[Cite as In re Disqualification of Sheward, 136 Ohio St.3d 1262, 2013-Ohio-4244.]
IN RE DISQUALIFICATION OF SHEWARD.
SIMONETTI ET AL. v. ADAMS-KARL INVESTMENTS, L.L.C., ET AL.
ADAMS v. SIMONETTI ET AL.
[Cite as In re Disqualification of Sheward, 136 Ohio St.3d 1262,
2013-Ohio-4244.]
Judges—Affidavit of disqualification—R.C. 2701.03—Waiver of right to
disqualify judge—Affidavit of disqualification must be filed as soon as
possible after the incident giving rise to the claim of bias or prejudice
occurred—Affiant has the burden to identify specific allegations of bias
and ensure that the allegations can be verified by the record—
Disqualification of judge not warranted.
(No. 13-AP-073—Decided August 14, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Franklin County Court of Common Pleas
Case Nos. 11CVH-2192 and 12CV-4166.
____________________
O’CONNOR, C.J.
{¶ 1} Bret Adams has filed another affidavit with the clerk of this court
under R.C. 2701.03 seeking to disqualify Judge Richard S. Sheward from
presiding over any further proceedings in the above-referenced cases. Adams’s
two previous affidavits were denied by entry dated July 3, 2013. In re
Disqualification of Sheward, 136 Ohio St.3d 1239, 2013-Ohio-3488, 993 N.E.2d
764.
{¶ 2} Adams continues to argue that Judge Sheward’s comments and
conduct reflect personal bias against him. To support his allegations, Adams
submitted a transcript from a January 2013 hearing, and he resubmitted—this
time, under oath—three “rebuttal letters” from his previous affidavit-of-
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disqualification cases. Adams also claims that facts were “overlook[ed]” in those
previous cases.
{¶ 3} For the reasons explained below, no basis has been established to
order the disqualification of Judge Sheward.
The January 2013 hearing transcript
{¶ 4} It is well established that an affidavit of disqualification must be
filed “as soon as possible after the incident giving rise to the claim of bias and
prejudice occurred,” and failure to do so may result in waiver of the objection,
especially when “the facts underlying the objection have been known to the party
for some time.” In re Disqualification of O’Grady, 77 Ohio St.3d 1240, 1241,
674 N.E.2d 353 (1996). Here, Adams claims that Judge Sheward made biased
comments at a January 16, 2013 hearing. Yet Adams did not file his affidavit
relating to these comments until August 9, 2013—almost seven months later and
two weeks before the scheduled trial. If Adams believed that the comments
reflected bias, he should have timely sought disqualification. See In re
Disqualification of Corrigan, 91 Ohio St.3d 1210, 1210-1211, 741 N.E.2d 137
(2000) (affiant waived objections to judge when incidents giving rise to claim of
bias occurred “several months prior to the filing of the affidavit” and affiant filed
“less than three weeks before the scheduled trial”).
{¶ 5} Notwithstanding his delay, Adams also waived these claims by not
including the transcript with his previous affidavits of disqualification. See, e.g.,
In re Disqualification of Forchione, 134 Ohio St.3d 1235, 2012-Ohio-6303, 983
N.E.2d 356, ¶ 14 (an affiant’s failure to assert allegations in an original affidavit
resulted in waiver of the allegations raised in an amended affidavit). If Adams
believed the complained-of comments demonstrated bias, he had the opportunity
to identify the comments and submit the transcript with his previous affidavits.
Adams’s characterization of the transcript as rebuttal evidence to statements by
Judge Sheward in the previous cases is unconvincing. In his previous affidavits,
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January Term, 2013
Adams claimed that Judge Sheward made “personal attacks” against him, but the
affidavits were denied, in part, because Adams failed to submit specific examples
with supporting evidence, as R.C. 2701.03 requires. In re Disqualification of
Sheward, 136 Ohio St.3d 1239, 2013-Ohio-3488, 993 N.E.2d 764. He cannot now
remedy this failure by attempting to introduce the transcript in rebuttal. As
nothing in the record justifies Adams’s delay in filing the affidavit or his failure to
include the transcript in his previous affidavits, Adams has waived the right to
disqualify Judge Sheward based on comments at the January 2013 hearing. To
allow such allegations now—on the eve of trial—would hamper the orderly
administration of judicial proceedings.
{¶ 6} Even if Adams has not waived these claims, his new affidavit is
deficient in another respect: he failed to properly substantiate his allegations of
bias. His affidavit quotes two portions of the January 2013 hearing transcript, and
he submitted the entire 59-page transcript as an exhibit. However, Adams did not
provide page references for the quoted portions. Pinpoint citations to the
transcript are required so that the allegedly prejudicial comments may be read in
context. Again, Adams had the burden not only to identify specific allegations of
bias but also to ensure that these allegations could be verified by the record. See,
e.g., In re Disqualification of Forchione at ¶ 30 (“It is not the chief justice’s job
* * * to sift through hundreds of pages of transcript to find support for [affiant’s]
allegations or to speculate what conduct he considers hostile”). Adams failed to
carry that burden here.
Adams’s sworn rebuttal letters and other arguments
{¶ 7} Adams’s three rebuttal letters from his previous cases are
insufficient to warrant disqualification. As an initial matter, Adams could have
submitted the rebuttal letters—under oath—in the previous proceedings; he
therefore forfeited the ability to submit them now. More important, two of the
letters were irrelevant to the previous proceedings, as the letters attempted to
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rebut allegations from an unsworn letter submitted by Adams’s former counsel.
And nothing in the third rebuttal letter establishes that Judge Sheward has a
personal bias against Adams. For example, Adams claims that no other judge in
Franklin County would have excluded Adams’s witnesses merely because his
attorney missed a filing deadline. But it is well settled that “a judge’s adverse
rulings, even erroneous ones, are not evidence of bias or prejudice” and therefore
are not grounds for disqualification. In re Disqualification of Fuerst, 134 Ohio
St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14. The remedy for Adams’s
legal claims, if any, lies on appeal, not through the filing of an affidavit of
disqualification. See In re Disqualification of Russo, 110 Ohio St.3d 1208, 2005-
Ohio-7146, 850 N.E.2d 713, ¶ 6.
{¶ 8} Similarly, none of Adams’s remaining arguments demonstrates
that his previous affidavits of disqualification were wrongly decided. Adams’s
attempt to reargue the merits of those cases is not well taken.
Conclusion
{¶ 9} “A judge is presumed to follow the law and not to be biased, and
the appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-
Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in
this case. Moreover, “absent extraordinary circumstances, a judge will not be
subject to disqualification after having presided over lengthy proceedings in a
pending case.” In re Disqualification of Celebrezze, 94 Ohio St.3d 1228, 1229,
763 N.E.2d 598 (2001). Judge Sheward has presided over these cases for a
lengthy time period, and Adams has not conclusively established that any
“extraordinary circumstances” exist here.
{¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The cases may proceed before Judge Sheward.
________________________
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