Denovchek v. Board of Trumbull County Com'rs, 87-508

CourtUnited States State Supreme Court of Ohio
Citation520 N.E.2d 1362,36 Ohio St.3d 14
Docket NumberNo. 87-508,87-508
Decision Date23 March 1988

Syllabus by the Court

There is no right of appeal from the dismissal of a contempt motion when the party making the motion is not prejudiced by the dismissal.

On September 13, 1984, a subpoena was delivered to the office of George Libertine, Trumbull County Sanitary Engineer, ordering him to appear as a witness the following day in the trial of Denovchek et al. v. Board of Trumbull County Commissioners et al., Trumbull C.P. No. 84-265. Libertine did not appear. The appellant, Peter Denovchek, did not request a continuance or claim prejudice. The trial proceeded and final judgment was entered.

Appeal was taken by Denovchek and the judgment was affirmed on January 20, 1987. We denied certiorari on June 3, 1987 (case No. 87-467). No claim of error based upon the failure of Libertine to testify was asserted in the appeal from the judgment on the merits.

Separate from that appeal, Denovchek, on October 5, 1984, filed a motion for Libertine to show cause why he should not be held in contempt of court for failure to appear at the trial. Testimony was taken and briefs were submitted on the issue of whether Libertine had been properly "served" pursuant to Civ.R. 45(C).

The trial court found that Libertine was in his office on the day of delivery. However, the process server did not request to see him or attempt to make personal delivery. On the instructions of Libertine, who apparently anticipated a subpoena, certain employees at the Trumbull County Sanitary Engineer's office refused to accept the subpoena for Libertine. The subpoena was left by the process server in a tray on the front desk at the sanitary engineer's office. The court concluded that this was not adequate service and held that Libertine was not in contempt of court. 1

Denovchek appealed that holding to the Court of Appeals for Trumbull County. The court of appeals dismissed the appeal without reaching the issue of proper service. The court found the contempt action to be a criminal proceeding and that the Double Jeopardy Clause of the United States Constitution prevented a retrial.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Frank R. Bodor, Warren, for appellant.

Dennis Watkins, Pros. Atty., and Milan Brkich, Warren, for appellee.


The first issue to be decided is whether appellant has a right to appeal the lower court's dismissal of the contempt charge. Since we find that he does not have a right to appeal, we do not reach the other issues raised by the parties.


R.C. 2705.09 gives a right of appeal to a person found to be in contempt of court. It provides:

"The judgment and orders of a court or officer made in cases of contempt may be reviewed on appeal. Appeal proceedings shall not suspend execution of the order or judgment until the person in contempt files a bond * * *." (Emphasis added.)

The assumption underlying the statute appears to be that an appeal will be taken only in situations where the court finds a person in contempt. In any event, as it stands written, R.C. 2705.09 does not resolve the right to appeal by a party who moves for contempt charges against a non-party, when the court declines to find contempt.


The trial court appears to have excused Libertine from contempt on the basis that Civ.R. 45(C) does not allow for "constructive" service of a subpoena. The decision we reach does not endorse this reading of the statute. Where a subpoena is left at the business location or place of employment of a witness and where that witness has actual knowledge of the subpoena, a valid service of summons has been completed. Further, we do not approve of Libertine's action in what appeared to be a willful avoidance of service. If Libertine did not violate R.C. 2705.02(C), he may have violated R.C. 2705.02(A) by his "resistance to" a "lawful writ, process, order, rule, judgment, or command of a court * * *." However, even if Libertine was in violation of a statute, the trial judge was not required to find him in contempt.

We have defined "contempt of court" as "disobedience of an order of a court. It is conduct which brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions." Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 56 O.O.2d 31, 271 N.E.2d 815, paragraph one of the syllabus, followed in South Euclid Fraternal Order of Police, Lodge 80 v. D'Amico (1987), 29 Ohio St.3d 50, 29 OBR 398, 505 N.E.2d 268. The power of contempt is inherent in a court, such power being necessary to the exercise of judicial functions. Hale v. State (1896), 55 Ohio St. 210, 45 N.E. 199; State, ex rel. Turner v. Albin (1928), 118 Ohio St. 527, 161 N.E. 792; State v. Local Union 5760 (1961), 172 Ohio St. 75, 15 O.O.2d 133, 173 N.E.2d 331; Harris v. Harris (1979), 58 Ohio St.2d 303, 307, 12 O.O.3d 291, 293, 390 N.E.2d 789, 792; State, ex rel. Shoop, v. Mitrovich (1983), 4 Ohio St.3d 220, 4 OBR 575, 448 N.E.2d 800; Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870; Bessette v. W.B. Conkey Co. (1904), 194 U.S. 324, 326, 24 S.Ct. 665, 666, 48 L.Ed. 997.

In Windham Bank, supra, at paragraph two of the syllabus, we held, "[t]he purpose of contempt proceedings is to secure the dignity of the courts and the uninterrupted and unimpeded administration of justice." Therefore, since the primary interest involved in a contempt proceeding is the authority and proper functioning of the court, great reliance should be placed upon the discretion of the trial judge. United States v. United Mine Workers of America (1947), 330 U.S. 258, 303, 67 S.Ct. 677, 701, 91 L.Ed. 884.


This court has held that contempt proceedings are sui generis, i.e., neither civil nor criminal. Cincinnati v. Cincinnati Dist. Council 51 (1973), 35 Ohio St.2d 197, 201-202, 64 O.O.2d 129, 132, 299 N.E.2d 686, 691; State v. Timson (1974), 38 Ohio St.2d 122, 67 O.O.2d 140, 311 N.E.2d 16; Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253, 18 O.O.3d 446, 448, 416 N.E.2d 610, 612. However, for certain purposes we have found it necessary to classify contempt proceedings as either "civil" or "criminal." See Brown, supra; State v. Kilbane (1980), 61 Ohio St.2d 201, 15 O.O.3d 221, 400 N.E.2d 386.

The distinction between civil and criminal contempt is based on the character and purpose of the contempt sanctions. Brown, supra, 64 Ohio St.2d at 253, 18 O.O.3d at 448, 416 N.E.2d at 613. If sanctions are primarily designed to benefit the complainant through remedial or coercive means, then the contempt proceeding is civil. Brown, supra, at 253, 18 O.O.3d at 449, 416 N.E.2d at 613. Often, civil contempt is characterized by conditional sanctions, i.e., the contemnor is imprisoned until he obeys the court order. But, see, Kilbane, supra. Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence or fine. Brown, supra, 64 Ohio St.2d at 253-254, 18 O.O.3d at 449, 416 N.E.2d at 613. Its sanctions are punitive in nature, designed to vindicate the authority of the court. See Brown, supra, at 254, 18 O.O.3d at 449, 416 N.E.2d at 613; Kilbane, supra. See, generally, Gompers v. Bucks Stove & Range Co. (1911), 221 U.S. 418, 441-444, 31 S.Ct. 492, 498-99, 55 L.Ed. 797.

Most jurisdictions hold that no right of appeal is available following an acquittal on the merits of a criminal contempt charge. See State, ex rel. Sanborn, v. Bissing (1972), 210 Kan. 389, 502 P.2d 630; LeGrand v. LeGrand (La.App.1984), 455 So.2d 705; Wingert v. Kieffer (C.A. 4, 1928), 29 F.2d 59; Commonwealth v. Reece (1943), 294 Ky. 251, 171 S.W.2d 452; Masonite Corp. v. Internatl. Woodworkers of America (Miss.1967), 206 So.2d 171; Republic Eng. & Mfg. Co. v. Moskovitz (Mo.App.1965), 393 S.W.2d 78; Annotation (1969), 24 A.L.R.3d 650, 656.

Appellant, in this appeal, does not seek a benefit other than that of establishing a principle and seeing Libertine punished. Appellant's underlying action on the merits has run its course and the appellate procedure has been exhausted. Where, as here, no claim of prejudice is made by appellant, the matter of Libertine's contempt has, in the main, a criminal character.

Ohio cases which have allowed an appeal from a dismissal of contempt charges are distinguishable from this case by the existence of prejudice to the party opposing the dismissal and the fact that the motion for contempt is directed at a party to the action. See State, ex rel. Ventrone, v. Birkel (1981), 65 Ohio St.2d 10, 19 O.O.3d 191, 417 N.E.2d 1249 (class of residents of Summit County eligible to receive poor-relief payments charged certain Summit County officials with failing to establish proper standards of poor-relief payments as required by previous court orders); Wellman Eng. Co. v. Calderon Automation, Inc. (1965), 2 Ohio App.2d 385, 31 O.O.2d 591, 209 N.E.2d 172 (the court at 389, 31 O.O.2d at 594, 209 N.E.2d at 175, specifically found this was "a civil contempt proceeding instituted to preserve and enforce the rights of private persons * * * "). 2 See, also, River Cable Co. v. Wilson (July 1, 1983),...

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