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Perrella v. Spitz

Court of Appeals of Ohio, Eighth District

June 27, 2013

PETER PERRELLA, ET AL. PLAINTIFFS-APPELLEES
v.
BRIAN SPITZ, ET AL. DEFENDANTS-APPELLANTS

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-768209

ATTORNEYS FOR APPELLANTS Andrew S. Haring Brian D. Spitz The Spitz Law Firm, L.L.C.

ATTORNEYS FOR APPELLEES Natalie F. Grubb Daniel A. Kirschner Kevin Shebesta Grubb and Associates, L.P.A.

BEFORE: Keough, J., S. Gallagher, P.J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, J.

{¶ 1} Defendants-appellants, Brian Spitz and The Spitz Law Firm, L.L.C., (hereinafter "Spitz") appeal the trial court's decision that permitted Spitz's attorney, Jeff Embleton, to testify at the hearing on the motion to enforce settlement agreement filed by plaintiffs-appellees, Peter and Anna Perrella ("the Perrellas"). For the reasons that follow, we modify the trial court's decision and remand for further proceedings.

{¶ 2} In March 2012, the parties entered into a confidential settlement agreement resolving a legal malpractice complaint filed by the Perrellas against Spitz and a counterclaim for outstanding legal fees filed by Spitz against the Perrellas. In August 2012, the Perrellas filed an emergency motion to enforce settlement agreement, alleging that Spitz was attempting to execute on the consent judgment provided for in the settlement agreement when the Perrellas had made the scheduled payments as provided in the settlement agreement.

{¶ 3} Prior to the hearing on the Perrellas' motion, it was discussed whether Spitz's attorney, Jeff Embleton, would be allowed to testify regarding the settlement agreement. Specifically and pertinent to the appeal, the Perrellas sought testimony from Attorney Embleton regarding what he stated about the negotiated settlement amount to the court during an in camera pre-hearing conference in chambers. Spitz objected, arguing that the information sought was protected under attorney-client privilege or work-product privilege. The trial court issued its decision stating,

The parties presented the following questions during the hearing on Plaintiffs Motion for an Emergency Hearing and Motion to Enforce Settlement:

1.) What was Attorney Jeff Embleton's understanding of the Settlement Agreement?
2.) What was conveyed to Attorney Jeff Embleton by Defendants regarding Defendant Brian Spitz's understanding of the Settlement Agreement?
3.) Did Attorney/Defendant Brian waive privilege during the Attorney Conference held in the Court's chambers on 08-07-12?
This Court rules as follows:
It is this Court's intention to permit Attorney Embleton to testify except to his conferencing related to bargaining position that was not ...

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