Citibank, N.A. v. Katz , 2013 Ohio 1041 ( 2013 )

[Cite as Citibank, N.A. v. Katz, 2013-Ohio-1041.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98753
CITIBANK, N.A., SUCCESSOR TO CITIBANK (SOUTH
DAKOTA), N.A.
PLAINTIFF-APPELLEE
vs.
HERBERT R. KATZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-765906
BEFORE: Rocco, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: March 21, 2013
-i-
FOR APPELLANT
Herbert R. Katz, pro se
26106 Fairmount Boulevard
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEES
Melissa A. Hager
James Oh
Hilary Michael
Javitch, Block & Rathbone, L.L.C.
1100 Superior Avenue, 19th Floor
Cleveland, Ohio 44114
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Herbert Katz appeals from the trial court’s decision
granting plaintiff-appellee Citibank, N.A., successor to Citibank (South Dakota), N.A.’s
(“Citibank’s”) motion for summary judgment in this action for recovery on a credit card
account. Raising two assignments of error, Katz argues that the trial court erred in
granting Citibank’s motion for summary judgment based the existence of genuine issues
of material fact involving Citibank’s claim and his counterclaims for breach of contract
and conspiracy to defraud. Katz also contends that the trial court abused its discretion in
granting his counsel’s oral motion to withdraw two weeks before the scheduled trial date.
Finding Katz’s assignments of error meritless, we affirm the trial court’s judgment.
{¶2} On July 18, 2011, Citibank filed a complaint against Katz in the Shaker
Heights Municipal Court seeking to collect $9,057.80, the amount Katz allegedly owed
on a credit card account he had maintained with Citibank. Katz filed a pro se Answer
and Counterclaim, denying the material allegations of the complaint and asserting claims
of breach of contract and conspiracy to defraud against Citibank. The demand of Katz’s
counterclaims exceeded the jurisdiction of the Shaker Heights Municipal Court, and the
case was transferred to the Cuyahoga County Court of Common Pleas.
{¶3} Citibank filed a motion for summary judgment on its claim and Katz’s
counterclaims, attaching copies of available account statements and an affidavit from a
representative of Citibank’s servicing company, authenticating the statements. The
affidavit further established that Katz had maintained a credit card account with Citibank,
had used the account to purchase goods and services and/or receive cash advances, and
had failed to make required payments, thereby defaulting on the account. The affidavit
also stated the balance due on the account. Katz opposed Citibank’s motion with his
own affidavit in which he averred that he had paid his Citibank account as agreed until
Citibank “unilaterally changed” the terms of his account agreement as a result of Katz’s
“dispute with a separate entity” and “because of [disputed] information provided by
third-party credit bureau(s).”
{¶4} Determining that there were no genuine issues of material fact and that
Citibank was entitled to judgment as a matter of law, the trial court granted Citibank’s
motion, entering judgment against Katz on Citibank’s claim for recovery on the account
in the amount of $9,057.80, plus interest at the applicable statutory rate from the date of
judgment, and in favor of Citibank on Katz’s counterclaims. Katz appealed the trial
court’s judgment.
{¶5} Katz presents two assignments of error:
Assignment of Error No. 1:
The trial court erred in ruling that there are no genuine issues of material
fact in dispute in this case, and, therefore, granting the motion for summary
judgment of Citibank, N.A.
Assignment of Error No. 2:
The trial court abused its discretion when ruling that counsel for Herbert R.
Katz could withdraw from the case without taking required steps to protect
the interest of Hebert R. Katz, and in violation of the court’s own rules, and
then ruling that Herbert R. Katz was “disingenuous” in objecting to the
court’s action without any basis for such ruling.
{¶6} In his first assignment of error, Katz argues that Citibank failed to present
sufficient evidence establishing its right to recover on Katz’s credit card account, that the
terms of the parties’ agreement were ambiguous, and that Citibank’s confusion regarding
the theory of recovery on which it was proceeding warranted denial of its summary
judgment motion. Katz further contends that his allegations of breach of contract and
conspiracy to defraud created genuine issues of material fact that should have precluded
summary judgment. We disagree.
{¶7} An appeal of a trial court’s ruling granting summary judgment is subject to a
de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
1996-Ohio-336, 671 N.E.2d 241. We accord no deference to the trial court’s decision
and independently review the record to determine whether summary judgment is
appropriate.
{¶8} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶9} The moving party carries an initial burden of setting forth specific facts that
demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden,
summary judgment is not appropriate; if the moving party meets this burden, summary
judgment is appropriate only if the nonmoving party fails to establish the existence of a
genuine issue of material fact. Id. at 293.
{¶10} With respect to Citibank’s claim against Katz, we find that the trial court
properly held that Citibank was entitled to summary judgment based on a theory of
account stated.
{¶11} To recover money due on an account,
an account must show the name of the party charged and contain: (1) a
beginning balance (zero, or a sum that can qualify as an account stated, or
some other provable sum); (2) listed items, or an item, dated and
identifiable by number or otherwise, representing charges, or debits, and
credits; and (3) summarization by means of a running or developing
balance, or an arrangement of beginning balance and items which permits
the calculation of the amount claimed to be due.
Citibank (S.D.), N.A. v. Lesnick, 11th Dist. No. 2005-L-013, 2006-Ohio-1448,
¶ 9, quoting Gabriele v. Reagan, 57 Ohio App.3d 84, 87, 566 N.E.2d 684 (12th
Dist.1988); see also Third Fed. Sav. Bank v. Cox, 8th Dist. No. 96871, 2012-Ohio-477, ¶
14; Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123, 223 N.E.2d 373 (10th
Dist.1967), paragraph three of the syllabus.
{¶12} In support of its motion for summary judgment, Citibank submitted the
affidavit of Terri Ryning, vice president of Citicorp Credit Services, Inc. (USA), a
servicing company for Citibank, along with copies of the available monthly billing
statements for Katz’s account. Ryning’s affidavit states that, by virtue of her position
with Citibank’s servicing company, she shares custodianship of and has access to all of
Citibank’s records related to Katz’s account, and that her affidavit is based on her
personal knowledge and her review of Citibank’s account records. Her affidavit further
states that Katz failed to make required payments and has defaulted on the account, that
$9,057.80 is due on the account, and that the monthly account billing statements attached
to her affidavit are true and accurate copies of the available statements for the account.
The affidavit and account statements submitted by Citibank established the existence of
the credit card account; the purchases, advances, and payments made on the account; the
finance charges applied to the account during various billing cycles; the amounts due on
the account each month; Katz’s
default; and the final balance owed on the account. The evidence submitted by Citibank
was, therefore, sufficient to meet Citibank’s burden of establishing a prima facie case for
money owed on an account. Citibank (South Dakota) N.A. v. Ogunduyile, 2d Dist. No.
21794, 2007-Ohio-5166, ¶ 11-12.
{¶13} Once a plaintiff has met its burden of establishing that there is no genuine
issue of material fact for trial, a defendant may not rest upon mere allegations or denials
in the pleadings but must present evidence of specific facts demonstrating a genuine issue
of material fact for trial. Accordingly, the burden then shifted to Katz to demonstrate the
existence of genuine issues of material fact. Id. at ¶ 12; see also Gabriele, 57 Ohio
App.3d at 87, 566 N.E.2d 684 (“The effect of an account stated is that the account will be
taken as correct until shown by the party to whom it was rendered to be incorrect.”).
Katz did not meet his burden.
{¶14} In response to Citibank’s motion for summary judgment, Katz submitted
only his own affidavit. Katz’s affidavit states, in relevant part:
3. I opened the account which is the subject of this lawsuit in 1992.
4. I paid my account with Plaintiff as agreed for many years.
5. In fact, I paid my account with Plaintiff as agreed until such time as
Plaintiff changed the terms of my account in 2010.
6. Prior to Plaintiff changing the terms of my account in 2010, I never
missed a payment to Plaintiff. Thus, Plaintiff’s decision to change
the terms of my account was not in any way based upon Plaintiff’s
direct dealings with me.
7. Plaintiff changed the terms of my account due to my financial
dealings with a separate entity, and, thus, because of information
provided by third-party credit bureau(s).
8. My underlying dispute with a separate entity, which formed the basis
for Plaintiff’s decision to change the terms of my account with
Plaintiff, is now the subject of a lawsuit that has been certified as a
class action * * * .
9. I informed Plaintiff that the information contained in my credit
report was in dispute, and I informed Plaintiff that I had an account
in dispute with a separate financial entity. * * *
12. Despite my reporting of this dispute to Plaintiff and despite the fact
that I was a loyal customer of Plaintiff with an account in good
standing for many years, Plaintiff unilaterally changed the terms of
our agreement — including with respect to credit line and interest
rate — which violated our contract with one another.
13. This action by Plaintiff caused me great financial, personal and
emotional harm and resulted in me losing my business. * * *
{¶15} The vague, conclusory allegations of Katz’s affidavit fail to create a genuine
issue of material fact. Significantly, Katz does not dispute, in his affidavit (or otherwise)
that he is liable for the charges made on the account at issue or that he has failed to make
required payments due on the account. Nor does he dispute the amount owed on the
account. Katz nonetheless argues that trial court erred in entering summary judgment
because, based on his affidavit, the terms of his contract with Citibank are “ambiguous,”
and a “dispute over the applicability and meaning of contract terms gives rise to a
‘genuine issue of fact’” that cannot be resolved on summary judgment. Katz, however,
fails to identify any specific term of the account agreement that he contends is
“ambiguous.” Rather, Katz’s affidavit simply repeats the vague, unsupported allegations
of his counterclaims, i.e., that Citibank unilaterally changed certain terms of the account
agreement. As such, it does not demonstrate the existence of a genuine issue of material
fact, and the trial court properly entered summary judgment in favor of Citibank on its
claim for recovery on the credit card account. See, e.g., Ogunduyile, 2007-Ohio-5166;
Discover Bank c/o DFS Servs., LLC, v. Lammers, 2d Dist. No. 08-CA-85,
2009-Ohio-3516; Discover Bank v. Paoletta, 8th Dist. No. 95223, 2010-Ohio-6031, ¶
11-15.
{¶16} We reach a similar conclusion as to Katz’s counterclaims. Katz’s
counterclaims are based on allegations that Citibank “materially breached the terms of the
contract between [Citibank] and [Katz]” and “engaged in a conspiracy to defraud [Katz]”
by modifying the terms of the agreement after Katz became involved in a dispute with an
unidentified “third party.” Katz alleges that, “[t]hrough its conspiratorial relationships,”
Citibank “became aware” of Katz’s dispute with the “third party” and used that dispute
“as an excuse” to change the terms of Katz’s account agreement “to disadvantage” Katz.
{¶17} To establish a claim for breach of contract, Katz must show: (1) the
existence of a contract, (2) his performance under the contract, (3) a material breach by
Citibank, and (4) resulting damages. Kwikcolor Sand v. Fairmount Minerals Ltd., 8th
Dist. No. 95223, 2011-Ohio-6646, ¶ 14, citing Povroznik v. Mowinski Builders, Inc., 8th
Dist. No. 93225, 2010-Ohio-1669, ¶ 13. The elements of fraud are: (1) a representation
(or concealment of a fact when there is a duty to disclose), (2) that is material to the
transaction at hand, (3) made falsely, with knowledge of its falsity or with such utter
disregard and recklessness as to whether it is true or false that knowledge may be
inferred, and (4) with intent to mislead another into relying upon it, (5) justifiable reliance
on the representation or concealment, and (6) resulting injury proximately caused by the
reliance. Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984). A
civil conspiracy to defraud further requires: (1) a malicious combination, (2) involving
two or more persons, (3) causing injury to person or property, and (4) the existence of an
unlawful act independent from the conspiracy itself. Urbanek v. All State Home Mtge.,
178 Ohio App. 3d 493, 500, 2008-Ohio-4871, 898 N.E.2d 1015, ¶ 19 (8th Dist.), citing
Universal Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio App.3d 284, 292,
629 N.E.2d 28(8th Dist.1993); see also Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 700 N.E.2d
859 (1998).
{¶18} Nowhere in his affidavit (or elsewhere) does Katz identify, or present any
evidence regarding, the specific terms of any contract with Citibank he contends was
breached, how he contends Citibank materially breached the contract, or any resulting
damages. In his affidavit, Katz avers only that Citibank “changed the terms of my
account in 2010”; he does not indicate specifically what terms were changed, how they
were changed, or how this resulted in damages to Katz. Without such facts, Katz
cannot establish a claim for breach of contract.
{¶19} Likewise, with respect to his claim for conspiracy to defraud, Katz has not
even identified — much less produced any evidence demonstrating — the time, place, or
content of any false representation, who made the misrepresentation, the fact(s)
misrepresented, or any resulting injury. Nor has he identified the “third party” allegedly
involved in the dispute with Katz, the nature of the dispute that Katz contends led
Citibank to unilaterally change the terms of his account agreement, any of Citibank’s
alleged co-conspirators, or any facts suggesting malice, intent to defraud, or justifiable
reliance — essential elements of Katz’s counterclaim for conspiracy to defraud.
{¶20} Katz argues that because the trial court previously denied Citibank’s motion
to dismiss Katz’s counterclaim with prejudice, or in the alternative, for a more definite
statement (which was based in part on Katz’s failure to plead his claims with sufficient
particularity), that ruling “is now the law of the case,” and the averments of his affidavit
that repeat the allegations of his counterclaims are, therefore, sufficient to survive
summary judgment on his counterclaims. However, different standards are applied in
ruling on a motion to dismiss and ruling on a motion for summary judgment. A motion
to dismiss tests the sufficiency of the pleadings. See, e.g., Volbers-Klarich v.
Middletown Mgt., 125 Ohio St. 3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11; Barnes v.
Tolliver, 100 Ohio App.3d 391, 394, 654 N.E.2d 152 (8th Dist.1995). In ruling on a
motion to dismiss, all material factual allegations of a claim are accepted as true and all
reasonable inferences from those facts drawn in favor of the nonmoving party. A
motion for summary judgment, on the other hand, tests the sufficiency of the evidence
supporting the pleadings. Civ.R. 56(C), (E). Accordingly, a party opposing a motion
for summary judgment must specify the facts demonstrating a genuine issue of material
fact and may not rest on mere allegations or denials in the pleadings. Dresher 75 Ohio
St.3d at 293, 662 N.E.2d 264. The differences between a motion to dismiss and motion
for summary judgment “are distinct and preclude the application of the law of the case
doctrine * * *.” Creaturo v. Duko, 7th Dist. No. 04 CO 1, 2005-Ohio-1342, ¶ 27.
{¶21} Further, the trial court’s decision to deny Citibank’s motion to dismiss was
an interlocutory order. See id. at ¶ 28; Our Lady of Angels Apartments v. Cuyahoga Cty.
Bd. of Revision, 8th Dist. No. 66733, 1994 Ohio App. LEXIS 5672, *6-7 (Dec. 15, 1994).
As such, the trial court could have reconsidered its prior decision. Creaturo,
2005-Ohio-1342 at ¶ 25, 28; Schmidt v. Bankers Title & Escrow Agency, Inc., 8th Dist.
No. 88847, 2007-Ohio-3924,
¶ 7. The trial court’s prior ruling on Citibank’s motion to dismiss, therefore, “does not
have any preclusive effect” in ruling on Citibank’s motion for summary judgment.
Creaturo, 2005-Ohio-1342 at ¶ 28.
{¶22} Because Katz continued, in his affidavit, to simply make vague, general
allegations of wrongdoing and failed to present any evidence of specific facts supporting
essential elements of his counterclaims for breach of contract or conspiracy to defraud,
the trial court properly granted summary judgment to Citibank on both its claim and
Katz’s counterclaims. Katz’s first assignment of error is overruled.
{¶23} In his second assignment of error, Katz contends that the trial court abused
its discretion in granting his counsel’s oral motion to withdraw, two weeks before the
scheduled trial date. Once again, we disagree.
{¶24} The decision whether to grant or deny a motion to withdraw rests within the
sound discretion of the trial court. Bennett v. Bennett, 86 Ohio App.3d 343, 346, 620
N.E.2d 1023 (8th Dist.1993). Accordingly, an appellate court will not reverse a trial
court’s decision to allow counsel to withdraw from a pending case absent an abuse of
discretion. Id. An abuse of discretion connotes more than an error of law or judgment;
it implies that the trial court’s decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Upon review
of the record, we find no abuse of discretion by the trial court in granting Katz’s counsel’s
motion to withdraw from his representation of Katz.
{¶25} The record shows that Katz’s counsel first appeared in the case after
Citibank filed its motion for summary judgment. The record further reflects that during
the final pretrial conference, Katz’s counsel made an oral motion to withdraw, which was
unopposed, and that the trial court granted the motion. There is nothing in the record
that indicates the reason Katz’s counsel sought to withdraw his representation. Nor is
there any indication in the record that Katz objected to his counsel’s termination of the
representation. The journal entry memorializing the trial court’s ruling provides, in
relevant part:
Defendant’s counsel’s oral motion to withdraw as counsel is unopposed and
granted for good cause shown. Defendant advised of the ramifications of
proceeding without counsel. If defendant retains new counsel, counsel is
to file a notice of appearance. Furthermore, should defendant retain new
counsel, the court will entertain a motion to continue trial. [Trial counsel]
is to deliver the client’s file to client or client’s new counsel as soon as
practicable. * * *
{¶26} Four days later, Katz filed a motion for continuance, requesting a 60-day
continuance of the trial date due to the withdrawal of his counsel. Katz argued that he
had “anticipated that his attorney would be representing him in any trial of this matter and
was startled and alarmed to find out that a ruling dismissing his attorney from this matter
was issued with no written briefing or notice at such a late date.” Although finding
Katz’s arguments to be “disingenuous,” the trial court, nevertheless, granted a 30-day
continuance of the trial date “to ensure [Katz was] not prejudiced.” Three days before
the rescheduled trial date, the trial court granted Citibank’s motion for summary
judgment.
{¶27} Citing this court’s decision in Bennett, Katz argues that the trial court
abused it discretion in allowing his counsel to withdraw without complying with the
applicable ethics rules and Rule 10(B) of the Local Rules of the Cuyahoga County Court
of Common Pleas (“Local Rule 10(B)”) governing withdrawal of counsel. Katz argues
that because no written motion to withdraw was filed and no hearing was scheduled on
the motion, he was not “afford[ed] the client protections required by [Local Rule 10(B)]”
and that the trial court’s “last minute determination left Katz in a lurch without adequate
(or any) representation at a critical juncture in the case.”
{¶28} Rule 10(B) of the Local Rules of the Cuyahoga County Court of Common
Pleas states:
It is contemplated that counsel who has entered an appearance in the case
shall remain in the case until it is concluded.
However, upon written motion for leave to withdraw from the action and
for good cause shown, the Court may permit counsel to withdraw. Prior to
or contemporaneously with the filing of a motion for leave to withdraw as
counsel, counsel shall serve the client with a copy of the motion by certified
mail, return receipt requested. Additionally, counsel shall include in the
motion a certificate of service that states the date and manner in which the
client and all other counsel of record have been notified.
The Court in which a motion for leave to withdraw as counsel is filed may,
in its discretion, set a hearing date on the motion and may require the
attendance of all counsel and clients. If the Court requires the attendance of
clients at the hearing, it shall be the responsibility of counsel to inform the
client of the hearing date and time by certified mail, return receipt
requested.
The provisions of DR 2-110, EC 2-29 and EC 2-31 of the Code of
Professional Responsibility are incorporated herein.
{¶29} “‘[C]ourts are to be given latitude in following their own local rules; the
enforcement of rules of court is held to be within the sound discretion of the court.’” In
re T.W., 8th Dist. Nos. 88360 and 88424, 2007-Ohio-1441, ¶ 38, quoting Ciokajlo v.
Ciokajlo, 1st Dist. No. C-810158, 1982 Ohio App. LEXIS 12823, *4 (July 28, 1982); see
also Dodson v. Maines, 6th Dist. No. S-11-012, 2012-Ohio-2548, ¶ 47 (“[L]ocal rules are
of the court’s own making, procedural in nature, and not substantive principles of law.”)
(Citations omitted.) So long as a trial court’s failure to comply with or enforce its local
rules does not affect due process or other constitutional rights, “there is no error when, in
its sound discretion, the court decides that the peculiar circumstances of a case require
deviation from its own rules.” Id. (Citations omitted.); see also Wallner v. Thorne, 189
Ohio App.3d 161, 2010-Ohio-2146, 937 N.E.2d 1047, ¶ 21 (9th Dist.). Local rules
regarding attorney withdrawal are “administrative in nature — designed to facilitate case
management. * * * They do not implicate constitutional rights.” Smith v. Conley, 109
Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 8-9. Accordingly, enforcement of
the particular requirements of Local Rule 10(B) was within the discretion of the trial
court.
{¶30} However, a trial court does have a duty to ensure that the mandates of the
Rules of Professional Conduct 1 are followed before allowing counsel to withdraw.
Wilson v. Wilson, 154 Ohio App.3d 454, 2003-Ohio -474, 797 N.E.2d 990, ¶ 5 (3d Dist.)
(discussing former DR-2110 under the Code of Professional Responsibility). Failure to
do so is reversible error. Id., citing Bennett, 86 Ohio App.3d 343, 620 N.E.2d 1023; N.
Eagle, Inc. v. Kosas, 8th Dist. No. 92358, 2009-Ohio-4042, ¶ 32.
{¶31} Prof.Cond.R. 1.16(d) of the Rules of Professional Conduct addresses the
steps to be taken upon termination of representation. The purpose of Rule 1.16(d) is to
ensure that a client will not be prejudiced as a result of the withdrawal of counsel. Rule
1.16(d) provides in relevant part:
As part of the termination of representation, a lawyer shall take steps, to the
extent reasonably practicable, to protect a client’s interest. The steps
include giving due notice to the client, allowing reasonable time for
employment of other counsel, delivering to the client all papers and
property to which the client is entitled, and complying with applicable laws
and rules. * * *
Rule 1.16(c) further requires a lawyer seeking to withdraw from representation to obtain
permission for withdrawal from employment where required “by the rules of a tribunal.”
{¶32} This case is distinguishable from Bennett, 86 Ohio App.3d 343, 620 N.E.2d
1023. In Bennett, the trial court permitted the defendant’s counsel to withdraw
immediately prior to a hearing on two motions to show cause filed by the plaintiff, then
ordered the defendant to proceed with the hearing without the benefit of counsel.
DR 2-110, EC 2-29, and EC 2-31 of the Code of Professional Responsibility, referenced in
1
Local Rule 10(B), were replaced by the Ohio Rules of Professional Conduct on February 1, 2007.
Bennett, 86 Ohio App.3d at 347, 620 N.E.2d 1023. In Bennett, the defendant “stated
specifically that he was not familiar with legal procedures and proceedings” and no
“inquiry [was] made by the trial court into whether appellant desired new counsel or was
insulated from foreseeable prejudice.” Id. This court determined that, under the
circumstances, the defendant was prejudiced by the withdrawal and that the trial court had
therefore abused its discretion in permitting counsel to withdraw. Id.{¶33} In this case, the record reflects that the trial court took appropriate steps to
ensure that the mandates of Prof.Cond.R. 1.16(d) were followed and that Katz would not
be prejudiced by his counsel’s withdrawal. Counsel’s motion to withdraw was granted at
the final pretrial conference, after Katz had submitted his brief in opposition to Citibank’s
motion for summary judgment. 2 The trial court advised Katz of the ramifications of
proceeding without counsel, ordered that all client files be promptly transferred to Katz
or his new counsel, and indicated that it would entertain a motion for continuance of the
trial date if Katz obtained new counsel. There is no indication in the record that Katz
had any objection to his counsel’s withdrawal.
{¶34} To further ensure Katz was not prejudiced by his attorney’s withdrawal,
upon Katz’s request, the trial court granted a 30-day continuance of the trial date,
2
Katz asserts that he filed his “Pro Se Brief in Opposition to Plaintiff’s
Motion for Summary Judgment” after the trial court granted his counsel’s motion to
withdraw. However, the record reflects that his pro se opposition was filed on May
24, 2012, a week before the trial court granted counsel’s motion to withdraw.
providing Katz sufficient time to locate substitute trial counsel. The trial court thereafter
granted Citibank’s motion for summary judgment, obviating the need for trial.
{¶35} We find no support in the record for Katz’s assertion that he was prejudiced
as a result of his counsel’s withdrawal. Accordingly, the trial court did not abuse its
discretion in granting Katz’s counsel’s motion to withdraw. Katz’s second assignment
of error is overruled.
{¶36} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
____________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR