In re Disqualification of Sheward , 134 Ohio St. 3d 1210 ( 2011 )

[Cite as In re Disqualification of Sheward, 134 Ohio St.3d 1210, 2011-Ohio-7078.]
IN RE DISQUALIFICATION OF SHEWARD.
BANK ONE TRUST COMPANY, N.A. v. SCHERER ET AL.
[Cite as In re Disqualification of Sheward,
134 Ohio St.3d 1210, 2011-Ohio-7078.]
Judges—Affidavit of disqualification dismissed—Motion for reconsideration—
Motion denied.
(No. 11-AP-076—Decided August 11, 2011.)
ON AFFIDAVIT OF DISQUALIFICATION in Franklin County Court of Common Pleas,
Probate Division, Case No. 430379-C.
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O’CONNOR, C.J.
{¶ 1} On July 29, 2011, attorney Kenneth R. Donchatz submitted an
affidavit of defendant Ronald E. Scherer Jr. that sought to disqualify Judge
Richard S. Sheward from the above-captioned case. The affidavit was dismissed
on August 1, 2011, for failing to comply with R.C. 2701.03(B)(4) (requiring
affidavit of disqualification to contain the date of the next scheduled hearing in
the case, or a statement that there is no hearing scheduled).
{¶ 2} Attorney Donchatz has now submitted a motion for reconsideration
on behalf of Ronald E. Scherer Sr. For the reasons that follow, the motion for
reconsideration is denied.
{¶ 3} First, Ronald Scherer Sr. has no standing to request
reconsideration. As noted above—as well as in the August 1 dismissal entry—
Ronald Scherer Jr. filed an affidavit of disqualification. Ronald Scherer Sr.
submitted an application on July 29, 2011, to disqualify Judge Sheward, but that
application did not contain the “jurat of a notary public or another person
authorized to administer oaths or affirmations,” as required by R.C.
SUPREME COURT OF OHIO
2701.03(B)(2). A document purporting to be an affidavit that is not sworn to or
affirmed before a competent officer is not an affidavit within the meaning of R.C.
2701.03 and cannot be considered pursuant to that statute. In re Disqualification
of Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d 1345 (1992). Therefore, Ronald
Scherer Sr. is not a party to this affidavit-of-disqualification proceeding. As a
nonparty, he has no standing to request reconsideration.
{¶ 4} Second, attorney Donchatz has not set forth sufficient grounds for
reconsideration. According to Donchatz, Judge Sheward scheduled a nonoral
hearing on the parties’ written closing arguments, but he instructed that the
hearing would not be held until 30 days after the trial transcript was filed.
Donchatz maintains that compliance with R.C. 2701.03(B)(4) was not possible
because no specific hearing date could be pleaded when no one knew when the
trial transcript would be filed. Donchatz further argues that he could not plead
that no hearing was scheduled, because Judge Sheward clearly set the matter for
hearing, albeit without a specific date. Donchatz, however, cannot raise
arguments on reconsideration that could have been raised in the initial affidavit of
disqualification. See In re Disqualification of Russo, 81 Ohio St.3d 1217, 1218,
688 N.E.2d 519 (1997). Nothing prevented Donchatz from including this
explanation in the affidavit filed on July 29 and, therefore, his failure to do so
resulted in a dispositive jurisdictional defect. That defect cannot be remedied in
this case by asserting in a motion for reconsideration matters that should have
been addressed in the affidavit itself. Id.{¶ 5} Accordingly, the motion for reconsideration is denied. The case
may proceed before Judge Sheward.
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