Shen v. Lam

2015 Ohio 3321

• Court: Ohio Court of Appeals
• Decided: August 19, 2015
• Docket: C-140607
• Status: Published

Opinion

[Cite as Shen v. Lam, 2015-Ohio-3321.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

JESSIE SHEN, : APPEAL NO. C-140607 TRIAL NO. A-1200792 Plaintiff-Appellee, : O P I N I O N. vs. :

PAUL MINH LAM, :

Defendant-Appellant. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 19, 2015

Dinsmore & Shohl LLP, Alex M. Triantafilou and Christen M. Steimle, for Plaintiff- Appellee,

The Farrish Law Firm and Kathleen C. King, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

D E W INE , Judge.

{¶1} This is an appeal of an order striking an attorney’s notice of appearance in

a civil case. The trial judge struck the notice because of evidence that one party had

hired the attorney in a ploy to engineer the judge’s recusal. We find no abuse of

discretion, so we uphold the decision of the trial court.

I. Background

{¶2} The subject of this appeal is an order entered on October 1, 2014, by

Judge Leslie Ghiz striking a notice of appearance filed by attorney Kathy King. The

court’s order came shortly after Ms. King filed her notice of appearance, and some two

and a half years into a hotly-contested piece of litigation.

{¶3} The underlying litigation is a personal-injury lawsuit. In February 2012,

Jesse Shen sued Paul Minh Lam, her former live-in boyfriend. She alleged that Mr. Lam

had beaten her severely and had stolen cash and credit cards from her. Mr. Lam later

filed counterclaims against Ms. Shen regarding some joint business dealings. Attorney

Herbert Haas represented Mr. Lam.

{¶4} In July 2014, Ms. Shen filed a motion to bifurcate her claims from Mr.

Lam’s counterclaims, and Mr. Lam filed a jury demand. The court held a hearing, after

which it granted Ms. Shen’s motion to bifurcate and struck Mr. Lam’s jury demand as

untimely. Following the court’s rulings in favor of Ms. Shen, Mr. Lam filed a motion for

recusal, arguing that there was an appearance of bias on the part of the trial judge due to

her friendship with Ms. Shen’s attorney, Alex Triantafilou. Accompanying the motion

were affidavits of Mr. Haas and Mr. Lam, which included their observations of what they

believed were the judge’s biased interactions with Mr. Triantafilou. Attached to Mr.

Lam’s affidavit was a copy of a newspaper article about a different case in which Judge

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Ghiz had recused herself because Ms. King represented one of the parties. The same day

that Mr. Lam filed the motion for recusal, Ms. King filed a notice of appearance in the

case.

{¶5} Ms. Shen filed a response in opposition to Mr. Lam’s motion for recusal.

The response noted that the Ohio Supreme Court had exclusive jurisdiction over

applications to remove a common pleas judge for bias and prejudice. See R.C. 2701.03.

She also argued that there was nothing improper about the judge’s interactions with Mr.

Triantafilou.

{¶6} Ms. Shen’s response included an affidavit from Mr. Triantafilou that

called into question Mr. Lam’s motives in hiring Ms. King. Mr. Triantafilou recounted a

phone conversation that he had with Mr. Haas prior to Ms. King’s notice of appearance.

According to Mr. Triantafilou, Mr. Haas “suggested that his client could hire Kathy King

as co-counsel” and “explained to me that Ms. King was counsel to Judge Ghiz’s ex-

husband and that this had caused Judge Ghiz to recuse herself in prior cases.” Mr.

Triantafilou also testified to receiving a subsequent voice mail from Mr. Haas in which

Mr. Haas sought to “revisit” the issue of Judge Ghiz’s recusal. In the voice mail, Mr.

Haas said that “he was in a meeting with [his] client and his client is hiring co-counsel

for [Mr. Haas], Kathy King.” Mr. Triantafilou averred that he retained a copy of the

voice mail.

{¶7} The court held a hearing on Mr. Lam’s motion for recusal. Mr. Haas

argued first. He set forth reasons why he believed that Judge Ghiz should recuse herself

based on her interactions with Mr. Triantafilou. He also brought up Ms. King’s

appearance in the case and cited her appearance as a basis for recusal.

{¶8} After hearing argument from Mr. Triantafilou, the court orally announced

its decision. The judge stated that she would deny the motion to disqualify her and

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strike the notice of appearance filed by Ms. King. The court explained that it believed

that the retention of Ms. King was a pretext to try to get her excused from the case. The

court explained that it based this conclusion on the following: (1) the case’s nearly three-

year pendency at the time Ms. King was hired; (2) Mr. Triantafilou’s uncontradicted

sworn statements about Mr. Haas’s communications to him relating to the hiring of Ms.

King; and (3) the fact that a review of Ms. King’s website indicated that she had no

expertise in personal-injury or corporate work, and that her primary focus was in

domestic relations matters. The court subsequently journalized an entry striking Ms.

King’s appearance.

II. Final, appealable order?

{¶9} As a preliminary matter, we must address whether the court’s order

striking Ms. King’s notice of appearance is a final appealable order. See R.C. 2505.02.

Much of the case law regarding the question has analyzed it under R.C. 2505.02(B),

which provides that an order is final—and thus subject to appellate review—when it is

“[a]n order that affects a substantial right made in a special proceeding or upon a

summary application in an action after judgment.”

{¶10} That an order disqualifying counsel affects a “substantial right” has been

settled for some time in Ohio. See Russell v. Mercy Hosp., 15 Ohio St.3d 37, 472 N.E.2d

695 (1984). See also Bernbaum v. Silverstein, 62 Ohio St.2d 445, 446, 406 N.E.2d 532

(1980). Less clear is whether an order disqualifying counsel occurs in a special

proceeding.

{¶11} In Amato v. Gen. Motors Corp., 67 Ohio St.2d 253, 258, 423 N.E.2d 452

(1981), the Ohio Supreme Court prescribed balancing the “waste of judicial resources,

resulting from the allowance of an appeal, with the need for immediate review because

appeal after final judgment is not practicable” to determine whether an order occurred

4 OHIO FIRST DISTRICT COURT OF APPEALS

in a special proceeding. Using this test, the Supreme Court held that a court’s order

disqualifying counsel was made in a “special proceeding” and thus was a final order.

Russell at syllabus. See Guccione v. Hustler Magazine, Inc., 17 Ohio St.3d 88, 90, 477

N.E.2d 630 (1985) (applying Russell to conclude that the denial of a motion to appear

pro hac vice is a final appealable order). But Amato was overruled in Polikoff v. Adam,

67 Ohio St.3d 100, 616 N.E.2d 213 (1993), syllabus. Polikoff replaced Amato’s balancing

test with a bright-line rule based upon whether the action was recognized at common

law or in equity and not specially created by statute. This holding was later codified in

R.C. 2505.02(A)(2): “ ‘Special proceeding’ means an action or proceeding that is

specially created by statute and that prior to 1853 was not denoted as an action at law or

a suit in equity.”

{¶12} Under a plain reading of R.C. 2505.02(A)(2), it would seem evident that

the order in this case was not entered in a special proceeding, and was thus not final.

This is because the action in question—a personal-injury claim—was recognized at

common law prior to 1853. Nonetheless, even after Polikoff, the Ohio Supreme Court

has concluded that an order denying a motion to appear pro hac vice was a final

appealable order. See Klein v. Streicher, 93 Ohio St.3d 446, 755 N.E.2d 880 (2001).

In Klein, the court cited Guccione in support of its summary conclusion that the order

was final even though Guccione had been decided pre-Polikoff. Accord Kala v.

Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 3, 688 N.E.2d 258 (1998)

(concluding an order disqualifying counsel was a final appealable order), citing with

approval Stevens v. Grandview Hosp. & Med. Ctr., 2d Dist. Montgomery No. 14042,

1993 Ohio App. LEXIS 5092 (Oct. 20, 1993). While the definition of “special

proceeding” in R.C. 2505.02(A)(2) would seem to compel a different result, we are

5 OHIO FIRST DISTRICT COURT OF APPEALS

bound by the Supreme Court’s holdings.1 Thus, we conclude that the court’s order

striking the notice of appearance was a final appealable order.

III. No abuse of discretion

{¶13} In his sole assignment of error, Mr. Lam asserts that the trial court erred

when it struck Ms. King’s notice of appearance. He argues (1) that he was denied due

process when the court took up the matter without notice and without a hearing, (2) that

in reviewing and considering information on Ms. King’s website the court improperly

conducted its own investigation and improperly considered hearsay, and (3) that the

court abused its discretion in striking the notice of appearance and denying his right to

counsel of his choice.

A. No Denial of Due Process

{¶14} We can easily dispose of Mr. Lam’s due-process argument. As to notice,

the issues concerning Ms. King’s appearance were raised in Ms. Shen’s memorandum in

opposition to the motion for recusal and the accompanying affidavit of Mr. Triantafilou.

At the hearing, it was Mr. Lam’s own attorney, Mr. Haas, who first brought up the issue:

My client went and hired Kathy King. Okay? And that is an issue that

perhaps we ought to have dealt with before we went into this recusal

issue.

Mr. Haas made the hiring of Ms. King part and parcel of his motion for recusal: “And

based on my arguments and my motion, the fact that Ms. King is now co-counsel, I ask

this Court with all due respect to recuse herself.” Further, Mr. Haas made no objection

1 In what seems to be a more statutorily consistent analysis, some districts have concluded that orders denying pro hac vice status or disqualifying counsel are final appealable orders under R.C. 2505.02(B)(4), because the orders are provisional remedies for which immediate appeal was necessary to ensure meaningful review. See Westfall v. Cross, 144 Ohio App.3d 211, 759 N.E.2d 881 (7th Dist.2001); Spitz v. St. Luke’s Med. Ctr., 8th Dist. Cuyahoga No. 88184, 2007-Ohio- 1448; Fordeley v. Fordeley, 11th Dist. Trumbull No. 2014-T-0079, 2015-Ohio-2610. The Supreme Court has not weighed in on this approach.

6 OHIO FIRST DISTRICT COURT OF APPEALS

when the court took up the matter of Ms. King’s appearance. Nor has Mr. Lam

demonstrated any prejudice by the court’s consideration of the matter at the recusal

hearing. See Landzberg v. 10630 Berea Rd., Inc., 8th Dist. Cuyahoga No. 79574, 2002-

Ohio-1086. Thus, we find no due-process violation.

B. No Reversible Evidentiary Error

{¶15} We also find no merit to the argument that the court committed

reversible error by referencing Ms. King’s law firm’s website in support of its conclusion

that she lacked any significant experience in personal-injury and corporate work.

{¶16} Mr. Lam offered no objection to the court’s consideration of these

materials at the hearing and thus has waived all but plain error. In civil matters, “the

plain error doctrine is not favored and may be applied only in the extremely rare case

involving exceptional circumstances where error, to which no objection was made at the

trial court, seriously affects the basic fairness, integrity, or public reputation of the

judicial process, thereby challenging the legitimacy of the underlying judicial process

itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus.

{¶17} At issue here is the trial court’s review of Ms. King’s own promotional

materials. The website displayed the manner in which Ms. King and her law firm chose

to present her qualifications to the world. No one has asserted that what the court

reviewed wasn’t the law firm’s website. No one has said that any of the statements

contained therein are untrue. Further, because the statements on the website were Ms.

King’s own or her adopted statements, the usual concerns with hearsay evidence were

not present. Compare Evid.R. 801(D)(2).

{¶18} We hardly think that a review of Ms. King’s own statements about her

qualifications “seriously affected the basic fairness, integrity, or public reputation of the

judicial process.” Therefore, we find no plain error.

7 OHIO FIRST DISTRICT COURT OF APPEALS

C. No Abuse of Discretion

{¶19} Finally, Mr. Lam argues that the court abused its discretion in striking the

notice of appearance. The right to counsel of one’s own choosing is a substantial right.

Russell, 15 Ohio St.3d at 39, 472 N.E.2d 695. Nonetheless, this right is balanced with

the court’s “inherent power to regulate the practice [of law] before it and protect the

integrity of its proceedings.” Royal Indemn. Co. v. J.C. Penney Co., 27 Ohio St.3d 31,

33-34, 501 N.E.2d 617 (1986).

{¶20} This concern with the integrity of court proceedings has led courts to be

particularly vigilant when confronted with the specter of a party who is attempting to

game the system by retaining counsel who will force the trial judge’s recusal. See

McCuin v. Texas Power & Light Co., 714 F.2d 1255 (5th Cir.1983); In re Bellsouth Corp.,

334 F.3d 94 (11th Cir.2003); Ex parte Thacker, 159 So.3d 77 (Ala.Civ.App.2014); Valley

v. Phillips Cty. Election Comm., 357 Ark. 494, 183 S.W.3d 557 (2004); Wisconsin v.

Orville, 313 Wis.2d 831, 756 N.E.2d 809 (2008). “It is impermissible for parties or

counsel to create an infirmity for the purpose of forcing a judge to recuse.” Valley at

497.

{¶21} We review the court’s decision to disqualify counsel for an abuse of

discretion. 155 N. High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 426, 650 N.E.2d

869 (1995). In Spitz v. St. Luke’s Med. Ctr., 8th Dist. Cuyahoga No. 88184, 2007-Ohio-

1448, ¶ 14, the court found the denial of a motion to appear pro hac vice to be within the

trial court’s discretion based upon “the extreme age of the case (over five years), the

advanced stage of the case (just before trial), and the fact that appellants never

previously represented to the court that they would need additional counsel before

making [its] decision.”

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{¶22} Our case presents an even stronger basis for limiting the litigant’s ability

to select co-counsel. In reaching its conclusion, the trial court reasonably looked at the

age of the case, counsel’s background in the subject matter, and the indications of judge

shopping. Indeed, the evidence that counsel had been hired to engineer Judge Ghiz’s

recusal was completely uncontroverted and, by itself, more than sufficient to justify the

trial court’s action. Because we find nothing “unreasonable, arbitrary or

unconscionable” about the trial court’s decision, we conclude that the court did not

abuse its discretion. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

{¶23} The sole assignment of error is overruled, and we therefore affirm the

judgment of the trial court.

Judgment affirmed.

H ENDON , P.J., concurs separately. F ISCHER , J., concurs in judgment only.

H ENDON , P.J., concurring separately.

{¶24} I concur in the opinion of the court because I believe the assigned judge

had the authority to regulate the proceedings in his or her courtroom.

Please note:

The court has recorded its own entry on the date of the release of this opinion.