[Cite as Ohio Power Co. v. Ogle,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

OHIO POWER COMPANY, : : Case No. 10CA13/10AP13 Plaintiff-Appellee, : : vs. : Released: July 27, 2011 : CHARLES R. OGLE, et al., : : DECISION AND JUDGMENT Defendants-Appellants. : ENTRY _____________________________________________________________ APPEARANCES:

Ray R. Michalski and D. Joe Griffith, Dagger, Johnston, Miller, Ogilvie & Hampson, LLP, Lancaster, Ohio, for Defendants-Appellants.1

Brian L. Buzby and Daniel B. Miller, Porter Wright Morris & Arthur, LLP, Columbus, Ohio, for Plaintiff-Appellee. _____________________________________________________________

McFarland, J.:

{¶1} Defendants-Appellants, Charles R. Ogle and Melanie Ogle, appeal

the decision of the Hocking County Court of Common Pleas finding them in

contempt of court. They argue that 1) the trial court erred in granting the contempt

motion in favor of Plaintiff-Appellee, Ohio Power; and 2) the amount awarded as

sanctions was not consistent with the gravity of the alleged misconduct. For the

following reasons, we sustain their first assignment of error and reverse the trial

court’s decision.

1 On 1/21/2011, Dagger, Johnston, Miller, Ogilvie & Hampson, and attorney Joe Griffith, withdrew as counsel of record for Defendants-Appellants. Hocking App. No. 10CA13 2

I. Facts

{¶2} In 2007, Ohio Power sought an easement on property owned by

Charles and Melanie Ogle (“the Ogles”) for the installation of a power line. The

Ogles contested the action. After a full hearing on the matter, the trial court

determined that the taking was necessary and granted the easement to Ohio Power.

A jury subsequently awarded the Ogles monetary compensation for the taking. On

December 11, 2008, the trial court entered its final judgment entry in the case.

{¶3} Both parties appealed the trial court’s decision to this court. During

the pendency of the appeal, the Ogles moved multiple times to stay execution of

judgment. In Ohio Power Co. v. Ogle, 4th Dist. Nos. 09CA1, 09AP1, 2009-Ohio-

5953, we affirmed both the granting of the easement and the award of

compensation. The Ogles then appealed our decision to the Supreme Court of

Ohio, but the Court denied the appeal.

{¶4} On August 6, 2009, Ohio Power moved to compel the Ogles to show

cause for contempt of court. Ohio Power also moved for an injunction restraining

the Ogles’ from interfering with the trial court’s final judgment. Ohio Power

claimed that the Ogles had totally blocked access to the granted easement, thus

preventing preparations for the installation of the power line. On August 12, the

trial court conducted a hearing on Ohio Power’s motion. After a full hearing,

including post-hearing briefs, the court found the Ogles in contempt. In its August

31, 2009 order, the court stated the following: Hocking App. No. 10CA13 3

{¶5} “Defendants have willfully disregarded this Court’s authority and

orders in this action by taking deliberate, intentional, and wrongful actions contrary

to and in disregard of the Court’s Final Judgment Entry. Furthermore, given

Defendants’ flagrant disobedience, the Court further concludes that an injunction is

necessary to prohibit Defendants and those acting in concert with them from

further interfering with Ohio Power’s lawful activity pursuant to the easement

granted to Ohio Power in this action.”

{¶6} Ohio Power subsequently moved for attorney’s fees and damages

related to the contempt of court. The trial court conducted a hearing on the matter

on December 23, 2009. On June 22, 2010, the court entered judgment against

Ogle and her husband in the amount of $25,136.78. The Ogles appeal the finding

of contempt and the award of sanctions in the current appeal.

II. Assignments of Error First Assignment of Error

THE TRIAL COURT ERRED, AS A MATTER OF FACT AND LAW, IN FINDING THAT APPELLANTS WERE IN CONTEMPT OF THE TRIAL COURT’S DECEMBER 11, 2008 ORDER GRANTING AN ELECTRIC LINE EASEMENT TO APPELLEE OVER LANDS OF THE APPELLANTS.

Second Assignment of Error

THE TRIAL COURT ERRED, AS A MATTER OF FACT AND LAW, IN ASSESSING SANCTIONS AGAINST THE APPELLANTS IN THE AMOUNT OF $8,000.00 FOR DAMAGES AND $17,136.78 IN ATTORNEY’S FEES FOR APPELLANTS’ ALLEGED CONTEMPT OF THE TRIAL COURT’S DECEMBER 11, 2008 ORDER. Hocking App. No. 10CA13 4

III. Legal Analysis

{¶7} In their first assignment of error, the Ogles argue that the trial court

erred in finding them in contempt of court. We agree.

{¶8} Trial courts have broad discretion in ruling on motions for contempt

of court. As an appellate court, we must uphold the trial court’s decision unless

there has been an abuse of discretion. In re T.B., 4th Dist. No. 10CA04, 2010-

Ohio-2047, at ¶37; State ex rel. Ventrone v. Birkel (1981)

,

. Abuse of discretion is more than an error of judgment. Rather,

it indicates that a ruling was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983),

,

.

Furthermore, when applying the abuse of discretion standard, we may not

substitute our judgment for that of the trial court. Berk v. Matthews (1990),

,

.

{¶9} Contempt of court may be defined as disobeying or disregarding a

court order or a command of judicial authority. In re T.B. at ¶38. “It involves

conduct that engenders disrespect for the administration of justice or which tends

to embarrass, impede or disturb a court in the performance of its function.”

“Proceedings in contempt are intended to uphold and ensure the effective

administration of justice, secure the dignity of the court and affirm the supremacy

of law.”

Hocking App. No. 10CA13 5

{¶10} Contempt of court may be classified as civil or criminal depending

on the penalty imposed and on the trial court’s rationale for the finding. Criminal

contempt proceedings serve to punish the offender, and also to vindicate the

authority of the legal system. Id. at ¶39, citing Scherer v. Scherer (1991),

,

. Conversely, civil contempt proceedings serve a

remedial or coercive function and are for the benefit of the complainant. “Civil

contempt exists when a party fails to do something ordered by a court for the

benefit of an opposing party.” In re T.B. at ¶40. “A finding of civil contempt does

not require proof of purposeful, willing, or intentional violation of a trial court’s

prior order.” Porter v. Porter, 4th Dist. No. 07CA3178,

,

citing Pugh v. Pugh (1984),

,

. There must

be clear and convincing evidence to support a finding of civil contempt. In re T.B

at ¶40.

{¶11} However, “[p]roceedings for contempt for noncompliance will not

lie where the order does not expressly address the alleged act of disobedience.”

Cortland United Methodist Church v. Knowles, 11th Dist. No. 2006-T-0110, 2007-

Ohio-3383, at ¶ 34, citing South Euclid Fraternal Order of Police, Lodge 80 v.

D’Amico (1987),

,

. See, also, Williams v.

Morris (1991),

,

.

{¶12} Here, the trial court found the Ogles in contempt of its December 11,

2008, final judgment entry. The entry awarded Ohio Power an easement on the Hocking App. No. 10CA13 6

Ogles’ property and specified Ohio Power’s authority to use the easement. It

contained a list of specific acts the from which the Ogles were to refrain, such as

placing buildings, structures, piles, or debris within the easement. The entry

contained no general provision and no injunction against the Ogles that generally

prohibited them from interfering with the easement.

{¶13} Ohio Power’s arguments cite numerous acts by the Ogles that

allegedly violated the trial court’s final entry. For example, the Ogles had a

township trustee inform Ohio Power it was operating without a necessary permit;

the Ogles fired guns on their property; the Ogles allegedly removed stakes that

marked the easement’s boundaries; Melanie Ogle allegedly drove her truck at an

Ohio Power employee; and the Ogles blocked the easement with vehicles and

animals.

{¶14} Yet none of these alleged acts were specifically prohibited by the

trial court’s final judgment entry. Even taking all of the allegations against the

Ogles as true, the Ogles did nothing the entry expressly prohibited, nor did they

fail to do anything the entry expressly commanded. Thus, there was no basis for

the trial court to find the Ogles had violated its entry, and the trial court abused its

discretion in finding the Ogles in contempt. Accordingly, we sustain the Ogles

first assignment of error.

{¶15} Moreover, if Ohio Power believed the Ogles were interfering with

the use and enjoyment of the easement, Ohio Power had a remedy by filing suit for Hocking App. No. 10CA13 7

interference with easement: the owner of the servient estate may not interfere with

the dominant estate’s use and enjoyment of the easement. See Bayersdorfer v.

Winkler, 7th Dist. Nos. 860, 871,

, at ¶ 20; Columbia Gas Transm.

Corp. v. Bennett (1990),

,

; Rueckel v. Texas

E. Transm. Corp. (1981),

,

; Roebuck v.

Columbia Gas Transm. Corp. (1977),

,

;

Clement v. Fishler (1927),

,

. We take no

position on whether Ohio Power would be successful in such an action, but rather

highlight contempt was neither the appropriate nor sole means to resolve the

matter.

{¶16} Finally, given our resolution of the Ogles’ first assignment of error,

the Ogles’ second assignment of error is moot and we reverse the trial court’s

judgment.

JUDGMENT REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Hocking App. No. 10CA13 8

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION and that the Appellants recover of Appellee costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Kline, J.: Concurs in Judgment and Opinion. Abele, J.: Dissents.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.