EAS COURT COMMON PLI FILED COURT OF COMMON PLEAS CLERMONT COUNTY, OHIO FEB 14 2023 BARBARA YiEDENGED Ginn eee JASON GORDON, ET AL. Plaintiffs : CASE NO. 2020 CVH 000194 vs. : Judge Kevin T. Miles MT. CARMEL FARMS LLC DECISION/ENTRY Defendant John Woliver, counsel for the plaintiffs Jason Gordon and Nicole Gordon, 204 North Street, Batavia, Ohio 45103. Brian P. O'Connor, counsel for defendant Mt. Carmel Farms LLC, 600 Vine Street, Suite 2700, Cincinnati, Ohio 45202 This cause is before the court for consideration of the plaintiffs Jason Gordon and Nicole Gordon's motion for contempt order, filed on December 14, 2022. The court held an evidentiary hearing on January 25, 2023, after which it took the motion under advisement. Upon consideration of the motion, the record of the proceedings, the arguments of counsel, the evidence submitted, and the applicable law, the court now renders this written decision. FACTUAL AND PROCEDURAL BACKGROUND The present case concerns a dispute between neighbors over property use and zoning. The court only recites the facts pertinent to the present motion. The plaintiffs, Jason Gordon and Nicole Gordon, own residential real estate at 4340 Mt. Carmel Road, Cincinnati, Ohio in Clermont County. The defendant, Mt. Carmel Farms LLC (MCF), ‘owns a neighboring 11.7 acre property located at 4370 Mt. Carmel Road. MCF has aneasement that cuts through the plaintiffs’ property. The court incorporates the findings of facts from its October 4, 2022 decision granting the plaintiffs an injunction against MCF. The plaintiffs filed a complaint on February 19, 2020 against MCF, Cory Wright as Zoning director, and Union Township.* Relevant to this motion is the plaintiffs’ first cause of action, which alleges that MCF uses its property in violation of the Union Township Zoning Resolution (UTZR) and those violations especially damage the plaintiffs, entitling them to an injunction. Upon the plaintiffs’ motion, on October 4, 2022 the court issued a preliminary injunction against MCF. The court had found that MCF allowed businesses to operate on its property in contravention of the UTZR, including an automotive repair shop, a concrete sawing business, a steel fabricating business, landscaping businesses, and storage businesses. The order mandated as follows: The defendant, and any of its agents, and employees, are restrained from using or permitting the use of its property at 4370 Mt. Carmel Road, Union Township, Ohio, 45244, in any way inconsistent with “ER” Estate Residential permitted uses under the Union Township Zoning Resolution, Article 6, Section 611. Businesses that are not consistent with “ER” Estate Residential permitted use include but are not limited to: automotive repair shops, concrete sawing businesses, steel fabricating businesses, landscaping businesses, and storage businesses. The defendant has 30 days to bring its property into compliance with the Union Township Zoning Resolution. By agreed entry, the court extended the date of compliance to December 5, 2022 On December 14th, the plaintiffs filed a motion for contempt, alleging that there was ongoing commercial and industrial activity at MCF’s property. The court issued a show * Cory Wright and Union Township have since been dismissed from this litigation. 2cause order on December 20th. MCF filed a response in opposition on January 13, 2023. On January 25th, the court held an evidentiary hearing on the motion, at which both parties were represented by counsel. Jason Gordon testified and each side submitted exhibits. Following Gordon's testimony, the parties argued their positions FINDINGS OF FACT Following the court's preliminary injunction, MCF eventually ceased several prohibited activities on its property. There is no longer an automotive repair business, a steel fabricating business, a concrete sawing business, Worldwide Graphics and Apparel, or A&A Safety operating on MCF's property. However, MUST Landscaping and American Landscaping still operate on MCF's property. Each business has work trucks outside of their respective rented buildings. There is also evidence of Evans Landscaping vehicles that have remained on MCF's property. A number of items are still stored on the property, including work trucks, excavators, snow plows, shipping containers, salt storage, and other miscellaneous items. Moreover, Gordon testified that he continues to experience a high volume of traffic on his easement from vehicles traveling to and from MCF’s property. An additional business, Televac, operates in a building that is partially in Clermont County and partially in Hamilton County. There was no evidence presented at the hearing as to what type of activities Televac uses in the space it occupies. LEGAL STANDARD “Disobedience to court orders may be punished by contempt."? Pursuant to R .C. 2705.02(A), contempt results “when a party before a court disregards or disobeys an 2 Cottrell v. Cottrell, 12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, {] 11, quoting Ware v. Ware, 12th Dist. No. CA2001-10-089, 2002 WL 336957, "1 (Mar. 4, 2002). 3order or command of judicial authority."> With respect to injunctions in particular, “fan injunction or restraining order granted by a judge may be enforced as the act of the court, and disobedience thereof may be punished by the court, or by a judge who granted it in vacation, as a contempt."« A person found to be in contempt of court is subject to punishment. The degree of proof in a civil contempt action is one of clear and convincing evidence.® Proof of purposeful, willing, or intentional violation of a court order is not a prerequisite to a finding of contempt.” “Civil contempt renders punishment that is remedial or coercive and for the benefit of the complainant, and prison sentences are conditional."* A contemnor is said to “carry the keys of his prison in his own pocket” because the contemnor must be afforded the opportunity to purge his civil contempt. “The condition for terminating the contempt sanction is referred to as the purge condition.""° R.C. 2705.05 governs the procedures for contempt and includes penalty guidelines: In all contempt proceedings, the court shall conduct a hearing, Atthe hearing, the court shall investigate the charge and hear ® Cottrell, 2013-Ohio-2397 at | 11, quoting Spickler v. Spickler, 7th Dist. No. 01 COS2, 2003- Ohio~3553, 4.38 “RC. 2727.11. Notably, the statutory provisions relating to injunction orders are not exclusive but are cumulative with the statutory provisions relating to contempt. Hayes v. Hayes, 11 Ohio App. 10 (1st Dist.1916); State ex rei. Bruns Coal Co. v. Compton, 96 Ohio App. 541, 123 N.E.2d 43 (6th Dist. 1953). : 5 In re W.F., 12th Dist. Fayette No. CA2010-10-029, 2011-Ohio-3012, | 11, citing R.C. 2705.05. © Underwood v. O'Hara, 12th Dist. Butler No. CA99-03-057, 2000 WL 313493, *1 (Mar. 27, 2000), citing Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980) * Pugh v. Pugh, 15 Ohio St.3d 136, 472 N.E.2d 1085 (1984), © In re AAJ., 2015-Ohio-2222, 36 N.E.3d 791, | 43 (12th Dist), citing In re W.F., 12th Dist. Fayette No. CA2010-10-029, 2011-Ohio-3012, | 12. 8 Inre AAd., 2015-Ohio-2222 at {| 43, citing in re W.F., 2011-Ohio-3012 at ff 12. *® State ex rel. Yost v. Crossridge, Inc., 2022-Ohio-1455, 188 N.E.3d 629, {] 19 (7th Dist.), quoting ‘Seoud v. Bessil, 7th Dist. Mahoning No. 1 MA 0090, 2016-Ohio-8415, | 16. 4any answer or testimony that the accused makes or offers and shall determine whether the accused is guilty of the contempt charge. If the accused is found guilty, the court may impose any of the following penalties: (1) For a first offense, a fine of not more than two hundred fifty dollars, a definite term of imprisonment of not more than thirty days in jail, or both[.]"* Alternatively, in cases where an injunction is violated, R.C. 2727.12 provides for a slightly different procedure and suggested penalty: Upon being satisfied, by affidavit, of the breach of an injunction or restraining order, the court or judge who issued such injunction or order may issue an attachment against the guilty party who shall pay a fine of not more than two hundred dollars, for the use of the county, make immediate restitution to the party injured, and give further security to obey the injunction or restraining order. In default thereof, said party may be committed to close custody until he complies with such requirement, or is otherwise discharged." Although these statutes provide penalty guidelines, it is “well established” that trial courts are not bound by the sanction limits set forth in statutes when imposing a penalty for contempt.‘? Although the Revised Code sets forth caps on jail time and fines for contempt in R.C. 2705.05, the Ohio Supreme Court held in State v. Local Union 5760, United Steelworkers of America, 172 Ohio St. 75, 173 N.E.2d 331 (1961), that “[flhe inherent power of a court to punish for contempt of court may not be limited by legislative authority, nor does such power depend upon express constitutional grant.” Indeed, * RC. 2705.05(A). "RC. 2727.12 ® Davis v. Davis, 12th Dist. Butler No. CA2021-11-139, 2022-Ohio-3179, {] 36, quoting Cleveland v. Bright, 8th Dist. No. 108989, 2020-Ohio-5180, 162 N.E.3d 153, 145. ¥ State v. Local Union 5760, United Steelworkers of America, 172 Ohio St. 75, 173 N.E.2d 331 (1961), paragraph one of the syllabus, overruled on other grounds, Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980). See also Davis, 2022-Ohio-3179 at | 37, quoting Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St.2d 197, 207, 299 N.E.2d 686 (1973) ("Although * * * the General Assembly may prescribe procedure in indirect contempt cases, the 5“courts have an absolute duty to safeguard the administration of justice by use of the contempt power where appropriate.""> As such, numerous Ohio courts have issued daily fines for ongoing injunction violations related to property conditions."* Additionally, “[a] trial court may, within its discretion, include attorney fees as part of the costs taxable to a defendant found guilty of civil contempt."” LEGAL ANALYSIS In examining the instant case, the plaintiffs have proven by clear and convincing evidence that MCF is disobeying the court's preliminary injunction in multiple ways. First, there are muttiple landscaping businesses operating on MCF's property. As explained in the court's preliminary injunction decision, landscaping is not agricultural. Since MCF’s property is zoned as “ER” Estate Residential with an agricultural exemption, landscaping is not a permitted use. More to the point, the court's order specifically states: The defendant, and any of its agents, and employees, are restrained from using or permitting the use of its property at 4370 Mt. Carmel Road, Union Township, Ohio, 45244, in any way inconsistent with “ER” Estate Residential permitted uses under the Union Township Zoning Resolution, Article 6, Section 611. Businesses that are not consistent with “ER” power to punish for contempt has traditionally been regarded as inherent in the courts and not subject to legislative control.) +5 Metron Nutraceuticals, L.L.C. v. Thomas, 8th Dist. Cuyahoga No. 110280, 2022-Ohio-79, 143, quoting Cleveland v. Bright, 2020-Ohio-5180, 162 N.E.3d 153, | 18 (8th Dist). ¥® See, e.g., Columbus v. ACM Vision, V, LLC, 10th Dist. Franklin No. 20AP-79, 2021-Ohio-925, (affirming trial court's imposition of a fine of $50 “for each day that the property remains in noncompliance,” with such fines to “commence forthwith” in case where defendant did not comply with court's environmental injunction); Concord Tp. Trustees v. Hazelwood Builders, Inc., 11th Dist. Lake No. 2000-L-040, 2001 WL 285822, *4 (Mar. 23, 2001) (affirming trial court contempt punishment for zoning violations in which trial court imposed a fine of $5,000 plus an additional fine of $100 per day for each day the violations persisted); State ex rel. Fisher v. B & B Enterprises, Sth Dist. Morgan No. CA-92-1, 1993 WL 218382, *3 (May 5, 1993) (affirming trial court's decision under R.C. 2705.05 and 2727.12 to impose a fine of $100 per day for each of the contemnor's wells that violated a consent order); ¥” Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 67, 556 N.E.2d 157 (1990).Estate Residential permitted use include but are not limited to: *** landscaping businesses * ** The continued operation of landscaping businesses on MCF's property clearly violates the preliminary injunction order. At the evidentiary hearing, the defense argued that these landscaping businesses may yet demonstrate an agricultural use once spring arrives. For instance, the businesses may begin growing plants. But the fact of the matter is that the defense did not present any evidence to demonstrate that the landscaping businesses are using MCF's property in an agricultural capacity right now. Further, MCF has violated the preliminary injunction by continuing to use the property for business storage. Both testimony and photographic evidence demonstrated that MCF is allowing storage of all manner of items on the property, including work trucks, excavators, snow plows, shipping containers, salt storage, and other miscellaneous items. MCF counters in its response in opposition that: “After the Defendant learned of the Court's Preliminary Injunction, Defendant caused its companies’ equipment stored outdoors on the property to be moved inside of buildings so that it is out of the view of Plaintiffs, the Gordons.” However, using the property for business storage, irrespective of whether it is indoors or outside, contravenes the preliminary injunction." Finally, the plaintiffs submit that Televac’s business violates the preliminary injunction, However, there was no evidence presented at the show cause hearing or at the preliminary injunction hearing about what Televac’s business does. Although it *8 Not only does storage violate the court's express order against storage businesses, but having businesses store materials on the property is not a permitted use under Article 6, Section 611 of the Union Township Zoning Resolution. The court's preliminary injunction prohibits any use inconsistent with Article 6, Section 611 of the Union Township Zoning Resolution. 7appears Televac is operating on MCF’s property, without knowing what activities Televac is engaging in, the court cannot conclude that its activities infringe the preliminary injunction In sum, MCF is using its property in ways that are inconsistent with “ER” Estate Residential permitted uses under the Union Township Zoning Resolution, Article 6, Section 611. Specifically, MCF continues to permit landscaping businesses to operate on its property, and it allows its property to be used for business storage. As such, MCF is in violation of the court’s October 4, 2022 preliminary injunction order. Having found by clear and convincing evidence that MCF is presently violating the court's preliminary injunction, the court now finds MCF in contempt of court. The court fines MCF in the amount of $1,000 per day for each day the violations persist. The purpose of this sanction is to compel MCF's compliance. After careful consideration, the court concludes that the statutory guidelines for penalties would be insufficient to coerce MCF’s compliance. As this is civil contempt, MCF is granted until April 14, 2023 to purge its contempt by complying in full with the October 4, 2022 preliminary injunction order. To purge its contempt, MCF must: (1) remove and/or cease operations of any business on the property not currently engaged in agricultural activities; (2) remove all storage units and shipping containers from the property; (3) remove all work trucks, excavators, snow plows from the property; and (4) remove all salt storage from the property. CONCLUSION For the foregoing reasons the court finds that the plaintiffs’ motion for contempt is. well-taken and is hereby granted. The court fines MCF in the amount of $1,000 per day for each day its violations persist. MCF must also pay the plaintiffs’ reasonable costs andattorney fees necessitated by bringing this motion. MCF has 60 days to comply in full with the court's October 4, 2022 preliminary injunction, as outlined above, to purge its contempt. This matter is set for hearing on April 21, 2023 at 9:00 a.m. to determine whether MCF has purged its contempt. ITIS SO ORDERED. Kevin T. Miles