IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
DENNIS HEPPNER, et al., CASE NO. 2026-P-0025
Plaintiffs-Appellees,
Civil Appeal from the
- vs - Court of Common Pleas
CHARDON KITCHEN AND BATH, L.L.C., et al., Trial Court No. 2023 CV 00401
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Decided: September 14, 2026 Judgment: Reversed and remanded
Thomas J. Connick and Kevin G. Kozak, Schneider Bell, 1111 Superior Avenue East, Suite 2200, Cleveland, OH 44114 (For Plaintiffs-Appellees).
Matthew P. Baringer, Davis & Young, L.P.A., 35000 Chardon Road, Suite 100, Willoughby Hills, OH 44094; and Stephen B. Doucette, Glowacki, Imbrigiotta & Doucette, L.P.A., 7550 Lucerne Drive, Suite 408, Middleburgh Heights, OH 44130 (For Defendants-Appellants).
MATT LYNCH, P.J.
{¶1} Defendants-appellants, Chardon Kitchen and Bath, L.L.C. and its four corporate officers/employees, Ralph Consolo, Pete Ciz-Madia, Robert Schneider, and Jeff Bennett (collectively “CKB” unless otherwise indicated), appeal the judgment of the Portage County Court of Common Pleas granting the motion to disqualify CKB’s counsel filed by plaintiffs-appellees, Dennis and Carrie Heppner (“the Heppners”).
{¶2} After careful consideration of CKB’s assignment of error challenging the disqualification, as well as a review of the record and pertinent law, we determine CKB’s argument has merit, and reverse and remand the trial court’s judgment in accordance with the following.
{¶3} In May 2023, the Heppners filed a complaint against CKB, alleging they had contracted with CKB to remodel their kitchen and laundry room, which included the purchase and installation of flooring, in February 2022. The flooring was installed incorrectly and had various problems that CKB attempted to remedy without success. In addition to the flooring, there were several other contractual obligations CKB failed to perform. The Heppners raised claims of (1) violations of the Ohio Consumer Sales Practices Act (“CSPA”) as against CKB and (2) as against the individual officers; (3) ordinary negligence; (4) failure to perform in a workmanlike manner; (5) breach of contract; (6) breach of express and implied warranty; (7) negligent hiring, retention, and supervision; (8) professional negligence; and (9) fraud. Attached to the complaint were the kitchen and laundry room contracts.
{¶4} In July 2023, CKB filed an answer and a counterclaim against the Heppners, raising claims of breach of contract for failing to pay $26,312.62 for work performed, and unjust enrichment. Attached to the answer and counterclaim were the contracts for the kitchen and the laundry room.
{¶5} As relevant to the instant appeal, in January 2025, the Heppners filed a “partial motion for summary judgment on plaintiffs’ counts 1, 2, and 9 and defendants’ counterclaim.” One of the attached exhibits was an affidavit of mechanic’s lien for $26,312.62, filed by CKB via its counsel, Dennis R. Fogarty, on June 15, 2023, and sent to the Heppners’ counsel on June 19, 2023.
{¶6} On December 29, 2025, the Heppners filed a motion to disqualify Fogarty
as counsel for CKB. The Heppners argued Fogarty is a necessary fact witness because PAGE 2 OF 11 he drafted, executed, and filed the mechanic’s lien and had “knowledge solely in his possession.” The Heppners argued no exception to disqualification under Prof.Cond.R. 3.7 applied. They more pointedly argued disqualification would not cause a substantial hardship to CKB, the case did not involve Fogarty’s specialized knowledge, and the lien’s validity and enforceability were issues for trial. Lastly, they argued their motion was timely filed. Attached to the motion were trial court filings from a different case in which Fogarty was disqualified. This court affirmed the trial court’s judgment in that case. See Shoregate Towers NS, L.L.C. v. Ruple Builders, Inc., 2025-Ohio-5287 (11th Dist.).
{¶7} In January 2026, CKB filed a brief in opposition, contending the Heppners did not demonstrate Fogarty is a necessary witness. According to CKB, the Heppners did not attempt to depose Fogarty or in any way suggest he would be a necessary witness for trial. Further, they did not demonstrate he is the only available witness because the defendants can testify to the contents of the affidavit and service can be proven by other evidence. CKB also argued disqualification of Fogarty would cause a substantial hardship because the Heppners waited to file their motion until a few weeks before trial and after Fogarty had actively engaged in discovery, including deposing witnesses, and filing motions and pleadings. Further, the lien was filed several weeks after the complaint was filed, and the Heppners never requested leave to amend their claims. Their motion to disqualify Fogarty was not filed until this court’s decision in Shoregate was released, which concerned entirely different claims and issues, albeit the same counsel.
{¶8} In February 2026, the Heppners filed a reply in support of their motion, contending they identified Fogarty as a witness for trial; the mechanic’s lien is an issue in their CSPA claims against CKB and in CKB’s counterclaim; they raised the issue of the
faulty mechanic’s lien in their partial motion for summary judgment; and only Fogarty can PAGE 3 OF 11 testify as to the contents and circumstances surrounding the affidavit. Attached to their motion was a “Plaintiff’s Trial Witness List,” identifying Fogarty as a possible witness, filed on December 30, 2024.
{¶9} In March 2026, the trial court granted the Heppners’ motion, finding it “well taken.” The court further found it would entertain a motion by CKB to continue the trial given the “short time between the disqualification and the trial date.”
{¶10} CKB timely filed an appeal and raises one assignment of error for our review:
{¶11} “The trial court erred in disqualifying Dennis R. Fogarty as counsel of choice for Defendant.”
Motion for Disqualification
{¶12} In its sole assignment of error, CKB contends the trial court erred by disqualifying Fogarty because he is not a necessary witness, the trial court did not explain its reasoning, and there are other witnesses and/or evidence that can attest to the contents of the affidavit since Fogarty’s personal knowledge of the contents of the lien came from the defendants.
{¶13} This court reviews a trial court’s decision on a motion to disqualify for an abuse of discretion. Shoregate, 2025-Ohio-5287, at ¶ 18 (11th Dist.). An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision- making.’” State v. Beechler, 2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black’s Law Dictionary (8th Ed. 2004). “An unreasonable decision is one that has no sound reasoning process to support it.” Goebel v. Hopkins, 2024-Ohio-194, ¶ 15 (12th Dist.).
{¶14} “Trial courts have the inherent power to disqualify an attorney from acting
as counsel in a case when the attorney cannot or will not comply with the Ohio Rules of PAGE 4 OF 11
Professional Conduct and when such action is necessary to protect the dignity and authority of the court.” Reo v. Univ. Hosps. Health Sys., 2019-Ohio-1411, ¶ 17 (11th Dist.), citing Fordeley v. Fordeley, 2015-Ohio-2610, ¶ 25 (11th Dist.). “‘[D]isqualification “is a drastic measure which should not be imposed unless absolutely necessary”’” because of the potential for abuse of the witness advocate rule. Id., quoting Fordeley at ¶ 25, quoting Waliszewski v. Caravona Builders, Inc., 127 Ohio App.3d 429, 433 (9th Dist. 1998). “It is therefore important for the trial court to follow the proper procedures in determining whether disqualification is necessary.” Id.
{¶15} Pursuant to Prof.Cond.R. 3.7(a), “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness[.]” The rule lists three exceptions: “(1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; (3) the disqualification of the lawyer would work substantial hardship on the client.” (Emphasis in original.)
{¶16} “‘The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.’” Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 257 (1987), quoting former DR 5-102(A) as set forth in EC 5-9.1
{¶17} In determining whether to disqualify an attorney who is called to testify by the opposing party, the trial court must “‘(1) determine whether the attorney’s testimony is admissible and (2) determine whether the attorney’s testimony is necessary. Under the second part of this analysis, the court must decide whether the attorney’s testimony
1. “Prof.Cond.R. 3.7 replaced former disciplinary rules DR 5-101(B) and DR 5-102(A) and (B) under the former Code of Professional Responsibility, effective February 1, 2007.” Reo, 2019-Ohio-1411, at ¶ 21 (11th Dist.). “Because Prof.Cond.R. 3.7 is similar to the former disciplinary rules, the prior case law is pertinent in analyzing its application.” Id.
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is relevant and material to the issues being litigated and whether the testimony is unobtainable elsewhere. If the court determines that the lawyer’s testimony is admissible and necessary, the court must then determine whether any of the exceptions set forth under Rule 3.7 apply.’” King v. Pattison, 2013-Ohio-4665, ¶ 18 (5th Dist.), quoting Brown v. Spectrum Networks, Inc., 2008-Ohio-6687, ¶ 15 (1st Dist.). See also Mentor Lagoons at 260 (applying the procedure under former DR 5-102(A)).
{¶18} The moving party has the burden of proving disqualification is necessary, whereas the attorney opposing disqualification has the burden of proving one of the exceptions in Prof.Cond.R. 3.7 applies. Fordeley, 2015-Ohio-2610, at ¶ 31 (11th Dist.).
{¶19} At the outset, we note there is insufficient evidence in the record for the trial court to have determined whether Fogarty should be disqualified under Prof.Cond.R. 3.7. Neither party submitted any evidence, and the trial court did not hold an in-person hearing. This court explained in Reo, 2019-Ohio-1411, at ¶ 34 (11th Dist.), “the case law establishes that while a trial court is required to hold a hearing to consider whether a lawyer should be disqualified under Prof.Cond.R. 3.7, no particular type of hearing is required. See Brown, [2008-Ohio-6687, at ¶ 18 (1st Dist.)]. Instead, it must be clear the trial court had sufficient evidence before it to make the necessary determinations under Prof.Cond.R. 3.7. See id.” Id. at ¶ 34 (noting that a paper or in-person hearing may be sufficient depending on the submissions of the parties).
{¶20} The Heppners did not submit sufficient evidence from which the trial court could determine Fogarty is a necessary witness. Simply identifying Fogarty as a witness that may be called at trial does not demonstrate he is a necessary witness. See Shinn v. Columbus, 2025-Ohio-183, ¶ 55 (10th Dist.), appeal not allowed, 2025-Ohio-1846,
quoting State v. Johnson, 2011-Ohio-6809, ¶ 15 (6th Dist.) (“‘A party’s simple declaration PAGE 6 OF 11 of an intention to call opposing counsel as a witness at trial is insufficient to establish the necessity for disqualification.’”) Further, Consolo testified in his deposition that he and the other CKB officers authorized the filing of the affidavit of mechanic’s lien and confirmed it would not have been filed unless they had authorized it. Consolo also testified he was responsible for including the $26,312.63 amount on the lien and explained how he determined that amount:
. . . We then sent them an invoice that had that number on it. The one is from the laundry room and one is from the kitchen project. We do our best to reconcile everything. There are times where our customers are out buying things that they have for their project and don’t allow us to purchase those things.
So when the job is finished, we would sit down with them and provide them with their warranties, all of their product specifications, those sheets, as well as walk through the final bill with them, because there are additions and subtractions from that bill. In this instance, we didn’t have that opportunity to do so.
So the number that was in QuickBooks, with all of the expenses and things that we have purchased, as well as the record that we had of things that they had purchased, were included on that invoice. We did not apparently have it in its totality. I believe there was in the tune of about $2,000 additional items that they had purchased that we would have reconciled with them at the closure of the job.
They were still sitting, as you can see, $26,000 of the total totality of the project. And they are to this day.
{¶21} Noticeably absent is any proffer as to Fogarty’s proposed testimony from which the trial court could determine whether disqualification was necessary. In Fordeley, 2015-Ohio-2610 (11th Dist.), this court reversed the trial court’s disqualification of appellant’s counsel who was not deposed prior to the evidentiary hearing and did not testify at the evidentiary hearing for the limited purpose of establishing the substance of his proposed testimony. Id. at ¶ 36-37. This court concluded appellee’s motion to
disqualify should have been denied because she failed to satisfy her burden of proof and PAGE 7 OF 11 the trial court could not make a proper ruling on whether counsel’s testimony was necessary. Id. at ¶ 37.
{¶22} Similarly, in COD Properties Ohio, L.L.C. v. Black Tie Title, L.L.C., 2022-
Ohio-17 (8th Dist.), the Eighth Appellate District determined there was a lack of evidence in the record from which the trial court could have adequately determined the testimony of plaintiff’s counsel was necessary. Id. at ¶ 33. There was no evidence as to what counsel’s testimony would have been beyond the filing of motions and preparation of documents for his client, all of which the defendants demonstrated could be proved by public record. Id. at ¶ 33. Further, the defendants’ attachments identified other potential witnesses. Id. at ¶ 33-34. The Eighth District concluded the trial court abused its discretion when it found counsel’s testimony was unobtainable from any other witness, and consequently, failed to establish counsel’s testimony was necessary pursuant to Prof.Cond.R. 3.7. Id. at ¶ 35.
{¶23} Lastly, in the case at hand, the trial court did not provide any reasoning when it granted the Heppners’ motion to disqualify, thus its judgment “does not satisfy the disqualification requirements contemplated by Prof.Cond.R. 3.7.” King, 2013-Ohio-4665, at ¶ 22 (5th Dist.) (trial court abused its discretion by granting motion to disqualify counsel without determining factual or legal conclusions relevant for granting disqualification). See also Holbrook v. Benson, 2013-Ohio-5307, ¶ 15 (5th Dist.) (trial court abused its discretion where it did not make factual or legal findings relevant to whether counsel was a necessary witness, and appellee presented only conclusory assertions); Champoir v. Champoir, 2019-Ohio-2235, ¶ 28-29 (8th Dist.) (trial court’s finding that counsel was a necessary witness was unsupported, and trial court failed to conduct required analysis
under Prof.Cond.R. 3.7).
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{¶24} Both parties submit the Heppners’ motion to disqualify Fogarty was prompted by this court’s decision in Shoregate, 2025-Ohio-5287 (11th Dist.). CKB contends the Heppners’ motion to disqualify was “blatant gamesmanship” because Shoregate also involved an affidavit of mechanic’s lien filed by CKB’s counsel. The Heppners, in turn, argue they were merely “staying abreast of relevant precedent.”
{¶25} Shoregate, however, is not similar to the instant case. In that case, the disqualified attorney was a named co-defendant. Id. at ¶ 5-8. In their complaint, the plaintiffs alleged the attorney drafted an affidavit of mechanic’s lien “with malice and in bad faith, with knowledge of the waiver-of-lien provision in the subcontractor agreement,” and filed it specifically to extort payment and release the defendants from liability. Id. at
¶ 29. “[T]his [was] more than an allegation that [counsel] simply notarized a document or drafted an affidavit without a personal role about which [defendant’s] officers or employees could testify.” Id. Counsel’s testimony was “material, relevant, and there [was] no other witness available,” and counsel “played an integral role in drafting and executing the affidavit of mechanic’s lien, and only he [could] testify to his intent and knowledge when he did so.” Id. This was “central to Shoregate’s claims,” and there was “no other available witness from whom such testimony [was] obtainable.” Id. Further, the attorney did not satisfy his burden to establish that his disqualification would cause a substantial hardship to his client, largely because the case was still in the discovery phase. Id. at ¶ 32.
{¶26} In sum, the Heppners failed to satisfy their burden to demonstrate Fogarty is a necessary witness in this case, there is insufficient evidence in the record to support the trial court’s judgment, and the trial court failed to conduct an analysis under
Prof.Cond.R. 3.7.
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{¶27} Accordingly, CKB’s sole assignment of error is well taken.
{¶28} The judgment of the Portage County Court of Common Pleas is reversed, and this matter is remanded for the trial court to hold a hearing and issue a judgment containing its factual and legal findings in accordance with Prof.Cond.R. 3.7.
EUGENE A. LUCCI, J., SCOTT LYNCH, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this court, it is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is reversed, and this matter is remanded to the trial court for further proceedings consistent with the opinion.
Costs to be taxed against appellees.
PRESIDING JUDGE MATT LYNCH
JUDGE EUGENE A. LUCCI,
concurs
JUDGE SCOTT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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