[Cite as In re Disqualification of Unruh, 127 Ohio St.3d 1244, 2010-Ohio-5960.]




                         IN RE DISQUALIFICATION OF UNRUH.
                            MYATT ET AL. v. MYATT ET AL.
                      [Cite as In re Disqualification of Unruh,
                       127 Ohio St.3d 1244, 2010-Ohio-5960.]
Judges — Affidavit of disqualification — Disqualification ordered.
                   (No. 09-AP-120 — Decided January 25, 2010.)
ON AFFIDAVIT OF DISQUALIFICATION in Summit County Court of Common Pleas
                              Case No. CV-2007-12-8610.
                                 __________________
        MOYER, C.J.
        {¶ 1} Defendants Daniel and Denise Myatt have filed affidavits with the
clerk of this court under R.C. 2701.03 seeking the disqualification of Judge
Brenda Burnham Unruh from further proceedings in case No. CV-2007-12-8610,
a civil action in the Court of Common Pleas of Summit County.
        {¶ 2} The allegations in the affidavits stem from Judge Unruh’s
participation in mediation and settlement negotiations for the parties. In July
2008, the parties engaged in extensive negotiations during a status conference. At
the conclusion of negotiations, the parties apparently advised Judge Unruh that
they had reached a settlement, and the judge subsequently ordered the case settled
and dismissed. Upon circulation of the settlement documents, the affiants (who
were defendants below) refused to sign the documents because they disputed
whether an agreement had been reached and whether the documents accurately
reflected the content of the settlement discussions. After the parties were unable
to execute the settlement documents, the judge granted the plaintiffs’ motion to
enforce the settlement agreement.
                              SUPREME COURT OF OHIO




        {¶ 3} The affiants appealed, and the court of appeals reversed the judge’s
decision to grant the motion to enforce the settlement agreement. The court of
appeals found that a dispute existed as to whether the parties had reached a
settlement and, if an agreement had been reached, whether the settlement
documents accurately reflected the terms of the agreement. Accordingly, the
court of appeals remanded the case to the trial court for an evidentiary hearing on
the disputed settlement agreement. Myatt v. Myatt, Summit App. No. 24606,
2009-Ohio-5796, ¶ 13.
        {¶ 4} Affiants now contend that Judge Unruh should be disqualified
because she is no longer impartial, has a personal bias, and has obtained personal
knowledge of disputed facts. Affiants additionally allege that the judge is likely
to be a material witness in the proceeding.
        {¶ 5} Judge Unruh has responded in writing to the concerns raised in the
affidavit of disqualification. The judge concedes that she has provided extensive
mediation assistance and facilitated settlement negotiations in the underlying case,
but she maintains that this will not affect her ability to remain fair, impartial, and
unbiased in further proceedings.        She states that she has engaged in many
settlement negotiations in her tenure as a judge and that there is nothing unusual
or different about this case that will affect her impartiality.
        {¶ 6} For the following reasons, I find that Judge Unruh must be
disqualified from presiding over the evidentiary hearing on the motion to enforce
the settlement agreement. In Bolen v. Young (1982), 8 Ohio App.3d 36, 8 OBR
39, 455 N.E.2d 1316, the Tenth District Court of Appeals held that when a
settlement agreement has been agreed to by the parties in the presence of the
judge but its terms are not memorialized on the record, the judge cannot adopt his
or her own understanding of the agreement in the form of a judgment entry if a
dispute arises regarding the specific terms of the agreement. Instead, the party
disputing the agreement is entitled to an evidentiary hearing before another judge




                                           2
                               January Term, 2010




in which the original trial judge may be called as a witness to testify as to the
judge’s recollection and understanding of the terms of the alleged agreement. Id.
at 37-38.
       {¶ 7} The same situation presents itself in the underlying action. The
parties allegedly reached a settlement agreement in Judge Unruh’s presence. The
discussions between the judge and the parties regarding settlement did not take
place on the record, and it is unclear whether a settlement agreement was reached
in the first instance or whether the settlement documents accurately reflected the
terms of the alleged agreement. Thus, under Bolen, Judge Unruh cannot conduct
the evidentiary hearing, because there is a significant likelihood that she will be
called to testify as to her “recollection and understanding of the terms of the
agreement.” Id. at 37.
       {¶ 8} Based on the foregoing, I am compelled to order Judge Unruh’s
disqualification from presiding over the upcoming evidentiary hearing on the
motion to enforce the settlement agreement. See In re Disqualification of Bond
(2001), 94 Ohio St.3d 1221, 763 N.E.2d 593 (disqualification ordered where it
appeared that the judge would be called to testify). However, my disqualification
order applies only to that hearing. Affiants have not shown that Judge Unruh
harbors any bias, prejudice, or other disqualifying interest that would necessitate
her disqualification from further proceedings beyond the evidentiary hearing.
       {¶ 9} The Summit County Court of Common Pleas shall therefore assign
another judge of that court to preside over the evidentiary hearing on the motion
to enforce the settlement agreement.
                           ______________________




                                        3
