[Cite as Suhay v. Fade, 2020-Ohio-2893.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                  ASHTABULA COUNTY, OHIO


RICHARD SUHAY,                                 :       OPINION

                 Plaintiff-Appellant,          :
                                                       CASE NO. 2019-A-0063
        - vs -                                 :

VILMA FADE, et al.,                            :

                 Defendants-Appellees.         :


Civil Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2017 CV 0043.

Judgment: Reversed and remanded.


Robert S. Wynn, 7 Lawyers Row, P.O. Box 121, Jefferson, OH 44047 (For Plaintiff-
Appellant).

Patrick D. Quinn, Quinn Legal Associates, 2802 SOM Center Road, Suite 102,
Willoughby Hills, OH 44094; and Ronald A. Annotico, 5335 Broadview Road, Parma,
OH 44135 (For Defendants-Appellees).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Richard Suhay (“Suhay”), appeals a judgment in the Ashtabula

County Court of Common Pleas in favor of appellees, Vilma and William Fade (“the

Fades”), disqualifying Attorney Robert Wynn (“Attorney Wynn”) from representing

Suhay. We reverse the trial court’s judgment.

        {¶2}     The underlying case was instituted on January 18, 2017. Prior to that

date, John Poss—who was succeeded in interest by the Fades after his death—and
Marilyn Morris (“Morris”) had already participated in substantial litigation for over twenty

years regarding a parcel of land (“the Property”). The following background information

was provided by the Supreme Court of Ohio in State ex rel. Skyway Invest. Corp. v.

Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220, 2011-Ohio-5452:

               In November 1992, the Ashtabula County Court of Common Pleas
               entered a judgment in favor of John Poss and against Marilyn
               Morris in the amount of $149,750 plus interest in Poss v. Morris,
               Ashtabula C.P. No. 80956. When Poss experienced difficulties in
               enforcing the judgment against Morris, he filed a forcible-entry-and-
               detainer action against her.

               Poss and Morris settled the dispute concerning the enforcement of
               the judgment with a July 19, 1993 agreement under which Morris
               agreed to convey her property to Poss and Morris would be
               permitted to remain in a building on a 2.505-acre tract of the
               property until January 1, 1994. The parties specified that the
               “agreement constitutes a full and complete release between the
               parties and John Poss will release his judgment lien and mortgage
               lien upon receipt of the deed to the property.” Just a few days
               before the agreement was executed, Morris filed a motion in the
               common pleas court to enforce the settlement. On September 16,
               1993, the common pleas court incorporated the parties’ settlement
               agreement into the judgment of the court.

               Morris subsequently filed for bankruptcy in 1995, which resulted in
               further litigation regarding the property. The United States Court of
               Appeals for the Sixth Circuit held that because of the 1993
               judgment in favor of Poss, a constructive trust had been imposed
               on the property in his favor, and thus the property was not affected
               by Morris's bankruptcy filing. In re Morris (C.A.6, 2001), 260 F.3d
               654.

               In December 2002, Poss filed a motion in the common pleas court
               for an order that Morris transfer the property to him as she had
               agreed. Arguments on the motion were heard in April 2003. On
               November 4, 2003, before the court ruled on Poss’s motion, Morris
               transferred the property to Skyway. Skyway’s attorney knew of the
               previous litigation, but concluded that Skyway was a bona fide
               purchaser for value.

Id. at ¶2-5.




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      {¶3}   Relevant to the present appeal, Attorney Wynn filed the complaint to

foreclose the judgment lien. He had represented Morris through all of the previous

litigation set forth above. He also represented both Suhay and Skyway Investment

Corp. (“Skyway”), which is owned and operated by Suhay, in various actions related to

the ongoing dispute and alleged fraudulent transfer of the Property. Both Suhay and

Morris gave consent in writing to allow Attorney Wynn to represent Suhay in the present

matter.

      {¶4}   Ultimately, the 2003 transfer of the Property to Skyway by Morris was

determined to be fraudulent on October 30, 2012, and was thus null and void.

However, several months later, Suhay filed a complaint in Geauga County against

Morris and obtained a judgment on a cognovit note executed by Morris. He filed a

certificate of that judgment in Ashtabula County, which established a lien on the

Property. Attorney Wynn represented Suhay in obtaining judgment against Morris on

the cognovit note.

      {¶5}   Suhay filed a complaint to foreclose his judgment lien on the Property in

the present matter. He named Morris as a defendant, alleging she either has claimed or

may claim an interest in the Property. The Fades answered and filed counterclaims

against Suhay, as well as cross claims against Morris. The counterclaims alleged, inter

alia, frivolous conduct on the part of Suhay in filing the foreclosure action. Attorney

William Collier filed an answer to the cross claims on behalf of Morris, and Attorney

Wynn filed an answer to the counterclaims on behalf of Suhay. The Fades initially filed

a motion for summary judgment on the complaint, which the trial court granted. The




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Fades then filed a motion to disqualify Attorney Wynn from representing Suhay. The

counterclaims and cross claims remain pending.

      {¶6}   A magistrate’s decision was filed on March 8, 2019, on the motion to

disqualify following a hearing in the matter.         In the decision, the magistrate

recommended granting the motion to disqualify Attorney Wynn as counsel for Suhay

under 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.”

The trial court adopted the recommendation of the magistrate. It based its decision, as

the Fades assert in their appellate brief, on Ohio Rules of Professional Conduct 1.7 and

1.9, while specifically not ruling on the issues of (1) Attorney Wynn’s potential conflict

due to personal financial interest under Prof.Cond.R. 1.7(a)(2) in being subject to a

counterclaim for attorney fees, and (2) Attorney Wynn’s necessity to serve as a witness

in the case under Prof.Cond.R. 3.7. The trial court upheld and affirmed the magistrate’s

decision over objections from Suhay on July 19, 2019, and made the following

statements regarding Attorney Wynn’s necessity to appear as a witness on the

counterclaims under Prof.Cond.R. 3.7:

             8. Both the plaintiff and defendant Morris object that there is no
             evidence as to what counsel may be asked to testify about. The
             Magistrate stated that she was not ruling on the necessity of either
             or both attorneys serving as witnesses, other than to note that
             testimony might be admissible as to some issues and inadmissible
             as to others. However, since counsel have raised it, the Magistrate
             also noted Marilyn Morris has testified that she has no idea who
             created the promissory note and that she doesn’t even remember
             how it came about. Richard Suhay has testified that he never saw
             the note prior to the date of his deposition, that he did not know it
             existed, that he did not ask anyone to create it, and that he did not
             know who did create it. The answers to questions of this nature are



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             relevant and material to the issues raised in the Fades’
             counterclaim and crossclaim. Since Suhay and Morris have
             already testified to their lack of knowledge, the issue seems to be
             whether their attorneys’ testimony is necessary and whether the
             testimony is obtainable elsewhere.

             9. The plaintiff and defendant Morris object that the Magistrate’s
             decision fails to consider the plight of these parties if their counsel
             is disqualified and assert that disqualification is draconian. The
             objections do not elaborate on what that plight would be.
             Presumably, they would seek representation by counsel who do not
             face the variety of issues regarding the representation of different
             parties in the case by the counsel, at different times in the history of
             the litigation. The potential issue of their attorneys’ personal
             interests, and the potential that their attorneys may serve as
             witnesses, as noted by the Magistrate.

      {¶7}   Suhay filed a timely notice of appeal and raises one assignment of error

for our review. Suhay’s sole assignment of error states:

             THE TRIAL COURT ABUSED ITS DISCRETION AND
             OTHERWISE COMMITTED PREJUDICIAL ERROR WHEN IT
             APPROVED AND AFFIRMED THE MAGISTRATE’S DECISION
             OF MARCH 8, 2019 AND WHEN IT DISQUALIFIED ATTORNEY
             WYNN FROM FURTHER REPRESENTATION OF APPELLANT
             SUHAY.

      {¶8}   Initially, we note that an order disqualifying an attorney from representing

a client in a civil case is a final, appealable order pursuant to R.C. 2505.02(B)(4).

Westfall v. Cross, 144 Ohio App.3d 211, 218-219 (7th Dist.2001); Fordeley v. Fordeley,

11th Dist. Trumbull No. 2014-T-0079, 2015-Ohio-2610, ¶22.

      {¶9}   Furthermore, it is well accepted that disqualification of an attorney is a

drastic measure that should not be imposed unless necessary.            Kala v. Aluminum

Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 6 (1998), citing Freeman v. Chicago

Musical Instrument Co., 689 F.2d 715, 721 (7th Cir.1982). “Despite a general policy

against attorney disqualification, a trial court has wide discretion when considering




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motions to disqualify counsel.” Douglass v. Priddy, 11th Dist. Geauga No. 2013-G-

3172, 2014-Ohio-2881, ¶16, citing Maple Heights v. Redi Car Wash, 51 Ohio App.3d

60, 61 (8th Dist.1988). A trial court’s determination on whether to grant a motion to

disqualify will not be reversed upon review in the absence of an abuse of discretion.

Carr v. Acacia Country Club Co., 8th Dist. Cuyahoga No. 91292, 2009-Ohio-628, ¶18,

citing 155 N. High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 426 (1995). An abuse

of discretion is the trial court's “‘failure to exercise sound, reasonable, and legal

decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,

¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶10} Although courts typically do not disqualify attorneys on the grounds of

conflict of interest unless the attorney-client relationship is between the party seeking

disqualification and the attorney the party seeks to disqualify, trial courts also 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 Ohio Rules of Professional Conduct and

when such action is necessary to protect the dignity and authority of the court.’”

Fordeley, supra, at ¶25, quoting Horen v. City of Toledo Public School Dist., 174 Ohio

App.3d 317, 2007-Ohio-6883, ¶21 (6th Dist.). The Supreme Court of Ohio addressed

this alternative means of disqualification in Morgan v. N. Coast Cable Co., 63 Ohio

St.3d 156 (1992), stating:

              Typically, courts do not disqualify an attorney on the grounds of
              conflict of interest unless there is (or was) an attorney-client
              relationship between the party seeking disqualification and the
              attorney the party seeks to disqualify. See In re Yarn Processing
              Patent Validity, Celanese Corp. v. Leesona Corp. (C.A.5, 1976),
              530 F.2d 83, and cases cited therein; see, also, Dana Corp. v. Blue
              Cross & Blue Shield Mut. of Northern Ohio (C.A.6, 1990), 900 F.2d
              882. Many courts that have dealt with the issue of whether



                                            6
              disqualification of counsel is proper have looked to their respective
              codes of professional responsibility for guidance. Our research
              indicates that courts in Ohio are not an exception to this practice.

Id. at 159 (footnote omitted).

       {¶11} Rule 1.9(a) of the Ohio Rules of Professional Conduct sets forth an

attorney’s duties to former clients: “Unless the former client gives informed consent,

confirmed in writing, a lawyer who has formerly represented a client in a matter shall not

thereafter represent another person in the same or a substantially related matter in

which that person’s interests are materially adverse to the interests of the former client.”

(Emphasis sic.) A matter is deemed to be substantially related when it “involves the

same transaction or legal dispute or one in which there is a substantial risk that

confidential factual information that would normally have been obtained in the prior

representation of a client would materially advance the position of another client in a

subsequent matter.” Prof.Cond.R. 1.0(n).

       {¶12} Rule 1.7(c)(2) of the Ohio Rules of Professional Conduct further limits

representation of an affected client—even where informed consent in writing is

acquired—where “the representation would involve the assertion of a claim by one client

against another client represented by the lawyer in the same proceeding.”

       {¶13} In the matter sub judice, it is undisputed that no attorney-client relationship

exists or existed between the Fades—the party seeking disqualification—and Attorney

Wynn—the attorney the party is seeking to disqualify. The trial court acknowledged this

and therefore cited the Rules of Professional Conduct as justification for granting a

disqualification.   However, the rules cited by the trial court also do not warrant

disqualification.




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       {¶14} Pursuant to Rule 1.9(a), both Suhay and Morris gave informed consent in

writing to allow Attorney Wynn to represent Suhay in the present matter. The informed,

written consent exception allows for Attorney Wynn to represent Suhay under Rule 1.9

in these circumstances.

       {¶15} Further, of relevance to both Rules 1.7 and 1.9, there is no materially

adverse claim being made against Morris.           Suhay brought a foreclosure action

regarding property owned by the Fades based on a lien he believed entitled him to

foreclose on the property. Morris no longer has an interest in the property and stands to

lose nothing based on the results of the proceeding. Being named as a defendant on

the basis of having a potential interest in the property does not put her in an adverse

position with regard to Suhay’s foreclosure claim, and therefore Rule 1.7(c)(2) is not

applicable.

       {¶16} Because both Morris and Suhay gave informed consent in writing to the

representation of Suhay by Attorney Wynn, any potential conflict under Prof.Cond.R. 1.9

was validly waived by the parties. Further, because there was no assertion of a claim

by one client against another client represented by the lawyer in the same proceeding

under Prof.Cond.R. 1.7, that rule is inapposite to the parties. Therefore, the trial court’s

disqualification of Attorney Wynn under Rule 1.7 and 1.9 is error.

       {¶17} Suhay’s sole assignment of error has merit.

       {¶18} At this point, it is not clear from the record that Attorney Wynn has actually

been called to testify. The issue of whether Attorney Wynn is a necessary witness in

the matter remains undetermined.        Rule 3.7(a) of the Ohio Rules of Professional

Conduct provides:




                                             8
              A lawyer shall not act as an advocate at a trial in which the lawyer
              is likely to be a necessary witness unless one or more of the
              following applies: (1) the testimony relates to an uncontested issue;
              (2) the testimony relates to the nature and value of legal services
              rendered in the case; (3) the disqualification of the lawyer would
              work substantial hardship on the client.

(Emphasis sic.)

       {¶19} In the event Attorney Wynn is called to testify, the trial court will need to

determine, under under Prof.Cond.R. 3.7, whether he should be disqualified on the

basis that he is a necessary witness in litigating the Fades’ remaining counterclaims

upon remand.

       {¶20} The judgment of the Ashtabula County Court of Common Pleas is

reversed, and the matter is remanded to the trial court for further proceedings consistent

with this opinion.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




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