[Cite as In re Disqualification of Forchione, 134 Ohio St.3d 1211, 2011-Ohio-7077.]




                      IN RE DISQUALIFICATION OF FORCHIONE.
                      ESTATE OF MCCAULEY ET AL. v. CONLEY.
                    [Cite as In re Disqualification of Forchione,
                       134 Ohio St.3d 1211, 2011-Ohio-7077.]
Judges—Affidavit of Disqualification—Disqualification denied.
                   (No. 11-AP-128—Decided December 30, 2011.)
  ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas,
                               Case No. 2011-CV-02325.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Attorney Craig T. Conley has filed an affidavit with the clerk of
this court under R.C. 2701.03, seeking to disqualify Judge Frank Forchione from
case No. 2011-CV-02325, an attorney-malpractice action now pending in the
Court of Common Pleas of Stark County.
        {¶ 2} Conley alleges that Judge Forchione’s disqualification from the
underlying case is required because (1) two local attorneys are parties, (2) the
judge recently recused himself from another case in which Conley was a party, (3)
Judge Dixie Park will be called as a fact witness, and (4) Judge Forchione
engaged in judicial misconduct against Conley in an unrelated case.
        {¶ 3} Judge Forchione has responded to the allegations raised in the
affidavit of disqualification. The judge states that he has no personal bias against
attorney Conley. According to the judge, Conley’s affidavit is merely a ploy to
replace him with another judge because Conley is unhappy that one of his
motions was denied. Judge Forchione maintains that he has acted fairly and
impartially on all occasions and vows to continue to preside in such a manner.
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       {¶ 4} For the following reasons, no basis has been established for
ordering the disqualification of Judge Forchione.
       {¶ 5} Conley maintains that Judge Forchione’s disqualification is
warranted because Judge Dixie Park, who presides over the Stark County Probate
Court, will be called as a fact witness in the underlying case.       But Judge
Forchione’s disqualification is not automatically required merely because a judge
may be called as a witness. See In re Disqualification of Celebrezze, 74 Ohio
St.3d 1231, 1232, 657 N.E.2d 1341 (1991). In re Disqualification of Celebrezze
involved a case that was pending before the Domestic Relations Division of the
Cuyahoga County Common Pleas Court. The affiant in Celebrezze was Judge
Rocker, a general-division judge of the Cuyahoga County Common Pleas Court.
Id. at 1231. Judge Rocker was a party and potential witness in the domestic
relations case, and she sought to disqualify Judge Celebrezze because they were
“colleagues on the same bench.” Id. at 1232. Chief Justice Moyer held that
disqualification was not required, noting that Judge Celebrezze and Judge Rocker,
although members of the same court, presided over different divisions. Id.
       {¶ 6} Likewise, although Judge Forchione and Judge Park are both
members of the Stark County Common Pleas Court, they preside over different
divisions. Conley offers no further information concerning Judge Forchione’s
professional relationship with Judge Park, and that relationship alone does not
compel his disqualification from the underlying case.           See also In re
Disqualification of Lucci, 117 Ohio St.3d 1242, 2006-Ohio-7230, 884 N.E.2d
1093 (common pleas judge not disqualified where crime victims and potential
witnesses included local municipal court judge and other public officials); In re
Disqualification of Koch, 113 Ohio St.3d 1220, 2006-Ohio-7228, 863 N.E.2d 624,
¶ 4 (disqualification of all county judges not required where county prosecutor
and assistant prosecutors may be called as witnesses).          Compare In re
Disqualification of O’Neill, 81 Ohio St.3d 1213, 1214-1215, 688 N.E.2d 516




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(1997) (judge disqualified where fellow judge serving in the same division was to
be called as witness); In re Disqualification of Morrissey, 77 Ohio St.3d 1252,
1253, 674 N.E.2d 360 (1996) (judge disqualified where court administrator was to
be called as witness).
       {¶ 7} Conley also contends that Judge Forchione’s disqualification is
warranted because Conley and another local attorney are opposing parties in the
underlying action. According to Conley, in October 2011, all general-division
judges of the Stark County Common Pleas Court—including Judge Forchione—
stepped aside from an unrelated civil case in which Conley was a counterclaim
defendant. And Conley notes that those same judges recently recused themselves
from another case because—as in the underlying action—two local attorneys were
the opposing parties.
       {¶ 8} Contrary to Conley’s assertion, the fact that a judge voluntarily
stepped aside from an earlier case does not by itself support his disqualification
from an unrelated case involving that same party.           In re Disqualification of
Martin, 74 Ohio St.3d 1221, 657 N.E.2d 1334 (1990). Likewise, the mere fact
that a local attorney is a litigant does not require the disqualification of the sitting
judge, unless the judge’s relationship with that particular lawyer justifies removal.
See In re Disqualification of Panagis, 74 Ohio St.3d 1213, 657 N.E.2d 1328
(1989). But here, Conley offers no compelling evidence of any relationship
between him and Judge Forchione that would make disqualification necessary.
       {¶ 9} Conley’s sole argument in this regard is that Judge Forchione
demonstrated personal bias and prejudice against Conley in Public Salt Co. v.
Varavvas, case No. 2010-CV-01192, a prior, unrelated case in which Conley
served as counsel. According to Conley, during a hearing in that case, Judge
Forchione threatened repeatedly to fine and jail the attorneys, aggressively “cross-
examined” and “browbeat” Conley’s expert witness, impugned the integrity of




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Conley and his expert witness, and prejudged the issue whether the parties had
reached a settlement agreement.
       {¶ 10} As an initial matter, Conley has waived this claim by failing to
raise it in a timely manner. Conley claims that Judge Forchione’s disqualifying
conduct occurred during a hearing in the Varavvas case that was held on February
10, 2011. The underlying attorney-malpractice action was filed against Conley on
July 27, 2011. Yet Conley did not file an affidavit with this court seeking to
disqualify Judge Forchione from presiding over Conley’s case until November 14,
2011, almost four months later.        It is well settled that an affidavit of
disqualification must be filed as soon as possible after that affiant becomes aware
of circumstances that support disqualification and that failure to timely file may
result in waiver of the objection. In re Disqualification of Pepple, 47 Ohio St.3d
606, 607, 546 N.E.2d 1298 (1989). Conley’s delay in filing the affidavit of
disqualification constitutes an independent ground for denying this allegation.
See In re Disqualification of Glickman, 100 Ohio St.3d 1217, 2002-Ohio-7471,
798 N.E.2d 5, ¶ 7-8.
       {¶ 11} Even if Conley had not waived his objection, his allegations
against Judge Forchione concerning the Varavvas case are without merit. Each
will be addressed in turn.
       {¶ 12} First, Conley asserts that Judge Forchione engaged in improper
judicial conduct when he threatened, “without any provocation,” to fine and jail
the attorneys in the Varavvas case. The record in this case reflects, however, that
Judge Forchione threatened to fine and jail both counsel only after they had
engaged in unprofessional behavior for several months and the judge’s previous
admonitions had gone unheeded. Thus, contrary to Conley’s assertion, Judge
Forchione did not act “without any provocation.” Judges “are certainly entitled to
express dissatisfaction with attorneys’ dilatory tactics inside and outside the
courtroom.” In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-




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Ohio-7354, 826 N.E.2d 302, ¶ 10. See also In re Disqualification of Sutula, 105
Ohio St.3d 1237, 2004-Ohio-7351, 826 N.E.2d 297, ¶ 6 (“A judge’s use of
forceful language inside or outside the courtroom does not prevent the judge from
serving fairly and impartially * * *”). And a trial judge has wide discretion in
supervising the practice of law to ensure that attorneys appearing before the court
comply with the Rules of Professional Conduct. See Mentor Lagoons, Inc. v.
Rubin, 31 Ohio St.3d 256, 259-260, 510 N.E.2d 379 (1987). Moreover, the fact
that the judge threatened to impose sanctions on both Conley and his opposing
counsel undercuts Conley’s claim that the judge exhibited partiality.
       {¶ 13} Second, Conley contends that Judge Forchione demonstrated bias
and predisposition when he improperly questioned Conley’s expert witness in the
Varavvas case. A review of the transcript reveals that Judge Forchione merely
questioned the witness in an effort to clarify her testimony. The judge did not
“browbeat” the witness, as alleged by Conley. Likewise, nothing in the transcript
supports Conley’s claim that the judge was trying to persuade the witness to
change her expert opinion to one in concert with his own predisposition of the
case. Indeed, Judge Forchione had no reason to persuade the expert witness to
any particular view because, as the trier of fact, he could simply reject the opinion
of Conley’s expert witness.
       {¶ 14} Third, Conley alleges that Judge Forchione made a comment to
Conley’s expert witness during her testimony that impugned the integrity of both
Conley and the expert witness. According to Conley, the judge’s comment, “As
Mr. Conley’s expert, I didn’t expect you to agree,” implied that Conley had
directed his expert witness (in return for a fee) to proffer a disingenuous expert
opinion. But the judge’s comment merely stated the obvious: that Conley would
not have hired an expert witness whose opinion was contrary to the position
advocated by Conley. On this record, no reasonable and objective observer would
harbor serious doubts about Judge Forchione’s impartiality.              See In re



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Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d
1082, ¶ 8 (setting forth the proper test for disqualifying a judge).
        {¶ 15} Fourth, as to Conley’s claim that Judge Forchione predetermined
that no settlement agreement had been reached, Conley has once again failed to
offer compelling evidence to support his claim. Judge Forchione did state early in
the hearing—and before hearing testimony on the motions to enforce the
settlement—that he did not believe that the parties had reached a settlement. But
judges often comment about evidence or the law, and even form conditional
opinions after hearing preliminary aspects of a case. Such comments or opinions,
however, are not sufficient to counter the presumption of the judge’s ability to
render a fair decision based upon the evidence later presented.         See In re
Disqualification of Horvath, 105 Ohio St.3d 1247, 2004-Ohio-7356, 826 N.E.2d
305, ¶ 8. Conley overlooks the fact that Judge Forchione’s comment was based
on his review of the purported settlement agreement and the parties’ competing
motions to enforce the settlement. That is, the judge’s comment reflected nothing
more than his preliminary assessment of the settlement issue based on the pretrial
evidence and argument of the parties—and such assessments are generally
permissible. See In re Disqualification of Brown, 74 Ohio St.3d 1250, 1250-
1251, 657 N.E.2d 1353 (1993) (judge not disqualified where she made pretrial
statements about possible spousal award and attorney fees); In re Disqualification
of Solovan, 101 Ohio St.3d 1222, 2003-Ohio-7353, 803 N.E.2d 821, ¶ 4 (judge
not disqualified where he discussed prejudgment-interest award before trial to
facilitate settlement).
        {¶ 16} In sum, Judge Forchione’s actions and comments in the Varavvas
case do not demonstrate bias or prejudice against Conley.
        {¶ 17} As a final matter, Conley complains that Judge Forchione’s
response to the affidavit of disqualification includes “ad hominem attacks” against
him.    Conley specifically points to the judge’s comment that Conley has




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consistently used disqualification procedures and other mechanisms “to bully his
way through the process.” Judge Forchione’s remark was ill advised. As the
Code of Judicial Conduct directs, judges should be “patient, dignified, and
courteous” to litigants, lawyers, and others in an official capacity and should
refrain from using words or conduct that might “manifest bias or prejudice.”
Jud.Cond.R. 2.8(B) and 2.3(B). Nevertheless, the judge’s remark does not convey
the impression that he had developed a “hostile feeling or spirit of ill-will” or
reached a “fixed anticipatory judgment” that will prevent him from presiding over
the case with an “open state of mind * * * governed by the law and the facts.”
State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956).
                                    Conclusion
        {¶ 18} “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.
        {¶ 19} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Forchione.
                           ______________________




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