[Cite as Lahoud v. Tri-Monex, Inc.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96118

JIHAD LAHOUD, ET AL. PLAINTIFFS-APPELLEES

vs.

TRI-MONEX, INC., ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-702167

BEFORE: Rocco, J., Stewart, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: August 18, 2011 2

ATTORNEY FOR APPELLANTS

Aleksandar Rakic 1787 Pearl Road Brunswick, Ohio 44212

ATTORNEYS FOR APPELLEES

Michael J. Downing 75 Public Square, Suite 920 Cleveland, Ohio 44113

Tania T. Nemer McGinty, Hilow & Spellacy Co., LPA 1300 The Rockefeller Building 614 W. Superior Avenue Cleveland, Ohio 44113

KENNETH A. ROCCO, J.:

{¶ 1} Defendants-appellants Tri-Monex, Inc., Hanan Khoury

(hereinafter referred to by her first name), Kameel Khoury, and Victor Jada

(hereinafter referred to by his first name) appeal from the trial court order

that found Hanan to be in contempt of court for refusing to answer certain 3

questions and produce certain documents at a deposition conducted by

plaintiffs-appellees Jihad Lahoud, Ibrahim Hamame, and Hessam Lahoud.

{¶ 2} Appellants present three assignments of error in which they

argue the trial court’s order should be reversed because: 1) the order

impermissibly required Hanan to incriminate herself; 2) the trial court did

not first review the documents to determine whether they were incriminating

before setting forth the purge condition; and 3) the trial court did not first

determine whether Hanan could obtain some of the documents appellees

requested before finding her in contempt.

{¶ 3} Upon a review of the record, this court disagrees. The trial

court’s order, consequently, is affirmed.

{¶ 4} The record reflects appellees filed a complaint against appellants

and two other named defendants1 in August 2009 that alleged five causes of

action, viz., illegal sales of securities, violation of Ohio’s “Corrupt Activities

Act” (the “CAA”), 2 fraud, conversion, and civil conspiracy against the

individual appellants, and “punitive damages.” The complaint stated that

Hanan was “owner/president of Tri-Monex.” In November 2009, appellants

1 Defendants in the underlying action, George T. George and James T. George, are not part of this appeal. 2R.C. 2923.31 et seq. 4

filed a joint answer denying the pertinent allegations and raising several

affirmative defenses.

{¶ 5} On June 3, 2010, appellees filed a motion seeking an order

finding appellants Hanan and Victor in contempt for failing to appear at a

scheduled deposition. Appellees asserted that appellants sought to

reschedule the deposition twice previously, and requested an additional order

from the court “compelling their appearance to answer questions under oath.”

{¶ 6} The court held a hearing on appellees’ motion that same day. At

the outset, the court noted that the parties had agreed to a monetary

settlement, whereby Hanan and her sister would pay appellees “$50,000 by

June 25th”and then a “balance of the amount due, which is $750,000, * * * by

September 1st.”

{¶ 7} The trial court warned the defendants responsible for the

payment to appellees that it would “put an order on” with respect to the

settlement’s terms, and that “failure to comply with it can result in contempt

proceedings which includes * * * jail, if it is direct contempt. And, you could

end up staying in jail till you pay” the settlement.

{¶ 8} On June 7, 2010, the trial court issued a journal entry that stated

as follows: 5

{¶ 9} “Defendant Hahan (sic) Khoury is to pay as a settlement of this

matter $50,000.00 by 6/25/10 to plaintiffs and a balance of $750,000.00 by

9/1/10. Failure to comply will result in a contempt proceeding. Parties to

return [to court] on 9/9/10 at 2:00 p.m.”

{¶ 10} On September 9, 2010, appellees filed a motion for an order

compelling discovery. Appellees asserted they scheduled a deposition for

appellants Hanan and Victor on September 14, 2010, and since prior attempts

to depose them had been unsuccessful, they sought the court’s assistance.

{¶ 11} Contemporaneously, appellees also filed a motion to hold the

same two appellants “in contempt of court for failure to comply with the

court’s order of June 7, 2010.” Appellees asserted Hanan and Victor never

made the second payment due on the settlement.

{¶ 12} After the parties filed memoranda in support of their respective

positions on the issue, the court issued a journal entry that scheduled “the

depositions to be held on 11/3/10 at 1:00 p.m.” in the court’s jury room.

When the depositions proceeded on that day, appellees eventually called upon

the trial court “to discuss the propriety of * * * objections” appellants were

making as to some of the questions posed by appellees.

{¶ 13} In particular, appellants declined to either answer any questions

about either the location where the money appellees gave to Tri-Monex was 6

deposited, or whether Tri-Monex itself had any bank accounts that received

those funds. Appellants asserted the matters were protected by the Fifth

Amendment.

{¶ 14} The trial court wanted the record to “show that we’ve been here a

number of times with regards to this matter * * * .

{¶ 15} “ * * * [O]n the 9th of September, * * * the money hadn’t been paid

back. And [Hanan] said it was gonna’ come within a few days.

{¶ 16} “I believe we came back * * * maybe the 28th of October, and she

said that the money was in * * * Toronto, Canada, and she would have it back

immediately.

{¶ 17} “ * * *

{¶ 18} “And [on June 3, 2010,] I did tell Miss Khoury that if, in fact, she

did not pay she may be held in * * * contempt of Court. * * * ”

{¶ 19} At that point, the trial court asked appellees which questions

Hanan and Victor had refused to answer. Counsel for appellees stated that

his clients each had “deposited” certain sums “with Tri-Monex, and were

issued promissory

{¶ 20} notes, ostensibly signed by Miss Khoury,” and appellees wanted

to know “where those deposits were made, what bank, and what records does

she have as an officer of Tri-Monex.” 7

{¶ 21} The trial court stated that since Hanan already had

acknowledged she had appellees’ money, and “where it was located and that

she was gonna’ pay it back,” the court did not “see where this would be

incriminating by answering where she deposited in further criminal

proceedings that she would be protected by her right, her Fifth Amendment

rights, because she’s already said she had the money * * * .” On that basis,

the court ordered Hanan to answer the question as to where she deposited the

money, further stating that failure to obey the order “may result in contempt

proceedings.”

{¶ 22} After appellants’ counsel objected, appellees’ counsel interjected

that they also wanted to see the documents that had not been produced. In

answer to the court’s question, appellees’ counsel stated that the documents

had been “subpoenaed [on] two separate occasions”; the listed documents

included “corporate records of Tri-Monex, bank statements, copies of all

brokerage account statements or other investment accounts and copies of

personal financial tax returns.”

{¶ 23} According to appellees’ counsel, although Hanan “admitted that

Tri-Monex did have a bank account,” she invoked her Fifth Amendment right

and 8

{¶ 24} “refused to give the account number or answer any other

questions concerning the deposit of plaintiffs’ funds in those accounts.” The

trial court instructed Hanan to answer appellees’ questions, but her attorney,

on her behalf, invoked the Fifth Amendment.

{¶ 25} The trial court stated its belief that the matter had nothing to do

with the Fifth Amendment, because Hanan had “already appeared in court

saying she had the money. * * * [M]oney was received by Tri-Monex * * *

inasmuch as she is an officer of Tri-Monex,” the court reiterated its order to

answer and to provide the information appellees requested or be held in

contempt.

{¶ 26} When Hanan’s attorney once again stated that his client declined

to do so, the trial court found her in contempt of court and stated it would

impose a fine of a thousand dollars a day until she provided the information

to appellees. The court set a date “to come back in two weeks to pay the

amount of money that is due at that point,” and subsequently requested

appellees to “prepare the order” concerning the hearing.

{¶ 27} The next entry that appears on the court’s docket, dated

November 5, 2010, indicates a “contempt hearing [wa]s set” for November 19,

2010. On November 8, 2010, however, the trial court issued a journal entry

that stated 9

{¶ 28} in relevant part as follows:

{¶ 29} “This matter came on for hearing on November 3, 2010. During

a

{¶ 30} deposition conducted this day * * * , [Hanan] was asked to answer

questions concerning the deposit of certain funds belonging to [appellees] in

this case.

{¶ 31} “[Appellees’] counsel also requested * * * certain documents listed

* * * in the notice of deposition. [Hanan], having refused to answer said

questions, claiming Fifth Amendment protection, or provide the requested

documents, after being ordered to do so by the judge in open court, is hereby

found to be in Contempt of Court and is assessed a fine of One Thousand

Dollars ($1,000.00) per day for each day until she provides * * * the answers *

* * , and * * * documents.”

{¶ 32} Appellants filed a timely appeal of that order. They present the

following assignments of error.

{¶ 33} “I. The trial court erred in denying Appellants’ right to

assert their fundamental right against self-incrimination in violation

of the Fifth Amendment by requiring them to answer all questions

posed by Appellees. 10

{¶ 34} “II. The trial court erred in failing to make a factual

determination, before finding that Appellants did not have a Fifth

Amendment right, as to whether answering the questions and

discovery requests would have been personal and testimonial and

would have conceded certain facts, and, if so, whether any of the

concessions would have been self-incriminating.

{¶ 35} “III. The trial court erred in finding that Appellants did

not have a Fifth Amendment right where Appellants’ production of

documents would have been personal, testimonial and

self-incriminating.”

{¶ 36} Appellants argue the trial court’s contempt order was improper

because: 1) the order impermissibly required Hanan to incriminate herself; 2)

the trial court did not first review the documents to determine whether they

were incriminating before setting forth the purge condition; and 3) the trial

court did not first determine whether Hanan could obtain some of the

documents appellees requested before finding her in contempt. This court

disagrees that the trial court erred in making its contempt finding.

{¶ 37} Contempt is defined as a disregard of, or disobedience to, an order

or command of judicial authority. State v. Flinn (1982),

,

. This court cannot reverse a finding of contempt by a trial 11

court unless that court abused its discretion. State ex rel. Ventrone v. Birkel

(1981),

,

; Offenberg v. Offenberg, Cuyahoga

App. Nos.

{¶ 38} 78885, 78886, 79425, and 79426,

, ¶73. In

applying this standard of review, an appellate court is not free to substitute

its judgment for that of the trial court. In re Jane Doe 1 (1991),

,

, citing Berk v. Matthews (1990),

,

.

{¶ 39} In Strauss v. Strauss, Cuyahoga App. No. 94129,

,

¶9-10, this court recently distinguished direct and indirect contempt as

follows:

{¶ 40} “A court may find the offending party in contempt for either

direct or indirect actions that constitute disobedience to an order. Pirtle v.

Pirtle, 2nd Dist. No. 18613,

. While a direct contempt occurs

within the court’s presence or with the court’s personal knowledge of facts

relating to the act, indirect contempt is ‘misbehavior that occurs outside the

actual or constructive presence of the court.’

One accused of indirect

contempt is entitled to a ‘hearing on the charge, at which the court must

investigate the charge, hear any answer or testimony that the accused makes

or offers, and then determine whether the accused is guilty.’

12

{¶ 41} “Although 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,

, citing Brown v. Executive 200, Inc. (1980),

,

. While

{¶ 42} criminal contempt is characterized by an unconditional prison

sentence, civil contempt is marked by remedial or coercive punishment, doled

out for the ‘benefit of the complainant.’ Id.” (Emphasis added.)

{¶ 43} The importance of classifying the types of contempt is thus the

effect the classification has on the rights of the contemnor. Direct contempt

of court occurs in a way so closely related to the court itself that a finding may

occur summarily; the court is not required to deal with direct contempt by

providing the contemnor with a hearing. In re Purola (1991),

,

.

{¶ 44} In contrast, indirect contempt of court does not occur in the

presence of the court, and a hearing is required to provide the contemnor with

the opportunity to explain his actions. Furthermore, if the indirect contempt

is criminal in nature, then intent to defy the court must be proven beyond a

reasonable doubt. Brown v. Executive 200, Inc. 13

{¶ 45} A sanction for civil contempt allows the contemnor to purge

himself of the contempt. Tucker v. Tucker (1983),

,

. Once the contemnor complies with the court’s order, the

purpose of the contempt sanction has been achieved and the sanction is

discontinued. Cleveland v. Ramsey (1988),

,

.

{¶ 46} In this case, it is clear the trial court found Hanan to be in direct,

civil contempt for her failure to comply with two earlier orders, viz., the order

to pay appellees the remainder of the settlement amount by September 1,

2010; and also, the order to submit to the deposition conducted by appellees

on November 3, 2010. The trial court, therefore, was not required to provide

Hanan with a hearing prior to making its finding. Pursuant to Civ.R. 37(D),

Hanan was required to seek a protective order to protect her interests.

{¶ 47} Appellants argue the trial court’s finding nevertheless was

improper because the court was requiring Hanan to incriminate herself before

determining whether the documents contained incriminating information and

before determining whether she could actually produce them. As authority

for their position, they cite, inter alia, Curcio v. United States (1957),

,

,

. The facts in this case, however, are more

analogous to those addressed in United States v. Rylander (1983), 460 U.S. 14

752,

,

, in which the United States Supreme

Court distinguished Curcio by observing as follows:

{¶ 48} “Rylander * * * was held in contempt for failure to comply with a

previous order of the District Court * * * . This order, unappealed from,

necessarily contained an implied finding that no defense of lack of possession

or control had been raised and sustained in th[e underlying] proceeding. The

only issue open

{¶ 49} to Rylander in defending the contempt proceeding was to show

inability to then produce, and because of the presumption of continuing

possession arising from the enforcement order, [citation omitted], if he sought

to defend on that ground he was required to come forward with evidence in

support of it. The fact that his refusal to come forward with such evidence

was accompanied by a claim of Fifth Amendment privilege may be an

adequate reason for the court not compelling him to respond to

cross-examination at the contempt hearing, but the claim of privilege is not a

substitute for relevant evidence.” (Emphasis in original; underscoring

added.)

{¶ 50} Similarly, in Elec. Workers Pension Trust Fund of Local Union

#58, IBEW v. Gary’s Elec. Service Co. (C.A.6, 2003),

. The court

stated: 15

{¶ 51} “When a court seeks to enforce its order or supervise its

judgment, one weapon in its arsenal is contempt of court. See NLRB v.

Cincinnati Bronze, Inc.,

(6th Cir. 1987). Recognizing that

the power ‘to punish for contempts’ should not be used lightly, the Supreme

Court has stated that this power ‘is a necessary and integral part of the

independence of the judiciary, and is absolutely essential to the performance

of the duties imposed on them by law. Without it they are mere boards of

arbitration, whose judgments and decrees

{¶ 52} would be only advisory.’ Gompers v. Buck’s Stove & Range Co.,

,

,

(1911). Contempt proceedings

enforce the message that court orders and judgments are to be complied with

in a prompt manner. Cincinnati Bronze,

. With respect to

civil contempt proceedings, ‘[j]udicial sanctions * * * may, in a proper case, be

employed for either or both of two purposes; to coerce the defendant into

compliance with the court’s order, and to compensate the complainant for

losses sustained.’ United States v. United Mine Workers of Am.,

,

,

(1947).

{¶ 53} “In order to hold a litigant in contempt, the movant must produce

clear and convincing evidence that shows that ‘he violated a definite and

specific order of the court requiring him to perform or refrain from performing 16

a particular act or acts with knowledge of the court’s order.’ Cincinnati

Bronze,

(quotation and brackets omitted). * * * Once the

movant establishes his prima facie case, the burden shifts to the contemnor

who may defend by coming forward with evidence showing that he is

presently unable to comply with the court’s order. United States v. Rylander,

,

,

(1983) (‘[w]here compliance

is impossible, neither the moving party nor the court has any reason to

proceed with the civil contempt action. It is

{¶ 54} settled, however, that in raising this defense, the defendant has a

burden of production.’). To meet this production burden in this circuit ‘a

defendant must show categorically and in detail why he or she is unable to

comply with the court’s order.’ Rolex Watch U.S.A., Inc. v. Crowley,

(6th Cir. 1996) (quotation omitted). When evaluating a defendant’s

failure to comply with a court order, we also consider whether the defendant

‘took all reasonable steps within [his] power to comply with the court’s order.’

Peppers, 873 F.2d at 969.

{¶ 55} “ * * *

{¶ 56} “Many decades ago, in a case where a corporate officer who failed

to comply with a subpoena duces tecum was held in contempt, the Supreme

Court stated: 17

{¶ 57} ‘A command to the corporation is in effect a command to those

who are officially responsible for the conduct of its affairs. If they, apprised

of the [order] directed to the corporation, prevent compliance or fail to take

appropriate action within their power for the performance of the corporate

duty, they, no less than the corporation itself, are guilty of disobedience, and

may be punished for contempt.’ Wilson v. United States,

,

,

(1911) * * * .”

{¶ 58} At any event, “Ohio law is clear that the protection against

compulsory self-incrimination does not extend to prohibit civil litigation

where the possibility of prosecution exists, nor does it require staying a

related civil case until a criminal appeal is resolved.” Ohio Bar Liab. Ins. Co.

v. Silverman, Franklin App. No. 05AP-923,

, citing

State ex rel. Verhovec v. Mascio,

,

,

and Urban v. State Med. Bd., Franklin App. No. 03AP-426,

(Emphasis added). See, also, Commonwealth Land Title Ins.

Co. v. Davis (1989),

,

.

{¶ 59} The trial court correctly observed that by entering into a

settlement agreement with appellees, she acknowledged liability on appellees’

claims, and became bound by the trial court’s order. Considering that Hanan

had not been either indicted in a criminal matter, or called to testify against 18

herself in one, the trial court did not abuse its discretion in finding her in

contempt for refusing to comply with its previous orders. In re Original

Grand Jury Investigation (Kaiser), Mercer App. No. 10-02-20,

, ¶15.

{¶ 60} For the foregoing reasons, appellants’ assignments of error are

overruled.

{¶ 61} The trial court’s order is affirmed.

It is ordered that appellees recover from appellants 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.

_______________________________ KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., CONCURS FRANK D. CELEBREZZE, JR., J., CONCURS (SEE ATTACHED CONCURRING OPINION)

FRANK D. CELEBREZZE, JR., J., CONCURRING: 19

{¶ 62} I concur with the majority, but write separately to stress the

inapplicability of the Fifth Amendment right against self-incrimination as it

relates to corporate records.

{¶ 63} Here, the whereabouts of money belonging to Tri-Monex is a

business record of the corporation and is not subject to Fifth Amendment

privilege. Also, questions about Tri-Monex’s corporate structure and

business dealings are not subject to Fifth Amendment privilege because the

corporation does not enjoy such a right. Wilson v. United States (1911),

,

,

, at the syllabus. “‘Since the Fifth

Amendment right is a personal right, an individual may not claim such

privilege on behalf of a collective entity or organization of which he may be a

part. Neither a partnership, a corporation, nor any other collective entity is

shielded by the Fifth Amendment from the compelled production of an

organization’s records.’” Quinlan v. Ohio Dept. of Commerce, Div. of

Consumer Fin. (1996),

,

, quoting

Cincinnati v. Bawtenheimer (1992),

,

.

{¶ 64} Appellees asked, “what is the business of Tri-Monex, Inc.,” a

question that is purely related to the corporation and not personal under any

proper reading of Fifth Amendment law governing corporate and private 20

privileges. Appellees also asked for certain documents, whether Tri-Monex

held any bank accounts, and where money was deposited that was given to

Tri-Monex. These are also questions relating to the corporation and not the

individual. Appellants must provide these corporate records because they

are not personal in nature.