In re Triggs

• Docket Number: 24-AP-199
• Decision Date: 30 January 2025
• Citation: 178 Ohio St.3d 1227
• Parties: In re Disqualification of Triggs. Cintrifuse Landlord, L.L.C. v. Panino, L.L.C.
• Court: Ohio Court of Common Pleas

178 Ohio St.3d 1227

In re Disqualification of Triggs.

Cintrifuse Landlord, L.L.C. v. Panino, L.L.C.

[Cite as In re Disqualification of Triggs, 2025-Ohio-983.]

Judges—Affidavits of disqualification—R.C. 2701.03—Affidavit of disqualification granted to allay any concerns about fairness and integrity of proceedings and to assure parties and public of unquestioned neutrality of trial judge.

(No. 24-AP-199—Decided January 30, 2025.)

On Affidavit of Disqualification in Hamilton County Court of Common Pleas, General Division, Case No. A2000757.

Kennedy, C.J.

{¶ } Robert Croskery, the attorney for Panino, L.L.C., and Nino Loreto, the defendants in the underlying civil case, has filed a third affidavit of disqualification pursuant to R.C. 2701.03 seeking to disqualify Judge Alan C. Triggs of the Hamilton County Court of Common Pleas, General Division, from presiding over the case. Judge Triggs filed a response to the affidavit of disqualification.

{¶ } The original affidavit of disqualification was denied on December 11, 2023. See In re Disqualification of Triggs, Supreme Court case No. 23-AP-167. The second affidavit of disqualification was denied on March 6, 2024. See In re Disqualification of Triggs, Supreme Court case No. 24-AP-004.

{¶ } As explained below, to allay any concerns about the fairness and integrity of the proceedings and to assure the parties and the public of the unquestioned neutrality of the trial judge, the affidavit of disqualification is granted. The administrative judge of the Hamilton County Court of Common Pleas, General Division, shall randomly reassign the case to another judge of the division in accordance with Sup.R. 36.019(A).

Trial-Court Proceedings

{¶ } The facts of the underlying case were discussed in In re Disqualification of Triggs, Supreme Court case Nos. 23-AP-167 and 24-AP-004. In brief, Cintrifuse Landlord, L.L.C., entered a lease with Panino, a restaurant owned and operated by Loreto, in which Cintrifuse promised to use its "best efforts" to obtain any approvals necessary to purchase land to build a restaurant patio in an adjacent park. However, the patio never got built; the restaurant struggled, Panino and Loreto stopped paying rent, and Cintrifuse sued for breach of contract, among other claims. Panino and Loreto counterclaimed for breach of contract, bad-faith breach of contract, and abuse of process. See Cintrifuse Landlord, L.L.C. v. Panino, L.L.C., 2022-Ohio-4104, ¶ 2-6 (1st Dist.).

{¶ } On the day the matter was set to go to trial, Judge Triggs granted Cintrifuse’s motion for summary judgment. Id. at ¶ 8. Panino and Loreto appealed, and the First District Court of Appeals reversed and remanded, holding that there were genuine issues of material fact regarding whether Cintrifuse had used its best efforts to obtain the approvals necessary to acquire land for a patio to be built. Id. at ¶ 78.

{¶ } On the day of the rescheduled trial, Judge Triggs made off-the-record remarks concerning his assessment of the merits of the cross-claims. The judge denied Croskery’s motion for him to recuse but granted a continuance to allow Croskery to file the first affidavit of disqualification, which, as noted above, was subsequently denied.

{¶ } Cintrifuse moved for sanctions, asserting that Croskery’s motions for the judge to recuse and to continue the trial were frivolous and had been filed on the day of trial for delay. Judge Triggs granted the motion for sanctions and awarded $40,521.94 in attorney fees to Cintrifuse. The First District stayed the sanctions order and subsequently reversed the award of attorney fees. Cintrifuse Landlord, L.L.C. v. Panino, L.L.C., 2024-Ohio-5289, ¶ 19, 34 (1st Dist.). In the meantime, Croskery’s business and personal bank accounts were frozen and garnished.

{¶ } Trial was again rescheduled. On the day of trial, before opening statements had been given, Croskery asked Judge Triggs to recuse because the judge had said off the record, "I don’t like you ... [and] you don’t like me." The judge denied the motion and again gave his assessment of Croskery’s clients’ claims. Judge Triggs said that based on his review of the law, those claims would not survive a motion for directed verdict because Panino and Loreto had breached the contract when they failed to pay rent. Croskery asserted that he could prove an anticipatory breach because Cintrifuse had not fulfilled the best-efforts promise that was included in the contract with Panino and Loreto when time was of the essence, which caused Panino to go out of business and prevented Panino and Loreto from paying rent. According to Croskery, the judge encouraged Cintrifuse to move for a directed verdict. After opening statements, Judge Triggs orally granted the motion for a directed verdict.

{¶ } Croskery filed this third affidavit of disqualification on December 30, 2024.

Affidavit-of-Disqualification Proceedings

{¶ } R.C. 2701.03(A) provides that if a judge of a court of common pleas "allegedly is interested in a proceeding pending before the court, allegedly is related to or has a bias or prejudice for or against a party to a proceeding pending before the court or a party’s counsel, or allegedly otherwise is disqualified to preside in a proceeding pending before the court," then that party or the party’s counsel may file an affidavit of disqualification with the clerk of this court.

{¶ } Croskery alleges that Judge Triggs is biased against him and his clients and has created the appearance of bias. He maintains that the judge has formed a "fixed anticipatory judgment" against his clients by disregarding the mandate of a superior court ordering the judge to allow the claims to be decided by a jury. According to Croskery, the First District’s reversal of Judge Triggs’s grant of summary judgment and its finding that there are triable issues precluded Judge Triggs from entering a directed verdict. Croskery claims that the judge advocated on behalf of Cintrifuse and aggressively questioned him in "a sneering tone." He also points to the First District’s reversal of Judge Triggs’s award of sanctions and its determination that there was no frivolous conduct. Croskery notes the judge’s error in bifurcating the trial, and he refers to an instance in which the judge continued trial when one of Cintrifuse’s witnesses had "an undisclosed family matter" but pointedly did not grant Croskery’s own motion to appear at a hearing by telephone. Lastly, Croskery submits that Judge Triggs admitted he did not like Croskery.

{¶ } Judge Triggs asserts that he has no bias or prejudice against Croskery or Croskery’s clients and instead has made legal decisions based on his under-standing of the issues in the case and the law that applies to them. He says that Croskery simply disagrees with his legal rulings, seeks to delay the proceedings, and would prefer a trial in which counsel can "throw[ ] out a multitude of issues and accusations in hopes that one takes root with the jury." The judge explains that he granted the directed verdict after opening statements based on his interpretation and application of the law to the case, not because of bias. Judge Triggs maintains that he has read every filing, listened to arguments, and applied the law in a fair and unbiased manner. However, the judge does not deny saying that he does not like Croskery.

Disqualification of a Common-Pleas-Court Judge

{¶ } As explained above, R.C. 2701.03(A) provides two specific grounds and a catchall provision for the disqualification of a judge of a court of common pleas. Granting or denying an affidavit of disqualification turns on whether the chief justice determines that the interest, bias or prejudice, or disqualification alleged in the affidavit exists. R.C. 2701.03(E).

{¶ } The burden falls on the affiant to submit "specific allegations on which the claim of interest, bias, prejudice, or disqualification is based and the facts to support each of those allegations." R.C. 2701.03(B)(1). Therefore, "[a]n affidavit must describe with specificity and particularity those facts alleged to support the claim." In re Disqualification of Mitrovich, 2003-Ohio-7358, ¶ 4.

{¶ } As stated above, Croskery alleges that Judge Triggs is biased against him and his clients and that the judge should be disqualified to avoid the appearance of bias.

{¶ } R.C. 2701.03(A) "speaks in terms of actual bias and prejudice." (Emphasis in original.) In re Disqualification of Berhalter, 2023-Ohio-488l, ¶ 29. The General Assembly did not define "bias or prejudice" for purposes of the statute. However, as explained in prior disqualification cases, "[t]he term ‘bias or prejudice’ ‘implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’" In re Disqualification of O’Neill, 2002-Ohio-7479, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). "‘Bias or prejudice on the part of a judge will not be presumed. In fact, the law presumes that a judge is unbiased and unprejudiced in the matters over which he presides, and bias or prejudice must be strong enough to overcome the presumption of his integrity.’" Id. at ¶ 16, quoting 48A C.J.S., Judges, § 108, at 731 (1981). "A determination of whether a judge is biased or prejudiced is based on the judge’s words and/or actions and whether those words and/or actions convey that the judge is predisposed to an outcome of a case." Berhalter at ¶ 28.

{¶ } "A judge’s subjective bias, however, is not easy to discern. The United States Supreme Court has recognized that ‘[t]o establish an enforceable and workable framework, the Court’s precedents [also] apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present.’" (Bracketed text in or...