Dibert v. Carpenter

• Citation: 98 N.E.3d 350,2018 Ohio 1054
• Decision Date: 23 March 2018
• Docket Number: No. 2017–CA–17,2017–CA–17
• Parties: Gerald DIBERT, Plaintiff–Appellant v. Cynthia S. CARPENTER, Defendant–Appellee
• Court: Ohio Court of Appeals

98 N.E.3d 350

2018 Ohio 1054

Gerald DIBERT, Plaintiff–Appellant

v.Cynthia S. CARPENTER, Defendant–Appellee

No. 2017–CA–17

Court of Appeals of Ohio, Second District, Champaign County.

Rendered on March 23, 2018

GERALD DIBERT, 8415 State Route 245, DeGraff, Ohio 43318, Plaintiff–Appellant–Pro Se

STANLEY R. EVANS, Atty. Reg. No. 0011933, KRISTINA M. MORRIS, Atty. Reg. No. 0082242, P.O. Box 499, Sidney, Ohio 45365, Attorneys for Defendant–Appellee

OPINION

WELBAUM, P.J.

{¶ 1} This case is before us on the pro se appeal of Plaintiff–Appellant, Gerald Dibert, from an order requiring him to pay $25 per month, beginning in July 2017, to satisfy a judgment of $411.30 in court costs. The order also overruled various motions Dibert had filed, including a motion for recusal, a motion for an order appointing a new judge, and a motion to dismiss the show cause hearing.

{¶ 2} In support of his appeal, Dibert contends that the trial court committed plain error by proceeding without jurisdiction; that the court erred by proceeding with a show cause hearing when no contempt motion had been filed; that the court erred in refusing to correct the record; and that the trial judge erred by refusing to recuse herself when she had twice before filed orders of recusal.

{¶ 3} We conclude that the trial court erred in filing an order requiring Dibert to show cause why he should not be held in contempt, and in filing an entry reflecting that a show cause hearing for contempt had been held. Because court costs are a civil debt, the trial court could not file a show cause order seeking contempt, but, instead, was required to use only methods provided for the collection of civil judgments. Accordingly, the judgment of the trial court will be reversed in part, and this cause will be remanded to the trial court for further proceedings. In all other respects, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} This appeal is related to a probate action involving Dibert and Defendant–Appellee, Cynthia Carpenter, which has been before us on a number of prior occasions. In discussing the factual background, we will refer only generally to two cases in which we issued opinions and will not include various decisions and entries that are referenced in the appellate opinions. The case's factual background is complicated and is not particularly relevant here, since the matters at issue occurred after the trial court entered a final judgment on the parties' substantive claims.

{¶ 5} In essence, this case involves two siblings, Dibert and Carpenter, who have, for years, been litigating issues regarding two trusts established by their grandfather in 1975. In November 2007, Dibert filed a complaint against Carpenter, individually, and in her capacity as a trustee. Carpenter responded by filing several counterclaims against Dibert in January 2008. Dibert v. Carpenter , 2017-Ohio-689, 85 N.E.3d 419, ¶ 14–15 (2d Dist.) ( Dibert II ). Nothing of particular note occurred until the trial judge (Judge Reisinger) recused herself and another newly-elected judge from the case shortly after Judge Reisinger assumed office in February 2009. The recusal was based on a conflict of interest, and a retired judge was appointed to hear the case. Id. at ¶ 18.

{¶ 6} In 2011, we considered Dibert's appeal and Carpenter's cross-appeal from interlocutory decisions of the trial court. We concluded that Dibert's claim for fraudulent inducement to transfer real property from one trust to another was barred by the statute of limitations. See Dibert v. Carpenter , 196 Ohio App.3d 1, 2011-Ohio-5691, 961 N.E.2d 1217, ¶ 35 (2d Dist.) ( Dibert I ). At that time, we also dismissed Carpenter's cross-appeal, which involved the trial court's denial of her motion for partial summary judgment on Dibert's claim for conversion. We concluded that the order denying summary judgment was not a final appealable order because such orders are interlocutory. In addition, issues for equitable accounting, conversion, and unjust enrichment were still pending. Id. at ¶ 40–41.

{¶ 7} After the case was remanded, the parties reached agreement in November 2012 concerning Dibert's complaint, with Carpenter agreeing that she owed $120,000 to one of the trusts (the "Pickering Trust"). The trial court filed an agreed entry addressing distribution of the assets in that trust, and no appeal was taken. Dibert II , 2017-Ohio-689, 85 N.E.3d 419, at ¶ 24. Trial was then scheduled on Carpenter's counterclaims. Id. at ¶ 25. However, in June 2013, the assigned judge recused himself, and Judge Reisinger filed an order indicating that she would be the presiding judge for purposes of finalizing the mater. Id. at ¶ 26. In August 2013, Dibert's counsel raised questions about the judge's personal contact with litigants and/or persons close to the litigants; however, the request to recuse was withdrawn following a conference with the court. Id. at ¶ 27.

{¶ 8} Trial began before Judge Reisinger on October 22, 2013, at which time the court overruled Dibert's motion for leave to amend his answer to the counterclaims. The purpose of the amendment was to add claims relating to the other trust (the "Dibert Trust"). Id. at ¶ 31. During a second day of trial on October 31, 2013, the judge orally granted Dibert's motion to reconsider in part, and let Dibert file only his motion for leave, not his proposed amended answer. Id. at ¶ 32.

{¶ 9} During a third day of trial on November 27, 2013, it appeared that testimony might be required from Judge Reisinger's father. The court, therefore, called a recess to let the parties consider this issue. During the recess, Dibert filed his motion for leave to file the amended answer, and the court later orally overruled the motion. Id. at ¶ 33–34. After the recess, Dibert indicated that he intended to call the judge's father as a witness; as a result, Judge Reisinger again recused herself to avoid any perception of a conflict of interest. Id. at ¶ 35.

{¶ 10} A retired judge from another county was appointed to hear the matter, but before the certificate of assignment was filed in the trial court, Judge Reisinger issued entries outlining the events and oral rulings that had occurred on October 22 and 31, and November 27, 2013. Dibert II , 2017-Ohio-689, 85 N.E.3d 419, at ¶ 36. Subsequently, the assigned trial judge reviewed Dibert's motion for leave to file an amended answer, and overruled the motion in September 2014. This was shortly before the scheduled trial date, but trial did not occur at that time. Id. at ¶ 38–39. In January 2015, the judge reviewed the chronology of proceedings and again affirmed the denial of Dibert's motion for leave to amend his answer. However, the judge also concluded that Dibert should have been allowed to file his proposed answer and counterclaim. The judge, therefore ordered that Dibert could file the document at any time before trial began on January 15, 2015. Id. at ¶ 42.

{¶ 11} The trial was ultimately completed in February 2015, and the court entered judgment in May 2015 in favor of the successor of the Dibert Trust on four of the counterclaims against Dibert. The judgment ordered Dibert to pay the trust a total of $287,786.32. Dibert II , 2017-Ohio-689, 85 N.E.3d 419, at ¶ 2 and 43. At the time judgment was rendered, Carpenter had withdrawn three counterclaims, and the court had dismissed several of her other counterclaims. Id. at ¶ 43.

{¶ 12} After Dibert appealed from the judgment, we remanded the case on a limited basis to let the trial court consider Carpenter's motion for attorney fees. On remand, the court awarded Carpenter $105,127 in attorney fees and $719.50 in deposition costs. Id. at ¶ 45. When the case returned to our court, we affirmed the judgment of the trial court with respect to both the money judgment on the counterclaims and the award of attorney fees and deposition costs. Id. at ¶ 116. Our opinion was filed on February 24, 2017. We then overruled Dibert's motion for reconsideration of our opinion. See Dibert v. Carpenter , 2017-Ohio-689, 85 N.E.3d 419 (2d Dist.) (overruling motion for reconsideration of our February 24, 2017 opinion).

{¶ 13} On May 26, 2017, Dibert appealed from our judgment to the Supreme Court of Ohio, and the case was docketed as Sup.Ct. Case No. 2017–0711. On January 31, 2018, the Supreme Court of Ohio declined to accept jurisdiction of Dibert's appeal. See 2018–Ohio–365. Dibert has filed a motion asking the Supreme Court to reconsider its decision to decline jurisdiction, which remains pending before the Supreme Court.

{¶ 14} The record certified to our court from the trial court in connection with the current appeal contains 35 docket entries, dated from November 10, 2015, through July 10, 2017. 26 of these entries are irrelevant, as they are dated prior to our decision of February 24, 2017 (and deal with matters like certifying the transcript for that particular appellate case). The first pertinent entry, Doc. # 27, is a journal entry filed by Judge Reisinger on April 25, 2017. This entry states, in relevant part, that:

Plaintiff, Gerald Dibert has failed to pay his outstanding Court costs in the above-referenced manner.

Therefore, a show cause hearing is scheduled before Administrative Judge Lori L. Reisinger at the Champaign County Court of Common Pleas Courthouse, 200 North Main Street, Third Floor, Urbana, Ohio, on Tuesday, May 9, 2017, at 10:45 a.m. to show cause why he should not be held in contempt .

Gerald Dibert is ordered to appear at said hearing .

If Gerald Dibert either pays $411.30 or establishes a payment plan with the Clerk before May 9, 2017, the show cause hearing will be vacated. * * *.

* * *

IT IS SO ORDERED.

(Emphasis added.) Doc. # 27 (also labeled # 123), Journal Entry, p.1.¹

{¶ 15} On May 8, 2017, Dibert filed several pro se motions, including: (1) an objection to Judge Reisinger presiding and a request that she recuse herself; (2) a motion for an order appointing a new judge; (3) a ...