[Cite as Walcutt v. Greer, 2024-Ohio-2094.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
BRETT WALCUTT, ET AL., JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiffs-Appellants Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 23 CAE 09 0083 JOHN RICHARD GREER, ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 21 CV H 10 0486
JUDGMENT: Affirmed in part, reversed in part, remanded
DATE OF JUDGMENT ENTRY: May 30, 2024
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
RICK L. BRUNNER JOHN J. KULEWICZ PATRICK M. QUINN JOHN F. FURNISS, III Brunner Quinn CHRISTOPHER A. LaROCCO 5001 Horizons Drive, Suite #209 ERIC A. PARKER Columbus, Ohio 43220 Vorys, Sater, Seymour, and Pease, LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 Delaware County, Case No. 23 CAE 09 0083 2
Hoffman, J. {¶1} Plaintiff-appellant Brett Walcutt (hereinafter “Walcutt”) appeals the
judgment entered by the Delaware County Common Pleas Court finding him in civil
contempt of court and guilty of criminal contempt of court, and ordering him to pay a
sanction of $35,000 in attorney fees to Defendant-appellee John Greer (hereinafter
“Greer”).
STATEMENT OF THE FACTS AND CASE
{¶2} This case arises from a dispute over the trustees of three trusts created by
Greer, the financial transactions which took place concerning the trust assets, and Greer’s
power of attorney. On October 18, 2021, Walcutt and other plaintiffs filed the instant
action against Greer and other defendants, including Colony Club Apartments, LLC, and
Colony Square Apartments, LLC, who are also Appellees in the instant action.
{¶3} Walcutt and the other plaintiffs attached numerous documents to their
complaint under an ex parte protective order, which permitted review of the exhibits only
in person at the office of the Delaware County Clerk of Courts. On November 30, 2021,
Walcutt and the other plaintiffs moved for another protective order to govern the exhibits
attached to the complaint and other documents produced in discovery. The trial granted
the protective order, but modified it to allow Attorney’s-Eyes-Only designations.
{¶4} The protective order restricted the use and disclosure of documents
governed by the order. The protected information was to be held by the receiving party
solely for use in connection with this action. The order provided any disclosure must be
“solely for the prosecution or defense of this action and not for any other purpose.”
However, the order did not restrict any party’s use or disclosure of documents “obtained
by such party independently of discovery proceedings herein.” The protective order Delaware County, Case No. 23 CAE 09 0083 3
provided after termination of the case, all confidential documents were to be destroyed or
returned to the producing party. Finally, by its terms the order remained in effect after the
termination of the case, and the trial court retained jurisdiction to enforce its terms.
{¶5} On December 17, 2021, Greer requested a status conference, stating the
parties needed the trial court’s assistance in resolving a discovery dispute. Prior to the
scheduled conference, counsel for Walcutt distributed exhibits to the complaint, which
were classified as Attorney’s Eyes Only under the protective order, to all counsel, giving
them her permission to share the documents with the parties. On January 3, 2022, the
trial court issued a judgment holding Walcutt and his attorney could not disclose the
documents or remove the confidentiality from the documents, which Greer had
designated as Attorney’s Eyes Only documents.
{¶6} Walcutt moved to “correct” the January 3, 2022 judgment, arguing a seizure
of property or a due process violation occurs when a court permits a party to litigation to
designate documents in the opposing party’s possession as confidential under a
protective order. The trial court overruled the motion. Walcutt appealed to this Court.
We dismissed the case for want of a final appealable order on May 18, 2022. Discovery
proceeded in the trial court, and Greer produced almost 300 pages of documents
designated as confidential.
{¶7} On April 1, 2022, Walcutt and another of the plaintiffs in the instant action
filed a guardianship action in the Delaware County Probate Court regarding Greer’s
competence. The instant action was stayed. A magistrate issued a report and
recommendation finding Greer competent and denying the guardianship petition. The
judge adopted the report and recommendation as its final judgment. Delaware County, Case No. 23 CAE 09 0083 4
{¶8} Three days after the magistrate’s report was filed, and while the instant
action remained stayed, Walcutt filed a new action in the Franklin County Common Pleas
Court, raising many of the same claims raised in the instant action, adding several new
claims, and adding two defendants. Walcutt filed a verified complaint with thirteen
exhibits. On the same day, he filed a motion asking for the exhibits to be filed under seal
in Franklin County. However, the published guidance from the Franklin County Clerk of
Courts required a signed order to be in place directing the documents be filed under seal
before the documents are filed. Walcutt filed the exhibits before obtaining an order
sealing them. As a result, the documents were available on the public docket from
November 18, 2022, until December 5, 2022, when the exhibits were sealed. In addition,
Walcutt requested the clerk of courts send the documents in 83 service packets, to 57
defendants, on four different dates from November of 2022, through January of 2023. On
May 30, 2023, the Franklin County trial court issued a protective order which designated
these exhibits as confidential.
{¶9} Greer, Colony Club Apartments, LLC, and Colony Square Apartments, LLC,
moved for contempt on November 29, 2022, concerning Walcutt’s disclosure in the
Franklin County case of documents covered by the protective order in this case. Less
than two hours after the motion to show cause was filed, Walcutt dismissed the instant
action.
{¶10} The trial court held a hearing on the motion to show cause. The trial court
found six of the documents Greer claimed were covered by the protective order were
obtained outside the discovery process in this case. The trial court found two documents
covered by the protective order would not have been obtained by Walcutt outside the Delaware County, Case No. 23 CAE 09 0083 5
discovery process. These two documents, the operating agreements of Colony Club
Apartments and Colony Square Apartments, were adopted after Walcutt was terminated
from his role as manager of these companies. The trial court held Walcutt in civil
contempt of court, and found him guilty of criminal contempt of court. As to the civil
contempt, the trial court ordered Walcutt to cease using the documents to prosecute the
Franklin County case unless he properly obtained them through discovery in that case,
make necessary efforts to recover and remove documents placed in the public record or
distributed to anyone other than Greer, and return to the producing party any confidential
documents received in discovery in this case. Walcutt was ordered to pay $50 per day
for each day he remained in contempt of the protective order. As a sanction for criminal
contempt, the trial court ordered Walcutt to pay Greer $35,000, representing a portion of
the attorney’s fees incurred in prosecution of the contempt motion and the efforts to
remove the documents from the public record in the Franklin County case.
{¶11} It is from the August 28, 2023 judgment of the trial court Walcutt prosecutes
his appeal, assigning as error:
I. THE TRIAL COURT ERRED IN FINDING APPELLANT IN
CONTEMPT.
II. THE TRIAL COURT ERRED IN IMPOSING CONTEMPT
SANCTIONS ON APPELLANT. Delaware County, Case No. 23 CAE 09 0083 6
I.
{¶12} In his first assignment of error, Walcutt argues the trial court erred in finding
him in contempt of court.
{¶13} “Contempt of court is defined 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, 27 Ohio St.2d 55, 271 N.E.2d 815, 815–16 (1971).
{¶14} When distinguishing between civil and criminal contempt, courts consider
the character and purpose of the contempt sanctions. Denovchek v. Board of Trumbull
Co. Commissioners, 36 Ohio St.3d 14, 520 N.E.2d 1362 (1988). The purpose of civil
contempt is to render punishment which is remedial or coercive and for the benefit of the
complainant. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610
(1980). The purpose of criminal sanctions is to vindicate the authority of the court and
punish past acts of disobedience, and thus the penalties for criminal contempt are
unconditional and “may take the shape of an absolute fine for a specific amount or a
determinate period of confinement.” Brown v. Executive 200, Inc., 64 Ohio St.2d 250,
254, 416 N.E.2d 610 (1980).
{¶15} In a civil contempt proceeding, the moving party must prove by clear and
convincing evidence a valid court order exists, the offending party knew about the order,
and the offending party violated the order. Meek v. Geneva, 2017-Ohio-7975, 98 N.E.3d
907, ¶33 (5th Dist. Tuscarawas). The fact the contemnor acted innocently and not in
intentional disregard of the court order is not a defense to a charge of civil contempt.
Windham, supra, paragraph 3 of the syllabus. Delaware County, Case No. 23 CAE 09 0083 7
{¶16} In a criminal contempt proceeding, the moving party must prove beyond a
reasonable doubt a valid court order exists, the offending party knew about the order, and
the offending party violated the order. Executive 200, supra, at 251.
{¶17} An appellate court's standard of review of a trial court's finding of contempt
is abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d
62 (1991). In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶18} Walcutt first argues the trial court erred in finding him in contempt because
the documents he is found to have disclosed in violation of the protective order were
documents he had access to outside of the discovery process in the instant case. The
protective order provides, “Nothing herein shall impose any restriction on the use or
disclosure by a party of documents or information obtained by such party independently
of discovery proceedings herein.” Judgment Entry, 12/13/21.
{¶19} Walcutt argues as a beneficiary of a sub-trust of the Greer Family Trust, he
had the legal right to obtain the amended operating agreements in question. However,
the protective order does not exclude documents which a party could have obtained
independently of the discovery process. Rather, it excludes documents in fact obtained
independently of the discovery process. There is no evidence Walcutt obtained the
documents outside the discovery process in this case. The trial court found the
documents attached to the Franklin County complaint had Bates numbers stamped in the
bottom right corner beginning with “JRG,” which is the Bates designation used by Greer’s
attorneys, and additionally contain designations at the top stating, “Confidential — Subject Delaware County, Case No. 23 CAE 09 0083 8
to Protective Order.” Such markings are an indication the documents were obtained in
discovery in the instant case, and not by independent means. We find the trial court did
not err in finding Walcutt obtained the documents in the discovery process in this case,
and we further find whether or not he could have legally obtained the documents through
other means is irrelevant.
{¶20} Walcutt next argues the trial court abused its discretion in finding him in
criminal contempt because he did not intentionally disclose the documents in the Franklin
County case. He argues the pleadings in Franklin County were drafted and filed by his
attorney, and therefore he did not intentionally violate the protective order. Walcutt
argues he did not understand the process by which to file documents under seal in
Franklin County, and therefore he may not be held responsible for his attorney’s failure
to properly file the documents under seal.
{¶21} Although in his testimony Walcutt alluded to the fact he was not an attorney
and therefore did not fully understand the pleadings and proceedings in Franklin County,
he did not specifically raise in the trial court he did not have intent to violate the protective
order because his attorney was responsible for the disclosure. The trial court specifically
addressed the six arguments raised by Walcutt, and his current argument is not among
those the trial court addressed. Judgment Entry, 8/28/23, pp. 11-12. “It is well
established that a party cannot raise any new issues or legal theories for the first time on
appeal.” Carrico v. Drake Constr., 5th Dist. Stark No. 2005 CA 00201, 2006-Ohio-3138,
¶ 37, quoting Dolan v. Dolan, Trumbull App. Nos. 2000–T–0154 and 2001–T–0003,
2002–Ohio–2440, at ¶ 7, citing Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41,
43, 322 N.E.2d 629 (1975). Delaware County, Case No. 23 CAE 09 0083 9
{¶22} However, even if Walcutt had not waived this issue by failing to raise it in
the trial court, we find the record contains sufficient evidence he intentionally violated the
protective order to support the trial court’s finding of criminal contempt. At the contempt
hearing, Walcutt admitted counsel did not file documents he did not first authorize. Tr.
101. Walcutt testified he authorized his attorney to submit the exhibits in the Franklin
County case. Tr. 119. In his verified complaint filed in Franklin County, Walcutt verified
the exhibits attached thereto, including the documents at issue in the contempt
proceedings in Delaware County, were true and accurate copies. Tr. 116-118. Further,
even if he intended to file the documents under seal, Walcutt would still have violated the
protective order in the instant case, which prohibited the use of confidential documents
outside the scope of the Delaware County case. We find the trial court did not abuse its
discretion in finding Walcutt intentionally violated the protective order.
{¶23} Walcutt argues the trial court erred in failing to ensure he had conflict-free
counsel. He argues because his attorney was responsible for drafting the pleadings in
Franklin County, the trial court should have been aware there was the potential for a
conflict between Walcutt and his attorney, and the trial court had an affirmative duty to
inquire.
{¶24} As discussed above, Walcutt did not argue in the trial court his attorney was
solely to blame for the violation of the protective order; therefore, the issue giving rise to
the potential conflict was not squarely before the trial court. Walcutt cites this Court to
State v. Williams, 166 Ohio St.3d 159, 2021-Ohio-3152, 184 N.E.3d 29. In Williams, the
defendant and his wife were represented by the same attorney. The Ohio Supreme Court
held the trial court did not have an affirmative duty to inquire into a possible conflict: Delaware County, Case No. 23 CAE 09 0083 10
Against this backdrop, we turn to the facts of this case to first
determine whether the trial court's affirmative duty to inquire into the
possibility of a conflict related to the dual representation arose. We agree
with the court of appeals that it did not. Williams II, 2020-Ohio-3588, at ¶
36. The transcript is clear that no possible conflict was brought to the trial
court's attention. Further, there is nothing in the record to indicate that the
trial court should have reasonably known of a possible conflict. Marshall
was given opportunities to address the court and did not say anything that
would have reasonably put the court on notice of a possible conflict created
by the dual representation. See State v. Ingol, 89 Ohio App.3d 45, 49, 623
N.E.2d 598 (9th Dist. 1993) (absent an objection or circumstance in which
the court knows or should reasonably know of a possible conflict, a trial
court may assume no conflict exists or that the risk is known and accepted);
Haugabrook, 2016-Ohio-5838, at ¶ 17, 21 (vacating appellant's guilty plea
after finding that prior to pleading guilty, appellant had expressed
reservations to the trial court about the dual representation of him and his
wife, claiming that she was innocent and they were both subject to a
package plea deal).
{¶25} Id. at ¶16.
{¶26} Similarly, in the instant case, no possible conflict was brought to the trial
court’s attention. The motion to show cause was not directed at Walcutt’s attorney, but
solely at Walcutt. Walcutt raised the issue his attorney was responsible for the violation Delaware County, Case No. 23 CAE 09 0083 11
of the protective order, absolving him of responsibility, for the first time on appeal. We
find an affirmative duty to inquire into the possibility of a conflict did not arise in the instant
case.
{¶27} We find the trial court did not abuse its discretion in finding Walcutt guilty of
both civil and criminal contempt.
{¶28} The first assignment of error is overruled.
II.
{¶29} In his second assignment of error, Walcutt argues the trial court erred in the
sanction imposed for criminal contempt. As a sanction for criminal contempt, the trial
court ordered Walcutt to pay “attorney’s fees in the amount of $35,000 to Greer,
representing a portion of the attorney’s fees incurred related to Greer’s motion to show
cause and efforts to remove the documents from the public record in the Franklin County
Case.”
{¶30} Walcutt first argues the sanction constituted improper “fee shifting,” which
is inconsistent with the purposes of criminal contempt sentencing. He argues the attorney
fees were not established by the evidence, no evidence was presented to demonstrate
the fees were reasonable, and the sanction representing attorney fees was awarded to
Greer personally rather than to the two limited liability companies responsible for the fees.
He also argues a sanction of $35,000 was disproportionate to his conduct.
{¶31} The Ohio Supreme Court has distinguished between the purpose of a
sanction for criminal and civil contempt: Delaware County, Case No. 23 CAE 09 0083 12
While both types of contempt contain an element of punishment,
courts distinguish criminal and civil contempt not on the basis of
punishment, but rather, by the character and purpose of the punishment.
Gompers, supra; Kilbane, supra. Punishment is remedial or coercive and
for the benefit of the complainant in civil contempt. Prison sentences are
conditional. The contemnor is said to carry the keys of his prison in his own
pocket, In re Nevitt (C.A. 8, 1902), 117 F. 448, 461, since he will be freed if
he agrees to do as ordered. Criminal contempt, on the other hand, is usually
characterized by an unconditional prison sentence. Such imprisonment
operates not as a remedy coercive in its nature but as punishment for the
completed act of disobedience, and to vindicate the authority of the law and
the court. See, generally, Gompers, supra; Bd. of Edn. v. Brunswick Edn.
Assn. (1980), 61 Ohio St.2d 290, 401 N.E.2d 440; State v. Local Union 5760
(1961), 172 Ohio St. 75, at 82-83, 173 N.E.2d 331. Therefore, to determine
if the sanctions in the instant cause were criminal or civil in nature, it is
necessary to determine the purpose behind each sanction: was it to coerce
the appellees to obey the consent judgment decree, or was it to punish them
for past violations?
{¶32} Executive 200, supra, at 253-54.
{¶33} Although the trial court stated the award of $35,000 in attorney fees to Greer
was a sanction imposed for criminal contempt, the sanction is remedial rather than
punitive in nature, and for the benefit of the complainant. The sanction imposed was not Delaware County, Case No. 23 CAE 09 0083 13
to vindicate the authority of the law and the court, but rather to compensate Greer for
expenses incurred as a result of the disclosure of the documents. We find an award of
attorney fees to Greer was not a lawful sanction for a finding of criminal contempt.
{¶34} A trial court may within its discretion include attorney fees as part of the
costs taxable to a party found guilty of civil contempt. Planned Parenthood Assn. of
Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 67, 556 N.E.2d 157, 168 (1990). In
Cleveland Civ. Serv. Emps. Assn. v. Cleveland, 8th Dist. Cuyahoga No. 93922, 2010-
Ohio-4352, the trial court ordered a portion of a sanction imposed for civil contempt to be
paid to the aggrieved party “as a penalty for the contempt and to cover their reasonable
attorney fees, costs, and expenses,” and the order was made “in lieu of a separate order
to pay plaintiff's attorney fees, costs and expenses, as would be justified in this matter.”
Id. at ¶ 103. The court of appeals reversed. While recognizing a trial court may, in its
discretion, award attorney fees as part of the costs taxable to a defendant for contempt,
the party seeking fees has the burden of introducing sufficient evidence of the attorney’s
services and the reasonable value thereof. Id. at ¶¶92-93. Because the trial court lacked
crucial information regarding the reasonableness of the fees, the court of appeals
concluded the trial court abused its discretion in fashioning the attorney fee award as the
sanction for contempt. Id. at ¶104.
{¶35} In the instant case, although in their show cause motion Greer requested
attorney fees be awarded, a separate hearing on attorney fees did not take place. The
notice issued by the trial court setting the matter for hearing stated the scheduled hearing
was on the motion to show cause as to why Walcutt should not be held in contempt of
court. At the contempt hearing, Lynn Greer testified the attorney fees incurred by the Delaware County, Case No. 23 CAE 09 0083 14
LLCs for preparation of the documents which were improperly disclosed by Walcutt
totaled around $40,000, and the legal fees incurred with respect to the contempt motion
exceeded $150,000. Tr. 35-36, 39. No evidence was presented concerning the
reasonableness of fees incurred. Although upon proper proof the trial court had authority
to award attorney fees to Greer for civil contempt, we find the trial court abused its
discretion in fashioning an award of attorney fees to Greer as a sanction for criminal
contempt, particularly in the absence of evidence of the reasonableness of fees incurred.
{¶36} However, because the penalties for civil and criminal contempt are included
in the same entry and are intertwined, and the trial court had authority upon proper proof
to award attorney fees for civil contempt, we vacate the penalties imposed for both
criminal and civil contempt, and remand this matter to the trial court to reconsider
sanctions for both civil and criminal contempt, and, if the trial court deems appropriate,
conduct a hearing on Greer’s request for attorney fees for civil contempt.
{¶37} The second assignment of error is sustained. Delaware County, Case No. 23 CAE 09 0083 15
{¶38} The judgment of the Delaware County Common Pleas Court is affirmed as
to the finding of criminal and civil contempt. The sanctions for criminal and civil contempt
are vacated, and this case is remanded for further proceedings according to law,
consistent with this opinion.
By: Hoffman, J. Delaney, P.J. and Baldwin, J. concur.