[Cite as Cleveland v. Bank of New York Mellon,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99559

CITY OF CLEVELAND PLAINTIFF-APPELLEE

vs.

BANK OF NEW YORK MELLON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cleveland Municipal Court Case No. 2012 CRB 003045

BEFORE: McCormack, J., Jones, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: July 18, 2013 ATTORNEYS FOR APPELLANT

Jason A. Whitacre Ashley E. Mueller The Law Offices of John D. Clunk, Co., L.P.A. 4500 Courthouse Blvd., Ste. 400 Stow, OH 44224

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry Director of Law City of Cleveland

By: William H. Armstrong, Jr. Assistant Director of Law Room 106 – City Hall 601 Lakeside Avenue Cleveland, OH 44114 TIM McCORMACK, J.:

{¶1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Bank of New York Mellon (hereafter “BONY”) appeals

from a judgment of the Cleveland Municipal Court that imposed financial sanctions of

$45,000 after the court found the bank in contempt for failing to appear in court at two

scheduled hearings. For the following reasons, we affirm the judgment of the trial court.

Substantive Facts and Procedural History

{¶2} BONY was a successful bidder for a property at a sheriff’s sale that was held

after a foreclosure action was filed against the property’s former owner. After the sale,

on January 19, 2012, the sheriff recorded the deed and provided the deed to the Law

Offices of John D. Clunk Co., L.P.A. (the law firm that represented BONY at the

proceedings below and also in this appeal). The law firm forwarded the deed to BONY

on February 3, 2012.

{¶3} In between these dates, on January 23, 2012, the city sent its agent to inspect

the property, and the agent cited BONY for a violation of Section 209.01(a)(3) of

Cleveland Codified Ordinances, a minor misdemeanor offense, for failing to “abate the

nuisance of refuse and/or junk, garbage and food waste, offal, animal wastes, tires, or other waste” in the area of the property’s garage. Summons of the complaint was sent to

BONY on February 13, 2012, ordering BONY to appear in court on February 29, 2012.

{¶4} BONY did not appear at the hearing. Subsequently, the trial court placed the

case on its Corporation Docket and, on March 23, 2012, sent a judgment entry to BONY,

ordering its representative to appear in court on May 7, 2012. The court sent this notice

to BONY’s address of record, and it also sent courtesy copies of the notice to various

organizations and individuals in Cleveland and New York, whom the court through its

own investigation, had determined to be BONY’s officers or representatives. The notice

was also sent to Attorney Keith Anderson, who had represented the bank on other matters

in the court.

{¶5} Despite the notices, BONY failed to appear at the May 7, 2012 hearing. As

a result, on May 18, 2012, the court ordered BONY to appear on July 2, 2012, to show

cause why it should not be held in contempt of the court.

{¶6} BONY again failed to appear at the July 2 show cause hearing. On that day,

the court entered a judgment finding BONY in civil contempt of the court’s order to

appear. In its judgment, the court ordered a fine of $1,000, imposed per day until the

time when the defendant made an appearance and entered a plea. The court then set the

matter for a status hearing on October 1, 2012.

{¶7} On October 1, 2012, an attorney from the Law Offices of John D. Clunk filed

a notice of appearance and appeared at the scheduled hearing on behalf of BONY. At

this hearing, BONY entered a plea of not guilty, and the court granted its request to have the matter continued for a court-supervised pretrial hearing. At the pretrial hearing, the

city dismissed its complaint.

{¶8} Subsequently, on October 31, 2012, BONY filed a Motion to Mitigate

Sanctions. The reasons it gave for a mitigation of the financial sanctions were: (1)

BONY was not aware that it had legal title to the subject property on the day of the

alleged violation, and (2) BONY had already mitigated the damages by cleaning up the

property. BONY explained that, in a sheriff’s sale, the successful bidder would not

know when the sheriff’s office would process the deed after the sale, or when the deed

would be recorded, and therefore, BONY did not have actual knowledge that the deed

had been recorded on January 19, 2012, and thus cannot have knowingly violated the

municipal ordinance on the day of the citation, January 23, 2012.

{¶9} BONY also argued that the sanctions to compel its presence in court were

“unnecessary” because it had been working with a land bank to donate the property to the

organization — an agreement was reached on September 21, 2012, and the property was

officially transferred on October 12, 2012.

{¶10} The trial court considered several mitigating factors and granted BONY’s

motion to mitigate sanctions in part. It reduced the $90,000 fines that had accrued

between July 3, 2012 and September 30, 2012, at the per diem rate of $1,000 to $45,000.

{¶11} BONY now appeals from the court’s judgment. {¶12} We review a trial court’s contempt finding for an abuse of discretion. State

ex rel. Celebrezze v. Gibbs,

,

(1991). An abuse of

discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of the

trial court. Blakemore v. Blakemore,

,

(1983).

Contempt

{¶13} It is long established that in Ohio, the court has an inherent power to

exercise its contempt power. Hale v. State,

,

(1896). In

addition to this inherent power, the courts are also given statutory authority to punish acts

of contempt under two statutes, R.C. 2705.01 and 2705.02, which govern direct contempt

and indirect contempt, respectively.

{¶14} R.C. 2705.01 (“Summary Punishment for Contempt”) authorizes direct

contempt proceedings. It states: “A court, or judge at chambers, may summarily punish

a person guilty of misbehavior in the presence of or so near the court or judge as to

obstruct the administration of justice.”

{¶15} An indirect contempt, on the other hand, is a contemptuous act that takes

place outside of the presence of the court. State v. Drake,

,

(8th Dist. 1991). Indirect contempt 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 v. Byron, 10th Dist. No. 3AP-819,

, citing

. {¶16} Because the offending conduct in this case did not take place in the presence

of the court, it is an indirect contempt. R.C. 2705.02 defines various kinds of indirect

contempt, and the indirect contempt pertinent to this case is defined in R.C. 2705.02(A)

as “disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or

command of a court or officer.”

{¶17} For indirect contempt, R.C. 2705.03 provides the following procedure to be

observed: “In cases under section 2705.02 of the Revised Code, 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.”

{¶18} Thus, the courts have both inherent and statutory authority to punish acts of

contempt. In addition, R.C. 1901.13 specifically provides municipal courts with the

power to punish contempt. In re Sherlock,

,

(2d

Dist. 1987).

Criminal v. Civil Contempt

{¶19} In addition to being distinguished by whether the offending act occurs in or

outside the presence of the court, contempt can be characterized as criminal or civil,

depending on the “character and purpose” of the punishment. Brown v. Executive 200,

Inc.,

,

(1980). The distinction between civil and

criminal contempt is important in that, in a criminal contempt, the constitutional

safeguards must be observed as in any other criminal proceedings. Liming v. Damos,

,

,

. In other words, in a criminal contempt, the trial court must advise a defendant of his constitutional rights,

such as right to counsel, right to subpoena witnesses, right to cross-examine a witness,

and right for the guilt to be proven beyond a reasonable doubt.

{¶20} Also, in a criminal contempt, sanctions are punitive in nature, designed to

punish the party for a completed act of disobedience or past failures to comply with the

court’s order.

.

{¶21} In a civil contempt, on the other hand, punishment is remedial, intended to

“coerce the termination of specific misconduct that constitutes a continuing contempt of

court.” Dayton’s Women Health Ctr. v. Enix,

,

(2d

Dist. 1991). Furthermore, because the sanction in a civil contempt is for a coercive

purpose, one charged and found guilty of civil contempt must be allowed to purge himself

or herself of the contempt by showing compliance with the court’s order. Spero v.

Project Lighting, L.L.C., 11th Dist. No. 2011-P-0002,

, ¶ 29; DeLawder

v. Dodson, 4th Dist. No. 02CA27,

, ¶ 10. Finally, in a civil contempt,

the sanction is imposed “for the benefit of the complainant.”

.

{¶22} To achieve the coercive effect in a civil contempt, R.C. 2705.06 allows the

court to imprison a defendant: “When the contempt consists of the omission to do an act

that the accused yet can perform, he may be imprisoned until he performs it.” This is

referred to as coercive imprisonment.

{¶23} For the purpose of this case, it is worth noting that the United States

Supreme Court has pointed out that “[a] close analogy to coercive imprisonment is a per diem fine imposed for each day a contemnor fails to comply with an affirmative court

order. Like civil imprisonment, such fines exert a constant coercive pressure, and once

the jural command is obeyed, the future, indefinite, daily fines are purged.” Intl. Union

v. Bagwell,

,

,

(1994).

Analysis

{¶24} In this case, BONY failed to appear on February 13, 2012, and again on

May 7, 2012, at the scheduled hearing regarding the city’s complaint for its alleged

housing code violation. The failure of a party to appear at a scheduled hearing is not a

direct contempt summarily punishable. Rather, the party has a right to explain the

circumstances of its failure to appear. East Cleveland v. Reed,

,

(8th Dist. 1977). The trial court in this case provided such an opportunity

here; in compliance with the procedure set forth in R.C. 2705.03, the court issued a show

cause order on May 18, 2012, ordering BONY to show cause as to why it should not be

punished for contempt of court.

{¶25} Although the trial court duly provided an opportunity for BONY to explain

its failure to appear, BONY failed to appear at the show cause hearing.

{¶26} As a result, the court found BONY in civil contempt. In its judgment, the

court explained that BONY faced a potential maximum fine of $1,000, if found guilty of

the minor misdemeanor offense charged by the city, and furthermore, each day of its

non-compliance is a separate offense. The court therefore determined that $1,000 would

be an appropriate per diem financial sanction to compel BONY’s presence in the court. The fines would accrue until the defendant made an appearance and entered a plea.

BONY eventually appeared in October 1, 2012.

{¶27} In a subsequent motion to mitigate the sanctions, BONY acknowledged it

received the summons and complaint, but did not explain why it failed to appear in court

on three scheduled hearings, including the show cause hearing. Instead, BONY asked

the financial sanctions to be mitigated on the grounds that BONY was not aware of

having legal title to the subject property on the date of the complaint, and that it had since

cleaned up the property and had also been working on donating the property to a land

bank. Although these circumstances may have explained why the city ultimately

dismissed the complaint, none of these reasons pertained to why BONY did not obey the

court’s order regarding the scheduled hearings.

{¶28} In a comprehensive decision issued on January 18, 2013, the trial court

explained that a corporation, like any other defendant, must appear before the court to

enter a plea and conclude a case. Unlike a natural person who failed to appear, however,

a warrant for a corporate defendant’s arrest cannot be issued. Nonetheless, the inability

of a corporation to be arrested and brought before a judge does not render a corporation

exempt from having to appear in the court. Consequently, a per diem fine was proper in

this case to coerce the corporate defendant’s appearance in court. The court observed

that the coercion proved to be effective indeed, because sometime after the fines took

effect, BONY appeared in court. {¶29} The court then considered four possible mitigating factors under the

circumstances of this case. First, it noted BONY similarly failed to appear in five other

cases before the housing court; the present motion to mitigate sanctions was the sixth

such motion from the same defendant. In fact, as recent as January 7, 2013, BONY was

found in civil contempt for failing to appear at the show cause hearing in yet another case.

Second, the court noted BONY’s non-appearance was a deliberate act — in its motion to

mitigate sanctions, BONY stated it did not appear at the hearings because it had been

working with the city’s inspector on the subject property, which evidenced a deliberate

decision not to appear in court. The court decided that these two factors weighed against

mitigation.

{¶30} Third, the court considered BONY to have demonstrated a willingness to

resolve the underlying charge by eventually retaining counsel for the matter and

concluding it in an expeditious manner. Fourth, the court observed that the violation of

the housing code was not of an on-going nature: BONY was only cited for a minor

misdemeanor violation for a single day. The court decided these two factors weighed in

favor of mitigation.

{¶31} The court stated that BONY purged itself of contempt when it eventually

appeared in court. After considering the mitigating factors, the court determined BONY

has shown good cause to mitigate a portion of the $90,000 sanctions. The court noted

specifically that it had allowed the sanctions against BONY to be mitigated generously in

the prior five cases — the sanctions for those five cases totaled only $39,600. However, because BONY appeared to treat the payments of mitigated damages as merely a cost of

doing business, without any modification in the way it conducted itself in court, the court

ordered BONY to pay half of the sanctions ($45,000) in this case.

{¶32} Circumstances similar to this case existed in Cleveland v. Paramount Land

Holdings, L.L.C., 8th Dist. Nos. 96180, 96181, 96182, and 96183,

, and

our holding from that case is directly on point. There, the city of Cleveland issued

several citations alleging health code violations in properties owned by a corporation.

The corporation failed to show at several scheduled hearings, and like BONY, failed to

show at the show cause hearing. As a result, the trial court found the corporation in

contempt, and similarly issued a per diem fine of $1,000 to coerce the corporation’s

appearance in court.

{¶33} Based on these circumstances, this court found the contempt to be civil

contempt, noting that the per diem sanctions were designed to coerce the corporate

defendant to appear, and the defendant was given an opportunity to purge the contempt by

appearing in court — once it appeared, the trial court found the contempt purged and

immediately stopped the daily fines.

{¶34} Similarly here, the trial court used a per diem fine to “exert a constant

coercive pressure” on a corporate defendant, Bagwell,

,

,

, and the fine was intended “to coerce the termination of the

defendant’s misconduct” in repeatedly failing to appear at scheduled hearings, Enix,

,

. Once BONY appeared, the court found the contempt purged and immediately stopped the fines. Therefore, as in Paramount Land, the

contempt here was civil in nature.

{¶35} Under the first assignment of error, BONY argues Paramount Land, 8th

Dist. Nos. 96180, 96181, 96182, and 96183,

, is distinguishable because,

unlike Paramount Land, the fines in this case were not imposed “for the benefit of the

complainant.” BONY therefore claims the contempt in this case was criminal, not civil,

and the criminal nature of the contempt required the trial court to comply with due

process requirements before it imposed the financial sanctions.

{¶36} According to BONY, because the corporate defendant in Paramount Land

was ultimately found guilty of the offenses, the city “prevailed,” and therefore the

sanctions could be deemed as “for the benefit of the complainant,” rendering the

contempt civil. BONY argues in this case the city dismissed the charge against BONY,

therefore, the imposition of the sanctions could not possibly be construed as “for the

benefit of the complainant.”

{¶37} This argument lacks merit. The city dismissed the case only after the fines

were imposed and BONY began to work with the city’s counsel and eventually appeared

in court to answer the complaint. Thus, the imposition of the daily fines appears to have

indeed “benefitted the complainant.” In any event, the pertinent inquiry is whether the

court imposed the sanctions for the benefit of the complaint. The record reflects the trial

court imposed the fines for the sole purpose of coercing BONY to appear in court to

answer the city’s charge of a housing code violations. Once BONY appeared, the court found the contempt purged and immediately stopped the fines. Therefore, BONY’s

claim is not supported by the record.

{¶38} We further note that, even if we were to characterize the contempt here as a

criminal contempt, the record reflects the trial court properly safeguarded BONY’s due

process rights. Before finding BONY in contempt for its repeated failures to appear, the

court ordered a show cause hearing and provided BONY an opportunity to be heard

regarding the allegation of contempt, pursuant to R.C. 2705.03. In its notice of the show

cause hearing sent to BONY, the court advised BONY of its various constitutional rights

regarding the contempt charge, including a right to obtain witnesses by compulsory

process, right to cross-examine the witnesses, and a right to have the contempt, if criminal

in nature, proven beyond a reasonable doubt. BONY, however, chose not to avail itself

of the opportunity to be heard.

{¶39} Furthermore, after BONY finally appeared in court and subsequently

requested mitigation of the sanctions, the court heard its argument and carefully weighed

several mitigating factors, finding two of the factors in favor of BONY, and reduced the

financial sanctions to $45,000. On this record, we find no violations of BONY’s due

process rights, even if we were to characterize the contempt as criminal in nature. The

first assignment of error is without merit.

{¶40} Under the second assignment, BONY argues the sanctions imposed are

arbitrary, unreasonable, and unconscionable on the grounds that (1) it did not have

dominion and control over the subject property on the day the citation was issued, and (2) the maximum fine for the underlying offense was far less than the fines imposed by the

court.

{¶41} Again, BONY fails to understand the coercive nature of the fines and the

independence of the contempt charge from the underlying offense. Because of the

unavailability of coercive imprisonment for a corporate defendant, the per diem fine of

$1,000 here was a measured effort by the court to coerce the appearance of such a

defendant, who repeatedly ignored the court’s orders to appear at scheduled hearings.

We find no abuse of discretion by the trial court in imposing a daily fine to “exert a

constant coercive pressure” on the corporate defendant in order to secure its compliance

with the court’s order. The second assignment of error is without merit.

{¶42} Judgment affirmed.

It is ordered that appellee recover of appellant 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 municipal

court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., and SEAN C. GALLAGHER, J., CONCUR