State ex rel. Corn v. Russo

• Decision Date: 17 January 2001
• Docket Number: No. 00-23.,00-23.
• Citation: 740 NE 2d 265,90 Ohio St.3d 551
• Parties: THE STATE EX REL. CORN ET AL., APPELLEES, v. RUSSO, JUDGE, APPELLANT.
• Court: Ohio Supreme Court

90 Ohio St.3d 551

740 NE 2d 265

THE STATE EX REL. CORN ET AL., APPELLEES, v. RUSSO, JUDGE, APPELLANT.

No. 00-23.

Supreme Court of Ohio.

Submitted September 12, 2000.

Decided January 17, 2001.

McLaughlin & McCaffrey, L.L.P., Patrick M. McLaughlin, W. Joseph Melnik and Colin R. Jennings, for appellees.

Zukerman, Daiker & Lear Co., L.P.A., Larry W. Zukerman and S. Michael Lear, for appellant.

FRANCIS E. SWEENEY, SR., J.

This matter comes before this court upon the granting of a writ of prohibition that prohibits respondent from conducting further contempt proceedings in the underlying personal injury lawsuit entitled Crow v. Dotson, Cuyahoga C.P. No. CV345899. Since we find that respondent had jurisdiction to conduct criminal contempt proceedings, we reverse the court of appeals and deny the writ of prohibition.

This action arises from a subpoena issued to relators, Robert C. Corn, M.D., and Highland Musculo-Skeletal Associates, Inc., requesting financial information and related reports concerning Corn's medical/legal consultations. Relator Corn, an orthopedic surgeon, was hired by defense counsel in the Crow litigation to perform an independent medical examination ("IME") of the plaintiff and to be a medical expert witness. Believing that Corn was biased, in that he earned a substantial amount of income by performing examinations for the defense in personal-injury cases and acting as a defense expert witness, plaintiffs counsel filed a request for production of documents. Plaintiffs asked that Corn produce all I.R.S. 1099 tax forms received from insurance companies and attorneys for the years 1991-1997, as well as office records, including appointment books, computerized records and billing statements, and IME reports, relating to any IMEs he conducted during those years.

When those records were not produced, plaintiff's counsel, on July 27, 1998, issued a subpoena, pursuant to Civ.R. 45, to Corn and his professional organization and employees, requiring them to produce the documents. Corn filed a motion to quash the subpoena. Respondent, Judge Nancy Russo, denied the motion to quash on September 4, 1998. In this order, respondent stated that the failure to comply by September 14, 1998, would be deemed contempt of court.

On September 14, 1998, Corn, through his attorney, responded to the subpoena by letter. Although Corn was able to produce a 1997 calendar containing the names of his patients and approximately one hundred three IME reports from 1996 and 1997, he did not produce the remainder of the requested reports or the 1099 tax forms.

On September 22, 1998, respondent ordered Corn to appear in court to show cause why he should not be held in contempt for failure to abide by the court's orders regarding production of documents ordered by subpoena.

A show-cause hearing took place on September 28, 1998. At the hearing, Corn testified that, with the exception of the one calendar produced, he could not produce any other appointment books or calendars prior to 1998. He explained that appointment books are destroyed at the end of the calendar year or every three months, once the file is inactive. With respect to the IME reports sought, Corn also testified that the majority of these reports had been destroyed. Upon cross-examination, he conceded that one of the reasons he destroys these records is to prevent plaintiffs and plaintiffs' attorneys from establishing his financial interest and defense bias in personal injury litigation. Corn also said that he could not produce any 1099 tax forms because he did not have any.

Attorney Robert Housel was also called as a witness at the show-cause hearing. In a separate tort action entitled Hegedus v. Johnson, Cuyahoga C.P. No. 290943, an issue similar to Corn's alleged defense bias had been raised. In Hegedus, Judge Daniel Gaul had appointed Housel as a special master to investigate Corn's income and financial records pertaining to defense medical examinations. (The Eighth District Court of Appeals later granted a writ of prohibition in that case, finding that Judge Gaul lacked the authority to appoint a special master. State ex rel. Allstate Ins. Co. v. Gaul [1999], 131 Ohio App.3d 419, 722 N.E.2d 616.) In his testimony, Housel revealed information he had obtained during his investigation of Corn in the Hegedus case. Following Housel's testimony, Judge Russo continued the hearing to October 13, 1998.

On October 8, 1998, relators filed a petition for a writ of prohibition and a writ of mandamus to prevent respondent from going forward with the contempt hearing in the Crow case. The court of appeals granted an alternative writ of prohibition. During the pendency of that litigation in the court of appeals ("Corn I"), on April 2, 1999, the parties in the Crow litigation entered into a settlement agreement and agreed to voluntarily dismiss the case with prejudice.

On June 4, 1999, the court of appeals issued its final decision in "Corn I." The court found that respondent Russo had jurisdiction to proceed with the contempt hearing against Corn but did not have jurisdiction to compel testimony or seek evidence from attorney Housel. Therefore, the court of appeals granted a permanent writ of prohibition in that regard and ordered the testimony of attorney Housel to be sealed. State ex rel. Corn v. Russo (1999), 133 Ohio App.3d 57, 726 N.E.2d 1052.

On June 11, 1999, respondent Russo returned Crow to her active docket and continued the show-cause hearing. To prohibit respondent from proceeding with the contempt hearing, relators commenced this action on July 23, 1999, by filing a verified complaint, again seeking writs of prohibition and mandamus against respondent, Judge Russo.

The court of appeals denied the writ of mandamus but granted the writ of prohibition.¹ The court found, inter alia, that once the parties dismissed the underlying case, respondent lacked jurisdiction to conduct further proceedings. The court further found that because the contempt proceedings were civil in nature, respondent did not have the authority to continue the contempt hearing.

The cause is now before this court upon an appeal as of right.

The primary issue in this case is whether the court of appeals erred in finding that respondent lacked jurisdiction to hear the contempt proceedings. For the reasons that follow, we find that respondent did have jurisdiction over the contempt proceedings. Therefore, we reverse the court of appeals' decision and deny relators' writ of prohibition. A writ of prohibition is an extraordinary remedy that is granted in limited circumstances with great caution and restraint. State ex rel. Henry v. Britt (1981), 67 Ohio St.2d 71, 73, 21 O.O.3d 45, 47, 424 N.E.2d 297, 298-299. Proceedings on a petition for a writ of prohibition test the subject-matter jurisdiction of the lower court. Thus, a writ of prohibition prevents an inferior court from exceeding its jurisdiction. State ex rel. Barton v. Butler Cty. Bd. of Elections (1988), 39 Ohio St.3d 291, 530 N.E.2d 871.

For a writ of prohibition to be granted, the relator must prove that (1) the lower court is about to exercise judicial power, (2) the exercise of power is unauthorized by law, and (3) the relator possesses no other adequate remedy of law. State ex rel. Tollis v. Cuyahoga Cty. Court of Appeals (1988), 40 Ohio St.3d 145, 147, 532 N.E.2d 727, 729. However, even where an appeal may be available, "[w]hen a court patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction regardless of whether the lower court has ruled on the question of its jurisdiction." Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 562 N.E.2d 125, syllabus; State ex rel. Sanquily v. Lucas Cty. Court of Common Pleas (1991), 60 Ohio St.3d 79, 80, 573 N.E.2d 606, 608. In such a case, "`the availability or adequacy of a remedy of appeal * * * is immaterial.'" Id. at 79, 573 N.E.2d at 607, quoting State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, 329, 59 O.O.2d 387, 388, 285 N.E.2d 22, 24.

The court of appeals found that when the parties dismissed their case pursuant to Civ.R. 41(A)(1), respondent patently and unambiguously lacked jurisdiction to conduct further proceedings in Crow and did not have the jurisdiction to proceed with the contempt proceedings against relators, as they were civil in nature.

Thus, in deciding whether respondent patently and unambiguously lacks subject-matter jurisdiction in this matter, our first inquiry is whether the contempt proceedings were civil or criminal in nature.

Contempt is defined in general terms as disobedience of a court order. "`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.'" Denovchek v. Trumbull Cty. Bd. of Commrs. (1988), 36 Ohio St.3d 14, 15, 520 N.E.2d 1362, 1363-1364, quoting 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. Contempt proceedings are often classified as sui generis, neither civil nor criminal. Id. However, most courts distinguish between civil and criminal contempt proceedings. The distinction is usually based on the purpose to be served by the sanction. Dan D. Dobbs, Contempt of Court: A Survey (1971), 56 Cornell L.Rev. 183, 235. Thus, in determining whether a contempt is civil or criminal, the pertinent test is "what does the court primarily seek to accomplish by imposing sentence?" Shillitani v. United States (1966), 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622, 627.

Civil contempt sanctions are designed for remedial or coercive purposes and are often employed to compel obedience to a court order. Id. Criminal contempt sanctions, however, are punitive in nature and are designed to vindicate the authority of the...