State ex rel. Corn v. Russo

[This decision has been published in Ohio Official Reports at 90 Ohio St.3d 551.]

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

[Cite as State ex rel. Corn v. Russo, 2001-Ohio-15.]

Courts—Jurisdiction—Contempt—Dismissal of an underlying civil action does not

divest a court of common pleas of jurisdiction to conduct criminal contempt

proceedings.

(No. 00-23—Submitted September 12, 2000—Decided January 17, 2001.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 76730.

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SYLLABUS OF THE COURT

The dismissal of an underlying civil action does not divest a court of common pleas

of jurisdiction to conduct criminal contempt proceedings.

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FRANCIS E. SWEENEY, Sr., J.

{¶ 1} This matter comes before this court upon the granting of a writ of

prohibition that prohibits respondent from conducting further contempt

proceedings in the underlying personal injury lawsuit entitled Crow v. Dotson,

Cuyahoga C.P. No. CV345899. Since we find that respondent had jurisdiction to

conduct criminal contempt proceedings, we reverse the court of appeals and deny

the writ of prohibition.

{¶ 2} This action arises from a subpoena issued to relators, Robert C. Corn,

M.D., and Highland Musculo-Skeletal Associates, Inc., requesting financial

information and related reports concerning Corn’s medical/legal consultations.

{¶ 3} Relator Corn, an orthopedic surgeon, was hired by defense counsel in

the Crow litigation to perform an independent medical examination (“IME”) of the

plaintiff and to be a medical expert witness. Believing that Corn was biased, in that

he earned a substantial amount of income by performing examinations for the

defense in personal-injury cases and acting as a defense expert witness, plaintiff’s

counsel filed a request for production of documents. Plaintiffs asked that Corn

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produce all I.R.S. 1099 tax forms received from insurance companies and attorneys

for the years 1991-1997, as well as office records, including appointment books,

computerized records and billing statements, and IME reports, relating to any IMEs

he conducted during those years.

{¶ 4} When those records were not produced, plaintiff’s counsel, on July

27, 1998, issued a subpoena, pursuant to Civ.R. 45, to Corn and his professional

organization and employees, requiring them to produce the documents. Corn filed

a motion to quash the subpoena. Respondent, Judge Nancy Russo, denied the

motion to quash on September 4, 1998. In this order, respondent stated that the

failure to comply by September 14, 1998, would be deemed contempt of court.

{¶ 5} On September 14, 1998, Corn, through his attorney, responded to the

subpoena by letter. Although Corn was able to produce a 1997 calendar containing

the names of his patients and approximately one hundred three IME reports from

1996 and 1997, he did not produce the remainder of the requested reports or the

1099 tax forms.

{¶ 6} On September 22, 1998, respondent ordered Corn to appear in court

to show cause why he should not be held in contempt for failure to abide by the

court’s orders regarding production of documents ordered by subpoena.

{¶ 7} A show-cause hearing took place on September 28, 1998. At the

hearing, Corn testified that, with the exception of the one calendar produced, he

could not produce any other appointment books or calendars prior to 1998. He

explained that appointment books are destroyed at the end of the calendar year or

every three months, once the file is inactive. With respect to the IME reports

sought, Corn also testified that the majority of these reports had been destroyed.

Upon cross-examination, he conceded that one of the reasons he destroys these

records is to prevent plaintiffs and plaintiffs’ attorneys from establishing his

financial interest and defense bias in personal injury litigation. Corn also said that

he could not produce any 1099 tax forms because he did not have any.

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{¶ 8} Attorney Robert Housel was also called as a witness at the show-cause

hearing. In a separate tort action entitled Hegedus v. Johnson, Cuyahoga C.P. No.

290943, an issue similar to Corn’s alleged defense bias had been raised. In

Hegedus, Judge Daniel Gaul had appointed Housel as a special master to investigate

Corn’s income and financial records pertaining to defense medical examinations.

(The Eighth District Court of Appeals later granted a writ of prohibition in that

case, finding that Judge Gaul lacked the authority to appoint a special master. State

ex rel. Allstate Ins. Co. v. Gaul [1999], 131 Ohio App.3d 419, 722 N.E.2d 616.) In

his testimony, Housel revealed information he had obtained during his investigation

of Corn in the Hegedus case. Following Housel’s testimony, Judge Russo

continued the hearing to October 13, 1998.

{¶ 9} On October 8, 1998, relators filed a petition for a writ of prohibition

and a writ of mandamus to prevent respondent from going forward with the

contempt hearing in the Crow case. The court of appeals granted an alternative writ

of prohibition. During the pendency of that litigation in the court of appeals (“Corn

I”), on April 2, 1999, the parties in the Crow litigation entered into a settlement

agreement and agreed to voluntarily dismiss the case with prejudice.

{¶ 10} On June 4, 1999, the court of appeals issued its final decision in

“Corn I.” The court found that respondent Russo had jurisdiction to proceed with

the contempt hearing against Corn but did not have jurisdiction to compel testimony

or seek evidence from attorney Housel. Therefore, the court of appeals granted a

permanent writ of prohibition in that regard and ordered the testimony of attorney

Housel to be sealed. State ex rel. Corn v. Russo (1999), 133 Ohio App.3d 57, 726

N.E.2d 1052.

{¶ 11} On June 11, 1999, respondent Russo returned Crow to her active

docket and continued the show-cause hearing. To prohibit respondent from

proceeding with the contempt hearing, relators commenced this action on July 23,

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1999, by filing a verified complaint, again seeking writs of prohibition and

mandamus against respondent, Judge Russo.

{¶ 12} The court of appeals denied the writ of mandamus but granted the

writ of prohibition.1 The court found, inter alia, that once the parties dismissed the

underlying case, respondent lacked jurisdiction to conduct further proceedings.

The court further found that because the contempt proceedings were civil in nature,

respondent did not have the authority to continue the contempt hearing.

{¶ 13} The cause is now before this court upon an appeal as of right.

{¶ 14} The primary issue in this case is whether the court of appeals erred

in finding that respondent lacked jurisdiction to hear the contempt proceedings. For

the reasons that follow, we find that respondent did have jurisdiction over the

contempt proceedings. Therefore, we reverse the court of appeals’ decision and

deny relators’ writ of prohibition.

{¶ 15} A writ of prohibition is an extraordinary remedy that is granted in

limited circumstances with great caution and restraint. State ex rel. Henry v. Britt

(1981), 67 Ohio St.2d 71, 73, 21 O.O.3d 45, 47, 424 N.E.2d 297, 298-299.

Proceedings on a petition for a writ of prohibition test the subject-matter

jurisdiction of the lower court. Thus, a writ of prohibition prevents an inferior court

from exceeding its jurisdiction. State ex rel. Barton v. Butler Cty. Bd. of Elections

(1988), 39 Ohio St.3d 291, 530 N.E.2d 871.

{¶ 16} For a writ of prohibition to be granted, the relator must prove that

(1) the lower court is about to exercise judicial power, (2) the exercise of power is

unauthorized by law, and (3) the relator possesses no other adequate remedy of law.

State ex rel. Tollis v. Cuyahoga Cty. Court of Appeals (1988), 40 Ohio St.3d 145,

1. In claiming that they were entitled to a writ of mandamus, relators alleged that respondent failed

to comply with Corn I by not turning over documents the court ordered to be returned. Finding that

relators had an adequate remedy at law, in that they could file a show-cause motion, the court of

appeals denied the writ of mandamus. That issue is not before this court.

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147, 532 N.E.2d 727, 729. However, even where an appeal may be available,

“[w]hen a court patently and unambiguously lacks jurisdiction to consider a matter,

a writ of prohibition will issue to prevent assumption of jurisdiction regardless of

whether the lower court has ruled on the question of its jurisdiction.” Ohio Dept.

of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd. (1990),

54 Ohio St.3d 48, 562 N.E.2d 125, syllabus; State ex rel. Sanquily v. Lucas Cty.

Court of Common Pleas (1991), 60 Ohio St.3d 79, 80, 573 N.E.2d 606, 608. In

such a case, “ ‘the availability or adequacy of a remedy of appeal * * * is

immaterial.’ ” Id. at 79, 573 N.E.2d at 607, quoting State ex rel. Adams v.

Gusweiler (1972), 30 Ohio St.2d 326, 329, 59 O.O.2d 387, 388, 285 N.E.2d 22, 24.

{¶ 17} The court of appeals found that when the parties dismissed their case

pursuant to Civ.R. 41(A)(1), respondent patently and unambiguously lacked

jurisdiction to conduct further proceedings in Crow and did not have the jurisdiction

to proceed with the contempt proceedings against relators, as they were civil in

nature.

{¶ 18} Thus, in deciding whether respondent patently and unambiguously

lacks subject-matter jurisdiction in this matter, our first inquiry is whether the

contempt proceedings were civil or criminal in nature.

{¶ 19} Contempt is defined in general terms as disobedience of a court

order. “ ‘It is conduct which brings the administration of justice into disrespect, or

which tends to embarrass, impede or obstruct a court in the performance of its

functions.’ ” Denovchek v. Trumbull Cty. Bd. of Commrs. (1988), 36 Ohio St.3d

14, 15, 520 N.E.2d 1362, 1363-1364, quoting Windham Bank v. Tomaszczyk

(1971), 27 Ohio St.2d 55, 56 O.O.2d 31, 271 N.E.2d 815, paragraph one of the

syllabus. Contempt proceedings are often classified as sui generis, neither civil nor

criminal. Id. However, most courts distinguish between civil and criminal

contempt proceedings. The distinction is usually based on the purpose to be served

by the sanction. Dan D. Dobbs, Contempt of Court: A Survey (1971), 56 Cornell

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L.Rev. 183, 235. Thus, in determining whether a contempt is civil or criminal, the

pertinent test is “what does the court primarily seek to accomplish by imposing

sentence?” Shillitani v. United States (1966), 384 U.S. 364, 370, 86 S.Ct. 1531,

1535, 16 L.Ed.2d 622, 627.

{¶ 20} Civil contempt sanctions are designed for remedial or coercive

purposes and are often employed to compel obedience to a court order. Id.

Criminal contempt sanctions, however, are punitive in nature and are designed to

vindicate the authority of the court. Denovchek v. Trumbull Cty. Bd. of Commrs.,

36 Ohio St.3d at 15, 520 N.E.2d at 1363. Thus, civil contempts are characterized

as violations against the party for whose benefit the order was made, whereas

criminal contempts are most often described as offenses against the dignity or

process of the court. State v. Kilbane (1980), 61 Ohio St.2d 201, 204-205, 15

O.O.3d 221, 223, 400 N.E.2d 386, 390.

{¶ 21} Relators contend that respondent was conducting a civil contempt

proceeding, since respondent was attempting to compel relators to comply with a

court order to produce documents for the benefit of the plaintiffs. Thus, relators

maintain that when the underlying lawsuit was dismissed under Civ.R. 41(A)(1),

respondent no longer had jurisdiction to proceed with the contempt proceedings.

{¶ 22} It is well established that where the parties settle the underlying case

that gave rise to the civil contempt sanction, the contempt proceeding is moot, since

the case has come to an end. Gompers v. Buck’s Stove & Range Co. (1911), 221

U.S. 418, 451-452, 31 S.Ct. 492, 502, 55 L.Ed. 797, 810. Respondent understands

this principle and concedes that she has no jurisdiction over any civil contempt

arising from the underlying case. However, respondent argues that what began as

a civil contempt shifted to a criminal contempt when it was learned that relators

had purposefully conducted their business in such a fashion as to circumvent civil

discovery rules and orders of the court attempting to enforce them. Thus,

respondent characterizes the contempt proceedings as being of a dual nature, both

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civil and criminal. What initially started as a civil contempt to determine whether

relators violated the September 4, 1998 order became a criminal contempt matter

to investigate an intentional practice of destroying records, which was admittedly

done in part to prevent their use by future litigants. Thus, respondent contends that

the dismissal of the underlying civil action in Crow did not divest her from

jurisdiction to hold a criminal contempt hearing.

{¶ 23} We agree with respondent’s characterization of the contempt

proceedings. The proceedings were initiated by respondent to determine why

relators did not comply with a subpoena and a subsequent court order to provide

documents to the plaintiffs. At this point, the purpose of the proceedings was to

compel compliance with the court’s order; hence, it was civil in nature. However,

when respondent learned that it was relators’ practice to intentionally and

systemically destroy records to prevent opposing counsel and the court from

inquiring into his practices, the purpose of the contempt sanction was no longer

restricted to coercing relators into complying with the court’s orders. Instead, its

purpose was to vindicate the authority of the judge and to punish relators if she

found that their practices impeded the judicial process and frustrated the civil

discovery rules. Thus, what began as a civil matter became criminal in nature.

{¶ 24} We must next decide whether respondent can go forward with the

criminal contempt proceedings even though the underlying lawsuit has been

dismissed.

{¶ 25} In Cooter & Gell v. Hartmarx Corp. (1990), 496 U.S. 384, 110 S.Ct.

2447, 110 L.Ed.2d 359, the United States Supreme Court decided a similar issue in

the context of whether it could impose under Fed.R.Civ.P. 11 sanctions on a law

firm after the firm had dismissed the complaint in an antitrust action. The law firm

had argued, like the relators argue in this appeal, that the court had no jurisdiction

to impose sanctions, since the lawsuit had been dismissed. The United States

Supreme Court disagreed. The court ruled:

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“Like the imposition of costs, attorney’s fees, and contempt sanctions, the

imposition of a Rule 11 sanction is not a judgment on the merits of an action.

Rather, it requires the determination of a collateral issue: whether the attorney has

abused the judicial process, and, if so, what sanction would be appropriate. Such a

determination may be made after the principal suit has been terminated.”

(Emphasis added.) Id. at 396, 110 S.Ct. at 2456, 110 L.Ed.2d at 376.

{¶ 26} The court cited with approval those federal decisions where the

courts have held that collateral issues (such as criminal contempt) survive the

dismissal of a case:

“It is well established that a federal court may consider collateral issues after

an action is no longer pending. * * * A criminal contempt charge is likewise ‘a

separate and independent proceeding at law’ that is not part of the original action.

* * * A court may make an adjudication of contempt and impose a contempt

sanction even after the action in which the contempt arose has been terminated.”

(Emphasis added.) Id. at 395-396, 110 S.Ct. at 2455-2456, 110 L.Ed.2d at 375.

{¶ 27} We agree with these federal authorities and find that a court may

consider the collateral issue of criminal contempt even after the underlying action

is no longer pending. Id. Consequently, we hold that the dismissal of an underlying

civil action does not divest a court of common pleas of jurisdiction to conduct

criminal contempt proceedings. Therefore, even though the parties dismissed the

underlying personal injury lawsuit in this case, we find that respondent has

jurisdiction to continue the criminal contempt proceedings against relators.

{¶ 28} Relators also question whether respondent has jurisdiction to

investigate whether Dr. Corn’s record-keeping practices violate State Medical

Board requirements. At the September 28, 1998 contempt hearing, respondent

raised this issue after questioning relator Corn about his failure to keep patient

records. Respondent then ordered the parties to brief the issue of whether the failure

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to keep patient records constitutes a violation of R.C. 4731.22(B)(6) or Ohio

Adm.Code 4731-11-02 (grounds for discipline of licensed physicians).2

{¶ 29} Relators contend that respondent patently and unambiguously lacks

jurisdiction over the issue of whether there is a violation under R.C. Chapter 4731

and has, in fact, improperly inserted herself into the exclusive jurisdiction of the

State Medical Board. However, respondent maintains that she was not attempting

to conduct an investigation into whether relator Corn violated any provision under

R.C. Chapter 4731. Instead, she states that she was asserting her jurisdiction to

punish contempts.

{¶ 30} R.C. Chapter 4731 provides for the establishment of the State

Medical Board and contains provisions concerning the licensing and disciplining

of physicians. Of particular relevance in this case is R.C. 4731.22(F)(1), formerly

(C)(1). This section provides, “Any person may report to the board in a signed

writing any information that the person may have that appears to show a violation

of any provision of this chapter or any rule adopted under it.” (Emphasis added.)

By its express language, this section affords any person, including respondent, the

right to report any potential violation to the State Medical Board. Although

respondent does not have the jurisdiction to actually decide whether relator Corn

has, in fact, violated any provision of R.C. Chapter 4731, she does have the right to

further investigate whether she believes that there has been a violation and to report

any alleged violation to the State Medical Board. Accordingly, in connection with

the contempt proceedings, respondent did not patently and unambiguously lack the

jurisdiction to inquire into whether the practices of relator Corn’s practices violate

R.C. Chapter 4731.

2. The court also ordered the parties to brief the issues of what privilege, if any, attaches to

appointments maintained in a physician’s appointment book and whether destruction of records

relating to the examination of individuals in connection with pending litigation and/or anticipated

litigation constitutes contempt.

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{¶ 31} Since we find that respondent has jurisdiction over the criminal

contempt proceedings and has not usurped the State Medical Board’s jurisdiction,

we deny relators’ request for a writ of prohibition. Accordingly, we reverse the

judgment of the court of appeals and deny the writ of prohibition, thereby allowing

further proceedings on the criminal contempt charge. Before continuing the

contempt hearing, respondent shall afford relators with all procedural due process

safeguards outlined in R.C. 2705.03.3

Judgment reversed

and writ denied.

MOYER, C.J., DOUGLAS, RESNICK and PFEIFER, JJ., concur.

COOK and LUNDBERG STRATTON, JJ., dissent.

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COOK, J., dissenting.

{¶ 32} Because I agree with the court of appeals’ unanimous conclusion that

the contempt proceedings against Dr. Corn were, and remained, civil in nature, I

respectfully dissent.

{¶ 33} Respondent initiated contempt proceedings against Dr. Corn when

he did not produce documents sought by the plaintiffs. The purpose of the

proceedings was to coerce Dr. Corn to comply with the court’s order to produce the

documents for the benefit of the plaintiffs. “If sanctions are primarily designed to

benefit the complainant through remedial or coercive means, then the contempt

proceeding is civil.” Denovchek v. Trumbull Cty. Bd. of Commrs. (1988), 36 Ohio

St.3d 14, 16, 520 N.E.2d 1362, 1364, citing Brown v. Executive 200, Inc. (1980),

64 Ohio St.2d 250, 253, 18 O.O.3d 446, 448, 416 N.E.2d 610, 613. As the appellate

panel concluded, “[n]ow that the Crow litigation has been settled and dismissed,

3. R.C. 2705.03 sets forth procedures and constitutional guarantees that must be afforded

individuals charged with criminal contempt.

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the civil contempt hearing for the benefit of the plaintiffs must also end. The pursuit

of documents from Dr. Corn * * * is over.” State ex rel. Corn v. Russo (Nov. 24,

1999), Cuyahoga App. No. 76730, unreported, 1999 WL 1085519, at *7.

{¶ 34} The majority concedes that the contempt proceedings against Dr.

Corn were, at their inception, in the nature of civil contempt. But the majority

concludes that the contempt proceedings “became” criminal in nature at some point

after the proceedings had begun. The majority’s approach is based not on the

underlying purpose of the contempt proceedings against Dr. Corn, which is the

appropriate inquiry in these cases,4 but rather on the post hoc characterization of

those proceedings suggested by respondent after Dr. Corn sought a writ of

prohibition questioning her jurisdiction to proceed.

{¶ 35} The majority’s approach conflicts with this court’s prior recognition

of the fact that even though contempt proceedings are sui generis, and thus neither

wholly civil nor wholly criminal, “for certain purposes we have found it necessary

to classify contempt proceedings as either ‘civil’ or ‘criminal.’ ” (Emphasis

added.) Denovchek, 36 Ohio St.3d at 16, 520 N.E.2d at 1364.

{¶ 36} One of the reasons that courts categorize contempt proceedings as

either civil or criminal (and not as a continuum consisting of both) is so that courts

may determine, with some degree of consistency, whether contempt proceedings

initiated for a particular purpose may continue after dismissal of the underlying

action. See, e.g., Cooter & Gell v. Hartmarx Corp. (1990), 496 U.S. 384, 395-396,

110 S.Ct. 2447, 2455-2456, 110 L.Ed.2d 359, 375. Another reason that courts

assign contempt proceedings into one of these two categories is that

4. “ ‘It is not the fact of punishment but rather its character and purpose that often serve to

distinguish’ civil from criminal contempt.” Shillitani v. United States (1966), 384 U.S. 364, 369,

86 S.Ct. 1531, 1535, 16 L.Ed.2d 622, 627, quoting Gompers v. Bucks Stove & Range Co. (1911),

221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806. See, also, State v. Kilbane (1980), 61

Ohio St.2d 201, 206, 15 O.O.3d 221, 224, 400 N.E.2d 386, 390 (“The inquiry to be made under this

test is ‘what does the court primarily seek to accomplish by imposing sentence?’ ” quoting Shillitani,

384 U.S. at 370, 86 S.Ct. at 1535, 16 L.Ed.2d at 627).

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“notwithstanding the many elements of similarity in procedure and in punishment,

there are some differences between the two classes of proceedings which involve

substantial rights and constitutional privileges. * * * [I]t is certain that in

proceedings for criminal contempt the defendant is presumed to be innocent, he

must be proved to be guilty beyond a reasonable doubt, and cannot be compelled

to testify against himself.” Gompers v. Bucks Stove & Range Co. (1911), 221 U.S.

418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797, 807, citing Boyd v. United States (1886),

116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. Today’s decision blurs the distinction that

courts have developed for these purposes.

{¶ 37} The majority cites no legal authority for its conclusion that civil

contempt proceedings can, in midstream, transform into criminal contempt

proceedings that will survive dismissal of the underlying action. Though the

majority eventually quotes from the United States Supreme Court’s decision in

Cooter & Gell, supra, that case begs the question presented here, for it simply

stands for the generally accepted proposition that “[a] criminal contempt charge is

* * * not part of the original action,” and that imposition of criminal contempt

sanctions may occur after termination of the underlying action. (Emphasis added.)

Cooter & Gell, 496 U.S. at 396, 110 S.Ct. at 2456, 110 L.Ed.2d at 375. Though

Cooter holds that criminal contempt proceedings survive dismissal of the

underlying action, the issue here is whether civil contempt proceedings may be

characterized in retrospect as having become criminal contempt proceedings in

order to apply that rule.

{¶ 38} In her briefs, respondent relies on our Kilbane case as an example of

this court’s refusal to “pigeonhole” contempt sanctions as being solely civil or

criminal. See State v. Kilbane (1980), 61 Ohio St.2d 201, 15 O.O.3d 221, 400

N.E.2d 386. Respondent correctly notes that in Kilbane, this court rejected the

contention that every conditional contempt is civil contempt. Id. at 206, 15 O.O.3d

at 224, 400 N.E.2d at 390. But Kilbane, like Cooter, stopped well short of holding

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that what begins as one category of contempt proceedings may become another

type. In fact, in Kilbane this court decided that the addition of conditions to a

criminal contempt sanction did not transform criminal contempt into civil contempt

because the addition of these conditions did not alter the “overriding punitive

purpose” of the proceedings. Id. at 206, 15 O.O.3d at 224, 400 N.E.2d at 391.

{¶ 39} My position in this case should not be construed as disapproving of

a trial court’s inherent power to impose criminal contempt sanctions. Before an

underlying case is dismissed, trial courts may impose sanctions to punish offenses

against the dignity or process of the court, or to coerce compliance with orders that

were for the benefit of a party. But I agree with the court of appeals that once an

underlying case is dismissed, trial courts lack jurisdiction to pursue contempt

sanctions for violations of orders intended to benefit a party to the underlying case.

{¶ 40} For the foregoing reasons, I would affirm the court of appeals’

decision granting the writ.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.

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McLaughlin & McCaffrey, L.L.P., Patrick M. McLaughlin, W. Joseph

Melnik and Colin R. Jennings, for appellees.

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

Lear, for appellant.

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