Landzberg v. 10630 Berea Road3/14/2002
JUDGMENT: AFFIRMED.
Defendant-appellant 10630 Berea Road, Inc., dba U41A Nightclub, appeals from the trial court's granting of plaintiff- appellee Mikhael Landzberg's motion to disqualify attorney Timothy Gallagher and his employer law firm, Schwarzwald, Rock & McNair, L.P.A. (the Firm ), as defense counsel. For the reasons adduced below, we affirm.
A review of the record on appeal indicates that appellee, claiming that he had been assaulted on the premises of appellant, filed his complaint for premises liability and negligent security against appellant on June 4, 1999 ( Landzberg I ). On November 30, 1999, attorney Mark Rock, of the Firm, filed (1) an entry of appearance as counsel and (2) a request for an extension of time to plead on behalf of appellant. On December 9, 2000, attorney Gallagher, of the Firm, with leave of court, filed an answer to the complaint on behalf of appellant. Thereafter, attorney Rock acted as defense counsel and conducted the appellee's deposition. On August 29, 2000, after being denied an extension of time to conduct discovery, appellee voluntarily dismissed his action without prejudice.
On December 14, 2000, appellee re-filed his action ( Landzberg II ). On January 22, 2001, attorney Gallagher, of the Firm, filed an answer to the re-filed complaint. Thereafter, discovery responses by attorney Gallagher indicated that attorney Rock was a shareholder and co-manager in the appellant nightclub, and was present at the nightclub at the time of appellee's assault as the manager on duty.
On April 2, 2001, appellee filed his motion to disqualify the rm and attorney Gallagher as defense counsel pursuant to DR 5- 101(B) and 5-102(A) alleging that attorney Rock would be a material witness in the case. On April 9, 2001, the defense filed a brief in opposition to disqualification. On April 17, 2001, the date the motion to disqualify was scheduled for oral hearing, the court met with counsel for the parties in-chambers without the presence of a court reporter. At this in-chambers meeting, the parties agree that they argued the issue of disqualification and responded to questioning by the trial judge. Later that day, the trial court granted the motion to disqualify counsel and ordered appellant to obtain new counsel by April 30, 2001. This disqualification order was journalized on April 19, 2001.
Instead of retaining new counsel, appellant filed its notice of appeal on April 27, 2001 from the April 19, 2001 order granting disqualification. Also on April 27, 2001, appellant filed a motion with the trial court seeking to stay the order of disqualification pending appellate review. The record was filed on May 24, 2001 pursuant to App.R. 10.
Thereafter, the parties jointly agreed to a statement of the evidence and proceedings pursuant to App.R. 9(C), which was to serve as the transcript of what had occurred at the in-chambers meeting on the motion to disqualify. This statement, by way of motion, was then submitted on May 25, 2001 to the trial court for settlement and approval.
On July 26, 2001, and while the appeal was pending, the trial court convened to hear the motion to settle and approve the 9(C) statement but, instead, conducted a recorded hearing during which it essentially re-heard the arguments of counsel concerning the motion to disqualify counsel, took no sworn testimony from any witnesses, and thereafter clarified the motion ruling in lieu of approving a statement pursuant to App.R. 9(C). See Tr. 22. After this hearing, the trial court re-affirmed its previous granting of the motion to disqualify. See order dated July 27, 2001 (an unjournalizedcarbon copy of the status form order is in the
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