2018 Ohio 3322
Ohio Ct. App.2018Background
- Two adjacent Portage County properties: EnerVest owned manufacturing/office parcel; separate parcel housed a sewage treatment plant then owned by CAG, later sold to JSMB0912 (JSMB).
- EnerVest sued JSMB (2013) for declaratory relief and breach over a perpetual fee/right to use the treatment plant; JSMB counterclaimed and impleaded CAG for indemnity/quiet title.
- EnerVest and JSMB reached a settlement (April 2014); receiver James Masi was later appointed to carry out JSMB’s obligations and recorded deeds after EnerVest paid $135,000 in 2015.
- Receiver retained funds (~$131,232.73) after expenses; record showed JSMB owed $80,218.80 in delinquent taxes; Portage County Treasurer (Cromes) moved to intervene in March 2016 and filed a tax-collection complaint.
- EnerVest and JSMB executed an agreed judgment entry on June 21, 2016 dismissing all claims between them with prejudice (containing Civ.R. 54(B) language); neither appealed. Treasurer moved for summary judgment July 2016, unopposed; trial court granted it and JSMB appealed.
Issues
| Issue | JSMB's Argument | Treasurer/EnerVest Argument | Held |
|---|---|---|---|
| Whether the summary-judgment order required Civ.R. 54(B) language to be final and appealable | Order lacked Civ.R. 54(B) language; third-party claims against CAG remained | Agreed judgment between EnerVest and JSMB rendered remaining claims moot, so Civ.R.54(B) not required for finality | Court: No error — judgment was final because dismissal of claims between EnerVest and JSMB mooted remaining claims |
| Whether the receiver exceeded authority by settling and withholding funds | Receiver acted beyond scope; court erred approving settlement/continuing receivership without order | Receiver appointed to effectuate settlement; JSMB should have appealed the agreed judgment if contesting receiver actions | Court: No merit — JSMB failed to appeal the agreed judgment; claims about receiver are barred by that judgment |
| Whether intervention by the County Treasurer was improper or untimely | Intervention was unnecessary (payment plan existed) and untimely (filed ~5.5 months after receiver had funds) | Treasurer’s interest in collecting delinquent taxes could be impaired; intervention sought timely and for proper purpose | Court: No abuse of discretion — intervention allowed; factors favored timeliness and inadequacy of existing representation |
| Whether the TRO ordering continued sewer service was improper because service was allegedly illegal | TRO forced JSMB to provide service without proper operator certification | TRO related to dispute between EnerVest and JSMB; JSMB should have appealed the agreed judgment resolving that dispute | Court: No merit — issue was part of settled dispute and not preserved by appeal from the agreed judgment |
Key Cases Cited
- Davis v. Loopco Indus., 66 Ohio St.3d 64 (1993) (summary-judgment standard and caution in granting summary judgment)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (standard for whether evidence requires jury trial or one side prevails as a matter of law)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (appellate de novo review of summary judgment)
- Noll v. Am. Tel. & Tel. Co., 63 Ohio App.3d 646 (1989) (finality when remaining claims are rendered moot; Civ.R. 54(B) not required in that circumstance)
- General Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17 (1989) (same principle regarding mootness and finality)
- State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501 (1998) (factors for timeliness of intervention)