Simonetti v. Adams-Karl Invests., L.L.C.

[Cite as Simonetti v. Adams-Karl Invests., L.L.C., 2014-Ohio-3701.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Professional Solutions Insurance :
Company,
:
Intervenor-Plaintiff,
: No. 14AP-222
(C.P.C. No. 11CV-2192)
Steve Simonetti et al., :
(REGULAR CALENDAR)
Plaintiffs-Appellees, :
v. :
Adams-Karl Investments, LLC et al., :
Defendants-Appellants. :
D E C I S I O N
Rendered on August 26, 2014
Mills, Mills, Fiely & Lucas, Laura L. Mills, and Paul W.
Vincent, for appellees.
Duncan Law Group LLC, Brian K. Duncan, and Bryan D.
Thomas, for appellants.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Adams-Karl Investments, LLC c/o ABG Agency, Inc.; Adams, Babner, and
Gitlitz, LLC c/o Bret A. Adams, Bret Adams, and George Karl c/o Bret Adams,
defendants-appellants, appeal from the judgment of the Franklin County Court of
Common Pleas in which the court denied appellants' motion for attorney fees, denied
appellants' motion for leave to file under seal, and ordered appellants to pay attorney fees
No. 14AP-222 2
to the counsel of Steve Simonetti, Doug Burkhart, James Deagle, and Linchris
Management c/o Mike Hurdzan, and Gene Simonetti, plaintiffs-appellees.
{¶ 2} Many of the underlying facts are not relevant to the current appeal.
Generally, in October 2010, appellees filed an action against appellants in Delaware
County, Ohio. The action related to appellants' and appellees' investment in the Golf Club
of Dublin. Appellants filed an answer and a counterclaim for, among other things,
frivolous conduct. The case was transferred to Franklin County, and the trial court
subsequently dismissed some of appellees' claims.
{¶ 3} The court held a trial on the remaining claims. During the course of trial,
the parties reached a settlement as to all claims. During a discussion of the settlement
with the trial court, appellants specifically indicated that the counterclaim for frivolous
conduct was included in the settlement. On September 13, 2013, the parties filed a
stipulation of dismissal.
{¶ 4} On September 20, 2013, appellants filed a complaint against the trial judge
and the Supreme Court of Ohio in federal court.
{¶ 5} On October 11, 2013, appellants filed a motion for attorney fees based upon
alleged frivolous conduct by appellees' counsel. On October 16, 2013, appellees filed a
motion for sanctions and fees, arguing that the settlement agreement settled all claims,
including appellants' counterclaim for frivolous conduct against appellees, and the court
had jurisdiction only to enforce the settlement.
{¶ 6} On February 7, 2014, appellants filed a motion for leave to file under seal a
motion seeking recusal of the trial judge and motion for stay with respect to ruling on the
October 11, 2013 motion for attorney fees.
{¶ 7} On February 18, 2014, the trial court issued a decision and entry in which it
denied appellants' motion for attorney fees and motion for leave to file under seal and
granted appellees' motion for sanctions and fees. The court ordered appellants to pay
appellees' counsel $550 for his frivolous filing of the motion for attorney fees. Appellants
appeal the judgment of the trial court, asserting the following assignment of error:
JUDGE SHEWARD FAILED TO DISQUALIFY HIMSELF
FROM THIS PROCEEDING AS MANDATED BY THE OHIO
CODE OF JUDICIAL CONDUCT RULE 2.11, REQUIRING
DISMISSAL IN CIRCUMSTANCES IN WHICH A JUDGE
HAS A PERSONAL BIAS OR PREJUDICE CONCERNING A
No. 14AP-222 3
PARTY, OR IN THE ALTERNATIVE UNDER OHIO CODE
OF JUDICIAL CONDUCT RULE 1.2 REQUIRING JUDGES
TO AVOID IMPROPRIETY OR THE APPEARANCE
THEREOF; THEREFORE, JUDGE SHEWARD ABUSED HIS
DISCRETION BY RULING ON SAID PROCEEDING.
{¶ 8} Appellants argue in their sole assignment of error that the trial court erred
when it ruled on the motions in its judgment because the trial judge should have
disqualified himself due to the pending lawsuit appellants filed against him in federal
court. In support, appellants cite several provisions in the Code of Judicial Conduct
dealing with disqualification and impartiality, including Rule 2.11, which requires a judge
to disqualify himself or herself in any proceeding in which the judge has a personal bias or
prejudice against a party or a party's attorney. Appellants contend that the trial judge
should have disqualified himself here because Adams had a pending lawsuit against the
trial judge based upon Adams' allegation that the trial judge denied his procedural and
substantive due process rights. Therefore, appellants urge that the trial court's judgment
denying their motion for attorney fees be vacated and request that the trial judge be
disqualified from ruling on the instant matter.
{¶ 9} The authority to pass upon the disqualification of a judge of the court of
common pleas is vested solely in the Chief Justice of the Supreme Court of Ohio or a
designee. Beer v. Griffith, 54 Ohio St.2d 440 (1978); Kettering v. Berger, 4 Ohio App.3d
254, 255 (2d Dist.1982); State v. Dougherty, 99 Ohio App.3d 265, 268 (3d Dist.1994).
R.C. 2701.03 sets forth the only procedure by which a party may seek disqualification. Id.
at 269. The statute requires the party seeking disqualification to file an affidavit of
prejudice with the Supreme Court. Id.
{¶ 10} It is well-established that a court of appeals is without authority to render a
decision with regard to disqualification or to void a trial court's judgment on that basis.
Id.; State v. Ramos, 88 Ohio App.3d 394, 398 (9th Dist.1993). In the present appeal,
appellants ask this court to find the trial judge should have disqualified himself and to
void the trial court's judgment on the same basis, both of which we are prohibited from
doing. Therefore, this court has no authority to pass upon these issues, and we overrule
appellants' assignment of error.
No. 14AP-222 4
{¶ 11} Appellees have included in their brief a motion for sanctions, pursuant to
App.R. 23, based upon appellants' frivolous appeal. Despite the well-established authority
cited above, we decline to award attorney fees and costs at this time.
{¶ 12} Accordingly, appellants' sole assignment of error is overruled, appellees'
motion for sanctions is denied, and the judgment of the Franklin County Court of
Common Pleas is affirmed.
Motion denied;
judgment affirmed.
TYACK and LUPER SCHUSTER, JJ., concur.
____________________