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Thomas v. Rome

Court of Appeals of Ohio, Eighth District

September 19, 2013

ROBERT THOMAS, ET AL. PLAINTIFFS-APPELLEES
v.
WADE ROME, ET AL. DEFENDANTS-APPELLANTS [APPEAL BY SINGERMAN, MILLS, DESBERG & KAUNTZ CO., L.P.A., ET AL.]

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-799887

ATTORNEYS FOR APPELLANTS: T. Christopher O'Connell Matthew E. Parkins Michael R. Stavnicky Singerman, Mills, Desberg & Kauntz

ATTORNEYS FOR APPELLEES: For Robert Thomas, et al. Richard C. Alkire Dean C. Nieding Richard C. Alkire Co., L.P.A.

For Franklin & Seidelmann Lorraine E. Gaulding Kaufman & Company, L.L.C.

For Reminger & Reminger Co., L.P.A. Bethanie E. Murray Reminger & Reminger Co., L.P.A.

For Wade Rome, et al. Michael R. Gareau Michael R. Gareau & Assoc. Co.

BEFORE: EA. Gallagher, J., Stewart, A.J., and Jones, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, JUDGE

(¶ 1} Appellants Singerman, Mills, Desberg & Kauntz Co., L.P.A., Edmund G. Kauntz and Michael R. Stavnicky (hereinafter referred to as appellants or SMDK), appeal the decision of the trial court denying their motion to quash and for protective order. SMDK argues the trial court erred in failing to quash the records subpoenas or issue a protective order, in determining that it had no ability to address the subpoenaes and in failing to transfer the case to the commercial docket. For the following reasons, we affirm the decision of the trial court.

(¶2} Appellees Robert Thomas, Frederick Laufer, Bryan Kaufman and Apex Radiology, Inc., are the plaintiffs in the Florida action of Thomas v. Rome, Judicial Cir., Broward Cty. Case No. CACE 10-012978. The underlying Florida action arose from an asset purchase agreement of Apex Radiology, Inc. and Franklin & Seidelmann, LLC (hereinafter referred to as FS), for the sale of Apex teleradiology business assets to FS. Appellees Thomas, Laufer and Kaufman along with Wade Rome were shareholders in Apex Radiology at the time of the asset purchase agreement. Apex Radiology was incorporated in the state of Florida with its principal place of business in Broward County, Florida.

(¶ 3} After the parties executed the asset purchase agreement, FS failed to make the required payments under the terms of the note issued in connection with the asset purchase agreement. Apex Radiology filed suit, Apex v. Franklin & Seidelmann, LLC, in the United States District Court for the Northern District of Ohio and appellants Stavnicky and Kauntz along with their firm, SMDK prosecuted the case. An arbitration panel ruled in favor of Apex and ordered the immediate payment of $1, 696, 330.34 to Apex of FS monies being held in escrow.

(¶ 4} The plaintiffs alleged in their complaint and here on appeal, that Rome, as their elected representative, breached his fiduciary obligations to them and the corporation by "failing to properly affect [sic] the APA [asset purchase agreement], by misappropriating certain monies and failing to settle non-assumed liabilities, among other misdeeds." The plaintiffs claim that Wade Rome never distributed any portion of the money to the individual plaintiffs and that Rome and his wife, Kathleen Rome, misappropriated money associated with this arbitration award.

(¶5} In 2010, Wade and Kathleen Rome filed an action against Scott Seidelmann in the common pleas court, Rome v. Seidelmann, Cuyahoga C.P. No. CV-10-726993. Rome and his wife were represented by appellants Stavnicky and SMDK. Rome asserted that the defendants failed to discharge certain agreements that were part of the Apex Radiology asset purchase agreement. The parties eventually reached a settlement in 2013.

(ΒΆ6} In the underlying Florida action, the appellees and both Wade and Kathleen Rome agreed to the issuance of an order permitting the plaintiffs to seek "the issuance of a subpoena for purposes of obtaining depositions, correspondence, and documents from the various individuals listed." (Petition to Auxiliary Court for Issuance of Witness Subpoenae for Depositions Pursuant to Uniform Deposition Act.) Pursuant to this agreement, the Florida court entered an agreed order appointing a commission for the issuance of ...


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