[Cite as In re Disqualification of Forchione, 134 Ohio St.3d 1235, 2012-Ohio-6303.]




                      IN RE DISQUALIFICATION OF FORCHIONE.
                AFF OHIO, L.L.C. v. STARK CERAMICS, INC. ET AL.
       [Cite as In re Disqualification of Forchione, 134 Ohio St.3d 1235,
                                    2012-Ohio-6303.]
Judges—Disqualification—Allegations of false statements and local bias—
        Mediation attempts—Grounds for disqualification not established.
                      (No. 12-AP-067—Decided July 24, 2012.)
  ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas
                               Case No. 2011-CV-04114.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Edward Heben, counsel for plaintiff, has filed an affidavit with the
clerk of this court under R.C. 2701.03 seeking to disqualify Judge Frank G.
Forchione from acting on any further proceedings in case No. 2011-CV-04114,
now pending in the Court of Common Pleas of Stark County. Greg Kraus,
general counsel for plaintiff, has filed a supplemental affidavit to disqualify Judge
Forchione.
        {¶ 2} Affiants allege that Judge Forchione is biased and prejudiced
against the plaintiff and partial to defendants, who are mostly local Stark County
businesses with local counsel. Affiant Heben claims that during the pendency of
this case, Judge Forchione has “evinced a propensity to unjustly favor the
bankrupt local Stark County Defendant Stark Ceramics and its President.” Heben
also alleges that Judge Forchione has exhibited “bias, prejudice, untruthfulness,
intimidation, improper demeanor, and the appearance of impropriety and
impartialness [sic].”
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       {¶ 3} Judge Forchione has responded in writing to the concerns raised in
the affidavits, contending that the record is devoid of any actions demonstrating
bias or prejudice against the plaintiff or its counsel.     Judge Forchione also
explains that the relationship between Heben and opposing counsel has been
“contentious,” and he specifically describes the conduct of Heben as
“disrespectful, belligerent, and unprofessional.”
       {¶ 4} Jonathon M. Yarger, counsel for defendant Stark Ceramics, has
also responded to Heben’s affidavit of disqualification. Yarger does not directly
address the allegations of bias or prejudice; instead, Yarger counters several
statements in Heben’s affidavit relating to the merits of the underlying
proceeding.
       {¶ 5} For the reasons explained below, no basis has been established for
ordering the disqualification of Judge Forchione.
                   Procedural History of the Underlying Case
       {¶ 6} In 2006, defendant Stark Ceramics defaulted on two loans it
received from First Merit Bank, and the bank subsequently obtained a judgment
lien attaching to defendant’s real property. First Merit also received a Uniform
Commercial Code (“UCC”) security interest against the personal property of
Stark Ceramics. Stark Ceramics eventually filed for bankruptcy, and during the
bankruptcy, First Merit Bank assigned its interests in the judgment lien and the
UCC security interest to plaintiff.
       {¶ 7} According to plaintiff, Stark Ceramics has been selling timber,
inventory, and equipment on the land that is subject to plaintiff’s judgment lien or
UCC security interest. On December 29, 2011, plaintiff filed its complaint, along
with a motion for temporary restraining order and permanent injunction, to
prevent further liquidation of the assets on the property. In addition to Stark
Ceramics, plaintiff named several other defendants who were allegedly




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purchasing or removing materials from the Stark Ceramics property. The case
was assigned to Judge Forchione.
       {¶ 8} Over the next four months, the parties stipulated to the terms of
several preliminary injunctions, and plaintiff filed multiple motions to amend its
complaint to add more defendants. On April 25, 2012, the parties participated in
a court-ordered mediation, which the parties agreed could be led by Judge
Forchione. On June 4 and June 6, 2012, Judge Forchione held hearings on
plaintiff’s motion for leave to file a second amended complaint and Stark
Ceramics’ motion to modify the terms of the preliminary injunction. According
to Heben, at the June 6 hearing, Judge Forchione threatened to allow Stark
Ceramics to sell property subject to plaintiff’s judgment lien and UCC security
interest to pay for environmental cleanup of the property.
       {¶ 9} On June 8, 2012, Heben filed an affidavit of disqualification, and
he filed an amended affidavit on July 9, 2012. A second mediation is scheduled
for July 31, 2012.
       {¶ 10} According to Judge Forchione, a “big problem” in the case is that
the Stark Ceramics property is an environmental hazard that poses a health danger
to the Stark County community. Judge Forchione asserts that the United States
Environmental Protection Agency has threatened imposition of daily fines if
cleanup does not begin soon.
                     Waiver and Heben’s Amended Affidavit
       {¶ 11} Affiant Heben has waived the right to assert some of his
allegations against Judge Forchione.
       {¶ 12} Affiants have filed three submissions to support their request for
disqualification: (1) the original affidavit of disqualification, signed by attorney
Heben and filed on June 8, 2012, (2) a supplemental affidavit, signed by Greg
Kraus, general counsel for plaintiff, and filed on June 13, 2012, and (3) an
“amended affidavit,” signed by Heben and filed on July 9, 2012. Heben’s original



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affidavit alleges that Judge Forchione demonstrated bias and prejudice at the
April 25 mediation and the June 4 and June 6 motion hearings. In the original
affidavit, Heben requested leave to amend his affidavit within 30 days to review
the transcripts of the hearings and to supplement the record based on that review.
       {¶ 13} On June 19, 2012, Judge Forchione submitted his response to
Heben’s affidavit of disqualification, which addressed Heben’s allegations
relating to both the mediation and the hearings. On July 9, 2012, Heben filed the
amended affidavit, but in addition to attaching the hearing transcripts, Heben set
forth two new allegations, both of which relate to comments allegedly made by
Judge Forchione during the February 3 and February 8, 2012 meetings in Judge
Forchione’s chambers.
       {¶ 14} The new allegations are untimely and therefore waived. Heben
was granted leave to amend his affidavit to review the transcripts of the June 4
and 6 hearings and to supplement the record with specific allegations of judicial
bias and prejudice relating to those hearings. Heben did not obtain leave to
amend his affidavit to raise new allegations that he could have raised in his
original affidavit. It is well settled that “a party may be considered to have
waived its objection to the judge when the objection is not raised in a timely
fashion and the facts underlying the objection have been known to the party for
some time.” In re Disqualification of O’Grady, 77 Ohio St.3d 1240, 1241, 674
N.E.2d 353 (1996).       If Heben believed that the complained-of conduct
demonstrated bias or prejudice, he should have included the allegations in his
original affidavit. Heben’s attempt to set forth new allegations in an amended
affidavit, which was filed after Judge Forchione had responded to the original
affidavit, is impermissible. Because of the delay in raising the new allegations
and Heben’s failure to assert them in the original affidavit, Heben waived any
objection to Judge Forchione’s alleged conduct during the February 2012 in-
chambers meetings.




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              Allegations Relating to the April 25, 2012 Mediation
       {¶ 15} Affiants assert that Judge Forchione displayed bias and prejudice
in four ways at the April 25, 2012 mediation. None are sufficient to support
disqualification.
  Judge Forchione’s relationship with attorney Callas and threats of sanctions
       {¶ 16} Heben asserts that in February 2012, he had an encounter with
Gust Callas, counsel for defendant Slesnick Iron & Metal Company, during
which, Heben claims, Callas indicated that he had a special relationship with
Judge Forchione and if Heben did not dismiss the claims against Callas’s client,
Judge Forchione would sanction Heben. Heben claims that Judge Forchione then
made the same threat during mediation. According to Heben, Judge Forchione
stated he “did not take kindly to Plaintiff’s filing of unsupported claims against
multiple Stark County Defendants without a basis” and then “brought up” the
issue of sanctions.    Heben claims that Callas’s threat, combined with Judge
Forchione’s familiarity with Callas and the same threat of sanctions, constitutes
an “appearance of impropriety and bias and prejudice.”
       {¶ 17} In response, Judge Forchione avers that he has “no relationship
with Attorney Callas, they do not socialize, they do not now, nor have they ever
worked together, and they do not have any type of common business interest.”
Further, Judge Forchione states that after Heben informed him of Callas’s alleged
statement, he addressed the issue with Callas, who vehemently denied making the
assertion. Attorney Callas also submitted a response to Heben’s affidavit of
disqualification, in which he denies making the statement. Judge Forchione did
not specifically respond to the allegation that he “brought up” sanctions to
plaintiff during mediation. However, he did explain that in his role as mediator,
he points out “any and all potential pitfalls to each party in order to come to some
type of resolution.”




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       {¶ 18} Heben’s claims are without merit. Heben has not offered any
specific evidence to support his claim that a special relationship exists between
Judge Forchione and Callas, and Judge Forchione denies any such relationship.
Disqualification based on a special relationship, therefore, is not warranted. See
In re Disqualification of Kimbler, 88 Ohio St.3d 1217, 723 N.E.2d 1104 (1999)
(denying affidavit “[w]ithout specific evidence to support affiant’s claim of a
special relationship”).
       {¶ 19} Further, no appearance of impropriety exists. “ ‘The proper test
for determining whether a judge’s participation in a case presents an appearance
of impropriety is * * * an objective one. A judge should step aside or be removed
if a reasonable and objective observer would harbor serious doubts about the
judge’s impartiality.” In re Disqualification of Lucci, 117 Ohio St.3d 1242, 2006-
Ohio-7230, 884 N.E.2d 1093, ¶ 8, quoting In re Disqualification of Lewis, 117
Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. It is not uncommon for
litigants or judges to mention sanctions in response to what they perceive as
frivolous claims. Absent some evidence of a special relationship between Callas
and Judge Forchione, no reasonable and objective observer would question the
judge’s impartiality solely because both Callas and Judge Forchione “brought up”
sanctions.
             Statements made in mediation about a possible jury verdict
       {¶ 20} Affiants next claim that during mediation, Judge Forchione
exhibited bias and prejudice by attempting to coerce a settlement when he
threatened to submit the issue of the amount of the judgment lien to the jury,
which affiants claim is not a disputed matter for the jury. In response, Judge
Forchione acknowledges that in mediations, he discusses with each side the
potential strengths and weaknesses in the case, including unfavorable jury
verdicts.




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                                January Term, 2012




       {¶ 21} Judge Forchione’s conduct here does not demonstrate bias or
prejudice. A judge will not be disqualified based solely on the fact that he or she
participated in settlement discussions. In re Disqualification of Sheward, 100
Ohio St.3d 1221, 2002-Ohio-7473, 798 N.E.2d 8, ¶ 5. In addition, an attorney
cannot acquiesce in a judge’s participation in settlement negotiations and later try
to have that judge disqualified because counsel did not like the judge’s proposed
settlement. See, e.g., In re Disqualification of Nadel, 74 Ohio St.3d 1214, 657
N.E.2d 1329 (1989), quoting Annotation, Waiver or Loss of Right to Disqualify
Judge by Participation in Proceedings—Modern State Criminal Cases, 27
A.L.R.4th 597, 605 (1984) (“ ‘[A] party should not be permitted to participate in
an action or proceedings to the extent that he is able to ascertain the attitude of the
judge toward important aspects of his case and then avoid an adverse ruling by
belatedly raising the issue of disqualification’ ”).       Thus, Judge Forchione’s
attempt to mediate the case is not grounds for disqualification, and the fact that
affiants consented to the judge acting as a mediator prevents them from now
requesting disqualification in order to avoid a potential adverse future ruling.
       {¶ 22} Further, during negotiations, a judge may choose to outline certain
factors as a means of facilitating settlement, but such conduct does not establish
bias or prejudice on the part of the judge. In re Disqualification of Solovan, 101
Ohio St.3d 1222, 2003-Ohio-7353, 803 N.E.2d 821, ¶ 4. Accordingly, the mere
fact that Judge Forchione chose to discuss the possibility of an unfavorable jury
verdict does not itself establish the existence of bias or prejudice. See, e.g., id.
(finding no bias or prejudice by the fact that the judge outlined the possibility of
prejudgment interest during a pretrial conference as a means to facilitate
settlement).
       {¶ 23} Likewise, the fact that Judge Forchione may have expressed a
conditional opinion about plaintiff’s case does not warrant disqualification. “ ‘A
judge rarely hears preliminary aspects of a case without forming conditional



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opinions of the facts or law. These conditional opinions often assist the parties
and their counsel in identifying and narrowing the issue in controversy and
facilitate the settlement of cases prior to trial.’ ”    In re Disqualification of
Horvath, 105 Ohio St.3d 1247, 2004-Ohio-7356, 826 N.E.2d 305, ¶ 8, quoting In
re Disqualification of Brown, 74 Ohio St.3d 1250, 1251, 657 N.E.2d 1353 (1993).
However, these conditional opinions are not sufficient to counter the presumption
of a judge’s ability to render a fair decision based on the evidence later presented
at trial. Id. Here, the record does not indicate that Judge Forchione has formed
anything more than a conditional opinion, which is insufficient to demonstrate
bias or prejudice.
       {¶ 24} Finally, affiants’ allegations rest wholly on their legal conclusion
that the amount of the judgment lien is already fixed and therefore not an issue for
the jury. However, according to attorney Yarger’s response to Heben’s affidavit
of disqualification, Stark Ceramics very much disputes the amount due on the
judgment lien, especially in light of Stark Ceramics’ counterclaims against
plaintiff. Thus, the record does not establish that it was improper for Judge
Forchione to warn plaintiff of potential adverse consequences should an
agreement not be reached in mediation.
                                     Local bias
       {¶ 25} In Kraus’s affidavit, he states that on numerous occasions during
the mediation, Judge Forchione emphasized that plaintiff was an “outsider” and
“didn’t understand the way things work in Canton.” Kraus claims these and
similar statements demonstrate a bias against plaintiff.        In response, Judge
Forchione states that there is no bias against plaintiff in the record, and he points
out that there have not been any adverse rulings against it. Judge Forchione
admits he made statements such as “Stark County has been hit hard by
unemployment” and “[W]hat would you do if the jury returned a verdict of only
$50,000.00?” But Judge Forchione explains that in the “role of Mediator,” he




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routinely points out “any and all potential pitfalls to each party in order to come to
some type of resolution,” and he always informs the parties that “Stark County
has a history of issuing very conservative jury verdicts.”
        {¶ 26} Kraus has again failed to establish that these comments
demonstrate judicial bias or prejudice. “A judge is presumed to be fair and
impartial and able to decide cases pending before him or her in accordance with
the law and without regard to personal considerations.” In re Disqualification of
Sadler, 100 Ohio St.3d 1220, 2002-Ohio-7472, 798 N.E.2d 7.               Thus, it is
presumed that any comments about Stark County were made as part of the judge’s
mediation practice of pointing out all the “potential pitfalls” to each party. In
light of Judge Forchione’s denial of any bias against plaintiff and his explanation
of his role as mediator, Kraus has not overcome the presumption of impartiality
here.
                                   Untruthfulness
        {¶ 27} Affiants next allege that Judge Forchione was untruthful during the
mediation. Specifically, affiants assert that when discussing a global settlement
option during the mediation, Judge Forchione represented that all of the
defendants were present in another room.            Affiants claim that they later
discovered that not all of the defendants were present and that Judge Forchione’s
office had called one of the attorneys the previous day and “informed him that he
did not have to attend the mediation.”
        {¶ 28} Even accepting affiants’ allegation as true, given the number of
defendants and counsel in this case, Judge Forchione could have mistakenly
believed that all defendants and their counsel were present. Regardless, claiming
that a judge has been untruthful is a serious allegation. According to affiants, one
of a defendant’s counsel told them that the common pleas court had instructed
them not to attend. Yet affiants offer no third-party affidavits or other evidence
from this attorney to support this claim. “Allegations that are based solely on



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hearsay, innuendo, and speculation * * * are insufficient to establish bias or
prejudice.” In re Disqualification of Flanagan, 127 Ohio St.3d 1236, 2009-Ohio-
7199, 937 N.E.2d 1023, ¶ 4, citing In re Disqualification of Walker, 36 Ohio St.3d
606, 522 N.E.2d 460 (1988) (vague, unsubstantiated allegations are insufficient to
establish bias or prejudice). Because affiants’ claim is based on hearsay, rather
than any probative evidence, the allegation is insufficient to establish bias.
            Allegations Relating to the June 4 and June 6 Hearings
       {¶ 29} Heben claims that Judge Forchione was hostile to him during the
June 4 and 6 hearings.        Specifically, Heben alleges that Judge Forchione
repeatedly threatened to sanction and jail him if plaintiff did not dismiss certain
defendants and that Judge Forchione “excoriated” him and “verbally attacked”
him for filing two briefs within an hour before the start of the June 4 hearing.
According to Heben, Judge Forchione interrupted him and glared at him in an
“intimidating manner” during his opening statement, and Judge Forchione
instructed an armed deputy to stand behind the counsel table. Finally, Heben
asserts that Judge Forchione stated that he was going to “allow Stark Ceramics to
sell hundreds of thousands of dollars of property, subject to the Plaintiff’s
judgment lien and the UCC financing statement, without having to pay the
secured creditor the Plaintiff a penny.” (Emphasis sic.)
       {¶ 30} Heben’s allegations are not properly substantiated. Despite being
granted leave to amend his initial affidavit with evidence from the June hearings,
Heben has not provided any citations to the transcript identifying these alleged
threats and verbal attacks. In proceedings on an affidavit of disqualification, the
burden falls on the affiant to submit sufficient evidence that supports
disqualification.   R.C. 2701.03(B)(1) (requiring affiant to include specific
allegations of bias, prejudice, or disqualifying interest and the facts to support
those allegations). Heben submitted the 81-page June 4 transcript and the 140-
page June 6 transcript. It is not the chief justice’s job, however, to sift through




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hundreds of pages of transcript to find support for Heben’s allegations or to
speculate what conduct he considers hostile. See, e.g., In re Disqualification of
Mitrovich, 101 Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4 (“An
affidavit must describe with specificity and particularity those facts alleged to
support the claim of bias or prejudice”).
       {¶ 31} In contrast, Judge Forchione cites and quotes portions of the
transcript in his response wherein he warned counsel of sanctions. The quoted
portions in Judge Forchione’s response do not demonstrate any bias or prejudice
toward plaintiff or its counsel that would require disqualification. Moreover,
according to the transcript portions provided by Judge Forchione, his warnings
were directed at all counsel, not only Heben. While Judge Forchione used strong
words to illustrate what he considers disrespectful practice in his courtroom, his
remarks do not lead to the conclusion that he would not approach the case in a fair
and impartial way. A judge is “entitled to express dissatisfaction about attorneys’
conduct and tactics inside and outside the courtroom, as long as the judge’s
dissatisfaction is ‘expressed in a way that promotes public confidence in the
integrity, dignity, and impartiality of the judiciary.’ ” In re Disqualification of
Synenberg, 127 Ohio St.3d 1220, 2009-Ohio-7206, 937 N.E.2d 1011, ¶ 24,
quoting In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-
7354, 826 N.E.2d 302, ¶ 10. Based on the quoted portions in Judge Forchione’s
response, that standard was met here.
                          Judge Forchione’s Response
       {¶ 32} In his amended affidavit, Heben also asserts that Judge Forchione’s
response to the original affidavit of disqualification reflects bias and prejudice
against Heben. These claims also lack merit.
       {¶ 33} Heben first asserts that Judge Forchione’s reference to a previous
case involving the same attorneys is an attempt to malign Heben’s integrity.
Judge Forchione’s reference to the previous litigation was unnecessary. Judge



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Forchione did not preside over the prior case and had no personal knowledge of
the attorney conduct in that case. 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, Judge
Forchione’s reference to that litigation, while misguided, does not convey the
impression that he has 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 which will be governed by the law and the facts.”
State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956).
       {¶ 34} Heben next asserts that Judge Forchione’s statement that “[t]he
security interest does not cover timber or fixtures” is prejudicial because Judge
Forchione is making a determination about the scope of the judgment lien without
any presentation of the evidence. First, the statement is ambiguous, as it is
unclear whether Judge Forchione is referring to the judgment lien or the UCC
security interest. Therefore, the statement does not lead to the conclusion, as
Heben alleges, that Judge Forchione has already determined the scope of the
judgment lien. And even if the statement had a clear meaning, as explained
above, “[a] judge rarely hears preliminary aspects of the case without forming
conditional opinions of the facts or law,” and the “formation of these conditional
opinions is not sufficient to counter the presumption of the judge’s ability to
render a fair decision based upon the evidence later presented at trial.” In re
Disqualification of Brown, 74 Ohio St.3d 1250, 1251, 657 N.E.2d 1353 (1993).
Given that the parties are still attempting to mediate this dispute, Judge
Forchione’s statement is more akin to a conditional opinion than a fixed
judgment.
       {¶ 35} Finally, to the extent that Heben is arguing that Judge Forchione’s
interpretation of the security interest or judgment lien is legally incorrect, an




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affidavit of disqualification is not the proper vehicle to contest a judge’s alleged
misinterpretation of the law or facts. See, e.g., 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”).    “Procedures exist by which appellate courts may review—and, if
necessary, correct—rulings made by trial courts.” In re Disqualification of Russo,
110 Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6. The chief justice,
however, does not review alleged legal errors in deciding an affidavit of
disqualification. Id.
                                    Conclusion
         {¶ 36} The disqualification of a judge is an extraordinary remedy. In re
Disqualification of O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d
17, ¶ 15, citing In re Disqualification of Hunter, 36 Ohio St.3d 607, 522 N.E.2d
461 (1988). “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
here.
         {¶ 37} For the reasons stated above, the affidavits of disqualification are
denied. The case may proceed before Judge Forchione.
                             ______________________




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