COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67605 IN RE: CONTEMPT OF : BRIAN G. RUSCHEL : : : JOURNAL ENTRY Plaintiff-Appellant : : AND : : OPINION : : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 4, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-224422 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: BRIAN G. RUSCHEL, Pro Se Statler Office Tower Suite 824 1127 Euclid Avenue Cleveland, Ohio 44115-1601 For Defendant-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: On June 16, 1994, Judge Kenneth R. Callahan conducted a Show Cause hearing and found attorney Brian Ruschel in contempt of court for refusing to comply with an oral court order to him to deliver financial statements, tax returns, non-privileged records and the corporate record book of Perfection Graphics, Inc. to new counsel for the corporation, Mr. Keith Vanderberg. The judge then remanded Mr. Ruschel to county jail "until such time as he complies with this court's orders ***." The contempt emanated from settlement of an action in which the parties agreed to rescind a stock purchase agreement, requiring Harold and Deborah Sheehan to pay $64,000 to Albert Soltis, Jr. and his agreement to return the shares of stock in Perfection Graphics to them. Although the money had been paid into the clerk of court and released pursuant to the agreement, and Ruschel's client, Mr. Soltis agreed to return the items, Ruschel told the court he personally would not comply. (Tr. 93). THE COURT: Are you saying Mr. Ruschel, that you are not going to comply with the order? MR. RUSCHEL: I am speaking on behalf of my client. THE COURT: He has already indicated his willingness to do it. So, you are speaking on behalf of yourself? - 3 - MR. RUSCHEL: On behalf of myself then. I will not turn them over. Mr. Ruschel has appealed the court's order of contempt, posted a $5,000 ten-percent bond and received a stay of execution of sentence. I. His lone assignment of error is THE TRIAL COURT ERRED IN HOLDING THE APPELLANT IN CONTEMPT. We begin our consideration of this appeal by examining the statutes which govern actions for contempt. R.C. 2705.01 defines what is generally referred to as Direct Contempt and states: A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. And, in R.C. 2705.02, acts which are generally referred to as indirect contempt are defined and include: "A person guilty of any of the following acts may be punished as for a contempt. (A) Disobedience of, or resistance to, a lawful *** order ***. (B) Misbehavior of an officer of the court in the performance of his official duties ***. ***. Finally, as relevant to the instant case, R.C. 2705.06 states: - 4 - When the contempt consists of the omission to do an act which the accused yet can perform, he may be imprisoned until he performs it. We note from the record that in its July 18, 1994 entry the court characterized the contempt as direct when it found the contemnor had failed to comply with previous court orders. The law is, however, that we are not bound by the trial court's characterization of the contempt decree, but rather must make our own independent determination. See Con-Tex Inc. v. Consolidated Technologies (1988), 40 Ohio App.3d 94, citing LaTrohe Steel Co. v. United Steelworkers of America (1976), 548 F.2d 1366, 1342 at p. 95. In this regard, we find that criminal contempt differs from civil contempt, both regarding the burdens of proof and the nature of the sanction. Criminal contempts are those committed in the presence of the court and disturb its administration of justice while civil contempts exist in failing to do something ordered to be done by the court in a civil case for the benefit of an opposing party. See generally 17 Ohio Jurisprudence.3d Contempt 6. Here, the court, in an effort to effect the settlement, conducted a show cause hearing and ordered counsel to return corporate items in furtherance of a settlement agreement. When counsel refused, the nature of the contempt changed, because the refusal in the presence of the court in response to the court's oral order permitted summary disposition. See paragraph 4 of the - 5 - syllabus in State v. Mirmon (1955), 99 Ohio App. 382. As stated in 17 Ohio Jurisprudence.3d Contempt 19 relating to attorneys at law: ***. The judge owes it to himself, his position, the course of justice, the reputation and honor of members of the bar, and to society generally, to do his utmost to bring such offenders to justice. Disobedience of orders *** of court *** and numerous other acts of unfaithfulness, disrespect, or misconduct, when intentionally and willfully committed, have demanded the attention of the courts in order to preserve their authority, dignity, and prestige. Misconduct of a lawyer in the presence of the court is contempt punishable summarily whether it obstructs justice or not ***. We are not unmindful of Mr. Ruschel's view that the trial judge was committing error by ordering him to relinquish corporate documents since the new shareholders had not yet met and elected directors and, therefore, no new corporate officers had been appointed. Because the stock had been transferred, the rescission money paid, and because his client agreed to deliver these items, however, counsel raised only a specious argument with no possibility of succeeding on the merits. His refusal to comply with the legitimate efforts of the court to resolve the case can only be characterized as contemptuous behavior. Claims of lack of notice, denial of due process and lack of trial court jurisdiction are not well founded because the court did conduct a hearing, afford an opportunity to avoid the sanction, and the direct refusal merited the contempt finding. - 6 - Accordingly, the judgment of the trial court finding Mr. Ruschel in contempt of court is affirmed. - 7 - It is ordered that appellee(s) recover of appellant(s) 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 Common Pleas 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. NUGENT, P.J., and PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL 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 journaliza- .