[Cite as Home S. & L. Co. v. Midway Marine, Inc., 2012-Ohio-2432.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

HOME SAVINGS AND LOAN CO. ) CASE NO. 10 MA 109 

OF YOUNGSTOWN, OHIO ) 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

MIDWAY MARINE, INC. dba ) 

MIDWAY LEASING, INC., et al. ) 

) 

DEFENDANTS-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 09 CV 1971 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. James G. Floyd 

1200 Metropolitan Tower 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. John C. Ragner 

Atty. Andrew T. Hayes 

Atty. Steven R. Hobson 

Towne, Hanna & Rasnick Co., L.P.A. 

388 South Main Street, Suite 402 

Akron, Ohio 44311 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: May 25, 2012
[Cite as Home S. & L. Co. v. Midway Marine, Inc., 2012-Ohio-2432.]

WAITE, P.J. 

Summary

{¶1} In this appeal Mercure presents three issues: first, whether a trial 

court’s civil contempt finding becomes criminal due to the court’s obvious disapproval 

of Appellant’s actions. Second, whether Appellant’s due process rights were violated 

by an alleged failure of service argument that Appellant failed to raise in the trial 

court. Third, whether Appellant received ineffective assistance of counsel in the trial 

court. Our review of the record reveals that all of Appellant’s arguments lack merit 

and the trial court’s decision is affirmed. 

{¶2} This appeal revolves around a finding of contempt against Appellant, 

Michael Mercure who operated a business known as Midway Marine, Inc. Midway 

Marine, Inc., while a party to the underlying action, is not a party to the instant 

appeal. The record reveals the following: Appellant Mercure, on behalf of Midway 

Marine Inc. executed a secured purchase money loan agreement with Home Savings 

& Loan Co., Appellee herein, for the purchase of a high performance yacht and 

motor. The yacht and motor secured payment on the note and a lien was recorded 

on the title to the yacht by Appellee. Several years after the initial transaction, 

payment on the note had deteriorated from erratic to nonexistent. Appellee 

simultaneously filed a replevin action to recover the yacht and a complaint for the 

money due on the note. Appellee sought and received a writ of possession. 

Appellant Mercure was served with the writ of possession but failed to produce the 

yacht. When Mercure was deposed he acknowledged the debt, but refused to reveal 
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the location of the yacht. He attempted to invoke his right to remain silent in 

response to any question concerning the present or past locations of the yacht and 

Mercure’s dealings with a Texas man who made several loan payments on his 

behalf. On the record during deposition, Mercure was served with a second copy of 

the writ of possession, and was warned that continued noncompliance would result in 

further action by the court. Nevertheless, Mercure failed to produce the yacht. A 

contempt motion was filed. Pursuant to the affidavit of service, the motion was 

served on both Mercure and his counsel via regular and certified mail. Mercure failed 

to appear at the hearing, although his counsel was present. Counsel argued that the 

hearing could not go forward because there was no return of service for Mercure in 

the record. After the magistrate found him in contempt, but before the trial court 

adopted the finding, Mercure filed an affidavit detailing his efforts to recover the 

yacht. The trial court subsequently found Appellant in contempt and ordered 

personal service of the subsequent judgment entry. The contempt entry was not 

served on Appellant until July of the following year, and this appeal was timely filed. 

Facts

{¶3} The underlying suit from which the contempt action arose involved both 

a replevin action seeking the return of collateral and an action on a promissory note 

executed by Appellant Mercure on behalf of Midway Marine, Inc. to Appellee Home 

Savings and Loan Co. The note was executed on July 30, 2003, and secured by a 

50’ Hustler performance yacht and its 470 HP Mercruiser motor, which were to be 

purchased with the proceeds of the loan. On May 27, 2009, Appellee, alleging a 
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default on the note dating from May 8, 2007, filed a complaint in the Mahoning 

County Court of Common Pleas foreclosing its interest in the yacht and seeking an 

immediate writ of possession. Appellee also requested a money judgment for 

$416,740.61 in unpaid principal and interest and an additional $57.19 in daily 

accrued interest while the note remained due and unpaid. Appellee simultaneously 

filed an ex-parte motion for writ of possession and an affidavit in support as well as a 

motion for the appointment of a process server. As grounds in support of a finding 

that there was a “present danger that the property will be disposed of or concealed 

and placed beyond the jurisdiction of the Court” necessitating an extraordinary writ, 

Appellee averred that there had been repeated unanswered demands that Mercure 

produce the collateral and that Appellee had some indication that Mercure may have 

attempted to sell the yacht and motor to a Texas resident who also refused to 

produce the collateral. (5/27/09 Motion for an Order of Possession Without a Hearing 

Trial, ¶12.) 

{¶4} On May 28, 2009 the trial court set bond for both Mercure and Midway 

Marine, Inc., and granted Appellee a writ of possession. A summons was issued and 

a process server appointed that same day. On June 8, 2009 the appointed process 

server filed three returns of service. The first indicated that after five attempts, the 

residential address provided by Appellee for Mercure appeared to be vacant. The 

second and third returns reflected personal service on Mercure and service on 

Midway Marine, both at the same address, and signed for by a “Mr. Parker.” On 

June 26, 2009 Mercure filed an answer through counsel generally denying the 
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allegations in the complaint and alleging the following defenses: accord and 

satisfaction; assumption of risk; contributory negligence; laches; waiver; estoppel; 

venue; and fraud. (6/26/09 Answer.) 

{¶5} During the same period, Appellee conveyed the writ of possession to 

the sheriff’s department, which made several unsuccessful attempts to locate and 

secure the yacht and motor. 

{¶6} On August 10, 2009, Appellee deposed Mercure in connection with this 

matter. At the deposition, Mercure repeatedly stated he wished to invoke his Fifth 

Amendment rights in response to any question concerning the whereabouts of the 

yacht and his dealings with Warren Tillerson, the Texas resident who may have had 

possession of the yacht and who made several loan payments to Home Savings on 

behalf of Mercure for the note secured by the yacht. (Mercure Depo., pp. 6-7, 34-40.) 

Mercure was personally served the May 28, 2009 writ of possession on the record 

during the deposition and was informed that the court would be notified of any 

continued failure to produce the yacht. Mercure failed to produce the yacht or any 

information to lead to its discovery. 

{¶7} On August 14, 2009, Appellee filed a show cause motion due to 

Mercure’s failure to produce the yacht and refusal to disclose its location. Appellee 

raised, as cause, Mercure’s attempts to invoke the Fifth Amendment during the 

deposition and asked that he be held in direct contempt, pursuant to R.C. 2705, for 

his refusal to answer and his failure to produce the yacht and motor. The show 

cause motion included a notice of hearing for August 28, 2009 at 2:00 p.m., and was 
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signed by counsel for Appellee. Attached to the motion was a copy of the trial court’s 

May 28, 2009 writ of possession and an affidavit of service, executed by a Judy 

Rader and notarized by a Susan Pritchard. The affiant, Ms. Radar, who was not 

Appellee’s counsel, swore that the motion was served on both Mercure and his 

counsel via both regular and certified U.S. Mail. The affiant included the certified mail 

receipt numbers in her affidavit, one of which was incomplete. 

{¶8} The show cause hearing was held on August 28, 2009. Counsel for 

Mercure appeared but Mercure, himself, did not. Those present stipulated that the 

yacht had not been delivered to Home Savings. Mercure’s counsel argued during 

the hearing that the record did not reflect a return of service on Mercure. He did not, 

however, argue that his client had not been served. It appears inarguable that 

Mercure’s counsel received the motion, in light of his presence at the hearing. The 

hearing went forward as scheduled and the magistrate filed a decision on November 

12, 2009. 

{¶9} On November 23, 2009, Mercure executed and filed a copy of an 

affidavit which appears in the record as a “Notice of Efforts to Purge.” The document 

in the record is a copy and it is unclear whether the actual affidavit was ever filed. In 

it, Mercure states that he purchased a Hustler Power Boat in 2003 and financed the 

purchase through Home Savings. He swears that he delivered the yacht to a Mr. 

Tillerson, of Texas, in November of 2007 and that Tillerson agreed to be responsible 

for payment of the remainder of the obligation to Home Savings until it was “fully and 

completely satisfied.” (Mercure Aff., ¶4.) Attached to, but not referenced in, the 
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affidavit is a copy of an email titled “boat agreement,” the body of which identifies 

Mercure and Tillerson as the parties to the agreement and indicates that Tillerson 

would take over the remaining 119 loan payments of $2900.00 per month for the 

yacht that is the subject of this action. The document appears to have been signed 

by both parties. 

{¶10} Mercure acknowledged in his affidavit that on November 18, 2009 he 

was aware of the “contempt citation against him,” which appears to refer to the 

magistrate’s November 12, 2009 decision finding him in contempt, copies of which 

were served by the clerk on November 17, 2009. He explained that his efforts to 

purge contempt consisted of a phone call to Tillerson requesting that the yacht be 

made available to him. Mercure avers that Tillerson “threatened to kill me and advise 

that ‘somebody came to his house and took the boat and he did not want to get 

involved,’” and that Tillerson also told him that the yacht had been kept in a locked 

storage facility at all times. (Mercure Aff., ¶9-10.) Mercure concluded that he had, in 

the form of this phone call, “taken all reasonable measures to procure the boat in 

question for return to Home Savings Bank” and that it was his belief that the yacht 

either remained with Tillerson in Texas or had already been repossessed by 

Appellee, Home Savings. (Mercure Aff., ¶11-12.) Appellee filed in opposition to 

Mercure’s notice of efforts to purge contempt. It did not object to the form of the 

affidavit and unincorporated exhibit, but detailed the contradictions between the 

information contained in the affidavit and Mercure’s repeated, apparently unmerited, 

invocations of his Fifth Amendment rights during the August deposition. Appellee 
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identified each discrepancy and urged the court to recognize Mercure’s evident 

perjury concerning his knowledge of the location of the yacht and his possibly 

frivolous invocation of the Fifth Amendment. No further document or motion was filed 

by either party on this issue. 

{¶11} The trial court adopted the magistrate’s decision in the absence of 

objections on December 17, 2009 and it was entered in the record on December 23, 

2009. The trial court specifically found Mercure was in indirect civil contempt and 

ordered him to either (1) serve thirty (30) days in jail and pay a fine of $250.00 or (2) 

purge contempt by producing the yacht within ten days of the entry of the court’s 

judgment. The trial court specifically ordered personal service of the judgment entry 

on Mercure. Docket entries on December 29, 2009 show service to Mercure of the 

entry was attempted via regular and certified U.S. Mail in addition to personal service. 

The order for service was returned indicating that there was a failure to make contact 

on January 7, 2010. On March 31, 2010, Appellee sought and received leave to use 

a private process server to serve the December 23, 2009 judgment. No return of 

service was filed. On July 8, 2010 Appellee was again granted leave for private party 

service of the judgment; return of service was filed July 9, 2010. 

{¶12} Between the December 23, 2009 judgment entry finding Mercure in 

contempt and service of the contempt order on July 9, 2010, Appellee sought and 

received summary judgment with regard to the amount due on the promissory note. 

The initial summary judgment motion was filed on March 25, 2010. Mercure filed 

timely objections to the magistrate’s subsequent April 26, 2010 decision as well as a 
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separate motion to vacate the decision on May 7, 2010. Both motions alleged that 

counsel for Mercure had not received service of the summary judgment motion and 

listed failure of service as the sole basis for relief. Neither motion was supported by 

affidavit or other evidence. Appellee filed in opposition to the motion to vacate on 

May 10, 2010. The trial court adopted the magistrate’s decision and denied the 

motion to vacate in two separate orders on June 4, 2010. 

{¶13} During the same period, Appellee also sought, and the magistrate 

signed, a release of the replevin bond, as the collateral was now subject to the trial 

court’s contempt order. The order releasing bond has apparently not yet been 

adopted by the trial court. The action on the note itself was resolved in summary 

judgment; the replevin action is pending on the outcome of this appeal. 

Procedural History

{¶14} Mercure initially filed his notice of appeal on July 12, 2010. His July 12 

notice identified a June 14, 2010 judgment entry as the final order on appeal. As we 

subsequently noted, there was no order entered by the trial court on June 14, 2010. 

Instead there was a June 4, 2010 entry, adopting the magistrate’s decision granting 

summary judgment to Appellee Home Savings with regard to the action on the note. 

According to the docket, the service copies were issued and mailed on June 14, 

2010. On July 27, 2010 Mercure filed an amended notice of appeal, identifying the 

trial court’s December 23, 2009 judgment entry as the basis for appeal, claiming the 

2009 entry was not served on either he or his counsel until July 9, 2010. Given the 

multiple bases cited for appeal and the seeming untimeliness of the conflicting 
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notices, we ordered Mercure to prepare a jurisdictional memorandum clarifying the 

order appealed from and establishing the timeliness of the filing. Mercure complied 

and explained that according to the record, the trial court’s December 23, 2009 

judgment entry had not been served on him until July 9, 2010. (10/14/10 J.E.) 

Around the same time as this Court’s entry concerning the need for a jurisdictional 

memorandum, Mercure’s counsel also sought and later received leave to withdraw. 

New counsel entered his appearance on the record. 

{¶15} A motion for stay of execution pending the outcome of appeal had been 

filed in the trial court on August 12, 2010. On September 16, 2010 the trial court 

indicated that the motion would be taken under advisement, and entered no 

subsequent ruling. New counsel filed a motion for stay of execution in this Court on 

September 28, 2010, referring to the earlier motion and renewing the request, citing 

principles of fairness. We granted Mercure’s motion for stay of execution on October 

14, 2010, and held his thirty days of incarceration and $250.00 fine in abeyance 

pending the outcome of this appeal. Mercure has filed his merit brief. No Appellee’s 

brief has been filed. 

Argument and Law

{¶16} Mercure’s first and second assignments of error challenge the 

procedure followed and the penalty imposed by the trial court pursuant to R.C. 2705. 

Mercure alleges that the trial court went beyond the scope of the rule with regard to 

civil contempt and, in essence, imposed a punitive criminal penalty that it 

misidentified as indirect civil contempt violation. The trial court’s compliance with the 
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statute, the civil rules and applicable caselaw is determinative of both assignments 

and for this reason they will be discussed together. 

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT VIOLATED MR. MERCURE’S DUE PROCESS 

RIGHTS AND ERRED BY SENTENCING MR. MERCURE TO 30 

DAYS IN JAIL FOLLOWING A CONTEMPT HEARING HELD IN 

ABSENTIA AND WHERE MR. MERCURE DID NOT RECEIVE 

PROPER OR REASONABLE NOTICE, TIME TO PREPARE A 

DEFENSE, AND AN OPPORTUNITY TO BE HEARD AT HEARING. 

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN ORDERING IMPRISONMENT TO MR. 

MERCURE AS A PUNISHMENT FOR A CIVIL DEBT IN VIOLATION 

OF ARTICLE I, SECTION 15 OF THE OHIO CONSTITUTION. 

{¶17} A trial court’s contempt finding is reviewed for abuse of discretion. 

State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). 

Abuse of discretion connotes more than an error of judgment; it implies that the 

court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the 

abuse of discretion standard, a reviewing court is not free to merely substitute its 
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judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 

566 N.E.2d 1181 (1991). 

{¶18} Mercure argues that in the matter below, although the trial court found 

his failure to comply with the writ of possession was indirect civil contempt, the trial 

court’s finding and penalty imposed were, in fact, criminal, because the language of 

the magistrate’s decision disclosed an overriding punitive purpose and the sentence 

itself is “punitive in nature and operates as a punishment for a completed act of 

disobedience * * * [and] used ‘to vindicate the authority of the court.’” (Appellants’ 

Brf., p. 9). Mercure maintains that the penalty imposed by the court below conditions 

future behavior in a manner more commonly associated with criminal contempt than 

with civil contempt. Therefore, Mercure claims, it triggered a need to comply with the 

due process requirements associated with criminal contempt. He urges that as a 

criminal contemnor his presence was required at the hearing before any penalty for 

contempt could be imposed. Mercure is mistaken in his interpretation of this record. 

{¶19} Contempt has been defined by the courts as the disregard or 

disobedience of an order or command of judicial authority. See, First Bank of 

Marietta v. Mascrete, Inc., 125 Ohio App.3d 257, 263, 708 N.E.2d 262 (1998). 

Contempt may also involve an act or omission that substantially disrespects the 

judicial process in a particular case. Byron v. Byron, 10th Dist. No. 03 AP 819, 2004-

Ohio-2143 at ¶11, appeal not allowed by 103 Ohio St.3d 1462, 2004-Ohio-5056, 815 

N.E.2d 678. Contempt can be characterized as either direct or indirect. Id. at ¶12. 

Direct contempt occurs when a party engages in conduct in the presence of the court 
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that interferes with the administration of justice. R.C. 2705.01; Turner v. Turner, 10th 

Dist. No. 98AP-999, 1999 WL 356279 (May 18, 1999). Indirect contempt, on the 

other hand, occurs when a party engages in conduct outside the presence of the 

court that demonstrates a lack of respect for the court or its lawful orders. Byron, 

supra, citing State v. Drake, 73 Ohio App.3d 640, 643, 598 N.E.2d 115 (1991). 

Failure to comply with court orders, for example, the failure to pay child support, is 

viewed by courts as indirect contempt, because it occurs outside of the presence of 

the court but is nevertheless demonstrative of a lack of respect for the court. 

DeLawder v. Dodson, 4th Dist. No. 02CA27, 2003-Ohio-2092, at ¶11. 

{¶20} Courts may further characterize contempt as criminal or civil, depending 

on the nature of the contempt sanctions. Criminal contempt imposes sanctions that 

are punitive in nature, and are designed to punish the party for past failures to 

comply with the court's order. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 555, 

740 N.E.2d 265 (2001). Criminal contempt usually involves mandatory incarceration, 

and the party found to be in contempt usually has no opportunity to avoid the 

incarceration. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 254, 416 

N.E.2d 610 (1980). 

{¶21} Civil contempt, on the other hand, is remedial or coercive in nature, and 

will be imposed to benefit the complainant. DeLawder, supra, at ¶9, citing Pugh v. 

Pugh, 15 Ohio St.3d 136, 139, 472 N.E.2d 1085 (1984). Any sanction imposed by 

the court for civil contempt must provide the contemnor with an opportunity to purge 

the contempt. DeLawder, supra, at ¶10. “The contemnor is said to carry the keys of 
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his prison in his own pocket * * * since he will be freed if he agrees to do as ordered.” 

Brown, supra, at 253. 

{¶22} A trial court’s authority to impose sanctions for contempt of court is part 

of the inherent power of the court to govern proceedings. Denovchek v. Bd. of 

Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988). Contempt is 

also defined by statute and penalties are prescribed by R.C. 2705.01 et seq., which 

provides in pertinent part: 

R.C. 2705.02 Acts in Contempt of court. A person guilty of any of the 

following acts may be punished as for a contempt: 

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

judgment, or command of a court or officer 

* * * 

(C) A failure to obey a subpoena duly served, or a refusal to be sworn 

or to answer as a witness, when lawfully required * * * 

R.C. 2705.03 Hearing. 
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[A] charge in writing shall be filed with the clerk of the court, an entry 

thereof made upon the journal, and an opportunity given to the accused 

to be heard, by himself or counsel. * * * 

R.C. 2705.05 Hearings for contempt proceedings. (A) In all contempt 

proceedings, the court shall conduct a hearing. At the hearing, the 

court shall investigate the charge and hear any answer or testimony 

that the accused makes or offers and shall determine whether the 

accused is guilty of the contempt charge. If the accused is found guilty, 

the court may impose any of the following penalties: 

(1) For a first offense, a fine of not more than two hundred fifty dollars, a 

definite term of imprisonment of not more than thirty days in jail, or both; 

* * * 

The statute governing contempt is silent as to the requirements of service, as is the 

Ohio Supreme Court caselaw on the subject. However, the Supreme Court has held 

that “an action brought under R.C. 2705.05 alone may be deemed to be essentially 

civil in nature.” Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 

610 (1980). Where contempt is civil, the clear and convincing evidentiary standard 

applies. Id. Generally, it appears in practice among the districts that the nature of 

the proceeding giving rise to the contempt motion, and the nature of the conduct 
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resulting in the motion, determines the service requirements associated with the 

contempt motion. 

{¶23} Mercure mis-cites a Fifth District case, Bierce v. Howell, 5th Dist. No. 

06 CAF 05 0032, 2007-Ohio-3050, for the proposition that service of a contempt 

motion on a party’s attorney is insufficient notice and that the initial contempt motion 

must be served directly on the party. This is not the holding in Bierce, nor is this an 

accurate statement of the law. While there is, as is noted in Bierce, some divergence 

among the districts as to the nature of the service required under varying 

circumstances, the court nevertheless concluded that where contempt is civil in 

nature, the civil rules regarding notice apply. Id. at ¶20, also Quisenberry v. 

Quisenberry, 91 Ohio App.3d 341, 346, 632 N.E. 2d 916 (1993) “[i]nasmuch as there 

is no specified manner of process required for the filing of a motion for civil contempt, 

a person serving such a motion may do so in any manner authorized by the Ohio 

Rules of Civil Procedure.” 

{¶24} The divergences from this principle noted by Mercure and recognized in 

the Second and Twelfth Districts were due to the fact that the motions filed in those 

cases were contempt motions seeking enforcement of divorce decrees, sometimes 

several years after the decree was final. Both courts in this scenario recognized that 

the contemnor may not have an ongoing relationship with counsel from a divorce that 

had been concluded. Therefore, the initial motion must be served on the party, not 

former counsel, as it was in essence a new proceeding. The facts in this case do not 

merit an enhanced service requirement, nor does the law require it. If in fact the 
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contempt involved is civil and not criminal, as advanced by Mercure, then the service 

requirements that apply are those contained in Civ.R. 5. The record here reflects that 

service was correctly sought and obtained. 

{¶25} Mercure’s assertion that, due to the court’s obvious disapproval of 

Mercure’s conduct, the proceeding was inherently punitive and therefore criminal is 

simply inaccurate. As various courts have noted, “punishment is inherent in 

contempt, courts will categorize the penalty as either civil or criminal based on the 

character and purpose of the punishment.” In re J.M., 12th Dist. No. CA2008-01-004, 

2008-Ohio-6763, ¶47, citing Brown, supra. The fact that a contempt finding may 

result in punishment does not necessarily define it as criminal contempt. The instant 

motion was filed due to Mercure’s failure to produce the object of a replevin action, 

and his refusal during the deposition to provide any information whatsoever that 

would lead to the current location of the yacht. The penalty imposed by the court 

could be completely purged by Mercure if he in some way produced the yacht. This 

is the precisely in line with the coercive nature that defines a civil contempt. Mercure 

was unquestionably aware of the writ of possession: he had been served with a 

copy, and was provided with another copy on the record during his deposition. 

{¶26} The transcript of the deposition, which was in the record for the court to 

consider when ruling on the contempt motion, reflects Mercure’s repeated invocation 

of his Fifth Amendment privilege in response to any question concerning the current 

location of the yacht and his interactions with Tillerson. The transcript also reflects 

that counsel for Appellee contacted Tillerson prior to the deposition and asked about 
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the location of the yacht. Tillerson responded via email, which counsel produced at 

the deposition for Mercure to read. In it, Tillerson stated that Mercure had arrived in 

Texas on January 17, 2009 and had taken the yacht and that he (Tillerson) did not 

wish to be contacted further concerning the matter. (Mercure Depo., pp. 40-41). 

Counsel then asked Mercure if he had gone to Texas and retrieved the yacht in 

January. Mercure invoked the Fifth Amendment. When counsel asked where the 

yacht was currently located, Mercure invoked the Fifth Amendment. Id., see also

Home Savings Exhibit I, August 10, 2009. 

{¶27} Subsequently, Mercure filed a document entitled “Notice of Efforts to 

Purge Contempt” concerning his relationship with Tillerson. Mercure’s assertions in 

that affidavit call into question the propriety of his invocation of the Fifth Amendment 

during the deposition, if they are to be believed. In his notice, Mercure claims that he 

contacted Tillerson and that Tillerson had responded by threatening to kill him. He 

said Tillerson also told him that the yacht had been removed from Tillerson’s property 

by “someone” and that Tillerson knew it was being removed, but “did not want to get 

involved.” (Mercure Aff., ¶9.) At no time did Mercure contradict the information 

contained in the email from Tillerson to counsel in which Tillerson stated that it was 

Mercure who had, in fact, removed the yacht from Tillerson’s property in January. 

{¶28} Faced with this contradictory information concerning the extent of 

Mercure’s knowledge concerning the current location of the yacht and his decision to 

invoke the Fifth Amendment, which in a civil proceeding permits a negative inference, 

the trial court apparently concluded that Mercure still had knowledge of the yacht’s 
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whereabouts, and accordingly entered a contempt finding. The court’s contempt 

finding in the replevin action was specifically calculated to coerce Mercure to produce 

the yacht: Mercure was to serve thirty days in jail and pay a fine of $250.00, the 

statutory penalties for a first time offender, or he could purge his contempt in its 

entirety by producing the property. This penalty is remedial and allows the 

contemnor an opportunity to purge his sentence in its entirety. Hence, this contempt 

is civil in nature, and the civil rules regarding notice apply. Brown, supra. at 253; 

Bierce, supra, at ¶20. 

{¶29} Finally, as the civil rules of service apply to this contempt motion, 

service was indisputably perfected on counsel pursuant to Civ.R. 5(A) and (B). Civil 

Rule 5(A), titled “Service and Filing of Pleadings and Other Papers Subsequent to the 

Original Complaint,” requires “every written motion other than one which may be 

heard ex parte * * * shall be served upon each of the parties;” part (B) of the rule 

clarifies “[w]henever under these rules service is required or permitted to be made 

upon a party who is represented by an attorney of record in the proceedings, the 

service shall be made upon the attorney.” Under Civ.R. 5(B), subsequent to 

successful service of the complaint, service by mail is complete upon mailing. No 

return of service is required under the civil rules, under the contempt statute, or under 

caselaw. No Ohio court has held that personal service is required to perfect a 

contempt motion, unless personal service is ordered by the court pursuant to Civ.R. 

5. 
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{¶30} Despite Mercure’s attempt to create confusion around the issue of an 

alleged failure of service of the contempt motion, this issue was never raised in the 

trial court, nor does the record support this conclusion. Mercure argues for the first 

time in his appellate brief that he was not served with the contempt motion, and 

attempts to point to his November 23, 2009 affidavit as evidence that he never 

received the initial motion. What the affidavit actually says is “[o]n or about 

November 18, 2009 I became aware of the fact that a contempt citation had been 

issued against me in case number 09-CV-1971;” the magistrate’s decision finding 

Mercure in contempt was entered in the record on November 12, 2009 and the 

docket reflects service by the clerk on November 17, 2009. Given the timing and the 

language of the statement, it appears that “contempt citation * * * issued against me” 

refers not to the initial contempt motion but to the November 12, 2009 issuance of the 

magistrate’s decision. The affidavit of service is therefore uncontradicted. Service 

was complete upon mailing, and Mercure has waived any further due process 

argument concerning notice by failing to object at the trial level. State v. Phillips, 74 

Ohio St.3d 72, 74 (1995); State v. Bidinost, 71 Ohio St.3d 449, 452 (1994).

{¶31} Because the record reflects he was properly served with the contempt 

motion, the only remaining issues are whether Mercure had sufficient notice of the 

hearing and if the hearing itself was adequate under the statute. No separate notice 

period is prescribed by the contempt statute. Mercure advances the proposition that 

fewer than thirty days is generally unreasonable, citing Culberson v. Culberson, 60 

Ohio App.2d 304 (1st Dist. 1978); Erven v. Erven, 1981 WL 9623 (1st Dist.); and 
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Poptic v. Poptic, 2006 WL 1493262. Again, the determinations in these cases were 

fact driven: in Culberson, the court found that less than thirty days’ notice of an exhusband’s contempt motion was inadequate to a divorced wife who had remarried in 

good faith and moved out of state and where counsel had requested, but been 

denied, additional time to prepare her defense. In Erven, again a post-divorce action, 

the ex-wife had moved out of state and the record was unclear as to whether she 

ever received service of the contempt action against her. She was tried in absentia,

over the objections of counsel as to the sufficiency of service and the journalization of 

the underlying order. In Erven, the First District applied its Culberson holding, 

passed on the mechanics of service, and found under the circumstances that a 21 

day notice of hearing was inadequate. In Poptic, again a post-divorce-decree 

contempt motion, the motion was filed against an out of state spouse, this time in 

California. The Twelfth District cited Erven in support of its finding that six days’ 

notice was unreasonable under the circumstances. 

{¶32} In contrast, the Sixth District has found that one day of notice, which 

was subsequently extended to six total days of notice, is adequate in a municipal 

court nuisance proceeding. Ottawa Hills v. Afjeh, 6th Dist. No. L-10-1353, 2012-

Ohio-125. The reviewing court in Ottawa Hills distinguished Poptic because Poptic

involved a divorce matter in which the alleged contemnor was in California and the 

trial court denied the contemnor’s request for continuance and instead tried the 

contemnor in absentia. The contemnor in Ottawa Hills, however, was present in this 

state, and had been notified on September 8, 2010 of a contempt hearing to be held 
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on September 9, 2010, at which she requested and was granted a continuance until 

September 15, 2010. She then appeared with counsel at the September 15, 2010 

hearing, requested no further continuance, and raised no objection as to notice. Id. 

at ¶25. 

{¶33} The only condition as to notice provided by statute is that it must be 

“reasonable.” No bright line test exists. What constitutes reasonable notice must be 

evaluated under the circumstances of every individual case. While the Sixth District 

decision in Ottawa Hills, supra, appears to present an extreme end of the spectrum, 

there exists a wide range of discretion on the part of the trial court. As this is a civil 

contempt matter and proceedings are governed by the rules of civil procedure where 

applicable, Civ.R. 6(D) provides guidance as to what constitutes reasonable notice: 

“[a] written motion, other than one which may be heard ex parte, and notice of the 

hearing thereof shall be served not later than seven days before the time fixed for 

hearing.” The motion and notice in question were served on both Mercure and his 

counsel fourteen days prior to the time fixed for hearing. Both Mercure and his 

counsel reside in the state of Ohio. Service was made to the address provided by 

counsel in his notice of appearance and to Mercure at the addresses he provided 

and confirmed during the deposition, by both regular and certified mail. At the time 

the motion was served the proceeding was ongoing. No continuance was sought 

and counsel appeared at the hearing. Although Mercure challenges the 

reasonableness of the notice provided on appeal, he does not challenge the 

adequacy of the hearing itself, nor does he explain how he was prejudiced by the 
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notice provided. As attested by Mercure, his subsequent attempt to purge consisted 

of a single phone call. There is no indication that this call could not have been made 

during the initial 14-day period. Under these circumstances, the notice provided was 

reasonable. Mercure has not raised any defect in the hearing nor has he provided a 

transcript, and in the absence of evidence to the contrary, “all reasonable 

presumptions consistent with the record will be indulged in favor of the validity of the 

judgment under review and of the regularity and legality of the proceeding below.” In 

re Sublett, 169 Ohio St. 19, 20, 157 N.E.2d 324 (1959). 

{¶34} Mercure also argues, in support of his first assignment of error, that due 

process standards prohibit the court from finding the accused in contempt in 

absentia. Mercure is mistaken in his assertion. As the court in Adams v. Epperly, 27 

Ohio App.3d 51, 52, 499 N.E.2d 374 (1985), stated, “[a]mong the rights afforded to 

both civil and criminal contemnors are notice and an opportunity for a hearing on the 

matter.” (Citations omitted.) The Court in Adams concluded that in a criminal 

contempt, as opposed to a civil contempt matter, the alleged contemnor must not 

only have the opportunity to be present, he must also actually be present at the 

criminal contempt hearing. In a civil contempt, an alleged contemnor is entitled only 

to those rights afforded in a civil action. Schrader v. Huff, 8 Ohio App.3d 111, 112, 

456 N.E.2d 587 (1983). As is reflected in the language of the statute itself, an 

opportunity to be heard must be “given to the accused, by himself or counsel.” In the 

instant matter, Mercure was given notice and he was provided a hearing. At that 

hearing, the court heard and admitted evidence. Mercure elected not to attend; 
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nevertheless, counsel was present to represent his interests. Hence, Mercure’s 

arguments on this issue lack merit. 

{¶35} Finally, Mercure posits that the contempt is moot because Appellee was 

granted summary judgment on its foreclosure claim. Again, Mercure mistakes the 

law on this matter. Appellee Home Savings is a secured creditor with an extant lien 

on the collateral; the money judgment on the note does not satisfy or extinguish the 

property interest in the collateral. The contempt finding in the replevin action on the 

collateral is independent of the money judgment on the note. While it is true that had 

the parties settled the underlying suit, or had Mercure successfully defended the 

replevin action or produced the collateral, or had the underlying suit been dismissed 

under Civ.R. 41 as was the case in State ex rel Corn v. Russo, 90 Ohio St.3d 551 

(2001), the contempt would be moot. We note, however, that Appellant mis-cites 

Russo for the proposition that if a suit has settled “or been resolved” the civil 

contempt is moot. The Russo court actually held that the civil contempt was 

extinguished by the plaintiff’s voluntary dismissal of the suit but that the criminal 

contempt survived. Regardless, in this matter, the entry granting summary judgment 

on the note does not extinguish the pending writ of possession. 

{¶36} Final judgment in a replevin action is defined by R.C. 2737.14. “In an 

action to recover possession of personal property in which an order of possession 

has been issued, the final judgment shall award permanent possession of the 

property and any damages to the party obtaining the award. * * * If delivery of the 

property cannot be made, the action may proceed as a claim for conversion upon 
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due notice * * *.” Although the separate complaint on the promissory note and the 

motion for writ of possession without hearing were filed at the same time and 

assigned the same case number, they each have separate remedies and resolutions. 

The summary judgment motion did not seek disposition of the collateral and the entry 

granting summary judgment does not address that issue. The magistrate’s ruling 

cancelling the replevin bond specifically notes that it in no way alters the writ of 

possession that is the subject of the contempt. Under these circumstances, the 

contempt is not moot because the replevin action is unresolved pending the outcome 

of this appeal. 

{¶37} Mercure extends his argument that the trial court’s indirect civil 

contempt finding was in fact a criminal contempt finding to argue that the trial court 

imposed a criminal penalty on him for a civil debt in violation of his rights under 

Article I, Section 15 of the Ohio Constitution, which provides that “[n]o person shall be 

imprisoned for debt in any civil action, on mesne or final process, unless in cases of 

fraud.” In Mercure’s argument he confuses his contempt finding based on his failure 

to comply with a court order with being sentenced to prison for the nonpayment of a 

debt. The record clearly reflects that the jail sentence issued by the trial court in this 

matter was not a punishment for a civil debt, but was instead a statutorily permitted 

penalty for civil contempt designed to give Mercure an incentive to comply with the 

trial court’s writ of possession. Mercure’s failure to comply resulted in a sentence of 

thirty days of imprisonment, not his failure to pay a civil debt. 
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{¶38} Mercure had notice of the writ of possession. He was informed of the 

possibility of further adverse action for failure to comply with the writ. He received 

adequate notice of the contempt motion and hearing. A hearing was held, although 

he elected not to attend. The penalty imposed by the court was within the 

parameters allowed for indirect civil contempt and could be fully purged by the 

production of the property in question. For these reasons, both Mercure’s first and 

second assignments of error are without merit and are overruled. 

ASSIGNMENT OF ERROR NO. 3

MR. MERCURE’S FORMER TRIAL COUNSEL PROVIDED 

INEFFECTIVE ASSISTANCE OF COUNSEL BY NOT 

OBJECTING TO THE MAGISTRATE’S DECISION 

FINDING MR. MERCURE IN INDIRECT CIVIL 

CONTEMPT AND SENTENCING HIM TO 30 DAYS IN 

JAIL, WHICH WAS IN VIOLATION OF MR. MERCURE’S 

DUE PROCESS AND CONSTITUTIONAL RIGHTS. 

{¶39} While in an earlier case the Ohio Supreme Court decided to the 

contrary, In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976), an accused 

contemnor in a civil contempt case does have the right to counsel where 

incarceration is a possible sanction. Lassiter v. Dept. of Social Serv., 452 U.S. 18, 

101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Appellant in the instant matter was 

represented throughout, and was clearly represented during the contempt hearing. 
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The right to effective assistance of counsel is part of the due process right to counsel. 

To prevail on an ineffective assistance of counsel claim Mercure must show, first, that 

counsel's performance was deficient and, second, that the deficient performance 

prejudiced the defense so as to deprive him of a fair trial. Strickland v. Washington, 

466 U.S. 668, 687 (1984). On review, Mercure alleges that he received ineffective 

assistance of counsel due to trial counsel’s decision to file a notice of efforts to purge 

contempt instead of filing objections to the magistrate’s decision. Mercure urges that 

there is no strategic reason that could justify a failure to file objections, and that this 

failure, per se, amounts to ineffective assistance. 

{¶40} Under Civ.R. 53(E)(4)(a), a trial court can adopt a magistrate's decision 

if no objections are filed unless the court determines that there is an error of law or 

other defect on the face of the magistrate's decision. Mercure does not allege the 

existence of error or defect on the face of the decision, and our review of the matter 

does not reveal error or defect. Mercure also fails to identify any error of fact, 

although he maintains trial counsel should have challenged the sufficiency of his 

notice of the hearing and the finding that Mercure had the yacht in his possession. 

As discussed earlier, the notice reflected in the record was sufficient, and Mercure’s 

tardy assertion that he no longer had possession of the yacht was made for the 

record in his notice outlining his efforts to purge. These assertions, however, were 

also directly contradicted in the email produced by Appellee. Both were before the 

court when it adopted the magistrate’s decision. As the only defect alleged by 

Mercure is not found in the record, it is impossible to conclude from the evidence that 
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counsel’s decision to file an affidavit of his efforts to purge rather than objections to 

the magistrate’s decision was patently deficient under the circumstances. Effective 

assistance of counsel does not require that counsel file every possible motion or 

objection. The evidence before the court supported a finding of indirect civil 

contempt, and nothing advanced by Mercure suggests that filing an objection to the 

magistrate’s decision would have substantively altered the outcome. Mercure’s third 

assignment of error is also without merit and is overruled. 

Conclusion

{¶41} The evidence before the court supported a finding of indirect civil 

contempt. Mercure received sufficient notice of the motion and an opportunity to be 

heard. His thirty day jail sentence was not imposed for failure to pay a civil debt, but 

instead, for failure to comply with a court order and he was afforded an opportunity to 

purge his contempt. Mercure received effective assistance of counsel at the trial 

level. For these reasons, Mercure’s three assignments of error are overruled and the 

trial court’s decision is affirmed in total. 

Vukovich, J., concurs. 

DeGenaro, J., concurs.