COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60781 CLEVELAND POLICE CREDIT UNION, : et al : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION REGINALD CROSBY, et al : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 30, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Municipal Court : Case No. 88 CVF 17804 JUDGMENT : AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: RONALD B. WERNER Attorney at Law 12300 Lorain Avenue Cleveland, Ohio 44111 For defendant-appellee: WILLIAM H. SMITH 1276 W. 3rd Street Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, P.J.: Plaintiff-appellant, Cleveland Police Credit Union, timely appeals the trial court's judgments of indirect contempt rendered against each of appellant's counsel, Robert Small and Ronald Werner, and award of attorney fees to appellee pursuant to R.C. 2323.51 for frivolous conduct on the part of appellant's counsel in filing a motion for default judgment notwithstanding that an answer was filed in the action. For the reasons set forth below, we affirm the judgments of the trial court as modified, reducing the penalty imposed on appellant's counsel, Robert Small and Ronald Werner, to two hundred fifty dollars each for being found in contempt of court. The pertinent facts of this case are as follows: On June 9, 1988, appellant filed a complaint for a credi- tor's bill against the judgment debtor and party-defendant Reginald Crosby and appellee Thomas McGuire Bail Bonds. Appellee Thomas McGuire Bail Bonds filed an answer and motion for judgment on the pleadings on August 9, 1988, which were served on appel- lant's counsel, Ronald Werner. Appellant's counsel subsequently filed a motion for default judgment which wrongly alleged that appellee had failed to respond to appellant's complaint. The - 2 - trial court granted the motion for default judgment on March 20, 1989. On August 13, 1990, appellant filed a motion to show cause to implement the default judgment, which was set for a September 25, 1990 hearing. With the agreement of appellant's counsel, Small and Werner, the hearing was continued until 11:00 a.m. on October 2, 1990. However, on that date, Mr. Small did not appear at this hearing, and attempts by the court to locate him that morning were unavailing. The court ordered that a citation for contempt of court be issued against Mr. Small. Furthermore, Mr. Werner did not arrive until the end of the hearing and was approximately an hour and fifteen minutes late. The court had received no communications from Mr. Werner's office stating that he would arrive late to the hearing. Mr. Werner stated that he was at a bankruptcy hearing until 12:00 noon and that Mr. Small was summoned to Summit County. During the hearing, the trial court granted appellee's oral motion to vacate the default judgment based on evidence that an answer was filed in the action. Appellee's counsel subsequently filed a motion for attorney's fees pursuant to R.C. 2323.51 for frivolous conduct on the part of appellant's counsel in filing a motion for default judgment. On October 11, 1990, a hearing was held on appellee's motion for attorney fees for frivolous conduct on the part of appel- lant's counsel in filing the motion for default judgment and to - 3 - determine whether Mr. Small and Mr. Werner should be cited for contempt of court for failure to attend and arriving late to the October 2nd hearing. Prior to this hearing, both Mr. Small and Mr. Werner were served with notices to show cause why they "should not be adjudged in contempt of Court for failure to obey an order of this Court in the above entitled proceedings." Appellee's counsel testified that the answer was served by mail service to Mr. Werner on August 8, 1988. A cover letter enclosed with the pleadings, dated August 12, 1988, and addressed to Mr. Werner was introduced into evidence which stated, "Enclosed please find the Answer to Thomas McGuire which I filed on August 9, 1987." (The "1987" was a typographical error which was meant to be "1988.") Also, a response letter from appellant's counsel, Mr. Small, to appellee's counsel dated August 26, 1988 was introduced into evidence that stated, in pertinent part, "Dear Sir: In response to your letter of August 12, 1988 along with enclosures. Please provide the schedule of all payments made by Thomas McGuire . . . to Reginald Crosby. . . . Sincerely, Small and Werner, by Robert E. Small." Mr. Small testified that he had not seen the letter before although he admitted that it was typed on his letterhead. Mr. Small and Mr. Werner denied ever seeing the answer and motion for judgment on the pleadings. Mr. Werner testified that he was not aware that an answer had been filed until after the motion for default judgment was granted, but admitted that he filed a motion to show cause to implement the - 4 - default judgment knowing that a formal answer was filed with the court. Michelle Paris, Acting Chief Referee of the Cleveland Muni- cipal Court, testified that if a defendant files an answer, then the action is a personal docket case and is assigned to a judge. Mrs. Paris testified that the docket in the present case re- flected that an answer had been filed in this matter. Frank Hudzinski, a docket clerk employed by Small and Werner, testified that he was aware that the present case was a personal docket case when he filed the motion for default judg- ment. Mr. Hudzinski knew that the case must have been contested for it to be a personal docket case. Regarding his failure to appear at the October 2nd hearing, Mr. Small testified that he had notice of the hearing but that he was in the Domestic Relations Court with Judge Flanagan. Mr. Small testified that he believed Mr. Werner knew he was in Judge Flanagan's courtroom and would cover for him. Mr. Small testi- fied he does not know why Mr. Werner stated at the October 2nd hearing that Mr. Small was summoned to Summit County. Based upon the above evidence, the trial court awarded appellee's counsel $906.25 for attorney fees against Mr. Werner and Mr. Small, jointly and separately, pursuant to R.C. 2323.51 for frivolous conduct and found Mr. Small and Mr. Werner guilty of indirect contempt of court. Mr. Small was ordered to pay a - 5 - fine of one thousand dollars, and Mr. Werner was ordered to pay a fine of two thousand dollars. Appellant's counsel now timely appeal, raising six assign- ments of error for our review. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED BY ABUSING ITS DISCRE- TIONARY POWER SO AS TO EFFECT AN INJUSTICE TO THE APPELLANTS IN THE FOLLOWING RESPECTS: A) WITHHELD BOTH THE TRANSCRIPT OF THE COURT HEARING HELD OCT. 2, 1990 AND THE NOTICE AND JUDGMENT ENTRY RE- LATING TO THE SHOW CAUSE HEARING FROM THE CLERK OF THIS COURT IN A DELIBERATE ATTEMPT TO PREVENT THIS COURT FROM HAVING A COMPLETE RECORD OF THE HEARING OF OCT. 2, 1990. B) CONFERS REPEATEDLY WITH MICHELLE PARIS WHETHER REFEREE OR MASTER, BOTH WITHIN THE OPEN COURTROOM AND IN CHAMBERS WITH THE EXCLUSION OF OPPOSITION COUNSEL. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN THE DENIAL OF THE MOTION OF APPELLANT SMALL TO DISMISS THE CHARGES AGAINST THE APPELLANTS AS BOTH THE NOTICE AND ATTACHED JUDGMENT ENTRY FAILED TO ADVISE THE APPELLANTS OF THE NATURE OF THE CHARGES AGAINST THEM AND REFERRED TO NON- EXISTANT (SIC.) CODE SECTIONS. ASSIGNMENT OF ERROR III PREJUDICE OF THE COURT WHICH PREVENTED THE COURT FROM PERFORMING ITS DUTY TO HEAR THE ACTION WITH IMPARTIALITY ALL TO THE DAMAGE OF THE APPELLANTS BY: A) ACTING AS BOTH PROSECUTOR AND JUDGE IN THE PROCEEDING. - 6 - B) SEEKS TO IMPOSE AN ARTIFICIAL DUTY UPON THE APPELLANTS, WHICH EVEN ITS ALTER EGO, MASTER OR REFEREE ADMITS DOES NOT EXIST. C) ABUSE OF COUNSEL. D) FAILURE TO FOLLOW THE PROPER BURDEN OF PROOF WHICH REQUIRES THAT THAT (SIC.) TO FIND SOMEONE GUILTY OF INDIRECT CONTEMPT THE BURDEN OF PROOF MUST BE CLEAR AND CONVINCING EVIDENCE. E) THE IMPOSITION OF A GREATER FINE UPON RONALD B. WERNER THAN UPON ROBERT E. SMALL WHEN THE RECORD ITSELF INDICATES THAT MR. WERNER WAS PRESENT AT BOTH THE OCT. 2, 1990 HEARING AND THE OCT. 11, 1990 HEARING. A review of the appellant's brief in support of Assignments of Error I-III demonstrates that the appellant has failed to separately brief and argue any of the three assignments of error as mandated by App. R. 12(A). Errors not specifically pointed out in the record and separately argued by brief may be disre- garded. North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App. 3d 342 (emphasis added); App. R. 12(A). Accordingly, Assignments of Error I-III are not well taken and are overruled. ASSIGNMENT OF ERROR IV THE AMOUNT OF THE FINE IMPOSED BY THE COURT UPON THE APPELLANTS IS IN EXCESS OF THE LIM- ITS IMPOSED UPON THE COURT BY SECTION 2705.05 OF THE OHIO REVISED CODE. ASSIGNMENT OF ERROR V - 7 - THE JUDGMENT OF THE COURT IN FINDING BOTH DEFENDANTS GUILTY OF CONTEMPT IS AGAINST THE WEIGHT OF THE EVIDENCE, PARTICULARLY WHEN THE APPELLANTS HAD REPRESENTATIVES AT EVERY HEAR- ING CALLED BY THE COURT AND THERE IS NO EVI- DENCE THAT APPELLANTS FAILED TO OBEY AN ORDER OF THE COURT, FAILED TO OBEY A SUBPOENA IS- SUED BY THE COURT, MISBEHAVED IN ANY MANNER, FAILED TO APPEAR AS A WITNESS, OR RESCUED OR ATTEMPTED TO RESCUE A PERSON OR PROPERTY IN THE CUSTODY OF THE COURT, AND EVIDENCED NO INTENT TO COMMIT SUCH AN ACT OF CONTEMPT. In Assignments of Error IV and V, appellant argues that the trial court's judgment of indirect contempt was against the mani- fest weight of the evidence and that the imposed fines are in excess of the limits mandated by R.C. 2705.05. While appellant's Assignments of Error IV-V are not separately argued and briefed as mandated by App. R. 12(A), we will address appellant's chal- lenges to the weight of the evidence, imposition of fines against appellant's counsel, and award of attorney fees since these alleged errors are the primary arguments contained within appel- lant's brief and since these alleged errors affect appellant's substantive rights. Where contempt proceedings involve the imposition of a penal-ty, the proceedings involve criminal contempt. In re Carroll (1985), 28 Ohio App. 3d 6, 9. Accordingly, the elements of the charge must be proven beyond a reasonable doubt. Id. The sanction imposed in the present case was meant to punish appel- lant's counsel and, therefore, relates to an act of criminal contempt. - 8 - If the proceedings arise from activities occurring outside of the presence of the court, they involve indirect contempt. State v. Kilbane (1980), 61 Ohio St. 2d 201, 203-204; R.C. 2705.- 02. Failure to appear at or arriving late to a scheduled court proceeding is in the nature of indirect contempt since it does not occur in the immediate presence of the court. Jurek v. Jurek (July 9, 1987), Cuyahoga App. No. 52816, unreported; City of Cleveland v. Ramsey (1988), 56 Ohio App. 3d 108. In such pro- ceedings, intent to defy the court must be established. In re Carroll, supra. Applying the foregoing to the present case, we find that the evidence supports a finding, beyond a reasonable doubt, that appel-lant's counsel, Mr. Small, intentionally acted in indirect criminal contempt of court by failing to appear at the scheduled October 2, 1990 hearing. In addition, the record demonstrates that Mr. Werner intentionally acted in contempt of court by not appearing at the 11:00 a.m. hearing until 12:15 p.m., without any notice to the trial court that he would be late to the hearing. A review of the record demonstrates that counsel had proper notice of the date and time that the hearing was to be held. Therefore, we conclude that the trial court did not abuse its discretion in finding appellant's counsel in contempt of court for failure to obey an order of the court to appear at the hear- ing. - 9 - Pursuant to R.C. 2705.05, the trial court may impose a fine of not more than two hundred fifty dollars for a first offense of contempt. In the present case, the trial court imposed a fine of two thousand dollars against Mr. Werner and a fine of one thou- sand dollars against Mr. Small. Thus, the trial court abused its dis-cretion in imposing fines in excess of the amount allowable under R.C. 2705.05. An appellate court may review and reduce the punishment imposed in a contempt proceeding pursuant to App. R. 12(B). Inmont Corp. v. Union (1977), 54 Ohio App. 2d 17. Thus, we conclude that it is within the exercise of our powers to review and modify under App. R. 12(B) to reduce the fine imposed on Mr. Werner to two hundred fifty dollars and to reduce the fine imposed on Mr. Small to two hundred fifty dollars. Assignment of Error IV is well taken, and Assignment of Error V is overruled. ASSIGNMENT OF ERROR VI THE AWARD OF ATTORNEYS FEES TO THE DEFENDANT, McGUIRE'S ATTORNEY, MR. SMITH, APPARENTLY AS TO HIS MOTION FOR SAME BASED UPON SECTION 2323.51 AS A FRIVOLOUS ACTION, WHEN ATTORNEY SMITH ADMITTED THE PLAINTIFF'S (SIC.) DIDN'T ACT WITH MALICE, AND PLAINTIFF'S AID IN EXE- CUTION FOR PERSONAL EARNING HAD BEEN RETURN (SIC.) UNSATISFIED, YET THERE WAS INDICATION EVEN IN THE ANSWER FILED THAT THE JUDGMENT DEBTOR, CROSBY HAD SOME BUSINESS RELATIONSHIP WITH McGUIRE. Appellant contends the trial court erred in awarding attor- ney fees to appellee's attorney, Mr. Smith, on the basis that appellant's filing of a motion for default judgment constituted - 10 - "frivolous conduct" pursuant to R.C. 2323.51 where appellee had filed an answer to the complaint. This argument is without merit. In order to establish frivolous conduct under R.C. 2323.51(- A)(2), the moving party must show that the actions of a party or his counsel fall within one of the following categories: (a) It obviously serves to harass or mali- ciously injure another party to the civil action; (b) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. See, Pisanick-Miller v. Roulette Pontiac-Cadillac GMC, Inc. (199- 1), 62 Ohio App. 3d 757. A trial court's decision regarding the imposition of attorney fees pursuant to R.C. 2323.51 will not be reversed absent an abuse of discretion. Painter v. Midland Steel Products Co. (Nov. 2, 1989), Cuyahoga App. Nos. 56128, 56129, unreported. In the present case, the evidence demonstrated that appel- lant's counsel knew that this action was contested and that they sent a letter to appellee's counsel which acknowledged receipt of the answer and motion for judgment on the pleadings. Despite this knowledge, appellant's counsel filed the motion for default judgment stating that the action was not contested and subse- quently filed a motion to show cause to implement the default judgment. Therefore, we cannot find that the trial court abused its discretion in finding frivolous conduct on the part of appel- - 11 - lant's counsel and awarding appellee's counsel attorney fees in the amount of $906.25 pursuant to R.C. 2323.51. Assignment of Error VI is overruled. Accordingly, we affirm the trial court's judgments and modi- fy each of appellant's counsel's fines for being found guilty of contempt of court, reducing the fines to two hundred fifty dol- lars each. - 12 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, J. HARPER, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .