In re Guardianship of Bakhtiar , 2021 Ohio 2629 ( 2021 )

[Cite as In re Guardianship of Bakhtiar, 2021-Ohio-2629.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: GUARDIANSHIP OF FOUROUGH C.A. No. 20CA011680
BAKHTIAR
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 2013 GI 00040
DECISION AND JOURNAL ENTRY
Dated: August 2, 2021
SUTTON, Judge.
{¶1} Appellant, Khashayar Saghafi, one of Fourough Bakhtiar’s sons, appeals the
judgment of the Lorain County Court of Common Pleas, Probate Division. For the reasons that
follow, this Court affirms.
I.
Relevant Background
{¶2} This appeal arises from an ongoing family dispute regarding the Guardianship of
Fourough Bakhtiar (“the Guardianship”). On January 31, 2019, Medhi Saghafi, Mr. Saghafi’s late
father and Fourough Bakhtiar’s ex-husband, filed Case No. CV 19 910437 in the Cuyahoga County
Court of Common Pleas (“the Lawsuit”) against multiple parties, including Attorney Zachary
Simonoff, Fourough Bakhtiar’s guardian, Eric Zagrans, Attorney Simonoff’s counsel, and Stephen
Wolf, Fourough Bakhtiar’s counsel. In a claim pursuant to Ohio’s Racketeer Influenced and
Corrupt Organizations (“RICO”) statute, Attorneys Simonoff, Zagrans, and Wolf were alleged to
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have, among other things, “used the Guardianship to control and deprive [Medhi Saghafi] of [his]
personal property through ‘racketeering activity’ under the ‘Organized Crime Control Act of
1970[.]”. Further, Counts 1 and 2 sought declaratory judgment “to invalidate” the Guardianship
and the divorce obtained by Fourough Bakhtiar.
{¶3} In response to the Lawsuit, Attorney Simonoff filed a motion to engage counsel to
defend against these claims at the Guardianship’s expense in the Lorain County Court of Common
Pleas, Probate Division, which has jurisdiction over the Guardianship. Attorney Simonoff
explained:
The reason for this Motion is that each Defendant is a professional who provided
legal, accounting or other professional services to the Guardianship and that every
allegation relates to the Guardianship and the proceedings around it. Most telling
is that Plaintiff Medhi Saghafi asks for a declaratory judgment seeking to void the
Guardianship, among other requested relief.
***
This Lawsuit is clearly an attempt to harass and punish the [g]uardian and every
professional who has acted for the benefit of the Guardianship.
***
{¶4} On February 22, 2019, the trial court authorized Attorney Simonoff to retain
counsel at the Guardianship’s expense. In so doing, the trial court reasoned the Lawsuit was a
collateral attack on its prior decisions with regard to the Guardianship. Specifically, the trial court
found as follows:
The [c]ourt finds that all the allegations in the Lawsuit stem from the Guardianship
and decisions by this [c]ourt, the Domestic Relations Court for Cuyahoga County,
and the Courts of [Appeal] for the Eighth and Ninth Appellate Districts.
The [c]ourt further finds that the Defendants in the Lawsuit are all persons who
provided some professional services to the Guardianship and that such services
were approved by this [c]ourt.
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The [c]ourt further finds that the claim for declaratory judgment in the Lawsuit,
seeking among other things to void the Guardianship, makes the action undeniably
an attack on the authority of this [c]ourt[.]
[T]he [g]uardian is hereby authorized to engage counsel to defend the Lawsuit and
is permitted to extend the defense by his counsel to all Defendants who choose to
be jointly represented by the attorney selected by the [g]uardian.
[T]he [g]uardian is permitted to hire such attorney at the Guardianship’s expense at
the market hourly rate for complex civil litigation in Cuyahoga County, Ohio.
{¶5} On August 21, 2019, Mr. Saghafi filed a motion to have Attorney Simonoff
removed as guardian. As a basis for this motion, Mr. Saghafi relied upon the RICO allegations in
the Lawsuit. The trial court, in a detailed decision on October 18, 2019, denied Mr. Saghafi’s
motion to remove Attorney Simonoff as guardian, stating, in relevant part:
***
To say this is the most litigated guardianship (or any case) in Lorain County Probate
Court history would be an understatement. The [c]ourt has seen a recent flurry of
contentious motions, objections, and responses filed. The docket is 148 pages long
incorporating approximately 1,200 docket entries and over 6,000 pages of
documents. Approximately 100 journal entries have been signed by this [c]ourt in
the past 6 [plus] years. As a result of this guardianship and the divorce proceeding,
there have been over 30 separate cases filed in Ohio and U.S. Courts[.]
***
Despite the extremely contentious nature of these cases, nothing in any of these
voluminous filings provide the [c]ourt with any reason to remove [Attorney]
Simonoff.
***
Zachary Simonoff has faithfully and completely fulfilled his duties as guardian
pursuant to R.C. 2111.02(C) [and] Superintendence Rules 66.01-66.09[,] and has
upheld the Oath of Guardian that was given to him on July 25, 2014. He has obeyed
all orders and rules of this Court pertaining to guardianships. There is absolutely
no reason to remove [Attorney] Simonoff as [g]uardian in this case.
***
{¶6} On November 8, 2019, just three weeks after the trial court denied Mr. Saghafi’s
prior motion to have Attorney Simonoff removed as guardian, Mr. Saghafi filed three motions that
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are the subject of the present appeal, including: (1) a motion to remove Zachary Simonoff as
guardian and disqualify Eric Zagrans as Counsel for Zachary Simonoff and Stephen Wolf as
counsel for Fourough Bakhtiar for personal conflict of interest; (2) a motion to compel the guardian
to disclose the financial institutions at which the Guardianship funds have been deposited; and (3)
a motion for the guardian to show cause and justify payments for legal fees in the amount of
$127,730.17 to Tucker Ellis.
{¶7} In a twenty-nine-page Judgment Entry, journalized on August 28, 2020, the trial
court presented an extensive and detailed history of this contentious litigation. Further, in denying
Mr. Saghafi’s motions, the trial court stated:
[T]here is no cause to remove Attorney Simonoff as the [g]uardian in this case. The
[m]otions to remove [Attorney] Simonoff are repetitive and only serve to further
drain the assets of [Fourough Bakhtiar] by driving up the litigation costs.
On the Motion to Disqualify Eric Zagrans as Counsel for Zachary Simonoff and
Stephen Wolf as Counsel for Fourough Bakhtiar for Personal Conflict of Interest
[Mr. Saghafi] did not cite to any legal authority allowing the [c]ourt to remove
counsel for a party. There has been no showing in this case that Attorneys Zagrans
and Wolf cannot adequately represent their respective clients. * * *
[The] Motion to Compel the Guardian to Disclose the Financial Institutions at
Which the Guardianship Funds have been Deposited did not cite to any legal
authority allowing [] [Mr. Saghafi] to [obtain] the information sought in his Motion.
The [c]ourt is also aware that Mehdi [Saghafi] had previously received
guardianship bank records through a subpoena in the Cuyahoga County case in
October, 2019. Mehdi [Saghafi] promptly filed those documents in the public filing
system of the Cuyahoga County Clerk of Courts, which is available to the public
online. [Attorney Simonoff] moved to protect the confidential guardianship
records. On December 31, 2019, Judge Miday agreed and had the records filed
under seal. There is no legal reason or otherwise that [Mr. Saghafi] should have
access to guardianship bank records. * * *
[The Motion to Show Cause and Justify Payments for Legal Fees] did not cite to
any legal authority allowing [] [Mr. Saghafi] to request [Attorney] Simonoff to
further “Show Cause and Justify” the legal fees he incurred as guardian in his
defense of the Cuyahoga County case. This is just another case of the duly
appointed guardian having to defend an action which is “bleeding the guardianship
dry.”
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{¶8} Mr. Saghafi now appeals, raising a sole assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE PROBATE COURT ABUSED ITS DISCRETION BY DENYING
MULTIPLE MOTIONS FILED BY [MR. SAGHAFI], THE SON AND NEXT
OF KIN OF [FOUROUGH BAKHTIAR] WHO IS SUBJECT TO THE
GUARDIANSHIP OF FOUROUGH BAKHTIAR INCLUDING THE
FOLLOWING: (1) MOTION TO REMOVE ZACHARY SIMONOFF AS
GUARDIAN; (2) MOTIONS TO DISQUALIFY ERIC ZAGRANS AS
COUNSEL FOR ZACHARY SIMONOFF AND STEPHEN WOLF AS
COUNSEL FOR FOUROUGH BAKHTIAR FOR PERSONAL CONFLICTS
OF INTEREST; (3) MOTION TO COMPEL THE GUARDIAN TO
DISCLOSE THE FINANCIAL INSTITUTIONS AT WHICH THE
GUARDIANSHIP FUNDS HAVE BEEN DEPOSITED; AND (4) MOTION
TO SHOW CAUSE AND JUSTIFY PAYMENTS FOR LEGAL FEES IN
THE AMOUNT OF $127,730.00 TO THE LAW FIRM OF TUCKER ELLIS
OF GUARDIANSHIP FUNDS DEPOSITED, AND TO SHOW CAUSE FOR
PAYMENT WITH GUARDIAN FUNDS OF FEES TO TUCKER ELLIS,
HEREAFTER COLLECTIVELY REFERRED TO AS “APPELLANT
MOTIONS[.]”
{¶9} In his sole assignment of error, Mr. Saghafi contends the trial court abused its
discretion in denying the motion for removal of Attorneys Simonoff, Zagrans, and Wolf because
Attorneys Simonoff, Zagrans, and Wolf were using guardianship funds for their own benefit in
defending the Lawsuit, and the trial court did not address the issue of conflict. Mr. Saghafi also
argues he is entitled to the guardianship’s bank statements as next of kin. Finally, as to the issue
of justifying payments to Tucker Ellis, Mr. Saghafi argues Attorney Simonoff and Tucker Ellis
should be compelled to appear and account for the payment of significant legal fees. We disagree.
Standard of Review
{¶10} We review the trial court’s order denying Mr. Saghafi’s motions for an abuse of
discretion. An abuse of discretion implies that the trial court’s attitude is unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “When applying the
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abuse-of-discretion standard, an appellate court may not substitute its judgment for that of the trial
court.” McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App.3d 441, 443 (9th Dist.2001),
citing Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
Motion to Remove Attorney Simonoff and Disqualify
Attorneys Zagrans and Wolf
{¶11} In his motion to remove Attorney Simonoff as guardian and disqualify Attorneys
Zagrans and Wolf for personal conflicts of interest, Mr. Saghafi contends “it would be impossible
to conclude that [the probate court] would have permitted payment of the legal fees * * * in the
amount of $127,730.17 [] to Tucker Ellis, the law firm engaged to represent the RICO Defendants,
[Attorneys] Simonoff, Zagrans, and Wolf,” because the legal fees did not benefit the Guardianship.
{¶12} R.C. 2111.50(A)(1) states:
[a]t all times, the probate court is the superior guardian of wards who are subject to
its jurisdiction, and all guardians who are subject to the jurisdiction of the court
shall obey all orders of the court that concern their wards or guardianships.
Further, the specific statutory authorization for removal of a guardian is set forth in R.C. 2109.24,
stating:
The court may remove any fiduciary, after giving the fiduciary not less than ten
days’ notice, for habitual drunkenness, neglect of duty, incompetency, or fraudulent
conduct, because the interest of the property, testamentary trust, or estate that the
fiduciary is responsible for administering demands it, or for any other cause
authorized by law.
{¶13} Having reviewed the record, the trial court did not abuse its discretion in denying
Mr. Saghafi’s motion to remove Attorney Simonoff for the payment of legal fees to Tucker Ellis.
Indeed, the record clearly indicates Attorney Simonoff sought permission from the trial court to
utilize guardianship funds in defense of the Lawsuit, and the trial court approved Attorney
Simonoff’s request. Hence, in utilizing these funds, Attorney Simonoff merely obeyed a valid
order of the superior guardian.
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{¶14} Moreover, in this case, “[t]he prerequisite to disqualifying an attorney due to a
conflict of interest is the existence of a prior or current attorney-client relationship between the
party moving for disqualification and the attorney being sought for disqualification.” Skycasters
L.L.C. v. J.W. Didado Elec. Inc., 9th Dist. Summit No. 23901, 2008-Ohio-4849, ¶ 18, citing
Witschey v. Medina County Bd. of Comm’rs, 9th Dist. Medina No. 06CA0009-M, 2006-Ohio-
5135, ¶ 32. Indeed, “a stranger to an attorney-client relationship lacks standing to complain of a
conflict of interest in that relationship[.]” State ex rel. Parisi v. Dayton Bar Ass’n Certified
Grievance Comm., 159 Ohio St.3d 211, 214, 2019-Ohio-5157, ¶ 11. Here, however, the record
does not indicate Mr. Saghafi ever had an attorney-client relationship with Attorneys Zagrans or
Wolf. Mr. Saghafi is a “stranger” to the attorney-client relationship with Attorneys Zagrans and
Wolf and lacks standing to seek their disqualification due to an alleged conflict of interest.
{¶15} Thus, based upon this record, the trial court did not abuse its discretion in denying
Mr. Saghafi’s motion to remove Attorney Simonoff and disqualify Attorneys Zagrans and Wolf.
Motion to Compel the Guardian to Disclose the Financial Institutions at which the
Guardianship Funds have been Deposited
{¶16} In his motion to compel, Mr. Saghafi urged the trial court to order Attorney
Simonoff to disclose: (1) “the names and addresses of each and every financial institution, bank,
savings and loan, investment firm or brokerage facility where [g]uardianship funds have been
deposited, held and/or invested[;]” (2) a copy of all statements commencing January 1, 2018,
through November 5, 2019; and (3) a sworn affidavit from Attorney Simonoff explaining his
reasons for removing and transferring guardianship funds from the Fifth Third bank account. Mr.
Saghafi, however, failed to support this motion with any legal authority requiring the trial court to
order Attorney Simonoff to disclose confidential financial information and documentation solely
because Mr. Saghafi is one of Fourough Bakhtiar’s “next of kin.”
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{¶17} Additionally, although the trial court granted Mr. Saghafi’s motion to intervene, the
order was very limited in scope, stating:
Motion to Intervene is granted to allow [Mr. Saghafi] to intervene to visit Fourough
[Bakhtiar] under the current visitation order and to obtain documents in this case
that are not the confidential financial and medical records of Fourough [Bakhtiar].
As such, the trial court made clear that Mr. Saghafi is not entitled to obtain the confidential
financial documents of Fourough Bakhtiar.
{¶18} Thus, based upon this record, the trial court did not abuse its discretion in denying
Mr. Saghafi’s motion to compel.
Motion for the Guardian to Show Cause and Justify Payments for Legal Fees in the
Amount of $127,730.17 to Tucker Ellis
{¶19} In his motion to show cause and justify payments for legal fees in the amount of
$127,730.17 to Tucker Ellis, Mr. Saghafi again ignored the fact that Attorney Simonoff acted in
accordance with the trial court’s February 22, 2019 Order, which indisputably authorized Attorney
Simonoff to use guardianship funds to defend the Lawsuit. Attorney Simonoff, therefore, should
not be made to “show cause” or “justify” any of these payments to Mr. Saghafi. Mr. Saghafi’s
motion defies logic and has no basis in law.
{¶20} Thus, based upon this record, the trial court did not abuse its discretion in denying
Mr. Saghafi’s motion to show cause.
III.
{¶21} For the reasons stated above, Mr. Saghafi’s sole assignment of error is overruled.
The Judgment of the Lorain County Court of Common Pleas, Probate Division, is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
CARR, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
CHARLES V. LONGO and GREGORY B. GIPSON, Attorneys at Law, for Appellant.
ERIC H. ZAGRANS, Attorney at Law, for Appellee.