Rife v. Morgan

• Decision Date: 18 October 1995
• Docket Number: No. 95,95
• Citation: 667 N.E.2d 450,106 Ohio App.3d 843
• Parties: RIFE, n.k.a. Ropp, Appellee, v. MORGAN, Appellant. CA 19.
• Court: Ohio Court of Appeals

Page 843

106 Ohio App.3d 843

667 N.E.2d 450

RIFE, n.k.a. Ropp, Appellee, v. MORGAN, Appellant.

No. 95 CA 19.

Court of Appeals of Ohio Second District, Clark County.

Decided Oct. 18, 1995.

Stephen E. Schutte, Springfield, for appellee.

Larry Morgan, Springfield, pro se.

Kathleen Kerchansky, Springfield, guardian ad litem.

WOLFF, Judge.

Larry Morgan appeals pro se from a judgment of the Clark County Court of Common Pleas, Juvenile Division, entered December 19, 1994. In this judgment, the trial court reiterated its determination, previously reflected in its December 14, 1993 judgment, that Morgan's child should be placed in the legal custody of her maternal grandparents. Morgan appealed the December 14, 1993 judgment. Rife v. Morgan (Aug. 31, 1994), Clark App. No. 3121, unreported, 1994 WL 472143. In that appeal, Morgan advanced ten assignments of error, nine of which were overruled. This court did sustain Morgan's sixth assignment of error, and we reversed the judgment of December 14, 1993, and remanded the matter for the limited purpose of permitting Morgan to cross-examine the guardian ad litem and having the trial court reconsider the judgment in light of the additional testimony. The trial court conducted the evidentiary hearing required by our remand on November 22, 1994, and rendered its judgment on December 19, 1994, maintaining the legal custody of the child with her maternal grandparents.

In this appeal, Morgan again advances ten assignments of error, the first of which is as follows:

"1. A trial court is without jurisdiction and the trial judge is without authority to proceed with the case once an affidavit of disqualification has been filed."

After this matter was remanded to the trial court, it scheduled the required evidentiary hearing for October 24, 1994. On October 18, 1994, Morgan filed an affidavit of disqualification, seeking the disqualification of the trial court judge. Anticipating that the Chief Justice of the Ohio Supreme Court would not rule on the affidavit of disqualification prior to October 24, 1994, the trial court rescheduled the evidentiary hearing for November 22, 1994. On October 24, 1994, the Chief Justice denied the October 18 affidavit of disqualification. Also on October 24, 1994, Morgan filed another affidavit of disqualification which, according to the Supreme Court's entry of December 16, 1994, contained "grounds different from the October 18 filing." The trial court appears to have been unaware of the October 24, 1994 affidavit of disqualification in view of its statement on the record November 22, 1994, the date to which the evidentiary hearing had been rescheduled:

"Let the record show that Mr. Morgan has represented to the court today through his attorney, Mr. Ricketts, that on October 24th, 1994 he, in fact, filed another application with the Ohio Supreme Court of disqualification against me[;] [t]hat this court has just discussed the matter with the Supreme Court Clerk; that clerk indicates that the application, if it was filed on that date, was filed in the previous case that was ruled on on October the 24th and that Mr. Morgan has not filed a subsequent application.

"Therefore, the court will [go] ahead today and take the testimony of Ms. Kerchansky."

On December 16, 1994, the Chief Justice denied the October 24, 1994 affidavit of disqualification. The Supreme Court entry provides as follows:

"An affidavit of disqualification filed by defendant Larry Morgan on October 18, 1994 seeking the disqualification of Judge David D. Mattes was denied by entry dated October 24, 1994.

"Also on October 24, affiant filed another affidavit that was filed by the Clerk under the same case number as the October 18 affidavit, Supreme Court No. 94-AP-166. The October 24 affidavit contains grounds different from the October 18 filing and therefore will be separately considered.

"The allegations contained in the October 24 affidavit do not support a finding of bias or prejudice and therefore the affidavit is denied.

"This is the fifth affidavit filed by the same affiant to disqualify the same judge from the same case. Affiant is reminded of the statement contained in the October 24, 1994 entry that the filing of repeated affidavits of disqualification 'could result in appropriate action being taken.' "

The issue raised by the first assignment of error is whether the trial court was without jurisdiction to proceed with the November 22, 1994 evidentiary hearing due to the pending affidavit of disqualification which had been filed October 24, 1994, and which had not been ruled upon by the Chief Justice of the Ohio Supreme Court as of the time that the evidentiary hearing was conducted.

Morgan cites Cuyahoga Cty. Bd. of Mental Retardation v. Assn. of Cuyahoga Cty. Teachers of Trainable Retarded (1975), 47 Ohio App.2d 28, 1 O.O.3d 168, 351 N.E.2d 777, for the proposition that the trial court lacked authority to proceed with the evidentiary hearing and that the proceedings on November 22, 1994, and the resulting judgment, were therefore a nullity. The Court of Appeals for Cuyahoga County stated:

"[W]e hold that once the affidavit of prejudice was filed, the trial court was without authority to proceed to hear the case or to determine any matter affecting the substantial rights of the parties." Id. at 37, 1 O.O.3d at 173-174, 351 N.E.2d at 784.

Standing alone, that case appears to support the proposition that Morgan advances to this court. However, in Cleveland v. White Properties, Inc. (1985), 28 Ohio App.3d 37, 28 OBR 47, 501 N.E.2d 1231, the same Court of Appeals relaxed the apparent rigor of Cuyahoga Cty. Bd. of Mental Retardation. In White Properties, trial had been scheduled for July 2, 1984. On June 26, 1984, the attorney for White Properties filed an affidavit of disqualification against the trial judge. On July 2, 1984, trial was continued indefinitely. On July 27, 1984, the affidavit of disqualification was denied. On September 14, 1984, the trial court scheduled trial for November 5, 1984. On October 31, 1984, the attorney for White Properties filed a second affidavit of disqualification against the trial judge. Notwithstanding the pendency of the affidavit of disqualification, the trial court proceeded with the previously scheduled trial on November 5, 1984, and a verdict was rendered in favor of the city of Cleveland. On November 9, 1994, the second affidavit of disqualification was "denied consideration." On November 14, 1984, the jury verdict was reduced to judgment. On appeal, White Properties advanced essentially the same contention that Morgan advances in this case.

The court of appeals stated that the "well established" Ohio law was that "[o]nce a party files an affidavit [of disqualification], the trial judge does not have the power to proceed with the case until the Chief Justice of the Supreme Court has ruled on the affidavit," citing Cuyahoga Cty. Bd. of Mental Retardation. However, the court of appeals affirmed the action of the trial court because of the particular circumstances of the case, stating:

"[T]he unique fact pattern in the case sub judice warrants special consideration. In the case sub judice, appellant's attorney, on June 26, 1984, filed an affidavit of prejudice. Accordingly, after the filing of this first affidavit of prejudice, the trial court continued the case indefinitely. Thereafter, the Supreme Court found the affidavit to be meritless. Thus, the trial court again set the case for trial. Shortly before the next trial date, the same attorney again filed substantially the same affidavit of prejudice against the same judge in the same case when nothing had occurred in the case between the ruling on the first affidavit and the filing of the second affidavit except the setting of a new trial date.

" * * * "[T]his court holds: Where an attorney files a second affidavit of prejudice which is substantially the same as the first, against the same judge in the same case after the Supreme Court has denied the first affidavit and there has been no change in the status of the case from the time of the ruling on the first affidavit to the time of the filing of the second affidavit, except for the setting of a new trial date, the trial court has the power to proceed to trial prior to receiving the Supreme Court's ruling on the second affidavit. To hold otherwise under this specific fact situation would encourage attorneys to utilize affidavits of prejudice as a tactic to delay trial. The Rules of Civil Procedure were promulgated to promote the efficient goals of justice and should not be corrupted to suit the purposes of attorneys to defeat these goals for their own convenience." (Emphasis sic.) Id., 28 Ohio App.3d at 38-39, 28 OBR at 48-49, 501 N.E.2d at 1233.

As did the court of appeals in White Properties, we believe that the circumstances of this case warrant our affirming the action of the trial court in proceeding with the evidentiary hearing on November 22, 1994, notwithstanding the pendency of an affidavit of disqualification. We cannot say on the record before us, as could the court of appeals in White Properties, that Morgan's October 24, 1994 affidavit of disqualification was "substantially the same" as his October 18, 1994 affidavit of disqualification because the Supreme Court's entry, supra, stated that the grounds for the October 24 affidavit were different from the grounds for the October 18 affidavit. We can and do, however, take note of the Chief Justice's observation that the October 24, 1994 affidavit was Morgan's fifth affidavit to disqualify the same judge in the same case and of his reminder to Morgan that the filing of repeated affidavits "could result in appropriate action being taken." The logical inference to be drawn is that the Chief Justice had found all of Morgan's affidavits to be wanting in substance, if not outright frivolous.

R.C. 2701.03, which provides for the filing of an affidavit of...