John Etienne .(fn1) v. Southern Ohio Transportation Corp.

• Decision Date: 01 March 1995
• Docket Number: 94 CA 574,95-LW-3703
• Parties: JOHN ETIENNE, ET AL.(fn1), Plaintiffs-Appellees v. SOUTHERN OHIO TRANSPORTATION CORP., ET AL., Defendants-Appellants Case
• Court: Ohio Court of Appeals

JOHN ETIENNE, ET AL.^[1] Plaintiffs-Appellees v. SOUTHERN OHIO TRANSPORTATION CORP., ET AL Defendants-Appellants

No. 94 CA 574.

95-LW-3703 (4th)

Court of Appeals of Ohio, Fourth District Adams

March 1, 1995

COUNSEL FOR APPELLANTS:^[2] Eric J. Wittenberg, Of Counsel, Golden & Meizlish Co., L.P.A., 923 East Broad Street, Columbus, Ohio 43205.

COUNSEL FOR APPELLEES: Richard L. Goettke, 213 North Broadway Blanchester, Ohio 45107.

DECISION

ABELE, J.

This is an appeal from a judgment entered by the Adams County Common Pleas Court holding Steve McGarvey and Galen McGarvey, defendants below and appellants herein, in contempt for violating a temporary restraining order.

Appellants assign the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN APPLYING THE WRONG EVIDENTIARY STANDARD OF PROOF IN FINDING THAT THE APPELLANTS WERE GUILTY OF CONTEMPT OF COURT."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN FINDING SUFFICIENT EVIDENCE TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE APPELLANTS WERE GUILTY OF CONTEMPT OF COURT."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN IMPOSING A PENALTY IN EXCESS OF THAT PERMITTED BY STATUTE."

On July 23, 1993, Appellees John Etienne, Russ Cone, Cliff Purvis, Dan Cowdrey, and Martha Curl filed the instant complaint against Southern Ohio Transportation Corporation, Steve McGarvey, and Galen McGarvey seeking a declaratory judgment concerning a sales agreement and various notes and other obligations between the parties. On that same day, appellees filed a motion for a temporary restraining order preventing appellants from liquidating any equipment or assets in connection with Southern Ohio Transportation Corporation. The court granted the motion. On August 19, 1993, after a hearing on the motion, the court continued the temporary restraining order.

On October 26, 1993, the trial court appointed a receiver in this action. After his appointment, the receiver and Appellee Etienne went to Appellant Steve McGarvey's property to inspect a 1987 Freightliner truck covered by the restraining order. They noticed that the truck's aluminum wheels and good tires had been removed. They further noticed that certain hoses on the truck had been cut and the dashboard inside the truck had been vandalized.

On November 3, 1993, appellees filed a motion asking the court to hold appellants in contempt for violating the temporary restraining order. On November 17, 1993, the trial court held a hearing with all counsel present to determine if there was sufficient evidence to require appellants to appear before the court for a show cause hearing. At the hearing, the receiver and Appellee Etienne testified about the truck's previous condition and the truck's current condition. Appellee Cliff Purvis testified in pertinent part as follows without objection:

"Q. As you know, Mr. McGarvey is a defendant in this action, why don't you tell the Court what you heard him say about damages to equipment?

A. Which Mr. McGarvey are you speaking about?

Q. Galen McGarvey?

A. Galen?

Q. Yeah.

A. Uh--

Court: Now, did you hear him or just what you heard he say?

A. No, I actually heard him say.

Court: Alright, go ahead and tell us.

A. 'That if the banks get them back, there won't be anything there.' And again, I realize I'm under oath, and what I'm saying is the honest truth. Mr. Galen McGarvey on several occasions made the comment that 'if the trucks were ever repossessed, if the banks ever got them back, that they would be stripped out, there would be nothing there."' [sic]

The court found sufficient evidence to require appellants to show cause.

On January 21, 1994, the trial court held a show cause hearing. At the hearing, the receiver and Appellee Etienne testified about the condition of the truck several weeks before they noticed the aluminum wheels and tires had been removed. They also testified about the condition of the truck when they discovered that the aluminum wheels and tires were missing. Appellee Etienne testified that the truck was located sixty to eighty feet away from Appellant Steve McGarvey's house. Appellant Steve McGarvey admitted he removed the aluminum wheels and tires, but claims he did that "before the company was shut down." We note the record does not reveal when the company ceased operation. When asked why he removed the aluminum tires and wheels, Appellant Steve McGarvey explained:

"A. Because the truck was going to become off the road, we were afraid that we were going, the truck was going to be repossessed because it was two or three payments behind, and we weren't sure because we had just re-tired that truck---I think we had just re-tired that truck with fairly new rubber on it."

Appellant Steve McGarvey further testified that he is not sure what happened to the aluminum wheels and tires. Appellant Galen McGarvey gave similar testimony.

The trial court held appellants in contempt with regard to the removal of the aluminum wheels and the tires. The court sentenced appellants to thirty days in jail unless they purged themselves of the contempt by paying $2,000. We note the trial court did not fine appellants.

Sometime prior to March 11, 1994, appellants paid $2,000 to purge themselves of the contempt. On March 11, 1994, appellants filed the instant notice of appeal.

I

Initially, we note that appellants purged themselves of the contempt prior to filing their notice of appeal. The act of purging a contempt renders the appeal of a contempt action moot. In In re Knight (Mar. 16, 1994), Ross App. No. 93 CA 1965, unreported, we noted that because our duty is to decide actual controversies, we may not decide contempt appeals once the contemnor has purged the contempt. See, also, Pagliaro v. Pagliaro (Aug. 23, 1993), Clermont App. No. CA93-02-014, unreported; Beard v. Beard (Apr. 23, 1992), Greene App. No. 91CA19 and 91CA34, unreported; Hammond v. Bishop (Feb. 14, 1991), Cuyahoga App. No. 60035, unreported. Similarly, an appeal of a criminal conviction is moot after the appellant has completed the sentence imposed. See State v. Wilson (1975), 41 Ohio St.2d 236, 325 N.E.2d 236; Springfield v. Myers (1988), 43 Ohio App.3d 21, 538 N.E.2d 1091. Accordingly, we find this appeal to be moot.

Assuming arguendo that this appeal was not moot, we would find no error. Although appellants argue in their first assignment of error that the trial court used an incorrect evidentiary standard, the record does not reveal which standard the trial court used. It is axiomatic that any error on the part of a trial court must affirmatively appear on the record or an appellate court will presume that the judgment and proceedings below were valid. See State v. Prince (1991), 71 Ohio App.3d 694, 595 N.E.2d 376; Columbus v. Hodge (1987), 37 Ohio App.3d 68, 523 N.E.2d 515; State v. Frost (1984), 14 Ohio App.3d 320, 322, 471 N.E.2d 171, 173; and State v. Render (1975), 43 Ohio St.2d 17, 330 N.E.2d 691. Absent any showing of irregularity an appellate court must presume the regularity of the proceedings.

Although appellants argue in their second assignment of error that there was insufficient evidence to support the finding of contempt, we find the record contains sufficient competent, credible evidence to support a finding of contempt. Appellant Steve McGarvey admitted he removed the aluminum wheels and tires. The receiver and Appellee Etienne testified that the removal occurred in the fall of 1993, after the trial court entered the temporary restraining order.

Although appellants argue in their third assignment of error that the trial court imposed an excessive fine, the record reveals the trial court imposed no fine at all. The $2,000 amount was not a fine, but rather the amount appellants could pay to purge the contempt.

Accordingly, because we find this appeal to be moot, we hereby dismiss this appeal.

APPEAL DISMISSED.

Harsha, P.J., Concurs in Judgment & Opinion. Grey, J., Dissents.

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Notes:

1. We note that although the complaint and many other documents in this case spell John Etienne's name with two "t's, the documents filed by his attorney after the complaint spell "Etienne" with only one "t." We further note that Etienne signed his name with only on "t" in his affidavit in support of the motion for a temporary restraining order. Accordingly, we will assume the spelling in the complaint was erroneous.

2. Different counsel represented appellants in 1993 during the proceedings below. SHARON S. McCARTY, Plaintiff-Appellee

v.

KEITH E. McCARTY, Defendant-Appellant

No. 94 CA 575.

4th District Court of Appeals of Ohio, Ross County.

Decided on December 21, 1994.

COUNSEL FOR APPELLANT: John H. Lawler, 216 North Market Street, West Union, Ohio 45693

COUNSEL FOR APPELLEE: Stephen C. Rodeheffer, 622 Sixth Street, Portsmouth, Ohio 45662.

DECISION

ABELE, J.

This is an appeal from a judgment entered by the Adams

County Common Pleas Court dividing the marital property of Sharon

S. McCarty, plaintiff below and appellee herein, and Keith E McCarty, defendant below and appellant herein. The judgment also awarded appellee spousal support and held a certain option between the parties and appellant's mother to be void.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY FAILING TO MAKE SPECIFIC FINDINGS IN RENDERING AN EQUITABLE DIVISION OF PROPERTY."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN AWARDING SPOUSAL SUPPORT TO APPELLEE."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN HOLDING THE OPTION AGREEMENT FOR RECONVEYANCE OF THREE ACRES TO APPELLANT'S MOTHER WAS VOID."

The parties married in 1976 and have two children born in 1977 and 1981. On May 15, 1992, appellee filed the instant action for...