[Cite as In re GMS Mgt. Co., Inc. v. Unpaid Court Costs, Fees & Delinquencies, 187 Ohio App.3d 426, 2010-
Ohio-2203.]




                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


IN RE GMS MANAGEMENT                              )
COMPANY, INC.                                     )
                                                  )
        APPELLANT,                                )       CASE NO.         09 MA 169
                                                  )
        V.-                                       )       OPINION
                                                  )
UNPAID COURT COSTS, FEES                          )
AND DELINQUENCIES,                                )
                                                  )
        APPELLEE.                                 )


CHARACTER OF PROCEEDINGS:                             Civil Appeal from County Court No. 4,
                                                      Case No. 09 OPEN.


JUDGMENT:                                             Reversed and Remanded.


APPEARANCES:

Michael Stavnicky and T. Christopher O’Connell, for appellant.

Paul J. Gains, Mahoning County Prosecuting Attorney, and Llinette Straford, Assistant
Prosecuting Attorney, for appellee


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                      Dated: May 14, 2010
       VUKOVICH, Presiding Judge.

       ¶{1}    Plaintiff-appellant, GMS Management Company, Inc., appeals a decision

of Judge David D’Apolito of Mahoning County Court No. 4, which found that GMS owes

over $3,000 for court costs and ordered the clerk of that court to refuse to accept any

new pleadings even if court costs are advanced until all prior delinquent costs and fees

have been paid in full. We agree with appellant’s argument that this decision was

unconstitutionally entered without notice or an opportunity to be heard and is an

unconstitutional denial of access to the courts. For the following reasons, the judgment

of the trial court is reversed, and the case is remanded based upon constitutional

violations.

                              STATEMENT OF THE CASE

       ¶{2}    On September 2, 2009, the court sua sponte entered a judgment entry

against GMS in a case the court created under the case number “09 OPEN” and

entitled In re GMS Mgt. Co., Inc. v. Unpaid Court Costs, Fees & Delinquencies. This

entry reads:

       ¶{3}    “The court, sua sponte, finds that GMS Management Co., Inc. is

delinquent in its payments of court costs and fees owed to the court. The court finds

that the balance remains outstanding in an amount in excess of three thousand dollars

($3,000). The court further finds that a pattern of conduct has developed whereby GMS

Management has consistently failed to satisfy its financial obligations to this court. This

conduct has necessitated the court to file orders on two prior occasions suspending all

filings by GMS Management until the arrearages were satisfied in full.




                                            2
       ¶{4}    “Therefore, it is ordered that to insure the proper administration of this

court, the clerk of Mahoning County Court #4 is hereby ordered not to accept any new

pleadings, with or without court costs advanced, until all prior delinquent costs and fees

have been paid in full and properly receipted from GMS Management Co., Inc.

       ¶{5}    “It is so ordered.

       ¶{6}    “There is no just cause for delay. This is a final appealable order.” (The

original was in all capital letters.)

       ¶{7}    On September 24, 2009, an agreed judgment entry was filed in this 09

OPEN case. The entry noted that GMS had filed an original action in the Ohio Supreme

Court against the court and the clerk on August 6, 2009, relating to the court’s ability to

assess certain fees and charges and the timely processing of filings and court

proceedings. The entry stated that GMS had been paying its filing fees and writ fees for

evictions, and the court had been attempting to assess GMS for additional costs and

fees. The entry continued to state that GMS alleged that the court and the clerk had

improperly assessed GMS for costs associated with serving and/or enforcing writs of

restitution in conflict with R.C. 311.17 and 1923.09, alleging that these costs are to be

taxed against the debtor/defendant.

       ¶{8}    The entry also disclosed that GMS had agreed to dismiss the original

action without prejudice and that the parties would proceed instead by way of a direct

appeal from the September 2, 2009 entry. In return for the dismissal, the court agreed

to stay the September 2 judgment and permit GMS to file new actions and to provide

GMS with an accounting of all court costs and fees associated with GMS matters for the

years 2005 through 2009. The stay of the September 2 judgment was also conditioned



                                            3
on GMS’s depositing $4,049.30 with the clerk to be held in trust pending the resolution

of the appeal.

       ¶{9}   On September 29, 2009, GMS filed a timely appeal, attaching both

entries. In response to the brief filed by GMS, the prosecutor’s office submitted an

appellee’s brief on behalf of the trial court.

                             Assignment of Error Number One

       ¶{10} Appellant’s first assignment of error provides:

       ¶{11} “The trial court erred violating GMS’ due process rights by issuing a

judgment without notice or a right to be heard.”

       ¶{12} Rather than respond to the merits of this assignment, the trial court’s brief

merely counters that this issue is moot. The trial court urges that because it lifted the

sanction prohibiting new filings, there is no remedy for this court to grant, and any

opinion would be advisory. The trial court continues that the two exceptions to the

mootness doctrine are inapplicable.

       ¶{13} First, the court states that the issue is not capable of repetition but evading

review. The court states that GMS should have appealed the imposition of costs and

fees that it claims were wrongly imposed in the multiple cases giving rise to the court’s

September 2 order. This issue is discussed under assignment of error three, where the

trial court more thoroughly argues it. The court also claims that the issue of delinquent

fees will not arise again because there is a new court rule requiring payment of fees up

front. The court attaches a magistrate’s decision form with a blank, stating that the writ

shall issue “immediately upon receipt of costs and fees.”          However, the blank is

optional, and this form is not a court rule. As for the second exception, the trial court



                                                 4
urges that this is not a constitutional question or a matter of great public importance.

Yet the procedural due process issues raised here present constitutional questions.

      ¶{14} However, we need not confine our analysis to exceptions to the mootness

doctrine. Where the matter is not moot in the first place, the exceptions are irrelevant.

The trial court’s September 24, 2009 judgment entry did not moot the procedural due

process issues that resulted in the court’s September 2, 2009 judgment entry. The

portion of the September 24, 2009 entry lifting the sanction prohibiting new filings was

clearly and merely a stay.     That is, the trial court ordered that it would “stay the

Judgment and permit GMS to file new pleading, motions, and actions” and declared:

      ¶{15} “[T]he Judgment entered by this Court on September 2, 2009, is hereby

stayed upon GMS depositing $4,049.30 with the Mahoning County Clerk of Court, which

deposit shall be held in trust by the Clerk pending the resolution of the Appeal. Payment

of this deposit is not satisfaction of the Judgment and shall not be deemed to satisfy the

Judgment. The Mahoning County Clerk of Court shall accept and process all new

pleading and filings from GMS.

      ¶{16} “Nothing contained herein shall be deemed a waiver or release by GMS of

any of its rights, remedies, causes of action or claims associated with the Dispute, the

Original Action, the Judgment or the Appeal.”

      ¶{17} A trial court’s act of temporarily lifting a sanction pending appeal and

requiring a deposit for this lifting is clearly the staying of a judgment rather than

settlement or mooting of the issue. See App.R. 7(A) (stay ordinarily sought in trial court

in the first instance) and (B) (stay may be conditioned on giving of bond). A stay does

not moot an appeal; rather, the very point of a stay pending appeal is to keep an appeal



                                            5
from becoming moot. See generally Am. Energy Corp. v. Datkuliak, 174 Ohio App.3d

398, 2007-Ohio-7199, ¶ 23-34 (failing to seek a stay mooted the appeal).          Thus,

contrary to the trial court’s initial argument, GMS’s constitutional arguments were not

mooted by the September 24, 2009 entry.

      ¶{18} We now turn to the merits of this assignment of error. GMS complains

that the court entered an order in a nonexistent action prohibiting any new filings and

requiring the payment of an inexact amount (“in excess of” $3,000) without providing

notice or an opportunity to be heard. GMS equates the trial court’s actions with illegal

contempt proceedings, urging that no court order had been violated, no show-cause

order had been issued, and no opportunity to defend against the allegations had been

provided where GMS could evaluate the source of the fees and argue the statutory

requirements for payment of fees.

      ¶{19} This argument has merit. Both the Fourteenth Amendment to the United

States Constitution and Section 16, Article I of the Ohio Constitution guarantee due

process of law.   Procedural due process ensures the opportunity to be heard after

notice of a hearing before depriving a party of a property interest. Ohio Assn. of Pub.

School Emp. v. Lakewood City School Dist. Bd. of Edn. (1994), 68 Ohio St.3d 175, 176.

Thus, a party must be given reasonable notice that is sufficient to allow that party to

prepare a defense and then must be provided a meaningful opportunity to be heard

before an order requires payment and simultaneously prohibits the exercise of a legal

right. See generally Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 542; Galt

Alloys, Inc. v. Key Bank Natl. Assn. (1999), 85 Ohio St.3d 353, 357; State v.

Hochhausler (1996), 76 Ohio St.3d 455, 459.



                                           6
       ¶{20} There is dearth of case law on the precise topic here.        In one case

concerning the postjudgment addition of certain costs, a court-appointed guardian ad

litem had filed a postjudgment motion seeking $2,300 in fees.          The motion had

apparently not been served on the parties. Nor did the court give notice and opportunity

to be heard before it ordered the guardian ad litem’s fees to be assessed as court costs,

which had previously been imposed upon the father. The Fourth District reversed and

remanded, finding that this judgment constituted a violation of procedural due process.

In re B.B.M. (Dec. 10, 1997), 4th Dist. No. 97CA2274.

       ¶{21} As GMS suggests, the court’s action here could be likened to a summary

contempt judgment. The failure to comply with a court order is indirect contempt. In re

Guardianship of Myers, 7th Dist. Nos. 02CA6 and 02CA42, 2003-Ohio-5308, ¶ 29. See

also R.C. 2705.02(A) (disobedience of or resistance to an order, judgment, or command

of a court or officer constitutes contempt). It is civil contempt when the purpose of the

punishment is coercive, remedial, and conditional and when the contemnor is usually

able to purge the contempt by compliance with the court order. In re Olivito, 7th Dist.

No. 04MA42, 2005-Ohio-2701, ¶ 21.

       ¶{22} Here, the court attempted to remediate a perceived delinquency and to

coerce GMS into satisfying it by imposing the punishment of denying access to the court

until the delinquency is cured.    However, the court failed to provide notice or an

opportunity to be heard. The court essentially combined a complaint and a judgment in

one filing.

       ¶{23} As GMS points out, there also must be a pre-existing court order before

one could be found to be in violation of a court order. See Consol. United Methodist



                                           7
Church v. Knowles, 11th Dist. No. 2006-T-0110, 2007-Ohio-3383, ¶ 34 (“Proceedings

for contempt for noncompliance will not lie where the order does not expressly address

the alleged act of disobedience”), citing S. Euclid Fraternal Order of Police, Lodge 80 v.

D'Amico (1987), 29 Ohio St.3d 50 (because there was no court order of record directing

how the city was to proceed, the city could not be held in contempt of an order that

generally granted a judgment). Considering the state of our record, we cannot discern

whether the court had previously ordered GMS to pay this delinquency or whether GMS

was liable for the costs in the prior unidentified court actions.

       ¶{24} In any event, this indirect contempt, for failure to pay a sum supposedly

owed to the court, cannot be punished summarily. Olivito, 2005-Ohio-2701, at ¶ 23;

Myers, 2003-Ohio-5308, at ¶ 32. See also R.C. 2705.03 (where court is punishing

disobedience of court judgment, order, or command, a charge must be filed in writing

and entered in the journal, and the person charged must have the opportunity to be

heard); 2705.05 (in all contempt proceedings, the court must conduct a hearing). Such

action is a violation of procedural due process rights because notice and opportunity to

be heard are required before such a finding is made. Id.

       ¶{25} We conclude that there was a due process violation when the trial court

sua sponte opened a case and, without notice or the opportunity to be heard, entered a

final order stating that no further filings would be accepted in any future or current cases

(even if costs were advanced in those cases) unless GMS paid costs that the court had

not required GMS to advance in multiple prior cases in which costs ended up being

assessed against the tenant. Whether the court was attempting to proceed as in the

case of a contempt or the court was creating a case to address outstanding fees in an



                                              8
attempt to get around the statutory contempt requirements, the procedure used

constituted a violation of the due process rights of GMS.

                             Assignment of Error Number Two

       ¶{26} Appellant’s second assignment of error alleges:

       ¶{27} “The trial court erred by denying and refusing GMS access to the courts.”

       ¶{28} Besides the fact that current and future access to the court was denied

without notice and an opportunity to be heard, GMS adds that denial of access to the

courts is acceptable only in certain limited circumstances, such as the case of a

vexatious litigator, and even then, the court cannot deny access when there is a

legitimate filing.   GMS cites Article I, Section 16 of the Ohio Constitution, which

provides:

       ¶{29} “All courts shall be open, and every person, for an injury done him in his

land, goods, person, or reputation, shall have remedy by due course of law, and shall

have justice administered without denial or delay.”

       ¶{30} A vexatious-litigator case addressed due process and the constitutional

right to access to the courts. Mayer v. Bristow (2000), 91 Ohio St.3d 3. The court held

that the General Assembly had exercised a rational policy choice to force a vexatious

litigator into a single forum for preliminary review of his filings. Id. at 15. The court noted

that access to the courts is not denied regarding legitimate claims. Id. at 14.

       ¶{31} On the contrary, the trial court’s denial of access here was not pursuant to

a statute, as the trial court’s brief cites no legislative enactment that similarly permits the

denial of access to the courts in situations where a party owes the court money. The

trial court’s order here bars even legitimate filings where costs have been advanced and



                                              9
where the claims have no relation to the actions from which the dispute arose. As GMS

points out, even a vexatious litigator can have legitimate filings accepted for review, and

any barring of all future actions would be constitutionally infirm. See id. at 14; State ex

rel. Charvat v. Frye, 10th Dist. No. 06AP-100, 2006-Ohio-5947, ¶ 12 (prior vexatious

acts cannot be punished by refusing new legitimate actions); R.C. 2323.52(F)(1).

      ¶{32} The trial court’s order barring all current and future actions and filings,

even if fees were advanced and even in cases unrelated to the costs supposedly owed,

constitutes an improper denial of access to the courts. This is especially true where due

process was not respected (as discussed in the prior assignment of error). Cf. Mayer,

91 Ohio St.3d at 17-18 (the denial of access to the court by a mail restriction did not

result from a procedural due process violation because the vexatious-litigator statute

provided notice and an opportunity to be heard).          See also R.C. 2323.52(C) (a

vexatious-litigator action shall proceed as a regular civil action). Therefore, this

assignment of error has merit.

      ¶{33} Finally, we note that the trial court’s brief raises its mootness argument in

response to this assignment as well. For the reasons set forth at the beginning of the

first assignment of error, this assignment of error is not moot. That is, a stay of a

judgment pending appeal does not moot a sanction.           Plus, this is a constitutional

question, and review would be permitted in any event.

                           Assignment of Error Number Three

      ¶{34} GMS’s third assignment of error contends:

      ¶{35} “The trial court erred in assessing costs and charges to the plaintiff in

violation of R.C. 2335 et seq. and 311.17.”



                                              10
       ¶{36} GMS states that the court cannot come after it for delinquent costs that

were never assessed to it. GMS quotes landlord-tenant law providing: “If the judge

finds the complaint to be true, the judge shall render a general judgment against the

defendant, in favor of the plaintiff, for restitution of the premises and costs of suit.” R.C.

1923.09(A).    GMS also points out that a writ-of-restitution statute provides that the

sheriff shall charge certain fees for the service and return of writs of possession or

restitution, “which the court or its clerk shall tax in the bill of costs against the judgment

debtor or those legally liable thereforfor the judgment.” R.C. 311.17.

       ¶{37} GMS continues by citing R.C. Chapter 2335, which reads as requiring

outstanding costs to be collected from the person who was said to be liable for them.

See R.C. 2335.18 (costs shall be taxed); 2335.19(4) (costs of party recovering shall be

carried in that person’s judgment and costs against whom judgment is rendered shall be

separately stated in the record or docket; party in whose favor judgment for costs

rendered cannot release debtor from obligation to pay costs unless that party previously

advanced costs to the clerk) and (B) (judgment for costs allows clerk to issue certificate

of judgment to collect against person liable for costs); and 2335.21 (remedy is to

execute against indebted party).

       ¶{38} Initially, the trial court’s brief states that the provisions within Chapter 2335

apply only to common pleas courts. GMS counters that these provisions do generally

apply to the clerk of county courts as well. See R.C. 2303.31 (“The duties prescribed by

law for the clerk of the court of common pleas shall, so far as they are applicable, apply

to the clerks of other courts of record”) and 2335.18 (“the costs * * * in any of the courts

of this state, shall be taxed and entered of record separately”). See also R.C. 2335.20



                                             11
(specifying “the clerk of the court or the judge of a county court, issuing execution for a

judgment as provided by section 2335.19”); and 2335.24(B)(3) (the term “legislative

authority” in the section dealing with contracts for collection services includes a board of

county commissioners “if the clerk of the court involved is the clerk of a county court”).

       ¶{39} The trial court insists that GMS could have filed a declaratory-judgment

action seeking to prohibit the court from holding it liable for these costs and to mandate

the court to remedy the past imposition of liability. This was essentially the purpose for

the original action in the Supreme Court. However, GMS decided to pursue the matter

by way of the direct appeal of the September 2, 2009 entry. Even if a declaratory-

judgment action may have been available, it would not disallow a direct appeal of a

judgment entry, as there is a right to appeal a final order to the court of appeals.

       ¶{40} Thus, the trial court contends that the appeal of this issue is untimely

because GMS should have filed an appeal from each case containing outstanding costs

and argued the assessment in each individual case. GMS responds that costs against

it were never part of any judgment until the September 2, 2009 entry, and thus it had

nothing to appeal in the individual cases, in which costs were typically assessed against

the evicted tenant.

       ¶{41} The answer to this question lies in the answer to the next issue raised by

the trial court’s brief: there is no record from which this court can make its ruling. The

record in this case consists merely of the September 2, 2009 judgment entry quoted

above and the September 24, 2009 stay order. GMS is unaware of the exact source of

the costs in each unidentified case.        We remain unaware of which cases have

outstanding costs and what each individual cost assessment represents. At one point, it



                                             12
is suggested that GMS did pay for the writs of restitution; at another point, it is implied

that the cost of the writs had not been advanced; at yet another point, it is stated that

unknown additional fees were added.

      ¶{42} Moreover, we cannot resolve whether costs were assessed against the

tenant as opposed to GMS in each individual case. In fact, the trial court’s brief (by

arguing that GMS could have appealed in each individual case) suggests that costs

were assessed against GMS, whereas GMS disputes this suggestion.

      ¶{43} As the facts of the case are not contained in the record, we are unable to

apply the statutes to the facts of the case. Likewise, we are unable to enter an order

prohibiting certain actions without knowing whether the actions were actually performed

and without knowing the basis for those actions. We have not been asked to (nor could

we) add matter to the record that was not presented in this case below. See State v.

Ishmail (1978), 54 Ohio St.2d 402, 406.

      ¶{44} Notably, GMS does not actually dispute this barrier to our review in its

reply to the trial court’s brief on this topic. Rather, GMS points out that the reason for

the lack of a record was the trial court’s method of entering a judgment in a newly

created case without notice or an opportunity to be heard. This conclusion coordinates

with the first two assignments of error regarding the need to reverse and remand.

Regardless of the genesis of the lacking record, the file does not permit a review of the

court’s finding that GMS owes court costs.

                           Assignment of Error Number Four

      ¶{45} Appellant’s fourth assignment of error provides:




                                             13
       ¶{46} “The trial court has erred by failing to provide any refunds or accounting of

court costs as required by R.C. 1907.20.”

       ¶{47} As for entitlement to a refund, the record is inadequate to evaluate this

issue, as discussed above. Moreover, it is unknown what funds GMS claims should be

refunded: the deposit securing the stay (which is the subject of the prior assignment of

error) or some other funds.

       ¶{48} As for the lack of an accounting, the trial court’s brief states that this issue

is not ripe and that GMS cannot raise issues that occurred after the appeal was filed.

That is, the trial court allegedly has not provided an accounting for the years 2005

through 2009 after it agreed to do so in the September 24, 2009 judgment. This issue is

the subject of an original action filed by GMS against the clerk and the trial court in 7th

Dist. No. 10MA1.

       ¶{49} Although GMS filed a detailed reply brief here, the brief did not counter the

argument that this assignment of error improperly deals with occurrences subsequent to

the appeal. Because the failure to comply with the settlement portion of the September

24, 2009 judgment occurred after this appeal and is the subject of an original action, it is

not part of this appeal.

       ¶{50} In addition, as this case is being reversed and remanded as a result of

procedural-due-process violations and the access-to-the-courts violation, any lack of

sufficient notice reasonably calculated to allow GMS to present a defense may be

corrected by the notice issued by the trial court after the remand.

       ¶{51} Furthermore, considering the lack of a record in this case due to the

court’s failure to provide notice and an opportunity to be heard, we cannot actually



                                             14
discern what if anything had been provided to GMS regarding its liability for court costs.

Similarly, what the clerk does or does not do on a regular basis has not been

established in the record below.

      ¶{52} Thus, we cannot evaluate any suggestion here that the court or the clerk

failed to provide a proper accounting prior to entering the September 2, 2009 entry.

Accordingly, we cannot address this assignment of error.

      ¶{53} For the foregoing reasons, the judgment of the trial court is hereby

reversed, and this cause is remanded based on unconstitutional findings.

                                                                      Judgment reversed

                                                                   and cause remanded.

      WAITE and DEGENARO, JJ., concur.




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