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City of Whitehall v. Olander

Court of Appeals of Ohio, Tenth District

May 18, 2017

City of Whitehall, Ohio et al., Plaintiffs-Appellees,
v.
Thomas J. Olander et al., Defendants-Appellants.

         Appeal from the Franklin County Municipal Court, No. 2007 EVH 60217 Environmental Division

         On brief:

          Eastman & Smith Ltd., Joseph R. Durham, and René L. Rimelspach; Michael T. Bivens, for appellees City of Whitehall and Franklin County District Board of Health.

          Taft Stettinius & Hollister LLP, Joseph C. Pickens, and James V. Maniace, for appellee Receiver Mark S. Froehlich.

          Law Offices of James P. Connors, and James P. Connors, for appellants.

         Argued:

          Joseph C. Pickens.

          Joseph R. Durham.

          James P. Connors.

          DECISION

          BROWN, J.

         {¶ 1} This is an appeal by defendants-appellants, Thomas J. Olander (individually "Olander"), and Woodcliff Condominium Unit Owners' Association (individually "WCUOA"), from a decision and entry of the Franklin County Municipal Court, Environmental Division, disqualifying attorney James P. Connors ("attorney Connors") from representing WCUOA in an underlying receivership proceeding.

          {¶ 2} In Whitehall v. Olander, 10th Dist. No. 14AP-6, 2014-Ohio-4066, ¶ 2, this court previously noted the "extensive history" of litigation in this case, and portions of the following factual background are drawn from our earlier decision. In July 2007, plaintiffs-appellees, City of Whitehall and the Franklin County District Board of Health (collectively "appellees"), filed suit against Olander and WCUOA (collectively "appellants"). Appellees' complaint alleged that "Olander and WCUOA owned the majority of the units" at the Woodcliff Condominium complex ("Woodcliff), located in the city of Whitehall, and that "Olander controlled WCUOA." Id. at ¶ 3. The complaint further alleged that Woodcliff "constituted a public nuisance subject to abatement under R.C. 3767.41 and local ordinances." Id. Appellees requested a court order "permanently enjoining Olander and WCUOA from maintaining the nuisance." Id.

         {¶ 3} The trial court issued an agreed permanent injunction on February 4, 2008. The parties stipulated that Olander and/or WCUOA "owned over 200 of the 317 units at Woodcliff, " and "also stipulated that Woodcliff constituted a public nuisance subject to abatement under R.C. 3767.41 and/or local ordinances." Id. at ¶ 4. Olander "agreed to release * * * control over WCUOA, " and the parties agreed to have the trial court appoint a receiver. Id. In 2008, the trial court initially appointed The Robert Weiler Company as receiver.

         {¶ 4} In an agreed order entered on April 7, 2008, the trial court "outlined some of the receiver's duties with regard to Olander's units and management of WCUOA." Id. After experiencing "difficulties remedying the nuisance, " The Robert Weiler Company subsequently filed a motion to withdraw as receiver. Id. at ¶ 5. In February 2009, the trial court appointed WC Management, LLC ("WCM") as the second receiver. WCM subsequently "took various steps in an effort to abate the nuisance." Id.

         {¶ 5} In June 2011, the trial court issued an order establishing a plan to "shift control of WCUOA from the receiver to the members of WCUOA and continue abatement of the nuisance conditions." Id. at ¶ 7. Appellees subsequently asserted that "the receiver and WCUOA had not complied with the trial court's order, and appellees sought demolition of units at Woodcliff." Id.

         {¶ 6} In 2012, WCM requested to withdraw as receiver. On June 25, 2012, the trial court appointed Mark S. Froehlich (hereafter "receiver Froehlich") as the new receiver. In November 2012, the trial court issued an agreed order "staying issuance of a decision on the motion for demolition." Id. at ¶ 8.

         {¶ 7} On August 12, 2013, WCM filed a motion seeking to intervene as a party-defendant, "claiming it owned 119 Woodcliff units and had, by virtue of assignments, a first mortgage interest in other units." Id. at ¶ 11. The trial court subsequently denied the motion to intervene, and WCM appealed the trial court's denial of its motion. In Olander, this court affirmed the judgment of the trial court denying WCM's motion to intervene.

         {¶ 8} On June 12, 2015, attorney Connors filed a notice of appearance on behalf of Olander. Also on that date, attorney Connors filed on behalf of Olander a motion for an extension of time to respond to appellees' request to vacate an agreed order and a request to reopen an evidentiary hearing on the motion for demolition. On July 9, 2015, attorney Connors filed a notice of appearance on behalf of WCUOA.

         {¶ 9} On July 21, 2015, appellees filed a reply to Olander's memorandum contra appellees' request to vacate an agreed order and motion to set an evidentiary hearing. In the reply, appellees argued that, while Olander "purports to be responding" on behalf of WCUOA, the trial court's entry dated June 25, 2012 "appointed Mark Froehlich as the Receiver for the WCUOA."

         {¶ 10} On July 29, 2015, receiver Froehlich filed a motion to strike the appearance of attorney Connors on behalf of WCUOA. In the accompanying memorandum in support, receiver Froehlich asserted he "has not requested nor authorized the retention of Connors as counsel for the WCUOA, " and that the "[r]eceiver deems the purported retention of Connors as interfering with his Court-imposed obligations to manage and operate the WCUOA."

         {¶ 11} On August 31, 2015, attorney Connors and counsel for receiver Froehlich filed a "stipulation and withdrawal of receiver's motion to strike appearance of James P. Connors on behalf of Woodcliff Condominium Unit Owners['] Association." The stipulation stated in part: "In the interest of preserving court resources and the funds of the Receivership WCUOA, and to encourage further involvement and cooperation of unit owners in the eventual transition process wherein a new board will be elected upon conclusion of this current receivership, * * * the parties wish to resolve the Motion [to strike the appearance of attorney Connors] without further litigation."

          {¶ 12} On September 8, 2015, appellees filed a "response to stipulation and withdrawal of receiver's motion to strike appearance of James P. Connors on behalf of Woodcliff Condominium Unit Owners['] Association." In the response, appellees asserted in part that they were "not contacted by James P. Connors or the Receiver's counsel and did not stipulate to anything." Appellees further argued "there is no WCUOA board, as referenced in the 'Stipulation' suggesting 'a new board will be elected upon conclusion of this current receivership.' " Rather, appellees asserted, "WCUOA is under the control of Receiver Froehlich." Appellees requested that the "Stipulation and Withdrawal of Receiver's Motion to Strike Appearance of James P. Connors on Behalf of Woodcliff Condominium Unit Owners['] Association be withdrawn, stricken, or denied."

         {¶ 13} On October 2, 2015, appellants filed a motion to strike appellees' response to the stipulation. Also on that date, receiver Froehlich filed a motion to quash subpoena issued to him by appellants on September 22, 2015. By entry filed October 6, 2015, the trial court granted receiver Froehlich's motion to quash subpoena. On October 8, 2015, receiver Froehlich filed a notice of withdrawal of the prior stipulation regarding the appearance of attorney Connors on behalf of WCUOA.

         {¶ 14} On October 9, 2015, the trial court conducted a hearing on a motion to demolish certain condominium units. During that hearing, attorney Connors appeared on behalf of Olander and, additionally, sought to represent the interests of WCUOA. On October 26, 2015, the trial court issued a decision and entry disqualifying attorney Connors from representing WCUOA.

         {¶ 15} On appeal, appellants set forth the following three assignments of error for this court's review:

1.The trial court erred by sua sponte disqualifying counsel for the Woodcliff Condominium Unit Owners' Association.
2.The trial court erred by sua sponte disqualifying counsel for the Woodcliff Condominium Unit Owners' Association without first conducting an evidentiary hearing.
3.The trial court erred by denying standing to the Woodcliff Condominium Unit Owners' Association to represent and defend itself in a civil lawsuit as a named party defendant, and by finding that the receiver has exclusive ...

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