COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71770 : ACCELERATED DOCKET ROBERT ELIAS, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellees : : and -vs- : : OPINION : JERRY STYNE, d.b.a. : U.S. WALLCOVERING, INC. : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 26, 1997 CHARACTER OF PROCEEDING : Civil appeal from Parma Municipal Court Case No. 96-CVF-2213 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: For defendant-appellant: GEORGE PENFIELD ROBERT N. STEIN 19443 Lorain Road 810 Western Reserve Building Fairview Park, Ohio 44126 1468 West 9th Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App. R. 11.1 and Local R. 25, and the briefs of counsel. 1 Jerry Stein appeals from a judgment of the Parma Municipal Court finding him in contempt for being one hour late to a pretrial conference and imposing a $250 fine and ordering him to reimburse one hour of his opponent's attorney fees. The record here reveals that Robert Elias sued Stein, dba U.S. Wallcovering Inc., for return of a deposit on carpeting which Stein had delivered but which Elias claimed constituted non-conforming goods. The court scheduled a pretrial conference at 1:45 p.m. on November 6, 1996, and in its notice stated: The court further advises that the parties and their respective counsel are required to appear at each pretrial conference. Failure of the defendant to appear could result in a default judgment for the plaintiff; failure of plaintiff to appear could result in an entry of dismissal of plaintiff's complaint for want of prosecution. On the afternoon of the pretrial, the court, after stating that the appellant did not appear until 2:45 p.m., and that his tardiness interfered with the administration of justice, held him in contempt and imposed a $250 fine and further ordered payment of one hour of attorney's fees. Stein's attorney, his son Robert, testified after the court imposed sentence that his mother had undergone medical tests for - 3 - chest pains that day, that his sister had attended a funeral, and that his father, the appellant, had been baby sitting his niece whom he brought to court at 2:45. Robert Stein then admitted his mistake for telling his father it was not crucial that he attend the pretrial. On November 12, 1996, the court journalized its contempt finding from which Stein now appeals and assigns the following error for our review: THE TRIAL COURT ERRED IN HOLDING APPELLANT, JERRY STEIN IN CONTEMPT OF COURT AND IMPOSING A TWO HUNDRED AND FIFTY DOLLAR FINE AND ATTORNEYS' FEES FOR BEING ONE HOUR LATE FOR A PRETRIAL. In support of his position seeking reversal of his conviction, Stein urges that his conduct at best constitutes indirect contempt, and therefore the court erred in summarily imposing a criminal penalty and denied him procedural due process of law. We agree. At the outset, we deem it laudable for trial judges to use any reasonable means to manage their dockets, including issuing orders which require litigants to attend pretrials when meaningful, settlement negotiations can occur. However, the court must recognize and distinguish between the intentionally obstructive or elusive litigant, and the confused, ignorant, troubled, or burdened one. We begin our analysis of this case by examining R.C. 2705.01 which authorizes a court to summarily punish as direct contempt, "misbehavior in the presence of or so near the court or judge as - 4 - to obstruct the administration of justice." Next, we note that R.C. 2705.02 defines actions which constitute indirect contempt of court, but is further conditioned by R.C. 2705.03, which states: In cases under section 2705.02 of the Revised Code, 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. ***. In Cleveland v. Ramsey (1988), 56 Ohio App.3d 108, we have previously held that, 1. * * * arriving late to hearing or pretrial is indirect contempt. Accordingly, prior to its adjudication for contempt in this case arising out of tardiness in arriving at a pretrial, the court should have complied with the provisions of R.C. 2705.03, and filed a charge in writing with the clerk, provided service and an opportunity to be heard before adjudicating the contempt. In order to complete our analysis of this case however, we further consider the nature of the contempt as being either civil or criminal. As stated by this court in the case of In re Carroll (1985), 28 Ohio App.3d 6, The distinction between civil and criminal contempt turns on the character and purpose of the sanction imposed. Either a fine or imprisonment, or both, may be imposed in civil or criminal contempt cases. In the civil context, however, the purpose of the sanction is coercive; that is, - 5 - it is intended to force the contemnor to comply with the court's order. * * *. A sanction for criminal contempt, by contrast, is a punishment for past refusal to obey a court order. Schrader v. Huff (1983), 8 Ohio App.3d 111. No coercive element is present. * * *. Here, after summarily finding Stein in contempt, the court immediately imposed a $250 fine as punishment, affording him no opportunity to purge the contempt. Hence, the sanction imposed by the court characterizes this behavior as indirect criminal contempt which requires proof beyond a reasonable doubt of all the essential elements of criminal contempt. We observe that intent is an essential element of indirect criminal contempt. See In re Carroll, supra, and Cleveland v. Ramsey, supra. The record before us fails to demonstrate any evidence of Stein's intent to violate the court's pretrial order. Since the record contains insufficient evidence to support the contempt conviction, we conclude the assignment of error is well taken. Accordingly, the judgment of contempt is reversed, the fine and sanction are vacated, and final judgment is entered for appellant as to the contempt citation only. The matter is now remanded to the trial court for further proceedings on the underlying case. So Ordered. - 6 - Reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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 DYKE, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JOHN T. PATTON, JUDGE 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 court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). - 7 - 1. The complaint and other documents filed with the trial court .