Sidloski v. Fischer (In re Goering)

• Docket Number: 24-AP-123
• Decision Date: 29 August 2024
• Citation: Sidloski v. Fischer (In re Goering), 177 Ohio St.3d 1241 (Ohio Ct. Com. Pl. 2024)
• Parties: In re Disqualification of Goering. Sidloski v. Fischer.
• Court: Ohio Court of Common Pleas

177 Ohio St.3d 1241

In re Disqualification of Goering.

Sidloski v. Fischer.

[Cite as In re Disqualification of Goering, 2024-Ohio-6137.]

Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to present evidence to support one of the bases for disqualification set forth in R.C. 2701.03(A)—Disqualification denied.

(No. 24-AP-123—Decided August 29, 2024.)

On Affidavit of Disqualification in Hamilton County Court of Common Pleas, General Division, Case No A-2200702.

Kennedy, C.J.

{¶ 1} John J. Uustal, attorney for David Sidloski, the plaintiff in the underlying civil case, has filed an affidavit of disqualification pursuant to R.C. 2701.03 seeking to disqualify Judge Robert A. Goering of the Hamilton County Court of Common Pleas, General Division, from presiding over the case. Judge Goering filed a response to the affidavit of disqualification.

{¶ 2} As explained below, Uustal has not established that the judge should be disqualified. Therefore, the affidavit of disqualification is denied. The case shall proceed before Judge Goering.

Trial-Court Proceedings

{¶ 3} Sidloski has brought a negligence claim against the operator of a 2018 Yamaha 212X jet boat and product-liability claims against three Yamaha corporate entities (collectively, "Yamaha"), alleging that the operator and Yamaha proximately caused the wrongful death of Allyson M. Sidloski. The matter was set for a jury trial on August 26, 2024.

{¶ 4} In advance of trial, 42 motions were filed by the parties, 12 by the plaintiff and 30 by the defendants. These motions included motions for summary judgment and motions in limine. The motions for summary judgment and attachments alone spanned approximately 3,400 pages.

{¶ 5} Oral argument on Yamaha’s motion for summary judgment was scheduled for August 2. That day, Judge Goering asked the parties whether there was any objection to his meeting separately with Uustal and counsel for Yamaha in chambers off the record. No one objected.

{¶ 6} During the unrecorded in-chambers conferences, counsel for Yamaha agreed to continue the trial. Later that night, Uustal left a voicemail for the judge’s clerk indicating that he too agreed to a continuance; the clerk received the voicemail on August 5.

{¶ 7} After the in-chambers conferences concluded, Judge Goering heard arguments on Yamaha’s motion for summary judgment.

{¶ 8} On August 12, Uustal filed the affidavit of disqualification.

Affidavit-of-Disqualification Proceedings

{¶ 9} R.C. 2701.03(A) provides that if a judge of the 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.

{¶ 10} Uustal alleges that Judge Goering should be disqualified to "avoid the appearance of bias, prejudice, and/or impropriety."

{¶ 11} Before considering Uustal’s allegations against Judge Goering, a preliminary matter must be addressed: whether Uustal’s affidavit and the third-party affidavits submitted with the affidavit of disqualification are sufficient under Ohio law. A portion of Uustal’s affidavit and portions of Sidloski’s affidavit are not.

Requirements of an Affidavit

{¶ 12} This court has long held that "an affidavit must appear on its face to [be] … in compliance with all legal requisitions." Benedict v. Peters, 58 Ohio St. 527, 536 (1898). In Ohio, an affidavit is a "written declaration [made] under oath." R.C. 2319.02. As such, an affidavit is a form of written testimony. See Wallick Properties Midwest, L.L.C. v. Jama, 2021-Ohio-2830, ¶ 18 (10th Dist.). A party may present a witness’s testimony to a court only if "evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Evid.R. 602. A witness is traditionally "‘incompetent’ to testify to any fact unless he or she possesses firsthand knowledge of that fact." Weissenberger, Weissenberger’s Ohio Evidence Treatise, § 602.1 (2024); see also State v. Fears, 1999-Ohio-111, ¶ 36 (determining that testimony not based on personal knowledge was inadmissible). Therefore, "statements contained in affidavits must be based on personal knowledge." Carkido v. Hasler, 129 Ohio App.3d 539, 548, fn. 2 (7th Dist. 1998); see 2A C.J.S., Affidavits, § 46, at 285-287 (2023); see, e.g., Civ.R. 56(E), S.Ct.Prac.R. 12.02(B)(2).

{¶ 13} "‘Personal knowledge’ is ‘[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.’" (Bracketed text in original.) Bonacorsi v. Wheeling & Lake Erie Ry. Co., 2002-Ohio-2220, ¶ 26, quoting Black’s Law Dictionary (7th Rev.Ed. 1999). It follows that ‘"[o]ne who has no knowledge of a fact except what another has told him cannot, of course, satisfy the … requirement of knowledge from observation.’" Dublin City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 1997-Ohio-327, ¶ 12, quoting 1 McCormick, Evidence, § 10, at 40 (4th Ed. 1992).

{¶ 14} Paragraph 18 of Uustal’s affidavit merely describes Sidloski’s "feelings." He does not articulate his own observations of Sidloski; rather, his averments simply mirror the averments in Sidloski’s affidavit. Therefore, paragraph 18 of Uustal’s affidavit is stricken.

{¶ 15} Similarly, paragraphs 6, 7, and 8 of Sidloski’s affidavit recount what Uustal told him was said during the in-chambers conference. Because Sidloski was not present during that conference and does not have any personal knowledge of what happened during it, those paragraphs of his affidavit are stricken.

Appearance of Bias, Prejudice, and/or Impropriety

{¶ 16} In support of the allegations that Judge Goering should be disqualified to "avoid the appearance of bias, prejudice, and/or impropriety," Uustal states that before oral argument on Yamaha’s motion for summary judgment, the judge initiated separate ex parte discussions with counsel for Sidloski and counsel for Yamaha in his chambers, with the agreement of these counsel. The in-chambers conferences were not recorded.

{¶ 17} Uustal claims that during his ex parte discussion with the judge, the judge improperly addressed "multiple substantive matters" like the judge’s view of the strength of Yamaha’s motion for summary judgment and a motion in limine aimed at Sidloski’s expert. According to Uustal, the judge’s comments reflected his prejudging the merits of the case.

{¶ 18} Moreover, Uustal asserts that the judge’s conduct during oral argument on Yamaha’s motion for summary judgment also shows that the judge should be disqualified. Uustal did not provide a transcript of the oral argument. Nonetheless, Uustal claims that Judge Goering made comments at oral argument suggesting that the judge had disregarded evidence submitted in opposition to Yamaha’s motion for summary judgment and would fail to look at the evidence in the light most favorable to the nonmovant, Sidloski. Uustal suggests that Judge Goering made these comments because the judge had not fully reviewed the evidence. But even if the judge has fully reviewed the evidence, Uustal maintains, the judge will disregard it because he is prejudiced against personal-injury claimants. In support of his position, Uustal attaches to the affidavit a filing from the underlying case reiterating the evidence in support of Sidloski’s claims.

{¶ 19} Attorney Charles A. Rittgers provided a supporting affidavit, but it discusses a hearing on a motion to compel held in February 2024. That hearing is not specifically alleged to be a basis for disqualification in Uustal’s affidavit. And Sidloski’s supporting affidavit merely describes his feelings and belief that the judge cannot be fair and impartial.

{¶ 20} Judge Goering filed a response and denies that he is biased or prejudiced for or against Sidloski or that he has prejudged the case. The judge also asserts that there is no appearance of impropriety.

{¶ 21} The judge admits that he asked the parties for permission to hold an inchambers conference separately with counsel for Sidloski and counsel for Yamaha before the August 2 oral argument. Judge Goering asserts that no party objected to the separate in-chambers conferences, and he contends that he proceeded with those separate, unrecorded in-chambers conferences in conformity with Jud.Cond.R. 2.9(A)(1).

{¶ 22} Judge Goering states that each in-chambers conference was brief and addressed whether the parties would agree to continue the trial date because of the voluminous motions (12 filed by Sidloski and 30 by the defendants, including motions in limine). Judge Goering told counsel that if the trial was not continued, then counsel had to be prepared to argue 10 or 15 of the motions in limine at a time during the weeks leading up to the trial. Judge Goering points out that counsel for Yamaha agreed to continue the trial during the separate in-chambers conference and that that night Uustal left a voicemail for the judge’s clerk indicating that he too agreed to a continuance.

{¶ 23} The judge admits that he admonished counsel to limit the arguments on summary judgment to the "controlling remaining issues." Judge Goering notes that he had read all the pleadings, motions, and filed depositions and that he was prepared for oral argument, which is why he advised counsel to narrow their arguments.

Disqualification of a Common-Pleas-Court Judge

{¶ 24} As explained above, R.C. 2701.03(A) provides two specific grounds and a catchall provision for the disqualification of a judge of the 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).

{¶ 25} The burden...