3 Civil Rights Actions P 12B.

03
 Civil Rights Actions

 I Civil Rights Actions Treatise

 CHAPTER 12B Deprivation of Rights Under Color of State Law—Family Relations (Civil Rights

Act of 1871, 42 U.S.C. § 1983)

¶ 12B.03 Custodial Rights

Not withstanding the presumptive right of parents to the custody and care of their children,1
“the liberty interest in familial relations is limited by the compelling governmental interest in the protection of minor
children, particularly in circumstances where the protection is considered necessary as against the parents themselves.”2
Thus, absent exigent circumstances, due process requires a hearing before state officials remove a child from a home.3
It follows that “[t]he right to family integrity clearly does not include a constitutional right to be free from child abuse
investigations.”4
The Court of Appeals for the Eighth Circuit has held that “in the child abuse context, the abstract substantive due process right
to familial integrity must be continually subjected to ‘a balancing test which weighs the interest of the parent against the
interests of the child.’ ”5
This balancing test begins with the constitutional presumption that “fit parents act in the best interests of their children.”6
When a child’s safety is threatened, an emergency exists, and officials are not required to give parents notice and an
opportunity to be heard before taking the child into temporary protective custody.7
Nevertheless, as the Court of Appeals for the Third Circuit observed in Croft v. Westmoreland County Children and Youth
Services,8
“a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving
rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.”9
In Croft, authorities had received an anonymous tip regarding child abuse by the complainant. When interviewed by a case
investigator, the complainant provided an explanation for the allegations made in the anonymous tip. Nevertheless, the
investigator told the complainant that unless he left his home and separated himself from his daughter until the completion of
the investigation, the child would be placed in foster care. Nothing learned from interviews with the spouse of the complainant
and the child herself materially contradicted the complainant’s explanation. The complainant complied with the ultimatum and
left his home. The investigator conceded that at the conclusion of the interviews, she remained uncertain whether any sexual
abuse had occurred.

The complainant contended that officials had impermissibly interfered with his liberty interest in companionship with his
daughter. The district court entered summary judgment against the complainant, finding that the obligation to protect children
outweighed the right to intimate association. In reversing summary judgment, the Court of Appeals observed that the
investigator had obtained virtually no corroboration for the anonymous tip. Absent such corroboration, the removal of a family
member from the home could not be justified.

When the removal of a child from parental custody is substantively legitimate, it remains essential that the due process rights
of the parent be respected.

In Duchesne v. Sugarman,10
the plaintiff, who had emotional problems, sought medical help. Before going to the hospital, she left her small children with a
neighbor with whom she had shared baby-sitting responsibilities. Plaintiff expected to receive out-patient treatment and to
return home the same day. Instead, she was admitted to the hospital where she remained for six days. Unable to provide
continuing care for the children, the neighbor contacted the police, who in turn contacted the bureau of child welfare. The
following day, plaintiff, still in the hospital, was requested to give her consent for the bureau to take custody of the children.
When the plaintiff refused, the bureau assumed custody of the children on the ground that an emergency existed.11
Upon her release from the hospital, plaintiff sought the return of her children, but her request was denied. Both children were
admitted to foster care based on the bureau’s judgment that the plaintiff was incapable of caring for them. A couple of months
later, a psychiatrist who had treated the plaintiff recommended that the children be returned to her, one at a time; however, this
suggestion was rejected. Plaintiff’s repeated attempts to gain the return of her children were unsuccessful. Twenty-seven
months after the family was separated, plaintiff filed a petition for a writ of habeas corpus seeking the return of her children.
Ten days later, the bureau, for the first time, filed a neglect proceeding against the plaintiff. The actions were consolidated.
The court denied the habeas corpus petition and found the plaintiff guilty of neglect.12
On appeal, the court found the removal and continued detention of the children unlawful in the absence of a court order or the
consent of the plaintiff, and reversed the judgement.13
It also reversed the finding of neglect because the plaintiff had been denied the opportunity to present rebuttal evidence.
In the meantime, plaintiff brought an action under section 1983 for money damages. When the district court dismissed the
action, the plaintiff appealed. The Court of Appeals for the Second Circuit was convinced that a liberty interest protected by
the fourteenth amendment was at issue in the case.14
The court conceded that the taking of the children initially was justified by an emergency. However, in such a situation, the
right to notice and an opportunity to be heard was not thereby eliminated; it was merely postponed. Nor was it permissible for
the bureau to “sit back and wait” for the parent to challenge its action:
The burden of initiating judicial review must be shouldered by the government. We deal here with an uneven situation in
which the government has a far greater familiarity with the legal procedures available for testing its action. In such a case, the
state cannot be allowed to take action depriving individuals of a most basic and essential liberty interest which those
uneducated and uninformed in legal intricacies may allow to go unchallenged for a long period of time.15

Thus, the failure of the defendant to obtain judicial ratification of its decision deprived the plaintiff of due process.

In Suboh v. District Attorney’s Office of Suffolk,16

the plaintiff was a native of Morocco and initially allowed her parents to raise her child as their own child. The plaintiff
moved to the United States and returned to Morocco several times in an attempt to gain custody of her daughter. Several years
after the plaintiff moved, her parents traveled to the United States with her daughter to receive medical treatment for the
plaintiff’s father. During the visit, the plaintiff and her husband took her daughter and fled to the city councillor’s office.
Despite having knowledge that the plaintiff was the birth mother and that plaintiff’s parents were planning on returning to
Morocco shortly, a police officer turned custody of the plaintiff’s daughter over to her parents. The parents left the United
States with the plaintiff’s daughter, and she did not regain physical custody.
The Court of Appeals for the First Circuit concluded that it was “plain that Suboh allege[d] a violation of a constitutional
right.”17
Due process protects a parent’s rights even when a state temporarily removes a child before obtaining a court order and
requires that some sort of process be provided immediately after removal.18
In Suboh, the court first noted that the police officer short-circuited due process procedures established by state law.19
Moreover, there was no suspicion of child abuse that would warrant severance of parental rights without complying with
normal custody dispute procedures.20
Even if there had been, the police officer “had reason to know that Suboh would never receive any post deprivation hearing”
because he knew that plaintiff’s parents’ visas were about to expire and they intended to return to Morocco.21
Parental control over the religious training of children will continue when a child is placed in foster care, but the right is no
longer absolute.22
In Wilder v. Bernstein,23
the Court of Appeals for the Second Circuit said that in such cases, parents do not “retain a constitutional right to insist that
their children receive state-sponsored parenting under the religious auspices preferred by the parents.”24
In all such cases, the best interests of the child must remain paramount.25
Foster parents also have cognizable liberty interest in their children and are entitled to due process protections. The court
in Rivera v. Marcus26
held that the minimal safeguards in such cases include:
(1) notice of the reasons for termination,
(2) an opportunity to retain counsel,
(3) a pre-removal hearing, absent exceptional circumstances,
(4) confrontation of witnesses,
(5) an opportunity to present evidence,
(6) an impartial decision-maker, and
(7) a written statement of the decision and summary of the supporting evidence.27
In Alsager v. District Court,28
the district court found statutes which terminated parental rights to be unconstitutionally vague in establishing standards of
“necessary parental care and protection” and of parental “conduct … detrimental to the physical or mental health or morals of
the child.”29
Alternatively, the court found the statutes to deprive the plaintiffs of substantive due process. The court cited Roe v. Wade30
for the requirement that, when fundamental rights are involved, the regulation must be justified by a “compelling state
interest,” and that the law must be narrowly drawn to encompass only the legitimate state interest at stake. The court
acknowledged the legitimate state interest in child welfare, and the compelling interest when swift action is needed to protect
the safety of a child. However, once the risk of danger is eliminated, or if there is no imminent risk of harm, the state’s
interests are less compelling. The court held that “to sustain its compelling interest burden, the state must show that the
consequences, in harm to the children, of allowing the parent-child relationship to continue are more severe than the
consequences of termination,”31
and that in Alsager, the state failed to make such a showing. The court found the evidence insufficient to constitute a
compelling state interest in terminating parental rights.32
Indeed, the children’s case history following their removal from their home indicated that the action had been counter-
productive.33
Finally, the Alsager court found merit in the plaintiffs’ claims of a denial of procedural due process based on the inadequate
notice given regarding the termination proceedings and an improper standard of proof employed at the hearing. In respect to
the first requirement, the court held that notice in parental termination proceedings should “contain both the alleged factual
basis for the proposed termination and a statement of the legal standard authorizing termination.”34
On the latter point, the court was persuaded that a mere preponderance of the evidence standard was inadequate. While not
requiring proof beyond a reasonable doubt,35
the court held that “at least a standard of clear and convincing evidence” should be required.36
Interference with a parent’s custodial rights without notice of a hearing may violate procedural due process. In Smith v.
Eley,37
the plaintiff’s ex-wife was assisted by state officials in abducting the couple’s child from the plaintiff’s home, even though the
officials knew that plaintiff had temporary custody of the child. The court held that this interference with familial association
and a parent’s custodial relationship with his child stated a colorable claim under section 1983.38
In an action by several children who had been removed from their homes and placed in the custody of state agencies, a district
court held the children had a fourteenth amendment substantive due process claim to be free from arbitrary intrusions on their
physical and emotional well-being while directly or indirectly in state custody and to be provided with adequate food, shelter,
clothing, medical care and minimal adequate training.39
The children did not, however, have a substantive due process right to be placed in the least restrictive setting or to have
sibling visitation.40
The removal of an elderly family member was at issue in Collins v. Bellinghausen,41
where the plaintiff’s grandmother suffered from diabetes, blindness, and heart disease. Concerned with the level of care that
her grandmother was receiving at a nursing home, Collins withdrew her from the facility. Subsequently, she failed to take her
grandmother to a scheduled doctor’s appointment, did not provide her with regular medication, and was uncooperative with
state Department of Human Services investigators. State and county officers soon removed the grandmother from the home,
over plaintiff’s objections.42
In her complaint, Collins alleged that the removal was in violation of the grandmother’s fourth amendment right to be free
from unreasonable seizures. The Court of Appeals for the Eighth Circuit disagreed, noting that the fourth amendment “does
not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in
need of immediate aid.”43
The court was similarly unpersuaded by Collins’s claim that the removal violated the fourteenth amendment right to family
integrity. Citing Myers v. Morris44
and Manzano v. South Dakota Department of Social Services,45
the court deemed the removal justified, as “the information available to the defendants was more than sufficient to support a
reasonable suspicion that [the grandmother’s] health was in jeopardy.”46
Due process applies not only to removal of a child currently living, but also to unborn children. In Vaughn v. Ruoff,47
the plaintiff, a mildly retarded female, was promised the return of her two children if she would consent to sterilization, and
she agreed.48
The Court of Appeals for the Eighth Circuit concluded that the plaintiff’s evidence supported a finding that the plaintiff was
coerced into submitting to sterilization,49
and it was “undisputed that [the plaintiff] was not given any procedural protections before the sterilization occurred.”50
While acknowledging that involuntary sterilization might be constitutional under some circumstances,51
it did not follow “that the State can dispense with procedural protections, coerce an individual into sterilization, and then after
the fact argued that it was justified.”52

Civil Rights Actions

Copyright 2022, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

Footnotes
  1 Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123 (3d Cir. 1997); Doe v. Heck, 327 F.3d 492 (7th
Cir. 2003); Swipies v. Kofka, 348 F.3d 701 (8th Cir. 2003).
 2 Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.), cert. denied, 484 U.S. 828 (1987); Doe v. Heck, 327 F.3d 492, 520 (7th
Cir. 2003); Carter v. Lindgren, 502 F.3d 26 (1st Cir. 2007); Burke v. County of Alameda, 586 F.3d 725 (9th Cir. 2009);
Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009).
 3 Morrell v. Mock, 270 F.3d 1090 (7th Cir. 2001), cert. denied, 537 U.S. 812 (2002); Batten v. Gomez, 324 F.3d 288 (4th
Cir.), cert. denied, 540 U.S. 819 (2003); Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003).
 4 Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993).
See also Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123 (3d Cir. 1997); J.B. v. Washington
County, 127 F.3d 919 (10th Cir. 1997); Kauch v. Department for Children, Youth & Their Families, 321 F.3d 1, 4 (1st Cir.
2003); Doe v. Heck, 327 F.3d 492, 520 (7th Cir. 2003); Swipies v. Kofka, 348 F.3d 701, 703 (8th Cir. 2003); Thomas v.
Kaven, 765 F.3d 1183 (10th Cir. 2014).
 5 Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1372 (8th Cir. 1996) (quoting Manzano v. South Dakota Dep’t
of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995)).
See also Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123 (3d Cir. 1997); Kovacic v. Department of
Children & Family Servs., 724 F.3d 687 (6th Cir. 2013), cert. denied, 572 U.S. 1149 (2014); D.M. v. County of Berks, 929
F. Supp. 2d 390 (E.D. Pa. 2013).
 6 Doe v. Heck, 327 F.3d 492, 521 (7th Cir. 2003) (quoting Troxel v. Granville, 530 U.S. 57, 68 (2000)).
See also Thomas v. Kaven, 765 F.3d 1183 (10th Cir. 2014).
 7 Lossman v. Pekarske, 707 F.2d 288 (7th Cir. 1983); Malik v. Arapahoe County Dep’t of Soc. Servs., 191 F.3d 1306 (10th
Cir. 1999); Roska ex rel. Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003); Arredondo v. Locklear, 371 F. Supp. 2d 1281
(D. N.M. 2005), aff’d, 462 F.3d 1292 (10th Cir. 2006).
 8 103 F.3d 1123 (3d Cir. 1997).
 9 Id. at 1126.
Cf. Malik v. Arapahoe County Dep’t of Soc. Servs., 987 F. Supp. 868 (D. Colo. 1997) (parent’s fourth and fourteenth
amendment rights violated where social worker fraudulently obtained temporary custody order knowing that child was in no
immediate danger).
See also Doe v. Heck, 327 F.3d 492, 519 (7th Cir. 2003) (recognizing that a parents’ liberty interest in directing the
upbringing of their children includes the right to discipline them by using “reasonably, nonexcessive corporal punishment”).
 10 566 F.2d 817 (2d Cir. 1977).
 11 “[T]he procedures followed in obtaining and retaining custody of the children accorded with the directives of the Inter-
Agency Manual of Policies and Procedures … . [T]he Manual instructed that children may be separated from their families
in emergencies without benefit of parental consent or court order; no requirement for prompt judicial ratification of such
emergency action qualified this mandate.” Id. at 823.
 12 In the Matter of Danny C., Docket No. N704/06 (Family Ct. New York Cty. Dec. 1, 1972).
 13 In re Daniel C., 47 A.D.2d 160, 365 N.Y.S.2d 535 (1st Dep’t 1975).
 14 “[T]here can be no question that the liberty interest in family privacy extends to a mother and her natural offspring as are
involved in this case. Nor can there be any question that appellants were deprived of their right to live together as a family by
the refusal to return the children to the custody of the mother.” Duchesne, 566 F.2d at 825.
See also Donald v. Polk County, 836 F.2d 376 (7th Cir. 1988) (parents not deprived of liberty interest even though child
taken into custody without prior notice to parents because adequate post-deprivation hearing held); Doe v. Connecticut Dep’t
of Child & Youth Servs., 911 F.2d 868 (2d Cir. 1990) (welfare officials acted reasonably in removing child because of
allegations of child abuse); Dennison v. Vietch, 560 F. Supp. 435 (D. Minn. 1983); Fitzgerald v. Williamson, 601 F. Supp.
92 (E.D. Mo. 1984), aff’d, 787 F.2d 403 (8th Cir. 1986) (parents not deprived of liberty interest without due process where
child came to police station and reported she had been struck by her stepfather, thus initiating legal action in juvenile court
system resulting in placement of child in foster home).
Cf. Kamasinski v. Rubin, 764 F. Supp. 741 (D. Conn. 1991) (boyfriend of child’s mother had no constitutionally recognized
interest in having contact with child).

3 Civil Rights Actions P 12B.03 (2022)

F13.01–2 Complaint for Damages Alleging That Federal Employees Initiated
Regulatory Proceedings Not Authorized by Law1
UNITED STATES DISTRICT COURT District of

(Title of Action)

Civil Action No. Complaint

1. This proceeding is brought in part pursuant to Section 1331, 2201, 2202 of Title 28 of the United States Code and the relevant
provisions of the Federal Tort Claims Act 28 U.S.C. § 1291ff; Section 1583 of Title 42 of the United States Code; Section 10(b) of
the Administrative Procedure Act (5 U.S.C. § 703); and the First and Fifth Amendments of the Constitution of the United States and
such other Constitutional and Federal laws as may be relevant hereto.
2. Plaintiffs, The American Board of Trade, Inc. (hereinafter “ABT”) and Arthur N. Economou & Co., Inc. (hereinafter “ANE Inc”)
are corporations incorporated under the laws of the State of Delaware and having their principal office and place of business at .
3. Plaintiff Arthur N. Economou (hereinafter “ANE”) is an individual resident of New York with resident address at .

4. Defendants are the United States Government, its agencies, and employees thereof, some of whom are investigative or law
enforcement officers thereof, who, acting in their ministerial capacity, did conspire to interfere with and violate, and did interfere
with and violate, plaintiff’s rights and privileges, and did deprive plaintiffs of their property without due process of law, in conflict
with the laws and Constitution of the United States, as more fully appears hereinbelow.

5. Defendants, Department of Agriculture, acting through the defendant Commodity Exchange Authority and officers thereof,
instituted proceedings against plaintiffs ANE and ANE Inc. on February 19, 1970, and June 22, 1970, alleging that, as of certain
dates, in 1969 and 1970, ANE Inc. failed to meet certain requirements applicable to “futures commission merchants” registered
under the Commodity Exchange Act. Some time before the issuance of the February 19 complaint, plaintiffs ANE and ANE Inc. had
ceased to engage in the activities regulated by defendants, and several weeks prior to such complaint defendants had confirmed that
ANE Inc., then a registrant, was in conformity with all legal requirements. Defendants issued the June 22 amended complaint
against ANE and ANE Inc. at a time when they were no longer subject to regulation by defendants in respect to the acts which they
complained. Defendants issued each of the complaints without the notice or warning required by law.

6. Prior to the issuance of defendants’ illegal complaints and throughout their improper proceedings against ANE and ANE Inc.,
plaintiffs and their affiliates were sharply critical of the staff and operations of defendants and carried on a vociferous campaign for
the reform of defendant Commodity Exchange Authority to obtain more effective regulation of commodity trading.

7. Defendants furnished the complaints to interested persons and others without furnishing plaintiffs’ ANE and ANE Inc. answers as
well, and the New York office of the defendant CEA failed to include such answers and other papers in the record in its file made
available to the public.

8. Following the issuance of the amended complaint, defendants issued a deceptive press release that falsely indicated to the public
that plaintiffs’ ANE and ANE Inc. financial resources had deteriorated, when defendants knew that their statement was untrue and
so acknowledge previously that said assertion was untrue.

9. On January 8, 1973, defendant Campbell issued a final Decision and Order adopting verbatim the sanctions recommended by
defendant Bain and the complaints in the original action against the plaintiffs herein. Though plaintiffs had not for some years either
been registered as futures commission merchants or otherwise subject to defendants’ regulatory authority, defendants suspended
ANE Inc.’s “registration,” required ANE and ANE Inc. to cease and desist from violating requirements applicable only to registrants
and denied them trading privileges on contract market for 90 days.

10. In the petition for review of defendants’ Decision and Order brought by ANE and ANE Inc., Arthur N. Economou and Arthur N.
Economou & Co., Inc. v. U.S. Department of Agriculture, Dkt. No. 73–1221 (2d Cir. 1974), the Circuit Court of Appeals set aside
defendants’ Decision and Order and dismissed their proceedings against ANE and ANE Inc. with prejudice, holding that the
prosecution of the complaints was unlawful under federal law.

11. We believe the federal court’s decision clearly leads to the conclusion that the actions of defendants against ANE Inc. and ANE
were outside the discretionary functions or duties of defendants.

12. ANE Inc. and ANE’s Motion for Taxation of Costs, pursuant to the Federal Rules of Appellate Procedure, to recover the costs
they incurred in connection with their defense of the unlawful complaints, has been denied by the Court of Appeals for the Second
Circuit, so that out-of-pocket costs in the aggregate amount of approximately $30,000 which such plaintiffs expended in their
defense have not been recovered by them.

FOR A FIRST CAUSE OF ACTION

13. By bringing unauthorized proceedings against plaintiffs ANE and ANE Inc. without notice or warning as required by law,
defendants violated the rights and privileges of the plaintiffs under law and the United States Constitution, including their rights to
due process of law.

14. By bringing unauthorized proceedings against the plaintiffs ANE and ANE Inc., when they knew said plaintiffs were leaving
their jurisdiction, defendants, in excess of their lawful authority, violated the rights and privileges of the plaintiffs under law and the
United States Constitution.

15. By bringing unauthorized proceedings against the plaintiffs ANE and ANE Inc. when plaintiffs were no longer subject to their
jurisdiction, defendants, in excess of their discretionary powers, violated the rights and privileges of the plaintiffs under law and the
United States Constitution.

16. By these unauthorized actions outside their discretionary functions and duties, defendants sought to suppress legitimate business
activities of the plaintiffs directly or indirectly that Congress did not give them authority to regulate, punish the plaintiffs and
accomplish the ruin of their business reputation, through harassing them, causing them to expend large amounts of time and money
and publicizing the illegal complaint and order and issuing press releases that were not accurate.

FOR A SECOND CAUSE OF ACTION

17. The defendants, in excess of their regulatory authority and their discretionary functions and powers, did issue administrative
orders, illegal and punitive in nature, against the plaintiffs after plaintiffs ANE and ANE Inc. were no longer subject to their
authority, deliberately causing the plaintiffs substantial personal and economic harm, as aforesaid.

FOR A THIRD CAUSE OF ACTION

18. By the aforesaid unauthorized and illegal activities, which caused plaintiffs to deplete financial and human resources, the
defendants discouraged and chilled the campaign of criticism plaintiffs ANE and ANE Inc. directed against them, and thereby
deprived the plaintiffs of their rights to free expression guaranteed by the First Amendment of the United States Constitution.
FOR A FOURTH CAUSE OF ACTION
19. By furnishing their complaints to interested persons without furnishing plaintiffs’ ANE and ANE Inc. answers as well and by
failing to include plaintiffs’ ANE and ANE Inc. answers and other papers in the file made available to the public by defendants,
defendants exceeded their authority in violation of Section 9(a) of the Administrative Procedure Act, 5 U.S.C. § 558(b), and, in
violation of plaintiffs’ ANE and ANE Inc. rights to due process of law and right to privacy guaranteed by the United States
Constitution, sought to subject plaintiffs’ unregulated business affairs to harm, discredit them and interfere with their non-regulated
business operations.
FOR A FIFTH CAUSE OF ACTION

20. By issuing a deceptive press release to the media that falsely indicated the plaintiffs ANE and ANE Inc.’s financial resources had
deteriorated when defendants knew or should have known they did not, defendants violated plaintiffs ANE and ANE Inc.’s right to
due process of law, for the news release by ministerial officials damaged plaintiffs ANE and ANE Inc.’s credit standing and put
pressure on plaintiffs’ staff to counter the false charges to which the release was devoted, and had a serious affect upon the
plaintiffs’ public standing, the willingness of customers to do business with them and the businesses with which they were
associated, such as plaintiff ABT.

FOR A SIXTH CAUSE OF ACTION

21. Those defendants who were law enforcement and investigative officers, acting in their ministerial capacity did act outside the
scope of their authority and abuse legal process by continuing to prosecute unlawfully brought complaints against plaintiffs ANE
and ANE Inc. and demanding sanctions against them when they were no longer under governmental jurisdiction.

FOR A SEVENTH CAUSE OF ACTION

22. Defendants who were law enforcement and investigative officers, acting in their ministerial capacity did act outside the scope of
their authority and maliciously prosecute plaintiffs ANE and ANE Inc. as aforesaid.

FOR AN EIGHTH CAUSE OF ACTION

23. Defendants, by wrongfully causing the publishing of false information about the plaintiffs ANE and ANE Inc. and wrongfully
making public distorted information about the plaintiffs, did invade the privacy of the plaintiffs and caused them injury.

FOR A NINTH CAUSE OF ACTION

24. Defendants did negligently and with intent to harm the plaintiffs, ANE and ANE Inc. publish information about the plaintiffs
causing the plaintiffs harm.
FOR A TENTH CAUSE OF ACTION

25. Defendants did in excess of their authority upon the facts stated hereinabove, trespass on plaintiffs ANE, ANE Inc. and ABT
property.

26. By reason of all of defendants’ illegal actions, plaintiffs ANE, ANE Inc. and ABT and their business incurred heavy financial
and emotional burdens and were damaged immeasurably, as were all institutions with which the plaintiffs had a substantial
connection.

WHEREFORE, plaintiff demands:

A. Judgment against the defendants for the costs and expenses incurred by plaintiffs ANE and ANE Inc. in defending themselves
against the defendants’ illegal activities in the amount of $30,000; and

B. Compensatory damages for injury to the business of the plaintiffs in the amount of $5,000,000; and

C. Compensatory damages for the interference on the civil rights of the plaintiffs in the amount of $4,000,000; and

D. Compensatory damages for the invasion of plaintiffs’ privacy in the amount of $4,000,000.

E. Compensatory damages for malicious prosecution of plaintiffs in the amount of $4,500,000.

F. Compensatory damages for abuse of process against the plaintiffs in the amount of $6,000,000.

G. Compensatory damages for the trespass of the defendants in the amount of $500,000.

H. Compensatory damages for taking of the property of plaintiffs in the amount of $8,000,000.

That this court grant such other and further relief as may be just and proper.
§ 2715.01 Grounds of attachment.
(A) An attachment against the property, other than personal earnings, of a defendant may be had in a civil action for the recovery of
money, at or after its commencement, upon any one of the following grounds:

(1) Excepting foreign corporations which by compliance with the law therefore are exempted from attachment as such, that the
defendant or one of several defendants is a foreign corporation;

(2) That the defendant is not a resident of this state;

(3) That the defendant has absconded with the intent to defraud creditors;

(4) That the defendant has left the county of the defendant’s residence to avoid the service of a summons;

(5) That the defendant so conceals self that a summons cannot be served upon the defendant;

(6) That the defendant is about to remove property, in whole or part, out of the jurisdiction of the court, with the intent to defraud
creditors;

(7) That the defendant is about to convert property, in whole or part, into money, for the purpose of placing it beyond the reach of
creditors;

(8) That the defendant has property or rights in action, which the defendant conceals;

(9) That the defendant has assigned, removed, disposed of, or is about to dispose of, property, in whole or part, with the intent to
defraud creditors;

(10) That the defendant has fraudulently or criminally contracted the debt, or incurred the obligations for which suit is about to be or
has been brought;

(11) That the claim is for work or labor.

(B) An attachment shall not be granted on the ground that the defendant is a foreign corporation or not a resident of this state for any
claim, other than a debt or demand arising upon contract, judgment, or decree, or for causing damage to property or death or
personal injury by negligent or wrongful act.

(C) An attachment against the personal earnings of a defendant may be granted only after a judgment has been obtained by the
plaintiff and only through a proceeding for garnishment of personal earnings in accordance with Chapter 2716. of the Revised Code.

(D) An attachment against the property, other than personal earnings, of a defendant may be accomplished prior to the entry of
judgment only pursuant to an attachment proceeding under this chapter.

An attachment against the property, other than personal earnings, of a defendant that is in the possession of another person, may be
accomplished prior to the entry of judgment only pursuant to a garnishment proceeding under section 2715.091 of the Revised
Code and related provisions of this chapter.

(E) An attachment against the property, other than personal earnings, of a defendant that is in the possession of another person, may
be accomplished after judgment has been obtained only pursuant to a garnishment proceeding under Chapter 2716. of the Revised
Code.

History

RS § 5521; S&S 549; S&C 1002; 62 v 10, § 191; 88 v 65; 93 v 318; 94 v 44; GC § 11819; 109 v 59; Bureau of Code Revision, 10-
1-53; 129 v 13 (178) (Eff 7-1-62); 133 v S 85 (Eff 9-16-70); 139 v H 254 (Eff 8-26-82); 141 v H 442 (Eff 3-13-86); 146 v S 155. Eff
8-15-96.
Annotations

Notes to Decisions
 Constitutionality
 Generally
 Abuse of process
 Alter ego of corporation
 Applicability
 Claim for work or labor
 Client funds
 Commencement of action
 Consumer Credit Protection Act
 Contents of motion
 Contracts
 Debt criminally contracted
 Defenses
 Dismissal
 Due process
 Fraudulent conveyance
 Funds in trust
 History
 In rem
 Irreparable injury.
 Jurisdiction
 Nonresidence
 Nonresident creditor
 Personal earnings
 Preliminary injunction
 Removal or concealment of property
 Service of process
 Venue
Constitutionality

The prejudgment attachment procedure provided for in R.C. Chapter 2715. and held to be unconstitutional in Peebles v. Clement, 63
OS2d 314 [17 OO3d 203], is void from the date of its enactment: Spier v. American University of Caribbean, 3 Ohio App. 3d 28,
443 N.E.2d 1021, 1981 Ohio App. LEXIS 10015 (Ohio Ct. App., Hamilton County 1981).

The prejudgment attachment procedure provided for in R.C. Chapter 2715. fails to give a defendant sufficient due process
guarantees under the United States and Ohio Constitutions due to the failure of the statute to provide for judicial supervision of the
procedure: Peebles v. Clement, 63 Ohio St. 2d 314, 17 Ohio Op. 3d 203, 408 N.E.2d 689, 1980 Ohio LEXIS 823 (Ohio 1980).

Generally

Ohio statutes of attachment are to be construed liberally for the benefit of the attaching party: Northwestern Yeast Co. v. Broutin,
133 F.2d 628, 26 Ohio Op. 1, 1943 U.S. App. LEXIS 3868 (6th Cir. Ohio 1943).

Statutes pertaining to attachment and the procedure incident thereto are of a remedial nature, and require a liberal construction and a
liberal application to the facts of any given case: Weirick v. Mansfield Lumber Co., 96 Ohio St. 386, 117 N.E. 362, 15 Ohio L. Rep.
236, 1917 Ohio LEXIS 180 (Ohio 1917); Hart v. Andrews, 103 Ohio St. 218, 132 N.E. 846, 19 Ohio L. Rep. 176, 1921 Ohio LEXIS
186 (Ohio 1921).

Abuse of process
The measure of damages for the bringing of a suit in attachment without probable cause and maliciously is such compensatory
damages as will make the plaintiff whole for expenses incurred in securing a discharge of the attachment, and loss of the use of the
property, together with counsel fees and punitive damages on account of the humiliation and injury sustained by the plaintiff by
reason of the suit: Munro Hotel Co. v. Brough, 35 Ohio Cir. Dec. 89, 26 Ohio C.C. 185 (1915).

Alter ego of corporation

Prejudgment attachment of assets belonging to individual who was alleged to be an alter ego of insured corporations was not
warranted in insurance companies action to recover unpaid deductible amounts even though some of defendant’s actions hinted at
fraudulent intent. The court found the following countervailing considerations persuasive: 1) the voluntary tender of a substantial
portion of the original claim; and, 2) in winding up affairs the defendants sought to provide an orderly and equitable procedure in the
form of an independent escrow arrangement: Nationwide Mut. Ins. Co. v. Whiteford Systems, Inc., 787 F. Supp. 766, 1992 U.S.
Dist. LEXIS 3680 (S.D. Ohio 1992).

Prejudgment attachment of assets belonging to individual who was alleged to be an alter ego of insured corporations was not
warranted in insurance companies action to recover unpaid deductible amounts even though some of defendant’s actions hinted at
fraudulent intent. The court found the following countervailing considerations persuasive: (1) the voluntary tender of a substantial
portion of the original claim; and, (2) in winding up affairs the defendants sought to provide an orderly and equitable procedure in
the form of an independent escrow arrangement: United States v. Howard, 787 F. Supp. 769, 1992 U.S. Dist. LEXIS 11949 (S.D.
Ohio 1992).

Applicability
As a trial court order that required trailer lessees to return the trailers to the lessor constituted a permanent injunction, no bond was
required pursuant to Civ.R. 65; the injunctive relief was not a prejudgment attachment under R.C. 2715.01(A), as it was issued upon
the parties’ evidence that was submitted in support of a partial summary judgment motion and it was not based on a claim for
monetary damages, but rather, for return of the trailers. Star Leasing Co. v. G&S Metal Consultants, Inc., 2009-Ohio-1269, 2009
Ohio App. LEXIS 1075 (Ohio Ct. App., Franklin County 2009).
Claim for work or labor
Where plaintiff based his claim for attachment on subdivision (K) [now (A)(11)] of R.C. 2715.01 and his petition and affidavit state
that his claim is for work or labor and necessary parts furnished for the repair of defendant’s motor vehicles, such plaintiff failed to
establish a statutory right for the issuance of the writ of attachment, and, on motion by the receiver for the defendant made after
judgment and before the attached property or proceeds thereof have been applied to the judgment, such writ of attachment will be
held invalid and void ab initio, and, as between the receiver and the plaintiff, vacated: Cecrle v. Jeffries, 12 Ohio Misc. 25, 40 Ohio
Op. 2d 101, 229 N.E.2d 477, 1967 Ohio Misc. LEXIS 286 (Ohio C.P. 1967).

Services rendered by a real estate agent are professional services and not included in the definition of “work and labor” as used in
this section: Kreider v. Carson, 43 Ohio Op. 326, 94 N.E.2d 386, 57 Ohio Law Abs. 406, 1949 Ohio App. LEXIS 873 (Ohio Ct.
App., Mahoning County 1949).

A person not a professional engineer, who performs for an employer the services of a tool designer and an inspector of work done by
tool makers, performs “work” within the meaning of that word as in this section par. (11) [now (A)(11)] providing that, in an action
for the recovery of money, the plaintiff may, at or after the commencement of the action, have an attachment against the property of
the defendant employer upon the ground that the claim is for “work”: Henry v. Mangold, 84 Ohio App. 188, 39 Ohio Op. 227, 81
N.E.2d 345, 50 Ohio Law Abs. 510, 1947 Ohio App. LEXIS 556 (Ohio Ct. App., Montgomery County 1947).

An account for “labor on tax report records, business survey and labor and audit,” is not an account for work and labor within the
meaning of this section: Northern Ohio Printing Co. v. Investment Service, Inc., 8 Ohio Law Abs. 475, 1930 Ohio Misc. LEXIS 994
(Ohio Ct. App., Summit County June 5, 1930).

One who has a common law lien on personal property by reason of having performed labor and care upon it, does not lose nor waive
such lien by levying an attachment upon the property: Ironton Garage Co. v. McKee, 28 Ohio Dec. 137, 20 Ohio N.P. (n.s.) 251,
1917 Ohio Misc. LEXIS 51 (Ohio C.P. 1917), aff'd, Jones v. Ironton Garage Co., 9 Ohio App. 431, 1918 Ohio App. LEXIS 197
(Ohio Ct. App., Lawrence County 1918).

Attachment will lie in an action for services rendered a nonresident: Citizens Sav. & Co. v. Grossner, 17 Ohio C.C. (n.s.) 87, 32
Ohio Cir. Dec. 32 (1910), affirmed, without opinion, 83 Ohio St. 443.].

Client funds

Trial court had competent credible evidence to support its finding that funds held in an attorney’s Interest on Lawyer’s Trust
Account (IOLTA) belonged to a client and were subject to garnishment because the attorney never stated a legal reason why the
funds were exempt from garnishment, and the fact the funds were in the attorney’s trust account was persuasive evidence that they
belonged to the client. Prokos v. Hines, 2014-Ohio-1416, 2014 Ohio App. LEXIS 1375 (Ohio Ct. App., Athens County 2014).

Commencement of action

Within the purview of this section, wherein it is provided that “in civil action for the recovery of money, at or after its
commencement, the plaintiff may have an attachment against the property of the defendant” upon any of the grounds therein
enumerated, an action is commenced when a petition is filed in the proper court and a summons issued thereon: Consumers
Plumbing & Heating Supply Co. v. Chicago Pottery Co., 155 Ohio St. 373, 44 Ohio Op. 347, 98 N.E.2d 823, 1951 Ohio LEXIS 581
(Ohio 1951).

Where an affidavit of attachment is filed and attachment is levied before a summons has been issued, such attachment is void:
Pilgrim Distributing Corp. v. Galsworthy, Inc., 148 Ohio St. 567, 36 Ohio Op. 214, 76 N.E.2d 382, 1947 Ohio LEXIS 381 (Ohio
1947).

In determining whether an attachment should issue, it is proper to consider both the affidavit in attachment and the cause of action
alleged in the petition: John Canelli Co. v. Brewing Corp. of America, 67 Ohio App. 155, 21 Ohio Op. 155, 36 N.E.2d 45, 1941
Ohio App. LEXIS 821 (Ohio Ct. App., Lucas County 1941).

The filing of a petition, together with an affidavit for service by publication where personal service is not possible, is equivalent to
“causing summons to be issued” within the meaning of GC § 11279 (R.C. 2703.01), and constitutes the commencement of an action
under that section, and, under this section, order of attachment against the property of defendant issued “at or after” such time is not
premature: Shaffer v. Shaffer, 69 Ohio App. 447, 24 Ohio Op. 183, 42 N.E.2d 176, 35 Ohio Law Abs. 441, 1941 Ohio App. LEXIS
663 (Ohio Ct. App., Montgomery County 1941).
Consumer Credit Protection Act

The United States Consumer Credit Union Protection Act, Section 1601 et seq., Title 15, U.S. Code, governs the frequency and
maximum amount of any garnishment order made by any court of any state in which the garnishee-employer of the debtor is
licensed to do business and to whose jurisdiction it is subject: Antwerp Weatherhead Federal Credit Union v. Gonzales, 30 Ohio
Misc. 2d 31, 507 N.E.2d 472, 1982 Ohio Misc. LEXIS 133 (Ohio C.P. 1982).

The consumer credit protection act applies to proceedings in aid of execution (R.C. 1917.37 et seq. and 2333.01 et seq.) as well as to
attachment proceedings (R.C. 1901.33 et seq., and 2715.01 et seq.) in all Ohio courts: Hodgson v. Hamilton Municipal Court, 349 F.
Supp. 1125, 60 Ohio Op. 2d 309, 1972 U.S. Dist. LEXIS 12534 (S.D. Ohio 1972).
Revised Code § 2715.01 is not criminal in nature and therefore its existence does not frustrate 15 USC section 1674 (Consumer
Credit Protection Act): Hodgson v. Cleveland Municipal Court, 326 F. Supp. 419, 27 Ohio Misc. 121, 55 Ohio Op. 2d 142, 1971
U.S. Dist. LEXIS 14123 (N.D. Ohio 1971).
Contents of motion
A motion for prejudgment attachment must set out the nature and legal basis for the claim, facts that support at least one of the
grounds for attachment, and a description, the location, and approximate value of the property sought. If the plaintiff seeks
attachment prior to entry of judgment and against property in the possession of a person other than the debtor, then the further
requirements of a garnishment proceeding under R.C. 2715.09.1 must be followed as well: United States v. Howard, 787 F. Supp.
769, 1992 U.S. Dist. LEXIS 11949 (S.D. Ohio 1992).
A motion for prejudgment attachment must set out the nature and legal basis for the claim, facts that support at least one of the
grounds for attachment, and a description, the location, and approximate value of the property sought. If the plaintiff seeks
attachment prior to entry of judgment and against property in the possession of a person other then the debtor, then the further
requirements of a garnishment proceeding under R.C. 2715.091 must be followed as well: Nationwide Mut. Ins. Co. v. Whiteford
Systems, Inc., 787 F. Supp. 766, 1992 U.S. Dist. LEXIS 3680 (S.D. Ohio 1992).
Contracts

In this section, providing inter alia, that in a civil action for the recovery of money the property of a nonresident of Ohio shall not be
attached “for any claim other than a debt or demand, arising upon contract,” the word “contract,” liberally interpreted, embraces a
quasi-contractual obligation: Rice v. Wheeling Dollar Sav. & Trust Co., 155 Ohio St. 391, 44 Ohio Op. 374, 99 N.E.2d 301, 1951
Ohio LEXIS 584 (Ohio 1951).

Within the meaning of this section, a contract implied in law in Ohio is regarded as a contract: Northwestern Yeast Co. v. Broutin,
133 F.2d 628, 26 Ohio Op. 1, 1943 U.S. App. LEXIS 3868 (6th Cir. Ohio 1943).

A quasi-contract arising as the result of work or labor performed by a person in behalf of another, is a contract within the meaning of
this section, which provides that an attachment shall not be granted on the ground that defendant is a nonresident of the state, “for
any claim other than a debt or demand, arising upon contract. . .”: Shaffer v. Shaffer, 69 Ohio App. 447, 24 Ohio Op. 183, 42 N.E.2d
176, 35 Ohio Law Abs. 441, 1941 Ohio App. LEXIS 663 (Ohio Ct. App., Montgomery County 1941).

Debt criminally contracted

Because an affidavit submitted in relating to an attachment motion did not satisfy R.C. 2715.03, a trial court was not obligated to
conduct a hearing before denying a vendor’s motion seeking the attachment of a purchaser’s property under R.C. 2715.01(A)(10).
The purchaser did not request a hearing on the motion, an affidavit submitted did not contain facts to support a claim that the
purchaser fraudulently or criminally contracted a debt where it was based on a “belief” that the purchaser was in financial trouble,
and the trial court was unable to determine, based upon the affidavit presented, that there was probable cause to support the motion.
Ohio-Carrier Concrete Cutting, Inc. v. Carrier Concrete Cutting, LLC, 2009-Ohio-6783, 2009 Ohio App. LEXIS 5678 (Ohio Ct.
App., Franklin County 2009).

An attachment does not lie on the ground that indebtedness sued on was fraudulently contracted, where it appears that possession of
the money which is the subject of the attachment was acquired under the provisions of a contract and title thereto is claimed by the
holder under the terms of the said contract: Taylor v. Crow Motor Car Co., 25 Ohio Dec. 206, 16 Ohio N.P. (n.s.) 557, 1914 Ohio
Misc. LEXIS 30 (Ohio C.P. 1914).

Under par. 10 [now (A)(10)] of this section, liability is criminally incurred where damages are caused as a result of violation of a
criminal law of the state, and an action therefor is brought by the person injured: Montanari v. Haworth, 108 Ohio St. 8, 140 N.E.
319, 1 Ohio Law Abs. 436, 1923 Ohio LEXIS 247 (Ohio 1923).
Defenses
A judgment debtor has standing to assert non-ownership as a defense to proceedings to bind property in aid of execution under R.C.
2333.13, but not as a defense to attachment proceedings under R.C. 2715.01: Federal Deposit Ins. Corp. v. Wurstner, Inc., 50 Ohio
App. 2d 57, 4 Ohio Op. 3d 40, 361 N.E.2d 541, 1976 Ohio App. LEXIS 5844 (Ohio Ct. App., Cuyahoga County 1976).
Dismissal

Dismissal of an action automatically discharges a related prejudgment attachment: Wellborn v. K-Beck Furniture Mart, 54 Ohio
App. 2d 65, 8 Ohio Op. 3d 93, 375 N.E.2d 61, 1977 Ohio App. LEXIS 7040 (Ohio Ct. App., Franklin County 1977).

Due process

Statutes providing for prejudgment attachment must at a minimum: (1) require plaintiff to furnish an appropriate bond or other
security to compensate a defendant in the event of wrongful seizure; (2) require that an affidavit be filed alleging personal
knowledge of specific facts forming a basis for prejudgment seizure; (3) require that a judicial officer pass upon the sufficiency of
the facts alleged in the affidavit; (4) provide for dissolution of the seizure upon the posting of a bond by defendant; and (5) provide
an immediate right of hearing to the defendant in which plaintiff must prove that the seizure is warranted: Peebles v. Clement, 63
Ohio St. 2d 314, 17 Ohio Op. 3d 203, 408 N.E.2d 689, 1980 Ohio LEXIS 823 (Ohio 1980).

Fraudulent conveyance
Under division (G) of R.C. 2715.01 it is necessary to show that most of defendant’s property is about to be converted into cash in a
method other than the usual course of business, and a showing of an intention to move to another state is sufficient to show a
purpose of defendant to place funds beyond the reach of his creditors: Hennon v. Hennon, 21 Ohio Op. 2d 188, 186 N.E.2d 509,
1960 Ohio Misc. LEXIS 299 (Ohio C.P. 1960).
Funds in trust

Where parties have established an escrow account in connection with the sale of a home, funds held in such account are not subject
to a prejudgment attachment by creditors of the seller, where all of the terms of the escrow have not been performed: Central Natl.
Bank v. Broadview S & L, 64 Ohio App. 2d 133, 18 Ohio Op. 3d 101, 411 N.E.2d 840 (1979).

A provision in a trust instrument creating a spendthrift trust is valid as against persons to whom the spendthrift owes the duty of
support and the proceeds of such funds in the hands of the trustee are not subject to attachment: McWilliams v. McWilliams, 2 Ohio
Op. 2d 77, 140 N.E.2d 80, 74 Ohio Law Abs. 535, 1956 Ohio Misc. LEXIS 350 (Ohio C.P. 1956).

Property and money held by an executrix in her representative capacity cannot be reached by an attachment in an action against the
cestui que trust set up in the will, before an order of distribution in the estate has been made: Ritz v. May, 52 Ohio App. 399, 6 Ohio
Op. 405, 3 N.E.2d 816, 21 Ohio Law Abs. 257, 1936 Ohio App. LEXIS 453 (Ohio Ct. App., Hamilton County 1936).

History
For history of this section, see Crandall v. Irwin, 139 Ohio St. 463, 22 Ohio Op. 509, 40 N.E.2d 933, 1942 Ohio LEXIS 544 (Ohio
1942).

In rem

Attachment is a proceeding in rem against tangible property within the territorial jurisdiction of the court where the action is
brought: St. John v. Parsons, 54 Ohio App. 420, 8 Ohio Op. 169, 7 N.E.2d 1013, 23 Ohio Law Abs. 432, 1936 Ohio App. LEXIS
343 (Ohio Ct. App., Williams County 1936).

Irreparable injury.

Defendants’ claim that the trial court abused its discretion by finding the requisite irreparable injury in issuing the ex parte
attachment orders and garnishment orders was meritorious because the trial court failed to engaged in a sound reasoning process in
reaching its conclusion that the State would suffer irreparable injury if the attachment orders were delayed until defendants had been
given the opportunity for a hearing. State ex rel. Yost v. FirstEnergy Corp., 2022-Ohio-3400, 2022 Ohio App. LEXIS 3196 (Ohio
Ct. App., Franklin County 2022).

Jurisdiction

Where the doctor argued on appeal that the order had to be discharged because it attached property that was exempt or otherwise not
subject to attachment, he was obligated to raise that issue on appeal from the February 21, 2014 order of attachment; he failed to
timely appeal that order, and the appellate court was precluded from considering that issue at this time. Thompson v. Summit Pain
Specialists, Inc., 2016-Ohio-7030, 2016 Ohio App. LEXIS 3892 (Ohio Ct. App., Summit County), dismissed, 2016-Ohio-8289, 147
Ohio St. 3d 1464, 65 N.E.3d 769, 2016 Ohio LEXIS 3039 (Ohio 2016).

Neither R.C. 2101.24 nor R.C. 2109.50 to 2109.56 confer subject matter jurisdiction on probate courts to issue prejudgment
attachment orders relating to personal property. Wrongful death settlement proceeds are not estate assets: State ex rel. Goldberg v.
Mahoning County Probate Court, 2001-Ohio-1297, 93 Ohio St. 3d 160, 753 N.E.2d 192, 2001 Ohio LEXIS 2186 (Ohio 2001).

A state has power to exercise judicial jurisdiction to apply to the satisfaction of a claim an obligation owed to the person against
whom the claim is asserted if the obligor is subject to the judicial jurisdiction of the state, even though the state lacks jurisdiction
over the person against whom the claim is asserted (Restatement of the Law 2d, Conflict of Laws [1969], Section 68, applied.):
Antwerp Weatherhead Federal Credit Union v. Gonzales, 30 Ohio Misc. 2d 31, 507 N.E.2d 472, 1982 Ohio Misc. LEXIS 133 (Ohio
C.P. 1982).

Nonresidence

Where plaintiff in an action for money only filed an attachment before judgment on the basis that defendant was a nonresident and
that the claim arose out of contract, and defendant in his motion to discharge the attachment admitted the existence of the contract
but denied liability thereon and on hearing admitted his nonresidence, the court did not err in refusing to discharge the attachment,
the defendant having by his admissions admitted the grounds of the attachment, and the question of validity or enforceability of the
contract must be determined on the trial of the case on the merits: Joseph Laronge, Inc. v. Albrecht, 104 Ohio App. 467, 5 Ohio Op.
2d 161, 140 N.E.2d 808, 76 Ohio Law Abs. 354, 1957 Ohio App. LEXIS 942 (Ohio Ct. App., Cuyahoga County 1957).

Nonresidence constitutes no basis for dissolving an attachment; on the contrary, R.C. 2715.01 specifies nonresidence as one of the
grounds of attachment in cases where the debt arises upon contract: Lydle v. Scott, 157 F. Supp. 729, 6 Ohio Op. 2d 324, 82 Ohio
Law Abs. 357, 1957 U.S. Dist. LEXIS 2567 (D. Ohio 1957).

By this section an attachment on the ground of nonresidence may issue in an action to recover damages on account of personal
injuries resulting from negligence or wrongful act. Pope v. Hibernia Ins. Co., 24 OS 481, construing a prior statute limiting
attachment on ground of nonresidence to actions on contracts, judgments, and decrees, does not state the present Ohio law: Streeton
v. Roehm, 83 Ohio App. 148, 38 Ohio Op. 240, 81 N.E.2d 133, 51 Ohio Law Abs. 289, 1948 Ohio App. LEXIS 602 (Ohio Ct. App.,
Hamilton County 1948).

An attachment against the property of an individual, on the ground that such individual is a nonresident of the state, cannot properly
issue in an action in which such individual, not a party to the contract involved, is charged with having conspired to induce another
to breach such contract: John Canelli Co. v. Brewing Corp. of America, 67 Ohio App. 155, 21 Ohio Op. 155, 36 N.E.2d 45, 1941
Ohio App. LEXIS 821 (Ohio Ct. App., Lucas County 1941).

Jurisdiction of a nonresident defendant may be obtained by a court when such defendant has property within the jurisdiction of the
court against which attachment may issue and service may be had by publication: St. John v. Parsons, 54 Ohio App. 420, 8 Ohio Op.
169, 7 N.E.2d 1013, 23 Ohio Law Abs. 432, 1936 Ohio App. LEXIS 343 (Ohio Ct. App., Williams County 1936).
Where an attachment has been granted on the ground that the defendant is a nonresident of the state, upon a claim arising on a deed,
the claim is a demand arising on contract within this section, when liberally construed as required by GC § 10214 (R.C. 1.11):
Bridge v. Ring, 25 Ohio App. 149, 157 N.E. 496, 6 Ohio Law Abs. 11, 1926 Ohio App. LEXIS 374 (Ohio Ct. App., Lucas County
1926).
Nonresident creditor

Under this section a nonresident creditor may have an attachment on the ground of the nonresidence of his debtor, and may seize
through such an attachment not only the property of the debtor, but any money that may be due from the garnishee to the debtor:
Hammond v. MacKay, 29 Ohio Dec. 389, 21 Ohio N.P. (n.s.) 473, 1919 Ohio Misc. LEXIS 10 (Ohio C.P. 1919).

Personal earnings

Vacation pay constitutes personal earnings, subject to garnishment or attachment only by compliance with statutory wage
garnishment procedures: Riley v. Kessler, 2 Ohio Misc. 2d 4, 441 N.E.2d 638, 1982 Ohio Misc. LEXIS 108 (Ohio C.P. 1982).

Preliminary injunction
Court denied intervenor’s motions for an injunction to compel the tenant’s lender to pay any settlement funds to the court rather than
bank because Fed. R. Civ. P. 64 governed attachment and dictated that provisional remedies were available only under the
circumstances and in the manner provided by the law of the state in which the federal court was located; therefore, Ohio’s
prejudgment attachment statute, R.C. 2715.01 et seq., governed the remedies available to the intervenor. QSI-Fostoria DC, LLC v.
GE Capital Bus. Asset Funding Corp., 2005 U.S. Dist. LEXIS 521 (N.D. Ohio Jan. 14, 2005).
Removal or concealment of property

Trial court properly granted prejudgment attachment when plaintiff presented an affidavit stating that defendant and her late husband
had conspired to embezzle about $225,000 from it and that based on their conduct, it was reasonable to believe that defendant would
dispose of the money or make it otherwise unavailable. Cedar Creek Mall Props., L.L.C. v. Krone, 2017-Ohio-7884, 2017 Ohio
App. LEXIS 4247 (Ohio Ct. App., Cuyahoga County 2017).

Purchasers’ motion for prejudgment attachment or, in the alternative, to prevent a used car dealer from transferring or disposing of
business assets in connection with a class action alleging violations of the Truth In Lending Act, 15 U.S.C.S. 1601, the Ohio Retail
Installment Sales Act, R.C. 1317.01 et seq., and the Ohio Consumer Sales Practices Act, R.C. 1345.01 et seq., was denied because
the purchasers failed to attach an affidavit pursuant to R.C. 2715.03(C), (D) describing the property sought to be attached, its
location, and approximate value, or stating the use to which the dealer put the property, as required by R.C. 2715.03(E), and
alternatively, the court declined to order attachment because the purchasers failed to demonstrate any of the grounds under R.C.
2715.01 for an order of attachment. Hook v. Baker, 2004 U.S. Dist. LEXIS 26699 (S.D. Ohio Sept. 7, 2004).
It is not necessary to show an overt act to sustain an order of attachment made on an affidavit that defendant is about to remove or
conceal his property; proof of threats by debtor to dispose of his property so as to prevent the collection of the debt is sufficient to
show intent under R.C. 2715.01: Calabret v. Vivacqua, 145 N.E.2d 420, 76 Ohio Law Abs. 82, 1956 Ohio App. LEXIS 882 (Ohio
Ct. App., Mahoning County 1956).
If alleged concealment precedes indebtedness, it does not come within the statute, unless it be proved that it was merely a step in a
fraudulent scheme to defraud creditors (GC § 11819 [R.C. 2715.01] et seq): Morelli v. Thombs, 35 Ohio App. 233, 172 N.E. 381,
32 Ohio L. Rep. 82, 1930 Ohio App. LEXIS 499 (Ohio Ct. App., Cuyahoga County 1930).
Service of process

If plaintiff, defendant and garnishee are all citizens of another state, a debt due in such state cannot be garnisheed in Ohio, by serving
process on garnishee’s agent who was authorized to receive summons: Emerman v. Trimble-Mudge & Co., 11 Ohio App. 360, 1917
Ohio App. LEXIS 272 (Ohio Ct. App., Cuyahoga County 1917); AMERICAN SHEET & TIN PLATE CO. v. LEWIS, 26 Ohio Cir.
Dec. 438, 20 Ohio C.C. (n.s.) 443, 1911 Ohio Misc. LEXIS 393 (Ohio Cir. Ct. Feb. 1, 1911); OLCOTT v. GUERINCK, 10 Ohio
Cir. Dec. 131, 19 Ohio C.C. 32, 1899 Ohio Misc. LEXIS 308 (Ohio Cir. Ct. 1899), rev'd, Geurinck v. Alcott, 66 Ohio St. 94, 63
N.E. 714, 1902 Ohio LEXIS 179 (Ohio 1902); Goebel v. Kanawha Valley Bank, 4 Ohio Dec. 127, 3 Ohio N.P. 109, 1896 Ohio
Misc. LEXIS 8 (Ohio C.P. 1896); Barbour v. Boyce, 10 Ohio Dec. 428, 7 Ohio N.P. 504 (1900), [for former decisions in same case,
see 9 Ohio Dec. 332, 6 Ohio N.P. 425 (1900); 8 Ohio Dec. 548, 5 Ohio N.P. 273; Hammond v. MacKay, 29 Ohio Dec. 389, 21 Ohio
N.P. (n.s.) 473, 1919 Ohio Misc. LEXIS 10 (Ohio C.P. 1919).

Venue
When jurisdiction over the person and subject matter is properly perfected, venue, under CivR 3(B)(11)(a), may be maintained in a
county in which the defendant has property or debts owing to him subject to attachment, notwithstanding that all parties are not
residents of this state and that the cause of action did not arise in Ohio: Penrod v. Baltimore & O. R. Co., 64 Ohio App. 2d 216, 18
Ohio Op. 3d 164, 412 N.E.2d 949, 1979 Ohio App. LEXIS 8434 (Ohio Ct. App., Franklin County 1979).
Research References & Practice Aids
Cross-References to Related Sections
Attachment before debt due, RC § 2715.50.
Attachment proceedings in county courts, RC § 1907.33.
Exempt property, RC § 2329.66.
Foreign corporations, attachment against, RC § 1703.20.
Lien of attachment or execution upon registered land, RC § 5309.55.
Lien of foreign writ of attachment upon registered land, RC § 5309.56.
Motion and affidavit for order of attachment, RC § 2715.03.
Provisional remedies of surety, RC § 1341.21.
Remedies of creditor under Ohio uniform fraudulent transfer act, RC § 1336.07.
Ohio Rules

Seizure of person or property, CivR 64.

Comparative Legislation

Grounds for attachment:

28 USCS § 2710

CA—Cal Code Civ Proc § 483.010

FL—Fla. Stat. § 76.04 et seq
IL—735 Ill. Comp. Stat. § 5/4-101 et seq
IN—Burns Ind. Code Ann. § 34-25-2-1 et seq

KY—KRS §§ 425.301, 425.306

MI—MCLS § 600.4001
NY—NY CLS CPLR § 6201

PA—42 P.S. §§ 1722, 7501

Practice Manuals and Treatises

Anderson’s Ohio Civil Practice with Forms § 205.01 Grounds for Attachment When a Debt is Due

§ 205.18 Liability of a Creditor to a Debtor If the Creditor Fails to Obtain a

Final Judgment in Its Favor
In the event a creditor obtains a pre-judgment Order of Attachment but thereafter fails either to prosecute the action to final
judgment or prevail at trial on its underlying action, the creditor must return the property taken or pay the value so assessed, at the
election of the debtor. In addition, the debtor may recover damages he suffers as a result of the taking and detention of, and any
injury to, the property, as well as costs of the action.49 Accordingly, you should always take care, after you have obtained an Order
of Attachment, to reduce your client’s claim to a final judgment.
In addition, in some limited instances, a debtor may be able to make out a claim for malicious prosecution. Several Ohio courts have
held that an Order of Attachment issued on a false Affidavit will support a suit for malicious prosecution.50 The elements of such an
action are as follows:
 1.The institution of a civil action;
 2.The absence of probable cause;
 3.The deprivation of personal liberty or of the possession, use, or enjoyment of property;
 4.The termination of the proceeding in favor of the debtor; and
 5.Malice on the part of the attaching creditor.

Ohio Civil Practice with Forms

Copyright 2022, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Footnotes

 49
R.C. § 2715.044; Integrated Payment Systems, Inc. v. A & M 87th Inc., 2010-Ohio-5785, 2010 Ohio App. LEXIS 4863.
 50

Fortman v. Rottier, 8 Ohio St. 548 (1858); Newark Coal Co. v. Upson, 40 Ohio St. 17 (1883); Crawford v. Euclid Nat’l
Bank, 19 Ohio St. 3d 135 (1985); Hankin v. May Co., 103 N.E.2d 586, 61 Ohio Law Abs. 233 (1950).
 ORC Ann. 2705.01
Copy Citation

Current through File 132 of the 134th (2021-2022) General Assembly; acts signed as of as of
July 29, 2022.
Heading
 Page’s Ohio Revised Code Annotated
 Title 27: Courts — General Provisions — Special Remedies (Chs. 2701 — 2746)
 Chapter 2705: Contempt of Court (§§ 2705.01 — 2705.10)
 Direct (§ 2705.01)

§ 2705.01 Summary punishment for contempt.

A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so
near the court or judge as to obstruct the administration of justice.
History

RS § 5639; S&C 258; 32 v 17; GC § 12136; Bureau of Code Revision. Eff 10-1-53.
Annotations

Notes to Decisions
 Generally
 Absolution
 Abuse of discretion
 Appeal
 Attorneys
 Authority of bureau of support
 Avoiding jury duty
 Closing of courtroom
 Contemptuous conduct or language
 Debtor’s examination
 Defense
 —Impossibility
 Direct
 Divorce
 Due process
 Erroneous contempt finding
 Evidence generally
 Evidence insufficient
 Evidence sufficient
 Failure to appear
 False imprisonment
 False testimony
 Hearing
 Indirect criminal contempt
 Indirect, generally
  Individual/group
 Intent
 Jurisdiction
 LEADS/NCIC
 Magistrates
 Obstruction of the administration of justice
 Opportunity to purge finding
 Private right of action
 Prospective contempt
 Punishment
 Purge
 Quasi-criminal
 Standard of proof
 Violation of rules of court
 Witness
Generally
Where a judge’s remarks regarding a prior derogatory comment by the contemnor attorney did not reveal a
high degree of animosity, and the judge stated that he was confining his contempt finding to what had
occurred in court that day and explained that his only comment about those previous incidents was that the
attorney apologized before but continued to disrespect the court, the judge properly acted as a neutral and
detached fact-finder and his comments did not support a bias challenge as to the judge’s finding of criminal
contempt. State v. Hudson, 2011-Ohio-6424, 2011 Ohio App. LEXIS 5280 (Ohio Ct. App., Mahoning County
2011).
R.C. 2705.01 merely restates the inherent power of a court to summarily punish contemptuous acts committed
in the presence of the court. State v. Chavez-Juarez, 2009-Ohio-6130, 185 Ohio App. 3d 189, 923 N.E.2d 670,
2009 Ohio App. LEXIS 5149 (Ohio Ct. App., Clark County 2009).
An extensive study of the history of the law of contempt shows that such power is inherent in courts and
crucial to their proper functioning. Where a judge lacks personal knowledge of the alleged act of contempt or
there is an absence of an immediate threat to the administration of justice, any contempt is indirect and the
accused is entitled to due process protections: In re Caron, 110 Ohio Misc. 2d 58, 744 N.E.2d 787, 2000 Ohio
Misc. LEXIS 53 (Ohio C.P. 2000).
Where letters out of which contempt charges arose were not written in the presence of the court of common
pleas, the statute, providing that a court, or judge at chambers, summarily may punish a person guilty of
misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice, was
not applicable: Ex parte Berman, 86 Ohio App. 411, 42 Ohio Op. 13, 87 N.E.2d 716, 54 Ohio Law Abs. 327,
1949 Ohio App. LEXIS 702 (Ohio Ct. App., Cuyahoga County 1949).
A contempt of court committed in the presence of the court or so near thereto as to obstruct the administration
of justice is a direct contempt of court; the proceeding for punishing the offender is a summary one under this
section; and the contemptuous intent of the offender is not a necessary element of the offense: Univis Lens Co.
v. United Electrical, R. & M. W. of America, 86 Ohio App. 241, 41 Ohio Op. 158, 89 N.E.2d 658, 55 Ohio
Law Abs. 248, 1949 Ohio App. LEXIS 674 (Ohio Ct. App., Montgomery County 1949).
A direct contempt is one committed in the presence of or so near the court as to obstruct the due and orderly
administration of justice, and punishment therefor may be imposed summarily without the filing of charges or
the issuance of process: In re Lands, Lots of Parts of Lots, 146 Ohio St. 589, 33 Ohio Op. 80, 67 N.E.2d 433,
1946 Ohio LEXIS 356 (Ohio 1946).
Where the statutory law of the state prescribes the terms and conditions under which an order of the common
pleas court may become effective and further prescribes the punishment for a violation of such order, if
effective, neither GC § 12136 (R.C. 2705.01) et seq, pertaining to contempt, nor the inherent right of the court
to enforce its orders may be invoked: Ex parte Cattell, 146 Ohio St. 112, 32 Ohio Op. 43, 64 N.E.2d 416, 1945
Ohio LEXIS 369 (Ohio 1945).
A court has full and absolute authority and control over an order which it has theretofore made in contempt
proceedings and it has inherent power to modify such order or to absolve the party guilty of contempt of
further responsibility to such court: Juvenile Protective Ass'n v. Roebling, 26 Ohio Dec. 219, 18 Ohio N.P.
(n.s.) 385, 1916 Ohio Misc. LEXIS 2 (Ohio Cincinnati Super. Ct. 1916).
Absolution
The power to summarily punish for contempt carries with it the power to summarily absolve one accused of
contempt; under this section, absolution may come at any stage of the proceeding, before trial or after trial,
upon evidence, or solely upon the affidavits filed: State ex rel. Talaba v. Moreland, 132 Ohio St. 482, 8 Ohio
Op. 462, 9 N.E.2d 293, 1937 Ohio LEXIS 210 (Ohio 1937).
Abuse of discretion
Trial court abused its discretion in denying a landlord’s motion to find a tenant in contempt for failing to
appear for debtor’s examinations and show cause hearings because its conclusion that the tenant provided
medical documentation indicating he was unable to appear for a hearing since he was undergoing treatment
was not supported by the evidence; no documentation was offered by the tenant suggesting that he had
medical appointments. Tillimon v. Clifton, 2019-Ohio-4198, 2019 Ohio App. LEXIS 4275 (Ohio Ct. App.,
Lucas County 2019).
Trial court abused its discretion when it denied a landlord’s motion to find a tenant in contempt for failing to
appear for debtor’s examinations and show cause hearings because its conclusion that a contempt proceeding
was not a proper method to collect a civil judgment was contrary to law; a judgment creditor could examine a
judgment debtor, the court could compel the debtor to appear, failure to appear could result in contempt, and
punishment could include imprisonment. Tillimon v. Clifton, 2019-Ohio-4198, 2019 Ohio App. LEXIS 4275
(Ohio Ct. App., Lucas County 2019).
Trial court abused its discretion in denying a landlord’s motion to find a tenant in contempt for failing to
appear for debtor’s examinations and show cause hearings because its conclusion that the landlord had means
available to him other than a debtor’s examination was not a proper basis to deny the motion; until the
landlord was allowed an opportunity to discover the nature and existence of the tenant’s property, income, or
other means of satisfying the judgment, he was left without a remedy. Tillimon v. Clifton, 2019-Ohio-4198,
2019 Ohio App. LEXIS 4275 (Ohio Ct. App., Lucas County 2019).
Trial court abused its discretion by holding appellant in direct contempt of court, as the alleged contemptuous
act, a lie, occurred in an email appellant sent to opposing counsel, did not occur in the trial judge's presence,
and the judge was not personally aware of the alleged lie; moreover, the alleged lie did not directly involve the
court or directly interfere with the actions in the courtroom. Gulbrandsen v. Summit Acres, Inc., 2016-Ohio-
1550, 63 N.E.3d 566, 2016 Ohio App. LEXIS 1442 (Ohio Ct. App., Washington County 2016).
Although the trial court conditioned defendant's jail sentence and fine on whether he apologized, the purpose
of the sanction was not to coerce defendant to comply with a court order, but to punish defendant for prior
conduct, and thus, the contempt proceedings against defendant were criminal in nature; the trial court abused
its discretion in concluding, beyond a reasonable doubt, that defendant's conduct constituted misbehavior that
obstructed justice and required immediate punishment. State v. Adams, 2014-Ohio-2728, 14 N.E.3d 1071,
2014 Ohio App. LEXIS 2691 (Ohio Ct. App., Hamilton County 2014).
Trial court erred by finding defendant in direct contempt because defendant’s conduct was neither
disrespectful nor disruptive; the record did not reflect that defendant impugned the judge or the judicial
process, that he made a scene, or that he intended to delay the proceedings. Defendant should not have been
punished for his attorney’s untimely motion to withdraw. City of Oakwood Vill. v. Brown, 2008-Ohio-3151,
2008 Ohio App. LEXIS 2670 (Ohio Ct. App., Cuyahoga County 2008).
Appeal
The county commissioners could not collaterally attack the court’s appropriation request in an appeal from the
judgment of contempt: Anderson v. Kellog (In re Appropriation for Juvenile & Probate Div.), 62 Ohio St. 2d
99, 16 Ohio Op. 3d 104, 403 N.E.2d 974, 1980 Ohio LEXIS 697 (Ohio 1980).
Attorneys
Trial court did not abuse its discretion in finding defendant in direct contempt and imposing sanctions,
because he failed to follow direct and lawful orders of the court by failing to proceed to represent his client on
the first day of a criminal trial after several continuances. Proof of purposeful, willing or intentional violation
of a court order is not a prerequisite to contempt. State v. Mick, 2017-Ohio-8922, 2017 Ohio App. LEXIS
5364 (Ohio Ct. App., Erie County 2017), dismissed, 2018-Ohio-331, 151 Ohio St. 3d 1501, 90 N.E.3d 944,
2018 Ohio LEXIS 79 (Ohio 2018).
Trial court did not abuse its discretion in finding an attorney in direct contempt for disrupting the court twice
despite a warning to stop and in issuing a $250 fine. State v. Hudson, 2011-Ohio-6424, 2011 Ohio App.
LEXIS 5280 (Ohio Ct. App., Mahoning County 2011).
Where the trial court fined an attorney $250, but the attorney did not receive any jail time, the attorney’s
punishment was not the maximum sanction allowed for indirect contempt; thus, the $250 fine was a
reasonable punishment for the attorney’s direct contempt since it did not exceed the limit for indirect contempt
sanctions. State v. Hudson, 2011-Ohio-6424, 2011 Ohio App. LEXIS 5280 (Ohio Ct. App., Mahoning County
2011).
It was error for a municipal court judge to hold an attorney who had been appointed to represent a criminal
defendant in direct criminal contempt for refusing to proceed with the defendant’s trial because, inter alia, it
would have been unethical for the attorney to proceed to trial, as the attorney’s effective assistance and ethical
compliance were impossible as the attorney had insufficient time to investigate the matter, as required by Ohio
Code Prof. Resp. DR 6-101 and 7-101, Ohio R. Prof. Conduct 1.1, and U.S. Const. amend. VI. State v. Jones,
2008-Ohio-6994, 2008 Ohio App. LEXIS 5860 (Ohio Ct. App., Portage County 2008).
It was error for a municipal court judge to hold an attorney who had been appointed to represent a criminal
defendant in direct criminal contempt for refusing to proceed with the defendant’s trial because, inter alia, it
was an abuse of discretion to deny the attorney’s request for a continuance of the trial, as (1) the attorney
never sought and/or received other meaningful continuances, (2) any inconvenience to the judicial system was
minimal compared to the trial judge’s proposal to have the appellate court reverse the trial judge, (3) the
continuance was sought for legitimate reasons, and (4) the attorney did not create the need for the continuance.
State v. Jones, 2008-Ohio-6994, 2008 Ohio App. LEXIS 5860 (Ohio Ct. App., Portage County 2008).
Summary finding of criminal contempt against an attorney was appropriate, R.C. 2705.01, as the attorney’s
behavior was disruptive of the proceedings and immediate punishment was necessary to restore order. The
attorney’s arguments repeatedly challenged the court’s authority and effectively halted the proceedings. City
of Brooklyn v. Frank (In re Contempt of English), 2008-Ohio-3671, 2008 Ohio App. LEXIS 3104 (Ohio Ct.
App., Cuyahoga County 2008).
It was no abuse of discretion to find an attorney in direct criminal contempt and to summarily impose
punishment because the attorney’s refusal to answer the court’s question about representing both a client and
the client’s sister was unjustified, as were the attorney’s disrespectful comments to the court, as the attorney
showed no required deference, and the attorney’s refusal to answer the court’s question completely obstructed
the court’s ability to resolve the issue. Bank One Trust Co., N.A. v. Scherer, 2008-Ohio-2952, 176 Ohio App.
3d 694, 893 N.E.2d 542, 2008 Ohio App. LEXIS 2463 (Ohio Ct. App., Franklin County 2008).
Attorney’s being late for a hearing or not appearing at all is at most indirect contempt and cannot be
summarily punished as a direct contempt: State v. Landers (In re Contempt of Heffernan), 2008-Ohio-3685,
177 Ohio App. 3d 499, 895 N.E.2d 215, 2008 Ohio App. LEXIS 3095 (Ohio Ct. App., Cuyahoga County
2008).
Trial court did not abuse its discretion by finding an attorney in direct criminal contempt and imposing
punishment summarily where the attorney repeatedly interrupted the proceedings and was disrespectful to the
judge. However, the ten-day jail sentence was excessive: Bank One Trust Co., N.A. v. Scherer, 2008-Ohio-
2952, 176 Ohio App. 3d 694, 893 N.E.2d 542, 2008 Ohio App. LEXIS 2463 (Ohio Ct. App., Franklin County
2008).
Trial court abused its discretion when it arbitrarily and prematurely found a criminal attorney in contempt of
court for his failure to appear on time to represent a criminal client at a scheduled trial, as the statutory
requirements of R.C. 2705.03 were not met for the attorney’s alleged indirect contemptuous conduct pursuant
to R.C. 2705.01 and 2705.02(A). The trial court had failed to file a written charge with the clerk of court or
give the attorney an opportunity to be heard on the indirect contempt. State v. Cotton, 2007-Ohio-3572, 2007
Ohio App. LEXIS 3278 (Ohio Ct. App., Lucas County 2007).
Municipal court did not abuse its discretion by finding the attorney in direct criminal contempt, pursuant
to R.C. 1901.13(A)(1), because the attorney’s interruptions impeded the municipal court’s ability to
reschedule the jury trial and showed general disrespect to the municipal court. City of Warren v. Satterlee,
2006-Ohio-1460, 2006 Ohio App. LEXIS 1285 (Ohio Ct. App., Trumbull County 2006).
As a probate court expressly held counsel for trust beneficiaries in direct contempt of court, pursuant to R.C.
2705.01, for misrepresentations made in an application to compel payments from the trust to the beneficiaries,
there was no due process requirement under Ohio Const. art. I, § 16 that notice had to be provided to counsel
prior to imposition of a fine against each of them. Bank One Trust Co., N.A. v. Scherer, 2006-Ohio-5097,
2006 Ohio App. LEXIS 5017 (Ohio Ct. App., Franklin County 2006).
Not every direct contempt warrants a summary sanction. Attorney’s conduct did not present an actual or
imminent threat to the administration of justice. In re LoDico, 2005-Ohio-172, 2005 Ohio App. LEXIS 165
(Ohio Ct. App., Stark County 2005).
Where an attorney did not explicitly mention punishment during closing arguments and did not knowingly or
willfully defy the trial court’s instructions, the trial court abused its discretion in holding the attorney in
contempt for conduct that constituted an imminent threat to the administration of justice under R.C. 2705.01.
In re Contempt of Warner, 2004-Ohio-2389, 2004 Ohio App. LEXIS 2130 (Ohio Ct. App., Cuyahoga County
2004).
Summary finding of direct contempt by a probate judge against a guardianship attorney who failed to appear
in court after receiving a citation and show cause order was improper because if the attorney was in contempt,
his contempt was indirect under R.C. 2705.02 and he was entitled to the procedural safeguards found in R.C.
2705.03 et seq. In re Myers, 2003-Ohio-5308, 2003 Ohio App. LEXIS 4786 (Ohio Ct. App., Mahoning
County 2003).
Attorney’s conduct in protecting the interest of his client in an impromptu temporary protection order hearing,
which was held without notice to the attorney or his client, and without evidence in the record that the
prosecutor made an oral or written motion for the same, while improper, did not rise to the level of offending
conduct that constituted an imminent threat to the administration of justice. In re Gonzalez, 2003-Ohio-1960,
2003 Ohio App. LEXIS 1872 (Ohio Ct. App., Cuyahoga County 2003).
Because the attorney’s right of due process under U.S. Const. amend XIV, and Ohio const. art. I, § 16, was
violated when he was not given notice of the contempt charge brought pursuant to R.C. 2705.01, before the
probate court found him guilty and sentenced him for indirect criminal contempt, the judgment of the probate
court was reversed. In re Estate of Carrier, 2003-Ohio-6919, 2003 Ohio App. LEXIS 6216 (Ohio Ct. App.,
Hamilton County 2003).
An attorney’s failure to timely appear to hear the verdict constituted indirect contempt: State v. Belcastro, 139
Ohio App. 3d 498, 744 N.E.2d 271, 2000 Ohio App. LEXIS 4752 (Ohio Ct. App., Cuyahoga County 2000).
Where defense counsel places a court on notice that continued representation places counsel in an ethical
dilemma, and counsel raises issues of the client’s constitutional rights, the court must conduct a careful review
of the facts and circumstances before finding counsel to be in direct contempt for refusing to proceed: State v.
Williams, 123 Ohio App. 3d 233, 704 N.E.2d 12, 1997 Ohio App. LEXIS 4224 (Ohio Ct. App., Lucas County
1997).
Assistant prosecuting attorneys were not guilty of direct contempt where they obtained an audiotape of a
concluded proceeding and transcribed an excerpt from it because those actions did not obstruct the
administration of justice: In re Contempt of Lusnia, 121 Ohio App. 3d 184, 699 N.E.2d 531, 1997 Ohio App.
LEXIS 2207 (Ohio Ct. App., Cuyahoga County 1997).
Defense counsel should not have been found in contempt for objecting to portions of the victim impact
statement delivered by the victim’s mother: In re Contempt of Morris, 110 Ohio App. 3d 475, 674 N.E.2d 761,
1996 Ohio App. LEXIS 1475 (Ohio Ct. App., Cuyahoga County 1996).
The contempt finding was not an abuse of discretion where counsel persisted in violating the court’s orders
while questioning witnesses: Stevens v. Ravenna Aluminum Indus., 114 Ohio App. 3d 472, 683 N.E.2d 403,
1996 Ohio App. LEXIS 4237 (Ohio Ct. App., Portage County 1996).
The prosecutor should not have been fined for contempt for presenting “repetitious testimony” in violation of
the court’s order where he did not impugn the judge or the judicial process or intend to delay the proceeding:
State v. Schiewe, 110 Ohio App. 3d 170, 673 N.E.2d 941, 1996 Ohio App. LEXIS 1195 (Ohio Ct. App.,
Wood County 1996).
A trial court lacks jurisdiction to bar an attorney from practicing in any case in that court. An attorney is not in
contempt of such order merely by being present in a hallway near the court: Catholic Social Servs. v. Howard,
106 Ohio App. 3d 615, 666 N.E.2d 658, 1995 Ohio App. LEXIS 4364 (Ohio Ct. App., Cuyahoga County
1995).
An attorney could be found guilty of direct criminal contempt where he filed a memorandum accusing the
judge of engaging in a fraud: Federal Land Bank Ass'n v. Walton, 99 Ohio App. 3d 729, 651 N.E.2d 1048,
1995 Ohio App. LEXIS 3544 (Ohio Ct. App., Wyandot County 1995).
A judge should not find an attorney guilty of contempt where the attorney’s conduct was neither disrespectful
nor disruptive, and his intention was merely to protect his client’s interests by making objections on the
record: In re Contempt of Rossman, 82 Ohio App. 3d 730, 613 N.E.2d 241, 1992 Ohio App. LEXIS 4355
(Ohio Ct. App., Cuyahoga County), dismissed, 65 Ohio St. 3d 1476, 604 N.E.2d 167, 1992 Ohio LEXIS 3314
(Ohio 1992).
Where the opposing attorneys at a hearing before a referee become so disruptive that the hearing must be
terminated, they may both be sentenced for contempt. In imposing punishment for acts of direct contempt,
courts are not limited by legislation, but have the power to impose an appropriate penalty: Scherer v. Scherer,
72 Ohio App. 3d 211, 594 N.E.2d 150, 1991 Ohio App. LEXIS 433 (Ohio Ct. App., Logan County 1991).
To support a finding of direct, criminal contempt, the offending conduct must constitute an imminent threat to
the administration of justice. An attorney’s derogatory comments and effort to leave the courtroom may
support such a finding: Cleveland v. Heben, 74 Ohio App. 3d 568, 599 N.E.2d 766, 1991 Ohio App. LEXIS
2790 (Ohio Ct. App., Cuyahoga County 1991).
An attorney’s failure to appear for a pretrial conference as ordered is an indirect contempt: In re Purola, 73
Ohio App. 3d 306, 596 N.E.2d 1140, 1991 Ohio App. LEXIS 5333 (Ohio Ct. App., Auglaize County 1991),
dismissed, 63 Ohio St. 3d 1428, 588 N.E.2d 129, 1992 Ohio LEXIS 557 (Ohio 1992).
Ohio has generally treated an attorney’s absence from court as an indirect contempt. A summary proceeding is
not authorized simply because the conduct institutes direct contempt. Even if the external facts are clear
because they took place in the presence of the judge, the effect of the contumacious conduct must create a
“need for speed” to immediately suppress the court-disrupting misbehavior and restore order to the
proceedings. Absent that need, an evidentiary hearing is required even though the contempt is “direct”: In re
Davis, 77 Ohio App. 3d 257, 602 N.E.2d 270, 1991 Ohio App. LEXIS 4434 (Ohio Ct. App., Montgomery
County 1991), dismissed, 63 Ohio St. 3d 1408, 585 N.E.2d 833, 1992 Ohio LEXIS 416 (Ohio 1992).
Where an attorney commits numerous acts of contempt during a trial, the court is under no obligation to allow
the attorney a chance to defend his conduct by arguing the merits of the contempt finding at the sentencing
hearing: In re Gonzalez, 70 Ohio App. 3d 752, 591 N.E.2d 1371, 1990 Ohio App. LEXIS 5483 (Ohio Ct.
App., Cuyahoga County 1990).
Where a trial court denies a continuance in a criminal trial and, as a consequence, defense counsel refuses to
participate in the trial for fear that the defendant would receive ineffective assistance of counsel and that
counsel would be in violation of DR 6-101(A)(2) and 7-101(A)(3), the court may commit error under the
circumstances of the particular case in finding defense counsel in contempt and in imposing a fine: In re
Sherlock, 37 Ohio App. 3d 204, 525 N.E.2d 512, 1987 Ohio App. LEXIS 10607 (Ohio Ct. App., Montgomery
County 1987).
An assistant county prosecutor was properly found in direct contempt of court for (1) intruding into defense
counsel’s private conversation with his witness inside a conference room adjacent to the courtroom, (2)
accusing defense counsel of having the witness arrested, thereby attempting to create hostility in the witness
against defense counsel, (3) interfering with the defendant’s right to subpoena witnesses, and (4) intimidating
defense counsel so as to interfere with the defendant’s right to effective assistance of counsel: In re McGinty,
30 Ohio App. 3d 219, 507 N.E.2d 441, 1986 Ohio App. LEXIS 10073 (Ohio Ct. App., Cuyahoga County
1986).
Prosecutor’s in-court refusal to produce the requested photograph constituted direct contempt: State v.
Sandlin, 11 Ohio App. 3d 84, 463 N.E.2d 85, 1983 Ohio App. LEXIS 11248 (Ohio Ct. App., Wood County
1983).
Where a court summarily appoints counsel to represent an indigent defendant, knowing the defendant is
already represented by competent counsel and the appointed attorney is unprepared to offer effective
representation, his ruling holding such attorney in contempt of court for refusing such representation is
contrary to law: State v. Gasen, 48 Ohio App. 2d 191, 2 Ohio Op. 3d 156, 356 N.E.2d 505, 1976 Ohio App.
LEXIS 5788 (Ohio Ct. App., Hamilton County 1976).
Where an attorney unnecessarily repeated objections, requests for examination of papers and for maintenance
of the record and constantly disregarded the court’s order to sit down, such conduct amounted to disrespect for
the court, disruption of quiet and order and actual interruption of the court in the conduct of its business and
constituted contemptuous conduct: State v. Wilson, 30 Ohio St. 2d 312, 59 Ohio Op. 2d 379, 285 N.E.2d 38,
1972 Ohio LEXIS 428 (Ohio), cert. denied, 409 U.S. 1047, 93 S. Ct. 522, 34 L. Ed. 2d 499, 1972 U.S. LEXIS
496 (U.S. 1972).
Where an attorney, who is administrator of an estate, enters into a contract with a claimant against such estate
for a percentage of the proceeds which such claimant may receive from the estate, makes no disclosure of such
arrangement to the probate court in whose jurisdiction such estate is being administered, and such court
proceeds to confirm the final account of such administrator, which it probably would not have done had it
known of the arrangement, such administrator thereby perpetrates a fraud upon the court, for which the order
confirming the final account may be vacated and which may constitute a direct contempt upon the court
punishable under R.C. 2705.01: In re Estate of Wright, 165 Ohio St. 15, 59 Ohio Op. 37, 133 N.E.2d 350,
1956 Ohio LEXIS 442 (Ohio 1956).
The filing by an attorney of papers, required in a judicial proceeding, with a clerk of courts, which contain
affidavits bearing the signature of a fictitious person and acknowledged by such attorney as notary public with
full knowledge of the fact that such person does not exist, constitutes misconduct in the presence of the court
and, as such, is punishable by summary action as a contempt: Fidelity Finance Co. v. Harris, 102 Ohio App.
497, 3 Ohio Op. 2d 45, 126 N.E.2d 812, 71 Ohio Law Abs. 309, 1955 Ohio App. LEXIS 523 (Ohio Ct. App.,
Cuyahoga County 1955).
When an attorney disregards the orders of the court, he is in contempt: State ex rel. Shroder v. Shay, 16 Ohio
Dec. 446, 3 Ohio N.P. (n.s.) 657, 1906 Ohio Misc. LEXIS 20 (Ohio C.P. 1906).
Authority of bureau of support
A bureau of support has no authority to institute contempt proceedings: Courtney v. Courtney, 16 Ohio App.
3d 329, 475 N.E.2d 1284, 1984 Ohio App. LEXIS 12391 (Ohio Ct. App., Hancock County 1984).
Avoiding jury duty
Trial court erred in conducting a direct-contempt hearing, regarding defendant’s untruthful statements to avoid
jury duty, and, thus, it failed to advise defendant of pertinent constitutional protections. There was no
indication that the civil litigation for which defendant had been called as a potential juror was unable to
proceed, and defendant’s second appearance before the trial court apparently resulted from information given
by an anonymous third party about her statements elsewhere, rather than because the trial court had heard
defendant’s later comments about her voir dire and questionnaire responses firsthand. In re Thomas, 2004-
Ohio-373, 2004 Ohio App. LEXIS 336 (Ohio Ct. App., Hamilton County 2004).
Closing of courtroom
An order of the court “that no photographs were to be taken in the courtroom while court was in session * * *
” was not violated where the unrefuted and uncontradicted evidence shows that the act charged as a violation
was the taking of pictures outside the courtroom through the glass of a closed door: In re Contempt of
Greenfield, 163 N.E.2d 910, 82 Ohio Law Abs. 120, 1959 Ohio App. LEXIS 963 (Ohio Ct. App., Wayne
County 1959).
Contemptuous conduct or language
Trial court’s consideration of defendant’s outburst in modifying his sentence was an impermissible
consideration outside of the statutory sentencing factors. Defendant’s conduct, while entirely inappropriate,
was punishable as contempt of court, but not an increase in his underlying sentence and thus, the trial court
erred in modifying his sentence due to his outburst. State v. Basile, 2022-Ohio-3372, 2022 Ohio App. LEXIS
3167 (Ohio Ct. App., Lake County 2022).
In defendant’s convictions for three counts of direct criminal contempt in the county municipal court, the court
affirmed that defendant’s offenses were committed separately or with a separate animus as to each
contemptuous action because defendant was found in contempt by the court for harassing the court’s bailiff
and disrupting the court’s docket, directing racial epithets toward court personnel, and finally racial epithets to
the judge. State v. Margiotti, 2021-Ohio-1826, 2021 Ohio App. LEXIS 1772 (Ohio Ct. App., Franklin County
2021).
Trial court did not abuse its discretion in finding an attorney in direct contempt in violation of R.C. 2705.01,
because she appeared at court without having filed a notice of appearance, she had no business card
identifying herself as an attorney, and she immediately became argumentative with the judge and disruptive in
court; therefore, the attorney could be summarily punished pursuant to R.C. 2705.01 and the trial court was
not required to follow the procedure outlined in R.C. 2705.03. Parma v. Novak (In re Huth), 2020-Ohio-3177,
2020 Ohio App. LEXIS 2116 (Ohio Ct. App., Cuyahoga County 2020).
Judgment holding defendant in contempt of court was affirmed on appeal, where defendant shouted
profanities to the judge and was uncooperative. There was sufficient evidence that defendant was disruptive to
the arraignment process and defendant’s outburst and failure to cooperate with the jailer occurred during
another’s proceedings, thereby obstructing the administration of justice. State v. McDew, 2011-Ohio-1196,
2011 Ohio App. LEXIS 1028 (Ohio Ct. App., Stark County 2011).
Trial court did not abuse its discretion by finding the attorney in direct criminal contempt because the attorney,
in front of half of the jurors, made a statement that they erred in finding the defendant guilty and that he had
the evidence to prove that they convicted the wrong man. It called the whole jury trial process into question
and was highly unprofessional. In re Contempt of Kafantaris, 2009-Ohio-4814, 2009 Ohio App. LEXIS 4063
(Ohio Ct. App., Columbiana County 2009).
Contempt finding against a father who failed to abide by a prior court order regarding the mother’s telephone
access to the parties’ children during the father’s summer visitation time with them was one of indirect civil
contempt, as the actions by the father occurred outside the presence of the court and the purpose of imposing a
sentence with a purge condition was clearly coercive. Segovia v. Likens, 2008-Ohio-5896, 179 Ohio App. 3d
256, 901 N.E.2d 310, 2008 Ohio App. LEXIS 4947 (Ohio Ct. App., Franklin County 2008).
Municipal court did not abuse its discretion by finding the attorney in direct criminal contempt, pursuant
to R.C. 1901.13(A)(1), because the attorney’s interruptions impeded the municipal court’s ability to
reschedule the jury trial and showed general disrespect to the municipal court. City of Warren v. Satterlee,
2006-Ohio-1460, 2006 Ohio App. LEXIS 1285 (Ohio Ct. App., Trumbull County 2006).
A defendant was lawfully found to be in direct contempt where his outburst after his arraignment temporarily
disrupted the following court proceeding: State v. Perkins, 2003-Ohio-5092, 154 Ohio App. 3d 631, 798
N.E.2d 646, 2003 Ohio App. LEXIS 4605 (Ohio Ct. App., Montgomery County 2003).
Insertion of vulgar words on a check used to pay court costs did not rise to the level necessary to immediately
imperil the wheels of justice and did not pose imminent threat to the court’s functioning; defendant’s criminal
contempt conviction was reversed. State v. Nelson, 2003-Ohio-3922, 2003 Ohio App. LEXIS 3499 (Ohio Ct.
App., Lorain County 2003).
The finding of direct, criminal contempt was not an abuse of discretion where the defendant discharged his
appointed counsel on the day of trial and made numerous misstatements in the course of representing himself,
despite warnings, that necessitated a mistrial: State v. Kitchen, 128 Ohio App. 3d 335, 714 N.E.2d 976, 1998
Ohio App. LEXIS 2582 (Ohio Ct. App., Champaign County 1998).
A person is not guilty of direct contempt and subject to summary punishment by creating a disturbance at a
judge’s residence, despite an order to stay away from the judge: In re Parker, 105 Ohio App. 3d 31, 663
N.E.2d 671, 1995 Ohio App. LEXIS 2865 (Ohio Ct. App., Scioto County 1995).
Defendant’s profanity directed at the judge after his sentencing could not be punished as a direct contempt
because his comments did not pose an imminent threat to the administration of justice and did not in any way
disrupt the court proceedings: State v. Drake, 73 Ohio App. 3d 640, 598 N.E.2d 115, 1991 Ohio App. LEXIS
2773 (Ohio Ct. App., Cuyahoga County), dismissed, 62 Ohio St. 3d 1445, 579 N.E.2d 490, 1991 Ohio LEXIS
2526 (Ohio 1991).
Defendant’s submitting a check to the clerk of court with the notation “fucked up blood test” did not amount
to contempt: Hillsboro v. Cole, 66 Ohio App. 3d 233, 583 N.E.2d 1100, 1990 Ohio App. LEXIS 1096 (Ohio
Ct. App., Highland County 1990).
Striking someone who is in a courtroom on court business, the act occurring in the presence of the court’s
bailiff, marshal, constable or court reporter, is a direct contempt in the constructive presence of the court and
may be punished as such: State ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St. 3d 120, 449 N.E.2d 445,
1983 Ohio LEXIS 721 (Ohio 1983).
Displays of ill-mannered conduct are not summarily punishable under the law of direct contempt unless they
pose an imminent threat to the administration of justice: State v. Conliff, 61 Ohio App. 2d 185, 15 Ohio Op.
3d 309, 401 N.E.2d 469, 1978 Ohio App. LEXIS 7673 (Ohio Ct. App., Franklin County 1978).
If one who has been indicted by the grand jury publishes a statement that the indictment is political and is
rendered by a judge of the opposite party from himself, who drew the grand jury from his inside pocket
instead of from the jury wheel, such statement is contempt of court: In re Cox, 11 Ohio N.P. 193, 56 Week. L.
Bull. 125 (1911).
Debtor’s examination
Appellant was in direct, criminal contempt of court where he lied about his assets while under oath at a
debtor’s examination: State v. Kunkle, 2008-Ohio-6393, 179 Ohio App. 3d 747, 903 N.E.2d 693, 2008 Ohio
App. LEXIS 5338 (Ohio Ct. App., Fulton County 2008).
Defense
—Impossibility
Because the husband failed to establish his affirmative defense of impossibility, the trial court did not abuse its
discretion in finding him in contempt for failure to pay his court ordered spousal support. His business’s gross
income had actually increased since the divorce and the trial court acknowledged that the husband enjoyed the
financial support of his wife, which eliminated all household expenses he would have to pay. Cox v. Cox,
2015-Ohio-1660, 2015 Ohio App. LEXIS 1594 (Ohio Ct. App., Franklin County 2015).
Direct
There was nothing in the record to suggest that defendant’s conduct in the courtroom constituted
contemptuous action to invoke the trial judge’s exercise of his authority, and the record indicated that the trial
judge apparently concurred with that conclusion given that he failed to detail any specific facts or findings,
either on the record or in his judgment entry finding defendant in contempt, of any contemptuous conduct
punishable. State v. Orta, 2020-Ohio-4514, 2020 Ohio App. LEXIS 3378 (Ohio Ct. App., Seneca County
2020).
Although defendant’s conduct in bringing a newspaper article about the case to the jury room could be
classified as direct contempt, the incident only occurred in the constructive presence of the court, summary
proceedings were not appropriate, and the trial court violated his due process rights by not affording him
notice, the right to counsel, and the opportunity to be heard. State v. T.F., 2019-Ohio-1039, 2019 Ohio App.
LEXIS 1098 (Ohio Ct. App., Lorain County 2019).
Trial court abused its discretion and erred finding appellant guilty of direct, criminal contempt and punishing
him summarily for violating the trial court’s dress code because there was no proof in the record which
affirmatively showed that appellant’s manner of dress obstructed the administration of justice and required an
immediate sanction to preserve the authority of the court. State v. Smith, 2019-Ohio-4087, 2019 Ohio App.
LEXIS 4200 (Ohio Ct. App., Mahoning County 2019).
The contempt was direct because defendant’s contumacious conduct occurred either in telephone
conversations with the judge or in court. Thus, the conduct that formed the basis of the contempt order,
defendant’s own persistent refusal to answer relevant inquiries, was within the judge’s personal knowledge.
City of Columbus v. Cicero, 2013-Ohio-3010, 2013 Ohio App. LEXIS 3055 (Ohio Ct. App., Franklin County
2013).
Because a statutory agent for the defendant in a breach of contract case appeared at a hearing without the
information the trial court had ordered her to provide, her conduct constituted direct contempt under R.C.
2705.01, and the trial court was not required to provide a hearing and a written charge before holding her in
contempt. Ameritech Publ'g, Inc. v. Mayo Bail Bonds & Sur., Inc., 2013-Ohio-831, 2013 Ohio App. LEXIS
736 (Ohio Ct. App., Erie County 2013).
Trial court erred by finding the friend in direct criminal contempt of court because, although there was no
doubt that the friend repeatedly refused to offer his cell phone into evidence with the SIM card, his refusal to
do so did not create an open threat to the orderly procedure of the court such that, if not instantly suppressed
and punished, demoralization of the trial court’s authority would have followed. The trial court had the option
of simply denying the friend’s request to admit his cell phone into evidence, which the trial court ultimately
did. Preston v. Shutway, 2013-Ohio-185, 986 N.E.2d 584, 2013 Ohio App. LEXIS 136 (Ohio Ct. App.,
Champaign County 2013).
When a trial court found a debtor in contempt for making “fraudulent representations” to the court regarding
having deposited funds with the court with which to pay a judgment, while it appeared that the debtor was
being found in direct, criminal, contempt, under R.C. 2705.01, the debtor was actually found in civil contempt,
under R.C. 2705.02, because (1) a purge condition imposed when the debtor was previously found in contempt
based on the same motion implied the sanction was imposed for civil contempt, (2) the amount of the sanction
was precisely the amount of a civil judgment previously entered against the debtor, and (3) the court stated
that the purpose of the contempt hearing was to rehear a previously filed contempt motion seeking punishment
as a result of the debtor’s failure to pay a judgment, which made no allegation regarding the debtor making a
false representation to the court. McCall v. Cunard, 2008-Ohio-378, 2008 Ohio App. LEXIS 345 (Ohio Ct.
App., Sandusky County 2008).
Although the Ohio Court of Claims had jurisdiction to hold an incarceree in direct contempt for his failure to
testify in an inmate’s negligence and breach of contract action against the Ohio Department of Rehabilitation
and Correction, pursuant to R.C. 2705.01 and 2705.02, there was no abuse of discretion in the court’s failure
to do so, as the incarceree’s attack on the inmate, which was the incident upon which the lawsuit was based,
resulted in additional incarceration and it would have been ineffectual to impose a 90-day term of
imprisonment upon the incarceree for contempt under R.C. 2705.05(A)(3) when he was already serving a 50-
year term. Ford v. Ohio Dep't of Rehab. & Corr., 2006-Ohio-2531, 2006 Ohio App. LEXIS 2385 (Ohio Ct.
App., Franklin County 2006).
Divorce
Trial court did not abuse its discretion by finding a husband violated the trial court's order as to a certain card
and then holding the husband in civil contempt because the husband intentionally manipulated the credit card
balance, resulting in multiple instances in which $ 500 was not available for the wife's use that impeded the
wife's use of the card as contemplated by the trial court's order. McCall v. Kranz, 2016-Ohio-214, 2016 Ohio
App. LEXIS 182 (Ohio Ct. App., Franklin County 2016).
Trial court did not abuse its discretion in finding a husband in civil contempt or ordering him to pay the wife's
fees because the husband acknowledged the validity of the court order requiring the parties to equally divide
stock in four companies, surreptitiously sold and repurchased the stock, and did not answer the wife's requests
for an explanation regarding the stock; as a result of the husband's lack of communication, the wife had to
issue several subpoenas and paid attorney fees. Donlon v. Lineback, 2016-Ohio-7739, 73 N.E.3d 1096, 2016
Ohio App. LEXIS 4608 (Ohio Ct. App., Warren County 2016).
Due process
Counsel’s right to due process was violated at counsel’s contempt hearing because a transcript of a prior
hearing was read into the record, rather than calling or attempting to call the witnesses who testified at the
prior hearing, so counsel’s right to counsel was not observed because counsel had no notice that testimony at
the prior hearing, at which counsel was not represented, would subsequently be used against counsel at
counsel’s contempt hearing. Sweeney v. Hood, 2008-Ohio-2187, 2008 Ohio App. LEXIS 1874 (Ohio Ct.
App., Cuyahoga County 2008).
Counsel’s right to due process was violated at counsel’s contempt hearing because a transcript of a prior
hearing was read into the record, rather than calling or attempting to call the witnesses who testified at the
prior hearing, so counsel’s right to confront those witnesses was not observed. Sweeney v. Hood, 2008-Ohio-
2187, 2008 Ohio App. LEXIS 1874 (Ohio Ct. App., Cuyahoga County 2008).
As a husband in a divorce action was properly apprised of the charges against him with respect to his wife’s
motions to hold him in contempt for failure to comply with a magistrate’s temporary orders, requiring that the
husband pay various marital bills, and a hearing was held, wherein the husband had an opportunity to prepare
a defense and to be heard in opposition to the contempt, his due process rights were not violated pursuant
to R.C. 2705.01 and 2705.03. Goe v. Goe, 2007-Ohio-6767, 2007 Ohio App. LEXIS 5937 (Ohio Ct. App.,
Stark County 2007).
As a probate court expressly held counsel for trust beneficiaries in direct contempt of court, pursuant to R.C.
2705.01, for misrepresentations made in an application to compel payments from the trust to the beneficiaries,
there was no due process requirement under Ohio Const. art. I, § 16 that notice had to be provided to counsel
prior to imposition of a fine against each of them. Bank One Trust Co., N.A. v. Scherer, 2006-Ohio-5097,
2006 Ohio App. LEXIS 5017 (Ohio Ct. App., Franklin County 2006).
Customer was deprived of due process by having been convicted of direct criminal contempt, under R.C.
2705.01, on the unsworn statements of defense counsel in a summary proceeding conducted without prior
notice and an opportunity to present a defense. The customer’s claim in open court that he did not know the
witness to his slip and fall incident was not so obviously false as to require immediate punishment; did not
constitute an imminent threat to the administration of justice; and occurred outside the trial court’s presence,
in deposition testimony and affidavits. Gregg v. McDonald's Rest., 2005-Ohio-4996, 2005 Ohio App. LEXIS
4509 (Ohio Ct. App., Cuyahoga County 2005).
Where a judge, angered at being called a “nitwit” by the defendant on a radio call-in show, summons the
defendant before him on a contempt charge that clearly has no proper basis, in the hope that the defendant
would do or say something during the hearing that would expose him to punishment for direct contempt, and
rejects the defendant’s invocation of his privilege against self-incrimination, the proceedings are so
fundamentally unfair as to violate the defendant’s right to due process of law: Springfield v. Myers, 43 Ohio
App. 3d 21, 538 N.E.2d 1091, 1988 Ohio App. LEXIS 2121 (Ohio Ct. App., Clark County 1988).
A court has inherent power to act summarily to punish for acts of direct contempt; however, direct contempts
which may be punished by summary proceedings must be segregated between those in which the judge may
act upon his personal knowledge of the facts and those which require taking the testimony of others to
establish the necessary elements of proof. In this latter type case, criminal due process must be observed: In re
Neff, 20 Ohio App. 2d 213, 49 Ohio Op. 2d 312, 254 N.E.2d 25, 1969 Ohio App. LEXIS 528 (Ohio Ct. App.,
Stark County 1969).
Erroneous contempt finding
Defendant’s conviction for contempt was improper because defendant did not post bond and remained in jail;
in other words, the no-contact order, a bond condition in the domestic violence case, had no legal effect while
defendant remained in custody, and he could not have violated a court order that was intended to regulate his
conduct when released on bond. City of Cleveland v. Dixon, 2020-Ohio-2728, 2020 Ohio App. LEXIS 1675
(Ohio Ct. App., Cuyahoga County 2020).
Trial court abused its discretion by finding a husband in civil contempt with respect to a $ 4,000 spousal
support arrearage because in the absence of a requirement that the husband immediately pay the $ 4,000
obligation, and considering the arrearage was created due to the retroactive nature of the temporary order and
not the husband's failure to pay a monthly support obligation, the husband acted reasonably in paying $ 200
per month until the $ 4,000 was paid in full. McCall v. Kranz, 2016-Ohio-214, 2016 Ohio App. LEXIS 182
(Ohio Ct. App., Franklin County 2016).
Trial court abused its discretion by finding a husband in civil contempt with respect to the husband opening
and using a personal line of credit because the trial court's temporary restraining order did not prohibit the
husband from obtaining or using an unsecured personal line of credit, and the husband's personal line of credit
did not encumber any of the parties' assets, property or any part thereof. McCall v. Kranz, 2016-Ohio-214,
2016 Ohio App. LEXIS 182 (Ohio Ct. App., Franklin County 2016).
Trial judge had not heard the offending comment by the defendant and relied on information provided by the
bailiff to make the finding of contempt, and thus, at most, defendant’s conduct could have been classified as
indirect contempt, for which she was entitled to constitutional safeguards afforded criminal defendant. As the
defendant was not afforded such safeguards, a remand was required. State v. Stegall, 2012-Ohio-3792, 2012
Ohio App. LEXIS 3414 (Ohio Ct. App., Hamilton County 2012).
Since the trial court itself recognized that the girlfriend (of the husband in the divorce proceeding) knew
nothing about the types of records requested in the subpoena, the record failed to support a finding of direct
contempt. It was clear that the girlfriend did not understand exactly what was requested and had not
intentionally or willfully failed to comply with the subpoena; rather, she relied on her “bookkeeper” father, as
any other company owner might, to supply the requested documents. Newcomer v. Newcomer, 2011-Ohio-
6500, 2011 Ohio App. LEXIS 5358 (Ohio Ct. App., Lucas County 2011).
Trial court erred in finding the girlfriend in contempt for texting during a court recess because her actions did
not constitute proof beyond a reasonable doubt of criminal direct contempt; the judge himself did not witness
the action, it did not interrupt or disrupt the proceedings, and there was no proof that it threatened the
administration of justice. Newcomer v. Newcomer, 2011-Ohio-6500, 2011 Ohio App. LEXIS 5358 (Ohio Ct.
App., Lucas County 2011).
Evidence generally
While a judge’s journal entry did not go into great detail regarding two incidents which were the basis for a
contempt finding, the trial court’s journal entry contained a complete statement of facts where it specified that
the attorney disrupted proceedings twice, even after the trial court admonished him after the first incident.
State v. Hudson, 2011-Ohio-6424, 2011 Ohio App. LEXIS 5280 (Ohio Ct. App., Mahoning County 2011).
In a proceeding in contempt under R.C. 2705.01, the admission of affidavits as to certain occurrences did not
constitute prejudicial error where their probative value was cumulative and related principally to fact matters
not sharply in dispute: North American Aviation, Inc. v. United Auto., Aircraft & Agricultural Implement
Workers, 124 N.E.2d 822, 69 Ohio Law Abs. 242, 1954 Ohio App. LEXIS 861 (Ohio Ct. App., Franklin
County 1954).
Evidence insufficient
Grounds upon which the trial court based its finding that the husband was in direct contempt were insufficient
to support such a conclusion where not all of the essential elements of misconduct specified by the court for
finding the husband in direct contempt of court transpired in open court and not all of the misconduct was
actually observed by the court; the acts cited by the trial court were not directly contemptuous and were not
punishable under the law of direct contempt, and the trial court abused its discretion in finding the husband in
direct, criminal contempt of court. FitzGerald v. FitzGerald, 2020-Ohio-5442, 2020 Ohio App. LEXIS 4319
(Ohio Ct. App., Wood County 2020).
Trial court’s contempt finding was not support by record, which showed defendant was convicted and
punished for direct criminal contempt after she appeared in court in impaired condition, but was then ordered
to immediately undergo a drug test sua sponte, which she apparently failed and the results of which were not
included in the record. State v. Stafford, 2013-Ohio-4356, 2013 Ohio App. LEXIS 4594 (Ohio Ct. App.,
Columbiana County 2013).
Former husband was not in civil contempt for failing to comply with directives in a divorce decree. Clear and
convincing evidence showed that the former husband was maintaining life insurance in an amount sufficient
under the decree and that due to a work injury that left the former husband out of work and receiving workers’
compensation, he no longer had access to health insurance for his children “at a reasonable cost.” Rock v.
Rock, 2013-Ohio-390, 2013 Ohio App. LEXIS 331 (Ohio Ct. App., Montgomery County 2013).
Evidence sufficient
Defendant’s actions constituted direct, criminal contempt of court based on his repugnant statements in open
court, during court proceedings, and in the presence of the trial judge despite being previously warned not to
make threats. State v. Lowe, 2018-Ohio-3916, 2018 Ohio App. LEXIS 4298 (Ohio Ct. App., Hamilton County
2018).
Probate court did not abuse its discretion in finding a father in contempt of court because there was sufficient
evidence upon which a reasonable trier of fact could conclude his acts were intentional and that they impeded
the effective administration of justice; it would intuitively seem that forging a signature on a document
required to be filed in a guardianship action and then submitting it for filing with a court constitutes
misconduct. In re Polete, 2018-Ohio-5275, 2018 Ohio App. LEXIS 5570 (Ohio Ct. App., Montgomery County
2018).
There was sufficient evidence in the record to support a finding of contempt because a father did not inform a
clerk for the probate court that he had signed his attorney’s name or that he had permission to do so, and a
review of the signature on the guardian application supported a finding that the father tried to mimic his
attorney’s signature from the other application. In re Polete, 2018-Ohio-5275, 2018 Ohio App. LEXIS 5570
(Ohio Ct. App., Montgomery County 2018).
Because the conduct of the commercial tenant at the trial court hearing constituted direct contempt of court,
the requirements for indirect contempt were inapplicable. The contempt finding by the trial court against the
tenant was not arbitrary, unreasonable, or unconscionable because his ongoing refusal to abide by the trial
court's escrow order, directly conveyed to the trial court at the trial court hearing, constituted direct contempt
of court. E.G. Licata, LLC v. E.G.L., Inc., 2017-Ohio-5840, 2017 Ohio App. LEXIS 2912 (Ohio Ct. App.,
Lucas County 2017).
Transcript of defendant’s appearance in court supported the trial court’s reasons for holding defendant in
contempt as it was clear from the outset that his presence in the courtroom was an unscheduled disruption to
the court’s schedule; defendant did not explain his behavior or otherwise suggest any legal reason why the
trial court’s action in this instance was improper. State v. Brown, 2014-Ohio-896, 2014 Ohio App. LEXIS
1437 (Ohio Ct. App., Mahoning County 2014).
There was clear and convincing evidence to support a determination in a divorce action that a husband
committed willful contempt by his failure to pay various marital bills, as ordered by a magistrate; the wife
testified on direct examination that there were specific bills that the husband had been ordered to pay, and that
the husband had failed and refused to pay them. Goe v. Goe, 2007-Ohio-6767, 2007 Ohio App. LEXIS 5937
(Ohio Ct. App., Stark County 2007).
There was sufficient evidence of a probate court’s determination that counsel for trust beneficiaries committed
direct criminal conduct when they misrepresented the values involved in the trust for purposes of the
beneficiaries’ application to compel distribution of funds to them, as they knew that the values in an exhibit
represented original book values rather than current market values and they knowingly misrepresented the
values in an attempt to obstruct the administration of justice. Bank One Trust Co., N.A. v. Scherer, 2006-
Ohio-5097, 2006 Ohio App. LEXIS 5017 (Ohio Ct. App., Franklin County 2006).
Failure to appear
Appellant’s due process rights were not violated in an indirect civil contempt case because appellant was
given notice and an opportunity to be heard on health code violations; due to repeated failures to appear, the
trial court had no alternative but to find appellant in civil contempt and begin assessing a daily fine to compel
attendance. Moreover, the trial court did not err by imposing the fine under R.C. 2705.05, and the excessive
fines clause under U.S. Const. amend. VIII did not apply to civil contempt sanctions. City of Cleveland v.
Paramount Land Holdings, LLC, 2011-Ohio-5382, 2011 Ohio App. LEXIS 4454 (Ohio Ct. App., Cuyahoga
County 2011).
Trial court did not abuse its discretion when it ordered the wife to pay the husband for the wages he lost by
filing the contempt motion as the wife did not appear at the scheduled contempt hearing. Bryant v. Bryant,
2005-Ohio-1297, 2005 Ohio App. LEXIS 1263 (Ohio Ct. App., Gallia County 2005).
A defendant’s failure to appear at a pre-trial is in the nature of indirect contempt, because it does not occur
within the court’s immediate presence: East Cleveland v. Reed, 54 Ohio App. 2d 147, 8 Ohio Op. 3d 277, 376
N.E.2d 973, 1977 Ohio App. LEXIS 7027 (Ohio Ct. App., Cuyahoga County 1977).
The failure of a person, who has been found guilty of contempt of court, to appear before the court at the time
set for the final disposition of such matter constitutes a direct contempt of court, within the purview of this
section: Univis Lens Co. v. United Electrical, R. & M. W. of America, 86 Ohio App. 241, 41 Ohio Op. 158,
89 N.E.2d 658, 55 Ohio Law Abs. 248, 1949 Ohio App. LEXIS 674 (Ohio Ct. App., Montgomery County
1949).
False imprisonment
For the liability of judges, jurors and other judicial officers in a civil action for false imprisonment, based on
imprisonment for contempt of court, and other charges growing out of such contempt proceedings, see Bates
v. Black, 23 Ohio N.P. 558 (1915).
False testimony
During a debtor’s examination in a proceeding in aid of execution of judgment, a taxpayer had committed
direct criminal contempt because, inter alia, he blatantly lied about his real property interests as shown by
relevant deeds and the fact that the taxpayer obtained a mortgage and a line of credit during the same time
period and the questions asked of the taxpayer were pertinent to the issues in the case. State v. Kunkle, 2008-
Ohio-6393, 179 Ohio App. 3d 747, 903 N.E.2d 693, 2008 Ohio App. LEXIS 5338 (Ohio Ct. App., Fulton
County 2008).
Hearing
Trial court did not err in denying defendant's motion to show cause without holding a contempt hearing, as
R.C. Chapter 2705 afforded the accused, not the accuser, an opportunity to be heard, and the court knew of no
authority that provided the accuser with a due process right to be heard on her contempt charges and
accusations. Pulled from the Pits Rescue & Sanctuary v. Dabernig, 2016-Ohio-7255, 2016 Ohio App. LEXIS
4117 (Ohio Ct. App., Wayne County 2016).
Because defendant’s contumacious conduct that formed the basis of the trial court’s order occurred in the
presence of the court and was punishable as direct contempt, the trial court was empowered to make a finding
of contempt and to impose punishment without the need for a formal trial, the formal presentation of evidence,
or the need for legal counsel. City of Columbus v. Cicero, 2013-Ohio-3010, 2013 Ohio App. LEXIS 3055
(Ohio Ct. App., Franklin County 2013).
When a court adopts a rule which authorizes it to cite a party for contempt for his failure to appear at a pre-
trial conference the court according to its own rule cannot summarily find the defendant in contempt without
first citing him and conducting a hearing: East Cleveland v. Reed, 54 Ohio App. 2d 147, 8 Ohio Op. 3d 277,
376 N.E.2d 973, 1977 Ohio App. LEXIS 7027 (Ohio Ct. App., Cuyahoga County 1977).
Indirect criminal contempt
Finding that appellant was in indirect criminal contempt when she violated a no-contact order by e-mailing the
opposing parties and their counsel was proper because there were no due process violations in the contempt
proceeding, the trial court was not required to comply with Crim.R. 32, and the finding did not violate
appellant's U.S. Const. amend. I rights. Troja v. Pleatman, 2016-Ohio-5294, 2016 Ohio App. LEXIS 3195
(Ohio Ct. App., Hamilton County 2016).
Indirect, generally
Trial court abused its discretion when it arbitrarily and prematurely found a criminal attorney in contempt of
court for his failure to appear on time to represent a criminal client at a scheduled trial, as the statutory
requirements of R.C. 2705.03 were not met for the attorney’s alleged indirect contemptuous conduct pursuant
to R.C. 2705.01 and 2705.02(A); the trial court had failed to file a written charge with the clerk of court or
give the attorney an opportunity to be heard on the indirect contempt. State v. Cotton, 2007-Ohio-3572, 2007
Ohio App. LEXIS 3278 (Ohio Ct. App., Lucas County 2007).
Individual/group
Where the court, in a contempt of court hearing, asks the accused parties if they will honor an injunction
against picketing, but fails to individually overrule each objection to the question and individually direct each
party to answer, a finding of contempt is in error: In re White, 60 Ohio App. 2d 62, 14 Ohio Op. 3d 34, 395
N.E.2d 499, 1978 Ohio App. LEXIS 7607 (Ohio Ct. App., Stark County 1978).
The personal conduct of an accused is the basis for an adjudication in contempt under R.C. 2705.01, and the
guilt is personal: North American Aviation, Inc. v. United Auto., Aircraft & Agricultural Implement Workers,
124 N.E.2d 822, 69 Ohio Law Abs. 242, 1954 Ohio App. LEXIS 861 (Ohio Ct. App., Franklin County 1954).
Intent
Trial court abused its discretion in finding the attorney guilty of contempt, because the attorney’s actions in
arriving late for trial could not be categorized as intentional, willful and for an illegitimate or improper
purpose, and untimely appearance alone did not prove intent to commit contemptuous conduct; the attorney
informed the bailiff on the day the trial was scheduled that he had another trial scheduled for the same date in
a different court, the attorney attempted to call the bailiff, but the attorney had the wrong number, and he
finally found the correct phone number and left a voicemail message for the bailiff. City of North Royalton v.
Awadallah (In re Leary), 2011-Ohio-6626, 2011 Ohio App. LEXIS 5460 (Ohio Ct. App., Cuyahoga County
2011).
Trial court did not abuse its discretion by finding the attorney in direct criminal contempt when he refused to
obey its instruction with respect to the letters, found to be inadmissible, because the attorney ignored the trial
court’s orders and caused repeated interruptions in the flow of the trial. The attorney’s intent was inferred
from the repeated instances. In re Contempt of Kafantaris, 2009-Ohio-4814, 2009 Ohio App. LEXIS 4063
(Ohio Ct. App., Columbiana County 2009).
Defendant’s absence standing alone does not prove intent to commit either contemptuous conduct or civil
disregard, both of which are essential elements of contempt: East Cleveland v. Reed, 54 Ohio App. 2d 147, 8
Ohio Op. 3d 277, 376 N.E.2d 973, 1977 Ohio App. LEXIS 7027 (Ohio Ct. App., Cuyahoga County 1977).
Jurisdiction
Where a judge found a divorce litigant in contempt and imposed incarceration, which order was stayed
pending the litigant’s appeal, the judge still retained jurisdiction over the remaining issues in the divorce
proceeding, pursuant to R.C. 3105.03 and 3109.04, as well as having jurisdiction over contempt, pursuant
to R.C. 2705.01 et seq., and accordingly, the judge’s motion to dismiss the litigant’s writ of prohibition was
granted as to the divorce issues which were not stayed, and as to future contempt proceedings; the writ of
prohibition was not dismissed with respect to the contempt finding and the incarceration order, as those issues
were part of the final appealable order that was stayed. State ex rel. Signer v. Russo, 2005-Ohio-2468, 2005
Ohio App. LEXIS 2336 (Ohio Ct. App., Cuyahoga County 2005).
A court retains jurisdiction to consider the collateral issue of contempt even after the underlying action is no
longer pending: State ex rel. Benbow v. Runyan, 2003-Ohio-4127, 99 Ohio St. 3d 410, 792 N.E.2d 1124, 2003
Ohio LEXIS 2150 (Ohio 2003).
Courts may consider collateral issues like criminal contempt even after the case in which the contempt arose
has been terminated. A protective order that on its face survives the underlying litigation continues to be
effective even after the underlying case has been dismissed: State ex rel. Conkle v. Sadler, 2003-Ohio-4124,
99 Ohio St. 3d 402, 792 N.E.2d 1116, 2003 Ohio LEXIS 2146 (Ohio 2003).
Jurisdiction to enforce its orders by proceedings in contempt is expressly vested in a court of common pleas by
GC § 12136 (R.C. 2705.01) et seq: Socotch v. Board of Liquor Control, 51 Ohio Op. 2d 106, 51 Ohio Op.
106, 114 N.E.2d 114, 66 Ohio Law Abs. 225, 1953 Ohio Misc. LEXIS 297 (Ohio C.P.), rev'd, 97 Ohio App. 8,
55 Ohio Op. 155, 119 N.E.2d 309, 67 Ohio Law Abs. 197, 1953 Ohio App. LEXIS 622 (Ohio Ct. App.,
Franklin County 1953).
The judicial authority of the municipal court of the city of East Liverpool to punish contempt for disobedience
of or resistance to a lawful writ, process, order, rule, judgment, or command of the court is expressly provided
for in this section and following sections: McWhorter v. Curran, 57 Ohio App. 233, 10 Ohio Op. 419, 13
N.E.2d 362, 13 N.E. 362, 25 Ohio Law Abs. 623, 1935 Ohio App. LEXIS 435 (Ohio Ct. App., Columbiana
County 1935).
LEADS/NCIC
A contempt citation or bench warrant issued by a court of record against a person for the person’s failure to
pay spousal or child support, to surrender real property to his spouse, to seek work, to accept responsibility for
marital debts, or to appear for a hearing in a civil proceeding does not constitute “criminal history record
information,” as defined in 28 CFR §§ 20.3(b) and 20.32, for purposes of being entered into the
LEADS/NCIC wanted persons data base: 1999 Ohio Op. Att'y Gen. No. 029 (1999).
Magistrates
A referee who presides over arraignments on the traffic docket is empowered to order a disruptive person
arrested for contempt of court, and a weapon discovered in a search incident to such an arrest may be lawfully
seized and used as evidence in a subsequent criminal prosecution: State v. Johnson, 34 Ohio App. 3d 373, 518
N.E.2d 974, 1987 Ohio App. LEXIS 10525 (Ohio Ct. App., Hamilton County 1987).
Obstruction of the administration of justice
Court did not abuse its discretion when it summarily found counsel in direct contempt of court under the Ohio
Revised Code for not wearing a mask during the bond revocation hearing because counsel’s conduct of putting
courtroom participants at risk of contracting a highly contagious airborne COVID-19 disease obstructed the
administration of justice. State v. Lanzy (In re Christman), 2022-Ohio-1937, 190 N.E.3d 1225, 2022 Ohio
App. LEXIS 1804 (Ohio Ct. App., Cuyahoga County 2022).
Trial court abused its discretion in finding appellant neighbor in direct contempt under R.C.
2705.01(A) during a civil protection order hearing as nothing in the record existed from which it could be
affirmatively determined that appellant’s conduct could be seen as a threat to the orderly administration of
justice. Sobieniak v. Chapdelaine, 2008-Ohio-6403, 2008 Ohio App. LEXIS 5343 (Ohio Ct. App., Lucas
County 2008).
Trial court did not abuse its discretion for holding defendant in contempt of court for four instances of an
expletive-filled tirade that defendant directed at the judge during sentencing, as defendant’s verbal onslaught
disrupted the proceedings and constituted a threat to the administration of justice pursuant to R.C. 2705.01;
defendant’s tirade occurred before the sentencing court finished its mandatory colloquy. State v. Webster,
2008-Ohio-1636, 2008 Ohio App. LEXIS 1407 (Ohio Ct. App., Hamilton County 2008).
Under R.C. 2705.01, a municipal court has the power to “punish a person guilty of misbehavior in the
presence of or so near the court or judge as to obstruct the administration of justice”: State v. Johnson, 34 Ohio
App. 3d 373, 518 N.E.2d 974, 1987 Ohio App. LEXIS 10525 (Ohio Ct. App., Hamilton County 1987).
A person cannot be found guilty of contempt under R.C. 2705.01 where the record fails to disclose that such
person obstructed in any manner the administration of justice: In re Contempt of Greenfield, 163 N.E.2d 910,
82 Ohio Law Abs. 120, 1959 Ohio App. LEXIS 963 (Ohio Ct. App., Wayne County 1959).
The act of accepting money for the purpose of “fixing” a traffic charge filed in the municipal court did not
constitute summary contempt, a misbehavior in the presence of or so near the court or judge as to obstruct the
administration of justice, punishable under R.C. 2705.01, but such act was an indirect contempt encompassing
interference with the judicial process of such a character as to bring the court into disrepute by acts committed
without the knowledge of the court: State v. Jaffrin, 2 Ohio Op. 2d 486, 136 N.E.2d 436, 74 Ohio Law Abs.
577 (Ohio Ct. App., Cuyahoga County 1956).
A court has both inherent and statutory power under this section, to punish summarily, misbehavior in the
presence of the court or so near the court or judge as to obstruct the administration of justice: Fawick Airflex
Co. v. United Electrical, Radio & Machine Workers, 101 N.E.2d 797, 60 Ohio Law Abs. 451 (Ohio Ct. App.,
Cuyahoga County), dismissed, Miami Conservancy Dist. v. Bucher, 153 Ohio St. 590, 42 Ohio Op. 48, 92
N.E.2d 813, 1950 Ohio LEXIS 525 (Ohio 1950), dismissed, 153 Ohio St. 589, 42 Ohio Op. 48, 92 N.E.2d
689, 1950 Ohio LEXIS 524 (Ohio 1950), dismissed, Commercial Motor Freight, Inc. v. Public Utilities Com.,
154 Ohio St. 388, 43 Ohio Op. 266, 95 N.E.2d 758, 1950 Ohio LEXIS 546 (Ohio 1950).
A libelous attack upon a judge cannot be made the basis of a charge of contempt, unless it has a tendency to
impede or hinder the court in the administration of justice by having reference to the action or conduct of the
judge in a pending case or proceeding: Dugan v. State, 34 Ohio Cir. Dec. 463, 24 Ohio C.C. 42 (1915).
A judge of the common pleas court may punish summarily as for contempt one guilty of uttering or publishing
false and libelous matters of and concerning the judge and grand jury, if it appears that the utterance
complained of tended to obstruct the due administration of justice: In re Contempt Proceedings, 11 Ohio N.P.
193, 56 Week. L. Bull. 125 (1911).
To give the court power to punish for contempt, something must have been done or said “to obstruct the
administration of justice”: State v. Cox, 21 Ohio Dec. 219, 11 Ohio N.P. (n.s.) 257, 1911 Ohio Misc. LEXIS 5
(Ohio C.P. 1911).
Opportunity to purge finding
Since the trial court found the contemnor in contempt for failure to appear, which was indirect criminal
contempt, it was not required to allow the contemnor an opportunity to purge himself of the contempt.
Delawder v. Dodson, 2003-Ohio-2092, 2003 Ohio App. LEXIS 1974 (Ohio Ct. App., Lawrence County
2003).
Private right of action
Judgment on the pleadings was properly entered for a prosecutor in an ethical violation case filed by an inmate
after his conviction as the inmate had filed a prior contempt application against the prosecutor alleging that the
prosecutor had perpetrated a fraud on the court by suborning perjured testimony from a witness during the
inmate’s criminal trial, and that case had been resolved against the inmate as R.C. 2705.01 and 2705.02 did
not create a private right of action; to the extent the inmate alleged error in the judgment on the pleadings with
reference to contempt, the issue had been resolved. Anderson v. Smith, 2012-Ohio-6159, 2012 Ohio App.
LEXIS 5356 (Ohio Ct. App., Franklin County 2012).
R.C. 2705.01, 2705.02 do not create a private right of action, and they do not create the power to punish
contempt, which is inherent in the judiciary; they simply regulate the exercise of this power. Therefore, a trial
court did not err by dismissing an offender’s action based on an allegation that a prosecutor perpetrated a fraud
on the court by suborning perjured testimony from a witness during a criminal proceeding; R.C.
2705.031 demonstrated the creation of a private right of action. Anderson v. Smith, 2011-Ohio-5619, 196
Ohio App. 3d 540, 964 N.E.2d 468, 2011 Ohio App. LEXIS 4597 (Ohio Ct. App., Franklin County 2011).
Prospective contempt
Where a trial court has not adjudged parties to be in contempt for their past conduct, and where the time for
the court-ordered performance of a certain act has not yet arrived, a trial court’s order of incarceration is
premature and is not sustainable upon a theory of prospective contempt: Board of Education v. Brunswick
Education Asso., 61 Ohio St. 2d 290, 15 Ohio Op. 3d 352, 401 N.E.2d 440, 1980 Ohio LEXIS 656 (Ohio
1980).
Punishment
Trial judge did not abuse his discretion by incarcerating defendant for a period of five days for direct contempt
of court because defendant’s conduct significantly delayed the judicial system as a whole; the judge was
required to conduct four separate proceedings in order to resolve a case that commenced as a simple traffic
citation. City of Columbus v. Cicero, 2013-Ohio-3010, 2013 Ohio App. LEXIS 3055 (Ohio Ct. App., Franklin
County 2013).
Thirty-day jail sentence imposed by the trial court after it found defendant in contempt of court was well
within its sentencing authority and was not disproportionate to the conduct. State v. McDew, 2011-Ohio-1196,
2011 Ohio App. LEXIS 1028 (Ohio Ct. App., Stark County 2011).
Attorney in a trust matter who engaged in an argument with a trial court and was found in direct criminal
contempt served a sufficient amount of jail time when he was imprisoned for several hours, as an initial
sentence of 10 days and a reduced sentence, on remand, of five days was deemed excessive and not in
proportion to the attorney’s conduct or to the attorney’s effect on the proceedings pursuant to R.C. ch. 2705.
Bank One Trust Co., N.A. v. Scherer, 2009-Ohio-3241, 2009 Ohio App. LEXIS 2773 (Ohio Ct. App.,
Franklin County 2009).
Trial court did not abuse its discretion in sentencing the attorney to 10-day jail sentences for two findings of
direct criminal contempt because the sentences were reasonably commensurate with the gravity of the
offenses. The attorney, on two occasions, interfered with the orderly administration of justice; in the first
instance, the attorney, after repeated admonitions, purposely disobeyed the trial court’s orders and, in the
second instance, the attorney called the whole jury-trial process into question in front of half of the jurors. In
re Contempt of Kafantaris, 2009-Ohio-4814, 2009 Ohio App. LEXIS 4063 (Ohio Ct. App., Columbiana
County 2009).
The primary purpose of a criminal contempt sanction must be to vindicate the authority of a court and it,
therefore, must be determinate. Conditions, however, may be attached to such a determinate sentence which
allow for earlier termination of the sentence: State v. Kilbane, 61 Ohio St. 2d 201, 15 Ohio Op. 3d 221, 400
N.E.2d 386, 1980 Ohio LEXIS 637 (Ohio 1980).
Courts, in their sound discretion, have the power to determine the kind and character of conduct which
constitutes direct contempt of court. In imposing punishment for acts of direct contempt, courts are not limited
by legislation but have the power to impose a penalty reasonably commensurate with the gravity of the offense
(State v. Local Union 5760, 172 OS 75, 15 OO2d 133 (1961), paragraph four of the syllabus, approved and
followed.: State v. Kilbane, 61 Ohio St. 2d 201, 15 Ohio Op. 3d 221, 400 N.E.2d 386 (1980).
Purge
Purge order was interpreted to be directed at the arrearage obligation only and not the on-going spousal
support. Thus, the husband was provided a meaningful opportunity to purge the arrearage obligation. Cox v.
Cox, 2015-Ohio-1660, 2015 Ohio App. LEXIS 1594 (Ohio Ct. App., Franklin County 2015).
Quasi-criminal
Contempt proceedings are quasi-criminal in their nature, and must be construed strictly in favor of the person
accused of contempt: Juvenile Protective Ass'n v. Roebling, 26 Ohio Dec. 219, 18 Ohio N.P. (n.s.) 385, 1916
Ohio Misc. LEXIS 2 (Ohio Cincinnati Super. Ct. 1916), [citing and following White v. Gates, 42 Ohio St.
109, 1884 Ohio LEXIS 231 (Ohio 1884); Second Nat. Bank v. Becker, 62 Ohio St. 289, 56 N.E. 1025,
(1900).].
Standard of proof
No direct contempt was committed and the trial court erred in finding appellant guilty by “clear and
convincing” evidence; since the sole purpose of the jail sentence was to punish the husband, the applicable
standard for criminal contempt should have been used, i.e., beyond a reasonable doubt. Regardless, the record
did not establish that the husband’s actions of texting his girlfriend during a court recess constituted contempt.
Newcomer v. Newcomer, 2011-Ohio-6500, 2011 Ohio App. LEXIS 5358 (Ohio Ct. App., Lucas County
2011).
The presumption of innocence obtains in contempt cases and the written charges of contempt cannot be
sustained unless the evidence of guilt is clear, positive and convincing: North American Aviation, Inc. v.
United Auto., Aircraft & Agricultural Implement Workers, 124 N.E.2d 822, 69 Ohio Law Abs. 242, 1954
Ohio App. LEXIS 861 (Ohio Ct. App., Franklin County 1954).
Violation of rules of court
Unintentionally disobeying a rule of court, not in the court’s immediate presence, constitutes indirect
contempt: In re Carroll, 28 Ohio App. 3d 6, 501 N.E.2d 1204, 1985 Ohio App. LEXIS 10359 (Ohio Ct. App.,
Cuyahoga County 1985).
Trial court properly found defendant in contempt of court for recording courtroom proceedings on her
cellphone and sentencing her to 10 days in jail because her conduct obstructed the administration of justice by
creating a disturbance in the courtroom and was in violation of the local court rule prohibiting such conduct.
State v. Hammock, 2021-Ohio-3574, 2021 Ohio App. LEXIS 3504 (Ohio Ct. App., Hamilton County 2021).
Witness
To sustain a conviction for contempt for giving false testimony, it must be shown that the false testimony had
an obstructive effect, that the court had judicial knowledge of the falsity of the testimony, and that the
questions were pertinent to issues in the case: Daniels v. Adkins, 1994 Ohio App. LEXIS 2656 (Ohio Ct.
App., Ross County June 3, 1994).
Evading service of a subpoena as a witness in a criminal case by providing false information as to identity to
an agent of the prosecutor’s office amounted to direct contempt. Revised Code § 2705.05 limits the fine for a
first offense to $250: State v. Porter, 1990 Ohio App. LEXIS 132 (Ohio Ct. App., Cuyahoga County Jan. 4,
1990).
In the absence of complete immunity granted to a witness, a trial court can only punish for contempt of court
for a refusal to answer nonincriminating questions propounded by a grand jury. In a contempt proceeding, in
the absence of complete immunity, an order by a trial court to answer all questions in a series, some of which
are incriminating and others not, is error, and a refusal by a witness before a grand jury to answer is not
contempt of court: State v. Prato, 2 Ohio App. 2d 115, 31 Ohio Op. 2d 197, 206 N.E.2d 917, 1965 Ohio App.
LEXIS 587 (Ohio Ct. App., Mahoning County 1965).
A refusal to answer questions before the grand jury is punishable as a direct contempt since the grand jury is
regarded as an extension of the court: State v. Granchay, 1 Ohio App. 2d 307, 30 Ohio Op. 2d 310, 204
N.E.2d 562, 1964 Ohio App. LEXIS 549 (Ohio Ct. App., Mahoning County 1964).
Conviction for contempt, under this section, requires a showing that a false answer on a material issue had an
obstructive effect and that the court had knowledge of its falsity; the court’s opinion that the testimony was
false is insufficient: Hegelaw v. State, 24 Ohio App. 103, 155 N.E. 620, 5 Ohio Law Abs. 178, 1927 Ohio
App. LEXIS 598 (Ohio Ct. App., Cuyahoga County 1927).
A witness cannot be sent to jail for contempt on mere suspicion of untruthful statements: Juvenile Protective
Ass'n v. Roebling, 26 Ohio Dec. 219, 18 Ohio N.P. (n.s.) 385, 1916 Ohio Misc. LEXIS 2 (Ohio Cincinnati
Super. Ct. 1916).
Opinion Notes
ATTORNEY GENERAL OPINIONS
Neither a court of common pleas nor a county court has the authority to sentence a person found in contempt
of court to a term of house arrest with electronic monitoring. 2009 Ohio Op. Att'y Gen. No. 028 (2009).

Research References & Practice Aids

Cross-References to Related Sections
County court, RC § 1907.18.
Juvenile court, RC § 2151.21.
Mayor’s court, RC § 1905.28.
Probate court, RC § 2101.23.
Comparative Legislation
Contempt of court:
18 USCS § 401
CA—Cal Code Civ Proc § 1209
FL—Fla. Stat. § 900.04
IL—735 Ill. Comp. Stat. § 5/2-1005
IN—Burns Ind. Code Ann. §§ 33-4-2-8, 34-47-1-1 et seq
KY—KRS § 432.230 et seq
MI—MCLS §§ 600.1701, 600.1731
NY—NY CLS Jud § 750
PA—42 P.S. § 4132
Practice Manuals and Treatises
Anderson’s Ohio Civil Practice with Forms § 129.05 Contempt
Practice Forms
Order in Direct Contempt for Disobedience to Order of Probate Judge or Obstructing Administration of
Justice in Probate Division 1, 11 OH Forms of Pleading & Practice — Probate Form 1:85