[Cite as Citibank, N.A. v. Katz, 2013-Ohio-1041.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98753




 CITIBANK, N.A., SUCCESSOR TO CITIBANK (SOUTH
                   DAKOTA), N.A.
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                    HERBERT R. KATZ
                                                          DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-765906

        BEFORE: Rocco, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: March 21, 2013
                                    -i-

FOR APPELLANT

Herbert R. Katz, pro se
26106 Fairmount Boulevard
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEES

Melissa A. Hager
James Oh
Hilary Michael
Javitch, Block & Rathbone, L.L.C.
1100 Superior Avenue, 19th Floor
Cleveland, Ohio 44114
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Herbert Katz appeals from the trial court’s decision

granting plaintiff-appellee Citibank, N.A., successor to Citibank (South Dakota), N.A.’s

(“Citibank’s”) motion for summary judgment in this action for recovery on a credit card

account. Raising two assignments of error, Katz argues that the trial court erred in

granting Citibank’s motion for summary judgment based the existence of genuine issues

of material fact involving Citibank’s claim and his counterclaims for breach of contract

and conspiracy to defraud. Katz also contends that the trial court abused its discretion in

granting his counsel’s oral motion to withdraw two weeks before the scheduled trial date.

 Finding Katz’s assignments of error meritless, we affirm the trial court’s judgment.

       {¶2} On July 18, 2011, Citibank filed a complaint against Katz in the Shaker

Heights Municipal Court seeking to collect $9,057.80, the amount Katz allegedly owed

on a credit card account he had maintained with Citibank.      Katz filed a pro se Answer

and Counterclaim, denying the material allegations of the complaint and asserting claims

of breach of contract and conspiracy to defraud against Citibank.   The demand of Katz’s

counterclaims exceeded the jurisdiction of the Shaker Heights Municipal Court, and the

case was transferred to the Cuyahoga County Court of Common Pleas.

       {¶3} Citibank filed a motion for summary judgment on its claim and Katz’s

counterclaims, attaching copies of available account statements and an affidavit from a
representative of Citibank’s servicing company, authenticating the statements.         The

affidavit further established that Katz had maintained a credit card account with Citibank,

had used the account to purchase goods and services and/or receive cash advances, and

had failed to make required payments, thereby defaulting on the account. The affidavit

also stated the balance due on the account. Katz opposed Citibank’s motion with his

own affidavit in which he averred that he had paid his Citibank account as agreed until

Citibank “unilaterally changed” the terms of his account agreement as a result of Katz’s

“dispute with a separate entity” and “because of [disputed] information provided by

third-party credit bureau(s).”

       {¶4} Determining that there were no genuine issues of material fact and that

Citibank was entitled to judgment as a matter of law, the trial court granted Citibank’s

motion, entering judgment against Katz on Citibank’s claim for recovery on the account

in the amount of $9,057.80, plus interest at the applicable statutory rate from the date of

judgment, and in favor of Citibank on Katz’s counterclaims.        Katz appealed the trial

court’s judgment.

       {¶5} Katz presents two assignments of error:

       Assignment of Error No. 1:

       The trial court erred in ruling that there are no genuine issues of material
       fact in dispute in this case, and, therefore, granting the motion for summary
       judgment of Citibank, N.A.

       Assignment of Error No. 2:
       The trial court abused its discretion when ruling that counsel for Herbert R.

       Katz could withdraw from the case without taking required steps to protect

       the interest of Hebert R. Katz, and in violation of the court’s own rules, and

       then ruling that Herbert R. Katz was “disingenuous” in objecting to the

       court’s action without any basis for such ruling.

       {¶6} In his first assignment of error, Katz argues that Citibank failed to present

sufficient evidence establishing its right to recover on Katz’s credit card account, that the

terms of the parties’ agreement were ambiguous, and that Citibank’s confusion regarding

the theory of recovery on which it was proceeding warranted denial of its summary

judgment motion.     Katz further contends that his allegations of breach of contract and

conspiracy to defraud created genuine issues of material fact that should have precluded

summary judgment.       We disagree.

       {¶7} An appeal of a trial court’s ruling granting summary judgment is subject to a

de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

1996-Ohio-336, 671 N.E.2d 241. We accord no deference to the trial court’s decision

and independently review the record to determine whether summary judgment is

appropriate.

       {¶8} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party.

       {¶9} The moving party carries an initial burden of setting forth specific facts that

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d

280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden,

summary judgment is not appropriate; if the moving party meets this burden, summary

judgment is appropriate only if the nonmoving party fails to establish the existence of a

genuine issue of material fact. Id. at 293.

       {¶10} With respect to Citibank’s claim against Katz, we find that the trial court

properly held that Citibank was entitled to summary judgment based on a theory of

account stated.

       {¶11} To recover money due on an account,

       an account must show the name of the party charged and contain: (1) a
       beginning balance (zero, or a sum that can qualify as an account stated, or
       some other provable sum); (2) listed items, or an item, dated and
       identifiable by number or otherwise, representing charges, or debits, and
       credits; and (3) summarization by means of a running or developing
       balance, or an arrangement of beginning balance and items which permits
       the calculation of the amount claimed to be due.

Citibank (S.D.), N.A. v. Lesnick, 11th Dist. No. 2005-L-013, 2006-Ohio-1448,

¶ 9, quoting Gabriele v. Reagan, 57 Ohio App.3d 84, 87, 566 N.E.2d 684 (12th

Dist.1988); see also Third Fed. Sav. Bank v. Cox, 8th Dist. No. 96871, 2012-Ohio-477, ¶

14; Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123, 223 N.E.2d 373 (10th

Dist.1967), paragraph three of the syllabus.
      {¶12} In support of its motion for summary judgment, Citibank submitted the

affidavit of Terri Ryning, vice president of Citicorp Credit Services, Inc. (USA), a

servicing company for Citibank, along with copies of the available monthly billing

statements for Katz’s account. Ryning’s affidavit states that, by virtue of her position

with Citibank’s servicing company, she shares custodianship of and has access to all of

Citibank’s records related to Katz’s account, and that her affidavit is based on her

personal knowledge and her review of Citibank’s account records. Her affidavit further

states that Katz failed to make required payments and has defaulted on the account, that

$9,057.80 is due on the account, and that the monthly account billing statements attached

to her affidavit are true and accurate copies of the available statements for the account.

The affidavit and account statements submitted by Citibank established the existence of

the credit card account; the purchases, advances, and payments made on the account; the

finance charges applied to the account during various billing cycles; the amounts due on

the account each month; Katz’s

default; and the final balance owed on the account. The evidence submitted by Citibank

was, therefore, sufficient to meet Citibank’s burden of establishing a prima facie case for

money owed on an account. Citibank (South Dakota) N.A. v. Ogunduyile, 2d Dist. No.

21794, 2007-Ohio-5166, ¶ 11-12.

      {¶13} Once a plaintiff has met its burden of establishing that there is no genuine

issue of material fact for trial, a defendant may not rest upon mere allegations or denials

in the pleadings but must present evidence of specific facts demonstrating a genuine issue
of material fact for trial. Accordingly, the burden then shifted to Katz to demonstrate the

existence of genuine issues of material fact. Id. at ¶ 12; see also Gabriele, 57 Ohio

App.3d at 87, 566 N.E.2d 684 (“The effect of an account stated is that the account will be

taken as correct until shown by the party to whom it was rendered to be incorrect.”).

Katz did not meet his burden.

       {¶14} In response to Citibank’s motion for summary judgment, Katz submitted

only his own affidavit. Katz’s affidavit states, in relevant part:

       3.     I opened the account which is the subject of this lawsuit in 1992.

       4.     I paid my account with Plaintiff as agreed for many years.

       5.     In fact, I paid my account with Plaintiff as agreed until such time as
              Plaintiff changed the terms of my account in 2010.

       6.     Prior to Plaintiff changing the terms of my account in 2010, I never
              missed a payment to Plaintiff. Thus, Plaintiff’s decision to change
              the terms of my account was not in any way based upon Plaintiff’s
              direct dealings with me.

       7.     Plaintiff changed the terms of my account due to my financial
              dealings with a separate entity, and, thus, because of information
              provided by third-party credit bureau(s).

       8.     My underlying dispute with a separate entity, which formed the basis
              for Plaintiff’s decision to change the terms of my account with
              Plaintiff, is now the subject of a lawsuit that has been certified as a
              class action * * * .

       9.     I informed Plaintiff that the information contained in my credit
              report was in dispute, and I informed Plaintiff that I had an account
              in dispute with a separate financial entity. * * *

       12.    Despite my reporting of this dispute to Plaintiff and despite the fact
              that I was a loyal customer of Plaintiff with an account in good
              standing for many years, Plaintiff unilaterally changed the terms of
               our agreement — including with respect to credit line and interest
               rate — which violated our contract with one another.

         13.   This action by Plaintiff caused me great financial, personal and
               emotional harm and resulted in me losing my business. * * *

         {¶15} The vague, conclusory allegations of Katz’s affidavit fail to create a genuine

issue of material fact. Significantly, Katz does not dispute, in his affidavit (or otherwise)

that he is liable for the charges made on the account at issue or that he has failed to make

required payments due on the account. Nor does he dispute the amount owed on the

account. Katz nonetheless argues that trial court erred in entering summary judgment

because, based on his affidavit, the terms of his contract with Citibank are “ambiguous,”

and a “dispute over the applicability and meaning of contract terms gives rise to a

‘genuine issue of fact’” that cannot be resolved on summary judgment. Katz, however,

fails to identify any specific term of the account agreement that he contends is

“ambiguous.” Rather, Katz’s affidavit simply repeats the vague, unsupported allegations

of his counterclaims, i.e., that Citibank unilaterally changed certain terms of the account

agreement. As such, it does not demonstrate the existence of a genuine issue of material

fact, and the trial court properly entered summary judgment in favor of Citibank on its

claim for recovery on the credit card account. See, e.g., Ogunduyile, 2007-Ohio-5166;

Discover Bank c/o DFS Servs., LLC, v. Lammers, 2d Dist. No. 08-CA-85,

2009-Ohio-3516; Discover Bank v. Paoletta, 8th Dist. No. 95223, 2010-Ohio-6031, ¶

11-15.
       {¶16} We reach a similar conclusion as to Katz’s counterclaims.                  Katz’s

counterclaims are based on allegations that Citibank “materially breached the terms of the

contract between [Citibank] and [Katz]” and “engaged in a conspiracy to defraud [Katz]”

by modifying the terms of the agreement after Katz became involved in a dispute with an

unidentified “third party.” Katz alleges that, “[t]hrough its conspiratorial relationships,”

Citibank “became aware” of Katz’s dispute with the “third party” and used that dispute

“as an excuse” to change the terms of Katz’s account agreement “to disadvantage” Katz.

       {¶17} To establish a claim for breach of contract, Katz must show: (1) the

existence of a contract, (2) his performance under the contract, (3) a material breach by

Citibank, and (4) resulting damages. Kwikcolor Sand v. Fairmount Minerals Ltd., 8th

Dist. No. 95223, 2011-Ohio-6646, ¶ 14, citing Povroznik v. Mowinski Builders, Inc., 8th

Dist. No. 93225, 2010-Ohio-1669, ¶ 13. The elements of fraud are: (1) a representation

(or concealment of a fact when there is a duty to disclose), (2) that is material to the

transaction at hand, (3) made falsely, with knowledge of its falsity or with such utter

disregard and recklessness as to whether it is true or false that knowledge may be

inferred, and (4) with intent to mislead another into relying upon it, (5) justifiable reliance

on the representation or concealment, and (6) resulting injury proximately caused by the

reliance. Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984). A

civil conspiracy to defraud further requires: (1) a malicious combination, (2) involving

two or more persons, (3) causing injury to person or property, and (4) the existence of an

unlawful act independent from the conspiracy itself. Urbanek v. All State Home Mtge.,
178 Ohio App. 3d 493, 500, 2008-Ohio-4871, 898 N.E.2d 1015, ¶ 19 (8th Dist.), citing

Universal Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio App.3d 284, 292,

629 N.E.2d 28

(8th Dist.1993); see also Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 700 N.E.2d

859 (1998).

       {¶18} Nowhere in his affidavit (or elsewhere) does Katz identify, or present any

evidence regarding, the specific terms of any contract with Citibank he contends was

breached, how he contends Citibank materially breached the contract, or any resulting

damages. In his affidavit, Katz avers only that Citibank “changed the terms of my

account in 2010”; he does not indicate specifically what terms were changed, how they

were changed, or how this resulted in damages to Katz.         Without such facts, Katz

cannot establish a claim for breach of contract.

       {¶19} Likewise, with respect to his claim for conspiracy to defraud, Katz has not

even identified — much less produced any evidence demonstrating — the time, place, or

content of any false representation, who made the misrepresentation, the fact(s)

misrepresented, or any resulting injury. Nor has he identified the “third party” allegedly

involved in the dispute with Katz, the nature of the dispute that Katz contends led

Citibank to unilaterally change the terms of his account agreement, any of Citibank’s

alleged co-conspirators, or any facts suggesting malice, intent to defraud, or justifiable

reliance — essential elements of Katz’s counterclaim for conspiracy to defraud.
       {¶20} Katz argues that because the trial court previously denied Citibank’s motion

to dismiss Katz’s counterclaim with prejudice, or in the alternative, for a more definite

statement (which was based in part on Katz’s failure to plead his claims with sufficient

particularity), that ruling “is now the law of the case,” and the averments of his affidavit

that repeat the allegations of his counterclaims are, therefore, sufficient to survive

summary judgment on his counterclaims.        However, different standards are applied in

ruling on a motion to dismiss and ruling on a motion for summary judgment.        A motion

to dismiss tests the sufficiency of the pleadings.         See, e.g., Volbers-Klarich v.

Middletown Mgt., 125 Ohio St. 3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11; Barnes v.

Tolliver, 100 Ohio App.3d 391, 394, 654 N.E.2d 152 (8th Dist.1995). In ruling on a

motion to dismiss, all material factual allegations of a claim are accepted as true and all

reasonable inferences from those facts drawn in favor of the nonmoving party.             A

motion for summary judgment, on the other hand, tests the sufficiency of the evidence

supporting the pleadings. Civ.R. 56(C), (E). Accordingly, a party opposing a motion

for summary judgment must specify the facts demonstrating a genuine issue of material

fact and may not rest on mere allegations or denials in the pleadings. Dresher 75 Ohio

St.3d at 293, 662 N.E.2d 264. The differences between a motion to dismiss and motion

for summary judgment “are distinct and preclude the application of the law of the case

doctrine * * *.” Creaturo v. Duko, 7th Dist. No. 04 CO 1, 2005-Ohio-1342, ¶ 27.

       {¶21} Further, the trial court’s decision to deny Citibank’s motion to dismiss was

an interlocutory order. See id. at ¶ 28; Our Lady of Angels Apartments v. Cuyahoga Cty.
Bd. of Revision, 8th Dist. No. 66733, 1994 Ohio App. LEXIS 5672, *6-7 (Dec. 15, 1994).

As such, the trial court could have reconsidered its prior decision.            Creaturo,

2005-Ohio-1342 at ¶ 25, 28; Schmidt v. Bankers Title & Escrow Agency, Inc., 8th Dist.

No. 88847, 2007-Ohio-3924,

¶ 7. The trial court’s prior ruling on Citibank’s motion to dismiss, therefore, “does not

have any preclusive effect” in ruling on Citibank’s motion for summary judgment.

Creaturo, 2005-Ohio-1342 at ¶ 28.

      {¶22} Because Katz continued, in his affidavit, to simply make vague, general

allegations of wrongdoing and failed to present any evidence of specific facts supporting

essential elements of his counterclaims for breach of contract or conspiracy to defraud,

the trial court properly granted summary judgment to Citibank on both its claim and

Katz’s counterclaims. Katz’s first assignment of error is overruled.

      {¶23} In his second assignment of error, Katz contends that the trial court abused

its discretion in granting his counsel’s oral motion to withdraw, two weeks before the

scheduled trial date. Once again, we disagree.

      {¶24} The decision whether to grant or deny a motion to withdraw rests within the

sound discretion of the trial court. Bennett v. Bennett, 86 Ohio App.3d 343, 346, 620

N.E.2d 1023 (8th Dist.1993). Accordingly, an appellate court will not reverse a trial

court’s decision to allow counsel to withdraw from a pending case absent an abuse of

discretion. Id. An abuse of discretion connotes more than an error of law or judgment;

it implies that the trial court’s decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Upon review

of the record, we find no abuse of discretion by the trial court in granting Katz’s counsel’s

motion to withdraw from his representation of Katz.

       {¶25} The record shows that Katz’s counsel first appeared in the case after

Citibank filed its motion for summary judgment. The record further reflects that during

the final pretrial conference, Katz’s counsel made an oral motion to withdraw, which was

unopposed, and that the trial court granted the motion. There is nothing in the record

that indicates the reason Katz’s counsel sought to withdraw his representation. Nor is

there any indication in the record that Katz objected to his counsel’s termination of the

representation.   The journal entry memorializing the trial court’s ruling provides, in

relevant part:

       Defendant’s counsel’s oral motion to withdraw as counsel is unopposed and
       granted for good cause shown. Defendant advised of the ramifications of
       proceeding without counsel. If defendant retains new counsel, counsel is
       to file a notice of appearance. Furthermore, should defendant retain new
       counsel, the court will entertain a motion to continue trial. [Trial counsel]
       is to deliver the client’s file to client or client’s new counsel as soon as
       practicable. * * *

       {¶26} Four days later, Katz filed a motion for continuance, requesting a 60-day

continuance of the trial date due to the withdrawal of his counsel. Katz argued that he

had “anticipated that his attorney would be representing him in any trial of this matter and

was startled and alarmed to find out that a ruling dismissing his attorney from this matter

was issued with no written briefing or notice at such a late date.” Although finding

Katz’s arguments to be “disingenuous,” the trial court, nevertheless, granted a 30-day
continuance of the trial date “to ensure [Katz was] not prejudiced.”      Three days before

the rescheduled trial date, the trial court granted Citibank’s motion for summary

judgment.

       {¶27} Citing this court’s decision in Bennett, Katz argues that the trial court

abused it discretion in allowing his counsel to withdraw without complying with the

applicable ethics rules and Rule 10(B) of the Local Rules of the Cuyahoga County Court

of Common Pleas (“Local Rule 10(B)”) governing withdrawal of counsel. Katz argues

that because no written motion to withdraw was filed and no hearing was scheduled on

the motion, he was not “afford[ed] the client protections required by [Local Rule 10(B)]”

and that the trial court’s “last minute determination left Katz in a lurch without adequate

(or any) representation at a critical juncture in the case.”

       {¶28} Rule 10(B) of the Local Rules of the Cuyahoga County Court of Common

Pleas states:

       It is contemplated that counsel who has entered an appearance in the case
       shall remain in the case until it is concluded.

       However, upon written motion for leave to withdraw from the action and
       for good cause shown, the Court may permit counsel to withdraw. Prior to
       or contemporaneously with the filing of a motion for leave to withdraw as
       counsel, counsel shall serve the client with a copy of the motion by certified
       mail, return receipt requested. Additionally, counsel shall include in the
       motion a certificate of service that states the date and manner in which the
       client and all other counsel of record have been notified.

       The Court in which a motion for leave to withdraw as counsel is filed may,
       in its discretion, set a hearing date on the motion and may require the
       attendance of all counsel and clients. If the Court requires the attendance of
       clients at the hearing, it shall be the responsibility of counsel to inform the
         client of the hearing date and time by certified mail, return receipt
         requested.

         The provisions of DR 2-110, EC 2-29 and EC 2-31 of the Code of

         Professional Responsibility are incorporated herein.

         {¶29} “‘[C]ourts are to be given latitude in following their own local rules; the

enforcement of rules of court is held to be within the sound discretion of the court.’” In

re T.W., 8th Dist. Nos. 88360 and 88424, 2007-Ohio-1441, ¶ 38, quoting Ciokajlo v.

Ciokajlo, 1st Dist. No. C-810158, 1982 Ohio App. LEXIS 12823, *4 (July 28, 1982); see

also Dodson v. Maines, 6th Dist. No. S-11-012, 2012-Ohio-2548, ¶ 47 (“[L]ocal rules are

of the court’s own making, procedural in nature, and not substantive principles of law.”)

(Citations omitted.) So long as a trial court’s failure to comply with or enforce its local

rules does not affect due process or other constitutional rights, “there is no error when, in

its sound discretion, the court decides that the peculiar circumstances of a case require

deviation from its own rules.” Id. (Citations omitted.); see also Wallner v. Thorne, 189

Ohio App.3d 161, 2010-Ohio-2146, 937 N.E.2d 1047, ¶ 21 (9th Dist.). Local rules

regarding attorney withdrawal are “administrative in nature — designed to facilitate case

management. * * * They do not implicate constitutional rights.” Smith v. Conley, 109

Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 8-9. Accordingly, enforcement of

the particular requirements of Local Rule 10(B) was within the discretion of the trial

court.
        {¶30} However, a trial court does have a duty to ensure that the mandates of the

Rules of Professional Conduct 1 are followed before allowing counsel to withdraw.

Wilson v. Wilson, 154 Ohio App.3d 454, 2003-Ohio -474, 797 N.E.2d 990, ¶ 5 (3d Dist.)

(discussing former DR-2110 under the Code of Professional Responsibility). Failure to

do so is reversible error. Id., citing Bennett, 86 Ohio App.3d 343, 620 N.E.2d 1023; N.

Eagle, Inc. v. Kosas, 8th Dist. No. 92358, 2009-Ohio-4042, ¶ 32.

        {¶31} Prof.Cond.R. 1.16(d) of the Rules of Professional Conduct addresses the

steps to be taken upon termination of representation.      The purpose of Rule 1.16(d) is to

ensure that a client will not be prejudiced as a result of the withdrawal of counsel. Rule

1.16(d) provides in relevant part:

        As part of the termination of representation, a lawyer shall take steps, to the
        extent reasonably practicable, to protect a client’s interest. The steps
        include giving due notice to the client, allowing reasonable time for
        employment of other counsel, delivering to the client all papers and
        property to which the client is entitled, and complying with applicable laws
        and rules. * * *

Rule 1.16(c) further requires a lawyer seeking to withdraw from representation to obtain

permission for withdrawal from employment where required “by the rules of a tribunal.”

        {¶32} This case is distinguishable from Bennett, 86 Ohio App.3d 343, 620 N.E.2d

1023.       In Bennett, the trial court permitted the defendant’s counsel to withdraw

immediately prior to a hearing on two motions to show cause filed by the plaintiff, then

ordered the defendant to proceed with the hearing without the benefit of counsel.


        DR 2-110, EC 2-29, and EC 2-31 of the Code of Professional Responsibility, referenced in
        1

Local Rule 10(B), were replaced by the Ohio Rules of Professional Conduct on February 1, 2007.
Bennett, 86 Ohio App.3d at 347, 620 N.E.2d 1023. In Bennett, the defendant “stated

specifically that he was not familiar with legal procedures and proceedings” and no

“inquiry [was] made by the trial court into whether appellant desired new counsel or was

insulated from foreseeable prejudice.” Id.       This court determined that, under the

circumstances, the defendant was prejudiced by the withdrawal and that the trial court had

therefore abused its discretion in permitting counsel to withdraw. Id.

       {¶33} In this case, the record reflects that the trial court took appropriate steps to

ensure that the mandates of Prof.Cond.R. 1.16(d) were followed and that Katz would not

be prejudiced by his counsel’s withdrawal. Counsel’s motion to withdraw was granted at

the final pretrial conference, after Katz had submitted his brief in opposition to Citibank’s

motion for summary judgment. 2 The trial court advised Katz of the ramifications of

proceeding without counsel, ordered that all client files be promptly transferred to Katz

or his new counsel, and indicated that it would entertain a motion for continuance of the

trial date if Katz obtained new counsel.    There is no indication in the record that Katz

had any objection to his counsel’s withdrawal.

       {¶34} To further ensure Katz was not prejudiced by his attorney’s withdrawal,

upon Katz’s request, the trial court granted a 30-day continuance of the trial date,




       2
        Katz asserts that he filed his “Pro Se Brief in Opposition to Plaintiff’s
Motion for Summary Judgment” after the trial court granted his counsel’s motion to
withdraw. However, the record reflects that his pro se opposition was filed on May
24, 2012, a week before the trial court granted counsel’s motion to withdraw.
providing Katz sufficient time to locate substitute trial counsel. The trial court thereafter

granted Citibank’s motion for summary judgment, obviating the need for trial.

       {¶35} We find no support in the record for Katz’s assertion that he was prejudiced

as a result of his counsel’s withdrawal.        Accordingly, the trial court did not abuse its

discretion in granting Katz’s counsel’s motion to withdraw.         Katz’s second assignment

of error is overruled.

       {¶36} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.




                         A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
