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Turner v. Boyrdkdar6/17/1999
JUDGMENT: Reversed and Remanded.
The issue in this appeal is whether the trial court's order directing attorney James T. Millican to pay a fine of $250 for failing to appear at a scheduled trial date is indirect contempt warranting notice and a hearing. Since both the indirect contempt statute and Loc.R. 21 require the trial court to give notice and conduct a hearing before imposing sanctions, we conclude as a matter of law that the trial court's order constituted an abuse of discretion.
However, before we address the facts and law in this accelerated appeal, it is important to note that this court appreciates and understands the trial court's inherent right to control its courtroom. Consequently, a judge attempting to administer justice in a timely and orderly manner should always be commended by this court. We believe strongly that this was the ultimate intent of this trial court. However, in its efforts to do so it went beyond the bounds set forth by law.
The facts in this case are not complicated. James T. Millican represented the plaintiff in a personal injury action. The trial court issued its Case Management schedule, which set forth the pretrial dates and the trial date. It is no question that all the parties knew the trial date, August 19, 1998. The case, however, settled and neither of the parties presented an entry to the court verifying the settlement. Millican's staff attorney in an affidavit stated she called the court before the July 15, 1998 settlement conference date and informed someone at the court that the matter had indeed been settled. The record shows that neither of the parties appeared for the July 15, 1998 settlement conference, and none of the parties were sanctioned for failing to appear at that pretrial.
On August 20, 1998, the trial court sanctioned both lawyers and issued the following, which was faxed to both:
No one appeared therefore this court can only guess that the case has been settled or dismissed by agreement of the parties. No entry or other notice has been given to this court, neither counsel has filed trial briefs as required by this court's order of 1/20/98. Therefore, in accordance with notice issued orally and in writing on 1/20/98, each counsel hereby fined $250, for failure to comply with court's order issued to permit court to maintain its docket in a manner best calculated to serve public and justice. *
Millican did not pay $250; however, the other lawyer did. This appeal followed, and Millican assigns the following error for our review:
THE TRIAL COURT ERRED IN FAILING TO COMPLY WITH R.C. 2705.03 IN CITING APPELLANT FOR INDIRECT CRIMINAL CONTEMPT.
The trial court does not use the language contempt and thus the issue for us in Millican's assigned error is whether the trial court abused its discretion when it failed to follow R.C. 2705.03 and/or procedures for administrating indirect contempt, R.C. 2705.02.
Before we address this issue, we first address the prerogative of the trial court to sanction under Local R. 21. Loc.R. 21, Part III H authorizes a trial judge to impose various sanctions when the plaintiff or defendant fails to appear for trial. The sanction for plaintiff's failed appearance is a dismissal without prejudice. The sanction for defendant's failed appearance is to proceed to trial ex parte. The failure of either attorney to appear within 30 minutes of a scheduled settlement or pretrial conference may for good cause shown result in a $250 fine. Before the trial court can impose any of these sanctions under Loc.R. 21, it must make a reasonable attempt to reach the offending attorney. However, the Local Rule does not addr
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