Bank One Trust v. Scherer , 176 Ohio App. 3d 694 ( 2008 )

{¶ 52} Because I disagree with the majority's analysis of Wiles's first assignment of error, I must respectfully dissent on that issue only. Wiles argues in his first assignment of error that the trial court abused its discretion when it summarily found him in direct criminal contempt of court on April 12, 2007. As explained above, direct contempt occurs in the presence of the court and obstructs the administration of justice. R.C. 2705.01. Further, criminal contempt imposes sanctions that are punitive in nature.State ex rel. Corn v. Russo (2001), 90 Ohio St.3d 551,555, 740 N.E.2d 265. R.C. 2705.01 provides that a court may summarily punish a contemnor for direct contempt, and due process does not require that the court grant the contemnor a hearing. In re Purola (1991), 73 Ohio App.3d 306, 312,596 N.E.2d 1140. The determination of the character of conduct that constitutes direct contempt of court is within a trial court's sound discretion; thus, absent an abuse of discretion, an appellate court will not disturb a trial court's contempt determination. Vanguard Transp. Sys., Inc. v. EdwardsTransfer Storage Co., Gen. Commodities Div. (1996),109 Ohio App.3d 786, 790, 673 N.E.2d 182. Because the purpose of contempt proceedings is to uphold the dignity and authority of the courts, great deference is given to the judgment of the trial judge. Denovchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 15, 520 N.E.2d 1362.

{¶ 53} While a finding of contempt is within the discretion of the court, to sustain a conviction of criminal contempt the elements of the offense must be proven beyond a reasonable doubt. Brown v. Executive 200, Inc. (1980),64 Ohio St.2d 250, 18 O.O.3d 446, 416 N.E.2d 610. The elements include an intent to defy the court and conduct that poses an imminent threat to the administration of justice. CatholicSocial Serv. of Cuyahoga Cty. v. Howard (1995),106 Ohio App.3d 615, 666 N.E.2d 658. To justify a finding of summary contempt and imposition of summary sanction, the contumacious act must pose a threat that requires immediate sanction to preserve the dignity and very functioning of the court.Cincinnati v. Cincinnati Dist. Council 51 (1973),35 Ohio St.2d 197, 64 O.O.2d 129, 299 N.E.2d 686 (Brown, J., dissenting).

{¶ 54} After reviewing the transcript of the proceedings in question, and after considering the other surrounding circumstances, I must depart from the majority's analysis and conclude that the actions in the case at bar do not rise to the level necessary for a criminal-contempt finding. There was no serious threat to orderly proceedings when the trial court found Wiles in contempt. It is true that Wiles refused to explain to the court why he believed his representation of Linda and Ronald was not a conflict of interest; however, Wiles's obstinacy did not pose an imminent threat to the administration of justice. Because the purpose of the hearing was not related to the conflict of interest, and the hearing on the scheduled matters had already concluded, the progress of the hearing was not in jeopardy. See State v. Conliff (1978),61 Ohio App.2d 185, 189, 15 O.O.3d 309, 401 N.E.2d 469 (insulting remarks during a trial may well give rise to a summary conviction of direct contempt, but remarks occurring at the end of the proceedings are less likely to immediately imperil the further progress of the proceedings). There was little threat to the overall administration of justice.

{¶ 55} Further, Wiles's comments, while disrespectful, did not pose such a threat that immediate sanction was required to preserve the dignity and functioning of the court. A court must be careful to guard against confusing actions or words that are contemptuous to the judge's personal feelings or sensibilities and actions or words that constitute punishable, criminal contempt of a summary nature because of posing an actual or imminent threat to the administration of justice. Id. at 189, 15 O.O.3d 309, 401 N.E.2d 469. The context, as can be best gleaned from the transcript here, does not suggest that Wiles made the statements in a loud or boisterous manner. Wiles's responses were also not outbursts that disrupted the proceedings but, rather, occurred in the course of conversation. To be sure, I do not condone Wiles's actions, and I can sympathize with the trial court's frustration when viewing Wiles's comments in conjunction with what the trial court viewed as Wiles's history of "snotty" remarks, stonewalling, and delay tactics. Indeed, as noted by the majority, the circumstances surrounding the offensive statements before a court are relevant in determining whether conduct was of such a nature as to amount to criminal contempt. Id. at 190, 15 O.O.3d 309, 401 N.E.2d 469. However, even when considering the surrounding circumstances, I cannot conclude that Wiles's remarks at the hearing impeded, embarrassed, or obstructed the court in the performance of its present functions. See In re Green (1961),172 Ohio St. 269, 15 O.O.2d 449, 175 N.E.2d 59, paragraph one of the syllabus (insolent and personally insulting remarks to the judge were not of a nature that tended to impede, embarrass, or obstruct the court in the performance of its functions).

{¶ 56} In addition, this court has before suggested that despite no requirement that a trial judge issue a warning that a contempt finding is imminent, such notice may be effective to cause an obstreperous attorney to either temper his remarks or acquiesce to the court's directive. See Camburnv. Camburn, Franklin App. No. 05AP-152, 2005-Ohio-6502,2005 WL 3317349, at ¶ 19. As we made clear in Camburn, I do not mean to question the trial court's concern for placing a high premium on the importance of maintaining civility and good order in the courtroom. Indeed, I concur that Wiles's comments were discourteous; however, the standard for criminal contempt focuses less on the level of offensiveness of the acts or words and more on the effect of those acts or words on the administration of justice. Finding that Wiles's remarks did not have the deleterious effect on the administration of justice required of a criminal contempt finding, I believe the court's contempt finding was in error. Accordingly, for the foregoing reasons, I would sustain Wiles's first assignment of error and reverse the trial court's judgment in this respect. Given my resolution of Wiles's first assignment of error, Wiles's second assignment of error would be moot. Therefore, I respectfully dissent, in part, from the majority's opinion.