Moraine v. Steger Motors, Inc. , 111 Ohio App. 3d 265 ( 1996 )

I concur in the judgment only.

Had the appellant properly preserved its first assignment for appeal we would have been presented with a serious and arguable question of law, to wit: Does a person not a "party in whose favor [a] judgment was rendered" (Hayes v. Hayes [1919], 11 Ohio App. 10,14-15) have standing in a civil contempt proceeding to enforce that judgment when the would-be enforcer has some actual benefit to gain from the enforcement of the judgment? I regard that as an open question on the facts of this case, and I do not want our affirmance here to be construed as a "yes" answer to that question.

The third assignment of error raises an even more troubling question, to wit: May a fine imposed as punishment for contempt of a court order be directed to be paid to a private person who was not even a party to the proceeding in which the order was rendered, rather than to the court which issued the order or to the public body on whose behalf the order was issued? My initial answer would be "absolutely not!" However, neither the parties not the court has discovered any authority on this issue (possibly because no one even had the temerity to suggest it before).

In any event, this issue deserves careful and reasoned study and to that extent I disagree with the opinion of the majority that sanctions the diversion of the fine proceeds (not damages for harm suffered) into the pockets of Gilboy.

A contempt action, after all, is quasi-criminal in nature.Peters v. Goodyear Tire Rubber Co. (C.P. 1947), 50 Ohio Law Abs. 65, 76 N.E.2d 412. We raise an ugly specter when we permit the use of criminal-style proceedings by private parties for their own personal gain. The coercive purpose of the fine is equally well served if the money is paid to the court or the public body (the city of Moraine, here) which obtained the order Steger has violated. To direct the fine proceeds to Gilboy is simply granting her an $18,250 annual annuity ($50 × three hundred sixty-five days) unrelated to any damages she may be actually suffering. I find this precedentextremely troubling.

Still, because this issue was not raised to the trial court, we cannot consider it on appeal. For that reason, and for that reason alone, I join in the judgment of the court.