Sherwood v. Eberhardt , 2019 Ohio 4213 ( 2019 )

[Cite as Sherwood v. Eberhardt, 2019-Ohio-4213.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
MELVA SHERWOOD, et al. C.A. No. 18CA011286
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LINDSEY E. EBERHARDT COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 10JG30837
DECISION AND JOURNAL ENTRY
Dated: October 15, 2019
CARR, Judge.
{¶1} Appellant Lindsey Eberhardt (“Mother”) appeals from the judgment of the Lorain
County Court of Common Pleas, Juvenile Division, granting the motion of Appellees Scott and
Melva Sherwood to disqualify attorney James Barilla as Mother’s counsel. This Court affirms.
I.
{¶2} Mother is the mother of two minor children. While Mother and the father of the
children were not married at the time of the children’s birth, Mother and the father of the
children did subsequently marry. During the course of the proceedings, in late 2012, the father
of the children passed away from a drug overdose. Melva Sherwood is the paternal grandmother
of the children and Scott Sherwood is Melva Sherwood’s husband and step-grandfather to the
children.
{¶3} Unfortunately, this matter, involving custody and visitation issues of Mother’s
children, has a long and contentious litigation history. Even prior to the untimely death of the
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children’s father, the Sherwoods filed a complaint seeking custody of the children. In November
2011, an agreed journal entry was filed which purported to resolve all pending motions and set
forth a visitation schedule for the children with the Sherwoods.
{¶4} Disputes over visitation resumed in late 2014. Both the Sherwoods and Mother
filed motions; the Sherwoods to modify the visitation schedule, and Mother seeking to
discontinue the visitation schedule. In October 2015, the Sherwoods filed a motion for legal
custody of the children, and in November 2015, they filed an ex parte motion for temporary
emergency custody of the children. While the motion for emergency custody was denied, the
trial court did appoint Mr. Barilla as the guardian ad litem (“GAL”) for the children. Mr. Barilla
submitted his initial report in July 2016 and a final report at the end of August 2016.
{¶5} The relationship between Mr. Barilla and the Sherwoods also became contentious.
Following an ex parte motion filed by Mr. Barilla, the Sherwoods’ overnight visitation with the
children was suspended. Thereafter, in July 2016, the Sherwoods filed a motion to remove Mr.
Barilla for allegedly outrageous conduct. The trial court denied this motion.
{¶6} In August 2016, Mr. Barilla filed a motion for interim GAL fees totaling $14,000,
which he argued should be apportioned 90% to the Sherwoods and 10% to Mother. Mr. Barilla
asserted that the majority of the work he performed was at the behest of the Sherwoods and that
his investigation revealed their allegations were largely unsubstantiated. Mr. Barilla also pointed
out that the Sherwoods’ income was substantially greater than Mother’s.
{¶7} At the end of August 2016, the Sherwoods dismissed their pending motion for
legal custody and motion to modify visitation. Thus, the only pending motions were for GAL
fees and Mother’s motion to discontinue visitation. In a September 7, 2016 entry, the trial court
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noted that, due to the dismissal of the Sherwoods’ motions, “by operation of law, Attorney
Barilla is hereby removed as guardian ad litem in the within matter.”
{¶8} Nonetheless, Mr. Barilla did testify at the hearing on Mother’s motion. Mr.
Barilla also filed a final fee statement for GAL fees wherein he asserted that the Sherwoods
should be responsible for all of his $16,670.00 in requested fees.
{¶9} In October 2016, the trial court issued a ruling addressing the outstanding
visitation issue. Mother appealed that ruling. Following a non-evidentiary hearing on GAL fees,
a magistrate ordered the Sherwoods to pay 80% of the fees and Mother to pay 20% of the fees.
The trial court adopted the decision that same day. The Sherwoods and Mother filed objections
to the magistrate’s decision. The trial court overruled the Sherwoods’ objections and concluded
that Mother’s objection was untimely. Both Mother and the Sherwoods appealed.
{¶10} In November 2017, while the appeals were still pending, the Sherwoods, pursuant
to Civ.R. 60(B), sought vacation of the judgment entry allocating GAL fees asserting that the
judgment was procured by a fraud against the Sherwoods and the trial court. The Sherwoods
argued that Mr. Barilla failed to disclose that he and Mother were having a “personal
relationship.” The Sherwoods alleged that “metadata” indicated that several of Mother’s court
filings were authored by Mr. Barilla. The Sherwoods also discovered that Mother and the
children had moved and learned that Mother’s new address was Mr. Barilla’s address. The
Sherwoods maintained that Mr. Barilla had a duty to disclose his relationship with Mother and
failed to do so.
{¶11} Also around that time, Mother filed several pro se motions, including motions to
show cause, a motion to disqualify the magistrate, and a motion to disqualify the Sherwoods’
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attorney. In December 2017, Mr. Barilla filed a notice of appearance as Mother’s “substitute
trial counsel[.]”
{¶12} This Court thereafter remanded the appealed matters to the trial court so that it
could rule on the Sherwoods’ Civ.R. 60(B) motion.
{¶13} In January 2018, the Sherwoods filed a motion to disqualify Mr. Barilla as
Mother’s counsel. Following briefing and a non-evidentiary hearing on the pending motions to
disqualify, the trial court granted the Sherwoods’ motion to disqualify Mr. Barilla.
{¶14} Mother has appealed, raising two assignments of error for our review, which will
be addressed out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISQUALIFIED
ATTORNEY PURSUANT TO RULE 8.4(d) OF THE OHIO RULES OF
PROFESSIONAL CONDUCT WITHOUT HOLDING AN EVIDENTIARY
HEARING.
{¶15} Mother argues in her second assignment of error that the trial court abused its
discretion in disqualifying Mr. Barilla pursuant to Prof.Cond.R. 8.4(d) without holding an
evidentiary hearing.
{¶16} “[T]his Court reviews a trial court’s ruling on a motion to disqualify counsel for
an abuse of discretion.” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8.
An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable
in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶17} “[A] court has inherent authority to supervise members of the bar appearing
before it; this necessarily includes the power to disqualify counsel in specific cases.” In re
E.M.J., 9th Dist. Medina No. 15CA0098-M, 2017-Ohio-1090, ¶ 5, quoting Kala v. Aluminum
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Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 4 (1998). However, “disqualification of a party’s
attorney is a drastic measure [that] courts should hesitate to impose except when absolutely
necessary because it deprives a party of the attorney of their choosing. The trial court should
disqualify counsel if, and only if, the [c]ourt is satisfied that real harm is likely to result from
failing to [disqualify].” (Internal quotations and citations omitted.) Jay-Seicean v. Seicean, 9th
Dist. Lorain No. 17CA011115, 2018-Ohio-891, ¶ 12.
{¶18} “[T]here is no requirement that a trial court must hold an evidentiary hearing
before ruling on every motion for disqualification.” In re E.M.J. at ¶ 18; see also Dayton Bar
Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879, ¶ 15 (“[A] court must hold an evidentiary
hearing and issue findings of fact in ruling on a motion for disqualification of an individual or of
an entire firm when an attorney has left a law firm that represents one party to an action and has
joined a firm that represents an opposing party. * * * But we have never held that a court must
hold an evidentiary hearing before ruling on every motion for disqualification.”).
{¶19} The trial court in its entry concluded that Mr. Barilla’s continued representation of
Mother would result in violations of Prof.Cond.R. 3.7(a) and 8.4(d). In light of Mother’s
assignment of error, this portion of the analysis will not discuss Prof.Cond.R. 3.7.
{¶20} Prof.Cond.R. 8.4(d) provides that “[i]t is professional misconduct for a lawyer to
* * * engage in conduct that is prejudicial to the administration of justice[.]”
{¶21} The trial court also referenced Sup.R. 48(D)(2), (3), and (9) in its decision. “Ohio
courts have generally found that the Rules of Superintendence do not, absent specific mandate,
create substantive rights in individuals or procedural law. * * * Further, the Rules of
Superintendence do not have the same legal standing as the rules of practice and procedure,
which must be presented to the legislature and have the effect of law.” (Internal quotations and
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citations omitted.) In re Z.H., 9th Dist. Summit No. 26844, 2013-Ohio-3904, ¶ 16. Nonetheless,
“Sup.R. 48 provides, at the least, good guidelines for the conduct of a guardian ad litem in
meeting his or her responsibilities in representing the best interest of a child in order to provide
the court with relevant information and an informed recommendation.” In re K.G., 9th Dist.
Wayne No. 10CA0016, 2010-Ohio-4399, ¶ 12.
{¶22} Sup.R. 48(D) provides in relevant part:
(2) A guardian ad litem shall maintain independence, objectivity and fairness as
well as the appearance of fairness in dealings with parties and professionals, both
in and out of the courtroom and shall have no ex parte communications with the
court regarding the merits of the case.
(3) A guardian ad litem is an officer of the court and shall act with respect and
courtesy to the parties at all times.
***
(9) A guardian ad litem shall avoid any actual or apparent conflict of interest
arising from any relationship or activity including, but not limited to, those of
employment or business or from professional or personal contacts with parties or
others involved in the case. A guardian ad litem shall avoid self-dealing or
associations from which the guardian ad litem might benefit, directly or
indirectly, except from compensation for services as a guardian ad litem.
{¶23} From the record, there appears to be no dispute that Mother and Mr. Barilla have
had an ongoing personal relationship and that Mother and the children live with Mr. Barilla. It is
unclear from the record when that relationship began. While Mr. Barilla could have chosen to
clarify those details in his filings in the trial court, he did not do so. Mother argues that Mr.
Barilla’s duties as GAL ceased in September 2016 when the trial court removed him as GAL.
Thus, she seems to argue that any later relationship or representation would not be problematic
as Mr. Barilla was no longer the GAL. While Mr. Barilla may have been officially removed as
the GAL in September 2016, he nonetheless subsequently provided testimony at a hearing
related to his duties as the GAL and was involved in litigation surrounding his GAL fees. Given
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the foregoing, as well as the longstanding litigation between Mother and the Sherwoods, it would
be unreasonable for Mr. Barilla to assume that his involvement in the litigation concerning what
he learned as the GAL would be over as soon as his removal was journalized.
{¶24} Further, the record also evidences that, even prior to Mr. Barilla’s removal as the
GAL, the Sherwoods’ already doubted his objectivity. Mr. Barilla’s subsequent revelation of his
personal relationship with Mother, followed by his representation of her in the same underlying
case surely did nothing to assuage the Sherwoods’ suspicions, or, more importantly, demonstrate
to the public that Mr. Barilla’s service as the GAL had been fair and unbiased. Mother’s
argument ignores how Mr. Barilla’s representation of her, given the particular circumstances of
this case, would appear to the public.
{¶25} Regardless of the details of his personal relationship with Mother, the trial court
properly disqualified Mr. Barilla on the basis that his service as the GAL in this matter
prohibited him from acting as Mother’s attorney in the same action. In reaching its decision, the
trial court recognized that allowing Mr. Barilla to proceed as counsel for Mother would
undermine the public’s confidence in the administration of justice and cause the Sherwoods to
question whether the GAL was independent, objective, and fair. Given that Mr. Barilla played a
pivotal role in investigating the matter and making a recommendation to the trial court regarding
the best interest of the children, the trial court did not abuse its discretion when it determined that
it would be inappropriate for Mr. Barilla to act in a representative capacity when he had
previously served as a neutral arm of the court.
{¶26} Mother’s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISQUALIFIED
ATTORNEY BASED UPON THE WITNESS-ADVOCATE RULE AND
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FAILED TO HOLD AN EVIDENTIARY HEARING TO DETERMINE THE
LIKELIHOOD AND NECESSITY OF ATTORNEY’S TESTIMONY.
{¶27} Mother argues in her first assignment of error that the trial court abused its
discretion when it disqualified Mr. Barilla based upon the witness-advocate rule. However,
given our disposition of Mother’s second assignment of error, this assignment of error has been
rendered moot and we decline to further address it. See Menke, 2015-Ohio-2507, at ¶ 17.
III.
{¶28} Mother’s second assignment of error is overruled. Based upon our resolution of
Mother’s second assignment of error, Mother’s first assignment of error is moot. The judgment
of the Lorain County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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.
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Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
CONCURS.
SCHAFER, P. J.
DISSENTING.
{¶29} The trial court concluded, “[i]f Attorney Barilla continues to represent [Mother],
then his representation will result in violation of Rules 3.7(a) and 8.4(d); thereby mandating his
disqualification and removal as [Mother]’s legal counsel, pursuant to Rule 1.16(a)(1).” In the
judgment entry ruling on the motion to disqualify, the trial court did not clearly delineate
between the basis for disqualifying Mr. Barilla pursuant to Prof.Con.R. 8.4(d) versus the basis
for disqualifying him as attorney pursuant to Prof.Con.R. 3.7(a). The majority upholds the trial
court’s decision to disqualify Mr. Barilla pursuant to Prof.Cond.R. 8.4(d), and does not reach the
issue of Prof.Con.R. 3.7(a). Because I would find that the trial court abused its discretion by
granting the motion to disqualify Mr. Barilla as Mother’s counsel on either basis, I respectfully
dissent.
{¶30} Relying on unsubstantiated allegations made by the Sherwoods regarding the
nature and timing of Mr. Barilla’s involvement with Mother, the trial court appears to have
premised its decision to disqualify Mr. Barilla upon its erroneous finding that he remained as
GAL for the purpose of all proceedings and matters ancillary to the visitation issues between
Mother and the Sherwoods. In its entry, the trial court stated that Mr. Barilla requested to act as
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GAL, “[a]ttorney for [Mother], and boyfriend to [Mother] and surrogate father to the children in
question[.]” The trial court found that Mr. Barilla’s attempt to wear these “multiple hats” in this
matter “would erode the public’s confidence in the administration of justice and quite certainly
the Sherwood’s [sic] confidence that they have dealt with, and are dealing with, a [GAL] in this
matter that has been independent, objective, and fair.” The trial court stated that Mr. Barilla “is
court appointed as [GAL]” (emphasis added) and “has entered into a romantic relationship with
[Mother] including cohabitating with her and the children at issue in this matter[,] even though
his role as [GAL] is ongoing in this court’s opinion.” On this basis, the trial court concluded that
Mr. Barilla’s romantic relationship with Mother and his cohabitation with her and her children
are in clear conflict with Sup.R. 48(D)(2) and Sup.R. 48(D)(9), which govern the conduct of a
GAL. However, this conclusion disregards the fact that Mr. Barilla appeared as counsel
regarding Mother’s show cause motions more than a year after he was removed as GAL,
confuses Mr. Barilla’s present relationship with Mother as evidence of an improper relationship
predating his termination as GAL, and equates that with professional misconduct as an attorney
in the matters presently before the court.
{¶31} In stating that “Mr. Barilla played a pivotal role in investigating the matter and
making a recommendation to the trial court regarding the best interests of the children,” the
majority fails to recognize that Mr. Barilla’s role in the matter in which he served as GAL
terminated upon the Sherwood’s dismissal of their motions for custody and visitation. The trial
court appointed Mr. Barilla as GAL on November 5, 2015—as the result of the Sherwood’s
motion seeking custody—for the purpose of conducting an investigation and submitting a report
to aid the trial court in making a decision with respect to the custody matter. The trial court
never made such a custody decision, however, because the Sherwoods voluntarily dismissed
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their custody action on August 29, 2016, thereby eliminating the basis for the GAL’s
appointment and involvement with Case No. 10JG30837. On September 7, 2016, the trial court
issued the order removing Mr. Barilla as GAL “by operation of law” consequent to the dismissal
of the Sherwoods’ custody claim. Thereafter, the only issue before the trial court was Mother’s
request to terminate the visitation schedule. Thus, once the Sherwoods dismissed their motions
for custody and visitation, the trial court was not in a position to consider the report or utilize it
in making a finding regarding the best interests of the child.
{¶32} Further, the trial court’s finding that Mr. Barilla, subsequent to his removal as
GAL, testified in his role as GAL at the hearing on Mother’s motion to terminate or modify
visitation is belied by the record. Mr. Barilla did testify, but not in his capacity as GAL. The
record reflects that the trial court and the parties understood that Mother was calling Mr. Barilla
as a fact witness and they were aware that Mr. Barilla was not testifying as GAL. Furthermore,
although Mr. Barilla continued to pursue his claim to recover the fees he claimed to have earned
while serving as GAL, his collection efforts do not reestablish his status as GAL.
{¶33} Additionally, it is unclear how the trial court’s concern over the Sherwoods’
suspicions of Mr. Barilla’s objectivity as GAL in the prior proceedings related to his present
ability to represent Mother. Regardless of whether Mr. Barilla made any effort to assure the
Sherwoods that he had been an unbiased GAL, his role as GAL had ended and the Sherwoods’
concerns regarding his objectivity were no longer relevant. The procedural history of this case,
tortuous as it may be, reflects that Mr. Barilla acted as GAL in one matter, and then later as
attorney in a separate matter, though both matters were captioned under the same case number.
The Sherwoods’ speculation that Mr. Barilla’s relationship with Mother preceded his removal as
GAL was not supported by evidence in record. In fact the, the majority acknowledges that “[i]t
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is unclear from the record when th[e] relationship began.” Despite the fact that the court did not
hold an evidentiary hearing, the majority faults Mr. Barilla for failing “to clarify those details in
his filings in the trial court[.]” Nevertheless, there is simply no evidence in the record to support
a finding that Mr. Barilla and Mother commenced and concealed a romantic relationship while
he was serving as GAL, or that they neglected to disclose their relationship once it began.
{¶34} The question before the trial court was whether Mr. Barilla’s representation of
Mother constituted a violation of Prof.Cond.R. 8.4. Although there may have been reasons for
finding Mr. Barilla’s representation of Mother to be ill-advised or distasteful, there is simply no
basis in the record for concluding that his representation was prejudicial to the administration of
justice rising to the level of professional misconduct. Mr. Barilla’s relationship with Mother
does not, in and of itself, constitute a violation of Prof.Cond.R. 8.4(d). The trial court’s finding
that Mr. Barilla’s actions constituted professional misconduct required a twist of logic and
distortion of the facts regarding his role as GAL and the timing of his romantic relationship with
Mother.
{¶35} The disqualification of an attorney is a “‘drastic measure [that] courts should
hesitate to impose except when absolutely necessary[.]’” Puritas Metal Prods., Inc. v. Cole, 9th
Dist. Lorain Nos. 07CA009255, 07CA009257, ad 07CA009259, 2008-Ohio-4653, ¶ 28, quoting
Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 6 (1998). Although a trial court
should disqualify counsel only if the court is satisfied that real harm will likely result if the
representation continues, the trial court’s decision in this matter is not based on such a finding.
Id. In the absence of any evidence to establish an ethical violation or clear breach of duty, I
would conclude that the trial court abused its discretion in finding that Mr. Barilla engaged in
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professional misconduct prejudicial to the administration of justice in violation of Prof.Cond.R.
8.4.
{¶36} Based on the foregoing, I would sustain Mother’s second assignment of error.
Furthermore, I would sustain Mother’s first assignment of error on the basis that the trial court
erred by disqualifying Mr. Barilla without making the required findings or conducting a
complete analysis under Prof.Cond.R. 3.7. Accordingly, I would reverse the trial court’s
decision to remove Mr. Barilla.
APPEARANCES:
BRENT L. ENGLISH, Attorney at Law, for Appellees.
JAMES V. BARILLA, Attorney at Law, for Appellant.