[Cite as Holbrook v. Benson, 2013-Ohio-5307.]


                                  holbrookCOURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


BRYON HOLBROOK                                  :   JUDGES:
                                                :
                                                :   Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellant                   :   Hon. John W. Wise, J.
                                                :   Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :
MARILYN BENSON                                  :   Case No. 2013CA00045
                                                :
                                                :
        Defendant - Appellee                    :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court
                                                    of Common Pleas, Case No.
                                                    2012CV03394



JUDGMENT:                                           Reversed and Remanded



DATE OF JUDGMENT:                                   December 2, 2013



APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

SANDRA K. CHESHIRE                                  WILLIAM DEMSKY
Cheshire Law Office                                 54 Federal Avenue, NE
931 North Main Street                               Massillon, OH 44646
Suite 102
North Canton, OH 44720                              LARRY SLAGLE
                                                    2859 Aaronwood Avenue, NE
                                                    Massillon, OH 44646
Stark County, Case No. 2013CA00045                                                     2




Baldwin, J.

      {¶1}      Appellant Bryon Holbrook appeals a judgment of the Stark County

Common Pleas Court disqualifying his attorney, Michela Huth, from representing him in

the instant case. Appellee is Marilyn Benson.

                              STATEMENT OF FACTS AND CASE

      {¶2}      Appellant and appellee entered into an oral lease regarding property in

Navarre, Ohio, in July of 2011. Appellant filed the instant action on October 30, 2012,

alleging that he had made improvements to the house and was entitled to

reimbursement or credit for rent.      Appellee counterclaimed seeking unpaid rent of

$600.00 per month from August 1, 2011.

      {¶3}      Attorney Michela Huth filed a motion to appear pro hac vice as co-counsel

for appellant on October 30, 2012. The motion was granted on November 1, 2012.

      {¶4}      The parties appeared before the court for a hearing on February 19, 2013.

At that hearing, it became apparent that Attorney Huth was involved in a romantic

relationship with appellant and was living with him in the house that was the subject of

the case. At the hearing, counsel for appellee informed the court that Huth will be a

material witness in the case because she is living in the home. Huth acknowledged that

appellant was her boyfriend and that she was living in the home, but represented that

she had not witnessed any of the repairs that were the subject of the complaint or the

counterclaim.

      {¶5}      The trial court disqualified Huth from representing appellant. The court

ruled in pertinent part:
Stark County, Case No. 2013CA00045                                                       3


      {¶6}   “Since the main issue in this case is the extent of the repairs made to the

home before and after Plaintiff moved in, it is obvious that Plaintiff’s counsel, [Michela

Huth] may be a material witness to the case. Equally important is the fact that Attorney

[Huth] is in a romantic relationship with Plaintiff, who will undoubtedly be the main

witness in the case. The fact that Attorney [Huth] is both living with the Plaintiff and

occupying the premises of the dispute leaves Plaintiff in a vulnerable position, especially

if the relationship doesn’t last. In addition, Attorney [Huth’s] judgment may be impaired

by the depth and quality of the relationship, a situation which could be detrimental to

Plaintiff.” Judgment Entry, March 1, 2013, as corrected by nunc pro tunc judgment of

March 5, 2013.

      {¶7}   Appellant assigns a single error on appeal:

      {¶8}   “THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED

ITS DISCRETION WHEN IT DISQUALIFIED PLAINTIFF-APPELLANT BRYON

HOLBROOK’S TRIAL COUNSEL (MICHELA HUTH).”

      {¶9}   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., 81 Ohio St.3d 1, 688 N.E.2d 258 (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., 72 Ohio St.3d 423, 650 N.E.2d 869 (1995), syllabus. In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable,

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

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Stark County, Case No. 2013CA00045                                                        4


      {¶10}   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., 174 Ohio App.3d

317, 2007–Ohio–6883, 882 N.E.2d 14, ¶ 21 (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., 127 Ohio App.3d 429, 433, 713 N.E.2d 65 (9th Dist.1998),

quoting Spivey v. Bender, 77 Ohio App.3d 17, 22, 601 N.E.2d 56 (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., 180 Ohio App.3d 99,

2008–Ohio–6687, 904 N.E.2d 576, ¶ 11 (1st Dist.) citing Kala v. Aluminum Smelting &

Refining Co., Inc., 81 Ohio St.3d 1, 6, 688 N.E.2d 258 (1998).

      {¶11}   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; (3)

the disqualification of the lawyer would work substantial hardship on the client.

      {¶12}   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
Stark County, Case No. 2013CA00045                                                          5

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

citing Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 510 N.E.2d 379 (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. Id., citing Mentor Lagoons, supra at paragraph

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

representing his or her client. The burden of proving that 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. Id., citing Waliszewki, supra; 155 N.

High Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 650 N.E.2d 869 (1995), at syllabus.

      {¶13}   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

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

counsel could give relevant testimony.” Akron v. Carter, 190 Ohio App.3d 420, 2010–

Ohio–5462, 942 N.E.2d 409, ¶ 19 (9th Dist.) quoting Puritas Metal Prods. Inc. v. Cole,

9th Dist. Lorain Nos. 07CA009255, 07CA009257, and 07CA009259, 2008–Ohio–4653,

at ¶ 34 quoting Mettler v. Mettler (2007), 50 Conn.Supp. 357, 928 A.2d 631, 633.
Stark County, Case No. 2013CA00045                                                        6

      {¶14}   In King v. Pattison, 5th Dist. Muskingum No. CT2013-0010, 2013-Ohio-

4665, the party seeking to disqualify an attorney represented to the court that the

attorney was likely to be called as a witness at trial. There was no evidence attached to

the motion, nor was there evidence attached to the response. This Court found that the

trial court abused its discretion in disqualifying the attorney without any reasoned

analysis. Id. at ¶22. While the testimony of the attorney might arguably be admissible,

we found that the trial court abused its discretion in disqualifying the attorney without

making any factual and/or legal conclusions relevant to the required analysis for

granting disqualification. Id. at ¶23.

      {¶15}   Similarly, in the instant case the court did not make any factual or legal

findings relevant to the required analysis for determining whether Michela Huth was a

necessary witness in the instant case. Appellee presented no evidence as to what her

testimony might be, and merely represented to the court in a conclusory fashion that

she might be a witness because she lives on the subject property and is involved in a

romantic relationship with appellant. The court did not make a finding that she was a

necessary witness, but found only that she may be a material witness in the case. The

trial court abused its discretion in disqualifying Huth without making the proper inquiry

and findings that her testimony was admissible and necessary.           The record of the

hearing reflects no facts as to what her testimony would be if called as a witness.

      {¶16}   Further, the trial court abused its discretion in disqualifying Huth on the

basis that she is romantically involved with her client.       Ohio Rule of Professional

Conduct, Rule 1.8(j) provides, “A lawyer shall not solicit or engage in sexual activity with

a client unless a consensual relationship existed between them when the client-lawyer
Stark County, Case No. 2013CA00045                                                       7


relationship commenced.”       The information before the court reflected that the

relationship between Huth and appellant existed prior to commencement of the

attorney-client relationship. While the court’s concerns regarding the effect of Huth’s

representation on the relationship and vice versa might be valid, they are not grounds

for disqualifying her as counsel.

      {¶17}   Finally, appellee argues that Huth has a proprietary interest in the property

by virtue of living on the property. This basis for disqualification was not cited by the

court as grounds for disqualification, nor was any evidence presented at the hearing

other than the fact that she lives on the subject property with appellant.

      {¶18}   The assignment of error is sustained.

      {¶19}   The judgment of the Stark County Common Pleas Court is reversed, and

this case is remanded for further proceedings according to law, consistent with this

opinion. Costs assessed to appellee.

By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.



                                         HON. CRAIG R. BALDWIN



                                         HON. SHEILA G. FARMER



                                         HON. JOHN W. WISE


CRB/rad
[Cite as Holbrook v. Benson, 2013-Ohio-5307.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


BRYON HOLBROOK                                     :
                                                   :
        Plaintiff - Appellant                      :
                                                   :
-vs-                                               :      JUDGMENT ENTRY
                                                   :
MARILYN BENSON                                     :
                                                   :
        Defendant -Appellee                        :      CASE NO. 2013CA00045


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is reversed and

remanded. Costs assessed to appellee.




                                                HON. CRAIG R. BALDWIN



                                                HON. SHEILA G. FARMER



                                                HON. JOHN W. WISE
