[Cite as R.K. v. T.K., 2017-Ohio-7855.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

R. K.                                                 C.A. No.     28576

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
T. K.                                                 COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   DR-2015-07-2236

                                  DECISION AND JOURNAL ENTRY

Dated: September 27, 2017



        HENSAL, Presiding Judge.

        {¶1}     T.K. appeals from the judgment of the Summit County Court of Common Pleas,

Domestic Relations Division. We affirm.

                                                 I.

        {¶2}     This appeal involves the disqualification of an attorney in a domestic relations

case. In 2008, R.K. (“Mother”) hired attorney Richard Hackerd to represent her in a custody

case involving M.K. (“Daughter”) against Daughter’s biological father. After prevailing in that

case, Mr. Hackerd represented Mother and T.K. (“Adoptive Father”) with respect to Adoptive

Father’s adoption of Daughter. Years later, Mother and Adoptive Father divorced. Thereafter,

Mr. Hackerd entered an appearance on behalf of Adoptive Father relative to certain post-decree

matters. Given Mr. Hackerd’s prior representation of Mother, Mother moved to disqualify Mr.

Hackerd as counsel for Adoptive Father.
                                                 2


       {¶3}    A magistrate held a hearing on March 7, 2017, during which the magistrate

addressed Mother’s motion to disqualify Mr. Hackerd. Mother testified that Mr. Hackerd’s

representation of Adoptive Father would give Adoptive Father an unfair advantage in the post-

decree proceedings. In this regard, she testified that she shared “very personal [and] possibly

inflammatory things” about herself with Mr. Hackerd during his prior representation of her, and

that she had not shared those things with Adoptive Father.

       {¶4}    Prior to Mother’s re-direct examination, Mr. Hackerd stated that he “would like to

reserve the right to call [Adoptive Father] with respect to this matter.” After his re-cross

examination of Mother, Mr. Hackerd stated that “[s]ubject to [his] reservation of rights, [he]

ha[d] nothing at this time.” Neither party presented additional witnesses, and the magistrate

indicated that she would take the matter under advisement and issue a decision.

       {¶5}    Approximately one week later, the trial court issued a judgment entry, granting

Mother’s motion to disqualify Mr. Hackerd.            Adoptive Father now appeals, raising one

assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT VIOLATED
       [ADOPTIVE FATHER’S] CONSTITUTIONALLY GUARANTEED RIGHT TO
       DUE PROCESS AND HIS RIGHT TO COUNSEL OF HIS CHOICE WHEN IT
       GRANTED [MOTHER’S] MOTION TO DISQUALIFY HIS ATTORNEY
       WITHOUT JUST CAUSE.

       {¶6}    In his assignment of error, Adoptive Father asserts that the trial court violated his

due-process rights because it: (1) granted Mother’s motion to disqualify his attorney without any

explanation of its reasoning; (2) denied him the opportunity to present evidence despite his
                                                  3


counsel’s reservation of rights to do so; and (3) issued a judgment entry despite the fact that the

magistrate never issued a decision from which he could file objections.

       {¶7}      As an initial matter, we note that an appellant has the burden of establishing error

on appeal. In re J.S., 9th Dist. Summit No. 28154, 2016-Ohio-5120, ¶ 12. Appellate Rule

16(A)(7) requires an appellant’s brief to include “[a]n argument containing the contentions of the

appellant with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies.”

       {¶8}      Here, Adoptive Father has not developed arguments with respect to his latter two

assertions, that is, that the trial court denied his due-process rights by denying him the

opportunity to present evidence despite his counsel’s reservation of rights to do so, and by

issuing a judgment entry despite the fact that the magistrate never issued a decision from which

he could file objections. Instead, his merit brief relies upon conclusory statements without any

citations to authority. Such conclusory statements are insufficient for purposes of establishing

error on appeal. To the extent that arguments exist to support Adoptive Father’s assertions, it is

not this Court’s duty to root them out. Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998

WL 224934, *8 (1998), citing App.R. 12(A)(2) and App.R. 16(A)(7). Our analysis, therefore,

will focus on Adoptive Father’s first assertion, that is, that the trial court denied his due-process

rights because it granted Mother’s motion to disqualify his attorney without any explanation of

its reasoning.

       {¶9}      “[T]his Court reviews a trial court’s ruling on a motion to disqualify counsel for

an abuse of discretion.” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8.
                                                 4


An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶10} “When determining whether the disqualification of an attorney is proper, the

initial step involves evaluating the nature and scope of a past attorney-client relationship between

the party seeking disqualification and the attorney it seeks to disqualify.” Menke at ¶ 10, citing

Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 8 (1998) and Dana Corp v.

Blue Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882 (6th Cir.1990). “The Supreme Court of

Ohio has held that if a prior attorney-client relationship exists, ‘a court must determine whether a

substantial relationship exists between prior and present representations.’” Id., quoting Kala at

8. “[I]f a substantial relationship is found between the current matter and the prior matter, the

court must examine whether the attorney shared in the confidences and representation of the

prior matter.” (Internal quotations omitted.) Id. Notably, “there is a rebuttable presumption of

shared confidences arising from prior representation.” Id.

       {¶11} Adoptive Father argues that a trial court abuses its discretion when it acts

“without explanation” and “without reference to established legal precedence[.]” Adoptive

Father then analyzes the legal standard for attorney disqualification, concluding that the trial

court abused its discretion because it did not apply the applicable legal standard.

       {¶12} Regarding his due-process rights, Adoptive Father has cited no authority in

support of his position that a conclusory judgment entry violates a party’s due-process rights.

See App.R. 16(A)(7). We will not create such an argument on his behalf. Cardone, 9th Dist.

Summit No. 18349, 1998 WL 224934 (1998), at *8.

       {¶13} Regarding the merits of the trial court’s decision, Adoptive Father acknowledges

that the underlying dispute involves custody issues related to Daughter, but argues that: (1) the
                                                 5


2008 dispute involved different issues (i.e., child support and “the exit of the birth Father from

the child’s life”) and different parties (i.e., Daughter’s biological father and Mother); (2) the two

cases are several years apart; and (3) Mr. Hackerd did not acquire confidential information from

Mother. With respect to the latter point, Adoptive Father cites an affidavit wherein he averred

that he was aware of the potentially inflammatory information Mother claimed was privileged.

       {¶14} Having reviewed the record, we cannot say that the trial court abused its

discretion when it granted Mother’s motion to disqualify Mr. Hackerd. We are unpersuaded by

Adoptive Father’s argument that the two cases, which both involve custody issues related to

Daughter, are not substantially related, nor are we convinced that the length of time between the

two cases has any significant bearing on the attorney-disqualification analysis. Further, to the

extent that the trial court’s decision relied upon a credibility determination as to whether

Adoptive Father was aware of the alleged confidential information, that determination is entitled

to considerable deference on appeal. State v. Scheiman, 9th Dist. Medina No. 04CA0047-M,

2005-Ohio-15, ¶ 22-23.       Adoptive Father has failed to establish error on appeal, and,

accordingly, his assignment of error is overruled.

                                                III.

       {¶15} Adoptive Father’s assignment of error is overruled. The Judgment of the Summit

County Court of Common Pleas, Domestic Relations Division is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 6


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

RICHARD E. HACKERD, Attorney at Law, for Appellant.

TERENCE E. SCANLON, Attorney at Law, for Appellee.
