Keybank National Ass'n v. Mazer Corp.

[Cite as In re Disqualification of McGee, 127 Ohio St. 3d 1230, 2009-Ohio-7203.]
IN RE DISQUALIFICATION OF MCGEE.
KEYBANK NATIONAL ASSOCIATION v. MAZER CORPORATION ET AL.
[Cite as In re Disqualification of McGee,
127 Ohio St. 3d 1230, 2009-Ohio-7203.]
Judges — Affidavit of disqualification — Disqualification denied.
(No. 09-AP-078 — Decided August 29, 2009.)
ON AFFIDAVIT OF DISQUALIFICATION in Montgomery County Court of Common
Pleas Case No. 2009-CV-00124.
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MOYER, C.J.
{¶ 1} Ronald J. Kozar, counsel for defendants Gary Adams, Mark
Hoffmann, and Timothy Ludwig, has filed an affidavit with the clerk of this court
under R.C. 2701.03 seeking to disqualify Judge Frances E. McGee from further
proceedings in case No. 2009-CV-00124 in the Court of Common Pleas of
Montgomery County.
{¶ 2} Kozar alleges that Judge McGee engaged in at least four improper
ex parte communications with Arthur R. Hollencamp, the attorney for Chikol
Equities. Chikol is the court-appointed receiver of the Mazer Corporation. Kozar
claims that three of the ex parte contacts are recounted in Hollencamp’s fee
statements for the services that he rendered to the receiver. Kozar contends that
these bills suggest that his clients’ rights to the assets at issue were adjudicated as
a result of conversations between Judge McGee and Hollencamp. The fourth
alleged ex parte contact occurred during a contempt hearing in February 2009 at
which Kozar’s clients failed to appear. Kozar maintains that his clients did not
receive proper notice of the hearing and that the lack of service resulted in the
February hearing improperly being conducted ex parte.
SUPREME COURT OF OHIO
{¶ 3} Judge McGee has responded in writing to the concerns raised in
the affidavit. She specifically denies engaging in any improper ex parte
communication with Hollencamp. Rather, she maintains that her conversations
with Hollencamp pertained to procedural and scheduling matters.
{¶ 4} Attorney Hollencamp has also filed a response. He confirms that
his discussions with Judge McGee involved primarily procedural and scheduling
matters. Moreover, he denies that these conversations involved any discussion
regarding the defendants’ rights to the assets at issue. According to Hollencamp,
the subject of his conversations with the judge instead concerned his efforts to
enforce the provisions of the order appointing the receiver, and not who is entitled
to the assets.
{¶ 5} For the following reasons, I find no basis for ordering the
disqualification of Judge McGee. Conversations between a judge and a court-
appointed receiver do not generally fall within the prohibition against ex parte
communications. Jud.Cond.R. 2.91 prohibits judges from engaging in
communications concerning a pending or impending matter outside the presence
of the parties or their lawyers. But a court-appointed receiver is not an adversarial
party; rather, a receiver is appointed for the specific purpose of preserving the
value of the assets at issue in the litigation. The receiver performs his duties
under the control of the court that appointed him. R.C. 2735.04. And
Jud.Cond.R. 2.9(A)(3) permits a judge to “consult with court staff and court
officials whose functions are to aid the judge in carrying out the judge’s
adjudicative responsibilities, * * * provided the judge makes reasonable efforts to
avoid receiving factual information that is not part of the record and does not
abrogate the responsibility personally to decide the matter.” A court-appointed
1. Jud.Cond.R. 2.9 went into effect on March 1, 2009. Although the first ex parte contact
occurred before March 1, 2009, all references are to the current rule, which is substantively
identical to former Canon 3(B)(7) of the Code of Judicial Conduct.
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January Term, 2009
receiver therefore qualifies as court personnel “whose functions are to aid the
judge in carrying out the judge’s adjudicative responsibilities.” See Starr v.
Dotsikas (Aug. 6, 1998), 8th Dist. No. 73201, 1998 WL 456408, at 6-7.
{¶ 6} The ex parte communications between Judge McGee and
Hollencamp would fall within this exception unless, through these conversations,
the judge obtained evidentiary facts outside of the proceedings. Kozar, however,
has not shown that Judge McGee obtained knowledge of any disputed facts
through her conversations with Hollencamp. Likewise, Kozar had not shown that
the judge and Hollencamp discussed any issues on the merits of the underlying
case. See In re Disqualification of Williams (1993), 74 Ohio St. 3d 1248, 1249-
1250, 657 N.E.2d 1352, and In re Disqualification of Aurelius (1996), 77 Ohio
St.3d 1254, 674 N.E.2d 362 (in order to demonstrate bias or prejudice on the part
of the judge, the ex parte communication must have addressed a substantive
matter in the case). Indeed, both Judge McGee and Hollencamp state that their
conversations related primarily to procedural and scheduling matters.
Communications of this type are permitted by Jud.Cond.R. 2.9(A)(1), which
allows an ex parte communication, “for scheduling, administrative, or emergency
purposes, that does not address substantive matters or issues on the merits * * *,
provided the judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage.” id. at 1255.
{¶ 7} As to Kozar’s claim that the failure to properly serve his clients
resulted in the trial court conducting an improper ex parte hearing, it is well
settled that an affidavit of disqualification “is not a vehicle to contest matters of
substantive or procedural law.” In re Disqualification of Solovan, 100 Ohio St. 3d
1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. If Kozar wished to challenge the
method of service, he had other legal remedies available. But reviewing alleged
legal errors is not my role in deciding an affidavit of disqualification. In re
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SUPREME COURT OF OHIO
Disqualification of Russo, 110 Ohio St. 3d 1208, 2005-Ohio-7146, 850 N.E.2d
713, ¶ 6.
{¶ 8} Moreover, Kozar concedes that his clients had actual knowledge of
the February hearing before its scheduled date “even if it did not result from
proper service of process.” Thus, Kozar cannot now complain that the judge
conducted the hearing ex parte when his clients had notice of the hearing yet
chose not to appear.
{¶ 9} As I have said, “[a] judge is presumed to follow the law and not to
be biased, and the appearance of bias or prejudice must be compelling to
overcome these presumptions.” In re Disqualification of George, 100 Ohio St. 3d
1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been
overcome in this case.
{¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge McGee.
_____________________
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