In re E.M.J.

[Cite as In re E.M.J., 2017-Ohio-1090.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: E.M.J. C.A. No. 15CA0098-M
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE No. 2014 06 GI00047
DECISION AND JOURNAL ENTRY
Dated: March 27, 2017
TEODOSIO, Judge.
{¶1} Appellants Maryann Ruben, James H. Banks, and Nina M. Najjar appeal from the
order of the Medina County Court of Common Pleas Probate Division disqualifying James H.
Banks and Nina M. Najjar as counsel for Maryann Ruben. This Court affirms.
I.
{¶2} On June 17, 2014, Appellant Maryann Ruben filed an application for the
appointment of a guardian for an alleged incompetent. The proposed ward was E.M.J., a ninety-
three year old woman. The application provided that Ms. Ruben’s relationship to the proposed
ward was as “Trustee and POA.” The application nominated Maryann Ruben to be appointed
guardian, and listed Nina Banks as the second nominee. The application also requested “that an
alternate, independent guardian be appointed.” Ms. Banks is Ms. Ruben’s sister, and is married
to Attorney James H. Banks, who signed the application as the attorney for Ms. Ruben. On the
Next of Kin form provided with the application, Ms. Ruben is listed as “Trustee,” and Ms. Banks
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is listed as “Successor Trustee.” Ms. Banks signed the Waiver of Notice as “Nina M. (Banks)
Najjar.” We note that Ms. Banks/Najjar has signed her appellate briefs as “Nina M. Najjar,” and
we will refer to her as “Ms. Najjar” hereinafter.
{¶3} In September 2014, E.M.J., through her attorney, filed a motion to dismiss the
application for appointment of guardian, and filed a renewed motion to dismiss in November. In
December 2014, the trial court dismissed the application. Following the dismissal, E.M.J. filed a
motion for attorney’s fees, arguing that the original action was frivolous, and in June 2015, she
filed a motion for the disqualification of counsel. In response, Ms. Ruben filed a motion for
sanctions against E.M.J.’s attorney, David C. Hipp. The matter of disqualification came before
the trial court on September 10, 2015, with the court hearing arguments from both sides, but
without conducting an evidentiary hearing. On October 16, 2015, the court granted the motion
of E.M.J and ordered that Mr. Banks and Ms. Najjar be disqualified from representing Ms.
Ruben. The remaining motions were set for further hearing. Ms. Ruben, Ms. Najjar, and Mr.
Banks now appeal, raising two assignments of error.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR IN DISQUALIFYING COUNSEL FOR APPELLANT
RUBEN.
{¶4} In their first assignment of error, the appellants argue the trial court’s
disqualification of counsel was not supported by the facts in this case and was an abuse of
discretion. We disagree.
{¶5} “[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.” Kala v.
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Aluminum Smelting & Refining Co., Inc., 81 Ohio St. 3d 1, 4 (1998). Trial courts enjoy broad
discretion when considering motions to disqualify counsel. Phillips v. Haidet, 119 Ohio App. 3d
322, 324 (3d Dist.1997). “We review a trial court’s determination regarding a motion to
disqualify counsel for an abuse of discretion.“ Avon Lake Mun. Utilities Dept. v. Pfizenmayer,
9th Dist. Lorain No. 07CA009174, 2008-Ohio-344, ¶ 13. An abuse of discretion is more than an
error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in
its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶6} When considering a motion to disqualify counsel, the Supreme Court of Ohio has
recognized the need to balance the interests of the moving and non-moving parties. Kala at 5.
Disqualification interferes with a client’s right to choose counsel and is a drastic measure which
courts should hesitate to impose except when absolutely necessary. Kala at 5-6.
{¶7} “In determining whether an attorney should be disqualified from representing an
interest adverse to a former client, the courts have generally recognized that a ‘substantial
relationship test’ is to be applied.” Sarbey v. Natl. City Bank, Akron, 66 Ohio App. 3d 18, 23 (9th
Dist.1990). The test requires that disqualification “be ordered where there is any substantial
relationship between the subject matter of a former representation and that of a subsequent
adverse representation.” Id. “The burden of proof in such a case is on the former client now
moving for disqualification * * *.” Id. Courts “will assume that during the course of the former
representation confidences were disclosed to the attorney bearing on the subject matter of the
representation.” Id. at 24. “The confidences, which are assumed to be disclosed in the attorney-
client relationship, are also presumed to be disclosed to an attorney’s fellow associates.” Janis v.
Castle Apts., Inc., 90 Ohio App. 3d 224, 228 (9th Dist.1993).
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Failure to Serve
{¶8} The appellants first argue that the disqualification of Ms. Najjar was improper on
procedural grounds because she was not served with the motion to disqualify. Ms. Najjar argues
that she was not counsel for Ms. Ruben in this matter. E.M.J. acknowledged in her brief to the
trial court that she did not serve Ms. Najjar with the motion because Ms. Najjar had not made an
appearance in the case, and that “a disqualification motion at [that] point would [have been]
speculative.”
{¶9} At the hearing, the trial court noted: “We also have on behalf of the original
Applicant Maryann Ruben, who is present in open court, her counsel Mr. James Banks and, also,
Counsel Nina Najjar. Is that correct?” Ms. Najjar responded: “Yes, your Honor.” After an
opening statement was given by counsel for E.M.J., The Court stated: “Thank you. In
response[?]” To which Mr. Banks said: “Yes, your Honor. [Ms.] Najjar is going to [sic].”
{¶10} The transcript shows Ms. Najjar proceeded to make arguments on behalf of Ms.
Ruben, e.g.: “At that time, Maryann Ruben was not using [E.M.J.’s] power of attorney * * *”;
“[t]he application for guardianship was not filed to - - for the benefit of Maryann Ruben, it was
filed for the benefit of [E.M.J.] * * *”; “I don’t believe it is a conflict because Maryann Ruben
did not ask to be appointed as the guardian.”
{¶11} While the disqualification of Ms. Najjar may have initially been moot because she
had never filed an appearance on behalf of Ms. Ruben, her participation at the hearing was in
representation of not only herself, but of Ms. Ruben. Appellants do not indicate why the trial
court judge could not construe Ms. Najjar to be counsel for Ms. Ruben, and subsequently
disqualify her after she held herself out as such at hearing, and provide no law in support of such
an argument as required by App.R.16(A)(7) and Loc.R. 7(B)(7). “Where an appellant fails to
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cite to any law supporting their assignments of error, it is not this [C]ourt’s duty to create an
argument for them.” Sherlock v. Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶ 4. We
therefore decline to do so.
Former Representation
{¶12} Although with regard to the former representation of E.M.J. by Mr. Banks, it is
undisputed that a past attorney-client relationship existed, the appellants argue that there is no
evidence that Ms. Najjar ever represented E.M.J. This is contradicted by Ms. Najjar’s own
statements at the hearing before the trial court: “[a]lthough Mr. Hipp claims that he didn’t know
that we represented [E.M.J.] in the past, one, in January of 2015, all of our files were turned over
to Mr. Hipp in a file box, like the size of a regular box full of documents. The documents that we
- - the minimal documents that pertained to us were included in those boxes, and [E.M.J.] knew
we represented her. * * * [E.M.J.] knew for years that we prepared those documents for her.”
With regard to certain estate planning documents, Ms. Najjar stated: “We drafted them at
[E.M.J.’s] request * * *.” Moreover, E.M.J.’s revocable living trust states: “If I should cease to
act as the Trustee for any reason, I shall be succeeded by my advisor MARYANN L. RUBEN as
the successor Trustee. If she fails to qualify or ceases to act, my attorney NINA M. BANKS
shall act as the successor Trustee.” We note again that this document was prepared by Ms.
Najjar’s husband, Mr. Banks.
{¶13} The trial court did not abuse its discretion in finding that both Mr. Banks and Ms.
Najjar had a prior attorney-client relationship with E.M.J.
Substantial Relationship
{¶14} The appellants argue that any former representation was not substantially related
to the present matter. As noted above, Ms. Najjar’s statements indicated that the prior
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representation involved estate planning. Ms. Ruben testified that it was Mr. Banks who prepared
the power of attorney document for E.M.J., designating Ms. Ruben as the agent and becoming
effective upon incapacity. Ms. Ruben also testified that the amendment to E.M.J.’s revocable
living trust, which designated Ms. Ruben and Ms. Najjar as successor trustees, was prepared by
Mr. Banks.
{¶15} The present matter for the appointment of a guardian for E.M.J. was filed by Mr.
Banks on behalf of the applicant, Ms. Ruben. Ms. Ruben and Ms. Najjar are listed as nominees
for the guardianship. Upon a finding of incapacity, a guardianship would be awarded. Likewise
upon a finding of incapacity, Ms. Ruben would acquire power of attorney and would succeed
E.M.J. as trustee of the revocable living trust. Although the application for the appointment of a
guardianship was dismissed by the trial court, motions for sanctions and attorney fees remain
pending. The subject matter of this case is intrinsically and inextricably tied to the documents
prepared under Mr. Banks and Ms. Najjar’s prior representation of E.M.J. Remaining at issue
for the pending motions is the underlying motivation and rationale for filing the application for
guardianship in the first instance, and as such the prior estate planning documents are implicated.
{¶16} The trial court did not abuse its discretion in finding that the prior representation
was substantially related to the present matter.
Confidential Information
{¶17} The appellants argue that there was no confidential information obtained from
E.M.J. during any former representation. Courts are to assume that during the course of the
former representation, confidences were disclosed to the attorney bearing on the subject matter
of the representation. Janis, 90 Ohio App. 3d at 228; Sarbey, 66 Ohio App. 3d at 24. Mr. Banks
and Ms. Najjar had a prior attorney-client relationship with E.M.J., and in the current matter,
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they are attorneys representing an opposing interest. The current matter has a substantial
relationship to their former representation. It was therefore not an abuse of discretion for the
trial court to have made the assumption that confidences were disclosed.
Evidentiary Hearing
{¶18} The appellants argue that the trial court improperly granted the motion to
disqualify without holding a full evidentiary hearing. However, there is no requirement that a
trial court must hold an evidentiary hearing before ruling on every motion for disqualification.
Dayton Bar Ass. v. Parisi, 131 Ohio St. 3d 345, 2012-Ohio-879, ¶ 15.
Conclusion
{¶19} Given the arguments presented to the trial court at hearing and the record the
court had before it, we cannot conclude that the trial court’s decision to disqualify counsel was
unreasonable, arbitrary, or unconscionable. The trial court did not abuse its discretion in finding
that Mr. Banks and Ms. Najjar had previously represented E.M.J. in a matter substantially related
to the current adverse representation. Appellants’ first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN FAILING TO CONSIDER APPELLANTS’
CONTENTION THAT APPELLEE JENKINS WAIVED HER RIGHT TO
OBJECT TO BANKS/NAJJAR’S REPRESENTATION BY FAILING TO
TIMELY SEEK DISQUALIFICATION.
{¶20} The appellants argue that the trial court erred by failing to find that E.M.J. waived
her right to seek disqualification of counsel because the case had already been pending for one
year. We disagree.
{¶21} Once again, “[w]e review a trial court’s determination regarding a motion to
disqualify counsel for an abuse of discretion.” Avon Lake Mun. Utilities Dept., 2008-Ohio-344,
at ¶ 13. “As a general rule, a former client may be held to have waived the right to object to an
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attorney’s subsequent representation of an adverse interest by failure to timely raise the
objection.” Sarbey, 66 Ohio App. 3d at 28. “Timeliness is not a fixed concept, but generally
courts have held that the proper time within which to raise an objection is soon after the onset of
litigation, or at least within a reasonable time once the facts are known.” (Citations omitted.)
Id. “Cases have varied from finding waiver by failure to object within ten days, Levitt v. Levitt
(1980), 9 Mass.App. 894, 403 N.E.2d 143 (pursuant to a local rule), to finding no waiver despite
the passage of three years before the objection was raised, Emle Industries, Inc. v. Patentex, Inc.
(C.A.2, 1973), 478 F.2d 562.” Sarbey at 28; see also, Karaman v. Pickrel, Schaefer & Ebeling
Co., 2d Dist. Montgomery No. CA21813, 2008-Ohio-4139 (granting disqualification of counsel
nearly two years after complaint was filed).
{¶22} A failure to timely raise the issue of disqualification has been described as
implied consent, or waiver, and is closely akin to the equitable concepts of estoppel and laches.
Sarbey at 29. “Accordingly, the equitable remedy of imposing an implied waiver will not be
used to bar a motion to disqualify where no prejudice has resulted from the delay.” Id.
{¶23} Ms. Ruben filed the application for guardianship on June 17, 2014, and the
application was dismissed upon E.M.J.’s motion on December 12, 2014. E.M.J. filed a motion
for attorney’s fees on December 24, 2014, and a hearing was set for April 29, 2015. Upon the
request of Attorney Banks, the hearing was continued, and the depositions of E.M.J. and
Maryann Ruben were subsequently scheduled for June 18, 2015. The motion for disqualification
was filed on June 30, 2015, twelve days after the depositions were taken.
{¶24} The appellants argue that because one year had passed from the filing of the
application for guardianship until the motion for disqualification was filed, the trial court should
have found that E.M.J. had waived the issue. They further argue that the motion for
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disqualification was filed as a “strategic tactic.” Counsel for E.M.J. argues that the motion for
disqualification was filed after he discovered the extent of the prior representation of his client
by opposing counsel during the June 18 depositions. He also states that he did not file a motion
to disqualify at the time of the filing of the application for guardianship because he instead filed
a motion to dismiss the application as legally insufficient.
{¶25} The appellants have not shown any prejudice resulting from the delay of the filing
of the motion for disqualification. While counsel for E.M.J. was aware of the prior
representation well before the filing of the motion for disqualification, given the procedural
disposition of this case, and given that the motion was filed shortly after the taking of the
depositions, which further revealed the scope of the prior representation, it was not unreasonable,
arbitrary, or unconscionable for the trial court to not find that E.M.J. had waived her right to
object to opposing counsel. Appellants’ second assignment of error is overruled.
III.
{¶26} Appellants’ assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas 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 Medina, 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.
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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 Appellants.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JAMES H. BANKS, pro se, Appellant.
JAMES H. BANKS, Attorney at Law, for Appellant.
NINA M. NAJJAR, pro se, Appellant.
DAVID C. HIPP, Attorney at Law, for Appellee.