- “The Ohio Supreme Court has denied an affidavit to disqualify a probate court judge, chastising the plaintiff’s counsel for failing to file the affidavit until nearly three years after becoming aware of a potential conflict of interest.”
- “Schlichter, counsel for the Clarke siblings, raised a potential conflict of interest between the bank and Hamilton County Judge Ralph E. Winkler of the Probate Division. He alleged that Fifth Third managed money for Winkler’s benefit and received a fee during the probate case, and created an ‘appearance of impropriety.'”
- “While Schlichter filed the affidavit of disqualification against Winkler on January 3, 2023, several actions had taken place in the case before then and after learning of the possible conflict of interest.”
- “In April 2018, Schlichter entered a motion granting summary judgment to Fifth Third, followed by the First District Court of Appeals partly remanding the case back to the trial court. The Ohio Supreme Court declined to accept the Clarkes’ appeal to the First District decision in April 2020, and in June denied their motion for reconsideration.”
- “Counsel for Fifth Third Bank, Jessica K. Baverman of Vorys Sater Seymour & Pease in Cincinnati, Ohio, signed an affidavit on January 7, 2021, as a response to the disqualification attempt. However, Baverman contended that from then until September 2022, the Clarkes’ legal team did not raise the issue of impropriety or recusal.”
- “In her opinion, Kennedy cited previous examples of recusal matters in the state, namely In re Disqualification of Dezso from 2011, which established that affiants have a burden to prove that their affidavits are timely filed. Further, In re Disqualification of Froelich, Donovan & Welbaum in 2015 stated that a delay in filing an affidavit of disqualification ‘constitutes an ‘independent ground’ for denying the affidavit.'”
- “On September 8, 2022 Schlichter filed a motion for Winkler’s recusal, asserting the same conflict of interest and appearance of a conflict. Winkler denied the motion less than a month later, finding no reasonable observer would question his impartiality.”
- “Dezso‘s language states that ‘[i]t is well settled that an affidavit of disqualification must be filed as soon as possible after the affiant becomes aware of circumstances that support disqualification and that failure to do so may result in waiver of the objection.'”
- “Referring to the Jan. 7, 2021 telephone conference where Schlichter merely ‘raised the issue”’ of impropriety, Kennedy clarified that this did not substitute the need for a timely affidavit.””[Kennedy noted] ‘An affiant’s delay in filing an affidavit of disqualification until after receiving an adverse decision may suggest that the disqualification request was prompted by the adverse decision rather than the judge’s personal connection to the underlying case as alleged in the affidavit.'”
“Florida Court Orders Trial Judge to Disqualify Herself” —
- “Florida’s Third District Court of Appeal told a Miami state court judge that she should disqualify herself, when it granted a writ of prohibition but withheld issuance of the writ.”
- “‘Because the judge was disqualified from the earlier case, it was pretty cut and dried that she be disqualified from this one,’ Andrew Berman, a partner at Young, Berman, Karpf & Karpf, said about the case in which Miami-Dade Circuit Judge Beatrice Butchko was disqualified.”
- “Berman, an ethics expert not involved in the case, explained that Butchko was disqualified because she was previously disqualified for prejudging the truthfulness of Nathaniel D. Callahan, a shareholder in the Fort Lauderdale office at Am Law 100 firm Akerman. Callahan is one of the lawyers for the defendant, Bank of New York Mellon, in the current case and an earlier foreclosure one.”
- “That earlier case involved the same bank attorney, Callahan, and the same opposing counsel, Bruce Jacobs, but a different homeowner. In other words, Callahan argued that Butchko’s prior actions predisposed her to believe Jacobs over him and his clients.”
- “Jacobs, the managing partner at Jacobs Legal, represents the plaintiff, Marko Dejanovic, the foreclosed homeowner. Jacobs said the Third DCA failed to provide a ‘legal or factual basis for humiliating” Butchko by granting the bank’s petition and called the appellate court ruling “a constitutional crisis playing itself out in real time.'”
- “And during the evidentiary hearing on the motion [in the prior action], the petitioners presented conflicting testimony in relation to the identity of the current loan servicer, previous reporting showed. But the Third DCA ruled that Butchko failed to finish the hearing before signing the proposed order to show cause. Butchko’s order set an arraignment date while advising the petitioners that the penalties under consideration included ‘jail, adjudication, [and] probation.'”
- “Callahan did not respond to a request for comment. In a sworn motion to disqualify that Callahan filed in the circuit court in November, he argued that a reasonably prudent person would fear that the presented facts, taken as true, would place that person in fear of not receiving a fair and impartial trial.”
- “And in the petition for writ of prohibition, multiple attorneys at Akerman, including Nancy W. Wallace, a partner in its Tallahassee office, argued that Butchko’s disqualification was necessary ‘to ensure that justice is dispensed fairly and impartially in this case, and to preserve and strengthen the public’s confidence in the judicial system.'”