Cleveland v. St. Anthony Church. (In re Scott)

175 Ohio St.3d 1201

In re Disqualification of Scott.

The City of Cleveland v. St. Anthony Church.

[Cite as In re Disqualification of Scott, 175 Ohio St.3d 1201, 2024-Ohio-1462.]

Judges—Affidavits of disqualification—R.C. 2701.031—Standing—Because name of party in the underlying cases is a fictitious name registered and used by affiant, affiant is considered a party to the cases and has standing to file an affidavit of disqualification—Affiant failed to demonstrate bias or prejudice—Disqualification denied.

(No. 24-AP-033—Decided April 4, 2024.)

On Affidavit of Disqualification in Cleveland Municipal Court, Housing Division, Case Nos. 2022-CRB-003944 and 2022-CRB-003945.

Kennedy, C.J.

{¶ } Albert Thrower, who avers that he is doing business as St. Anthony Church, the defendant in the two underlying cases, has filed an affidavit of disqualification pursuant to R.C. 2701.031 seeking to disqualify Judge W. Mona Scott of the Cleveland Municipal Court, Housing Division, from presiding over the cases. Judge Scott was not asked to file a response to the affidavit of disqualification.

{¶ } This matter presents the threshold question whether Thrower has standing to seek Judge Scott’s disqualification. R.C. 2701.031 permits "any party to [a municipal-court] proceeding or the party’s counsel" to file an affidavit of disqualification against the municipal-court judge. As explained below, because at the time the underlying cases were filed, St. Anthony Church was a fictitious name registered and used by Thrower, he is considered a party to the cases. Therefore, Thrower has standing to file the affidavit of disqualification.

{¶ } Turning to the merits of the affidavit of disqualification, Thrower has not established that the judge should be disqualified. Therefore, the affidavit of disqualification is denied. The cases shall proceed before Judge Scott.

Trial-Court Proceedings

{¶ } On May 20, 2022, the city of Cleveland filed complaints against St. Anthony Church, charging it with misdemeanor counts of failure to comply with an order of the Cleveland Building Department. At that time, Thrower had registered "St. Anthony Church" as a fictitious name with the Ohio secretary of state. The fictitious-name registration expired November 15, 2022, because Thrower had failed to file a renewal application. On December 22, 2022, Thrower filed articles of incorporation with the secretary of state for St. Anthony Church, Inc.

{¶ } On March 29, 2023, Thrower pleaded no contest to the charges on behalf of St. Anthony Church. Thrower had filed a corporate authorization with the court, and he told the judge that he was St. Anthony Church’s sole shareholder and principal agent. The judge noted that St. Anthony Church was "an organization LLC or entity," and Thrower was referred to as the "Defendant representative" and "Defense representative." The judge was also informed that St. Anthony Church was "currently registered with the Ohio Secretary of State." Judge Scott found the defendant guilty and later imposed community-control sanctions.

{¶ } On January 11, 2024, Judge Scott held a status hearing, for which Thrower appeared by Zoom. At the beginning of the hearing, the following exchange occurred between Judge Scott and Thrower:

[Judge Scott]: Mr. Thrower, are you in a room by yourself? Can you take off the—you got to unmute yourself. And then, good morning, Attorney Sheehan.

[Attorney Sheehan]: Good morning, Your Honor.

[Judge Scott]: Mr. Thrower, are you in a room by yourself?

[Thrower]: Yes.

[Judge Scott]: Okay. Do you want to take off the mask while you’re in there—

[Thrower]: Oh, okay.

[Judge Scott]:—virtually? I believe we’re pretty safe in here in our own virtual—thanks.

That being said, we are here for a status update on two cases. We’ll hear from [the housing-court specialist] with the status update, and then we will hear from Mr. Thrower on behalf of St. Anthony Church and his counsel of record, Attorney Sheehan.

{¶ } The housing-court specialist stated that St. Anthony Church had complied with some, but not all, of the community-control conditions. Judge Scott then asked Thrower, on behalf of St. Anthony Church, questions related to the housing-court specialist’s report. At the end of the hearing, the judge continued the cases for another status hearing.

{¶ } On March 13, Thrower filed this affidavit of disqualification. The affidavit refers to the affiant as "Albert Thrower DBA St Anthony Church expired DBA."

It also refers to "St Anthony Church-Defendant-expired DBA owned by Albert Thrower." Thrower signed the affidavit as "Albert Thrower for self/expired DBA." (Underlining sic.)

{¶ } Because the question of standing asks whether a particular individual is entitled to have a court hear a controversy, a threshold issue is whether Thrower is qualified pursuant to R.C. 2701.031 to file an affidavit of disqualification against Judge Scott.

Standing to File an Affidavit of Disqualification

{¶ } Standing to file an affidavit of disqualification is conferred by statute. See In re Disqualification of Gallagher, 173 Ohio St.3d 1201, 2023-Ohio-2977, 228 N.E.3d 1, ¶ 26. R.C. 2701.031 provides that "[i]f a judge of a municipal or county court allegedly is interested in a proceeding pending before the judge, allegedly is related to or has a bias or prejudice for or against a party to a proceeding pending before the judge or to a party’s counsel, or allegedly otherwise is disqualified to preside in a proceeding pending before the judge, any party to the proceeding or the party’s counsel may file an affidavit of disqualification with the clerk of the supreme court." (Emphasis added.)

{¶ } Under this plain and unambiguous language, only a "party to the proceeding or the party’s counsel" may file an affidavit of disqualification. Id. Chief justices "have ‘strictly enforced’ this statutory language and have consistently found that ‘individuals who do not qualify as a "party" or "party’s counsel" do not have standing to file an affidavit of disqualification.’ " Gallagher at ¶ 26, quoting In re Disqualification of Grendell, 137 Ohio St.3d 1220, 2013-Ohio-5243, 999 N.E.2d 681, ¶ 2; see also In re Disqualification of Leach, 173 Ohio St.3d 1252, 2023-Ohio-4776, 229 N.E.3d 1233. For purposes of R.C. 2701.031, a "party’s counsel" includes counsel of record in the underlying case from which the judge’s disqualification is sought or an attorney retained by a party in the underlying case to file an affidavit of disqualification in this court. See Gallagher at ¶ 29-34.

{¶ } In the affidavit of disqualification, Thrower describes himself as "DBA St Anthony Church expired DBA" and indicates that St. Anthony Church is an "expired DBA owned by Albert Thrower." "D.b.a." means "[d]oing business as" and usually precedes a person’s or business’s assumed name. Black’s Law Dictionary 499 (11th Ed.2019). The use of "d.b.a." often "signals to a consumer that a person or company is doing business under a fictious name." Perk v. Tomorrows Home Solutions, 8th Dist. Cuyahoga No. 107012, 2019-Ohio-103, 2019 WL 194366, ¶ 19.

{¶ } " ‘Fictitious name’ means a name used in business or trade that is fictitious and that the user has not registered or is not entitled to register as a trade name. It does not include the name of record of any domestic corporation that is formed under Chapter 1701 or 1702 of the Revised Code." R.C. 1329.01(A)(2). R.C. 1329.01(D) provides, in relevant part:

Any person who does business under a fictitious name and who has not registered and does not wish to register the fictitious name as a trade name or who cannot do so because the name is not available for registration shall report the use of the fictitious name to the secretary of state, on a form prescribed by the secretary of state, setting forth all of the following:

(1) The name and business address of the user * * *.

(2) The fictitious name being used[.]

(3) The general nature of the business conducted by the user.

As noted above, Thrower reported the use of the fictitious name "St. Anthony Church" to the secretary of state.

{¶ } Doing business under a fictitious name does not create an entity distinct from the person operating the business or entity. See, e.g., Patterson v. V&M Auto Body, 63 Ohio St.3d 573, 575, 589 N.E.2d 1306 (1992), quoting Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381, 1387 (D.Neb.1977) (a sole proprietorship doing business under a fictitious name " ‘does not create an entity distinct from the person operating the business’ "); Perk at ¶ 19. " ‘The individual who does business as a sole proprietor under one or several names remains one person, personally liable for all his obligations.’ " Patterson at 575, quoting Duval at 1387.

{¶ } At the time the complaints were filed against St. Anthony Church, St. Anthony Church was a fictitious name that Thrower used for business. And because St. Anthony Church was merely a fictitious name, there was no legal distinction between Thrower and St. Anthony Church. See LexisNexis, a Div. of RELX, Inc. v. Moreau-Davila, 2017-Ohio-6998, 95 N.E.3d 674, ¶ 58 (2d Dist.); Woods v. Marcano, 2018-Ohio-4324,122 N.E.3d 633, ¶ 17 (8th Dist.). Thrower was the party against whom the complaints were filed in May 2022, and he therefore is a party to the underlying proceedings.

{¶ } Moreover, in affidavit-of-disqualification proceedings, "a ‘party’ is defined as ‘[o]ne by or against whom a lawsuit is brought; anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment.’ " In re Disqualification of Berhalter, 173 Ohio St.3d 1255, 2023-Ohio-4881, 229 N.E.3d 1235, ¶ 21, quoting Black’s at 1350-1351. Thrower submitted transcripts of two hearings in the underlying cases. A review of those transcripts makes clear that he is directly interested in the action and has the right to control the proceedings. Thrower was referred to as the defendant’s representative, he...