Court of Appeals of Ohio, Fifth District, Licking
from the Licking County Common Pleas Court, Case No. 2015 CV
Plaintiff-Appellee JONATHAN A. VELEY
Defendants-Appellants STEPHEN B. WILSON
William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon.
Earle E. Wise, Jr., J.
Appellants The Grill on Twenty First, LLC; Twenty First
Street Properties, LLC; and Eric E. Mason appeal the judgment
entered by the Licking County Common Pleas Court ordering a
former attorney for Appellants to answer questions posed in a
deposition by Appellee Stuart Hinerman.
OF THE FACTS AND CASE
Appellee is a member in the limited liability companies The
Grill on Twenty First and Twenty First Properties, Appellants
in this case. Appellant Mason and Appellee agreed to go into
business together operating a restaurant previously owned and
operated by Appellee.
At the time they were discussing the new venture, Mason was
represented by Attorney Adam Vernau, who was a member of the
Newark law firm of Morrow, Gordon & Byrd. Mason notified
Hinerman he had contacted Vernau to draft the operating
agreements governing the new corporations. Hinerman was
already a client of another attorney at the same law firm,
and agreed to have Vernau prepare the agreements.
On December 20, 2006, Hinerman met with Vernau at the law
firm's office and signed operating agreements with
respect to both companies. The Grill on Twenty First, LLC was
organized to operate the restaurant business, while Twenty
First Street Properties, LLC was organized to own and manage
the real estate on which the restaurant was located.
Appellee filed the instant case on December 7, 2015, seeking
damages for breach of contract and breach of fiduciary duty,
as well as an accounting from Appellants. Appellants filed a
counterclaim against Appellee for breach of contract.
A deposition of Attorney Adam Vernau was scheduled for June
15, 2017. On the day of the deposition, Appellant Mason
asserted all communications between himself and Vernau
regarding the preparation of the operating agreements for the
two companies were privileged. The deposition was cut short
due to Appellant Mason's objections. Appellee sought a
ruling from the court on the issue of whether attorney-client
privilege could be invoked.
After an evidentiary hearing on the issue of attorney-client
privilege, the court allowed the parties to supplement the
record with affidavits from any person who testified at the
hearing, as well as an affidavit from Vernau. The court found
the joint representation exception to the attorney-client
privilege was demonstrated by the evidence, and ordered
Vernau to answer questions as to whether either party gave
special instructions when drafting the contract regarding the
division of losses from the company and the liability of
Hinerman and Mason, and to answer the question as to whether
he drafted any contracts which are the subject of the dispute
of this case.
It is from this October 3, 2017 judgment Appellants prosecute