Wamack v. Wilson

2025 Ohio 1163

• Court: Ohio Court of Appeals
• Decided: March 31, 2025
• Docket: CT2024-0095
• Status: Published

Opinion

[Cite as Wamack v. Wilson, 2025-Ohio-1163.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JESSE WAMACK : Hon. William B. Hoffman, P.J. : Hon. Andrew J. King, J. Plaintiff-Appellee : Hon. David M. Gormley, J. : -vs- : : Case No. CT2024-0095 REBECCA WILSON,ET AL : : Defendant-Appellee : OPINION

and

TERRANCE J. KENNEALLY, ESQ.

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CC-2024- 0028

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 31, 2025

APPEARANCES:

For Terrence Kenneally For Defendant-Appellee

PAUL W. FLOWERS LOUIS E. GRUBE KENDRA DAVITT Terminal Tower, 40th Floor 50 Public Square Cleveland, OH 44113 King, J.,

{¶1} Appellant Terrence J. Kenneally, Esq. [Kenneally] appeals from the July 25,

2024, Journal Entry of the Muskingum County Court of Common Pleas finding him in

contempt for failing to attend an in-chambers status conference and fining him $1,000.00.

Facts and Procedural History

{¶2} Kenneally represented the alleged tortfeasor, Rebecca Wilson in a personal

injury action. See, Notice of Counsel, filed February 16, 2024. [Docket Entry No. 8];

Answer of Defendant Rebecca Wilson, filed February 16, 2024. [Docket Entry No. 9].

Wilson’s insurance carrier was represented by different counsel. See, Answer of

Defendant Geico, filed February 15, 2024. [Docket Entry No. 7].

{¶3} On April 5, 2024, the trial judge filed the following entry,

This matter is scheduled for a status conference on June 17, 2024, at 10:30

a.m. Said status conference will be held in chambers.

IT IS SO ORDERED.

Emphasis in original. [Docket Entry No. 16]. The Entry was sent by Regular U.S. Mail on

April 5, 2024. Id.

{¶4} On June 5, 2024, plaintiff’s counsel filed a motion for a continuance of the

status conference due to medical reasons. [Docket Entry No. 17]. By Journal Entry filed

June 11, 2024, the trial judge granted plaintiff’s motion for a continuance and rescheduled

the status conference for June 20, 2024, at 11:00 a.m. [Docket Entry No. 18]. The entry

contained the following provision, “Said conference will be held in chambers.”

Emphasis in original. The proof of service certifies that the Entry was mailed on June 11,

2024. Id. {¶5} On June 24, 2024, the trial judge noted that Kenneally failed to appear for

the in-chambers status conference scheduled for June 20, 2024, at 11:00 a.m. See,

Judgment Entry, filed June 24, 2024. [Docket Entry No. 19]. The judge scheduled a

“Show Cause Hearing on July 15, 2024, at 1:00 p.m. to show cause why counsel should

not be found in Contempt of Court.” (Emphasis in original).

{¶6} Kenneally appeared on July 15, 2024. He acknowledged that he was in

court that day for a show cause hearing on his failure to attend the in-chambers status

conference set for June 20, 2024. T. at 3. Kenneally admitted that he did not appear for

the in-chambers status conference. Id. The judge then inquired of Kenneally, “Why should

the Court not find you in contempt for that?” Id. Kenneally told the judge that almost all

courts in the state “are allowing attorneys to attend by phone for initial status

conferences…” T. at 3-4. Kenneally told the judge that he attempted to call the court on

June 16, 2024; however, he did not realize the court was closed that day for a federal

holiday. Id. at 4. Kenneally continued, “And so that morning, because of the distance I

had to travel, which is two and a half hours each way, I thought I would call, be present

by phone, and - - handle it in that fashion.” Id. The judge then asked, “Why didn’t you call

the week before to see if that was okay?” To which Kenneally replied, “Well, I don’t know

why I didn’t. I don’t have an answer to that. I don’t have an answer…” Id. Kenneally

continued, “I just explained my reasoning. If it was faulty, it was faulty. That was my

reasoning. It certainly wasn’t to show any disrespect to you.” T. at 6. Kenneally agreed

that the entry setting the status conference stated in bold print that the status conference

would be held in chambers. Id. {¶7} The judge asked the bailiff on the record how many status conferences the

court conducts by phone. T. at 7. The bailiff responded, “Very few. Maybe one a year.

That’s under special circumstances.” T. at 7. After a short recess, the judge asked if

Kenneally had anything else, to which Kenneally added, “I don’t have any excuses other

than the fact I thought because it was a status conference I could do it by phone. But

obviously, I’m here, and I was wrong.” T. at 8.

{¶8} The judge found Kenneally in “direct contempt” and imposed a fine of

$1,000.00. T. at 9; Journal Entry, filed July 25, 2024.

Assignments of Error

{¶9} Kenneally raises two Assignments of Error,

{¶10} “I. THE TRIAL COURT'S IMPROPERLY CONDUCTED CONTEMPT

HEARING RESTED ON INSUFFICIENT EVIDENCE AND VIOLATED ATTORNEY

KENNEALLY'S CONSTITUTIONAL RIGHTS.

{¶11} “II. THE COURT'S CONTEMPT SANCTION VIOLATES PUBLIC POLICY.”

I.

{¶12} Contempt is defined in general terms as disobedience of a court order. State

ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554 (2001). “‘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.

36 Ohio St.3d 14, 15 (1988) quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55

(1971), paragraph one of the syllabus. Ohio Courts Have Both Inherent Authority, and Statutory Authority to Punish for Contempt

{¶13} It has long been established in Ohio that courts have inherent authority to

exercise their contempt power. Hale v. State, 55 Ohio St. 210 (1896). The inherent power

of a court to punish for contempt of court may not be limited by legislative authority, nor

does such power depend upon express constitutional grant. State v. Local Union 5760,

United Steelworkers of America, 172 Ohio St. 75 (1961).

{¶14} The Legislature has also provided courts with statutory authority to punish

for contempt. R.C. 2705.02, Acts in Contempt of Court, defines Contempt in part as,

(A) Disobedience of, or resistance to, a lawful writ, process, order,

rule, judgment, or command of a court or an officer;

(B) Misbehavior of an officer of the court in the performance of his

official duties, or in his official transactions…

{¶15} A violation of R.C. 2705.02 is indirect contempt. United Steelworkers of

America, 172 Ohio St. at 79. The penalties assessed for violations of the indirect contempt

statute are set forth in R.C. 2705.05. Id.

{¶16} A court may punish disobedience of its orders pursuant to both R.C.

2705.02(A) and its inherent power to enforce its authority. Zakany v. Zakany, 9 Ohio St.3d

192 (1984), syllabus; State v. Yambrisak, 2011-Ohio-5373, ¶ 12 (5th Dist.).

Direct vs. Indirect Contempt

{¶17} Contempt may be either direct or indirect. See, In the Matter of Lands, 146

Ohio St. 589, 595 (1946); In re Lodico, 2005-Ohio-172, ¶ 35 (5th Dist.). Indirect contempt

occurs when the contemnor’s actions occur outside the presence of the court. Lands, 146 Ohio St. at 595; City of Cincinnati v. Dist. Council 51, 35 Ohio St.2d 197, 202 (1973).

Whereas direct contempt is an act of misbehavior in the presence of or so near the court

or judge as to obstruct the administration of justice. In re McGinty, 30 Ohio App.3d 219,

223 (8th Dist. 1986) (citation omitted).

{¶18} In direct contempt proceedings, courts have the inherent power to

summarily punish a contemnor. Zakany v. Zakany, 9 Ohio St.3d 192 (1984), syllabus. To

“summarily” punish means the court is not required to accord the person the usual

procedural rights of due process, such as the filing of process or the taking of evidence.

Sacher v. United States, 343 U.S. 1, 9 (1952); Pounders v. Watson, 521 U.S. 982, 987-

988 (1997), citing Cooke v. United States, 267 U.S. 517, 534 (1925); R.C. 2705.01.

{¶19} In cases of indirect contempt, the absence of an imminent threat

necessitates a trial with due process guarantees. State, ex rel. Seventh Urban Inc. v.

McFaul, 5 Ohio St.3d 120, 122 (1983); In re: Disqualification of Ruehlman, 2024-Ohio-

1306, ¶ 37; Lodico, ¶ 46; Basore v. Basore, 2001-Ohio-7054 (5th Dist.); R.C. 2705.02;

R.C. 2705.03.

Criminal vs. Civil Contempt

{¶20} In addition, contempt is further classified as civil or criminal depending on

the character and purpose of the contempt sanctions. Brown v. Executive 200, Inc., 64

Ohio St.2d 250, 253-254 (1980); In re Purola, 73 Ohio App.3d 306, 311 (3d Dist. 1991).

{¶21} The pertinent test in distinguishing criminal and civil contempt is as follows:

“what does the court primarily seek to accomplish by imposing sentence?” Shillitani v.

U.S., 384 U.S. 364, 370 (1966); State v. Yambrisak, 2011-Ohio-5373, ¶ 15 (5th Dist.).

Therefore, to determine if the sanction in the instant case was criminal or civil in nature, it is necessary to determine the purpose behind the sanction: was it to coerce Kenneally

to obey the journal entry, or was it to punish him for a past violation? See, Brown v.

Executive 200, Inc., 64 Ohio St.2d at 252.

{¶22} In determining the nature of a contempt, a reviewing court is not bound to

the trial court’s characterization of the contempt as civil or criminal but must independently

ascertain the nature of the contempt. ConTex, Inc. v. Consolidated Technologies, Inc., 40

Ohio App.3d 94 (1st Dist.1988); In re: Guardianship of Finan, 2014-Ohio-3572, ¶ 13 (5th

Dist.).

Burden of Proof and Procedural Requirements

{¶23} The classification of contempt as either criminal or civil takes on added

importance because each requires a different burden of proof.

{¶24} The standard of proof required in a criminal contempt proceeding is proof

of guilt beyond a reasonable doubt. Brown v. Executive 200, Inc., 64 Ohio St.2d at

syllabus; Finan, 2014-Ohio-3572, ¶ 15.

{¶25} In cases of indirect criminal contempt, intent to violate the order or defy the

court is an essential element. In re Purola, 73 Ohio App.3d 306 (3d Dist.1991). To

ascertain an alleged contemnor’s intent, the court must consider the totality of the

circumstances. Id. An appellate court, when reviewing a trial court’s finding of indirect

criminal contempt, must determine whether sufficient evidence existed for the trial court

to reasonably conclude beyond a reasonable doubt that the contemnor purposely,

willfully, or intentionally violated a prior court order. See Midland Steel Prods. Co. v.

U.A.W. Local 486, 61 Ohio St.3d 121 (1991). Simply failing to appear at a hearing alone

does not prove intent to commit contemptuous conduct. City of East Cleveland v. Reed, 54 Ohio App.2d 147 (1977). Further, an erroneous assumption does not rise to the level

of intentional disobedience. City of Cleveland v. Ramsey, 56 Ohio App.3d 108 (8th

Dist.1988).

{¶26} The standard of proof in a civil contempt proceeding is clear and convincing

evidence. International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827

(1994); Brown v. Executive 200, Inc., 64 Ohio St.2d at 253; Polen v. Heaston, 2016-Ohio-

7508, ¶12 (5th Dist.). “Clear and convincing evidence” is that evidence “which will produce

in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be

established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

Application of the Law to the Facts

{¶27} In the case at bar, Kenneally failed to appear in person for a status

conference as required by the trial judge’s June 11, 2024 journal entry. Kenneally’s acts

occurred outside or beyond the presence of the court; therefore, his actions must be

characterized as indirect contempt. Finan, 2014-Ohio-3572, ¶ 24; Basore v. Basore,

2001-Ohio-7054 (5th Dist.) (“[C]ourts have consistently held that the arriving late to a

hearing or not appearing at all constitutes an indirect contempt of the court.”); In re

Guardianship of Myers, 2003-Ohio-5308, ¶¶ 29 - 30 (7th Dist.); City of Cleveland v.

Ramsey, 56 Ohio App. 3d 108 (8th Dist. 1988); State v. Moody, 116 Ohio App.3d 176,

181 (12th Dist. 1996). See also Weiland v. Indus. Comm. of Ohio, 166 Ohio St. 62, 66

(1956) (when an attorney arrives late his conduct is both direct and indirect, i.e., it occurs

both in front of the court and outside of the court’s presence, which requires the court to

give the attorney an opportunity to explain his actions). {¶28} Kenneally was fined $1000.00 for his failure to obey the court’s order to

appear in-person for the status conference. The purpose of the fine was to vindicate the

authority of the court, and to punish Kenneally for his past violation. Thus, this contempt

was criminal in nature. See, Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253-254;

Finan, 2014-Ohio-3572, ¶ 16; In re Purola, 73 Ohio App.3d 306, 311 (3d Dist. 1991).

{¶29} As previously mentioned, this was an indirect, criminal contempt. Therefore,

“criminal penalties may not be imposed on someone who has not been afforded the

protections that the Constitution requires of such criminal proceedings.” Hicks v. Feiock,

485 U.S. 624, 632 (1988). Accordingly, Kenneally was entitled to all the procedural due

process protections afforded in criminal proceedings, including the right to notice of the

charges, the right to defend oneself and be heard, the right to counsel, and the right that

there be proof beyond a reasonable doubt that he purposely, willfully, or intentionally

violated the court order. See International Union, United Mine Workers of America v.

Bagwell, 512 U.S. 821, 826 (1994); Cooke v. United States, 267 U.S. 517, 537 (1925)

(rights to notice of charges, assistance of counsel, summary process, and to present a

defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege

against self-incrimination, right to proof beyond a reasonable doubt). With respect to the

right to counsel, a waiver of the right to counsel will not be presumed from a silent record.

Carnley v. Cochran, 369 U.S. 506, 516 (1962). The record must show that an accused

was offered counsel but intelligently and understandingly rejected the offer. Finan, 2014-

Ohio-3572, ¶ 21. {¶30} We find that, in this case, the record establishes that there was no

prosecutor or presentation of evidence. Further, Kenneally was not advised of his right of

counsel, nor was he given an opportunity to present a defense.

{¶31} It is specifically provided in R.C. 2705.05 that it is for the court to decide the

question of guilt or innocence in a contempt proceeding. The appointment of another

judge to hear the evidence is warranted where the alleged contempt takes the form of

personal insult or vilification of the judge, so that there would exist the possibility of bias

should the victim of such abuse pass judgment on the evidence. State v. Weiner, 37 Ohio

St.2d 11,13 (1974) citing Mayberry v. Pennsylvania, 400 U.S. 455 (1971) and R.C.

2705.05. Additionally, in State v. Mulligan, the court observed,

Although it is perhaps preferable that another judge always decide

the merits of a charge of indirect contempt made by a judge, there is nothing

wrong with the charging judge deciding the merits of the contempt charge,

provided that he or she can be an impartial arbiter. See State v. Weiner

(1974), 37 Ohio St.2d 11, 305 N.E.2d 794.

Facts suggesting that a judge may have become so personally

embroiled that his perspective may be affected include complaining to the

attorney’s fellow professional colleagues and clients about the events

leading up to the contempt proceedings. Betsworth v. Worker’s Comp.

Appeals Bd. (1994), 26 Cal.App.4th 586, 31 Cal.Rptr.2d 664 (contempt

judgment based upon attorney’s personal disrespect towards worker’s

compensation referee annulled because referee became so personally embroiled in the incident that her perspective was affected, and in the

process denying defendant due process of law).

2003-Ohio-782, ¶ 46-47 (2d Dist.); See also, In re Karasek, 119 Ohio App.3d 615, 623-

624 (2d Dist. 1997) (“In this case, the contempt proceedings were not the result of

personal attacks upon the trial court, but were instead founded upon Karasek’s

apparent failure to have complied with court orders.”); State v. Cusick, 1994 WL

117116, * 4 (9th Dist. Apr. 6, 1994) (“Here, however, the alleged contempt did not

involve a personal insult or vilification of the judge. Mr. Mancino has not pointed to

anything in the record to demonstrate that Judge Campbell conducted the proceedings

in a bias or slanted manner.”).

{¶32} The conduct in this case did not involve personal insult toward the trial

judge. We have examined the record, and it does not appear that Judge Cottrill became

embroiled in a running dispute with Kenneally, or that Kenneally was in any way

disrespectful toward the judge.

{¶33} Kenneally’s First Assignment of Error is sustained. The order of contempt

is reversed, the award of sanctions is vacated, and the matter is remanded to the trial

court for further proceedings consistent with this decision.

II.

{¶34} Considering our disposition of Kenneally’s First Assignment of Error, we

overrule Kenneally’s public policy argument raised in his Second Assignment of Error as

premature. {¶35} The judgment of the Muskingum County Court of Common Pleas is

reversed, and the matter is remanded to the trial court for further proceedings consistent

with this decision.

By King, J.,

Hoffman, P.J., and

Gormley, J., concur