[Cite as Obara v. Obara, 2016-Ohio-5651.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 ELIZABETH M. OBARA                               :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 26668
                                                  :
 v.                                               :   Trial Court Case No. 14-CV-5669
                                                  :
 DAVID J. OBARA                                   :   (Civil Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                         Rendered on the 2nd day of September, 2016.

                                             ...........

MATTHEW D. DiCICCO, Atty. Reg. No. 0072889, Freund, Freeze & Arnold, Fifth Third
Center, One South Main Street, Suite 1800, Dayton, Ohio 45402-2017
      Attorney for Plaintiff-Appellee

CARLO C. McGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419
    Attorney for Defendant-Appellant

                                            .............

HALL, J.

        {¶ 1} David Obara appeals from the trial court’s order finding him in contempt for

failing to obey the court’s preliminary injunction and also appeals from the order finding

that he failed to satisfy the purge condition imposed by the court. Because the trial court
                                                                                           -2-


applied an incorrect standard of proof to find Obara in contempt, we reverse.

                                       I. Background

       {¶ 2} Elizabeth Obara (David’s mother) filed a complaint against her son for money

damages, replevin, and injunctive relief in an attempt to get back her coin collection, which

she says she gave to David simply for safe keeping. She also filed a motion under Civ.R.

65 for equitable relief and an order requiring David to return the collection. The trial court

entered a temporary restraining order and order restoring possession of the coin

collection to Elizabeth. A couple of weeks later, the court held a preliminary-injunction

hearing after which the court entered the following order:

       (1) Defendant David Obara is restrained from interfering with Plaintiff’s

       possession of her Coin Collection;

       (2) Defendant David Obara is restrained from selling, transferring, moving,

       relocating, and/or in any way disposing of the Coin Collection;

       (3) Defendant David Obara is ordered to immediately identify the location

       of the Coin Collection;

       (4) Defendant David Obara is ordered to immediately identify the identity of

       any person/entity to whom he has sold, gifted, transferred, and/or allowed

       to possess any item of gold, silver, or other portion of the Coin Collection,

       including the name, address, and date of the transaction; and

       (5) Defendant David Obara is ordered to immediately restore possession of

       the Coin Collection to the Plaintiff.

Order Granting Relief (Oct. 16, 2014).

       {¶ 3} Two months later, Elizabeth filed a motion asking the trial court to hold Obara
                                                                                             -3-


in contempt for failing to comply with the preliminary injunction, specifically, the last three

orders. The court held a contempt hearing on April 23, 2015, at the end of which it found

that Obara had failed to comply. The court fined Obara $250 and sentenced him to ten

days in jail. The court gave Obara the opportunity to purge the contempt by complying

with the injunction—identify the coin collection’s location and identify any person to whom

he gave any coins. He was given until April 27 to satisfy the purge condition.

       {¶ 4} On April 28 the trial court found that Obara had failed to satisfy the purge

condition. The court said that “[a]lthough Defendant submitted information to the Court,

indicating where the coin collection ‘might’ be located, or who ‘may’ have certain items,

the Court finds that this is not sufficient to purge the finding of contempt, and Defendant

fails to be in compliance with the Court’s Order.” Entry and Order Finding Defendant,

David J. Obara, in Contempt (Apr. 28, 2015). So the contempt penalty—the fine and jail

sentence—remained.

       {¶ 5} Obara immediately appealed the conviction and asked this Court to stay the

jail sentence pending the outcome of the appeal. We declined to stay the sentence.

                                         II. Analysis

       {¶ 6} Obara assigns seven errors to the trial court, which we address in an order

of our own. Elizabeth did not file a brief.

                        A. The validity of the preliminary injunction

       {¶ 7} . The first assignment of error alleges that the trial court erred by ordering

mandatory injunctive relief because such relief is not authorized by Civ.R. 65. That rule

authorizes a court to grant injunctive relief, including preliminary injunctive relief. Division

(D) of the rule provides that a preliminary injunction must describe “the act or acts sought
                                                                                           -4-


to be restrained.” The preliminary injunction here granted prohibitory relief—restraining

Obara from doing certain things—but also mandatory relief—requiring Obara to take

affirmative action

       {¶ 8} “[T]he purpose of a preliminary injunction is to preserve the status quo

between the parties pending a trial on the merits.” Connor Group v. Raney, 2d Dist.

Montgomery No. 26653, 2016-Ohio-2959, ¶ 17. An injunction seeks “to prevent or prohibit

conduct or behavior of the defendant and to protect and restore rights or benefits of the

plaintiff/movant.” 2 Darling, Klein, Terez, Baldwin’s Ohio Practice: Civil Practice, Section

65:1 (Ed.2014). Sometimes “preservation of the court’s ability to exercise meaningful

review may require affirmative relief in order to prevent some future irreparable injury.”

(Emphasis sic.) United Food & Commercial Workers Union, Local 1099 v. Southwest

Ohio Regional Transit Auth., 163 F.3d 341, 348 (6th Cir.1998). Accordingly, “the injunctive

order either compels the defendant to take affirmative action or prohibits the defendant

from doing something.” 2 Darling, Klein, Terez at Section 65:1. Thus the trial court had

the authority to grant mandatory injunctive relief designed to locate and preserve the coin

collection to effectuate further relief.

       {¶ 9} Even if we were to assume that the trial court did not have authority to

positively mandate relief, Obara was still obligated to obey the injunction because the

court was acting within the scope of its authority. State v. Christon, 68 Ohio App.3d 471,

475, 589 N.E.2d 53 (2d Dist.1990) (saying that “[o]rdinarily, even an order constituting

reversible error must be obeyed so long as the order is made within the lawful scope of a

court’s authority”); State v. Kitchen, 128 Ohio App.3d 335, 342, 714 N.E.2d 976 (2d

Dist.1998) (saying that “[g]enerally, * * * when a court acts within its authority, even those
                                                                                        -5-


orders constituting reversible error must be followed”).

       {¶ 10} The first assignment of error is overruled.

                       B. Alternative remedies under R.C. 2705.10

       {¶ 11} R.C. 2705.10 states that Chapter 2705, governing contempt of court,

“furnishes a remedy in cases not provided for by another section of the Revised Code.”

The third assignment of error alleges that the trial court erred by failing to consider the

alternative remedies of replevin, under Chapter 2737; pre-judgment attachment, under

Chapter 2715; injunctive relief, under Chapter R.C. 2727 and Civ.R. 65; and common-law

conversion, all of which are included in Elizabeth’s action.

       {¶ 12} Civil contempt proceedings provide the remedy for failure to comply with a

court order. “[A]lthough the proceedings are brought to preserve and enforce the rights of

private citizens, the action is one between the court and the contemnor.” (Citation

omitted.) Miller v. Koepke, 6th Dist. Wood No. 91WD076, 1992 WL 154191, *5 (June 30,

1992). “The essential element of a contempt proceeding is that the person facing

contempt charges has obstructed the administration of justice in some manner.” Martin v.

Martin, 179 Ohio App.3d 805, 2008-Ohio-6336, 903 N.E.2d 1243, ¶ 20 (2nd Dist.), citing

State v. Kimbler, 31 Ohio App.3d 147, 151, 509 N.E.2d 99 (10th Dist.1986). “Accordingly,

punishment by contempt is not prompted by injury * * * to the rights of another person * *

*.” Kimbler at 151. Chapter 2705 provides a general remedy for contempt when no statute

provides a remedy for the specific contempt at issue, like the failure to obey a subpoena

issued by a county court, R.C. 1907.38, or the disobedience of an order issued in

proceedings in aid of execution, R.C. 2333.19, or the failure to obey a subpoena served

under Civ.R. 45(F), R.C. 2317.22. Thus the “remedy” referred to in R.C. 2705.10 is not
                                                                                           -6-


the plaintiff’s remedy but the court’s remedy for contempt.

       {¶ 13} The third assignment of error is overruled.

                                C. No bond was necessary

       {¶ 14} Civ.R. 65(C) states that “[n]o temporary restraining order or preliminary

injunction is operative until the party obtaining it gives a bond * * *, in an amount fixed by

the court or judge allowing it, to secure to the party enjoined the damages he may sustain,

if it is finally decided that the order or injunction should not have been granted.” The trial

court here did not require Elizabeth to give a bond. The seventh assignment of error

alleges that this was erroneous.

       {¶ 15} Recently, we adopted the position that “because Civ.R. 65(C) permits the

imposition of a nominal bond, it also implicitly permits a court to order no bond.” Raney,

2016-Ohio-2959, at ¶ 64, citing Vanguard Transp. Sys., Inc. v. Edwards Transfer &

Storage Co., Gen. Commodities Div., 109 Ohio App.3d 786, 793, 673 N.E.2d 182 (10th

Dist.1996). Accordingly, we said that “a court may, under some circumstances and within

its discretion, require no bond when issuing a preliminary injunction.” Id. at ¶ 66.

       {¶ 16} The trial court here addressed this issue at the end of the preliminary

injunction hearing: “In regards to bond in this matter, the Court is required to consider

bond. And I have. And I find that zero bond will be set in this case, that there’s not a need

for a larger monetary bond other than that.” (Preliminary Injunction Tr. 50). “[T]he purpose

of a bond is to assure relief to the enjoined party should that party eventually be

vindicated.” Raney at ¶ 65. Obara did not allege that he would suffer any adverse financial

consequences as a result of the injunction—or give any other reason why a bond should

have been required. We conclude that the trial court did not abuse its discretion when it
                                                                                          -7-


determined that a monetary bond was not necessary.

       {¶ 17} The seventh assignment of error is overruled.

                                 D. The contempt finding

       {¶ 18} The second and fourth assignments of error concern the contempt finding.

The second assignment of error alleges that the trial court erred by finding Obara in

contempt. The fourth assignment of error alleges that the court erred by finding that

Elizabeth satisfied her burden of proof by clear and convincing evidence.1

       {¶ 19} We review a trial court’s finding of contempt for an abuse of discretion.

Hoagland v. Hoagland, 2d Dist. Miami No. 2014-CA-30, 2015-Ohio-2426, ¶ 8. “An abuse

of discretion implies that the trial court’s attitude was unreasonable, arbitrary or

unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

       {¶ 20} The first issue is whether the contempt proceedings here were civil or

criminal in nature. “Criminal contempt sanctions are unconditional, punitive in nature, and

designed to vindicate the authority of the court.” (Citations omitted.) Docks Venture, L.L.C.

v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶

14. “Civil contempt sanctions involve a conditional penalty ‘designed for remedial or

coercive purposes and are often employed to compel obedience to a court order. * * *

[They] are characterized as violations against the party for whose benefit the order was

made.’ ” (Citation omitted.) Id. at ¶ 15, quoting State ex rel. Corn v. Russo, 90 Ohio St.3d


1 The wording of the fourth assignment of error inferentially suggests that the court
applied a clear-and-convincing evidence standard, but that the evidence was insufficient
to find Appellant in contempt. Actually Appellant’s argument in this assignment, as
supported by the record, is that the trial court incorrectly applied a preponderance-of-the–
evidence standard.
                                                                                         -8-


551, 555, 740 N.E.2d 265 (2001). “ ‘A contempt fine * * * is considered civil and remedial

if it either “coerce[s] the defendant into compliance with the court’s order, [or] * * *

compensate[s] the complainant for losses sustained.” * * * Where a fine is not

compensatory, it is civil only if the contemnor is afforded an opportunity to purge.’ ” Id.,

quoting Internatl. Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829, 114

S.Ct. 2552, 129 L.Ed.2d 642 (1994), quoting United States v. United Mine Workers of

Am., 330 U.S. 258, 303-304, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Here, the contempt

proceeding and sanctions were civil. The trial court’s ruling gave Obara the opportunity

to purge if he timely complied. Accordingly, the purpose of the jail term and fine was to

coerce him to comply with the preliminary injunction, meaning that the contempt process

was civil in nature.

       {¶ 21} “Clear and convincing evidence is the standard of proof in civil contempt

proceedings.” (Citation omitted.) Hoagland at ¶ 6. Obara contends that the trial court

incorrectly applied the preponderance-of-the-evidence standard. We agree. At the end of

the contempt hearing, the court said, “The Court, in considering all of the exhibits and the

testimony here, does find that the Plaintiff has proven by a preponderance of the evidence

that Mr. Obara did violate the Court’s preliminary injunction order issued in October 16,

2014.” (Contempt Tr. 84-85).

       {¶ 22} “[A]n abuse of discretion may be found when the trial court ‘applies the

wrong legal standard.’ ” Ockunzzi v. Smith, 8th Dist. Cuyahoga No. 102347, 2015-Ohio-

2708, ¶ 9, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892

N.E.2d 454, ¶ 15 (8th Dist.). Because, as the Fourth District has said, “it is both

unreasonable and unconscionable to hold an individual in civil contempt on a lesser
                                                                                          -9-


‘preponderance of the evidence’ standard rather than one which requires a showing of

‘clear and convincing’ evidence.” Stewart v Sydenstricker, 4th Dist. Washington No.

95CA19, 1996 WL 272948, *3 (May 14, 1996) (concluding that the application of the

lesser standard was an abuse of discretion).

         {¶ 23} Whether the evidence is sufficient to find Obara guilty of civil contempt

under a clear-and-convincing standard of proof is an issue for the trial court to consider

on remand and is not properly before us at this time.

         {¶ 24} The second and fourth assignments of error are sustained.

                         E. The affirmative defense of impossibility

         {¶ 25} The fifth assignment of error alleges that the court erred by failing to find

that Obara had established the affirmative defense of impossibility. Whether an

affirmative defense is established is an independent issue, so we consider this alleged

error.

         {¶ 26} Obara claims that it was impossible for him to comply with the injunction.

“ ‘Impossibility to comply with a court order is a valid defense to an accusation of

contempt[,] * * * [but] it is no defense if the accused brings the inability upon himself.’ ”

Goddard-Ebersole v. Ebersole, 2d Dist. Montgomery No. 23493, 2009-Ohio-6581, ¶ 15,

quoting Neff v. Neff, 2d Dist. Montgomery No. 11058, 1989 WL 13531 (Feb. 13, 1989).

“ ‘[A] person who seeks to satisfy the court that his or her failure to obey an order or

judgment was entirely due to the person’s inability to render obedience carries the burden

of establishing that fact.’ ” Wagshul v. Wagshul, 2d Dist. Montgomery No. 23564, 2010-

Ohio-3120, ¶ 35, quoting 17 Ohio Jurisprudence 3d, Contempt, Section 62.

         {¶ 27} Obara testified that it was not possible for him to determine the identity of
                                                                                          -10-


any person he sold coins to. He also testified that he could not create an inventory of all

the coins he owns, because he was prohibited from accessing places where coins may

be.

       {¶ 28} In its contempt finding, the trial court focused on the injunction’s orders to

identify the location of Elizabeth’s coin collection and to identify the people to whom Obara

had not only sold coins but also given coins and people he has allowed to possess coins.

As to location, Obara testified that there are three places where coins could be: a house

in Richmond, Indiana, an apartment in Vandalia, and a house in Vandalia. Obara said

that most of his personal property is at the Vandalia house. The two Vandalia properties

are owned by Elizabeth, and according to Obara, she has banned him from setting foot

on either property. He testified that when he went to the apartment in mid-2014, the police

were there and told him that he was trespassing. He said that he never went back. Obara

admitted that he never tried to get permission to access either Vandalia location to look

for coins, despite the fact that Elizabeth’s attorney had sent him a letter telling him that

he needed to collect his property from the two locations. As to the coins, Obara testified

that he had given coins to his wife.

       {¶ 29} It appears from the evidence that Obara may bear at least part of the blame

for not complying with the preliminary injunction. The evidence shows that he did not even

try to get access to the locations where Elizabeth’s coins might have been. The trial court

reasonably found that Obara failed to prove that it was impossible for him to comply with

the injunction.

       {¶ 30} The fifth assignment of error is overruled.

                         F. The purge conditions are reasonable
                                                                                         -11-


       {¶ 31} “ ‘[A] sanction for civil contempt must allow the contemnor the opportunity

to purge himself or herself of contempt. The trial court abuses its discretion in ordering

purge conditions that are unreasonable or where compliance is impossible.’ ” (Citations

omitted.) Baird v. Byrd, 2d Dist. Montgomery No. 19808, 2003-Ohio-6252, ¶ 25, quoting

Burchett v. Miller, 123 Ohio App.3d 550, 552, 704 N.E.2d 636 (6th Dist.1997). The sixth

assignment of error alleges that the trial court’s purge condition was unreasonable and

impossible to comply with.

       {¶ 32} “ ‘The determination of whether a particular purge condition is unreasonable

or impossible varies on a case-by-case basis and the contemnor must present sufficient

evidence at the contempt hearing that the trial court’s purge conditions are unreasonable

or impossible for the contemnor to meet.’ ” (Citations omitted.) Bostick v. Bostick, 2d Dist.

Champaign No. 2015-CA-13, 2016-Ohio-3354, ¶ 18, quoting Mackowiak v. Mackowiak,

12th Dist. Fayette No. CA2010-04-009, 2011-Ohio-3013, ¶ 51. Here, the purge condition

was simply that, within four days, Obara comply with the mandatory orders in the

injunction. We have already concluded that the trial court reasonably found that

compliance was not impossible. We see nothing unreasonable about the purge condition.

       {¶ 33} The sixth assignment of error is overruled.

                                    G. The right to bail

       {¶ 34} As a final matter, though Obara does not assign it as error, he claims that

he was not given the right to bail under R.C. 2705.04. This right applies when a court has

the accused arrested or is holding him in custody pending contempt proceedings. See

R.C. 2705.03. “Under R.C. 2705.04, when contempt proceedings are brought against an

alleged contemnor, the court may set a bond ‘for the appearance of the accused to
                                                                                         -12-

answer the charge.’ ” (Emphasis sic.) Miller v. Koepke, 1992 WL 154191, at *5. Once the

bond is executed the accused must be released. Obara does not claim that he was ever

held in custody by the trial court before or during the contempt proceedings, nor do we

see any evidence of this in the record. Therefore the statutory right to bail never applied.

                                     III. Conclusion

       {¶ 35} We have overruled all of the assignments of error except the second and

fourth, both of which we have sustained. Therefore the trial court’s April 27, 2015 order

finding Obara in contempt and its April 28, 2015 order finding that he failed to satisfy the

purge conditions are reversed. On remand, the court should determine whether or not

Elizabeth proved by clear and convincing evidence that Obara failed to comply with the

preliminary injunction.

                                     .............

DONOVAN, P.J., and FAIN, J., concur.




Copies mailed to:

Matthew D. DiCicco
Carlo C. McGinnis
Dennis Gump
Hon. Dennis J. Adkins
