[Cite as Home S. & L. Co. v. Midway Marine, Inc.,

.] 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.,

.] 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,

,

(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,

,

(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,

,

(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.,

,

(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

,

,

. 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,

(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,

,

(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,

, 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,

,

(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.,

,

(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,

,

(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.”

.

{¶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.,

,

(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.,

,

(1980). Where contempt is civil, the clear and convincing evidentiary standard

applies.

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,

, 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,

,

(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,

, citing

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.

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.

;

.

{¶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,

(1995); State v. Bidinost,

(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,

(1st Dist. 1978); Erven v. Erven,

(1st Dist.); and -20-

Poptic v. Poptic,

. 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,

, 20,

(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,

,

(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,

,

(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,

(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,

,

(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.,

,

,

(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,

(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.