IN THE SUPREME COURT OF OHIO In Re: Tom John Karris RESPONDENT Disciplinary Counsel CASE NO. 2010-1898 RELATOR RESPONDENT'S ANSWER BRIEF TO RELATOR'S OBJECTIONS TO THE BOARD OF COMMISSIONER'S REPORT AND RECOMMENDATION Mary L. Cibella #0019011 614 West Superior Ave Ste 1300 Cleveland, Ohio 44114 216-344-9220 Fax. No. 216-664-6999 E-mail: mleibella@worldnetoh.com COUNSEL FOR RESPONDENT, Tom J. Karris RECE IVED JAN 2 1 2011 CLERK OF COURT SUPREME COURT OF OHIO Jonathan E. Coughlan #0026424 Disciplinary Counsel Joseph M. Caligiuri #0074786 Senior Assistant Disciplinary Counsel Office of Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, Ohio 43215-7411 COUNSEL FOR RELATOR, Office of Disciplinary Counsel JAN 2 1?019 CLERK OF COURT SUPRPME C(IURT OF OHfO
TABLE OF CONTENTS TABLE OF AUTHORITIES...3 STATEMENT OF FACTS...4 ARGUMENT......8 Proposition of Law No 1.: The Court Will Defer to the Panel's Credibility Determination Unless the Record Weighs Heavily Against Those Determinations...8 Authorities relied unon to Support Proposition of Law No. Page Cincinnati Bar Assn. v. Statzer...8 Disciplinary Counsel v. Heiland...8 Findings of Fact, Conclusions of Law, And Recommendation of The Board of Commissioners...4,8,10, 11 Cleveland Metro. Bar Assn. v. Johnson...8 Relator's Exhibits 3 and 4...9 Relator's Exhibit 5...9 Columbus Bar Assn. v. Dougherty...12 Cleveland Bar Assn. v. Russell...12 CONCLUSION...12 PROOF OF SERVICE...14 2
TABLE OF AUTHORITIES CASES PAGES Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649...8 Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191, 2001-Ohio-1326...12 Cleveland Bar Assn. v. Russell, 114 Ohio St.3d 171, 2007-Ohio-3603...13 Cleveland Metro. Bar Assn. v. Johnson, 127 Ohio St.3d 97, 2010-Ohio-4832...8 Columbus Bar Assn. v. Dougherty, 105 Ohio St.3d 307, 2005-Ohio-1825...13 Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St.3d 187...13 Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91...8 Disciplinary Counsel v. Shaffer, 97 Ohio St.3d 342, 2003-Ohio-1008...12 Disciplinary Counsel v. Roberts, 117 Ohio St.3d 99, 2008-Ohio-505...12 RULES DR 1-102(A)(4)...10, 11, 12, 13 DR 1-102(A)(6)...10, 11, 13 Prof Cond. R. 3.3(a)...10 Prof Cond. R. 8.4(c)...:...10 Prof Cond. R. 8.4(d)...10 Prof Cond. R. 8.4(h)...10 3
I STATEMENT OF FACTS In 1999, Elias Kafantaris loaned monies to David Pidcock so that a catering business located on Root Road in Columbia Station, Ohio could continue to operate. Board's Findings, page 2, paragraph 2. In January 2000, Mr. Kafantaris agreed to make another loan to Mr. Pidcock. Board's Findings, page 2, paragraph 3. Mr. Kafantaris engaged the services of Tom J. Karris, Esq., Respondent, to prepare various documents to protect Mr. Kafantaris' investments in the Pidcock catering business located on Root Road. Board's Findings page 2, paragraphs 4 and 5. On January 26, 2000, a promissory note in the amount of $35,000 was executed. Relator's Exhibit 1. On January 31, 2000, a quit claim deed and a mortgage deed on the Root Road property were executed. Relator's Exhibits 3 and 4 On February 10, 2000, the mortgage deed was filed in the office of the Lorain County Recorder. Relator's Exhibit 4, last page. Pursuant to the executed documents, the Pidcocks were to make payments to Mr. Kafantaris for the monies loaned. The Pidcocks did not make the payments to Mr. Kafantaris. Board's Findings, page 3, paragraph 9. Mr. Kafantaris continued to loan money for the catering business located on Root Road. Board's Findings, page 3, paragraph 9. On January 30, 2001, a land contract that Respondent prepared was executed. Mr. Kafantaris was the vendor and the Pidcocks were the purchasers. Relator's Exhibit 5. In August 2002, the quit claim deed was filed with the Lorain County Recorder. 4
Relator's Exhibit 3, last page. On or about December 10, 2002, PNL Holdings, LLC became the owner of the Root Road property. Respondent's Exhibit C. In 2003, David Pidcock sued Elias Kafantaris in the Lorain County Common Pleas Court in the case of Pidcock vs. Kafantaris, Lorain County Court of Common Pleas, Case No. 03CGV 136386 ("Pidcock civil case"). Mr. Pidcock was represented by counsel. Mr. Pidcock's own counsel prepared and Mr. Pidcock swore to an Affidavit as part of the Pidcock civil case. Respondent 's Exhibit A. In Respondent's Exhibit A, prepared by David Pidcock's own counsel in 2005, David Pidcock testified that on January 31, 2000, both he and his then wife, Patricia Pidcock, executed a mortgage deed and a quit claim deed in favor of Mr. Kafantaris. This testimony by David Pidcock occurred 5 years after the execution of the documents. Respondent's Exhibit A. In 2005, PNL Holdings, LLC filed a civil law suit against David Pidcock, the same being Lorain County Common Pleas Court Case Number 05CV144053 ("PNL Holdings case"). Both David Pidcock and Patricia Pidcock were deposed in the PNL Holdings case. See Respondent's Exhibits E and D. In Respondent's Exhibit E, David Pidcock's October 31, 2006 Deposition in the PNL Holdings case, David Pidcock was asked about the quit claim deed and the promissory note that he signed. Respondent's Exhibit E, David Pidcock October 31, 2006 Deposition, page 43, lines 21-25. Mr. Pidcock confirmed that the quit claim deed and the promissory note were signed during meetings at Mr. Karris' office. Respondent's Exhibit E, David Pidcock October 31, 2006 Deposition, page 44, lines 2-10. When asked who was present at these meetings at Mr. Karris' 5
office, Mr. Pidcock testified, "Mr. Karris, Mr. Kafantaris, I believe Mr. Kafantaris' relative. I did meet his wife there, I can't remember if that was on that particular time or not. My wife was there on one occasion [emphasis added]." Respondent's Exhibit E, David Pidcock October 31, 2006 Deposition, page 44, lines 14-20. In Respondent's Exhibit D, Patricia Pidcock's March 28, 2007 Deposition as part of the PNL Holdings case, Patricia Pidcock testified, "I met him [Mr. Karris] on probably two occasions in his office to discuss money that my husband had supposedly borrowed from a client of his." Respondent's Exhibit D, Patricia Pidcock March 28, 2007 Deposition, page 14, lines 21-24. In Respondent's Exhibit D, Patricia Pidcock's March 28, 2007 Deposition as part of the PNL Holdings case, Patricia Pidcock was asked who was present at the meetings at Mr. Karris' office. She testified, "There was Mr. Karris and there was Louie [Mr. Kafantaris] and there was, I believe he was a nephew, Mario or something like that, a nephew of Louie's... Marco, that was it. Marco was there. I don't know on both occasions. He was there on one." Respondent's Exhibit D, Patricia Pidcock's March 28, 2007 Deposition, page 16, lines 1-6. During that same March 28, 2007 Deposition as part of the PNL Holdings case, Patricia Pidcock testified, " Not, there was never a meeting about money that I recall with Pete being there. There was a meeting in Mr. Karris' office with Louie [Mr. Kafantaris] and Marco [Mr. Fourtounis] and my ex-husband and myself about where we were going with all of this. And Louie said to me, don't worry, honey, we're going to look after you." Respondent's Exhibit D, Patricia Pidcock's March 28, 2007 Deposition page 112, lines 16-21. Respondent's Exhibit B, the Affidavit of David Pidcock dated November 23, 2009, was 6
prepared by Relator as part of Relator's investigation of Respondent. In Respondent's Exhibit B, Mr. Pidcock testified that he forged the name of Patricia Pidcock on the promissory note, mortgage deed and quit claim deed and further testified that Patricia Pidcock was not present at the meetings when these documents were executed. Respondent's Exhibit B, paragraphs 8 and 9. This testimony by David Pidcock occurred 9 years after the execution of the promissory note, mortgage deed and quit claim deed. Patricia Pidcock, in her grievance dated February 15, 2009 and filed with Relator, admits: "I had only met Mr. Karris [Respondent] on two occasions." Relator's Exhibit 11, February 15, 2009 grievance. At the July 15, 2010 disciplinary hearing, on direct examination, when asked how she knew Mr. Karris, Respondent, Patricia Pidcock testified, "I met him on two occasions in his office, along with Mr. Kafantaris and another gentleman. I believe his name is Marco, which I believe is the nephew of Louis Kafantaris." Hearing Trans. page 31, lines 13-16. Patricia Pidcock further testified on direct examination that she had been in Mr. Karris' [Respondent] office on two occasions. Hearing Trans. page 31, lines 23-24; page 32, line 1. Patricia Pidcock further testified that the purpose of the two meetings at Mr. Karris' [Respondent] office was "They were just to go over the running of the business and what - what could Louie tell me, he said, you know, what can we do to help? We joked around." Hearing Trans. p. 32, lines 4-7. At the July 15, 2010 disciplinary hearing, on cross-examination, when asked about the meetings at Respondent's office, Patricia Pidcock testified, "As I said earlier, it was just a friendly little get-together as far as I was concemed." Hearing Trans. page 81, lines 7-11. At the July 15, 2010 disciplinary hearing, Mark Fourtounis testified that documents that
Respondent prepared were signed by David Pidcock and Patricia Pidcock at the Root Road catering business. Hearing Trans. page 206, lines 19-24. Mr. Fourtounis also testified that additional documents were signed at Respondent's office shortly after the signing of documents at the Root Road catering business. Hearing Trans. page 207 and 208. Mr. Fourtounis also testified that approximately one year later, David Pidcock and Patricia Pidcock signed another document at Respondent's office. Hearing Trans. page 212. II ARGUMENT Proposition of Law No. 1 The Court Will Defer to the Panel's Credibility Determination Unless the Record Weighs Heavily Against Those Determinations A Prevailing Law In 2003, in Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649 8, the Court held that it would defer to the Hearing Panel's determination of credibility of the witnesses unless the record weighs heavily against the Hearing Panel's credibility determinations. The Court reaffirmed that holding in 2008, in Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91 at 39. In 2010, the Court again reiterated its 2003 pronouncement that the Court will defer to the Hearing Panel's credibility determinations unless the record weighs heavily against the Hearing Panel's determination of witness credibility. Cleveland Metro. Bar Assn. v. Johnson, 127 Ohio St.3d, 2010-Ohio-4832 at 15. B Witness Credibility As set forth by the Hearing Panel, the testimony of David Pidcock, Patricia Pidcock, Mark Fourtounis and Respondent with respect to what "transpired surrounding the execution of 8
the questioned documents by all four of the fact witnesses varied considerably." Board's Findings page 5, paragraph 4. The testimony of David Pidcock, Patricia Pidcock, Marlc Fourtounis and Respondent were in agreement in that 2 meetings occurred at Mr. Karris' [Respondent] office. What transpired at these 2 meetings at Mr. Karris' [Respondent] office varied. Depending upon whether David Pidcock's 2005 testimony, his 2006 testimony, his 2009 testimony or his 2010 testimony is to be believed, Patricia Pidcock was present at the meetings at Respondent's office and signed the mortgage deed and the quit claim deed, or she was present at one meeting at Respondent's office but signed nothing, or she was not present for either meeting at Respondent's office and signed nothing. If Patricia Pidcock's testimony in 2007, 2009 and in 2010 is to be believed, she attended 2 meetings at Respondent's office, but she was just there for a friendly chat with Mr. Kafantaris about the money David Pidcock borrowed from Mr. Kafantaris and she signed no documents. If Mark Fourtounis' testimony is to be believed, 3 meetings with David and Patricia Pidcock occurred. The first meeting at which documents were signed occurred at the Root Road property. Per the testimony of Mark Fourtounis, both Patricia Pidcock and David Pidcock were present for the Root Road meeting and signed Relator's Exhibit 1. Mr. Fourtounis also testified that the second and third meetings occurred at Mr. Karris' [Respondent] office. Per the testimony of Mark Fourtounis, both David Pidcock and Patricia Pidcock attended 2 meetings at Mr. Karris' [Respondent] office, with the meetings being about one year apart; and both David Pidcock and Patricia Pidcock signed documents at those 2 meetings. Relator's Exhibits 3 and 4 put the time-frame for the first meeting at Mr. 9
Karris' [Respondent] office at January 31, 2000 - over 10 years prior to the July 2010 hearing. Relator's Exhibit 5 puts the time-frame for the second meeting at Mr. Karris' [Respondent] office at January 30, 2001 - over 9 years prior to the July 2010 hearing. Did the passage of time between the events in question and the disciplinary hearing affect the witnesses ability to recall events accurately? In this case, the Hearing Panel made credibility determinations of the witnesses who testified at the July 15, 2010 disciplinary hearing. One such credibility determination is set forth in paragraph 15, page 4 of the Board's Findings. The Hearing Panel found the forensic evidence testimony of Rebecca Barrett to be credible, and found that what purported to be the signature of Patricia Pidcock on the promissory note, mortgage deed and quit claim deed were not the signatures of Patricia Pidcock, but probably the signatures of David Pidcock. Board's Findings, page 4, paragraph 15. Based upon this credibility determination and this factual determination, the Hearing Panel then concluded that Respondent violated DR 1-102(A)(4), conduct involving dishonesty, fraud, deceit or misrepresentation and DR 1-102(A)(6), conduct that adversely reflects on the lawyer's fitness to practice law, as charged in Count One of Relator's Complaint. The Board adopted the Hearing Panel's Findings of Fact, Conclusions of Law and Recommendations as to Count One of Relator's Complaint. With respect to Count Two of Relator's Complaint, the Hearing Panel made credibility determinations of the witnesses and found, Based upon the evidence submitted, the panel cannot conclude by clear and convincing evidence that Respondent violated Prof. Cond. R. 3.3(a), 8.4(c), 8.4(d), or 8.4(h) and recommends that this count be dismissed. While the statements made by Respondent may not have been shown to be true based upon the forensic 10
evidence, the versions of the 2000 and 2001 events that transpired surrounding the execution of the questioned documents by all four of the fact witnesses varied considerably. After over seven years had passed from the time of the execution of the first set of documents and over six years had passed from the execution of the land contract, Respondent may well have believed that the events transpired as he related them when he gave his deposition testimony in 2007. Board's Findings page 5, paragraph 4. The above statement by the Hearing Panel reflects that the Hearing Panel took the credibility of the witnesses into consideration and then concluded that Count Two of Relator's Complaint, the allegation that Respondent testified falsely at his 2007 Deposition, was not proven by clear and convincing evidence and should be dismissed. Specifically, the Hearing Panel found that "Respondent may well have believed that the events transpired as he related them when he gave his deposition testimony in 2007." Board's Findings page 5, paragraph 4. The Board adopted the Hearing Panel's findings and recommendation and dismissed Count Two of Relator's Complaint. Respondent respectfully submits that the Hearing Panel's determinations as to witness credibility are in accord with the record in this case. The record in this case does not weigh heavily against the Hearing Panel's witness credibility determinations. Based upon this Honorable Court's case law, this Honorable Court should defer to the witness credibility determinations of the Hearing Panel in this case, and accept the Hearing Panel and Board's Findings of Fact, Conclusion of Law and Recommendation, including the DR 1-102(A)(4) and DR 1-102(A)(6) violations in Count One, affirm the dismissal of all charges in Count Two, and adopt the recommended sanction of public reprimand. C Case Law Supports Public Reprimand 11
The Hearing Panel recommended that Respondent receive a public reprimand "despite its finding of a DR1-102(A)(4) violation." Board's Findings page 9, third paragraph. In Relator's Objections, Relator cites to the following disciplinary cases in support of its contention that Respondent should receive actual time out of the practice of law: Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St.3d 187, 658 N.E.2d 237; Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191, 2001-Ohio-1325, 754 N.E.3d 235; Disciplinary Counsel v. Shaffer, 97 Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d 429; and Disciplinary Counsel v. Roberts, 117 Ohio St.3d 99, 2008-Ohio-505, 658 N.E.2d 1236. Relator also asserts that Respondent lied to the Hearing Panel at the July 2010 disciplinary hearing. Relator's Post-Hearing Brief/Closing Argument filed in this case contains these same arguments by Relator and includes Relator's contention that Respondent should receive actual time out of the practice of law. The Hearing Panel, having the benefit of Relator's Post-Hearing Brief/Closing Argument which included Relator's recitation of the Cleary, supra.; Shaffer, supra and Roberts, supra. cases, as well as Relator's assertion that Respondent lied at the disciplinary hearing, the Hearing Panel did not make a finding that Respondent lied in his testimony before the Hearing Panel, and specifically recommended a public reprimand, "despite the finding of a DR 1-102(A)(4) violation." Thus, the Hearing Panel considered and rejected Relator's arguments that Respondent lied in his testimony before the Hearing Panel. Likewise, the Hearing Panel considered and rejected Relator's arguments that Respondent's violation of DR 1-102(A)(4) warranted actual time out of the practice of law. The Board also had before it Relator's Post-Hearing Brief/Closing Argument, which 12
included Relator's assertions and arguments, when it adopted the Hearing Panel's Findings of Fact, Conclusions of Law and Recommendation. The Board also considered and rejected Relator's arguments. The Board, like the Hearing Panel, found Columbus Bar Assn. v. Dougherty, 105 Ohio St.3d 307, 2005-Ohio-1825, and Cleveland Bar Assn v. Russell, 114 Ohio St.3d 171, 2007-Ohio- 3603, as the cases most analogous to the instant case and to support the recommended sanction of public reprimand. Respondent likewise adopts these cases and accepts the recommended sanction of public reprimand. Given the totality of the circumstances in the instant case, i.e., that the events in question occurred over 10 years ago, the conflicting testimony of the fact witnesses regarding the "events that transpired surrounding the execution of the questioned documents", Respondent's otherwise exemplary character and reputation (as evidenced by Respondent's Exhibits H through L and Trans. pages 253-266), the absence of a disciplinary record in over 18 years of practice, and Respondent's acceptance of and argument in favor of the Hearing Panel's and Board's recommended sanction, Tom J. Karris, Respondent, respectfully submits that the Hearing Panel's and Board's recommended sanction of public reprimand is sufficient to protect the public. III CONCLUSION For the reasons articulated above, Tom J. Karris, Respondent, respectfully requests that this Honorable Court accept and adopt the Findings of Fact, Conclusions of Law, And Recommendation of The Board of Conunissioners as to disciplinary rules DR1-102(A)(4) and DR 1-102(A)(6) violated as charged in Count One of Relator's Complaint, affirm the dismissal of all allegations in Count Two of Relator's Complaint, reiect Relator's argument that 13
Respondent lied at the July 2010 disciplinary hearing, and impose the recommended sanction of public reprimand. RESPECJ^F,XSUBMITTED, ar -: Ci^lla, #0019011 Co ^^sel for Respondent, Tom J. Karris, Esq. PROOF OF SERVICE I Mary L. Cibella, Counsel for Respondent, Tom J. Karris, Esq., do hereby certify that on January ^j^^;^lp11, a copy of Respondent's Answer Brief to Relator's Objections to the Board of Commissioners' Report and Recommendations was sent: Via Overnight Federal Express to: Kristina D. Frost, Esq., Clerk Supreme Court of Ohio h- 65 South Front Street ^^^ Columbus, Ohio 43215 Jonathan E. Coughlan, Esq., Disciplinary Counsel Joseph M. Caligiuri, Esq., Senior Assistant Disciplinary Counsel Office of Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, Ohio 43215-7411 Via Certified U.S. Mail to: Jonathan W. Marshall, Esq., Secretary Board of Commissioners on Crrievances and Discipline 65 South Front Street, 5" Floor Columbus, Ohio 43215 Mary si rbella,'"esq. #0019011 Co, el for Respondent, Tom J. Karris, Esq. 14