A magistrate judge for the Southern District of Ohio has given the Altoona-based convenience store chain, Sheetz Inc., and a development company known as Skilken Gold, a small victory in their efforts to open a new store in Centerville, Ohio, by disqualifying the attorney representing a church that opposes the store’s construction.

Judge Caroline H. Gentry late last week barred Dayton attorney Mark Chilson from representing Epiphany Evangelical Lutheran Church of Far Hills Avenue, which has opposed the construction of a typical Sheetz convenience store on the site of a restaurant known as Elsa’s South.

The church, which also operates a preschool adjacent to the site, opposes the Sheetz store because it allegedly doesn’t want to expose the children to the sight of adults carrying alcohol from its facility.

Sheetz countered with its argument that Epiphany purchased the Elsa’s South property in 1999 and for 18 years leased the property to Elsa’s South.

“During that time (until 2017), Epiphany benefited from the sale, distribution, and consumption of alcohol on the property,” Sheetz stated in a recent legal filing.

Another facility near the proposed site of the proposed new store includes Bethany Village, which operates a senior retirement community.

Chilson is listed as one of four attorneys for the church in its efforts to prevent Sheetz Inc. from building on the Elsa South property, and, according to the opinion written by the judge, is also a board member of Bethany Village.

The site is presently owned by William Hemmert (of Far Hills Properties LLC), who purchased it from the church in 2017.

In 2022, Hemmert agreed to sell the property to Sheetz and Skilken Gold, but Hemmert and his son, Jason, on April 20, 2023, agreed to meet with attorneys Chilson and Thomas Initilli.

According to court documents filed by Sheetz, Chilson informed Hemmert he represented both the church and the Village and, during the meeting, he stated neither organization wanted a Sheetz store on the property.

Chilson indicated Epiphany and Bethany Village were in contact with an unnamed third party who would pay the Hemmerts a higher price for the land than Sheetz was offering, and he asked the Hemmerts to “kill the deal.”

He allegedly stated during the meeting that the Sheetz purchase of the ground would not be approved by the Centerville City Council, the entity which had the last word on the project.

Jason Hemmert rejected the idea of “killing the deal.”

Although the Centerville Planning Commission approved the deal, it was ultimately voted down by the City Council.

That decision led to the present Sheetz-Skilken Gold-Hemmert lawsuit against Centerville, the City Council, Bethany Village and Epiphany Church — charging unlawful interference with business relations, as well as conducting a civil conspiracy.

Sheetz and the other plaintiffs asked the judge to disqualify Chilson as the attorney for Epiphany, noting that under Ohio’s Rules for Professional Conduct, a lawyer “shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness,” aside from a few exceptions.

The judge noted that a motion to disqualify a lawyer is considered a “drastic measure which the courts should hesitate to impose except when absolutely necessary.”

In this case, she ruled, disqualification is necessary to avoid possible prejudice.

She pointed out that Chilson will likely have to testify about what occurred during the critical April 20, 2023, meeting.

It appears, she stated, that what happened in that meeting will be “vigorously contested at trial.”

She ruled that Chilson is disqualified as counsel for the church and “shall immediately cease to act as the attorney for Epiphany.”

Her order gives the attorney 17 days to file an objection, and another 14 days for the plaintiffs to make a response to the objection, if any.