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

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO

RICHARD SUHAY, : O P I N I O N 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.

Jud g ment: Reversed and remanded.

Robert S. Wynn , 7 Lawyers Row, P.O. Box 121, Jefferson, OH 44047 (For Plainti ffAppellant )

. 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 A shtabula County Court of Common Pleas in favor of appellees, Vilma and W illiam Fade (“the Fades”), disqualifying Attorney Robert Wynn (“Attorney Wynn”) f rom 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 afte r his death—and2 Marilyn Morris (“Morris”) had already participated in substanti al litigation for over twenty years regarding a parcel of land (“the Property”). The followi ng 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-entr y-anddetainer 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 mortga ge 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’ settleme nt agreement into the judgment of the court. Morris subsequently filed for bankruptcy in 1995, which resulte d in further litigation regarding the property. The United States Co urt of Appeals for the Sixth Circuit held that because of the 1993 judgment in favor of Poss, a constructive trust had been impose d on the property in his favor, and thus the property was not aff ected 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 ha d agreed. Arguments on the motion were heard in April 2003. On November 4, 2003, before the court ruled on Poss’s motion, Morr is transferred the property to Skyway. Skyway’s attorney knew of t he previous litigation, but concluded that Skyway was a bona fide purchaser for value.

Id . at ¶2-5.3 {¶3} Relevant to the present appeal, Attorney Wynn filed the complai nt 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 vari ous actions related to the ongoing dispute and alleged fraudulent transfer of the Prop erty. Both Suhay and Morris gave consent in writing to allow Attorney Wynn to repres ent Suhay in the present

matter. {¶4} Ultimately, the 2003 transfer of the Property to Skyway by Morr is was determined to be fraudulent on October 30, 2012, and was thus n ull and void. However, several months later, Suhay filed a complaint in Geaug a County against Morris and obtained a judgment on a cognovit note executed by M orris. He filed a certificate of that judgment in Ashtabula County, which establi shed a lien on the Property. Attorney Wynn represented Suhay in obtaining judgmen t against Morris on the cognovit note. {¶5} Suhay filed a complaint to foreclose his judgment lien on the P roperty in the present matter. He named Morris as a defendant, alleging s he 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 cou nterclaims alleged, inter alia, frivolous conduct on the part of Suhay in filing the fore closure action. Attorney

William Collier filed an answer to the cross claims on behalf o f 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. The4 Fades then filed a motion to disqualify Attorney Wynn from repr esenting Suhay. The counterclaims and cross claims remain pending. {¶6} A magistrate’s decision was filed on March 8, 2019, on the moti on 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 Pr ofessional Responsibility and when such action is necessary to protect the dignity and au thority 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 Pro fessional Conduct 1.7 and 1.9, while specifically not ruling on the issues of (1) Attorne y 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 necessi ty 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 w itness 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 e ither or both attorneys serving as witnesses, other than to note that testimony might be admissible as to some issues and inadmissibl e as to others. However, since counsel have raised it, the Magis trate also noted Marilyn Morris has testified that she has no idea wh o created the promissory note and that she doesn’t even remember how it came about. Richard Suhay has testified that he never s aw the note prior to the date of his deposition, that he did not k now it existed, that he did not ask anyone to create it, and that he d id not know who did create it. The answers to questions of this natur e are5 relevant and material to the issues raised in the Fades’ counterclaim and cr ossclaim. Since Suhay and Morris have already testified to their lack of knowledge, the issue seems t o be whether their attorneys’ testimony is necessary and whether the testimony is obtainable elsewhere. 9. The plaintiff and defendant Morris object that the Magistrat e’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 no t face the variety of issues regarding the representation of diff erent parties in the case by the counsel, at different times in the h istory of the litigation. The potential issue of their attorneys’ person al 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 at torney 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 discr etion when considering6 motions to disqualify counsel.” Douglass v. Priddy, 11th Dist. Geauga No. 2013-G3172, 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 wheth er to grant a motion to disqualify will not be reversed upon review in the absence of a n 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 gr ounds 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 couns el in a case when the attorney cannot or will not comply with the Ohio Rules of Profe ssional Conduct and when such action is necessary to protect the dignity and author ity 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-clien t 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 whether7 disqualification of counsel is proper have looked to their resp ective codes of professional responsib ility for guidance. Our research indicates that courts in Ohio are not an exception to this prac tice.

Id. at 159 (footnote omitted). {¶11} Rule 1.9(a) of the Ohio Rules of Professional Conduct sets fort h 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 sh all not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the int erests 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 su bstantial risk that confidential factual information that would normally have been obtained in the prior representation of a client would materially advance the positio n 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 furthe r limits representation of an affected client—even where informed consen t 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 pr oceeding.” {¶13} In the matter sub judice, it is undisputed that no attorney-cli ent relationship exists or existed between the Fades—the party seeking disqualif ication—and Attorney Wynn—the attorney the party is seeking to disqualify. The tria l court acknowledged this and therefore cited the Rules of Professional Conduct as justif ication for granting a disqualification. However, the rules cited by the trial court also do not warrant disqualification.8 {¶14} Pursuant to Rule 1.9(a), both Suhay and Morris gave informed co nsent in writing to allow Attorney Wynn to represent Suhay in the presen t 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 ma terially adverse claim being made against Morris. Suhay brought a forec losure action regarding property owned by the Fades based on a lien he believ ed 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 nam ed as a defendant on the basis of having a potential interest in the property does n ot put her in an adverse position with regard to Suhay’s foreclosure claim, and therefor e 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 conflic t 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 err or. {¶17} Suhay’s sole assignment of error has merit. {¶18} At this point, it is not clear from the record that Attorney Wy nn 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:9 A lawyer shall not act as an advocate at a trial in which the l awyer 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 serv ices rendered in the case; (3) the disqualification of the lawyer wo uld work substantial hardship on the client. (Emphasis sic.) {¶19} In the event Attorney Wynn is called to testify, the trial cour t will need to determine, under under Prof.Cond.R. 3.7, whether he should be d isqualified on the basis that he is a necessary witness in litigating the Fades’ r emaining 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 fur ther proceedings consistent with this opinion.

CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J.,

concur.