Sufficiency of Service on Subsequently Unrepresented Party/Contempt Finding/Attorney Fees

Author: LegalEase Solutions 

QUESTION PRESENTED

Is service of a court order upon the then-attorney of record sufficient to accomplish service (knowledge) on a subsequently unrepresented client?  Will opposing party be found to have had “constructive knowledge” and notice, therefore justifying a finding of contempt and liability for attorney fees?

 BRIEF STATEMENT OF FACTS

Client filed for a finding of contempt against the opposing party for ignoring a court order and decision.  The other party’s defense was that he never knew that the judge had ruled on objections to the magistrate’s decision, because his lawyer never informed him of the fact, and had in fact ceased representation of the party.

DISCUSSION

Any pleading, complaint, etc. filed with the court by a party is required to be served upon the opposite party as well, so that the opposing party has sufficient knowledge of the content of the complaint made against it and the nature of damages claimed. While the service of the original compliant is governed by Rule 4 through Rule 4.6 or the Ohio Civil Rules, service of pleadings and other papers subsequent to the original complaint should comply with the provisions of Rule 5 of the Ohio Civil Rules.

Ohio Civil Rules, Rule 5 states in part:

Rule 5. Service and Filing of Pleadings and Other Papers Subsequent to the Original Complaint

(A)   Service: when required.  –Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties. Service is not required on parties in default for failure to appear except that pleadings asserting new or additional claims for relief or for additional damages against them shall be served upon them in the manner provided for service of summons in Civ. R. 4 through Civ. R. 4.6.

(B)  Service: how made.  —Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or party shall be made by delivering a copy to the person to be served, transmitting it to the office of the person to be served by facsimile transmission, mailing it to the last known address of the person to be served or, if no address is known, leaving it with the clerk of the court. The served copy shall be accompanied by a completed copy of the proof of service required by division (D) of this rule. “Delivering a copy” within this rule means: handing it to the attorney or party; leaving it at the office of the person to be served with a clerk or other person in charge; if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion then residing in the dwelling house or usual place of abode. Service by mail is complete upon mailing. Service by facsimile transmission is complete upon transmission.”

Thus, all pleadings, papers, etc. required to be served upon the other party are duly served if service is made upon the party’s attorney of record.  If the court specifically requires the opposite party to be served personally/directly and not through its attorney, the opposite party is required to be served personally and individually, but otherwise, service on the attorney of record is held sufficient by the court.

A presumption of proper service exists when the record reflects that the Civil Rules pertaining to service of process have been followed. The presumption may be rebutted by sufficient evidence to the contrary. Potter v City of Troy, 78 Ohio App. 3d 372; 604 N.E.2d 828.

SERVICE ON ATTORNEY.

Courts have repeatedly applied Rule 5 to situations where service was made upon the attorney of record of the other party and the courts held such service to be sufficient notice to the other party.

Husband’s service upon his wife’s attorney of a motion for relief in a domestic relations action was proper pursuant to Ohio R. Civ. P. 5(A).; Eden v Eden, 2003 Ohio App. LEXIS 3274 (2003).

Even in cases where the attorney was not an attorney of record at the time of service but later became so, the service has been held to be sufficient.  While attorney was not an attorney of record, for purposes of CivR 5(B), when he was merely contesting jurisdiction at a court hearing, he became such once he filed objections: (decided under former analogous section); Verber v Wilson, 1997 Ohio App. LEXIS 2428 (10th Dist. 1997).

One court has held that no reversible error occurred when Rule 5 notice of a hearing was served upon an attorney whom the defendant was considering retaining but who was not an attorney of record and was never retained by defendant, and when the attorney called the defendant, informed her of the date, and sent her a letter forwarding the notice.   Smith v Smith, No. C.A. S-86-21 (6th Dist. Ct. App., Sandusky, Mar. 20, 1987) (1987 Ohio App. LEXIS 6161).

Where a party has appeared and has counsel of record, service of an amended complaint on the attorney is sufficient: (decided under former analogous section); Steiner v Steiner, 85 Ohio App. 3d 513; 620 N.E.2d 152 (1993).

Plaintiff was found to have been provided with sufficient notice of the defendant’s motion for summary judgment, where defendant produced affidavit indicating that it mailed copy of motion to plaintiff’s attorney at attorney’s business address, and plaintiff produced no evidence to the contrary: (decided under former analogous section). Potter v Troy, 78 Ohio App. 3d 372, 604 N.E.2d 828 (1992).

Pursuant to CivR 5(B), when service is required to be made upon a party who is represented by an attorney of record, service should be made upon the attorney unless the court expressly orders that it be made upon the party: (decided under former analogous section). Swander Ditch Landowners’ Assn. v Joint Bd. of Huron & Seneca Cty. Commrs., 51 Ohio St. 3d 131, 554 N.E.2d 1324 (1990).

For purposes of CivR 5(B), in order that service be effective on a party by serving that party’s attorney, the attorney must be an attorney of record in the trial court: (decided under former analogous section). Ervin v Patrons Mut. Ins. Co., 20 Ohio St. 3d 8, 484 N.E.2d 695 (1985).

Under CivR 5(B), service upon a party of a discovery order, and of a notice of the taking of depositions, is complete when the notice is served upon his attorney, and the party is bound by that service: (decided under former analogous section). Rauchenstein v Kroger Co., 3 Ohio App. 3d 178, 444 N.E.2d 445 (1981).

Even for purposes of contempt of court proceedings service upon attorney has been held sufficient by the courts in order to make the party represented by the attorney so served, liable. Thus, in proceedings in execution of judgment and in the consequent proceedings in contempt, service upon the attorney who was the judgment debtor’s attorney of record in the original action in which the judgment was obtained constituted proper service under Rule 5(B). State ex rel. Klein v Chorpening, 6 Ohio St. 3d 3, 450 N.E.2d 1161, 6 Ohio B. Rep. 2 (1983); Hansen v Hansen, 132 Ohio App. 3d 795, 803-04, 726 N.E.2d 557, 563 (1st Dist. Ct. App., Hamilton 1999) (dissenting opinion) (“There is ample authority for the proposition that service upon the attorney of record is sufficient to withstand a due-process challenge in contempt cases. These authorities are fundamentally sound and comport with the well-accepted notion of due process that notice may be given via a party’s agent. The majority does not set forth any compelling reason to depart from this precept in a civil contempt matter.”); Rose v Rose, No. 96APF09-1150 (10th Dist. Ct. App., Franklin, Mar. 31, 1997) (1997 Ohio App. LEXIS 1235) (holding that direct service of a contempt motion on the alleged contemnor was not necessary when the alleged contemnor had actual notice of the contempt hearing); Quisenberry v Quisenberry, 91 Ohio App. 3d 341, 346, 632 N.E.2d 916, 919 (2d Dist. Ct. App., Clark 1993) (stating in dicta that service of a civil-contempt motion may be made on a party’s attorney); Klonowski v Klonowski, No. 48377 (8th Dist. Ct. App., Cuyahoga, Dec. 20, 1984) (1984 Ohio App. LEXIS 12088).

Similarly, serving a Rule 60(B) motion for relief from judgment upon the plaintiff’s attorney of record, three and one-half months after entry of the judgment the defendant seeks to vacate, constitutes proper service under Rule 5(B).   McCort v McCort, No. 55521 (8th Dist. Ct. App., Cuyahoga, July 20, 1989) (1989 Ohio App. LEXIS 2871). See also Consolidated Rail Corp. v Propane Indus. Serv., (upholding Rule 5 service of a Rule 60(B) motion upon a defendant’s attorney almost eight months after the defendant’s motion to dismiss the case was granted); Pekay v Murton, Nos. 45409 & 45799 (8th Dist. Ct. App., Cuyahoga, Sept. 29, 1983) (1983 Ohio App. LEXIS 12292) (“While the authority of an attorney ordinarily ends with the rendition of a final judgment or decree,” when a party has sought a modification of a divorce decree’s child support provisions the trial court retains personal jurisdiction over that party and the opposing party may properly serve a subsequent motion for modification of the divorce decree on the first party’s attorney pursuant to Rule 5 rather than serving the first party directly upon her pursuant to Rule 75(I).); In re Adoption of Holtel, No. 1267 (4th Dist. Ct. App., Athens, Aug. 11, 1987) (1987 Ohio App. LEXIS 8269) (Rule 5, not Rule 73(E), applies to service of motion to vacate judgment of probate court.).

WITHDRAWAL BY ATTORNEY

Court orders etc are required to be served upon the attorney of record as he is better equipped to understand the ramifications of any court decisions and is in a better position to decide what action is to be taken in compliance of such orders.

The reasoning for the requirement that an attorney of record be served is that a party represented by counsel usually speaks through his counsel.  Counsel is in a better position to understand the legal import of any documents required to be served on his or her client and the nature of the action to be taken. Swander Ditch Landowners’ Assoc. v Joint Board of Huron& Seneca County Comm.,51 Ohio St. 3d 131; 554 N.E.2d 1324.  See also: Steiner v Steiner, 85 Ohio App. 3d 513; 620 N.E.2d 152.

When an attorney of record withdraws as counsel from a case, the court should be notified so that it can take note of the fact and further orders will be required to be served upon the party directly. For example, in the case of Ohio Valley Radiology Associates, Inc. v Ohio Valley Hospital Association, 28 Ohio St. 3d 118; 502 N.E.2d 599, where in its October 26, 1983 journal entry allowing the withdrawal of counsel, the court specifically ordered that the plaintiffs “will be henceforth notified directly at 7585 Martinique Boulevard, Boca Raton, FL 33433.” This order implicitly recognized that after the withdrawal of counsel, the plaintiffs were not represented by any attorney.

There appears to be a lack of any such order in the case at bar which clearly notified the client that the other party was no longer represented by their attorney of record. As such, client should not be disadvantaged by the failure of the other party’s attorney to notify the court of his withdrawal. When an attorney withdraws as counsel from a case service must be made directly upon the party under Rule 5. But for this the attorney of record must have filed leave to withdraw as counsel and such leave should have been granted. Otherwise, the attorney, being an attorney of record, is not relieved from his obligations towards his client to represent his client or take necessary action on receipt of court orders.

Generally, it is the duty of an attorney to notify a court promptly when he or she intends to withdraw from the representation of a client. Klonowski v Klonowski, 1984 Ohio App. LEXIS 12088.

When an attorney of record has requested and been granted leave to withdraw as counsel, then Rule 5 service must be made directly upon the party and not upon the party’s former attorney of record. See Feliciano v Moore, No. 80AP-436 (10th Dist. Ct. App., Franklin, Apr. 30, 1981) (1981 Ohio App. LEXIS 10667). Civ. R. 5(B) states that service of a subsequent pleading will be made upon the attorney of record unless service upon the party himself is ‘ordered by the court’.

In Walker v Allen, 1996 Ohio App. LEXIS 1469, the court refused to consider one party’s affidavit (attesting that he never received service of the order of withdrawal by the other party’s attorney and therefore believed the attorney still represented the opposing party at the time of the second motion for summary judgment), as the affidavit was not part of the record below. In other words, if such an affidavit is presented before the court as part of the record before it, it shall weigh with the court and support the party’s stand that not having knowledge of the fact that the other party’s attorney had withdrawn, it should be given the benefit of serving the then attorney of record with the required court orders.

COURT ORDER MUST BE FOLLOWED

As a general rule, a court order, unless it is void, must be obeyed until it is set aside by orderly and proper proceedings.  Indeed, a court order made pursuant to proper jurisdiction over the subject matter and the persons involved must be obeyed, regardless of whether it was imprudently or prematurely exercised. Kennedy v Talley, 1999 Ohio App. LEXIS 1426.  If a court had subject matter jurisdiction and it had jurisdiction over the opposing party, the opposing party was obligated to follow any court order issued therefrom, and upon failure to do so, can be held in contempt of court.

CONTEMPT OF COURT

Service of process duly made under Rule 5, the other party’s failure to comply by the court orders amounts to contempt of court as articulated in ORC 2705.02:

ORC § 2705.02. Acts in contempt of court

“A person guilty of any of the following acts may be punished as for a contempt:

(A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer;

(B) Misbehavior of an officer of the court in the performance of official duties, or in official transactions;

(C) A failure to obey a subpoena duly served, or a refusal to be sworn or to answer as a witness, when lawfully required;

(D) The rescue, or attempted rescue, of a person or of property in the custody of an officer by virtue of an order or process of court held by the officer;

(E) A failure upon the part of a person recognized to appear as a witness in a court to appear in compliance with the terms of the person’s recognizance;

(F) A failure to comply with an order issued pursuant to section 3109.19 or 3111.81 of the Revised Code;

(G) A failure to obey a subpoena issued by the department of job and family services or a child support enforcement agency pursuant to section 5101.37 of the Revised Code;

(H) A willful failure to submit to genetic testing, or a willful failure to submit a child to genetic testing, as required by an order for genetic testing issued under section 3111.41 of the Revised Code.”

As the opposite party in the case at bar has not obeyed the court order and decision, it has disobeyed the court and hence should be held in contempt of court under ORC Sec 2705.02.

ATTORNEY’S FEES.

Should the court in the instant matter hold the opposite party in contempt, it can award attorney fees.  A court may award attorney fees in a civil contempt proceeding even where it is not proven that the damages sustained were a direct result of the contempt: RLM Industries, Inc. v Indep. Holding Co., 83 Ohio App. 3d 373, 614 N.E.2d 1133 (1992). A specific finding of willfulness or intent is not a prerequisite to an order assessing attorney fees in a civil contempt proceeding: Dayton Women’s Health Ctr., Inc. v Enix, 86 Ohio App. 3d 777, 621 N.E.2d 1262 (1993).

CONTEMPT: CIVIL OR CRIMINAL

Although contempt proceedings are not fundamentally civil or criminal in nature, they may be classified as either civil or criminal based on the character and purpose of the sanctions imposed.  Denovchek v Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St. 3d 14, 16, 520 N.E.2d 1362. Sanctions that are designed to benefit the complainant by remedying the contempt or coercing compliance with the court’s order are civil in nature; in contrast, criminal sanctions are punitive in nature and often involve an unconditional prison sentence or fine.

The elements of indirect criminal contempt must be proved beyond a reasonable doubt.  Brown v Executive 200, Inc.; 64 Ohio St. 2d 250, 416 N.E.2d 610 (1980).  The court must find, beyond a reasonable doubt that the contemnor intended to defy an order of the court.  Midland Steel Prods. Co. v U.A.W. Local 486 (1991), 61 Ohio St. 3d 121, 127, 573 N.E.2d 98.  Intent is an essential element of indirect criminal contempt: Cleveland v Ramsey, 56 Ohio App. 3d 108, 564 N.E.2d 1089 (1988).

CIVIL CONTEMPT

Civil contempt is defined as that which “exists in failing to do something ordered to be done by the courts in a civil action for the benefit of the opposing party therein.” Kurincic v Kurincic, 2000 Ohio App. LEXIS 3957.

But in cases of civil contempt, proof of intent or willfulness is not essential for the court to decide the question of contempt. James v James, 1999 Ohio App. LEXIS 1876.  A party acting innocently and not in intentional disregard of a court order cannot use that innocence as a defense to a charge of civil contempt. Pedone v Pedone 11 Ohio App. 3d 164, 463 N.E.2d 656 (1983).  If the dictates of a judicial decree are not followed, a contempt citation will result. It is irrelevant that the transgressing party does not intend to violate the court order.  Id.

Articulating the components of a contempt action in the case of Kennedy v Talley, 1999 Ohio App. LEXIS 1426, the court said that in order to show contempt, it is necessary to establish the existence of a valid court order, knowledge of the court order and violation of the court order.  

NOTICE: ACTUAL OR BY SERVICE

The judicial authority of a municipal court to punish contempt for disobedience of or resistance to a lawful writ, process, order, rule, judgment, or command of the court is expressly provided for in Ohio Gen. Code § §12136, 12137 et seq. However, it is essential prerequisite to the sanctioning of a person for contempt for the violation of a court order, that he have had notice of the order, either actual or by service of the same upon him. This rule applies whether the person sought to be punished for the contempt is a party to the proceeding in which the order is issued or a stranger thereto. If the person sought to be punished is a party to the proceeding and is present when the order is made and objects thereto, his actual knowledge takes the place of service. McWhorter v Curran, 57 Ohio App. 233; 13 N.E. 362; 13 N.E.2d 362.

Disobedience of any lawful and valid judgment, decree or order of the court acting within its jurisdiction, of which one has notice or actual knowledge, constitutes contempt of court. Under Ohio Gen. Code §12137, a proceeding in contempt must be based upon some order, judgment, or command of a court or officer, or it must be dismissed. It is essential to the punishment of a person for contempt for violation of a court’s order that he have notice of the order, either actual or by service of the same upon him. Beach v Beach 79 Ohio App. 397; 74 N.E.2d 130 (1946).

In the case at bar, if the opposite party was present at the proceedings which culminated in the court order in question (or was in possession of the information in some other manner), the party will be charged with having had notice/knowledge, and the service requirement will fall away. The opposing party would have been required to comply with the court order as soon as there was knowledge of its content.

CONCLUSION

In conclusion we can say that the requirements of ORC Rule 5 were fulfilled, by virtue of having served the opposing party’s attorney of record with the court orders. Subsequent withdrawal of the attorney as counsel from the opposing party’s case will likely not be permitted to work to the disadvantage of the party who complied with the requirements of rule 5. Had the client been given notice of the fact that the attorney of the opposite party was withdrawing or had withdrawn via a judicial grant of leave to withdraw, the result might have been different.  Under those facts, the court would have entered the fact of withdrawal into the record, and formally required that all future notices be served upon the opposing party directly. But that does not appear to be the case in the instant matter.   After having been served with the court orders through its attorney of record, the opposing party now asserts that it had no knowledge of the ruling. Absent any indication of withdrawal of opposing counsel from representation of the client, service was indeed sufficient, the contempt finding can be made, and attorney fees may be awarded.