Podor v. Harlow
| Decision Date | 11 October 2018 |
| Docket Number | No. 106442,106442 |
| Citation | 2018 Ohio 4110 |
| Parties | KENNETH C. PODOR PLAINTIFF-APPELLEE v. ALBERT L. HARLOW, ET AL. DEFENDANTS-APPELLANTS |
| Court | Ohio Court of Appeals |
Robert C. Rosenfeld
Robert Charles Rosenfeld Law Offices
16 S. Main Street
P.O. Box 23667
Chagrin Falls, Ohio 44023
Daren Niemi
The Podor Law Firm, L.L.C.
33565 Solon Road
Solon, Ohio 44139
{¶1} Defendants-appellants, Albert L. Harlow, Jr. ("Harlow"), Danette Harlow ("D. Harlow"), Clickit Connect d.b.a. Clickit Labs Co. ("Clickit Connect"), Click It Compliance Corp. ("Clickit Compliance"), iNamics Corp. ("iNamics"), attorney Robert C. Rosenfeld ("Rosenfeld"), and The Robert C. Rosenfeld LL.M. Co. L.P.A. ("Rosenfeld LL.M.) appeal the trial court's finding that a conflict of interest prevents Rosenfeld and Rosenfeld LL.M. from representing their codefendants in the case. We affirm.
{¶2} Appellants' App.R. 9(C) submission was noncompliant, and the appeal was converted to an App.R. 9(A) record. In the absence of a transcript or App.R. 9(C) narrative statement, we have nothing to pass upon and we must presume the regularity of the trial court's proceedings. Krawulski v. Blvd. & Neal Terrace Apts. Ltd., 8th Dist. Cuyahoga No. 93409, 2010-Ohio-3505, ¶ 21, citing Hardy v. Fell, 8th Dist. Cuyahoga No. 88063, 2007-Ohio-1287, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980), and App. R. 9(B) and (C).
{¶3} "We presume that the trial court considered all the evidence and arguments raised." Miranda v. Saratoga Diagnostics, 2012-Ohio-2633, 972 N.E.2d 145, ¶ 26 (8th Dist.). We accept the factual findings of the trial court as true and limit our review to the legal conclusions of the trial court. Bailey v. Bailey, 8th Dist. Cuyahoga No. 98173, 2012-Ohio-5073, ¶ 8, citing Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. FranklimNo. 11AP-965, 2012-Ohio-1665, ¶ 8. App.R. 16(A)(6) provides that an "appellant shall include in its brief * * * [a] statement of facts relevant to the assignments of error presented for review, with appropriate references to the record." In this case, the statement of facts section of appellants' brief states — "none per court order." We construe the "omission to mean that the facts * * * are not dispositive of or necessary to resolving the assigned error." State v. Gross, 8th Dist. Cuyahoga No. 104851, 2017-Ohio-2986, ¶ 2.
{¶4} On January 5, 2017, plaintiff-appellee Kenneth C. Podor ("Podor"), a licensed Ohio attorney represented by members of the Podor Law Firm in this case, filed a complaint against appellants. The caption includes a notation that the case is a "refiling of Cuyahoga C.P. No. CV-12-796051 () (previously consolidated with Cuyahoga C.P. No. CV-12-782070)"1 ("2012 cases").
{¶5} Distilled, Podor asserts that Harlow was the president and chief executive officer of iNamics and that since October 2005, Harlow and iNamics engaged in a pattern of fraudulent activities and material misrepresentations designed to induce Podor to provide loans and investment funds to iNamics, resulting in damages to Podor.
{¶6} According to Podor, Harlow, D. Harlow, Rosenfeld, and Rosenfeld LL.M. collaborated to form Clickit Connect and Clickit Compliance as successor or affiliatecompanies to iNamics and illegally or improperly transferred iNamics' assets, receivables, and business opportunities to Clickit Connect and Clickit Compliance. Harlow and D. Harlow were owners, managers, and/or employees of the appellant companies. Rosenfeld and Rosenfeld LL.M. formed the companies and provided legal representation and counsel. Appellants' actions purportedly diluted the value of Podor's interest in iNamics. Podor's claims also include failure of iNamics to honor a promissory note held by Podor as well as civil conspiracy.
{¶7} Further as to Rosenfeld and Rosenfeld LL.M., Podor alleges the commission of legal malpractice for failing to zealously represent Podor's interests in the operation of the business. Podor lists violations by Rosenfeld and Rosenfeld LL.M. of various professional conduct rules based on their concurrent representation of the appellants, concurrent representation of appellants and Podor in operating the business, and representation of certain of the appellants in the 2012 lawsuits initiated against them by Podor.
{¶8} Appellants argue that the claims in this case regarding Podor's investment in iNamics were resolved in the settlement of the 2012 cases. Appellants also request that this court consider the facts underlying Harlow, Jr. v. Podor, Cuyahoga C.P. No. CV-17-889287 filed November 11, 2017, appealed to this court on February 28, 2018, 8th Dist. Cuyahoga No. 106872, dismissed for lack of a final appealable order on March 27, 2018. During oral argument of the instant case, appellants informed this court that anappeal of that case was refiled two days prior to oral argument. That appeal is pending separately and is not under consideration here.
{¶9} This court's focus is confined to the single assigned error on appeal arising from the October 25, 2017 journal entry that disqualified named codefendants Rosenfeld and Rosenfeld LL.M. as counsel for the appellants:
After consideration of the motion, briefs, and arguments made, the court finds that a conflict of interest does exist for attorney Robert Rosenfeld to represent any other defendant in this suit except Robert C. Rosenfeld and the Robert C. Rosenfeld LL.M. Co., LPA. Therefore, attorney Rosenfeld is prohibited from representing any other defendants but Robert C. Rosenfeld and the Robert C. Rosenfeld LL.M. Co., LPA. * * * The clerk is ordered to remove attorney Robert C. Rosenfeld as attorney of record for defendants Albert Harlow, iNamics Corp., Clickit Compliance Corp., Clickit Labs Co., and Danette Harlow. Robert C. Rosenfeld is ordered to notify these defendants of their or new counsel's required attendance at the pretrial.
{¶10} An order "'granting a motion to disqualify opposing counsel is a final appealable order'" under R.C. 2505.02, Grimes v. Oviatt, 8th Dist. Cuyahoga No. 104491, 2017-Ohio-1174, ¶ 37, quoting Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 10; see also Russell v. Mercy Hosp., 15 Ohio St.3d 37, 39, 472 N.E.2d 695 (1984) . "[A]n order granting disqualification immediately and definitely affects the party it deprives of chosen counsel * * * [and] it typically imposes a permanent effect because it is unlikely to be reconsidered as a trial progresses." (Citations omitted.) Wilhelm-Kissinger at ¶ 9-10.
{¶11} A trial court has broad discretion in determining a motion to disqualify counsel. Quiros v. Morales, 8th Dist. Cuyahoga No. 89427, 2007-Ohio-5442, ¶ 14, citing Spivey v. Bender, 77 Ohio App.3d 17, 601 N.E.2d 56 (6th Dist.1991). A trial court also has wide discretion to exercise its "'inherent authority to supervise members of the bar appearing before it'" including an attorney's inability to "'comply with the Code of Professional Responsibility when representing a client.'" Wynveen v. Corsaro, 8th Dist. Cuyahoga No. 105538, 2017-Ohio-9170, ¶ 14, quoting Fried v. Abraitis, 2016-Ohio-934, 61 N.E.3d 545, ¶ 11 (8th Dist.), citing Royal Indem. Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986), and Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 510 N.E.2d 379 (1987).
{¶12} An unreasonable, unconscionable, and arbitrary decision by a trial court in granting or denying a motion to disqualify counsel constitutes an abuse of discretion and will be reversed upon appellate review. Where there is "'no sound reasoning process that would support the decision,'" the trial court's decision is deemed to be unreasonable. Wynveen at ¶15, quoting Fried at ¶ 11, and citing Centimark Corp. v. Browning Sprinkler Serv., Inc., 85 Ohio App.3d 485, 620 N.E.2d 134 (8th Dist.1993).
{¶13} The party moving for disqualification bears the burden of demonstrating the necessity for removal. WFG Natl. Title Ins. Co. v. Meehan, 8th Dist. Cuyahoga No. 105677, 2018-Ohio-491, ¶ 24, citing Mentor Lagoons, Inc. v. Teague, 71 Ohio App.3d 719, 724, 595 N.E.2d 392 (11th Dist.1991).
{¶14} Count 10 of the complaint sets forth specific allegations of ethical violations and professional misconduct by Rosenfeld and Rosenfeld LL.M. Rosenfeld and Rosenfeld LL.M. represented the remaining appellants, the corporate entities and owners, officers, employees, or directors thereof, in the operation and management of the appellant companies. Rosenfeld and Rosenfeld LL.M. also represented the other appellants in the 2012 litigation, the litigation involved in the separate pending appeal, and now in the current case.
{¶15} Podor argues that the continuing and concurrent representation of appellants by Rosenfeld and Rosenfeld LL.M. implicates Ohio Prof.ConductR. 1.7(a)(1)(2) regarding conflicts of interest of current clients:
See also Lytle v. Mathew, 2017-Ohio-1447, 89 N.E.3d 199, ¶ 23 (8th Dist.), quoting Akron v. Carter, 190 Ohio App.3d 420, 2010-Ohio-5462, 942 N.E.2d 409 (9th Dist.) (...
To continue reading
Request your trial