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Tradesmen International3/16/2000
CHARACTER OF PROCEEDINGS
JUDGMENT AFFIRMED.
DATE OF JOURNALIZATION
Defendants Michael Kahoe and Timothy Cherotti were employees of Tradesmen International ( Tradesmen ), a company that leases skilled tradespeople to construction contractors, among others. Both defendants signed non-competition and trade secrets agreements as part of their employment. When defendants left Tradesmen's employ, they started their own business in direct contravention of the non-competition agreements. Tradesmen sought an injunction to prohibit defendants from continuing in business and, in a consent decree, the parties ultimately agreed that the court would issue an injunction and defendants would abide by their non-competition agreements beginning on January 3, 1997 and running for six months.
Tradesmen later learned that both defendants had started a new company called Electricians Unlimited ( EU ) that directly competed against it by leasing electricians. Defendants started this new company before the expiration of the non-competition agreements as set forth in the consent decree. Tradesmen filed a motion to show cause why defendants should not be held in contempt for failing to abide by the consent decree. The court conducted a hearing and found both defendants in contempt. It ordered defendants to sever all ties to customers it lured away from Tradesmen, extended the non-competition agreements for an additional six months, restrained each defendant from entering into contracts with the other or their intermediaries to operate any business enterprise coming within the reach of the non-competition agreements, and awarded Tradesmen $51,459.78 in uncontested attorney fees. Defendants appeal and contest all parts of the court's contempt citation.
I
The first assignment of error complains that Tradesmen failed to carry its burden of proving by clear and convincing evidence the defendants violated the trial court's injunction and consent decree.
A
Throughout the proceedings in the lower court, the parties and the court assumed that the contempt flowing from the violation of the consent decree was civil, not criminal. However, a question has subsequently arisen whether the contempt is, in fact, criminal. This is an important distinction, for if the contempt were criminal in nature, the burden of persuasion would become proof beyond a reasonable doubt, see Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, syllabus, a standard that admittedly would not be met in this case.
The distinction between civil and criminal contempt is not always apparent, and even the United States Supreme Court has stated, lthough the procedural contours of the two forms of contempt are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear. International Union, United Mine Workers of America v. Bagwell (1994), 512 U.S. 821, 828. Because the distinction is not clear, the courts should exercise caution in overturning the assumptions of parties who make no argument that a contempt proceeding is anything but civil in nature. This is not to say that the courts should never question the true nature of contempt proceedings. It is always the duty of a court to see that substantial justice is done. But when neither party raises the issue during the contempt proceedings, and the contemnor fails to raise the issue on appeal, an appellate court should not raise the issue on its own initia-tive. For all practical purposes, we must consider the matter waived.
The preceding discussion presupposes there is a colorable claim that the contempt proceedings below were criminal
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