[Cite as In re Contempt of Zuckerman, 2024-Ohio-2072.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE CONTEMPT OF YAIR : ZUCKERMAN AND HARRY SCHAYER : [Appeal by Attorneys Yair Zuckerman Nos. 113344, 113345, and Harry Schayer in the matter styled : and 113439 Healthcare Services Group Inc. v. Bryan SNF LLC et al.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: May 30, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-967622
Appearances:
Zukerman, Lear & Murray, Co., L.P.A., Larry W. Zukerman, and Brian A. Murray, for appellants.
Hahn Loeser & Parks LLP, Rocco I. Debitetto, and Justin Croniser, for appellee Healthcare Services Group Inc.
SEAN C. GALLAGHER, J.:
In this consolidated appeal, Harry Schayer and Yair Zuckerman
appeal from the trial court’s October 6, 2023 orders finding them in contempt of
court and ordering the county sheriff to issue warrants for their arrest. Schayer and
Zuckerman also appeal from the trial court’s December 6, 2023 decision denying their Civ.R. 60(B) motion to vacate and/or for relief from the October 6, 2023
orders. This court sua sponte ordered the parties to file briefs addressing the
existence of a final, appealable order, and those briefs have been filed. For the
reasons stated below, we dismiss the consolidated appeal for lack of a final,
appealable order and for want of jurisdiction.
Article IV, Section 3(B)(2) of the Ohio Constitution grants the courts
of appeals “such jurisdiction as may be provided by law to review * * * judgments or
final orders * * *.” “[W]ithout a final order, an appellate court has no jurisdiction.”
Stewart v. Solutions Community Counseling & Recovery Ctrs., Inc., 168 Ohio St.3d
96, 2022-Ohio-2522, 195 N.E.3d 1035, ¶ 4, citing Supportive Solutions, L.L.C. v.
Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997
N.E.2d 490, ¶ 10.
“Contempt of court consists of two elements. The first is a finding of
contempt of court and the second is the imposition of a penalty or sanction, such as
a jail sentence or fine.” Chain Bike Corp. v. Spoke 'N Wheel, Inc., 64 Ohio App.2d
62, 64, 410 N.E.2d 802 (8th Dist.1979). As the Supreme Court of Ohio has
explained, “the judgment of contempt is a final, appealable order at the time
sentence is imposed[.]” Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141
Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 2. In the case of civil contempt,
“a court order finding a party in contempt and imposing a sentence conditioned on
the failure to purge is a final, appealable order on the issue whether the party is in
contempt of court.” Docks Venture at ¶ 23. The distinction between civil and criminal contempt is typically based on the character and purpose of the contempt
sanctions. Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520
N.E.2d 1362 (1988), citing Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253,
416 N.E.2d 610, 612 (1980); see also Docks Venture at ¶ 13, citing State ex rel. Corn
v. Russo, 90 Ohio St.3d 551, 554-555, 740 N.E.2d 265 (2001).
In this case, on July 28, 2023, the plaintiff and judgment creditor
Healthcare Services Group, Inc., filed a motion to show cause asking the trial court
to require the defendants/judgment debtors Bryan SNF, LLC, et al., “by and through
Harry Schayer, president and/or Yair Zuckerman, CEO” to “appear and show cause
as to why they should not be held in contempt for failing to appear at a debtor’s
examination on July 19, 2023” in violation of the court’s order of May 22, 2023,
which had ordered the judgment debtors to appear. The trial court scheduled a
hearing on the motion to show cause for September 13, 2023, ordered the
defendants to appear, and indicated that the failure to appear “may result in
sanctions[.]” After Schayer and Zuckerman failed to appear on behalf of the
judgment debtors at the hearing, the trial court granted the motion to show cause.
Thereafter, on October 6, 2023, the trial court issued orders that found Schayer and
Zuckerman in contempt for failing to appear on behalf of the judgment debtors for
the taking of a debtor’s examination. In each order, the trial court ordered the
county sheriff “to issue a warrant for the arrest” of Schayer and Zuckerman
respectively, but the court allowed for the removal of the warrant upon a filing by
plaintiff’s counsel of a notice of compliance with the debtor’s examination or satisfaction of judgment. However, the trial court did not impose any sanction for
contempt, such as a fine or jail time or a conditional penalty, upon Schayer and
Zuckerman, who had yet to appear before the court.
Contrary to appellants’ argument, the appealed entry is not a final,
appealable order. As the Supreme Court of Ohio has recognized, “A common pleas
court has both inherent and statutory power to punish contempts,” Burt v. Dodge,
65 Ohio St.3d 34, 35, 599 N.E.2d 693 (1992), citing Zakany v. Zakany, 9 Ohio St.3d
192, 459 N.E.2d 870 (1984), at syllabus; and “the power to issue arrest warrants in
contempt cases is a ‘necessary corollary’ of the contempt power.” Id. “Moreover,
R.C. 2705.03, which establishes procedures for imposing indirect contempt
sanctions under R.C. 2705.02, specifically recognizes a court’s power to ‘issu[e]
process to bring the accused into court’ in cases of indirect contempt.” Burt at 35-
36. In such a case, the trial court’s issuance of a bench warrant does not render the
order a final, appealable order. See In re M.N., 11th Dist. Geauga No. 2010-G-2962,
2010-Ohio-4978, ¶ 16 (finding an order issuing a warrant for the arrest of a minor
child who failed to appear at a dispositional hearing was not a final order under
R.C. 2505.02(B)).
Appellant has not cited to any authority determining otherwise, and
the circumstances in the cases relied upon by appellants are distinguishable from
this matter. See In re B.A.L., 2016-Ohio-300, 47 N.E.3d 187, ¶ 20, 31 (8th Dist.) (the
trial court not only issued a warrant for arrest, but also ordered any visitation with
the child be supervised); Briggs v. Moelich, 8th Dist. Cuyahoga No. 97001, 2012- Ohio-1049, ¶ 3 (the trial court imposed a 30-day jail sentence with purge
conditions); Docks Venture, 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035,
at ¶ 7 (the trial court imposed a conditional sanction that included a $1,000 per day
fine with a purge condition).
Simply put, the trial court possessed the authority to order that
warrants be issued for the arrest of Schayer and Zuckerman so that the court could
enforce its orders and bring the contemnors before the court to answer for their
contemptuous conduct. See In re E.A., 3d Dist. Crawford No. 3-21-21, 2022-Ohio-
2625, ¶ 20, citing In re J.R.R., 12th Dist. Butler No. CA2013-09-176, 2014-Ohio-
3550, ¶ 30; R.C. 2705.02(A) and 2705.03. The trial court also could recall the
warrant upon a notice of compliance.
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[Cite as In re Contempt of Zuckerman, 2024-Ohio-2072.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE CONTEMPT OF YAIR : ZUCKERMAN AND HARRY SCHAYER : [Appeal by Attorneys Yair Zuckerman Nos. 113344, 113345, and Harry Schayer in the matter styled : and 113439 Healthcare Services Group Inc. v. Bryan SNF LLC et al.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: May 30, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-967622
Appearances:
Zukerman, Lear & Murray, Co., L.P.A., Larry W. Zukerman, and Brian A. Murray, for appellants.
Hahn Loeser & Parks LLP, Rocco I. Debitetto, and Justin Croniser, for appellee Healthcare Services Group Inc.
SEAN C. GALLAGHER, J.:
In this consolidated appeal, Harry Schayer and Yair Zuckerman
appeal from the trial court’s October 6, 2023 orders finding them in contempt of
court and ordering the county sheriff to issue warrants for their arrest. Schayer and
Zuckerman also appeal from the trial court’s December 6, 2023 decision denying their Civ.R. 60(B) motion to vacate and/or for relief from the October 6, 2023
orders. This court sua sponte ordered the parties to file briefs addressing the
existence of a final, appealable order, and those briefs have been filed. For the
reasons stated below, we dismiss the consolidated appeal for lack of a final,
appealable order and for want of jurisdiction.
Article IV, Section 3(B)(2) of the Ohio Constitution grants the courts
of appeals “such jurisdiction as may be provided by law to review * * * judgments or
final orders * * *.” “[W]ithout a final order, an appellate court has no jurisdiction.”
Stewart v. Solutions Community Counseling & Recovery Ctrs., Inc., 168 Ohio St.3d
96, 2022-Ohio-2522, 195 N.E.3d 1035, ¶ 4, citing Supportive Solutions, L.L.C. v.
Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997
N.E.2d 490, ¶ 10.
“Contempt of court consists of two elements. The first is a finding of
contempt of court and the second is the imposition of a penalty or sanction, such as
a jail sentence or fine.” Chain Bike Corp. v. Spoke 'N Wheel, Inc., 64 Ohio App.2d
62, 64, 410 N.E.2d 802 (8th Dist.1979). As the Supreme Court of Ohio has
explained, “the judgment of contempt is a final, appealable order at the time
sentence is imposed[.]” Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141
Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 2. In the case of civil contempt,
“a court order finding a party in contempt and imposing a sentence conditioned on
the failure to purge is a final, appealable order on the issue whether the party is in
contempt of court.” Docks Venture at ¶ 23. The distinction between civil and criminal contempt is typically based on the character and purpose of the contempt
sanctions. Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520
N.E.2d 1362 (1988), citing Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253,
416 N.E.2d 610, 612 (1980); see also Docks Venture at ¶ 13, citing State ex rel. Corn
v. Russo, 90 Ohio St.3d 551, 554-555, 740 N.E.2d 265 (2001).
In this case, on July 28, 2023, the plaintiff and judgment creditor
Healthcare Services Group, Inc., filed a motion to show cause asking the trial court
to require the defendants/judgment debtors Bryan SNF, LLC, et al., “by and through
Harry Schayer, president and/or Yair Zuckerman, CEO” to “appear and show cause
as to why they should not be held in contempt for failing to appear at a debtor’s
examination on July 19, 2023” in violation of the court’s order of May 22, 2023,
which had ordered the judgment debtors to appear. The trial court scheduled a
hearing on the motion to show cause for September 13, 2023, ordered the
defendants to appear, and indicated that the failure to appear “may result in
sanctions[.]” After Schayer and Zuckerman failed to appear on behalf of the
judgment debtors at the hearing, the trial court granted the motion to show cause.
Thereafter, on October 6, 2023, the trial court issued orders that found Schayer and
Zuckerman in contempt for failing to appear on behalf of the judgment debtors for
the taking of a debtor’s examination. In each order, the trial court ordered the
county sheriff “to issue a warrant for the arrest” of Schayer and Zuckerman
respectively, but the court allowed for the removal of the warrant upon a filing by
plaintiff’s counsel of a notice of compliance with the debtor’s examination or satisfaction of judgment. However, the trial court did not impose any sanction for
contempt, such as a fine or jail time or a conditional penalty, upon Schayer and
Zuckerman, who had yet to appear before the court.
Contrary to appellants’ argument, the appealed entry is not a final,
appealable order. As the Supreme Court of Ohio has recognized, “A common pleas
court has both inherent and statutory power to punish contempts,” Burt v. Dodge,
65 Ohio St.3d 34, 35, 599 N.E.2d 693 (1992), citing Zakany v. Zakany, 9 Ohio St.3d
192, 459 N.E.2d 870 (1984), at syllabus; and “the power to issue arrest warrants in
contempt cases is a ‘necessary corollary’ of the contempt power.” Id. “Moreover,
R.C. 2705.03, which establishes procedures for imposing indirect contempt
sanctions under R.C. 2705.02, specifically recognizes a court’s power to ‘issu[e]
process to bring the accused into court’ in cases of indirect contempt.” Burt at 35-
36. In such a case, the trial court’s issuance of a bench warrant does not render the
order a final, appealable order. See In re M.N., 11th Dist. Geauga No. 2010-G-2962,
2010-Ohio-4978, ¶ 16 (finding an order issuing a warrant for the arrest of a minor
child who failed to appear at a dispositional hearing was not a final order under
R.C. 2505.02(B)).
Appellant has not cited to any authority determining otherwise, and
the circumstances in the cases relied upon by appellants are distinguishable from
this matter. See In re B.A.L., 2016-Ohio-300, 47 N.E.3d 187, ¶ 20, 31 (8th Dist.) (the
trial court not only issued a warrant for arrest, but also ordered any visitation with
the child be supervised); Briggs v. Moelich, 8th Dist. Cuyahoga No. 97001, 2012- Ohio-1049, ¶ 3 (the trial court imposed a 30-day jail sentence with purge
conditions); Docks Venture, 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035,
at ¶ 7 (the trial court imposed a conditional sanction that included a $1,000 per day
fine with a purge condition).
Simply put, the trial court possessed the authority to order that
warrants be issued for the arrest of Schayer and Zuckerman so that the court could
enforce its orders and bring the contemnors before the court to answer for their
contemptuous conduct. See In re E.A., 3d Dist. Crawford No. 3-21-21, 2022-Ohio-
2625, ¶ 20, citing In re J.R.R., 12th Dist. Butler No. CA2013-09-176, 2014-Ohio-
3550, ¶ 30; R.C. 2705.02(A) and 2705.03. The trial court also could recall the
warrant upon a notice of compliance.
At this juncture, without the imposition of a conditional or
unconditional sanction, the orders finding appellants in contempt are interlocutory
in nature. Because no sanction has been imposed upon the finding of contempt and
the contempt proceedings have not been concluded, the trial court’s October 6, 2023
orders were not final, appealable orders. See Chain Bike Corp., 64 Ohio App.2d at
64, 410 N.E.2d 802 (“The mere adjudication of contempt is not final until a sanction
is imposed.”).
Accordingly, we must dismiss the appeal for the lack of a final
appealable order and for want of jurisdiction. See Claybrooks v. Giant Eagle, Inc.,
8th Dist. Cuyahoga No. 104347, 2016-Ohio-7966, ¶ 6-7. Additionally, a party may
not “bootstrap” a ruling on a Civ.R. 60(B) motion into a final, appealable order where the underlying contested order is not final. Justice v. Sears, Roebuck & Co.,
2d Dist. Montgomery No. 8658, 1984 Ohio App. LEXIS 11065, 5 (Sept. 4, 1984).
For the foregoing reasons, the appeal is dismissed.
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_ SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and MICHAEL JOHN RYAN, J., CONCUR