[Cite as King v. Pattison,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

RONALD O. KING : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. CT2013-0010 : ROSS A. PATTISON, ET AL. : : : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, CH2010-0135

JUDGMENT: REVERSED & REMANDED

DATE OF JUDGMENT ENTRY: September 30, 2013

APPEARANCES:

For Plaintiff-Appellant: For Defendants-Appellees:

MILES D. FRIES ROBERT E. SOLES, JR. 320 Main St. KEVIN C. COX P.O. Box 190 KARA DODSON Zanesville, OH 43702-1090 6545 Market Ave N. North Canton, OH 44721

ERIC D. MARTIN 58 N. 5th St. Heritage Suites #102 Zanesville, OH 43701 Muskingum County, Case No.CT2013-0010 2

Delaney, J.

{¶1} Plaintiff-Appellant Ronald O. King appeals the February 8, 2013 judgment

entry of the Muskingum County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶2} In 2006, Plaintiff-Appellant Ronald O. King entered into a lease agreement

with Defendant-Appellee Pattico, LLC to lease a building located in Zanesville, Ohio.

King operated a salvaging and recycling business at the location. In January 2007,

Defendant-Appellee Ross A. Pattison notified King the lease was terminated and

ordered King to vacate the building. King alleges that in February 2007, Defendants-

Appellees Ross A. Pattison and Pattico, LLC wrongfully seized and disposed of King’s

personal property and business inventory located at the rental property.

{¶3} King filed his original complaint against Pattison and Pattico on February

8, 2008. The complaint was dismissed and on February 19, 2010, King refiled his

complaint against Pattison and Pattico. Pattison and Pattico filed motions for summary

judgment, which were denied by the trial court. The matter was scheduled for jury trial

on March 26, 2013.

{¶4} On November 26, 2012, Pattison and Pattico filed a motion to disqualify

King’s trial counsel, Miles D. Fries. In the motion, Pattison and Pattico alleged Attorney

Fries was likely to be called as a witness at trial and should be disqualified pursuant to

Prof.Cond.R. 3.7. Prof.Cond.R. 3.7 states:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is

likely to be a necessary witness unless one or more of the following

applies: Muskingum County, Case No.CT2013-0010 3

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of the legal services

rendered in the case;

(3) the disqualification of the lawyer would work substantial hardship on

the client. (Emphasis sic.)

{¶5} The motion to disqualify states that on March 30, 2007, Attorney Fries

sent Pattison a letter on his client’s behalf, requesting that Pattison contact Attorney

Fries within seven days of receipt to discuss the removal of King’s property from the

rental property. The motion to disqualify states that on April 2, 2007,

Pattison personally visited Attorney Fries’[s] office in regard to the matter.

Attorney Fries’[s] office acknowledged that Defendant had been there, and

accepted written correspondence from Defendant relating to the matter

that Defendant had brought with him to deliver to Attorney Fries.

Defendant had made this effort well within the seven days requested by

Attorney Fries, and never received any further communication from

Attorney Fries on the matter until commencement of suit the following

year.

{¶6} While Attorney Fries did not meet with Pattison, the motion alleged that

Attorney Fries’s conduct on behalf of his client in making a demand, and subsequently

not responding to Pattison’s attempt at resolution, made it likely that Attorney Fries may

be called as a witness at trial in the action to rebut King’s claim for conversion. No

affidavit or other evidence was attached to the motion. Muskingum County, Case No.CT2013-0010 4

{¶7} King responded to the motion. He argued in part there was no fact in

dispute because Attorney Fries would stipulate that he received correspondence from

Pattison and did not respond to the correspondence. No affidavit or other evidence was

attached to the response. Pattison filed a reply to its motion.

{¶8} On February 8, 2013, the trial court granted the motion to disqualify King’s

trial counsel. The trial court ordered new counsel to file an appearance within 10 days

of the date of the judgment entry or King would proceed to trial on March 26, 2013 pro

se.

{¶9} It is from this decision King now appeals.

ASSIGNMENTS OF ERROR

{¶10} King raises one Assignment of Error:

{¶11} “I. THE TRIAL COURT’S DECISION TO DISQUALIFY APPELLANT’S

COUNSEL WAS AN ABUSE OF DISCRETION.”

ANALYSIS

{¶12} King argues in his sole Assignment of Error the trial court abused its

discretion when it disqualified his trial counsel pursuant to Prof.Cond.R. 3.7. We agree.

{¶13} An order disqualifying a civil trial counsel is a final order that is

immediately appealable pursuant to R.C. 2505.02. See Kale v. Aluminum Smelting &

Refining Co., Inc.,

,

(1998). We review the trial court's

decision on a motion to disqualify for an abuse of discretion. 155 North High Ltd. v.

Cincinnati Ins. Co.,

,

(1995), syllabus. In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable, Muskingum County, Case No.CT2013-0010 5

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore,

,

(1983).

{¶14} Trial courts have the “inherent power to disqualify an attorney from acting

as counsel in a case when the attorney cannot or will not comply with the Code of

Professional Responsibility and when such action is necessary to protect the dignity and

authority of the court.” Horen v. City of Toledo Public School Dist.,

,

,

(6th Dist.). “However, because of the

potential use of the advocate-witness rule for abuse, disqualification ‘is a drastic

measure which should not be imposed unless absolutely necessary.’“ Waliszewski v.

Caravona Builders, Inc.,

,

(9th Dist. 1998),

quoting Spivey v. Bender,

,

(6th Dist. 1991). See,

also, A.B.B. Sanitec West, Inc. v. Weinsten, 8th Dist. Cuyahoga No. 88258, 2007-Ohio-

2116, ¶ 12 (applying the current Rules of Professional Conduct). It is therefore

important for the trial court to follow the proper procedures in determining whether

disqualification is necessary. Brown v. Spectrum Networks, Inc.,

,

,

(1st Dist.) citing Kala v. Aluminum Smelting &

Refining Co., Inc.,

,

(1998).

{¶15} Under Prof.Cond.R. 3.7, “[a] lawyer shall not act as an advocate at a trial

in which the lawyer is likely to be a necessary witness * * *.” The rule lists three

exceptions to disqualification:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of the legal services

rendered in the case; Muskingum County, Case No.CT2013-0010 6

(3) the disqualification of the lawyer would work substantial hardship on

the client. (Emphasis sic.)

{¶16} Prof.Cond.R. 3.7 replaced the former disciplinary rules DR 5-101(B) and

DR 5-102(A) and (B), under the former Code of Professional Responsibility. Under the

prior rules, the Ohio Supreme Court set forth the procedure for the trial court to follow in

deciding whether a lawyer can serve as both an advocate and a witness. Brown, at ¶13

citing Mentor Lagoons, Inc. v. Rubin,

,

(1987). The

court first had to determine the admissibility of the attorney’s testimony. If the trial court

found the testimony admissible, the court then had to consider whether any exceptions

to the disciplinary rules were applicable.

citing Mentor

at paragraph

two of the syllabus. If no exceptions applied, the attorney was disqualified from

representing his or her client. The burden of proving disqualification was necessary

rested on the moving party and the burden of proving one of the exceptions applied was

on the attorney seeking to claim the exception.

citing Waliszewki, supra; 155 N.

High Ltd. v. Cincinnati Ins. Co.,

,

(1995), at syllabus.

{¶17} Under Prof.Cond.R. 3.7, a lawyer may be disqualified from representing

his or her client only when it is likely the lawyer will be a “necessary” witness. A

necessary witness under Prof.Cond.R. 3.7 is one whose testimony must be admissible

and unobtainable through other trial witnesses. Popa Land Co., Ltd v. Fragnoli, 9th

Dist. Medina No. 08CA0062–M, 2009–Ohio–1299, ¶ 15. “Testimony may be relevant

and even highly useful but still not strictly necessary. A finding of necessity takes into

account such factors as the significance of the matters, weight of the testimony and

availability of other evidence. * * * A party's mere declaration of an intention to call Muskingum County, Case No.CT2013-0010 7

opposing counsel as a witness is an insufficient basis for disqualification even if that

counsel could give relevant testimony.” Akron v. Carter,

, 2010-

Ohio-5462,

(9th Dist.) quoting Puritas Metal Prods. Inc. v. Cole,

9th Dist. Lorain Nos. 07CA009255, 07CA009257, and 07CA009259,

,

at ¶ 34 quoting Mettler v. Mettler (2007),

,

.

{¶18} In analyzing the prior disciplinary rules and Prof.Cond.R. 3.7, the First

District in Brown v. Spectrum Networks, Inc., supra, determined the procedure for a trial

court to follow in determining whether to disqualify an attorney who has been called to

testify by the opposing party:

(1) determine whether the attorney's testimony is admissible and (2)

determine whether the attorney's testimony is necessary. Under the

second part of this analysis, the court must decide whether the attorney's

testimony is relevant and material to the issues being litigated and

whether the testimony is unobtainable elsewhere. If the court determines

that the lawyer's testimony is admissible and necessary, the court must

then determine whether any of the exceptions set forth under Rule 3.7

apply.

Brown, at ¶ 15. See also, Ross v. Olsavsky, 7th Dist. Mahoning No. 09 MA 95, 2010-

Ohio-1310.

{¶19} In considering the two prongs of the disqualification determination, the

parties in this case dispute whether the trial court is required to hold an evidentiary

hearing on a motion for disqualification. The First District Court of Appeals in Brown v.

Spectrum Networks, Inc. held the record in the case below was devoid of any evidence Muskingum County, Case No.CT2013-0010 8

upon which to make a determination for disqualification pursuant to the procedural

analysis.

,

,

. The court

remanded the matter to the trial court to hold an evidentiary hearing, either by oral

hearing or paper hearing, so long as there was sufficient evidence before the trial court

through depositions, affidavits, or written stipulations as to what counsel’s testimony

would be for the trial court to properly consider in making its findings. Id. at ¶ 18. This

Court has held that an evidentiary hearing where the parties may examine and cross-

examine witnesses is not necessary on all motions for disqualification. Shawnee

Assocs., L.P. v. Shawnee Hills, 5th Dist. Delaware No. 07CAE050022,

.

{¶20} Brown v. Spectrum Networks comports with our holding in Shawnee

Assocs., L.P. v. Shawnee Hills in that an evidentiary hearing with witnesses is not

necessary in all cases of motions for disqualification. The cases both conclude that the

parties, in meeting their respective burdens under Prof.Cond.R. 3.7, must present

sufficient evidence so the trial court can make a determination as to the admissibility of

the testimony, whether the testimony is necessary, and whether any exceptions apply.

This conclusion is supported by the warning that “disqualification ‘is a drastic measure

which should not be imposed unless absolutely necessary.’” Waliszewski v. Caravona

Builders, Inc.,

,

(9th Dist. 1998), quoting Spivey

v. Bender,

,

(6th Dist. 1991). See, also, A.B.B.

Sanitec West, Inc. v. Weinsten, 8th Dist. No. 88258,

(applying the

current Rules of Professional Conduct). Muskingum County, Case No.CT2013-0010 9

{¶21} The parties in this case agree to the factual scenario that Pattison cites as

supporting his argument that Attorney Fries is likely to be a necessary witness as to

King’s claim for conversion. According to the motion to disqualify, Attorney Fries sent

Pattison a letter to discuss the removal of King’s property. Pattison came to Attorney

Fries’s office to hand deliver a responsive letter, which Attorney Fries’s office agrees it

received. Attorney Fries never spoke to Pattison. Attorney Fries did not respond to the

letter. In the response to the motion to disqualify, Attorney Fries states he never read

Pattison’s letter. The record in this case contains a July 11, 2012 affidavit from Pattison

as to the contents of the letter he hand delivered to Attorney Fries’s office. Pattison

avers in the July 11, 2012 affidavit that his letter stated he was ready, willing, and able

to return King’s property. He next states he never heard from King or Attorney Fries.

{¶22} In its February 8, 2013 order, the trial court granted appellee’s motion to

disqualify without any reasoned analysis. We find this action does not satisfy the

disqualification requirements as contemplated by Prof.Cond.R. 3.7.

{¶23} While the testimony of Attorney Fries in this case may be arguably

admissible, we find it was an abuse of discretion for the trial court to disqualify Attorney

Fries’s without determining any factual and/or legal conclusions relevant to the required

analysis for granting disqualification. We vacate the February 8, 2013 judgment entry

granting the motion to disqualify King’s trial counsel.

{¶24} The sole Assignment of Error of Plaintiff-Appellant Ronald O. King is

sustained. Muskingum County, Case No.CT2013-0010 10

CONCLUSION

{¶25} The February 8, 2013 judgment of the Muskingum County Court of

Common Pleas is reversed and this matter is remanded to the trial court for further

proceedings in accordance with this Opinion.

By: Delaney, J.,

Gwin, P.J. and

Farmer, J., concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. SHEILA G. FARMER