[Cite as State ex rel. DeWine v. Walker, 2019-Ohio-218.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO, EX REL.                             :       JUDGES:
MICHAEL DEWINE                                     :       Hon. W. Scott Gwin, P.J.
                                                   :       Hon. Patricia A. Delaney, J.
        Plaintiff-Appellee                         :       Hon. Earle E. Wise, Jr., J.
                                                   :
-vs-                                               :
                                                   :
N. KATHRYN WALKER                                  :       Case No. 2018CA00033
                                                   :
        Defendant-Appellant                        :       OPINION



CHARACTER OF PROCEEDING:                                   Appeal from the Court of Common
                                                           Pleas, Case No. 2008CV05100




JUDGMENT:                                                  Affirmed




DATE OF JUDGMENT:                                          January 22, 2019




APPEARANCES:

For Plaintiff-Appellee                                     For Defendant-Appellant

NICOLE CANDELORA-NORMAN                                    CRAIG T. CONLEY
30 East Broad Street                                       604 Huntington Plaza
25th Floor                                                 220 Market Avenue South
Columbus, OH 43215                                         Canton, OH 44702
Stark County, Case No. 2018CA00033                                                     2

Wise, Earle, J.

      {¶ 1} Defendant-Appellant, N. Kathryn Walker, appeals the February 21, 2018

contempt finding of the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee

is State of Ohio ex rel. Michael DeWine.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} Appellant owns and operates a commercial mobile home park, Hillview

Mobile Home Park. Appellant also owned and maintained a private water and sewer

system to provide water and sewer services to its residents. On December 1, 2008,

appellee, on behalf of the Ohio Environmental Protection Agency, filed a complaint

against appellant for violating Ohio's environmental laws under R.C. Chapter 6109 and

6111.1 The complaint alleged the private system "created risks to both human health and

environment," and sought an injunction ordering appellant to connect to the village of

Brewster's water and sewer system.

      {¶ 3} In July 2009, appellant agreed to a water service agreement with the village,

wherein she would pay for the infrastructure to connect to its water system. The parties

could not agree on the sewer system, as appellant offered to pay only one-half of the

costs associated with the infrastructure necessary to connect Hillview to the sewer

system.

      {¶ 4} In order to resolve the matter involving the sewer connection, the parties

entered into a consent order on August 13, 2010. Appellant agreed to connect Hillview

to the village's sewer system, and agreed to pay any necessary infrastructure costs and




1Appellant's husband, William Walker, Sr., was also named in the complaint. He passed
away on October 19, 2012, during the pendency of this case.
Stark County, Case No. 2018CA00033                                                        3


any stipulated penalties for the failure to meet specific deadlines. Appellant also agreed

to submit to the Ohio EPA "a fully signed legally binding Agreement and Declaration of

Covenants for Extension of Village Sewer Services, entered into between the Village and

Defendant," by no later than September 1, 2010.

       {¶ 5} Appellant failed to abide by the mandates of the consent order by failing to

submit to the Ohio EPA a signed agreement by September 1, 2010, and failing to pay

stipulated penalties. As a result, appellee filed a motion for contempt against appellant

on July 26, 2013.

       {¶ 6} On May 19, 2014, appellant filed a separate action against the village to

determine who should be responsible for the costs of connecting to the sewer system in

light of an annexation agreement between the village and the Board of Trustees for

Sugarcreek Township. On July 20, 2015, the trial court in that case ruled in favor of the

village and against appellant, finding the annexation agreement did not require the village

to pay the costs of extending the sewer trunk line to Hillview, but allowed appellant to tie

into the village sewer system at her own expense. This court affirmed the decision.

Walker v. Brewster, 5th Dist. Stark No. 2015CA00142, 2016-Ohio-1463.

       {¶ 7} A hearing on the contempt motion was held on March 17, 2017.                By

judgment entry filed February 21, 2018, the trial court found appellant to be in contempt

of the consent order from September 2, 2010, to July 23, 2013. The trial court assessed

civil penalties against appellant in the amount of $211,000.

       {¶ 8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:
Stark County, Case No. 2018CA00033                                                   4


                                              I

      {¶ 9} "THE TRIAL COURT ERRED IN GRANTING, IN PART, THE STATE'S

MOTION TO SHOW CAUSE/MOTION FOR CONTEMPT."

                                              I

      {¶ 10} In her sole assignment of error, appellant claims the trial court erred in

finding her to be in contempt. We disagree.

      {¶ 11} As explained by our colleagues from the Fourth District in McDonald v.

McDonald, 4th Dist. Highland No. 12CA1, 2013-Ohio-470, ¶ 17-18:



             Civil contempt exists when a party fails to do something ordered by

      a court for the benefit of an opposing party. Pedone v. Pedone, 11 Ohio

      App.3d 164, 165, 463 N.E.2d 656 (1983); Beach v. Beach, 99 Ohio App.

      428, 431, 134 N.E.2d 162 (1955). The punishment is remedial, or coercive,

      in civil contempt. State ex rel. Henneke v. Davis, 66 Ohio St.3d 119, 120,

      609 N.E .2d 544 (1993). In other words, civil contempt is intended to

      enforce compliance with a court's orders.

             The party seeking to enforce a court order must establish, by clear

      and convincing evidence, the existence of a court order and the nonmoving

      party's noncompliance with the terms of that order. Wolf v. Wolf, 1st Dist.

      Hamilton No. C-090587, 2010-Ohio-2762, 2010 WL 2473277, ¶ 4; Morford

      v. Morford, 85 Ohio App.3d 50, 55, 619 N.E.2d 71 (4th Dist.1993).
Stark County, Case No. 2018CA00033                                                             5


       {¶ 12} "Once the prima facie case has been established by clear and convincing

evidence, the burden shifts to the non-moving party to either rebut the initial showing of

contempt or establish an affirmative defense by a preponderance of the evidence." Allen

v. Allen, 10th Dist. Franklin No. 02AP-768, 2003-Ohio-954, ¶ 16.

       {¶ 13} "Clear and convincing evidence" is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established."

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

       {¶ 14} We will review a trial court's decision on contempt under an abuse of

discretion standard. Wadian v. Wadian, 5th Dist. Stark No. 2007CA00125, 2008-Ohio-

5009, ¶ 12, citing In re Mittas, 5th Dist. Stark No. 1994 CA 00053, 1994 WL 477799 (Aug.

6, 1994). In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶ 15} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d

180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159.

       {¶ 16} In signing the August 13, 2010 consent order, appellant agreed to the

following:
Stark County, Case No. 2018CA00033                                                         6


              7. Defendants are hereby enjoined and ordered to implement the

       requirements related to wastewater imposed upon them in R.C. Chapter

       6111, the rules adopted under that statute, and Exhibit A and any renewal

       or modifications thereof, in accordance with the following schedule:

              d. Defendants are hereby enjoined and ordered to submit to the Ohio

       EPA, by no later than September 1, 2010, a fully signed legally binding

       Agreement and Declaration of Covenants for Extension of Village Sewer

       Services, entered into between the Village and Defendants, that states that

       the Village authorizes Defendants to connect the Hillview WWTW into the

       Village's Publicly Owned Treatment Works and that binds Defendants to

       pay the Village for the cost of connecting the Hillview WWTW into the

       Village's Publicly Owned Treatment Works.

              e. Defendants are hereby enjoined and ordered to connect their

       WWTW into the Villages' Publically Owned Treatment Works by no later

       than 60 days after the Village notifies them in writing that it is available, and

       to abandon their WWTW by no later than 30 days thereafter.



       {¶ 17} The consent order included stipulated penalties for failure to comply with

the provisions of the order.

       {¶ 18} During the hearing, the trial court recited the stipulation that "there's an

admission that the agreement has not been entered into and that the connection has not

been made to the Village's system." T. at 10. Clearly appellee established the existence

of an order and appellant's noncompliance with the provisions of the order. Appellant
Stark County, Case No. 2018CA00033                                                     7


asserted the affirmative defense of "impossibility of performance vis-a-vis entering into

the agreement with the Village, and as the record before the Court will show, there's a

lengthy paper trail of multiple efforts to reach such an agreement repeatedly met with a

brick wall." T. at 9-10. Appellant argued she has attempted to enter into an agreement

with the village in accordance with the terms of the consent order, but the village has

required indemnification clauses that she argues are commercially unreasonable.

       {¶ 19} In its February 21, 2018 judgment entry finding appellant in contempt, the

trial court found the following:



              Upon review, the Court finds that the defendants have failed to

       comply with the terms of the Consent Entry from September 2, 2010 to the

       date of the filing of the motion for contempt on July 23, 2013. The Court

       finds that, from the date of the filing of the motion for contempt until the

       hearing on March 17, 2017, the matter was stayed as a result of associated

       litigation and appeals regarding the defendants' obligations, financial and

       otherwise, regarding the sewerline (sic) at issue. Additionally, during such

       time, the Court finds that the defendants were engaged in attempts to reach

       an agreement with the Village of Brewster to comply with the terms of the

       Consent Entry; however, those attempts were hampered, in part, as a result

       of the Village's unwillingness to negotiate out of the contract the

       indemnification clauses previously discussed. Based upon the uncontested

       expert testimony regarding such clauses, the Court finds them to be

       commercially unreasonable and, therefore, from July 23, 2013, until March
Stark County, Case No. 2018CA00033                                                         8


       17, 2017, the defendant's compliance with the Consent Entry was

       impossible as it would have required them to have entered into a

       commercially unreasonable agreement. Accordingly, the Court finds that

       the defendants are in contempt of the Consent Agreement from September

       2, 2010, until July 23, 2013.



       {¶ 20} Appellant takes issue with the trial court "carving out" a contempt finding.

Appellant argues if the subject agreement was "commercially unreasonable on or after

July 23, 2013, it was commercially unreasonable from the outset; i.e., from the time it was

initially proffered in 2009 to date." Appellant's Brief at 4.

       {¶ 21} In a letter dated July 23, 2009, appellant submitted a proposal to the village

administrator, Steven Hartman, proposing "to assist in the financing of up to half of the

total cost of the aforesaid tie-in project between the Hillview Mobile Home Park and the

Village of Brewster's wastewater system."           Hartman depo. at 6; Hartman depo.

Defendant's Ex. A. In August 2009, the village submitted an agreement and declaration

of covenants, requiring appellant to pay the full cost. Id. at 15, 28, 44; Defendant's Ex. E.

This proposal did not bear any signatures. The proposal contained indemnification

clauses that appellant now refers back to to support her argument that the proposal was

commercially impossible back in 2009. Id. at 21, 42. The 2009 proposals are irrelevant

as they were submitted prior to the consent order, the consent order being entered into

because the parties could not agree. In the consent order signed on August 13, 2010,

appellant agreed to pay the entire cost of hooking up to the village sewer system, and

agreed to submit to the Ohio EPA "a fully signed legally binding Agreement" between she
Stark County, Case No. 2018CA00033                                                     9


and the village by September 1, 2010. There is no evidence to show that appellant made

any effort to submit a signed agreement to the Ohio EPA between August 13, 2010

(consent order) and September 1, 2010 (deadline) and July 23, 2013 (contempt filing).

Appellant did not attempt to negotiate an agreement with the village until after the

contempt motion was filed.

      {¶ 22} Upon review, we find the trial court did not abuse its discretion in finding

appellant to be in contempt.

      {¶ 23} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.




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