COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71555 IN RE: CONTEMPT OF: : PAIGE A. MARTIN : JOURNAL ENTRY : Appellant : AND : : OPINION : : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-297650. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Timothy J. Kollin Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Appellant: Frederick M. Gittes, Esq. Spater, Gittes, Schulte & Kolman 723 Oak Street Columbus, Ohio 43025 2 SWEENEY, JAMES D., C.J.: Attorney Paige A. Martin, contemnor-appellant, appeals from a citation of direct contempt of court by appellee, Judge Patricia A. Cleary. For the reasons adduced below, we dismiss the notice of appeal as untimely1. A review of the record on appeal indicates that the original contempt citation arose from a disagreement concerning the admissibility of evidence. During a morning session of trial, counsel for plaintiff-Glover, Ms. Martin, attempted to elicit testimony from Mr. Glover relative to the use of generic racially derogatory epithets at the defendant's place of business. These attempts met with the objections of defense counsel, which objections were sustained by the trial court. Counsel for the parties attended a side bar conference off the record in response to this line of questioning. (R. 63-64.) At the close of Mr. Glover's direct examination testimony, the court called a luncheon recess, excusing the jury and then speaking with counsel on the record. (See R. 79-82.) During this meeting, the court allowed plaintiff's counsel to make a record of her objection to the court's earlier side bar order prohibiting the line of questioning attempted by plaintiff, which, according to plaintiff's counsel, sought to demonstrate a pattern of disparate behavior tolerated by management in the workplace. During this meeting, the court stated 1In appellate case no. 71554, a companion case to the notice of appeal sub judice, plaintiff-appellant Frank Glover, et al., argues that the trial court erred in granting a directed verdict in favor of defendant-appellee Boehm Pressed Steel Company at the close of plaintiff's case-in-chief. 3 its summary version of the evidence and its position relative to the admissibility of that evidence. Thereupon, the following exchange took place: MS. MARTIN: Your Honor, I have a final comment for the record. Your summarization of the evidence misstates the testimony of the plaintiff under oath. THE COURT: I'm restating what happened at the side bar, comments that were made. And we're off the record. (R. 82.) At this point, the court went into recess for lunch. Following the lunch recess, the trial court recalled Mr. Glover to the stand. Before Mr. Glover resumed his place in the witness chair, Ms. Martin informed the court that she wanted the record to show that she had asked for a mistrial. The record next reflects the following proceedings: THE COURT: Okay. Well, we are going to have a hearing at this time because I indicated we would go on the record with that later. So ladies and gentlemen, you may step out. - - - - - (Thereupon, the following proceedings were had in open court in the absence of the jury:) - - - - - THE COURT: You may be seated. Before commencing with this witness I had asked Mr. Glover to resume the stand for cross- examination. Counsel had indicated she had a motion. I gave her permission to approach the bench and she indicated she had a motion she wished to make for a mistrial based on judicial misconduct and irregularity. And I indicated that she would have access to the record later, but we were going to proceed at this time. And throughout the course of this trial I have given counsel access to make a record. Obviously counsel has a right to supplement the record at any time on appeal should that become appropriate under 9(C). After walking away from the bench and in 4 front of a jury counsel made the comment that, At this time I would ask for a mistrial. And I want to know why you did that. MS. MARTIN: Because, your Honor, it's important that you entertain this motion now because the - - my client is not getting a fair trial. And for you to permit a proceeding to go on in the face of an allegation of judicial misconduct is inappropriate conduct - - THE COURT: And how would that - - MS. MARTIN: - - and a violation of the code. THE COURT: How would that remedy the situation, you speaking up in front of a jury and saying the words, I want a mistrial? How is that going to help your client out, that type of conduct? MS. MARTIN: Your Honor, I would appreciate an opportunity to complete my sentences for the record. THE COURT: You're in direct contempt of court, and I'm fining you $250. You may be seated. I told you we would go on the record at a later time with regard to your Motion for a Mistrial. It is going to be denied but you'll have access to the record. Bring the jury out. Don't you dare do that to me again in front of a jury. And that will be docketed. (R. 83-85.) - - - - - At this point, the cross-examination of Mr. Glover resumed before the jury. By order journalized on October 3, 1996, the trial court held Ms. Martin in contempt: Attorney Paige Martin found in direct contempt of court and is fined $250.00. Same to be paid to the Clerk of Court of Cuyahoga County by 10/6/96. No filings to be accepted on behalf of counsel until fine is paid. Journal Vol. 2004, page 560. 5 Prior to the plaintiff resting his case, the trial court, as previously promised, allowed plaintiff's counsel access to the record, at which point Ms. Martin placed her concerns relative to evidentiary issues on the record. (See R. 247-251.) Subsequent to making the record, Ms. Martin apologized to the court for her earlier statement before the jury which drew the court's ire in the form of a contempt citation. (R. 251.) The court accepted the apology and, in the face of continued penitence and explanation by plaintiff's counsel, repeatedly directed counsel, matter of factly, to proceed if more witnesses were to be called by plaintiff. (See R. 251-253.) No further witnesses were forthcoming. Thereafter, subsequent to the admission of exhibits, the defense moved for a directed verdict, which the court granted. See Journal Vol. 2005, page 212, journalized October 7, 1996. The notice of appeal herein (appellate case no. 71555) was filed on November 6, 1996. The order inappropriately appealed from, which modified the original contempt order by imposing conditions which would purge the contempt, was journalized on October 7, 1996, and provides the following: In light of [plaintiff's] counsel's apology, attorney Paige Martin is purge (sic) of contempt, on the condition she pay $50 to the Hospice of Western Reserve or Holy Family Cancer Home by October 15, 1996. Counsel to inform court when sum paid. [Explanation added.] Journal Vol. 2005, page 213. The sole assignment of error provides: NOTING A REQUEST FOR A MISTRIAL ON THE RECORD WITHOUT CRITICISM OR COMMENT IS NOT CONTEMPT 6 OF COURT. T nt argues the propriety of the imposition of the original contempt order. As detailed above, this original order ohis assignmef contempt, which was a final order, was journalized on Thursday, October 3, 1996, with notice to counsel. As a final order, contemnor-appellant had thirty days, until Saturday, November 2, 1996, within which to file her notice of appeal from that order. See App.R. 3(A) and 4(A). This time requirement is jurisdictional and may not be extended. Ditmars v. Ditmars (1984), 16 Ohio App.3d 174, 175; Search Masters,Inc. v. Verdino (July 12, 1990), Cuyahoga App. No. 56974, unreported. This date, due to falling on a weekend, would extend the filing date to Monday, November 4, 1996. See Civ.R. 6(A). The notice of appeal herein, which attached the October 7, 1996, modification order as the order appealed from, was filed on Wednesday, November 6, 1996. Yet, contemnor-appellant does not argue within the appeal the subsequent modification of the contempt citation. This attempt at bootstrapping an untimely appeal is without merit2. Accordingly, the attempted appeal from the original contempt citation was untimely, depriving this court of jurisdiction to review assignments of error based on it. See Morton v. Morton (Cuyahoga, 1984), 19 Ohio App.3d 212, 214. Appeal dismissed due to lack of jurisdiction. 2The term bootstrapping was defined in In re Estate of Borgh (January 4, 1996), Cuyahoga App. Nos. 68033 and 68145, unreported, 1996 WL 4039, at 3, as: *** the utilization of a subsequent order to indirectly and untimely appeal a prior order ***. 7 8 It is ordered that appellee recover of appellant her costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, J., and LEO M. SPELLACY, J., CONCUR. _____________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this .