Carr v. Acacia Country Club Co.
2012 Ohio 4723
Ohio Ct. App.2012Background
- Carr, a former Acacia shareholder, sought a prejudgment receiver to liquidate Acacia and protect assets.
- The trial court appointed Michael Murman as receiver on Jan 27–Feb 2009; bond posted Feb 2, 2009; powers and compensation set Feb 3, 2009.
- Acacia and related parties moved to stay or vacate; court vacated the appointment on Mar 24, 2009, prompting further filings.
- Carr pursued a renewed receiver appointment; Acacia contested the appointment and subsequently vacated orders were noted on remand.
- Murman filed a first receiver’s report (May 2009); fees motions followed (Aug 2009); Carr dismissed his own claims (May 2010); final fee orders were entered Feb 6, 2012, holding Carr responsible for the receiver’s and counsel’s fees.
- Carr appeals, challenging (1) whether he must pay the receiver’s fees, (2) validity of the receiver’s qualifications/oath, and (3) amount of compensation; the appellate court affirms all rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the receiver’s fees when appointment is improper | Carr sought appointment; argues fees should be paid from assets. | Acacia asserts Carr’s lawsuit caused the appointment and costs; Carr acquiesced after appointment. | No abuse; Carr liable for costs of the receivership. |
| Whether failure of oath/bond voids the appointment | Carr argues lack of oath voids appointment and damages Carr. | Oath/bond defects do not void appointment; objections waived. | No reversible error; compensation awarded despite oath issues. |
| Reasonableness of receiver and counsel fees | Carr claims fees excessive and not related to corpus preservation. | Fees justified by duties and time; court has discretion to set reasonable amounts. | No abuse of discretion; fees deemed reasonable. |
Key Cases Cited
- Real Estate Capital Corp. v. Thunder Corp., 31 Ohio Misc. 169, 287 N.E.2d 838 (C.P.1972) (receivership costs tied to plaintiff’s action and not to corporation funds when appointment improper)
- Hummer v. Hummer, 2011-Ohio-3767 (8th Dist.) (improper qualification does not void the underlying appointment or court’s jurisdiction; waiver possible)
- Fifth Third Bank v. Q.W.V. Properties, LLC, 2011-Ohio-4341 (12th Dist.) (oath/bond may be ordered nunc pro tunc; objections waived)
- Natl. City Bank v. Semco, Inc., 2011-Ohio-172 (3d Dist.) (services necessary to produce or protect a fund may be compensated; ultimate award within trial court discretion)
- State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991) (receiver discretion to limit or expand powers; equity considerations)