Baldonado v. TackettBaldonado v. Tackett
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George C. Rogers, for appellant.
Williаm P. Lang, for appellee Ryan M. Tackett; Timothy C. James and Brad A. Everhardt, for appellee Ralph Thayer Chevrolet, Inc.
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HANDWORK, P.J.
{¶ 1} This appeal is from the December 1, 2008 judgment of the Wоod County Court of Common Pleas, which granted a motion to disqualify George C. Rogers from serving as counsel for appellant, Christine Baldonado. Upon consideration of the
{¶ 2} “THE TRIAL COURT ERRED IN DISQUALIFYING PLAINTIFF‘S COUNSEL AS TRIAL COUNSEL FOR PLAINTIFF WHEN THERE IS NO EVIDENCE IN THE RECORD THAT PLAINTIFF‘S COUNSEL IS A ‘NECESSARY’ WITNESS PURSUANT TO
Rule 3.7 OF THE OHIO RULES OF PROFESSIONAL CONDUCT .”
{¶ 3} Appellant brought a malicious prosecution action against appellee, Ryan M. Tackett and Ralph Thayer Chevrolet, Inc., jointly and severally, in 2006. Both defendants moved for summary judgment, which was granted to appellees on all of appellant‘s claims on April 5, 2007. This decision was overturned on appeal by this court on December 21, 2007, and the case was remanded to the trial court for furthеr proceedings. The trial court‘s grant of summary judgment was reversed because this court found that there was a question of fact raised as to whether the underlying criminal action was dismissеd in favor of appellant. This conclusion was based upon the affidavits of appellant and her counsel who attested that there had not been any compromise agreement. Tackett attested that the prosecutor had sought his consent to dismiss the charges, which implied that Tackett‘s agreement was necessary.
{¶ 4} On January 28, 2008, appellеe Tackett moved to disqualify appellant‘s counsel, and any other lawyer from his firm, from representing appellant. Tackett argued that appellant‘s counsel was likеly to be called as a witness at trial regarding the facts
{¶ 5} While discipline of lawyers falls within the exclusive jurisdiction of the Ohio Supreme Court, Mentor Lagoons, Inc. v. Rubin (1987), 31 Ohio St.3d 256, 259-260, lower “* * * courts have the inherent power to disqualify an attorney from acting as counsel in a case where thе attorney cannot or will not comply with the Code of Professional Responsibility and such action is necessary to protect the dignity and authority of the court.” Horen v. City of Toledo Public School Dist., 6th Dist. No. L-07-1131, 2007-Ohio-6883, ¶ 21 (citations omittеd). In the case before us, it is alleged that appellant‘s counsel will violate
{¶ 6}
{¶ 7} “(a) A lawyer shall not аct as an advocate at a trial in which the lawyer is likely to be a necessary witness unless one or more of the following applies:
{¶ 8} “(1) the testimony relates to an uncontested issue;
{¶ 9} “(2) the testimony relates to the nature and value of legal services rendered in the case;
{¶ 10} “(3) the disqualification of the lawyer would work substantial hardship on the client.
{¶ 11} “(b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer‘s firm is likely to be called as a witness unless precluded from doing so by
{¶ 12} “(c) A government lawyer participating in a case shall not testify or offer the testimony of another lawyer in the same government agency, except where division (a) applies or where permitted by law.”
{¶ 13} The trial court agreed with Tackett and concludеd in its February 20, 2008 judgment entry that the testimony of appellant‘s counsel was central to the issue of whether or not the criminal action was resolved in appellant‘s favor. Therefоre, the trial court granted the motion to disqualify appellant‘s counsel. At a pretrial conference, however, appellant‘s counsel indicated that he would not bе a witness in the action. Therefore, the trial court set aside its order of disqualification. Because appellant‘s counsel indicated that he would not testify in the case, thе court granted Tackett‘s motion to strike the attorney‘s affidavit from the record in which he attested that no plea bargaining occurred in the underlying criminal action.
{¶ 14} Appellant and Tackett again moved for summary judgment. In an August 7, 2008 judgment entry, the trial court denied summary judgment to appellant and granted in part and denied in part summary judgment to Tackett. The trial court grаnted summary judgment to Tackett only with respect to appellant‘s
{¶ 15} Thereafter, Ralph Thayer Chevrolet, Inc. moved for summary judgment and both defendants renewed their motion to disqualify аppellant‘s attorney on November 14, 2008, because of the need to depose appellant‘s counsel regarding the events leading up to the dismissal of the underlying criminal сase. On December 1, 2008, the court ruled again that it was necessary to disqualify appellant‘s counsel, George Rogers, from acting as her counsel in this case because of the need for his testimony to resolve the issues of the case. The court then reinstated its February 20, 2008 judgment of disqualification.
{¶ 16} Appellant sought an appeal from this order (as well аs the February 20, 2008 judgment) on December 12, 2008. Appellant also sought to appeal from the August 7, 2008 judgment, which denied partial judgment to appellant on the only issue for which her counsel could be called as a witness and directed that her counsel‘s affidavit be stricken from the record. This second appeal was dismissed by this court because it was not a final, aрpealable order.
{¶ 17} On appeal, appellant asserts a single assignment of error. She argues that appellees did not demonstrate that her counsel was a “nеcessary” witness in this case since she has indicated that she will not call him as a witness and that the facts relating to the dismissal of the underlying criminal action can be ascertained from the facts of the criminal record. Furthermore, that there is no basis for disqualification of her counsel because his prior affidavit makes it clear that there was no plea bargaining in the underlying criminal case and, therefore, he had nothing about which to testify.
{¶ 18} Appellee Tackett argues that the existence of a voluntary settlement or agreеment of compromise is the central factual issue in this case. Since there was a payment of restitution prior to the dismissal of the case, Tackett argues that there was evidence that the criminal action was not resolved by dismissal of the charges and that the testimony of appellant‘s counsel was critical to establishing her case and he cannot continue to serve as appellant‘s counsel pursuant to
{¶ 19} On appeal, this court reviews the decision of the trial court under an abuse of discretion standard of review. 155 N. High Ltd. v. Cincinnati Ins. Co. (1995), 72 Ohio St.3d 423, syllabus. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 20} Because of the similarity between
{¶ 21} In this case, we find that appellant has failed to establish that the trial court abused its discretion. It is clear from the record that the defense has taken the position
{¶ 22} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
C.A. No. WD-08-079
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, P.J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Thomas J. Osowik, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.