Pittman v. Chase Home Fin., L.L.C. , 2012 Ohio 1060 ( 2012 )

[Cite as Pittman v. Chase Home Fin., L.L.C., 2012-Ohio-1060.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97321
JAVON PITTMAN
PLAINTIFF-APPELLANT
vs.
CHASE HOME FINANCING, LLC
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-571902
BEFORE: Cooney, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 15, 2012
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ATTORNEYS FOR APPELLANT
Patrick J. Perotti
Nicole T. Fiorelli
Dworken & Bernstein Co., LPA
60 South Park Place
Painesville, OH 44077
Brian Ruschel
925 Euclid Avenue, Ste. 660
Cleveland, OH 44114-1405
ATTORNEYS FOR APPELLEE
William H. Falin
Seamus J. McMahon
Moscarino & Treu, LLP
The Hanna Bldg., Ste. 630
1422 Euclid Ave.
Cleveland, OH 44115
Danielle J. Szukala
Leann P. Pope
Burke, Warren, MacKay & Serritella, P.C.
300 North Wabash Avenue, 22nd Floor
Chicago, IL 60611-3607
3
COLLEEN CONWAY COONEY, J.:
{¶1} Plaintiff-appellant, Javon Pittman (“Pittman”), appeals from the trial court’s
decision to incorporate the version of paragraph 4D into the settlement agreement
proposed by defendant-appellee, Chase Home Finance, LLC (“Chase”). Finding no
merit to the appeal, we affirm.
{¶2} In 2005, Pittman filed a class action against Chase, alleging that Chase
routinely failed to record notice, when its customers had satisfied their mortgages, within
90 days as required by Ohio law. During discovery and prior to class certification, the
trial court granted Chase’s motion for a protective order in 2007, directing Pittman’s
counsel that:
Confidential information shall not be used for any purpose other than the
defense or prosecution of this action in accordance with the provisions of
this Order. * * * All Documents, information, deposition testimony or other
material subject to this Order shall not be used, directly or indirectly, by any
party for any business, commercial or competitive purpose whatsoever.
Neither Plaintiff, nor Plaintiff’s counsel, shall use any Confidential
Information in connection with any future litigation against Chase or any
related entity.
4
{¶3} In May 2009, the trial court denied Pittman’s class certification, from which
he appealed. While the appeal was pending, Pittman and Chase reached a class-wide
settlement and the appeal was dismissed. However, Pittman and Chase could not agree
regarding “paragraph 4D” of the settlement agreement. This term of the agreement
deals specifically with the addresses, telephone numbers, and email addresses of those
contained in the class, provided by Chase to Pittman. Chase proposed a version of
paragraph 4D in which Pittman would be prohibited from using the class list information
to contact the members regarding any future litigation against Chase, pursuant to the
protective order. Pittman, however, proposed a version of paragraph 4D that would
allow Pittman to contact the members of the class list “regarding any matter.”
{¶4} The parties agreed to submit the disputed provision to the trial court, and
both parties submitted briefs in March 2011. On June 3, 2011, the trial court issued its
final approval order and judgment of dismissal with prejudice, in which the court retained
jurisdiction over compliance with the settlement agreement and over the final order and
judgment. On June 9, 2011, the trial court issued a journal entry in which the case was
deemed settled and dismissed with prejudice. On August 18, 2011, the trial court
entered a journal entry in which the court ordered the parties to abide by the version of
paragraph 4D proposed by Chase, pursuant to the 2007 protective order.
{¶5} Pittman now appeals, arguing in his sole assignment of error that the trial
court erred in incorporating Chase’s version of paragraph 4D into the settlement
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agreement because it violates the Ohio Rules of Professional Conduct and the free speech
guarantees of the Ohio and U.S. Constitutions.
{¶6} As a threshold matter, Chase argues that the August 18, 2011 journal entry
from which Pittman appeals is not a final appealable order. Chase argues that this court
lacks jurisdiction because the journal entry ordering the parties to adhere to Chase’s
proposed provision does not fall under any of the R.C. 2505.02 descriptions of a final
order. Chase also argues that the entry is not a final appealable order because it was
issued two months after the court entered final judgment in the case.
{¶7} However, the trial court’s entry ordering the parties to adhere to Chase’s
version of paragraph 4D constitutes an order that affects a substantial right made in a
special proceeding after judgment. R.C. 2505.02(B)(2). Moreover, the trial court
retained jurisdiction over compliance with the settlement agreement and over the final
order and judgment. See June 3, 2011 Final Approval Order. Thus, we find that the
August 18, 2011 entry regarding the disputed provision is a final appealable order.
{¶8} In terms of an appropriate standard of review, Pittman argues that a de novo
standard of review applies because the court’s decision involved mixed questions of law
and fact. We disagree. Having voluntarily submitted the two proposed versions of
paragraph 4D, Pittman and Chase agreed to allow the trial court to decide which version
to incorporate into the settlement agreement. “The approval of a settlement agreement
rests in the sound discretion of the trial court.” Duncan v. Hopkins, 9th Dist. No. 24065,
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2008-Ohio-3772, at ¶ 14, quoting State ex rel. Republic Servs. of Ohio v. Pike Twp. Bd. of
Trustees, 5th Dist. Nos. 2006 CA 00153 and 2006 CA 00172, 2007-Ohio-2086, at ¶ 68.
See also Meyer v. Meyer, 9th Dist. No. 21023, 2002-Ohio-5038, at ¶ 9. In order to find
an abuse of that discretion, we must determine that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). When applying an abuse of discretion standard, this court
may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd.,
66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).
{¶9} Pittman argues that the trial court erred in ordering the parties to adhere to the
version of paragraph 4D proposed by Chase, because the provision violates the Ohio
Rules of Professional Conduct and the free speech guarantees of the Ohio and U.S.
Constitutions.
{¶10} In terms of the Ohio Rules of Professional Conduct, Pittman contends that
prohibiting appellant’s counsel from contacting those listed on the class list is a violation
of counsel’s attorney-client relationship. Pittman claims that once the class was
certified, all on the class list became “clients” of his counsel. However, the trial court
denied Pittman’s motion for class certification. Moreover, by the time Pittman and
Chase reached a settlement agreement on behalf of Pittman and his proposed class, the
protective order had already been granted by the trial court.
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{¶11} “A protective order that on its face survives the underlying litigation
continues to be effective even after the underlying case has been dismissed.” Conkle v.
Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, 792 N.E.2d 1116, at ¶ 11. See also United
Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (C.A.10, 1990) (“As long as a
protective order remains in effect, the court that entered the order retains the power to
modify it, even if the underlying suit has been dismissed.”); Public Citizen v. Liggett
Group, Inc., 858 F.2d 775, 781-782 (C.A.1, 1988). The language of the protective order
in the instant case clearly imposes an obligation meant to survive the termination of the
action. “If the parties were free to disclose confidential information upon dismissal of a
case, protective orders would cease to fulfill their intended purpose which is to encourage
full disclosure of all relevant information.” Yates v. Applied Performance Technologies,
Inc., 205 F.R.D. 497, 501 (S.D.Ohio 2002).
{¶12} Likewise, if Pittman’s counsel, pursuant to a settlement agreement, were
free to use the personal information of the client list upon dismissal of this case to contact
those listed regarding “any matter,” the intended purpose of the protective order would
cease to be fulfilled. The accepted version of the provision in no way limits Pittman’s
counsel from corresponding with members of the class in connection with the instant
case. Pursuant to the protection order, Chase’s proposed version of the provision
protects those listed on the client list from being contacted by Pittman’s counsel regarding
matters unrelated to the settlement.
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{¶13} Moreover, Pittman fails to set forth any case law to support his specific
contention that having reached a settlement agreement on behalf of a class, he now has
the right to use the client list provided by Chase to solicit future clients. Nor does
Pittman provide any support for his contention that simply because a settlement has been
reached on behalf of the class, that the protection order suddenly becomes void.
{¶14} Regarding the constitutional guarantee to free speech, Pittman argues that
the provision accepted by the trial court is a violation of the First Amendment. Pittman
contends that any limitation on counsel’s ability to communicate with his clients is an
unconstitutional restraint. Thus, he argues that strict scrutiny applies. However,
solicitation of clients is considered commercial speech, and is not afforded the same strict
level of scrutiny generally saved for constitutional issues regarding speech. See Ohralik
v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (“A
lawyer’s procurement of remunerative employment is a subject only marginally affected
with First Amendment concerns.”). “The protection afforded commercial speech by the
First Amendment does not prevent district courts from prohibiting and sanctioning such
abuses of the discovery process.” Kauffman v. Am. Family Mut. Ins. Co., 601 F.3d 1088(10th Cir.2010). Likewise, the trial court was well within its discretion when it issued
the protective order limiting Pittman’s use of the client list to issues pertaining to the
settlement and prohibiting future unrelated solicitation.
9
{¶15} Thus, we find that the trial court’s decision to protect the class list from
future solicitation was well within its sound discretion. The trial court did not abuse its
discretion in choosing to implement Chase’s proposed version of paragraph 4D,
consistent with the court’s protective order.
{¶16} Accordingly, the sole assignment of error is overruled.
{¶17} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR