CLERK OF COURT ^ SUPREME COURT OF OHIO_I J & E CUSTOM HOMES, INC. Defendant/Appellee

Transcription

1 DUANE DICKENS and NORMA DICKENS IN THE SUPREME COURT OF OHIO Plaintiffs/Appellants, V. J & E CUSTOM HOMES, INC. Defendant/Appellee On Appeal from the Montgomery County Court of Appeals, Second Appellate District. Court of Appeals Case No MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS DUANE DICKENS AND NORMA DICKENS Jonathan Hollingsworth ( ) J. Hollingsworth & Associates, LLC 137 North Main Street, Suite 1002 Dayton, Ohio (937) phone (937) facsimile jhollingsworth@jhallc.com Counsel for Appellants Duane Dickens and Norma Dickens John M. Ruffolo ( ) Ruffolo, Stone, Dressel & Lipowicz 7501 Paragon Road Dayton, Ohio (937) phone (937) facsimile ruffololawdayton@aol.com Co-counsel for Appellee J&E Custom Homes, Inc. Kevin C. Connell ( ) Freund, Freeze & Arnold 1 South Main Street, Suite 1800 Dayton, Ohio (937) phone (937) facsimile kconnell@ffalaw.com Counsel for Appellee J&E Custom Homes, Inc. David A. Caborn ( ) Caborn & Butauski Co., LPA 765 South High Street Columbus, Ohio (614) phone (614) facsimile dcaborn@sbcglobal.net Counsel for Erie Insurance Exchange CLERK OF COURT ^ SUPREME COURT OF OHIO_I

2 TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF THE CASE AND FACTS...2 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...4 Proposition of Law No. I: "When a lawyer has had substantial responsibility in a matter for a former client and becomes associated with a new firm, no lawyer in the new firm shall knowingly represent, in the same matter, a person whose interests are materially adverse to the interests of the former client." Prof. Cond. Rule 1.10(c)....4 Proposition of Law No. II: In determining whether to disqualify all the lawyers in a firm pursuant to Prof. Cond. Rule 1.10(c), a court should make the necessary determinations without requiring the client to waive the attorney-client privilege, and should hold an incamera hearing if it is necessary to do so under the circumstances...7 CONCLUSION...10 CERTIFICATE OF SERVICE...10 APPENDIX Appx. Page Opinion of the Montgomery County Court of Appeals ( June 11, 2010)... 1 Judgment Entry of the Montgomery County Court of Appeals (June 11, 2010)...7 ii

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST In 2006, this Court adopted the Ohio Rules of Professional Conduct which govern the conduct of lawyers occurring on or after February 1, Recognizing that confidentiality and conflicts of interest, both actual and apparent, are matters of very significant concern to lawyers and their clients, this Court addressed the imputation of conflicts of interest when lawyers are associated in a firm and one is disqualified from representing a client because of a conflict of interest. In such circumstances, with certain exceptions, the conflict of interest must be imputed to all the lawyers in the firm, and consequently all the lawyers shall be disqualified from representing the client. Pro Cond. Rule One example of circumstances in which a conflict of interest must be imputed to all the lawyers in a firm is "side-switching" by a lawyer, where a lawyer who had represented a client in a particular matter joins a law firm representing a client adverse to the lawyer's former client. As is set forth in detail below, the present proceedings involve a case of such "side-switching" by a lawyer. The unequivocal rule in such cases is that all the lawyers in the new law firm shall be disqualified. Prof. Cond. Rule 1.10(c). Screening is not an option if the lawyer had substantial responsibility in the matter before joining the firm. Pro Cond. Rule 1.10(d). This case presents matters of first impression for this Court, as this Court has neither applied Pro Cond. Rule 1.10 to a particular set of factual circumstances nor set forth the procedure that should be followed by a court faced with a "side-switching" case under this rule. Clearly, it is important not only to lawyers but also to their clients (past, present, and future) that the courts of Ohio address issues relating to "side-switching" by lawyers in a consistent and appropriate manner. This case presents an ideal opportunity for this Court to build upon the foundation established in the Ohio Rules of Professional Conduct and provide guidance 1

4 regarding the interpretation and application of those rules, and thereby ensure that they are applied consistently and appropriately. This case is a case of public or great general interest. STATEMENT OF THE CASE AND FACTS Defendant-Appellee J&E Custom Homes, Inc. ("J&E") agreed to construct a home for Plaintiffs-Appellants Duane and Norma Dickens (the "Dickenses"). The Dickenses allege (among other things) that in January 2006, while the home was still under construction, J&E vindictively arranged for the utilities serving the home to be disconnected, resulting in substantial damage to the home. J&E has alleged that, prior to the disconnection of the utilities, its personal counsel (and co-counsel in the pending matter), John Ruffolo, sent counsel for the Dickenses a letter stating that such disconnection would occur within a few days. At the time in question, the Dickenses were represented by the law firm of Jenks, Pyper & Oxley Co. L.P.A. of Dayton, Ohio ("JP&O"). In accordance with JP&O's practice, representation of the Dickenses had been assigned to two attorneys: Scott G. Oxley (a partner in the firm) and Mark C. Engling (an associate). Later in 2006, the Dickenses retained the law firm of J. Hollingsworth & Associates, LLC, in place of JP&O, in order to file the present lawsuit against J&E. During the course of discovery, J&E learned that the Dickenses were not aware of the letter allegedly sent by Mr. Ruffolo to Mr. Oxley at JP&O prior to the disconnection of the utilities. Accordingly, J&E sought to depose Mr. Oxley. The Dickenses moved for a protective order to prevent Mr. Oxley from testifying regarding matters covered by the attorney-client privilege. The trial court allowed Mr. Oxley's deposition to proceed, essentially so that the applicability of the privilege could be resolved in the context of the specific questions asked by counsel for J&E. 2

5 At the same time, it was discovered that Mr. Engling, the associate at JP&O who represented the Dickenses along with Mr. Oxley, had left JP&O and become an associate at the law firm of Freund Freeze & Arnold ("FF&A"), insurance defense counsel for J&E in the pending matter. Consequently, Judge Langer referred the matter to Magistrate Fuchsman for the purpose of determining whether FF&A should be required to recuse itself from further representation of J&E. Having held an in-camera hearing to detennine the extent of Mr. Engling's involvement in this matter, Magistrate Fuchsman issued an order requiring that FF&A recuse itself from further representation of J&E. The transcript of the hearing before Magistrate Fuchsman was sealed and, therefore, is not available to the parties and their counsel. After reviewing and considering the transcript of the hearing before the magistrate and the parties' submissions (including J&E's objections and the Dickenses' response to J&E's objections), Judge Langer concurred with Magistrate Fuchsman that recusal was appropriate. J&E appealed. After considering the record on appeal and entertaining oral argument, the Court of Appeals for the Second Appellate District held that the trial court erred when it disqualified FF&A "without having afforded [FF&A] an opportunity to fully participate in the evidentiary hearing which resulted in the firm's disqualification." Opinion, p. 6. 3

6 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I "When a lawyer has had substantial responsibility in a matter for a former client and becomes associated with a new firm, no lawyer in the new firm shall knowingly represent, in the same matter, a person whose interests are materially adverse to the interests of the former client." Prof. Cond. Rule 1.10(c). The Ohio Constitution confers upon this Court jurisdiction in all matters relating to the practice of law in Ohio. O. Const. IV 2(B)(1)(g). Also, the Ohio Constitution authorizes this Court to prescribe rules governing practice in all courts in Ohio. O. Const. IV 5(B). Thus, this Court addresses issues relating to conflicts of interest both by ruling on cases that come before it and by prescribing rules. This Court first addressed the consequences of "side-switching" by an attorney in a case that came before it in Having considered the Ohio Code of Professional Responsibility, competing public policy interests, and the guidance provided by federal case law, this Court held: In ruling on a motion for disqualification of either an individual (primary disqualification) or the entire firm (imputed disqualification) when an attorney has left a law firm and joined a firm representing the opposing party, a court must hold an evidentiary hearing and issue findings of fact using a three-part analysis: (1) Is there a substantial relationship between the matter at issue and the matter of the former firm's prior representation; (2) If there is a substantial relationship between these matters, is the presumption of shared confidences within the former firm rebutted by evidence that the attorney had no personal contact with or knowledge of the related matter; and (3) If the attorney did have personal contact with or knowledge of the related matter, did the new law firm erect adequate and timely screens to rebut a presumption of shared confidences with the new firm so as to avoid imputed disqualification? 4

7 Kala v. Aluminum Smelting & Ref. Co. (1998), 81 Ohio St. 3d 1, syllabus. This Court did not reach its conclusion without considerable thought and analysis. Specifically, this Court noted the importance of confidentiality to the attorney-client relationship: A fundamental principle in the attorney-client relationship is that the attorney shall maintain the confidentiality of any information learned during the attorney-client relationship. A client must have the utmost confidence in his or her attorney if the client is to feel free to divulge all matters related to the case to his or her attorney. Kala, at 4. This Court went on to stress that both actual and apparent impropriety should be avoided: In addition, an attorney should avoid even the appearance of impropriety. Because of the importance of these ethical principles, it is the court's duty to safeguard the preservation of the attorneyclient relationship. In doing so, a court helps to maintain public confidence in the legal profession and assists in protecting the integrity of the judicial proceeding. Kala, at 5 (citations omitted). Indeed, this Court expressly stated that doubts must be resolved in favor of disqualification "in order to dispel any appearance of impropriety." Kala, at 11 (emphasis added). Eight years after deciding the Kala case, this Court adopted the Ohio Rules of Professional Conduct which include the following rules regarding imputation of conflicts of interest: (c) When a lawyer has had substantial responsibility in a matter for a former client and becomes associated with a new firm, no lawyer in the new firm shall knowingly represent, in the same matter, a person whose interests are materially adverse to the interests of the former client. (d) In circumstances other than those covered by Rule 1.10(c), when a lawyer becomes associated with a new firm, no lawyer in the new firm shall knowingly represent a person in a matter in 5

8 which the lawyer is personally disqualified under Rule 1.9 unless both of the following apply: (1) the new firm timely screens the personally disqualified lawyer from any participation in the matter and that lawyer is apportioned no part of the fee from that matter; (2) written notice is given as soon as practicable to any affected former client. Prof. Cond. Rule According to the "Comparison to former Ohio Code of Professional Responsibility", divisions (c) and (d) of Prof. Cond. Rule 1.10 were "added to codify the rule" previously set forth by this Court in the Kala case. To the extent that there are differences between the 1998 case and the 2007 rules, however, it is surely the 2007 rules, as this Court's most recent pronouncement, that control. Turning to the present case, it is clear that it falls within the ambit of Prof. Cond. Rule 1.10(c). The matter in question is the ongoing dispute between the Dickenses and J&E regarding the construction of their home and the disconnection of utilities during the construction, and the interests of J&E in this matter are materially adverse to the interests of the Dickenses. Mr. Engling, a lawyer, had substantial responsibility in this matter for the Dickenses, and has since become associated with FF&A. Therefore, no lawyer in FF&A may represent J&E in this matter. The Dickenses submit that this Court should take jurisdiction, enforce the rules it adopted, and reinstate the order of the trial court requiring the recusal of FF&A as counsel for J&E. 6

9 Proposition of Law No. II: In determining whether to disqualify all the lawyers in a firm pursuant to Prof. Cond. Rule 1.10(c), a court should make the necessary determinations without requiring the client to waive the attorney-client privilege, and should hold an in-camera hearing if it is necessary to do so under the circumstances. The Ohio Rules of Professional Conduct do not describe a particular procedure to be followed in connection with a motion to disqualify, but due process presumably requires that the court make the necessary factual determinations on the basis of some form of hearing, and not in a vacuum. Certainly, in Kala, prior to the adoption of the current rules, this Court held that a court should hold an evidentiary hearing: [T]he court should hold an evidentiary hearing on a motion to disqualify and must issue findings of fact if requested based on the evidence presented. Kala, at 12. This Court reaffirmed its position a few years later: A hearing is indeed required when an attorney for a party to a case does not want to be disqualified or when an attorney's law firm wishes to continue representation despite that attorney's conflict of interest. State v. Ross (In re Cirigliano), 2004-Ohio-7352, 105 Ohio St. 3d 1223, at 31. See, also, Green v. Toledo Hospital (2002), 94 Ohio St. 3d 480, 484 (relating to non-attorney employees). This Court chose not to describe in precise terms the required evidentiary hearing. In the absence of any contrary rule or principle, however, a court considering a motion to disqualify presumably has the discretion to determine the nature of the evidentiary hearing to be held, just as it does when considering other motions. For example: The trial court, however, has the discretion to determine the nature of the evidentiary hearing to be held [on a motion for prejudgment interest], as it is in the best position to select the kind of evidence necessary to make the findings required by R.C (C) and determine whether an award of prejudgment interest is proper. 7

10 Having conducted case-management conferences, pretrials, settlement conferences, and the trial, a court in some instances may decide that presentation of evidence by affidavits, depositions, and other documents is sufficient; at other times, the trial court may decide that an oral evidentiary hearing is more appropriate. Pruszynski v. Reeves, 2008-Ohio-510, 117 Ohio St. 3d 92, at It is clear, however, that the requirement for an evidentiary hearing on a motion to disqualify is satisfied even if the court does not hear oral argument and simply takes evidence in the form of affidavits. Kala, at 13. In the present case, the principal factual issue before the court was whether Mr. Engling's responsibility for the Dickenses' matter while he was associated with JP&O was "substantial" (as that term is defined in Prof. Cond. Rule 1.0(m)). As noted above, Judge Langer ruled upon this issue on the basis of a hearing that was held before Magistrate Fuchsman. At that hearing, both Mr. Oxley and Mr. Engling testified. Although the hearing was held in camera and the record of the hearing was sealed, the salient facts that emerged are set forth in the orders of Magistrate Fuchsman and Judge Langer. This approach was, of course, appropriate. If FF&A and counsel for the Dickenses had been present when Mr. Oxley and Mr. Engling testified, then there is a substantial chance that counsel for the Dickenses would have objected to their testimony, or significant parts thereof, on the basis of the attorney-client privilege. In other words, Magistrate Fuchsman probably obtained much more information in the hearing held in camera than he would have obtained in a hearing not held in camera. If the hearing had not been held in camera, and Mr. Oxley and Mr. Engling had been permitted to testify without limitation, then the entire purpose of the attorneyclient privilege and Prof Cond. Rule 1.10 would have been frustrated. 8

11 In any case, it is difficult to imagine what evidence FF&A could possibly have submitted to the trial court that would have had any bearing on the question of whether Mr. Engling had "substantial responsibility" for the Dickenses' matter before becoming associated with FF&A. Having determined that Mr. Engling had substantial responsibility for the Dickenses' matter before becoming associated with FF&A, recusal was mandated pursuant to Prof. Cond. Rule 1.10(c). It was therefore not necessary for the trial court to make any determinations regarding the timeliness and effectiveness of FF&A's efforts to screen Mr. Engling and notify the Dickenses. Pursuant to Prof. Cond. Rule 1.10(d), such actions are relevant only in "circumstances other than those covered by Rule 1.10(c)". However, FF&A submitted evidence (in the form of affidavits) regarding such matters and these matters were considered by the trial court. The Court of Appeals in the present case believes that FF&A should be given an opportunity to participate fully in a further evidentiary hearing. Certainly, in order to rule on a motion for disqualification (or on any other motion), the court should consider both the relevant and admissible evidence, and the applicable law. In the present case, the court did precisely that. No further hearing can add any material evidence to that which is already before the court, or serve any other useful purpose. The question of what procedure should be followed in connection with a motion to disqualify pursuant to Prof. Cond. Rule 1.10(c) is apparently one of first impression for this Court. The Dickenses submit that, to the extent that due process requires that the court make the necessary determinations on the basis of a hearing, then it should be conducted in camera, or in some other manner that avoids forcing the client whose attorney switched sides to waive the attorney-client privilege. 9

12 CONCLUSION Because this case involves matters of public and great general interest, the Dickenses request that this Court accept jurisdiction in this case so that the important issues presented, which appear to be matters of first impression for this Court, will be reviewed on the merits and resolved. Respectfully submitted, Jonathan Hollingsw rth (00229t6) J. Hollingsworth & Associates, LLC 137 North Main Street, Suite 1002 Dayton, Ohio (937) phone (937) facsimile address: jhollingsworth@jhallc.com Counsel for Appellants Duane Dickens and Norma Dickens CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing has been served upon: Kevin C. Connell David A. Caborn Freund, Freeze & Arnold Caborn & Butauski Co., LPA 1 South Main Street, Suite South High Street Dayton, Ohio Columbus, Ohio John M. Ruffolo Ruffolo, Stone, Dressel & Lipowicz 7501 Paragon Road Dayton, Ohio by ordinary first class United States mail, postage prepaid, this 23`d day of July,

13 Eit Ei^, r rnt C V %, ` ^.^ s ^..^. 9nin.juak'1411 /ul 8; 44 I w ull^^fllnlp^i^^^nn^lul^^ ^ IN T^E 1COURT OF"AiPEALS OF MONTGOMERY COUNTY, OHIO DUANE DICKENS, et al. Plaintiffs-Appellees C.A. CASE NO vs. T.C. CASE NO. 06CV3416 J & E CUSTOM HOMES, INC. (Civil Appeal from Common Pleas Court) Defendant-Appellant O P I N I O N Rendered on the _I M- day of ^unp, Jonathan Hollingsworth, Atty. Reg. No , 137 N. Main Street, The Barclay Building, Suite 1002, Dayton, OH Attorney for Plaintiffs-Appellees Duane and Norma Dickens John M. Ruffolo, Atty. Reg. No , 7501 Paragon Road, Dayton, OH and Kevin C. Connell, Atty. Reg. No , 1 S. Main St., Suite 1800, Dayton, OH Attorneys for Defendant-Appellant, J&E Custom Homes, Inc. David A. Caborn, Atty. Reg. No , 765 S. High Street, Columbus, OH Attorney for Erie Insurance Exchange GRADY, J.: This case is before the court on a notice of appeal filed by J&E Custom Homes, Inc. ("J&E"), from a final order of the court of common pleas that disqualified the law firm of Freund, Freeze & Arnold from representing J&E in an action commenced by Duane and Norma Dickens. The Dickenses' complaint alleges breach of THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT Appx. 1

14 contract and related claims arising from J&E's construction of their "dream home" for the Dickenses. Prior to commencement of their action, the Dickenses were represented in their dispute with J&E by Attorney Scott Oxley of the law firm of Jenks, Pyper & Oxley. Attorney Mark Engling was then employed as an associate of that firm, and he assisted Attorney Oxley in the firm's representation of the Dickenses in the matter. Engling has since left Jenks, Pyper & Oxley, and is now employed as an associate of Freund, Freeze & Arnold. It is undisputed that Attorney Engling is personally disqualified pursuant to R.Prof.Cond. 1.9(a) from representing J&E in this action, because his former association with Jenks, Pyper & Oxley involved that firm's representation of Duane and Norma Dickens in the matter their litigation with J&E involves. R.Prof.Cond. 1.10(c) imputes the basis for an attorney's personal disqualification to a firm with which the disqualified attorney subsequently becomes associated if the attorney had a "substantial responsibility" for the representation the attorney or his former firm provided. The trial court found that Attorney Engling had a substantial responsibility for the representation Jenks, Pyper & Oxley had provided the Dickenses, and on that basis also disqualified Freund, Freeze & Arnold from representing J&E in the action the Dickenses had filed. The trial court also expressed a concern that Attorney Engling could be called as a witness in the proceeding. R.Prof.Cond. 3.7 provides that an attorney shall not act as an 2 TFIE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT Appx. 2

15 I advocate at a trial in which the lawyer is likely to be a necessary witness for his client, subject to certain exceptions. The prohibition would disqualify Attorney Engling from representing J&E in the action the Dickenses filed. However, that particular disqualification is not one imputed to other attorneys in a firm with which the disqualified lawyer is associated by R.Prof.Cond. 1.10(c). R.Prof.Cond was promulgated by The Supreme Court of Ohio pursuant to the authority conferred on that court by Section 2(B)(1)(g), Article IV of the Ohio Constitution, to regulate "the discipline of lawyers, and all other matters related to the practice of law." The Official Comment to R.Prof.Cond. 1.10(c) indicates that it is consistent with the holding in Kala v. Aluminum Smelting & Refining Company, Inc. (1998), 81 Ohio St.3d 1, concerning disqualification of a law firm when one of its members is personally disqualified because of a former representation. The specific standards for disqualification in R.Prof.Cond nevertheless supersede those announced in Kala, which are slightly different. Kala dealt for the most part with the considerations a court should give to an issue of disqualification of a law firm, but it also contains the following statement concerning the procedure the court must follow: "Finally, the court should hold an evidentiary hearing on a motion to disqualify and must issue findings of fact if requested based on the evidence presented. Because a request for THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT Appx. 3

16 4 disqualification implies a charge of unethical conduct, the challenged firm must be given an opportunity to defend not only its relationship with the client, but also its good name, reputation and ethical standards. In Analytica,l the Court of Appeals for the Seventh Circuit summarized the situation as follows: "`[A]n attorney's and/or a law firm's most valuable asset is their professional reputation for competence, and above all honesty and integrity, which should not be jeopardized in a summary type of disqualification proceeding of this nature. As court proceedings are matters of public record, a news media report concerning a summary disqualification order, based on a scant record of this type, can do irreparable harm to an attorney's or law firm's professional reputation. We must recognize that the great majority of lawyers, as officers of the court, do conduct themselves well within the bounds of the Code of Professional Responsibility.' Analytica, 708 F.2d at 1275." Ra2a, at 81 Ohio St.3d 12. The potential disqualification of Freund, Freeze & Arnold was first suggested by counsel for Duane and Norma Dickens, but the question proceeded on the court's own motion. The court itself took testimony from Attorney Engling and Attorney Scott Oxley. The proceeding was held in camera, and the record of that proceeding was sealed. The magistrate recommended 'Analytica, Inc. v. 2JPD 708 F.2d Research, Inc. (C.A. 7, 1983), THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT Appx. 4

17 disqualification of Freund, Freeze & Arnold. J&E filed objections. J&E requested access to the sealed transcript in order to argue its objections to the magistrate's decision. The trial court denied that request. J&E was required to argue from findings of fact the magistrate made. The trial court overruled the objections and adopted the magistrate's decision. J&E complains that it should have been given the access to the transcript it requested. The trial court did not explain its reasons for holding the hearing in camera and then sealing the record. We surmise that the court was concerned that attorney-client communications between the Dickenses and Attorneys Oxley and Engling which are privileged might be revealed in an open and adversarial proceeding. But, allowing Duane and Norma Dickens to participate would have let them invoke the attorney-client privilege. And, allowing J&E to participate would have afforded Freund, Freeze & Arnold the opportunity to participate in the evidentiary hearing that Kala instructs a firm "must be given" when its disqualification is in issue. The Supreme Court did not reject or abandon those objectives when it adopted R.Prof.Cond. 1.10, based on its holding in Kala. Those objectives could have been achieved in this instance, and the issue better resolved, through 5 an order requiring Freund, Freeze & Arnold to show cause why it should not be disqualified pursuant to R.Prof.Cond. 1.10(c), instead of the procedure the court followed. THE COURT OF APPEALS OF OI1IO SECOND APPELLATE DISTRICT Appx. 5

18 6 The trial court erred when it disqualified Freud, Freeze & Arnold from representing J&E in the action the Dickenses filed without having afforded Freund, Freeze & Arnold an opportunity to fully participate in the evidentiary hearing which resulted in the firm's disqualification. Our finding that the trial court erred requires us to reverse the disqualification order and remand the case for evidentiary proceedings on the application of R.Prof.Cond to the facts which are brought out, should the trial court wish to again consider the matter. The other assignments of error are therefore moot, and need not be decided. App.R. 12 (A) (1) (c). FAIN, J. And FROELICH, J., concur. Copies mailed to: Jonathan Hollingsworth, Esq. John M. Ruffolo, Esq. Kevin C. Connell, Esq. David A. Caborn, Esq. Hon. Dennis J. Langer THE COURTOF APPEALS OF OHIO SECOND APPELLATE DISTRICT Appx. 6

19 ^ Fn^r." (^QP4?.LS p Ili^l! E I 2010 JUi; ^ 1 U "JSH u.. T5, ^d0 Gi.-. V,i. IN..T$E COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO I DUANE DICKENS, et al. Plaintiffs-Appellees C.A. CASE NO D vs. T.C. CASE NO. 06CV3416 J& E CUSTOM HOMES, INC. FINAL ENTRY Defendant-Appellant Pursuant to the opinion of this court rendered on the ^M- day of Jl,'1.p, 2010, the judgment of the trial court is Reversed and the matter is Remanded to the trial court for further proceedings consistent with the opinion. Costs are to be paid as provided in App.R. 24. MIKE FAIN, JUDGE r-anl L-iii nux THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT Appx. 7

20 Copies mailed to; Jonathan Hollingsworth, Esq. 137 N. Main Street The Barclay Building, Ste Dayton, OH John M. Ruffolo, Esq Paragon Road Dayton, OH Kevin C. Connell, Esq. 1 S. Main St., Suite 1800 Dayton, OH David A. Caborn, Esq. 765 S. High Street Columbus, OH Hon. Dennis J. Langer THE COURT OF APPEALS OF OHIO SECOND APPECI.ATE DISTRICT Appx. 8