee herein, for the purchase of a high performance yacht and
motor. The yacht and motor secured payment on the note and a lien was recorded
on the title to the yacht by Appellee. Several years after the initial transaction,
payment on the note had deteriorated from erratic to nonexistent. Appellee
simultaneously filed a replevin action to recover the yacht and a complaint for the
money due on the note. Appellee sought and received a writ of possession.
Appellant Mercure was served with the writ of possession but failed to produce the
yacht. When Mercure was deposed he acknowledged the debt, but refused to reveal
-2-
the location of the yacht. He attempted to invoke his right to remain silent in
response to any question concerning the present or past locations of the yacht and
Mercure’s dealings with a Texas man who made several loan payments on his
behalf. On the record during deposition, Mercure was served with a second copy of
the writ of possession, and was warned that continued noncompliance would result in
further action by the court. Nevertheless, Mercure failed to produce the yacht. A
contempt motion was filed. Pursuant to the affidavit of service, the motion was
served on both Mercure and his counsel via regular and certified mail. Mercure failed
to appear at the hearing, although his counsel was present. Counsel argued that the
hearing could not go forward because there was no return of service for Mercure in
the record. After the magistrate found him in contempt, but before the trial court
adopted the finding, Mercure filed an affidavit detailing his efforts to recover the
yacht. The trial court subsequently found Appellant in contempt and ordered
personal service of the subsequent judgment entry. The contempt entry was not
served on Appellant until July of the following year, and this appeal was timely filed.
Facts
{¶3} The underlying suit from which the contempt action arose involved both
a replevin action seeking the return of collateral and an action on a promissory note
executed by Appellant Mercure on behalf of Midway Marine, Inc. to Appellee Home
Savings and Loan Co. The note was executed on July 30, 2003, and secured by a
50’ Hustler performance yacht and its 470 HP Mercruiser motor, which were to be
purchased with the proceeds of the loan. On May 27, 2009, Appellee, alleging a
-3-
default on the note dating from May 8, 2007, filed a complaint in the Mahoning
County Court of Common Pleas foreclosing its interest in the yacht and seeking an
immediate writ of possession. Appellee also requested a money judgment for
$416,740.61 in unpaid principal and interest and an additional $57.19 in daily
accrued interest while the note remained due and unpaid. Appellee simultaneously
filed an ex-parte motion for writ of possession and an affidavit in support as well as a
motion for the appointment of a process server. As grounds in support of a finding
that there was a “present danger that the property will be disposed of or concealed
and placed beyond the jurisdiction of the Court” necessitating an extraordinary writ,
Appellee averred that there had been repeated unanswered demands that Mercure
produce the collateral and that Appellee had some indication that Mercure may have
attempted to sell the yacht and motor to a Texas resident who also refused to
produce the collateral. (5/27/09 Motion for an Order of Possession Without a Hearing
Trial, ¶12.)
{¶4} On May 28, 2009 the trial court set bond for both Mercure and Midway
Marine, Inc., and granted Appellee a writ of possession. A summons was issued and
a process server appointed that same day. On June 8, 2009 the appointed process
server filed three returns of service. The first indicated that after five attempts, the
residential address provided by Appellee for Mercure appeared to be vacant. The
second and third returns reflected personal service on Mercure and service on
Midway Marine, both at the same address, and signed for by a “Mr. Parker.” On
June 26, 2009 Mercure filed an answer through counsel generally denying the
-4-
allegations in the complaint and alleging the following defenses: accord and
satisfaction; assumption of risk; contributory negligence; laches; waiver; estoppel;
venue; and fraud. (6/26/09 Answer.)
{¶5} During the same period, Appellee conveyed the writ of possession to
the sheriff’s department, which made several unsuccessful attempts to locate and
secure the yacht and motor.
{¶6} On August 10, 2009, Appellee deposed Mercure in connection with this
matter. At the deposition, Mercure repeatedly stated he wished to invoke his Fifth
Amendment rights in response to any question concerning the whereabouts of the
yacht and his dealings with Warren Tillerson, the Texas resident who may have had
possession of the yacht and who made several loan payments to Home Savings on
behalf of Mercure for the note secured by the yacht. (Mercure Depo., pp. 6-7, 34-40.)
Mercure was personally served the May 28, 2009 writ of possession on the record
during the deposition and was informed that the court would be notified of any
continued failure to produce the yacht. Mercure failed to produce the yacht or any
information to lead to its discovery.
{¶7} On August 14, 2009, Appellee filed a show cause motion due to
Mercure’s failure to produce the yacht and refusal to disclose its location. Appellee
raised, as cause, Mercure’s attempts to invoke the Fifth Amendment during the
deposition and asked that he be held in direct contempt, pursuant to R.C. 2705, for
his refusal to answer and his failure to produce the yacht and motor. The show
cause motion included a notice of hearing for August 28, 2009 at 2:00 p.m., and was
-5-
signed by counsel for Appellee. Attached to the motion was a copy of the trial court’s
May 28, 2009 writ of possession and an affidavit of service, executed by a Judy
Rader and notarized by a Susan Pritchard. The affiant, Ms. Radar, who was not
Appellee’s counsel, swore that the motion was served on both Mercure and his
counsel via both regular and certified U.S. Mail. The affiant included the certified mail
receipt numbers in her affidavit, one of which was incomplete.
{¶8} The show cause hearing was held on August 28, 2009. Counsel for
Mercure appeared but Mercure, himself, did not. Those present stipulated that the
yacht had not been delivered to Home Savings. Mercure’s counsel argued during
the hearing that the record did not reflect a return of service on Mercure. He did not,
however, argue that his client had not been served. It appears inarguable that
Mercure’s counsel received the motion, in light of his presence at the hearing. The
hearing went forward as scheduled and the magistrate filed a decision on November
12, 2009.
{¶9} On November 23, 2009, Mercure executed and filed a copy of an
affidavit which appears in the record as a “Notice of Efforts to Purge.” The document
in the record is a copy and it is unclear whether the actual affidavit was ever filed. In
it, Mercure states that he purchased a Hustler Power Boat in 2003 and financed the
purchase through Home Savings. He swears that he delivered the yacht to a Mr.
Tillerson, of Texas, in November of 2007 and that Tillerson agreed to be responsible
for payment of the remainder of the obligation to Home Savings until it was “fully and
completely satisfied.” (Mercure Aff., ¶4.) Attached to, but not referenced in, the
-6-
affidavit is a copy of an email titled “boat agreement,” the body of which identifies
Mercure and Tillerson as the parties to the agreement and indicates that Tillerson
would take over the remaining 119 loan payments of $2900.00 per month for the
yacht that is the subject of this action. The document appears to have been signed
by both parties.
{¶10} Mercure acknowledged in his affidavit that on November 18, 2009 he
was aware of the “contempt citation against him,” which appears to refer to the
magistrate’s November 12, 2009 decision finding him in contempt, copies of which
were served by the clerk on November 17, 2009. He explained that his efforts to
purge contempt consisted of a phone call to Tillerson requesting that the yacht be
made available to him. Mercure avers that Tillerson “threatened to kill me and advise
that ‘somebody came to his house and took the boat and he did not want to get
involved,’” and that Tillerson also told him that the yacht had been kept in a locked
storage facility at all times. (Mercure Aff., ¶9-10.) Mercure concluded that he had, in
the form of this phone call, “taken all reasonable measures to procure the boat in
question for return to Home Savings Bank” and that it was his belief that the yacht
either remained with Tillerson in Texas or had already been repossessed by
Appellee, Home Savings. (Mercure Aff., ¶11-12.) Appellee filed in opposition to
Mercure’s notice of efforts to purge contempt. It did not object to the form of the
affidavit and unincorporated exhibit, but detailed the contradictions between the
information contained in the affidavit and Mercure’s repeated, apparently unmerited,
invocations of his Fifth Amendment rights during the August deposition. Appellee
-7-
identified each discrepancy and urged the court to recognize Mercure’s evident
perjury concerning his knowledge of the location of the yacht and his possibly
frivolous invocation of the Fifth Amendment. No further document or motion was filed
by either party on this issue.
{¶11} The trial court adopted the magistrate’s decision in the absence of
objections on December 17, 2009 and it was entered in the record on December 23,
2009. The trial court specifically found Mercure was in indirect civil contempt and
ordered him to either (1) serve thirty (30) days in jail and pay a fine of $250.00 or (2)
purge contempt by producing the yacht within ten days of the entry of the court’s
judgment. The trial court specifically ordered personal service of the judgment entry
on Mercure. Docket entries on December 29, 2009 show service to Mercure of the
entry was attempted via regular and certified U.S. Mail in addition to personal service.
The order for service was returned indicating that there was a failure to make contact
on January 7, 2010. On March 31, 2010, Appellee sought and received leave to use
a private process server to serve the December 23, 2009 judgment. No return of
service was filed. On July 8, 2010 Appellee was again granted leave for private party
service of the judgment; return of service was filed July 9, 2010.
{¶12} Between the December 23, 2009 judgment entry finding Mercure in
contempt and service of the contempt order on July 9, 2010, Appellee sought and
received summary judgment with regard to the amount due on the promissory note.
The initial summary judgment motion was filed on March 25, 2010. Mercure filed
timely objections to the magistrate’s subsequent April 26, 2010 decision as well as a
-8-
separate motion to vacate the decision on May 7, 2010. Both motions alleged that
counsel for Mercure had not received service of the summary judgment motion and
listed failure of service as the sole basis for relief. Neither motion was supported by
affidavit or other evidence. Appellee filed in opposition to the motion to vacate on
May 10, 2010. The trial court adopted the magistrate’s decision and denied the
motion to vacate in two separate orders on June 4, 2010.
{¶13} During the same period, Appellee also sought, and the magistrate
signed, a release of the replevin bond, as the collateral was now subject to the trial
court’s contempt order. The order releasing bond has apparently not yet been
adopted by the trial court. The action on the note itself was resolved in summary
judgment; the replevin action is pending on the outcome of this appeal.
Procedural History
{¶14} Mercure initially filed his notice of appeal on July 12, 2010. His July 12
notice identified a June 14, 2010 judgment entry as the final order on appeal. As we
subsequently noted, there was no order entered by the trial court on June 14, 2010.
Instead there was a June 4, 2010 entry, adopting the magistrate’s decision granting
summary judgment to Appellee Home Savings with regard to the action on the note.
According to the docket, the service copies were issued and mailed on June 14,
2010. On July 27, 2010 Mercure filed an amended notice of appeal, identifying the
trial court’s December 23, 2009 judgment entry as the basis for appeal, claiming the
2009 entry was not served on either he or his counsel until July 9, 2010. Given the
multiple bases cited for appeal and the seeming untimeliness of the conflicting
-9-
notices, we ordered Mercure to prepare a jurisdictional memorandum clarifying the
order appealed from and establishing the timeliness of the filing. Mercure complied
and explained that according to the record, the trial court’s December 23, 2009
judgment entry had not been served on him until July 9, 2010. (10/14/10 J.E.)
Around the same time as this Court’s entry concerning the need for a jurisdictional
memorandum, Mercure’s counsel also sought and later received leave to withdraw.
New counsel entered his appearance on the record.
{¶15} A motion for stay of execution pending the outcome of appeal had been
filed in the trial court on August 12, 2010. On September 16, 2010 the trial court
indicated that the motion would be taken under advisement, and entered no
subsequent ruling. New counsel filed a motion for stay of execution in this Court on
September 28, 2010, referring to the earlier motion and renewing the request, citing
principles of fairness. We granted Mercure’s motion for stay of execution on October
14, 2010, and held his thirty days of incarceration and $250.00 fine in abeyance
pending the outcome of this appeal. Mercure has filed his merit brief. No Appellee’s
brief has been filed.
Argument and Law
{¶16} Mercure’s first and second assignments of error challenge the
procedure followed and the penalty imposed by the trial court pursuant to R.C. 2705.
Mercure alleges that the trial court went beyond the scope of the rule with regard to
civil contempt and, in essence, imposed a punitive criminal penalty that it
misidentified as indirect civil contempt violation. The trial court’s compliance with the
-10-
statute, the civil rules and applicable caselaw is determinative of both assignments
and for this reason they will be discussed together.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT VIOLATED MR. MERCURE’S DUE PROCESS
RIGHTS AND ERRED BY SENTENCING MR. MERCURE TO 30
DAYS IN JAIL FOLLOWING A CONTEMPT HEARING HELD IN
ABSENTIA AND WHERE MR. MERCURE DID NOT RECEIVE
PROPER OR REASONABLE NOTICE, TIME TO PREPARE A
DEFENSE, AND AN OPPORTUNITY TO BE HEARD AT HEARING.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN ORDERING IMPRISONMENT TO MR.
MERCURE AS A PUNISHMENT FOR A CIVIL DEBT IN VIOLATION
OF ARTICLE I, SECTION 15 OF THE OHIO CONSTITUTION.
{¶17} A trial court’s contempt finding is reviewed for abuse of discretion.
State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981).
Abuse of discretion connotes more than an error of judgment; it implies that the
court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the
abuse of discretion standard, a reviewing court is not free to merely substitute its
-11-
judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138,
566 N.E.2d 1181 (1991).
{¶18} Mercure argues that in the matter below, although the trial court found
his failure to comply with the writ of possession was indirect civil contempt, the trial
court’s finding and penalty imposed were, in fact, criminal, because the language of
the magistrate’s decision disclosed an overriding punitive purpose and the sentence
itself is “punitive in nature and operates as a punishment for a completed act of
disobedience * * * [and] used ‘to vindicate the authority of the court.’” (Appellants’
Brf., p. 9). Mercure maintains that the penalty imposed by the court below conditions
future behavior in a manner more commonly associated with criminal contempt than
with civil contempt. Therefore, Mercure claims, it triggered a need to comply with the
due process requirements associated with criminal contempt. He urges that as a
criminal contemnor his presence was required at the hearing before any penalty for
contempt could be imposed. Mercure is mistaken in his interpretation of this record.
{¶19} Contempt has been defined by the courts as the disregard or
disobedience of an order or command of judicial authority. See, First Bank of
Marietta v. Mascrete, Inc., 125 Ohio App.3d 257, 263, 708 N.E.2d 262 (1998).
Contempt may also involve an act or omission that substantially disrespects the
judicial process in a particular case. Byron v. Byron, 10th Dist. No. 03 AP 819, 2004-
Ohio-2143 at ¶11, appeal not allowed by 103 Ohio St.3d 1462, 2004-Ohio-5056, 815
N.E.2d 678. Contempt can be characterized as either direct or indirect. Id. at ¶12.
Direct contempt occurs when a party engages in conduct in the presence of the court
-12-
that interferes with the administration of justice. R.C. 2705.01; Turner v. Turner, 10th
Dist. No. 98AP-999, 1999 WL 356279 (May 18, 1999). Indirect contempt, on the
other hand, occurs when a party engages in conduct outside the presence of the
court that demonstrates a lack of respect for the court or its lawful orders. Byron,
supra, citing State v. Drake, 73 Ohio App.3d 640, 643, 598 N.E.2d 115 (1991).
Failure to comply with court orders, for example, the failure to pay child support, is
viewed by courts as indirect contempt, because it occurs outside of the presence of
the court but is nevertheless demonstrative of a lack of respect for the court.
DeLawder v. Dodson, 4th Dist. No. 02CA27, 2003-Ohio-2092, at ¶11.
{¶20} Courts may further characterize contempt as criminal or civil, depending
on the nature of the contempt sanctions. Criminal contempt imposes sanctions that
are punitive in nature, and are designed to punish the party for past failures to
comply with the court's order. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555,
740 N.E.2d 265 (2001). Criminal contempt usually involves mandatory incarceration,
and the party found to be in contempt usually has no opportunity to avoid the
incarceration. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 254, 416
N.E.2d 610 (1980).
{¶21} Civil contempt, on the other hand, is remedial or coercive in nature, and
will be imposed to benefit the complainant. DeLawder, supra, at ¶9, citing Pugh v.
Pugh, 15 Ohio St.3d 136, 139, 472 N.E.2d 1085 (1984). Any sanction imposed by
the court for civil contempt must provide the contemnor with an opportunity to purge
the contempt. DeLawder, supra, at ¶10. “The contemnor is said to carry the keys of
-13-
his prison in his own pocket * * * since he will be freed if he agrees to do as ordered.”
Brown, supra, at 253.
{¶22} A trial court’s authority to impose sanctions for contempt of court is part
of the inherent power of the court to govern proceedings. Denovchek v. Bd. of
Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988). Contempt is
also defined by statute and penalties are prescribed by R.C. 2705.01 et seq., which
provides in pertinent part:
R.C. 2705.02 Acts in Contempt of court. A person guilty of any of the
following acts may be punished as for a contempt:
(A) Disobedience of, or resistance to, a lawful writ, process, order, rule,
judgment, or command of a court or officer
***
(C) A failure to obey a subpoena duly served, or a refusal to be sworn
or to answer as a witness, when lawfully required * * *
R.C. 2705.03 Hearing.
-14-
[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. 2705.05 Hearings for contempt proceedings. (A) In all contempt
proceedings, the court shall conduct a hearing. At the hearing, the
court shall investigate the charge and hear any answer or testimony
that the accused makes or offers and shall determine whether the
accused is guilty of the contempt charge. 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;
***
The statute governing contempt is silent as to the requirements of service, as is the
Ohio Supreme Court caselaw on the subject. However, the Supreme Court has held
that “an action brought under R.C. 2705.05 alone may be deemed to be essentially
civil in nature.” Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d
610 (1980). Where contempt is civil, the clear and convincing evidentiary standard
applies. Id. Generally, it appears in practice among the districts that the nature of
the proceeding giving rise to the contempt motion, and the nature of the conduct
-15-
resulting in the motion, determines the service requirements associated with the
contempt motion.
{¶23} Mercure mis-cites a Fifth District case, Bierce v. Howell, 5th Dist. No.
06 CAF 05 0032, 2007-Ohio-3050, for the proposition that service of a contempt
motion on a party’s attorney is insufficient notice and that the initial contempt motion
must be served directly on the party. This is not the holding in Bierce, nor is this an
accurate statement of the law. While there is, as is noted in Bierce, some divergence
among the districts as to the nature of the service required under varying
circumstances, the court nevertheless concluded that where contempt is civil in
nature, the civil rules regarding notice apply. Id. at ¶20, also Quisenberry v.
Quisenberry, 91 Ohio App.3d 341, 346, 632 N.E. 2d 916 (1993) “[i]nasmuch as there
is no specified manner of process required for the filing of a motion for civil contempt,
a person serving such a motion may do so in any manner authorized by the Ohio
Rules of Civil Procedure.”
{¶24} The divergences from this principle noted by Mercure and recognized in
the Second and Twelfth Districts were due to the fact that the motions filed in those
cases were contempt motions seeking enforcement of divorce decrees, sometimes
several years after the decree was final. Both courts in this scenario recognized that
the contemnor may not have an ongoing relationship with counsel from a divorce that
had been concluded. Therefore, the initial motion must be served on the party, not
former counsel, as it was in essence a new proceeding. The facts in this case do not
merit an enhanced service requirement, nor does the law require it. If in fact the
-16-
contempt involved is civil and not criminal, as advanced by Mercure, then the service
requirements that apply are those contained in Civ.R. 5. The record here reflects that
service was correctly sought and obtained.
{¶25} Mercure’s assertion that, due to the court’s obvious disapproval of
Mercure’s conduct, the proceeding was inherently punitive and therefore criminal is
simply inaccurate. As various courts have noted, “punishment is inherent in
contempt, courts will categorize the penalty as either civil or criminal based on the
character and purpose of the punishment.” In re J.M., 12th Dist. No. CA2008-01-004,
2008-Ohio-6763, ¶47, citing Brown, supra. The fact that a contempt finding may
result in punishment does not necessarily define it as criminal contempt. The instant
motion was filed due to Mercure’s failure to produce the object of a replevin action,
and his refusal during the deposition to provide any information whatsoever that
would lead to the current location of the yacht. The penalty imposed by the court
could be completely purged by Mercure if he in some way produced the yacht. This
is the precisely in line with the coercive nature that defines a civil contempt. Mercure
was unquestionably aware of the writ of possession: he had been served with a
copy, and was provided with another copy on the record during his deposition.
{¶26} The transcript of the deposition, which was in the record for the court to
consider when ruling on the contempt motion, reflects Mercure’s repeated invocation
of his Fifth Amendment privilege in response to any question concerning the current
location of the yacht and his interactions with Tillerson. The transcript also reflects
that counsel for Appellee contacted Tillerson prior to the deposition and asked about
-17-
the location of the yacht. Tillerson responded via email, which counsel produced at
the deposition for Mercure to read. In it, Tillerson stated that Mercure had arrived in
Texas on January 17, 2009 and had taken the yacht and that he (Tillerson) did not
wish to be contacted further concerning the matter. (Mercure Depo., pp. 40-41).
Counsel then asked Mercure if he had gone to Texas and retrieved the yacht in
January. Mercure invoked the Fifth Amendment. When counsel asked where the
yacht was currently located, Mercure invoked the Fifth Amendment. Id., see also
Home Savings Exhibit I, August 10, 2009.
{¶27} Subsequently, Mercure filed a document entitled “Notice of Efforts to
Purge Contempt” concerning his relationship with Tillerson. Mercure’s assertions in
that affidavit call into question the propriety of his invocation of the Fifth Amendment
during the deposition, if they are to be believed. In his notice, Mercure claims that he
contacted Tillerson and that Tillerson had responded by threatening to kill him. He
said Tillerson also told him that the yacht had been removed from Tillerson’s property
by “someone” and that Tillerson knew it was being removed, but “did not want to get
involved.” (Mercure Aff., ¶9.) At no time did Mercure contradict the information
contained in the email from Tillerson to counsel in which Tillerson stated that it was
Mercure who had, in fact, removed the yacht from Tillerson’s property in January.
{¶28} Faced with this contradictory information concerning the extent of
Mercure’s knowledge concerning the current location of the yacht and his decision to
invoke the Fifth Amendment, which in a civil proceeding permits a negative inference,
the trial court apparently concluded that Mercure still had knowledge of the yacht’s
-18-
whereabouts, and accordingly entered a contempt finding. The court’s contempt
finding in the replevin action was specifically calculated to coerce Mercure to produce
the yacht: Mercure was to serve thirty days in jail and pay a fine of $250.00, the
statutory penalties for a first time offender, or he could purge his contempt in its
entirety by producing the property. This penalty is remedial and allows the
contemnor an opportunity to purge his sentence in its entirety. Hence, this contempt
is civil in nature, and the civil rules regarding notice apply. Brown, supra. at 253;
Bierce, supra, at ¶20.
{¶29} Finally, as the civil rules of service apply to this contempt motion,
service was indisputably perfected on counsel pursuant to Civ.R. 5(A) and (B). Civil
Rule 5(A), titled “Service and Filing of Pleadings and Other Papers Subsequent to the
Original Complaint,” requires “every written motion other than one which may be
heard ex parte * * * shall be served upon each of the parties;” part (B) of the rule
clarifies “[w]henever under these rules service is required or permitted to be made
upon a party who is represented by an attorney of record in the proceedings, the
service shall be made upon the attorney.” Under Civ.R. 5(B), subsequent to
successful service of the complaint, service by mail is complete upon mailing. No
return of service is required under the civil rules, under the contempt statute, or under
caselaw. No Ohio court has held that personal service is required to perfect a
contempt motion, unless personal service is ordered by the court pursuant to Civ.R.
5.
-19-
{¶30} Despite Mercure’s attempt to create confusion around the issue of an
alleged failure of service of the contempt motion, this issue was never raised in the
trial court, nor does the record support this conclusion. Mercure argues for the first
time in his appellate brief that he was not served with the contempt motion, and
attempts to point to his November 23, 2009 affidavit as evidence that he never
received the initial motion. What the affidavit actually says is “[o]n or about
November 18, 2009 I became aware of the fact that a contempt citation had been
issued against me in case number 09-CV-1971;” the magistrate’s decision finding
Mercure in contempt was entered in the record on November 12, 2009 and the
docket reflects service by the clerk on November 17, 2009. Given the timing and the
language of the statement, it appears that “contempt citation * * * issued against me”
refers not to the initial contempt motion but to the November 12, 2009 issuance of the
magistrate’s decision. The affidavit of service is therefore uncontradicted. Service
was complete upon mailing, and Mercure has waived any further due process
argument concerning notice by failing to object at the trial level. State v. Phillips, 74
Ohio St.3d 72, 74 (1995); State v. Bidinost, 71 Ohio St.3d 449, 452 (1994).
{¶31} Because the record reflects he was properly served with the contempt
motion, the only remaining issues are whether Mercure had sufficient notice of the
hearing and if the hearing itself was adequate under the statute. No separate notice
period is prescribed by the contempt statute. Mercure advances the proposition that
fewer than thirty days is generally unreasonable, citing Culberson v. Culberson, 60
Ohio App.2d 304 (1st Dist. 1978); Erven v. Erven, 1981 WL 9623 (1st Dist.); and
-20-
Poptic v. Poptic, 2006 WL 1493262. Again, the determinations in these cases were
fact driven: in Culberson, the court found that less than thirty days’ notice of an ex-
husband’s contempt motion was inadequate to a divorced wife who had remarried in
good faith and moved out of state and where counsel had requested, but been
denied, additional time to prepare her defense. In Erven, again a post-divorce action,
the ex-wife had moved out of state and the record was unclear as to whether she
ever received service of the contempt action against her. She was tried in absentia,
over the objections of counsel as to the sufficiency of service and the journalization of
the underlying order. In Erven, the First District applied its Culberson holding,
passed on the mechanics of service, and found under the circumstances that a 21
day notice of hearing was inadequate. In Poptic, again a post-divorce-decree
contempt motion, the motion was filed against an out of state spouse, this time in
California. The Twelfth District cited Erven in support of its finding that six days’
notice was unreasonable under the circumstances.
{¶32} In contrast, the Sixth District has found that one day of notice, which
was subsequently extended to six total days of notice, is adequate in a municipal
court nuisance proceeding. Ottawa Hills v. Afjeh, 6th Dist. No. L-10-1353, 2012-
Ohio-125. The reviewing court in Ottawa Hills distinguished Poptic because Poptic
involved a divorce matter in which the alleged contemnor was in California and the
trial court denied the contemnor’s request for continuance and instead tried the
contemnor in absentia. The contemnor in Ottawa Hills, however, was present in this
state, and had been notified on September 8, 2010 of a contempt hearing to be held
-21-
on September 9, 2010, at which she requested and was granted a continuance until
September 15, 2010. She then appeared with counsel at the September 15, 2010
hearing, requested no further continuance, and raised no objection as to notice. Id.
at ¶25.
{¶33} The only condition as to notice provided by statute is that it must be
“reasonable.” No bright line test exists. What constitutes reasonable notice must be
evaluated under the circumstances of every individual case. While the Sixth District
decision in Ottawa Hills, supra, appears to present an extreme end of the spectrum,
there exists a wide range of discretion on the part of the trial court. As this is a civil
contempt matter and proceedings are governed by the rules of civil procedure where
applicable, Civ.R. 6(D) provides guidance as to what constitutes reasonable notice:
“[a] written motion, other than one which may be heard ex parte, and notice of the
hearing thereof shall be served not later than seven days before the time fixed for
hearing.” The motion and notice in question were served on both Mercure and his
counsel fourteen days prior to the time fixed for hearing. Both Mercure and his
counsel reside in the state of Ohio. Service was made to the address provided by
counsel in his notice of appearance and to Mercure at the addresses he provided
and confirmed during the deposition, by both regular and certified mail. At the time
the motion was served the proceeding was ongoing. No continuance was sought
and counsel appeared at the hearing. Although Mercure challenges the
reasonableness of the notice provided on appeal, he does not challenge the
adequacy of the hearing itself, nor does he explain how he was prejudiced by the
-22-
notice provided. As attested by Mercure, his subsequent attempt to purge consisted
of a single phone call. There is no indication that this call could not have been made
during the initial 14-day period. Under these circumstances, the notice provided was
reasonable. Mercure has not raised any defect in the hearing nor has he provided a
transcript, and in the absence of evidence to the contrary, “all reasonable
presumptions consistent with the record will be indulged in favor of the validity of the
judgment under review and of the regularity and legality of the proceeding below.” In
re Sublett, 169 Ohio St. 19, 20, 157 N.E.2d 324 (1959).
{¶34} Mercure also argues, in support of his first assignment of error, that due
process standards prohibit the court from finding the accused in contempt in
absentia. Mercure is mistaken in his assertion. As the court in Adams v. Epperly, 27
Ohio App.3d 51, 52, 499 N.E.2d 374 (1985), stated, “[a]mong the rights afforded to
both civil and criminal contemnors are notice and an opportunity for a hearing on the
matter.” (Citations omitted.) The Court in Adams concluded that in a criminal
contempt, as opposed to a civil contempt matter, the alleged contemnor must not
only have the opportunity to be present, he must also actually be present at the
criminal contempt hearing. In a civil contempt, an alleged contemnor is entitled only
to those rights afforded in a civil action. Schrader v. Huff, 8 Ohio App.3d 111, 112,
456 N.E.2d 587 (1983). As is reflected in the language of the statute itself, an
opportunity to be heard must be “given to the accused, by himself or counsel.” In the
instant matter, Mercure was given notice and he was provided a hearing. At that
hearing, the court heard and admitted evidence. Mercure elected not to attend;
-23-
nevertheless, counsel was present to represent his interests. Hence, Mercure’s
arguments on this issue lack merit.
{¶35} Finally, Mercure posits that the contempt is moot because Appellee was
granted summary judgment on its foreclosure claim. Again, Mercure mistakes the
law on this matter. Appellee Home Savings is a secured creditor with an extant lien
on the collateral; the money judgment on the note does not satisfy or extinguish the
property interest in the collateral. The contempt finding in the replevin action on the
collateral is independent of the money judgment on the note. While it is true that had
the parties settled the underlying suit, or had Mercure successfully defended the
replevin action or produced the collateral, or had the underlying suit been dismissed
under Civ.R. 41 as was the case in State ex rel Corn v. Russo, 90 Ohio St.3d 551(2001), the contempt would be moot. We note, however, that Appellant mis-cites
Russo for the proposition that if a suit has settled “or been resolved” the civil
contempt is moot. The Russo court actually held that the civil contempt was
extinguished by the plaintiff’s voluntary dismissal of the suit but that the criminal
contempt survived. Regardless, in this matter, the entry granting summary judgment
on the note does not extinguish the pending writ of possession.
{¶36} Final judgment in a replevin action is defined by R.C. 2737.14. “In an
action to recover possession of personal property in which an order of possession
has been issued, the final judgment shall award permanent possession of the
property and any damages to the party obtaining the award. * * * If delivery of the
property cannot be made, the action may proceed as a claim for conversion upon
-24-
due notice * * *.” Although the separate complaint on the promissory note and the
motion for writ of possession without hearing were filed at the same time and
assigned the same case number, they each have separate remedies and resolutions.
The summary judgment motion did not seek disposition of the collateral and the entry
granting summary judgment does not address that issue. The magistrate’s ruling
cancelling the replevin bond specifically notes that it in no way alters the writ of
possession that is the subject of the contempt. Under these circumstances, the
contempt is not moot because the replevin action is unresolved pending the outcome
of this appeal.
{¶37} Mercure extends his argument that the trial court’s indirect civil
contempt finding was in fact a criminal contempt finding to argue that the trial court
imposed a criminal penalty on him for a civil debt in violation of his rights under
Article I, Section 15 of the Ohio Constitution, which provides that “[n]o person shall be
imprisoned for debt in any civil action, on mesne or final process, unless in cases of
fraud.” In Mercure’s argument he confuses his contempt finding based on his failure
to comply with a court order with being sentenced to prison for the nonpayment of a
debt. The record clearly reflects that the jail sentence issued by the trial court in this
matter was not a punishment for a civil debt, but was instead a statutorily permitted
penalty for civil contempt designed to give Mercure an incentive to comply with the
trial court’s writ of possession. Mercure’s failure to comply resulted in a sentence of
thirty days of imprisonment, not his failure to pay a civil debt.
-25-
{¶38} Mercure had notice of the writ of possession. He was informed of the
possibility of further adverse action for failure to comply with the writ. He received
adequate notice of the contempt motion and hearing. A hearing was held, although
he elected not to attend. The penalty imposed by the court was within the
parameters allowed for indirect civil contempt and could be fully purged by the
production of the property in question. For these reasons, both Mercure’s first and
second assignments of error are without merit and are overruled.
ASSIGNMENT OF ERROR NO. 3
MR. MERCURE’S FORMER TRIAL COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL BY NOT
OBJECTING TO THE MAGISTRATE’S DECISION
FINDING MR. MERCURE IN INDIRECT CIVIL
CONTEMPT AND SENTENCING HIM TO 30 DAYS IN
JAIL, WHICH WAS IN VIOLATION OF MR. MERCURE’S
DUE PROCESS AND CONSTITUTIONAL RIGHTS.
{¶39} While in an earlier case the Ohio Supreme Court decided to the
contrary, In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976), an accused
contemnor in a civil contempt case does have the right to counsel where
incarceration is a possible sanction. Lassiter v. Dept. of Social Serv., 452 U.S. 18,
101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Appellant in the instant matter was
represented throughout, and was clearly represented during the contempt hearing.
-26-
The right to effective assistance of counsel is part of the due process right to counsel.
To prevail on an ineffective assistance of counsel claim Mercure must show, first, that
counsel's performance was deficient and, second, that the deficient performance
prejudiced the defense so as to deprive him of a fair trial. Strickland v. Washington,
466 U.S. 668, 687 (1984). On review, Mercure alleges that he received ineffective
assistance of counsel due to trial counsel’s decision to file a notice of efforts to purge
contempt instead of filing objections to the magistrate’s decision. Mercure urges that
there is no strategic reason that could justify a failure to file objections, and that this
failure, per se, amounts to ineffective assistance.
{¶40} Under Civ.R. 53(E)(4)(a), a trial court can adopt a magistrate's decision
if no objections are filed unless the court determines that there is an error of law or
other defect on the face of the magistrate's decision. Mercure does not allege the
existence of error or defect on the face of the decision, and our review of the matter
does not reveal error or defect. Mercure also fails to identify any error of fact,
although he maintains trial counsel should have challenged the sufficiency of his
notice of the hearing and the finding that Mercure had the yacht in his possession.
As discussed earlier, the notice reflected in the record was sufficient, and Mercure’s
tardy assertion that he no longer had possession of the yacht was made for the
record in his notice outlining his efforts to purge. These assertions, however, were
also directly contradicted in the email produced by Appellee. Both were before the
court when it adopted the magistrate’s decision. As the only defect alleged by
Mercure is not found in the record, it is impossible to conclude from the evidence that
-27-
counsel’s decision to file an affidavit of his efforts to purge rather than objections to
the magistrate’s decision was patently deficient under the circumstances. Effective
assistance of counsel does not require that counsel file every possible motion or
objection. The evidence before the court supported a finding of indirect civil
contempt, and nothing advanced by Mercure suggests that filing an objection to the
magistrate’s decision would have substantively altered the outcome. Mercure’s third
assignment of error is also without merit and is overruled.
Conclusion
{¶41} The evidence before the court supported a finding of indirect civil
contempt. Mercure received sufficient notice of the motion and an opportunity to be
heard. His thirty day jail sentence was not imposed for failure to pay a civil debt, but
instead, for failure to comply with a court order and he was afforded an opportunity to
purge his contempt. Mercure received effective assistance of counsel at the trial
level. For these reasons, Mercure’s three assignments of error are overruled and the
trial court’s decision is affirmed in total.
Vukovich, J., concurs.
DeGenaro, J., concurs.