[Cite as In re Disqualification of Sheward, 136 Ohio St.3d 1239, 2013-Ohio-3488.]




                       IN RE DISQUALIFICATION OF SHEWARD.
        SIMONETTI ET AL. v. ADAMS-KARL INVESTMENTS, L.L.C., ET AL.
                              ADAMS v. SIMONETTI ET AL.
        [Cite as In re Disqualification of Sheward, 136 Ohio St.3d 1239,
                                    2013-Ohio-3488.]
Judges—Affidavits of disqualification—R.C. 2701.03—Affiant fails to present
        evidence of alleged personal attacks, attempt to force settlement, and
        improper ex parte communications—No bias shown.
              (No. 13-AP-055 and 13-AP-056—Decided July 3, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Franklin County Court of Common Pleas
                       Case Nos. 11CVH-2192 and 12CV-4166.
                                 __________________
        O’CONNOR, C.J.
        {¶ 1} Bret Adams has filed affidavits with the clerk of this court under
R.C. 2701.03 seeking to disqualify Judge Richard S. Sheward from presiding over
any further proceedings in the above-captioned cases, both of which are pending
for trial in the Court of Common Pleas of Franklin County.
        {¶ 2} Adams alleges that Judge Sheward is biased and prejudiced against
him and the other defendants, as evidenced by the judge’s alleged (1) “personal
attacks” against Adams, (2) attempt to “force a settlement,” (3) disclosure of
confidential information to plaintiffs, and (4) ex parte communications with
Adams’s counsel.
        {¶ 3} Judge Sheward has responded in writing to the allegations in
Adams’s affidavits, offering a detailed account of his handling of both cases.
Judge Sheward denies any bias or prejudice against Adams.
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          {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Sheward.
              Alleged personal attacks and attempt to force settlement
          {¶ 5} Adams claims that Judge Sheward has made “pointed personal
attacks” against him and attempted to force settlement to lighten the judge’s
docket.     Judge Sheward denies making any such attacks, and he “fervently
dispute[s]” that he encouraged settlement in order to remove the cases from his
docket.
          {¶ 6} Adams has failed to substantiate these claims. In affidavit-of-
disqualification proceedings, the burden falls on the affiant to submit sufficient
evidence and argument demonstrating that disqualification is warranted. See R.C.
2701.03(B)(1). “Generally, an affiant is required to submit evidence beyond the
affidavit of disqualification supporting the allegations contained therein.” In re
Disqualification of Baronzzi, 135 Ohio St.3d 1212, 2012-Ohio-6341, 985 N.E.2d
494, ¶ 6. Here, Adams offers only his affidavits to support these allegations. He
concedes that he did not witness Judge Sheward’s allegedly improper settlement
conduct, yet none of the three attorneys who he says did witness it submitted an
affidavit supporting Adams’s claims. Further, and contrary to R.C. 2701.03,
Adams has not set forth any specific examples of the alleged personal attacks
made against him. See R.C. 2701.03(B)(1) (requiring the affiant to include the
“specific allegations on which the claim of interest, bias, prejudice, or
disqualification is based and the facts to support each of those allegations”).
          {¶ 7} On this record, Adams’s vague and unsubstantiated allegations—
especially in the face of clear denials by Judge Sheward—are insufficient to
establish bias or prejudice. See In re Disqualification of Walker, 36 Ohio St.3d
606, 522 N.E.2d 460 (1988); In re Disqualification of Synenberg, 127 Ohio St.3d
1220, 2009-Ohio-7206, 937 N.E.2d 1011, ¶ 25 (“in the wake of the conflicting
stories presented here, I cannot conclude that the judge should be




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removed * * *”); In re Disqualification of Flanagan, 127 Ohio St.3d 1236, 2009-
Ohio-7199, 937 N.E.2d 1023, ¶ 4 (“Allegations that are based solely on hearsay,
innuendo, and speculation—such as those alleged here—are insufficient to
establish bias or prejudice”).
       {¶ 8} Adams also claims that Judge Sheward stated: “Bret I do not like
your style of intimidation and aggressiveness,” “Mr. Adams likes to keep secrets
from this Court,” and “Attorney Adams likes to run attorneys off his cases.” To
the extent that these comments are the alleged “personal attacks” cited in Adams’s
affidavits, the comments do not warrant judicial disqualification. First, Judge
Sheward does not recall making some of these statements, and he claims that if he
did make them, they are “inaccurate” and have been “taken out of context.”
Because Adams failed to substantiate his allegations with a transcript or third-
party affidavit, there is no way to determine whether Judge Sheward made the
comments, let alone whether the comments reflect bias or prejudice against
Adams.
       {¶ 9} Second,


                 [t]he term “bias or prejudice” “implies a hostile feeling or
       spirit of ill-will or undue friendship or favoritism toward one of the
       litigants or his attorney, with the formation of a fixed anticipatory
       judgment on the part of the judge, as contradistinguished from an
       open state of mind which will be governed by the law and the
       facts.”


In re Disqualification of O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798
N.E.2d 17, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469,
132 N.E.2d 191 (1956). If the comments were made, they appear unnecessary,
but the comments alone do not convey the impression that Judge Sheward has



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developed a hostile feeling towards Adams or reached a fixed anticipatory
judgment necessitating his disqualification.
                 Alleged disclosure of confidential information
       {¶ 10} When Adams’s former counsel, Joel Mirman, moved to withdraw,
Adams claims that he requested that Judge Sheward keep the reasons for
Mirman’s withdrawal confidential.        Judge Sheward, according to Adams,
disregarded their “understanding” of the confidentiality of this information and
disclosed it to the plaintiffs. For his part, Judge Sheward appears to dispute that
he had any such “understanding” with Adams. Instead, the judge believes that he
had an obligation to conduct an open hearing on Mirman’s motion where both
sides could be heard.
       {¶ 11} Adams’s allegation here is not well taken.          Adams has not
submitted any authority suggesting that Judge Sheward violated some sort of duty
to Adams by disclosing this information at the hearing. But more important,
Adams has not established that Judge Sheward’s disclosure of the information
was the product of bias or prejudice against Adams. The record shows that the
opposing parties objected to Mirman’s withdrawal, and Judge Sheward
determined that disclosure of the information was necessary for an open hearing.
It is well settled that “a judge’s adverse rulings, even erroneous ones, are not
evidence of bias or prejudice.” In re Disqualification of Fuerst, 134 Ohio St.3d
1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14.
                        Alleged ex parte communication
       {¶ 12} Finally, Adams claims that Judge Sheward made an ex parte
telephone call to Mirman, his former counsel. Judge Sheward acknowledges
leaving a voice-mail message for Mirman informing him that the judge was going
to deny his motion to withdraw.       Judge Sheward insists, however, that the
message was not an improper ex parte communication under Jud.Cond.R.
2.9(A)(1), because it did not address a substantive issue in the underlying case.




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Despite the judge’s voice-mail message, Judge Sheward ultimately granted
Mirman’s motion to withdraw, to which Adams did not object.
       {¶ 13} Even if Adams had established that Judge Sheward violated his
ethical duties by contacting Mirman, in an affidavit-of-disqualification
proceeding, the question is not whether a judge has violated the Code of Judicial
Conduct, but whether the communication demonstrates bias or prejudice on the
part of the judge. In re Disqualification of Nicely, 135 Ohio St.3d 1237, 2012-
Ohio-6290, 986 N.E.2d 1, ¶ 10.         Adams has failed to explain how Judge
Sheward’s voice-mail message to Adams’s counsel demonstrates bias or prejudice
against Adams. Under these circumstances, Judge Sheward’s communication is
not grounds for disqualification. Compare id. (affiant failed to explain how
alleged ex parte communication, which led to a favorable decision for the affiant,
demonstrated bias or prejudice against her).
                             Adams’s rebuttal letters
       {¶ 14} Adams has written and submitted three rebuttal letters, but R.C.
2701.03 requires that a party or counsel seeking to disqualify a judge file an
affidavit. See R.C. 2701.03(B)(2) (requiring that the affidavit contain the “jurat of
a notary public or another person authorized to administer oaths or affirmations”).
Because Adams failed to confirm the statements in his rebuttal letters “by oath or
affirmation,” the letters were not considered. See, e.g., In re Disqualification of
Fuerst, 134 Ohio St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 19, quoting In
re Disqualification of Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d 1345 (1992)
(finding the affiant’s unsworn rebuttal letter to be a “ ‘nullity’ ” having “ ‘no
effect on the proceedings’ ”).
                                    Conclusion
       {¶ 15} “The statutory right to seek disqualification of a judge is an
extraordinary remedy. A judge is presumed to follow the law and not to be
biased, and the appearance of bias or prejudice must be compelling to overcome



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these presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241,
2003-Ohio-5489, 798 N.E.2d 23, ¶ 5.         Those presumptions have not been
overcome in this case.
       {¶ 16} For the reasons stated above, the affidavits of disqualification are
denied. The cases may proceed before Judge Sheward.
                         ________________________




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