[Cite as Royer v. Dillow, 2014-Ohio-53.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


DIANE ROYER, Individually and as                   JUDGES:
Administrator and Representative of the            Hon. William B. Hoffman, P. J.
Estate and Next of Kin of DANIEL                   Hon. Sheila G. Farmer, J.
LEFEBVRE, Deceased                                 Hon. John W. Wise, J.

        Plaintiff-Appellant

-vs-                                               Case No. 13 CA 71

RAY DILLOW, et al.

        Defendants-Appellees                       OPINION



CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Case No. 12 CV 1425

JUDGMENT:                                      Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         January 9, 2014


APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee ArcelorMittal

GORDON M. EYSTER                               ROBERT J. HANNEN
MCKOWN & MCKOWN                                DANIEL TOMASSETTI
10 Mansfield Avenue                            1001 Corporate Drive, Suite 200
Shelby, Ohio 44875                             Canonsburg PA 15317

                                               For Defendants-Appellees Dillow, Crouse
                                               Trucking and Mark Crouse

                                               AUDREY E. VARWIG
                                               JOSEPH J. GOLIAN
                                               DICKIE, MCCAMEY & CHILCOTE
                                               2109 Stella Court
                                               Columbus, Ohio 43215
Richland County, Case No. 13 CA 71                                                      2

Wise, J.

        {¶1}   Plaintiff-Appellant Diane Royer, individually and as administrator and

representative of the estate and next of kin of Daniel Lefebvre, appeals from the

decision of the Court of Common Pleas, Richland County, which disqualified her trial

counsel, on the basis of conflict of interest, during the pendency of a wrongful-death

lawsuit against Defendants-Appellees Ray Dillow, et al. The relevant procedural facts

leading to this appeal are as follows.

        {¶2}   On November 27, 2012, appellant, individually and as administrator of the

estate and next of kin of Daniel Lefebvre, filed a lawsuit in the Richland County Court of

Common Pleas, alleging that on November 29, 2010, Appellee Ray Dillow had struck

Daniel with a tractor-trailer in the parking lot of ArcelorMittal Tubular Products Shelby,

Inc. in Shelby, Ohio, causing Daniel’s death. Appellant was represented in the suit by

Attorney Gordon Eyster, who maintains a civil law practice in addition to serving as the

part-time law director for the city of Shelby, Ohio, a position he has held since January

1, 2012. At the time Attorney Eyster took office, a criminal case against Dillow was

purportedly pending in the municipal court. It appears that Dillow entered a plea of

either guilty or no contest to vehicular homicide and/or vehicular manslaughter in that

case.

        {¶3}   On May 20, 2013, in the aforesaid civil case, ArcelorMittal filed a written

motion requesting the disqualification of Attorney Eyster as counsel for appellant,

alleging a conflict of interest under Prof.Cond.R. 1.11(c) and 1.11(d)(2)(ii), as well as

R.C. 102.03(A)(1).
Richland County, Case No. 13 CA 71                                               3


        {¶4}   On July 25, 2013, the trial court issued a judgment entry ordering that

Attorney Eyster was precluded from representing appellant in the pending lawsuit. The

trial court found, inter alia, that “Gordon Eyster acted as law director of [the city of]

Shelby [Ohio] in the prosecution of Ray Dillow for causing the death of Daniel Lefebvre.”

Order on Defendant ArcelorMittal’s Motion to Disqualify Plaintiff’s Counsel, at 2. The

trial court therein relied on R.C. 102.03(A)(1), as further discussed infra, although the

court also found Attorney Eyster “is probably also precluded from that representation in

these circumstances by the Ohio Code of Professional Conduct Rule 1.11(d)(2)(ii).” Id.

at 3.

        {¶5}   On August 20, 2013, appellant filed a notice of appeal. She herein raises

the following sole Assignment of Error:

        {¶6}   “I.   THE TRIAL COURT ERRED IN DISQUALIFYING ATTORNEY

EYSTER WHEN BASING THE RULING ON AN INCORRECT ASSUMPTION – THAT

ATTORNEY EYSTER HAD PREVIOUSLY REPRESENTED THE VICTIMS IN THE

CRIMINAL CASE AND THAT HE WAS INVOLVED IN CRIMINAL AND CIVIL

MATTERS SIMULTANEOUSLY.”

                                                I.

        {¶7}   In her sole Assignment of Error, appellant argues the trial court erred in

disqualifying her trial counsel, Attorney Gordon Eyster. We agree, to the extent that the

trial court should have conducted a hearing under these circumstances before deciding

the issue of disqualification.

        {¶8}   A trial court’s disqualification of counsel is an order that affects a

substantial right and is final and appealable under R.C. 2505.02. Ross v. Ross (1994),
Richland County, Case No. 13 CA 71                                                 4


94 Ohio App.3d 123, 129, 640 N.E.2d 265; LLE Corp. v. Mitsubishi Corp. (May 24,

1995), Tuscarawas App. No. 94AP110078. A determination to disqualify or not

disqualify counsel is within the sound discretion of the trial court. See Sarbey v. National

City Bank, Akron (1990), 66 Ohio App.3d 18, 583 N.E.2d 392. In order to find an abuse

of discretion, we must determine that the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. However, disqualification “is a

drastic measure which should not be imposed unless absolutely necessary.”

Waliszewski v. Caravona Builders, Inc. (1998), 127 Ohio App.3d 429, 433 (additional

citations and internal quotations omitted).

       {¶9}   The trial court in the case sub judice, in its decision to disqualify Attorney

Eyster, relied chiefly on R.C. 102.03(A)(1), which states:

       {¶10} “No present or former public official or employee shall, during public

employment or service or for twelve months thereafter, represent a client or act in a

representative capacity for any person on any matter in which the public official or

employee personally participated as a public official or employee through decision,

approval, disapproval, recommendation, the rendering of advice, investigation, or other

substantial exercise of administrative discretion.”

       {¶11} Furthermore, pursuant to 102.03(A)(5), the term “matter,” for purposes of

division (A)(1) of this section of the statute, “includes any case, proceeding, application,

determination, issue, or question, but does not include the proposal, consideration, or

enactment of statutes, rules, ordinances, resolutions, or charter or constitutional

amendments.”
Richland County, Case No. 13 CA 71                                               5


       {¶12} The trial court further indicated in its order of July 25, 2013 that Attorney

Eyster was “probably also precluded” from representing appellant under these

circumstances by Prof.Cond.R. 1.11(d)(2)(ii), which states: “Except as law may

otherwise expressly permit, a lawyer currently serving as a public officer or employee

*** shall not *** negotiate for private employment with any person who is involved as a

party or as lawyer for a party in a matter in which the lawyer is participating personally

and substantially ***.”

       {¶13} Appellant herein has argued, both in her response to the disqualification

motion in the trial court and in her present brief, that at minimum an evidentiary hearing

is warranted in this matter. The Ohio Supreme Court has held that a court must hold an

evidentiary hearing on a motion for disqualification in the specific situation where an

attorney has left a law firm that represents one party to an action and has joined a firm

that represents an opposing party. See Kala v. Aluminum Smelting & Refining Co., Inc.

(1998), 81 Ohio St.3d 1, 688 N.E.2d 258, syllabus. However, the Ohio Supreme Court

has “never held that a court must hold an evidentiary hearing before ruling on every

motion for disqualification.” Dayton Bar Assoc. v. Parisi, 131 Ohio St.3d 345, 965

N.E.2d 268, 2012-Ohio-879, ¶ 15. We have likewise held that an evidentiary hearing,

where the parties may examine and cross-examine witnesses, is not necessary on all

motions for disqualification. See Shawnee Assocs., L.P. v. Shawnee Hills, 5th Dist.

Delaware No. 07CAE050022, 2008–Ohio–461, ¶ 34.

       {¶14} Nonetheless, a review of the present record on appeal reveals that both

appellees’ motion to disqualify and appellant’s response, although quite competently

presented, have no documentation or affidavits attached, except for an unauthenticated
Richland County, Case No. 13 CA 71                                                6


copy of a partial police report. It is unfeasible for this Court to determine, from the

limited record, Attorney Eyster’s level of involvement in the criminal case in his capacity

as law director, to ascertain the timing of Attorney Eyster’s attorney-client relationship

with appellant, or other pertinent facts pertaining to a conflict of interest. Under these

circumstances, this Court should not take on the task of issuing an appellate decision

on an important issue involving attorney ethics and professional conduct without a

sound factual record as a foundation.

      {¶15} We therefore sustain, in part, appellant’s sole Assignment of Error, and

order this matter remanded to the trial court for an evidentiary hearing on the motion to

disqualify Attorney Gordon Eyster as appellant’s trial counsel.

      {¶16} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby reversed and remanded with

directions to conduct an evidentiary hearing on the motion to disqualify.

By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., dissents.
Richland County, Case No. 13 CA 71                                                   7


Hoffman, P.J., dissenting

       {¶17} I respectfully dissent from the majority opinion.

       {¶18} I find additional documentation or affidavits and an evidentiary hearing are

not necessary based upon the undisputed facts concerning Appellant’s dual

representation. The trial court properly interpreted and applied R.C. 102.03(A)(1). I find

no abuse of discretion in the trial court’s disqualification order and would affirm its

judgment.
