COPLEY TOWNSHIP BOARD OF TRUSTEES et al., Appellees, v. W.J. HORVATH COMPANY et al., Appellants, 193 Ohio App. 3d 286

Dickinson, Presiding Judge. INTRODUCTION {¶ 1} William Horvath operated W.J. Horvath Company, a mulch business in Copley Township. After some of the mulch ignited in 2001, the township sued Horvath and his company, alleging that they were in violation of the township’s zoning resolution. It also sued his mother, Anna Horvath, because it alleged that she was an owner of the property where the mulch business was located. The action resulted in a permanent injunction against Mr. Horvath. Under the terms of the injunction, Mr.

Horvath could continue operating his mulch business only if he fully complied with the township’s zoning resolution and followed specific requirements for storing, monitoring, and maintaining the mulch. In December 2007, the township moved for an order to show cause, requesting that the trial court find Mr. Horvath in contempt for failing to comply with the permanent injunction. In March 2010, the court found Mr. Horvath in contempt and ordered him to cease all of his business operations.

It enjoined each of the defendants from conducting any type of business on the property where the mulch business was operating and ordered Mr. Horvath to remove all of his equipment within 30 days. The Horvaths have appealed, arguing that the trial court violated Mr. Horvath’s due process rights by not affording him a hearing before entering its ruling and that it exercised improper discretion when it punished them for the violations. We affirm in part because Mr. Horvath waived his right to additional hearings and the trial court exercised proper discretion when it imposed his punishment.

We reverse in part because the trial court improperly punished Ms. Horvath. DUE PROCESS {¶ 2} The Horvaths’ first assignment of error is that the trial court incorrectly failed to afford Mr. Horvath a hearing. They argue that Mr.

Horvath had a constitutional due process right to a hearing as well as a statutory right under R.C. 2705.05. {¶ 3} “ ‘ “It has long been the established law of the United States * * * that constitutional procedural due process requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” ’ ” Taylor v. Hamlin-Scanlon, 9th Dist.

No. 23873, 2008-Ohio-1912, 2008 WL 1808366, at ¶ 15, quoting Courtney v. Courtney (1984), 16 Ohio App.3d 329, 334, 16 OBR 377, 475 N.E.2d 1284. R.C. 2705.05(

A) also provides, “In all contempt proceedings, the court shall conduct a hearing.” {¶ 4} The township argues that Mr. Horvath received due process and waived any right that he might have had to additional hearings. It notes that on July 10, 2009, Mr. Horvath filed a “Motion for Order,” requesting “an Order consistent with the Proposed Orders” prepared by the parties’ lawyers. In that motion, Mr. Horvath acknowledged that the trial court “has inspected the property in the presence of all parties and has previously heard arguments from all parties.” The township also notes that the proposed order that Mr.

Horvath asked the court to adopt would have “found [him] to be in contempt of the Court’s Permanent Injunction dated December 19, 2001.” {¶ 5} The trial court held a hearing on the township’s motion for an order to show cause on September 30, 2008. According to the order setting that hearing, if the Horvaths “are not in compliance with this Court’s previously agreed order regarding the clean up of their property, the Court shall proceed with the hearing as to why they shall not be held in contempt of this Court’s prior order.” There is no journal entry continuing the hearing.

The next item in the record is an order dated October 24, 2008, that schedules a telephone status conference for November 4, 2008. That order states, “Prior to the status conference, [the township’s] counsel shall draft and circulate * * * a proposed order of settlement in this case.” The fact that the court was aware in October that the parties were contemplating settlement of the case suggests that the September hearing occurred. {¶ 6} It also appears from the record that the trial court, at the request of Mr. Horvath, visited the mulch business with the parties’ lawyers in attendance.

The trial court therefore had the opportunity to view, firsthand, whether Mr. Horvath’s business was in compliance with the permanent injunction. {¶ 7} We do not know what occurred at the September 30, 2008 hearing or what the trial judge saw during the site visit. It was, however, Mr. Horvath’s “duty to ensure that all parts of the record necessary for determination of the appeal [were] before this court and that the record [was] properly preserved for review.” State v.

Evans (1994), 93 Ohio App.3d 121, 124, 637 N.E.2d 969. “When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court’s proceedings, and affirm.” Knapp v. Edwards Labs. (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 400 N.E.2d 384. Accordingly, we will presume that, between the September 30, 2008, hearing and the site visit, Mr.

Horvath had “a reasonable opportunity to meet [the allegations against him] by way of defense or explanation, [was] * * * represented by counsel, and ha[d] a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” In re Oliver (1948), 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682. {¶ 8} Even if the trial court did not hold a full hearing on the contempt motion, we conclude that Mr.

Horvath waived his right to additional hearings on the motion. “A party can be held to waive his fundamental constitutional rights only if [he] does so knowingly, intelligently, and voluntarily.” Pirtle v. Pirtle (July 20, 2001), 2d Dist. No. 18613, 2001 WL 815008 at *4. As the township notes, Mr. Horvath filed a motion asking the court to enter an order finding him in contempt based on its visit to his mulch business and the arguments it had already heard from the parties. Mr.

Horvath specifically asked the court “to adopt [his] proposed Order or such other Order as the Court determines to be appropriate based on the proposed Orders attached.” Having asked the court to rule on the township’s motion without further evidence, Mr. Horvath waived his right to additional hearings on the matter. Mr. Horvath’s first assignment of error is overruled. SEVERITY OF PUNISHMENT {¶ 9} The Horvaths’ second assignment of error is that the trial court incorrectly imposed punishment that was not commensurate with the gravity of Mr. Horvath’s offense. According to them, the reason Mr.

Horvath was accused of being in violation of the injunction was that “the condition[ ] [of] the Property [was] in disrepair and * * * numerous vehicles, trailers, scrap metal, junk, debris, and trash [were] stored on the property.” The trial court, however, permanently enjoined him from operating any type of business on the property. The Horvaths argue that life sentences should be reserved for only the most despicable crimes. They also argue that the court improperly permanently enjoined Ms. Horvath from operating a business on the property, even though it was Mr.

Horvath who was found in contempt. {¶ 10} R.C. 2705.05(

A) prescribes sanctions for contempt violations, but courts are not required to follow it. The Ohio Supreme Court has held, “Although * * * the General Assembly may prescribe procedure in indirect contempt cases, the power to punish for contempt has traditionally been regarded as inherent in the courts and not subject to legislative control.” Cincinnati v. Cincinnati Dist. Council 51 (1973), 35 Ohio St.2d 197, 207, 64 O.O.2d 129, 299 N.E.2d 686. Courts have “wide discretion to determine the punishment for contempt of [their] own orders.” State ex rel. Anderson v. Indus.

Comm. (1984), 9 Ohio St.3d 170, 172, 9 OBR 456, 459 N.E.2d 548; see also State v. Kilbane (1980), 61 Ohio St.2d 201, 207, 15 O.O.3d 221, 400 N.E.2d 386 (concluding that, in light of the surrounding circumstances, the trial court exercised proper discretion when it determined an appropriate contempt sanction). {¶ 11} The township filed a complaint against Mr. Horvath, Anna Horvath, and W.J. Horvath Company after it allegedly spent more than 600 hours monitoring and fighting numerous fires at Mr. Horvath’s business.

According to the township, the fires threatened the general health, welfare, and safety of its citizens. The action resulted in a permanent injunction against Mr. Horvath, providing that he could continue operating his mulch business only if he was “in full compliance with the Copley Township Zoning Resolution, the applicable fire codes, and the terms and conditions of this Permanent Injunction.” The other terms of the injunction included details about how Mr.

Horvath stored his mulch and rail timbers, how he monitored the temperature of the mulch piles, and how often he had to turn the company’s bulk and shredded materials. {¶ 12} In its motion for an order to show cause, the township alleged that Mr. Horvath had “failed and refused to comply with the terms and conditions of the Permanent Injunction.” In a memorandum it submitted in support of its motion, the township alleged that conditions at the mulch business “have become increasingly worse” and that Mr.

Horvath “has not even attempted to comply” with the injunctions’ requirements regarding mulch and timber storage, monitoring, and maintenance. “To compound matters, [he] has brought numerous trucks, trailers, and other vehicles, scrap metal, junk, trash, and debris onto the property, creating even more violations.” The township asked the court to fine Mr.

Horvath, imprison him for 30 days, allow it to remove anything from his property that violated the zoning resolution, and permanently enjoin him from operating his mulch business. {¶ 13} After the Horvaths filed their “Motion for Order,” the township filed a response, detailing Mr. Horvath’s record of noncompliance with the injunction. It noted the excuses that Mr.

Horvath had offered over the years for his noncompliance, such as “lack of help, his mother’s health, the persons who own the grinders, the weather, the Township itself, the school next door, the economy and his competitors.” It noted that in addition to his mulch business, Mr. Horvath was attempting to operate a dump on the property and intended to open a landscaping business in the future. It argued that Mr. Horvath had never taken responsibility for his conduct and that he “has a systemic inability to operate the mulch business, or any other business on the Property.” {¶ 14} The trial court found that Mr.

Horvath “has been afforded numerous opportunities to comply with the Permanent Injunction * * * and that he has willfully failed and refused to do so.” It also found that Mr.

Horvath “is simply unable or unwilling to operate any kind of business pursuant to the Copley Township Zoning Resolution and the Permanent Injunction.” It concluded that it had “no other alternative but to order that all business operations of whatever kind cease and desist immediately.” {¶ 15} As noted earlier, although it was the Horvaths’ idea for the trial court to inspect the mulch business, they failed to preserve a record of what the court saw during its visit. We therefore must presume it saw evidence that in addition to his mulch business, Mr.

Horvath was improperly operating other businesses on the property. The court was -also entitled to consider Mr. Horvath’s history of noncompliance with the township’s zoning resolution when determining whether he would be willing and able to operate any type of business in accordance with the law. We conclude that, in light of Mr. Horvath’s history of noncompliance, he has not established that the trial court improperly exercised its discretion when it permanently enjoined him and his company from operating any business on the property where he operated the mulch business. {¶ 16} Regarding Ms.

Horvath, the Ohio Supreme Court has recognized that under certain circumstances, nonparties to an injunction may still be bound by it. Planned Parenthood Assn. of Cincinnati Inc. v. Project Jericho (1990), 52 Ohio St.3d 56, 61, 556 N.E.2d 157.

Whether others are also bound “depends upon whether they are ‘persons in active concert or participation with [the parties to the action].’ ” Id., quoting Civ.R. 65(D). “Nonparties are bound by an injunction to ensure ‘that defendants [do] not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.’ ” Id., quoting Regal Knitwear Co. v.

NLRB (1945), 324 U.S. 9, 14, 65 S.Ct. 478, 89 L.Ed. 661. “The determination of breadth must be made on the facts of each case.” Id. “Persons acting in concert or participation with a party against whom an injunction has been issued must have actual notice of the injunction in order to be bound by it.” Id. {¶ 17} Even if Ms. Horvath was bound by the injunction, the township did not allege, let alone prove, that she violated it. The township’s motion for an order to show cause requested only that Mr. Horvath be found in contempt. In its response to Mr.

Horvath’s motion for an order, the township, again, asked only for Mr. Horvath to be found in contempt. Furthermore, in its judgment, the trial court only found Mr. Horvath in contempt. The township has not cited, and this court has been unable to locate, any authority for the idea that a court may sanction a person who has not violated an injunction. To the contrary, in Freeman v. Freeman, 9th Dist.

No. 07CA0036, 2007-Ohio-6400, 2007 WL 4225425, we held, “Without a finding and order of contempt, [a] [magistrate [is] without authority to impose sanctions.” Id. at ¶ 46. {¶ 18} The township concedes in its brief that Ms. Horvath is an “elderly woman with significant health problems who resides in a nursing home and who had no involvement with [Mr. Horvath’s] business.” Accordingly, we conclude that the trial court improperly exercised its discretion when it prohibited Ms. Horvath “from conducting any type of business operations in, on, and from” her property.

Until she is found to have violated the permanent injunction, sanctions against her are not appropriate. The Horvaths’ second assignment of error is overruled in part and sustained in part. CONCLUSION {¶ 19} The trial court did not violate Mr. Horvath’s due process rights, and it exercised proper discretion when it punished him for violating a permanent injunction. The court incorrectly sanctioned Ms. Horvath because it did not find that she violated the injunction. The judgment of the Summit County Common Pleas Court is affirmed in part and reversed in part. Judgment affirmed in part and reversed in part.

Moore, J., concurs. Carr, J., dissents.