[Cite as Cleveland v. Paramount Land Holdings, L.L.C., 2011-Ohio-4270.]




                         [Vacated opinion. Please see 2011-Ohio-5382.]

                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                             Nos. 96180, 96181, 96182, and 96183



                               CITY OF CLEVELAND
                                                 PLAINTIFF-APPELLEE

                                                    vs.

                PARAMOUNT LAND HOLDINGS, LLC
                                                 DEFENDANT-APPELLANT




                               JUDGMENT:
                           AFFIRMED IN PART,
                     REVERSED IN PART AND REMANDED


                              Criminal Appeal from the
                          City of Cleveland Municipal Court
       Case Nos. 08 CRB 41885, 08 CRB 37072, 09 CRB 04261, and 09 CRB 03590

             BEFORE:          Blackmon, P.J., Keough, J., and E. Gallagher, J.

             RELEASED AND JOURNALIZED:                         August 25, 2011
                                         2


                                           -i-

ATTORNEYS FOR APPELLANT

Richard G. Lillie
Gretchen A. Holderman
Lillie & Holderman
75 Public Square, Suite 1313
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert J. Triozzi
Director of Law

By: Karyn J.Lynn
Assistant Director of Law
City of Cleveland Law Department
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} In this consolidated appeal, appellant Paramount Land Holdings, LLC

(“Paramount”) appeals the trial court’s denial of their motion to vacate and assign the

following errors for our review:

      “I. The housing court denied appellant its due process rights by
      denying appellant an opportunity to respond to the housing court’s
      contempt citation in a formal hearing.”

      “II. The housing court imposed contempt sanctions in excess of the
      statutorily defined limits.”
                                           3


       “III. The total fine constitutes an excessive fine in violation of the
       defendant’s rights as guaranteed by the Eighth Amendment to the
       United States Constitution and Section 9 Article 1 of the Ohio
       Constitution.”

       {¶ 2} Having reviewed the record and pertinent law, we affirm in part, and

reverse in part the trial court’s decision, and we remand for further proceedings consistent

with this opinion. The apposite facts follow.

       {¶ 3} Between September 15, 2008 and February 20, 2009, the City of

Cleveland’s Department of Health (“the City”) issued separate minor misdemeanor

citations, in Case Numbers 08–CRB–37072, 08–CRB–41885, 09–CRB–03590, and

09–CRB–04261 for health code violations related to four of Paramount’s properties.

The City served Paramount with the summons and complaints, but Paramount failed to

appear at the arraignments.

       {¶ 4} The trial court continued the cases to its corporate docket, but Paramount

again failed to appear. As a result of Paramount’s continued failure to appear, despite

being duly served between May 19, 2009 and August 10, 2009, the trial court scheduled

show cause hearings in the respective cases. Because Paramount failed to appear at any

of the show cause hearings, the trial court found them in contempt, and issued a per diem

fine of $1,000.
                                           4
      {¶ 5} Thereafter, the trial court scheduled several status hearings, which

Paramount did not attend. The trial court subsequently converted the daily accumulated

fines into a judgment against Paramount of $28,000 per property, for a total of $112,000.

      {¶ 6} On November 7, 2009, Paramount, through counsel, appeared in court, and

pleaded not guilty in all four cases. On March 18, 2010, after several pretrials had been

conducted, Paramount retracted its former not guilty pleas and pleaded “no contest” to the

charges. In a June 18, 2010 journal entry, the trial court found Paramount guilty of all

charges. In a written sentencing decision that same day, the trial court imposed a

$400,000 fine for the charges contained in Case No. 08–CRB–37072, and a $653,000 fine

for the charges contained in Case No. 09–CRB–03590.

      {¶ 7} On July 16, 2010, Paramount appealed the trial court’s decision.         In a

decision dated July 7, 2011, we reversed the trial court’s decision because it failed to

comply with Crim.R. 11. Cleveland v. Paramount Land Holdings, L.L.C., Cuyahoga

App. No. 95448, 2011-Ohio-3383. On September 16, 2010, Paramount filed a motion to

vacate the $112,000 in fines relating to the trial court’s finding of contempt.        On

November 19, 2010, the trial court denied Paramount’s motion to vacate. Paramount

now appeals.

                                      Due Process Denial
                                            5
       {¶ 8} In the first assigned error, Paramount argues it was denied due process of

law when the trial court imposed multiple unconditional fines without affording them a

hearing. We disagree.

       {¶ 9} An appellate court’s standard of review of a trial court’s contempt finding is

abuse of discretion.        Cattaneo v. Needham, 5th Dist. No. 2009CA00142,

2010-Ohio-4841, citing State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 573

N.E.2d 62. An “abuse of discretion” connotes that the court’s attitude is unreasonable,

arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,

450 N.E.2d 1140; Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028.

       {¶ 10} In the instant case, both parties agree that the trial court found Paramount in

indirect contempt. Indirect contempt is “misbehavior that occurs outside the actual or

constructive presence of the court.” Pirtle v. Pirtle, 2d Dist No. 18613, 2001-Ohio-1539.

However, they disagree on whether the contempt was civil or criminal. Paramount

argues the contempt was criminal and thus, it was entitled to a hearing. The City agrees

that under the law, criminal contempt would require a hearing, but it maintains that the

contempt was civil.

       {¶ 11} Courts classify contempt as criminal or civil, depending upon the purpose

of the sanction imposed. Camp-Out, Inc. v. Adkins, 6th Dist. No. WD-06-057,

2007-Ohio-3946; see, also, R.C. 2705.01(A).         Sanctions for criminal contempt are

punitive, rather than coercive, in nature, and are aimed at vindicating the authority of the
                                           6
court. Id. Criminal contempt sanctions are imposed as “punishment for the completed

act of disobedience” and usually consist of fines and/or an unconditional period of

incarceration. McCall v. Cunard, 6th Dist. No. S-07-013, 2008-Ohio-378, citing In re

Purola (1991), 73 Ohio App.3d 306, 596 N.E.2d 1140.

       {¶ 12} A sanction imposed for civil contempt, on the other hand, is remedial or

coercive in nature and is imposed for the benefit of the complainant. Id., citing Carroll

v. Detty (1996), 113 Ohio App.3d 708, 711, 681 N.E.2d 1383. Any sanction imposed for

civil contempt must afford the contemnor the right to purge himself of the contempt.

DeLawder v. Dodson, 4th Dist. No. 02CA27, 2003-Ohio-2092, ¶10.

       {¶ 13} Here, the record establishes that the trial court found Paramount in indirect

civil contempt. The contempt was civil because the trial court’s sanctions were designed

to coerce Paramount to appear. At the outset, Paramount was duly served with the

summons and the complaints for all four cases, but Paramount failed to appear for the

arraignments.    After Paramount failed to appear at the arraignment, the trial court placed

the cases on its corporate docket and sent out notices, which Paramount received.

Paramount still failed to appear.

       {¶ 14} Next, the trial court scheduled a show cause hearing for Paramount to

appear and present evidence why they should not be held in contempt for their repeated

failure to appear. However, Paramount failed to appear at the show cause hearing,

despite being duly notified.
                                            7
       {¶ 15} It was at this juncture that the trial court found Paramount in contempt and

began assessing the daily fine to coerce Paramount’s appearance. Paramount finally

appeared after the trial court began assessing the daily fines. Once Paramount appeared,

the trial court immediately stopped the daily fines.

       {¶ 16} On this record, despite Paramount’s argument that its constitutional rights

were violated, we conclude that they were given notice and an opportunity to be heard.

As a result of Paramount’s repeated failure to appear, the trial court had no alternative but

to find them in civil contempt and begin assessing a daily contempt fine of $1,000 per

property in an effort to compel their attendance.

       {¶ 17} We also conclude that Paramount was afforded the opportunity to purge

their contempt by simply appearing in court. The trial court’s journal entry following

Paramount’s failure to appear at the show cause hearing, stated in pertinent part as follow:

       “* * * The Court therefore finds that financial sanctions shall be
       imposed, in the form of $1,000 per diem, beginning on the day
       following the date ordered to appear, until such time as the defendant
       makes an appearance and enters a plea.” Journal Entry, June 16, 2009.

       {¶ 18} As previously noted, when Paramount appeared in court, the trial court

discontinued the daily fine. The immediate abandonment of the daily fines is conclusive

evidence that its purpose was to coerce Paramount’s attendance and not to punish them

for a completed act. As such, we find no abuse of discretion in the trial court’s decision.

  Accordingly, we overrule the first assigned error.

                                         Excessive Fines
                                           8
      {¶ 19} In the second assigned error, Paramount argues $1,000 daily fines per

property was excessive. We agree.

      {¶ 20} R.C. 2705.05 states in pertinent part as follows:

      “(A) In all contempt proceedings, * * *. 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;

      “(2) For a second offense, a fine of not more than five hundred dollars,
      a definite term of imprisonment of not more than sixty days in jail, or
      both;

      “(3) For a third or subsequent offense, a fine of not more than one
      thousand dollars, a definite term of imprisonment of not more than
      ninety days in jail, or both.

      {¶ 21} The record reveals that the instant matter involved Paramount’s first offense

for contempt. As such, pursuant to R.C. 2705.05(A), the maximum fine should have

been $250 per day. Thus, the trial court erred in imposing a fine of $1,000 per day.

Accordingly, we sustain the second assigned error.

                                Eighth Amendment Violation

      {¶ 22} In the third assigned error, Paramount argues the amount of the per diem

sanctions violated the Eighth Amendment to the United States Constitution.            We

disagree.

      {¶ 23} The excessive fines clause of the Eighth Amendment does not apply to civil

contempt sanctions. Ohio Elections Comm. v. Ohio Chamber of Commerce & Citizens for
                                            9
a Strong Ohio, 158 Ohio App.3d 557, 817 N.E.2d 447, citing In re Grand Jury

Proceedings (C.A.7, 2002), 280 F.3d 1103, 1110 (“a fine assessed for civil contempt does

not implicate the Excessive Fines Clause”).         See, also,   United States v. Mongelli

(C.A.2, 1993), 2 F.3d 29, 30; Spallone v. United States (1988), 487 U.S. 1251, 1257, 109

S.Ct. 14, 101 L.Ed.2d 964.

       {¶ 24} Here, given the civil nature of the contempt proceeding, the Excessive Fines

Clause of the Eighth Amendment does not apply. Accordingly, we overrule the third

assigned error.

       Judgment affirmed in part and reversed in part, and remanded to the trial court for

further proceedings consistent with this opinion.

       It is ordered that appellee and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

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

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
