CHARLES E. GOEBEL, et al., Appellants, v. TIMOTHY J. HOPKINS, Appellee.
CASE NO. CA2023-06-044
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
1/22/2024
[Cite as Goebel v. Hopkins, 2024-Ohio-194.]
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 21 CV 94450
Santen & Hughes, and Brian P. O‘Connor; and George M. Parker, for appellee.
M. POWELL, J.
{¶ 1} Appellants, Charles and Diane Goebel (“the Goebels“), appeal a decision of the Warren County Court of Common Pleas disqualifying their trial counsel, Thomas Grossmann (“Attorney Grossmann“), from representing them at trial in their lawsuit against appellee, Timothy Hopkins (“Hopkins“).
{¶ 2} In 2020, the Goebels were neighbors of Hopkins on Maxwell Drive in
{¶ 3} The parties subsequently resolved the Property Dispute Case pursuant to a settlement agreement in January 2021 which was finalized in March 2021 (the “Settlement Agreement“). Pursuant to an entry filed on April 14, 2021, the trial court recognized its continuing jurisdiction to enforce the Settlement Agreement and ordered that the parties’ claims against each other be dismissed with prejudice.
{¶ 4} In the case at bar, the Goebels filed a complaint against Hopkins on August 3, 2021, and an amended complaint on December 3, 2021, alleging violation of the restrictive covenants in Hopkins’ deed to his property, nuisance, breach of the Settlement Agreement, and abuse of process. Hopkins filed an answer and counterclaims on March 15, 2022, and an amended answer and counterclaims on July 1, 2022, alleging abuse of process, malicious prosecution, fraud, defamation, civil conspiracy, injury by criminal conduct, and breach of contract. Hopkins alleged that the Goebels (1) had been involved in three legal actions against Hopkins under a theory of petty vengeance, (2) had sought a civil stalking protection order against Hopkins in October 2020 to obtain leverage over him, (3) purposefully and repeatedly made misrepresentations to Hopkins which he relied upon to sign the Settlement Agreement, (4) published a false statement about Hopkins to the Mason city manager, (5) acted with malice in a joint venture to force Hopkins to execute the Settlement Agreement, (6) engaged in criminal extortion, and (7) breached the Settlement Agreement, including its confidentiality provisions. Hopkins’ counterclaims
{¶ 5} The Goebels were represented by Attorney Grossmann in the Property Dispute Case; in the case at bar, they are represented by Attorney Grossmann, and since January 2023, by co-counsel Rob Lyons.
{¶ 6} On March 21, 2023, after the parties conducted depositions of Hopkins and Charles Goebel (“Charles“), Hopkins moved to disqualify Attorney Grossmann as counsel for the Goebels under
{¶ 7} The Goebels filed a response opposing the motion to disqualify, requested oral argument/hearing, and moved for a protective order to prohibit Hopkins from deposing Attorney Grossmann. An affidavit of Charles was attached to the Goebels’ response; four exhibits were attached to Charles’ affidavit. One of the exhibits was a February 23, 2021 email between Attorney Grossmann and Hopkins’ then counsel indicating that Hopkins had ended counsel‘s representation regarding the Settlement Agreement and that Hopkins wanted to handle things on his own in the matter, and giving written consent to Attorney Grossmann to speak directly with Hopkins. Charles’ affidavit averred he had received a copy of that email.
{¶ 8} On May 8, 2023, without holding an evidentiary hearing, the trial court granted Hopkins’ motion to disqualify Attorney Grossmann as counsel for the Goebels in
[T]he deposition transcript makes clear that the negotiations leading to the Settlement Agreement—and the alleged fraudulent representations—occurred exclusively between [Hopkins] and Attorney Grossmann. * * * [Furthermore], the only two persons involved in the settlement negotiations after [Hopkins‘] legal counsel withdrew were [Hopkins] and Attorney Grossmann, and Attorney Grossmann admittedly engaged in more than one conversation with [Hopkins] about the settlement.
{¶ 9} The trial court further noted that during Hopkins’ deposition, Attorney Grossmann‘s questioning was substantially directed to communications to which only he and Hopkins were privy and to Hopkins’ conduct toward Attorney Grossmann and his wife. The trial court found that Attorney Grossmann‘s disqualification would not work a substantial hardship on the Goebels because co-counsel Lyons was familiar with the facts of this case and could continue to represent them. The trial court‘s order of disqualification was limited to Attorney Grossmann‘s participation only at trial and permitted Attorney Grossman to continue to serve as counsel for the Goebels in pretrial proceedings. The trial court also denied the Goebels’ motion for a protective order to prohibit Hopkins from deposing Attorney Grossmann.
{¶ 10} The Goebels now appeal, raising two assignments of error.
{¶ 11} Assignment of Error No. 1:
{¶ 13} The Goebels argue the trial court erred in granting Hopkins’ motion to disqualify Attorney Grossmann, raising five issues for review. Specifically, the Goebels assert that the trial court abused its discretion in disqualifying Attorney Grossman (1) based upon the faulty premise that Hopkins’ counsel had withdrawn from the case and the Settlement Agreement was negotiated exclusively between Hopkins and Attorney Grossmann, (2) based upon Hopkins’ meritless and dismissible fraud claim, (3) without first conducting an evidentiary hearing on the matter, (4) without determining whether Attorney Grossmann‘s testimony was obtainable through other sources, and (5) without determining whether Attorney Grosmann‘s continued representation of the Goebels would taint the trial. We find that the third and fourth issues for review are dispositive of this appeal; the first, second, and fifth issues for review are moot and need not be considered. See Cafaro Co. v. Laserline Corp., 7th Dist. Mahoning No. 01-CA-68, 2002-Ohio-5190.
{¶ 14} An order disqualifying a civil trial counsel is a final order that is immediately appealable pursuant to
{¶ 15} An appellate court reviews a trial court‘s decision on a motion to disqualify for an abuse of discretion. 155 N. High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 426, 1995-Ohio-85. An abuse of discretion connotes that the trial court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Most instances of an abuse of discretion result in decisions that are unreasonable, as opposed to arbitrary or capricious. Hastings at ¶ 16, citing AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp (1990), 50 Ohio St.3d 157, 161 (1990). An unreasonable decision is one that has no sound reasoning process to support it. Id.
{¶ 16} Hopkins moved to disqualify Attorney Grossmann pursuant to
{¶ 17} “When a trial court reviews a motion for disqualification under
{¶ 18} A necessary witness under
{¶ 19} Under their third and fourth issues for review, the Goebels argue that the trial court abused its discretion by disqualifying Attorney Grossmann as a necessary witness without first conducting an evidentiary hearing on the matter and without determining whether Attorney Grossmann‘s testimony is obtainable through other sources.
{¶ 20}
{¶ 22} Hopkins’ motion to disqualify Attorney Grossmann asserts that the attorney is a fact witness whose testimony is necessary and unobtainable elsewhere due to the attorney‘s direct communications with Hopkins regarding the negotiation of the Settlement Agreement. The record shows that there were two telephone conversations between Hopkins and Attorney Grossmann in February 2021 before the Settlement Agreement was finalized in March 2021; the phone calls occurred after the February 23, 2021 email of Hopkins’ then counsel to Attorney Grossmann. During Hopkins’ deposition and in his response opposing the motion to disqualify, Attorney Grossmann stated that the two telephone conversations were recorded by him and Hopkins and were transcribed by Hopkins. During his deposition, Hopkins referred to the two phone calls and stated, “It‘s all over the tape.”
{¶ 23} In its decision disqualifying Attorney Grossmann as a necessary witness under
{¶ 24} We find that the trial court erred in disqualifying Attorney Grossmann as a necessary witness without conducting an evidentiary hearing on the matter. In determining that Attorney Grossmann was a necessary witness whose testimony was unobtainable elsewhere, the trial court did not mention that the two February 2021 telephone conversations between Hopkins and Attorney Grossmann were recorded and transcribed. The trial court also did not analyze whether, in addition to testimony from Attorney Grossmann, there were alternative sources of evidence on Hopkins’ claim he was fraudulently induced to enter into the Settlement Agreement. Given the lack of evidentiary material submitted by Hopkins with his motion to disqualify and the email exhibit attached to Charles’ affidavit, an evidentiary hearing would have brought out the case relevance of Attorney Grossmann‘s communications with Hopkins concerning the validity of the Settlement agreement, would have demonstrated whether the recordings/transcriptions of the two telephone conversations obviated the need for Attorney Grossman‘s testimony regarding the telephone conversations, and would have clarified whether Hopkins continued to be represented by counsel at the time he and Attorney Grossman were negotiating the Settlement Agreement and the extent of Hopkins’ counsel‘s involvement in the negotiations. For if Hopkins was acting pro se during the two telephone conversations, this begs the question of whether Attorney Grossmann was any more of a witness than if he had negotiated the Settlement
{¶ 25} We therefore reverse the trial court‘s decision granting Hopkins’ motion to disqualify Attorney Grossmann and remand the matter for the trial court to conduct an evidentiary hearing on the motion to disqualify. On remand, the evidentiary hearing must establish the extent of the one-to-one communications between Hopkins and Attorney Grossmann regarding the negotiation of the Settlement Agreement, whether Hopkins was represented by counsel in February 2021, and if he was not, whether Attorney Grossmann was any more of a witness than if he had negotiated the Settlement Agreement with Hopkins’ counsel during the February 2021 telephone conversations, whether the February 2021 telephone conversations between Hopkins and Attorney Grossmann were taped and/or transcribed, and whether these telephone conversations are an alternate source of evidence in the matter. The evidentiary hearing must also establish whether there is an alternate source of evidence for Hopkins’ claim Attorney Grossmann leveraged his position as a county commissioner to exert influence on Hopkins to enter into the Settlement Agreement.
{¶ 26} The Goebels’ first assignment of error is sustained.
{¶ 27} Assignment of Error No. 2:
{¶ 28} THE TRIAL COURT ERRED BY NOT PROHIBITING THE DEPOSITION OF THE GOEBELS’ COUNSEL.
{¶ 29} The Goebels argue that the trial court erred in denying their motion for a protective order to prohibit Hopkins from deposing their counsel, Attorney Grossmann. The Goebels assert that Hopkins failed to establish that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case. See
{¶ 30} Whether Attorney Grossmann is subject to being deposed depends upon whether he is a necessary witness and will ultimately be resolved upon the same basis of whether he should be disqualified. In light of our resolution of the Goebels’ first assignment of error, their second assignment of error is moot and need not be considered. Sweitzer v. 56 Auto Sales, 12th Dist. Madison No. CA2022-12-026, 2023-Ohio-2997, ¶ 9;
{¶ 31} Judgment reversed and remanded.
S. POWELL, P.J., and PIPER, J., concur.
M. POWELL, J.
JUDGE