[Cite as In re Disqualification of Serrott, 134 Ohio St.3d 1245, 2012-Ohio-6340.]




                        IN RE DISQUALIFICATION OF SERROTT.
            OHIOHEALTH CORPORATION ET AL. v. HEART SPECIALISTS
                                  OF OHIO, INC., ET AL.

          [Cite as In re Disqualification of Serrott, 134 Ohio St.3d 1245,
                                     2012-Ohio-6340.]
Judges—Affidavit of disqualification—Disqualification denied.
                     (No. 12-AP-022—Decided March 21, 2012.)
ON AFFIDAVIT OF DISQUALIFICATION in Franklin County Court of Common Pleas
                               Case No. 11-CVH11-13611.
                                 ____________________
        O’CONNOR, C.J.
        {¶ 1} Peter W. Hahn, co-counsel for the defendants in the underlying
case, has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking
to disqualify Judge Mark A. Serrott from presiding over any further proceedings
in case No. 11-CVH11-13611, a civil action now pending in the Court of
Common Pleas of Franklin County.
        {¶ 2} Attorney Hahn alleges that Judge Serrott, prior to his election to
the bench, was the divorce attorney for plaintiffs’ counsel, Steven Tigges.
According to Hahn, Judge Serrott represented Tigges in divorce proceedings that
spanned over ten years, yet the judge never disclosed this information to
defendants. In addition, Hahn contends that Judge Serrott has taken “affirmative
steps” to retain this case by denying a motion to transfer the case to the
commercial docket. Based on the foregoing, Hahn maintains that an appearance
of impropriety exists in the underlying case that warrants Judge Serrott’s
disqualification.
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       {¶ 3} Judge Serrott has responded in writing to the concerns raised in the
affidavit. The judge concedes that he was Tigges’s divorce attorney, but he does
not believe that this is grounds for disqualification. He maintains that Hahn’s
assertion of a ten-year attorney-client relationship is not accurate and does not
reflect the reality of the divorce proceedings.       According to the judge, his
representation of Tigges ended in 1999, was “minor and routine,” and consisted of
agreed-upon matters involving no more than 10 to 12 hours of legal work. As to
the failure to disclose his former attorney-client relationship with Tigges, Judge
Serrott asserts that he was not trying to conceal anything but that he simply did
not remember representing Tigges. The judge avers that the divorce case is
completely unrelated to the underlying action, his prior representation of Tigges
has not influenced any ruling, and the procedural history of the underlying case
indicates that he has been fair and impartial.
       {¶ 4} Attorney Tigges has also filed a response opposing the affidavit of
disqualification. According to Tigges, Judge Serrott’s actions as his attorney
were “sporadic, a few days here and there, and addressed almost entirely
uncontested issues.” Tigges states that the judge has not represented him since
1999 and that for the past 13 years their relationship has been strictly professional.
       {¶ 5} For the following reasons, no basis has been established for
ordering the disqualification of Judge Serrott.
                Judge’s Prior Representation of Plaintiffs’ Counsel
       {¶ 6} The fact that Judge Serrott previously represented plaintiffs’
counsel in divorce proceedings does not require the judge’s disqualification from
the underlying case. A judge’s prior representation of a party in matters wholly
unrelated to a matter pending before the judge does not compel the judge’s
disqualification, unless there is a specific showing of actual bias on the part of the
judge. See In re Disqualification of Berens, 117 Ohio St.3d 1235, 2005-Ohio-
7155, 884 N.E.2d 1088, ¶ 5 (judge represented a defendant in an earlier, unrelated




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criminal case). See also In re Disqualification of Morley, 74 Ohio St.3d 1265,
657 N.E.2d 1363 (1994) (disqualification not required when a defendant’s counsel
represented the judge in a prior lawsuit but the attorney-client relationship no
longer exists).
       {¶ 7} Attorney Hahn has made no attempt to show that Judge Serrott
harbors an actual bias against the defendants stemming from his prior
representation of plaintiffs’ counsel.   Hahn apparently believes that a lesser
standard than actual bias should apply to this issue. According to Hahn, the scope
of the attorney-client relationship between the judge and Tigges, coupled with the
judge’s failure to disclose that relationship to the defendants, creates an
appearance of impropriety that would cause a reasonable person to question Judge
Serrott’s impartiality in the underlying case. But Hahn has failed to articulate a
clear argument as to why the court should divert from the prevalent American rule
articulated in Berens and apply the easier to satisfy appearance-of-impropriety
standard. Accordingly, Hahn’s claim that the judge’s prior representation of
plaintiffs’ counsel demonstrates an appearance of impropriety is rejected.
                           Judge’s Failure to Disclose
       {¶ 8} Hahn also contends that the judge’s failure to disclose his prior
professional relationship with plaintiffs’ counsel creates an appearance of
impropriety. The facts of this case, however, do not demonstrate any appearance
of impropriety.
       {¶ 9} Hahn first argues that the judge should have disclosed to the
defendants that he had represented Tigges upon the filing of the plaintiffs’
complaint in November 2011. According to Hahn, Judge Serrott represented
Tigges “for more than ten years in a divorce proceeding, from before the divorce,
through various post-divorce proceedings.” Hahn complains that, despite this
“more than ten-year representation,” the judge failed to notify the parties that he
had previously represented Tigges.



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        {¶ 10} For his part, Judge Serrott avers that he was not trying to hide
anything from defense counsel, but that he simply forgot about his representation
of Tigges. He states that Tigges’s divorce case was one of thousands of cases he
has handled in 32 years of practice. Moreover, the judge notes that Tigges’s case
ended in 1999, was not a complex or contentious proceeding, and involved only
routine legal matters.
        {¶ 11} In an affidavit-of-disqualification proceeding, the burden falls on
the affiant to include specific argument and evidence to support the
disqualification request. See R.C. 2701.03(B)(1) (affiant is required to assert
specific allegations of bias, prejudice, or disqualifying interest and the facts to
support those allegations). The evidence submitted by Hahn in this case falls
short of carrying that burden. Hahn offered only a copy of the online docket in
Tigges’s divorce case. The docket, according to Hahn, reflects “nearly fifteen
instances in which Judge Serrott signed, filed, or accepted pleadings on Mr.
Tigges’s behalf” and captures the “nature and scope” of the attorney-client
relationship between the judge and Tigges.1 But this is hardly convincing proof in
support of the disqualification request. The fact that the judge may have appeared
numerous times on Tigges’s behalf does not undercut the judge’s assertion that he
had forgotten about the case, because it was litigated 12 years ago and involved
only routine legal matters. In the face of the judge’s explanation, and in the
absence of any evidence from Hahn calling that explanation into dispute, Judge
Serrott cannot be faulted for failing to disclose the existence of something that he
no longer remembered. On this record, no reasonable and objective observer
would harbor serious doubts about the impartiality of Judge Serrott.                      In re
Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d

1. Hahn states that he sent a “runner” to the Franklin County Common Pleas Court to retrieve the
official public records of the divorce proceeding “to further confirm the nature and scope of the
prior attorney-client relationship” between Judge Serrott and Tigges. Hahn did not, however,
submit those documents with his affidavit of disqualification.




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1082, ¶ 8 (setting forth the proper test for disqualifying a judge based on an
appearance of impropriety).
       {¶ 12} Hahn alternatively asserts that Judge Serrott failed to disclose this
information in February 2012, even after he recalled on his own that he had been
counsel for Tigges. Judge Serrott has admitted that sometime around February
20, 2012, “something jogged [his] memory” and he remembered that he had
represented Tigges in his divorce case. But even after his recollection, Judge
Serrott “did not give any thought to disclosing this to the parties because [he] did
not believe it was grounds for disqualification.”
       {¶ 13} As Hahn notes, Jud.Cond.R. 2.11, Comment 5, states that “[a]
judge should disclose on the record information that the judge believes the parties
or their lawyers might reasonably consider relevant to a possible motion for
disqualification, even if the judge believes there is no basis for disqualification.”
(Emphasis added.)      Thus, once the judge recalled that he had represented
plaintiffs’ counsel, he should have disclosed this information to the parties.
       {¶ 14} But contrary to Hahn’s assertion, the judge’s disqualification is not
mandated for failing to disclose this information. The official comments are not
binding or enforceable. Rather, they are intended to “provide guidance regarding
the purpose, meaning, and proper application of the rules.” See Code of Judicial
Conduct, Scope at ¶ 3. Moreover, the comments cannot prevail over the rule
itself. See In re Disqualification of Celebrezze, 127 Ohio St.3d 1217, 2009-Ohio-
7207, 937 N.E.2d 1009, ¶ 12. To be sure, Jud.Cond.R. 2.11(A)(7)(a) requires a
judge to step aside from a case if the judge “served as a lawyer in the matter in
controversy.”    But nothing in the rule compels the judge’s disqualification
where—as here—the judge previously represented a party’s lawyer in an
unrelated matter.




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                         Judge’s Refusal to Transfer Case
        {¶ 15} As a final matter, Hahn alleges that Judge Serrott has taken
“affirmative steps” to retain this case on his docket. Hahn complains that the
judge denied his motion to transfer the case to the commercial docket, “even
though the subject matter of the litigation falls squarely within the definition of a
qualifying commercial case.” This allegation need not detain the court for long,
for a party’s disagreement or dissatisfaction with a court’s legal rulings, even if
those rulings may be erroneous, is not grounds for disqualification.           In re
Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d
818, ¶ 4. See also In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-
Ohio-5484, 798 N.E.2d 3, ¶ 4 (an affidavit of disqualification “is not a vehicle to
contest matters of substantive or procedural law”).
        {¶ 16} Moreover, no bias or prejudice is evident in the judge’s ruling.
The record here reflects that Judge Serrott’s ruling was appealed to
Administrative Judge Schneider, who upheld the ruling.
                                    Conclusion
        {¶ 17} “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 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.
        {¶ 18} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Serrott.
                           ________________________




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