COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61333 MAMIE COSTANZO, ET AL. : : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION HAROLD J. ARTZ, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 24, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 097,896 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellees: For defendants-appellants: RICHARD D. EISENBERG, ESQ. JAMES BURNS, ESQ. 5001 Mayfield Road 20600 Chagrin Blvd. Suite 105 Shaker Hts., Ohio 44122 Lyndhurst, Ohio 44124 MARC I. STRAUSS, ESQ. FRED N. CARMEN, ESQ. 6200 Rockside Road Cleveland, Ohio 44131 - 2 - DAVID T. MATIA, C.J., Appellants, Harold J. Artz, et. al. appeal from the order of the trial court granting appellees, Mamie Costanzo, et. al. a permanent injunction and fining appellants $1,000. For the reasons set forth below, we affirm. A. THE FACTS, GENERALLY A. THE ORIGINAL COMPLAINT Appellants and appellees own adjoining properties on Mayfield Road in Mayfield Heights, Ohio. Appellees commenced this action on September 18, 1985 seeking to permanently enjoin appellants from placing new and used automobiles on a joint easement for purposes of demonstration, sale, or repair in violation of a deed restriction pertaining to the easement. B. THE COURT'S ORDER On February 3, 1988, the trial court made its final ruling, ordering appellants to: "Comply with the order of this court and remove all autos by February 15, 1988 from the easement area set forth in the complaint or there will be levied a fine of $250.00 per day for each of non-compliance." No appeal was made from that order. On March 29, 1988, the trial court found appellants in contempt of court for violating the February 3, 1988 order. Appellants were ordered to pay a fine of $10,000.00 plus $250.00 for each additional day they remained in contempt. This contempt order was held in abeyance provided no further violations occurred. - 3 - C. COMMENCEMENT OF THIS ACTION On September 5, 1989, appellees filed a motion to show cause why appellants should not be held in contempt alleging further and continuous violations of the court's February 3, 1988 order. The matter proceeded to a bench hearing on February 14, 1990. For their case, appellees presented the testimony of Sam Costanzo. Mr. Costanzo testified that from November 6, 1989 until the date of hearing he observed the subject premises each working day between 3:00 and 5:00 a.m. Mr. Costanzo testified that on numerous occasions he observed cars parked on the easement with no license plates and cars with repair order tags in them. Mr. Costanzo also observed new cars parked on the easement at times indicating that they were left overnight. As an example of one particular instance of a violation of the court order, Mr. Costanzo cited December 13-14, 1989 when he counted 69 cars parked on the easement at a time when appellants' business was closed. Mr. Costanzo presented pictures and a log to the court to substantiate his testimony. Finally, Mr. Costanzo's testimony indicated that he had suffered no actual damage by appellants' conduct, but was asserting his rights under the deed so that those rights would not be extinguished. Affidavits were presented by appellants asserting that no violations of the deed restrictions had occurred. D. THE COURT'S CONTEMPT ORDER - 4 - On January 18, 1991, the trial court ruled on this matter by written order stating that: "Upon due consideration, this Court finds generally for the Plaintiff as follows: "(1) Plaintiff is granted a permanent injunction enjoining Defendant's from any further violation of the express terms of the easement at issue, and; "(2) Fines Defendants, jointly and severally $1,000.00, payable to Plaintiffs as of the date of this order. "Case dismissed with prejudice at Defendant's costs." This appeal timely follows that judgment. II. APPELLANTS' ASSIGNMENTS OF ERROR "THE TRIAL COURT ERRED IN AWARDING DAMAGES OF ONE THOUSAND DOLLARS TO THE PLAINTIFFS BECAUSE THE EVIDENCE CLEARLY ESTABLISHES THAT THE PLAINTIFFS SUFFERED NO DAMAGE AT ALL." "THE TRIAL COURT ERRED IN UPHOLDING DEED RESTRICTIONS WHICH PROVIDE NO BENEFIT TO THE PLAINTIFFS. "THE TRIAL COURT ERRED IN INTERPRETING AND ENFORCING DEED RESTRICTIONS IN AN EXPANSIVE WAY WHICH INCREASES THE BURDEN UPON THE DEFENDANTS' PROPERTY. "THE TRIAL COURT ERRED IN FINDING A VIOLATION OF THE DEED RESTRICTIONS AT ISSUE BECAUSE THE EVIDENCE CLEARLY ESTABLISHED THAT NO SUCH VIOLATION OCCURRED." A. APPELLANTS' SECOND AND THIRD ASSIGNMENTS OF ERROR ARE NOT WELL TAKEN - 5 - Appellants' second and third assignments of error pertain to the trial court's original judgment of February 3, 1988. No appeal was taken from that judgment. The matter before us concerns only the court's contempt order of January 18, 1991. As such, these assignments of error are not well taken. B. APPELLANTS' FIRST AND FOURTH ASSIGNMENTS OF ERROR SHARE A COMMON BASIS IN LAW AND FACT 1. ISSUE RAISED: DID THE COURT ABUSE ITS DISCRETION BY FINDING APPELLANT TO BE IN CONTEMPT AND FINING THEM $1,000.00 FOR VIOLATION OF DEED RESTRICTIONS A trial court's decision in a contempt proceeding will not be reversed in the absence of a showing that the trial court abused its discretion. Internat'l Merchandising Cor. v. Mearns (1989), 63 Ohio App.3d 32, 36. "Abuse of discretion has been defined as more than an error of law or judgment; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. (Citations omitted)." Marks v. C.P. Chemical Co. (1987), 31 Ohio St.3d 200,201. Moreover, the Ohio Supreme Court has consistently recognized that certain powers as are necessary for the orderly and efficient exercise of justice are inherent in a court. Zakany v. Zakany (1984), 9 Ohio St.3d 192, 194; State, ex rel. Dow Chemical Co. v. Court (1982), 2 Ohio St.3d 119. A Court of Common Pleas has the inherent power to punish a contemptuous refusal to comply with its orders by imposing appropriate sanctions without regard to R.C. 2705.05. Olmstead Twp. v. Riolo (1988), 49 Ohio App.3d 114. - 6 - Based upon the facts presented to the court at the contempt hearing, we find that the trial court did not abuse its discretion in finding that appellant had violated the court's order dated February 3, 1988. Mr. Costanzo presented detailed evidence of appellants' violations, including photographs, a log of violations, and sworn testimony. Appellants' defense of this matter was and still is more appropriately addressed to the merits of the the original judgment of the court, from which no timely appeal was taken. Furthermore, we find that the trial court did not abuse its discretion in fining appellant $1,000.00. Based upon the facts presented to the trial court and the fact that this was the second such contempt finding, a $1,000.00 fine is not unreasonable. In addition, although the amount of the fine falls outside the parameteres of R.C. 2705.05, it is well within the authority of the trial court when exercising its inherent power to sanction. Olmstead Twp., supra. For these reasons, we find that appellants' first and fourth assignments of error are not well taken. Judgment affirmed. - 7 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. SPELLACY, J., CONCURS. BLANCHE KRUPANSKY, J., DISSENTS. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .