City of Akron v. Carter
190 Ohio App. 3d 420
Ohio Ct. App.2010Background
- Following mediation in an appropriation proceeding, the mediator reported a settlement was reached.
- The city sought a determination that the settlement terms were not privileged under Ohio’s Uniform Mediation Act; Carter moved to exclude mediation communications.
- The trial court held that the terms of the oral settlement were not privileged and allowed evidence to support enforcement of the settlement, and sua sponte disqualified Carter’s lawyers as witnesses.
- Carter appealed two journal entries: the evidentiary ruling and the disqualification order.
- The court reverses: (1) the information sought is privileged and (2) disqualification occurred without proper consideration of conflict or necessity of the lawyers as witnesses.
- The matter is remanded for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mediation communications are privileged and whether an exception applies | Carter argues all mediation communications are privileged under R.C. 2710.03; no exception applies | City argues an exception in R.C. 2710.05(B)(2) allows disclosure of settlement-terms-related communications | The information sought is privileged; B(2) does not apply; privilege controls the evidence. |
| Whether Carter’s lawyers were properly disqualified as witnesses and advocates | City contends their testimony is necessary as witnesses for enforcement | Carter argues disqualification was improper and should consider exceptions and necessity under Prof.Cond.R. 3.7 | Disqualification was improper for lack of necessity/appropriate consideration under Prof.Cond.R. 3.7; conflict under 1.7 also not adequately examined. |
Key Cases Cited
- State v. Echard, 2009-Ohio-6616 (9th Dist. 2009) (recognizes motion in limine as preliminary and must be preserved for appeal when final)
- Ford v. Gooden, 2007-Ohio-7043 (9th Dist. 2007) (preliminary evidentiary ruling in limine context)
- Chandathany, 2003-Ohio-1593 (9th Dist. 2003) (pretrial evidentiary limits and context in limine)
- Puritas Metal Prods. v. Cole, 2008-Ohio-4653 (9th Dist. 2008) (disqualification standards for lawyer-witness conflicts)
- Cincinnati Gas & Elec. Co. v. Pope, 374 N.E.2d 406 (Ohio 1978) (intervening in special proceeding finality under 2505.02)
- Chef Italiano Corp. v. Kent State Univ., 541 N.E.2d 64 (Ohio 1989) (final order concepts in appellate review)
- State v. Grubb, 28 Ohio St.3d 199 (Ohio 1986) (predecessor discussion on motion in limine)