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Holbrook v Benson

Case No. 2013CA00045 (OH Ct. App., Dist. 5, Dec. 2, 2013)

Appellant Bryon Holbrook appeals a judgment of the Stark County Common Pleas Court disqualifying his attorney, Michela Huth, from representing him in the instant case. Appellee is Marilyn Benson.

STATEMENT OF FACTS AND CASE



Appellant and appellee entered into an oral lease regarding property in Navarre, Ohio, in July of 2011. Appellant filed the instant action on October 30, 2012, alleging that he had made improvements to the house and was entitled to reimbursement or credit for rent. Appellee counterclaimed seeking unpaid rent of $600.00 per month from August 1, 2011.

Attorney Michela Huth filed a motion to appear pro hac vice as co-counsel for appellant on October 30, 2012. The motion was granted on November 1, 2012.

The parties appeared before the court for a hearing on February 19, 2013. At that hearing, it became apparent that Attorney Huth was involved in a romantic relationship with appellant and was living with him in the house that was the subject of the case. At the hearing, counsel for appellee informed the court that Huth will be a material witness in the case because she is living in the home. Huth acknowledged that appellant was her boyfriend and that she was living in the home, but represented that she had not witnessed any of the repairs that were the subject of the complaint or the counterclaim.
 

 

Judge(s): Craig R. Baldwin
Jurisdiction: Ohio Court of Appeals, District 5
Court of Appeals Judge(s)
Craig Baldwin
Sheila Farmer
John Wise

 
Appellant Lawyer(s) Appellant Law Firm(s)
Sandra Cheshire Cheshire Law Office

 
Appellee Lawyer(s) Appellee Law Firm(s)
William Demsky
Larry Slagle

 

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Click the maroon box above for a formatted PDF of the decision.
for plaintiff-appellant for defendant-appellee measure which should not be imposed unless absolutely necessary.’ ” waliszewski v. hon. craig r. baldwin necessary witness under prof.cond.r. 3.7 is one whose testimony must be admissible 2008–ohio–6687, 904 n.e.2d 576, ¶ 11 (1st dist.) citing kala v. aluminum smelting & cheshire law office 54 federal avenue, ne holbrookcourt of appeals plaintiff - appellant : 2859 aaronwood avenue, ne by the depth and quality of the relationship, a situation which could be detrimental to his or her client only when it is likely the lawyer will be a “necessary” witness. a court first had to determine the admissibility of the attorney's testimony. if the trial court in which the lawyer is likely to be a necessary witness * * *.” the rule lists three statement of facts and case date of judgment: december 2, 2013 {¶15} similarly, in the instant case the court did not make any factual or legal : analysis. id. at ¶22. while the testimony of the attorney might arguably be admissible, material witness in the case because she is living in the home. huth acknowledged that {¶17} finally, appellee argues that huth has a proprietary interest in the property {¶16} further, the trial court abused its discretion in disqualifying huth on the necessary witness, but found only that she may be a material witness in the case. the appellant was her boyfriend and that she was living in the home, but represented that stark county, case no. 2013ca00045 3 -vs- : and unobtainable through other trial witnesses. popa land co., ltd v. fragnoli, 9th dist. in the court of appeals for stark county, ohio cincinnati ins. co., 72 ohio st.3d 423, 650 n.e.2d 869 (1995), syllabus. in order to find -vs- : judgment entry ohio–2116, ¶ 12 (applying the current rules of professional conduct). it is therefore even highly useful but still not strictly necessary. a finding of necessity takes into occupying the premises of the dispute leaves plaintiff in a vulnerable position, especially : by virtue of living on the property. this basis for disqualification was not cited by the ohio–5462, 942 n.e.2d 409, ¶ 19 (9th dist.) quoting puritas metal prods. inc. v. cole, {¶1} appellant bryon holbrook appeals a judgment of the stark county home before and after plaintiff moved in, it is obvious that plaintiff’s counsel, [michela basis that she is romantically involved with her client. ohio rule of professional caravona builders, inc., 127 ohio app.3d 429, 433, 713 n.e.2d 65 (9th dist.1998), 9th dist. lorain nos. 07ca009255, 07ca009257, and 07ca009259, 2008–ohio–4653, trial court abused its discretion in disqualifying the attorney without any reasoned : {¶14} in king v. pattison, 5th dist. muskingum no. ct2013-0010, 2013-ohio- arbitrary, or unconscionable and not merely an error of law or judgment. blakemore v. baldwin, j. rested on the moving party and the burden of proving one of the exceptions applied was necessary witness in the instant case. appellee presented no evidence as to what her judgment of the court of common pleas of stark county, ohio is reversed and suite 102 {¶4} the parties appeared before the court for a hearing on february 19, 2013. {¶18} the assignment of error is sustained. exceptions to disqualification: (1) the testimony relates to an uncontested issue; (2) the remanded. costs assessed to appellee. fifth appellate district {¶11} under prof.cond.r. 3.7, “[a] lawyer shall not act as an advocate at a trial its discretion when it disqualified plaintiff-appellant bryon [cite as holbrook v. benson, 2013-ohio-5307.] {¶7} appellant assigns a single error on appeal: hon. john w. wise the case. at the hearing, counsel for appellee informed the court that huth will be a counsel could give relevant testimony.” akron v. carter, 190 ohio app.3d 420, 2010– bryon holbrook : she had not witnessed any of the repairs that were the subject of the complaint or the 4665, the party seeking to disqualify an attorney represented to the court that the [cite as holbrook v. benson, 2013-ohio-5307.] dr 5–102(a) and (b), under the former code of professional responsibility. under the stark county, case no. 2013ca00045 5 making any factual and/or legal conclusions relevant to the required analysis for also, a.b.b. sanitec west, inc. v. weinsten, 8th dist. cuyahoga no. 88258, 2007– reimbursement or credit for rent. appellee counterclaimed seeking unpaid rent of of common pleas, case no. navarre, ohio, in july of 2011. appellant filed the instant action on october 30, 2012, {¶2} appellant and appellee entered into an oral lease regarding property in alleging that he had made improvements to the house and was entitled to common pleas court disqualifying his attorney, michela huth, from representing him in stark county, case no. 2013ca00045 4 plaintiff.” judgment entry, march 1, 2013, as corrected by nunc pro tunc judgment of the instant case. appellee is marilyn benson. opposing counsel as a witness is an insufficient basis for disqualification even if that north canton, oh 44720 larry slagle at that hearing, it became apparent that attorney huth was involved in a romantic attorney-client relationship. while the court’s concerns regarding the effect of huth’s testimony might be, and merely represented to the court in a conclusory fashion that stark county, case no. 2013ca00045 6 the disqualification of the lawyer would work substantial hardship on the client. : stark county, ohio representation on the relationship and vice versa might be valid, they are not grounds [huth] is in a romantic relationship with plaintiff, who will undoubtedly be the main refining co., inc., 81 ohio st.3d 1, 6, 688 n.e.2d 258 (1998). availability of other evidence. * * * a party's mere declaration of an intention to call marilyn benson : case no. 2013ca00045 testimony relates to the nature and value of the legal services rendered in the case; (3) high ltd. v. cincinnati ins. co., 72 ohio st.3d 423, 650 n.e.2d 869 (1995), at syllabus. a client unless a consensual relationship existed between them when the client-lawyer trial court abused its discretion in disqualifying huth without making the proper inquiry findings relevant to the required analysis for determining whether michela huth was a on the attorney seeking to claim the exception. id., citing waliszewki, supra; 155 n. 317, 2007–ohio–6883, 882 n.e.2d 14, ¶ 21 (6th dist.). “however, because of the representing his or her client. the burden of proving that disqualification was necessary this case is remanded for further proceedings according to law, consistent with this blakemore, 5 ohio st.3d 217, 450 n.e.2d 1140 (1983). : hon. craig r. baldwin, j. relationship between huth and appellant existed prior to commencement of the medina no. 08ca0062–m, 2009–ohio–1299, ¶ 15. “testimony may be relevant and to the disciplinary rules were applicable. id., citing mentor lagoons, supra at paragraph : hon. sheila g. farmer, p.j. {¶5} the trial court disqualified huth from representing appellant. the court hon. john w. wise conduct, rule 1.8(j) provides, “a lawyer shall not solicit or engage in sexual activity with {¶13} under prof.cond.r. 3.7, a lawyer may be disqualified from representing hearing reflects no facts as to what her testimony would be if called as a witness. account such factors as the significance of the matters, weight of the testimony and quoting spivey v. bender, 77 ohio app.3d 17, 22, 601 n.e.2d 56 (6th dist.1991). see, 2012cv03394 romantic relationship with appellant. the court did not make a finding that she was a holbrook’s trial counsel (michela huth).” stark county, case no. 2013ca00045 7 important for the trial court to follow the proper procedures in determining whether the motion, nor was there evidence attached to the response. this court found that the hon. sheila g. farmer {¶8} “the trial court committed reversible error and abused hon. craig r. baldwin other than the fact that she lives on the subject property with appellant. court as grounds for disqualification, nor was any evidence presented at the hearing decision on a motion to disqualify for an abuse of discretion. 155 north high ltd. v. she might be a witness because she lives on the subject property and is involved in a citing mentor lagoons, inc. v. rubin, 31 ohio st.3d 256, 510 n.e.2d 379 (1987). the if the relationship doesn’t last. in addition, attorney [huth’s] judgment may be impaired farmer, p.j. and wise, j. concur. ruled in pertinent part: crb/rad {¶19} the judgment of the stark county common pleas court is reversed, and potential use of the advocate-witness rule for abuse, disqualification ‘is a drastic relationship commenced.” the information before the court reflected that the : authority of the court.” horen v. city of toledo public school dist., 174 ohio app.3d : for disqualifying her as counsel. {¶10} trial courts have the “inherent power to disqualify an attorney from acting disqualification is necessary. brown v. spectrum networks, inc., 180 ohio app.3d 99, massillon, oh 44646 {¶3} attorney michela huth filed a motion to appear pro hac vice as co-counsel 931 north main street massillon, oh 44646 $600.00 per month from august 1, 2011. we found that the trial court abused its discretion in disqualifying the attorney without : found the testimony admissible, the court then had to consider whether any exceptions stark county, case no. 2013ca00045 2 refining co., inc., 81 ohio st.3d 1, 688 n.e.2d 258 (1998). we review the trial court's sandra k. cheshire william demsky march 5, 2013. an abuse of discretion, we must determine the trial court's decision was unreasonable, for the reasons stated in our accompanying memorandum-opinion, the counterclaim. defendant - appellee : o p i n i o n fifth appellate district witness in the case. the fact that attorney [huth] is both living with the plaintiff and : plaintiff - appellant : hon. john w. wise, j. huth] may be a material witness to the case. equally important is the fact that attorney attorney was likely to be called as a witness at trial. there was no evidence attached to granting disqualification. id. at ¶23. opinion. costs assessed to appellee. bryon holbrook : judges: appearances: {¶12} prof.cond.r. 3.7 replaced the former disciplinary rules dr 5–101(b) and professional responsibility and when such action is necessary to protect the dignity and {¶6} “since the main issue in this case is the extent of the repairs made to the relationship with appellant and was living with him in the house that was the subject of as counsel in a case when the attorney cannot or will not comply with the code of by: baldwin, j. {¶9} an order disqualifying a civil trial counsel is a final order that is judgment: reversed and remanded deciding whether a lawyer can serve as both an advocate and a witness. brown, at ¶ 13 at ¶ 34 quoting mettler v. mettler (2007), 50 conn.supp. 357, 928 a.2d 631, 633. two of the syllabus. if no exceptions applied, the attorney was disqualified from prior rules, the ohio supreme court set forth the procedure for the trial court to follow in and findings that her testimony was admissible and necessary. the record of the defendant -appellee : case no. 2013ca00045 for appellant on october 30, 2012. the motion was granted on november 1, 2012. character of proceeding: appeal from the stark county court immediately appealable pursuant to r.c. 2505.02. see kale v. aluminum smelting & hon. sheila g. farmer marilyn benson : :


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