Hummer v. Hummer
2011 Ohio 3767
Ohio Ct. App.2011Background
- Mary A. Hummer filed for divorce from Paul J. Hummer in February 2009; the case involved a receivership over marital assets.
- Mary moved to appoint a receiver; Mark E. Dottore was appointed on June 1, 2010, with an oath filed June 17, 2010 and expanded authority order on July 14, 2010.
- A Hunting Valley residence and an Oakwood Village commercial building were assets; the receiver was granted a sale of the Hunting Valley property (August 20, 2010) with no appeal.
- On October 21, 2010, appellant’s counsel withdrew; new counsel appeared and filed motions including a motion to set aside the receiver order (November 22, 2010).
- Following a hearing, the December 2, 2010 judgment denied the motion to vacate the receiver order and addressed various receiver-related rulings; appellant appealed on December 7, 2010.
- The appellate court dismissed the appeal for lack of a final, appealable order challenging the receiver appointment; issues regarding other motions were not properly appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order appointing the receiver is a final, appealable order | Hummer contends the order is appealable and merits review | Appellee contends the appointment order is not subject to timely appeal | Appeal dismissed for lack of a final, appealable order |
| timeliness of challenging the receiver appointment | Appellant asserts timely challenge existed via Civ.R.60(B) motions | No timely direct appeal from the appointment; Civ.R.60(B) not substitute for appeal | Timeliness requirement controls; challenge to appointment waived |
| Whether Civ.R.60(B) may vacate the appointment of a receiver | Civ.R.60(B) used to vacate the appointment should be available | Civ.R.60(B) cannot substitute for a direct appeal on appointment | Civ.R.60(B) relief not available to bypass direct appeal |
| Whether failure to post a bond renders the appointment void | Incorrect bond or lack thereof could void appointment | Bond deficiencies do not void the appointment and may be cured | Bond issue not voiding the appointment; potential cure noted |
| Whether issues concerning other motions were moot or subject to appellate review | Appellant seeks review of multiple rulings | Only the denial of vacating the appointment is properly appealable; others moot | Unappealed issues deemed moot; only timely challenge to appointment matters |
Key Cases Cited
- Cunningham v. Ohio Police & Fire Pension Fund, 175 Ohio App.3d 566 (Ohio Ct. App. 2008) (finality requirement for appeals from receiverships)
- Hartley v. Hartley, 2004-Ohio-4956 (Medina App. 2004) (appeal from receiver orders must be timely)
- Jamestown Village Condominium Owners Assn. v. Market, not specified (Ohio App. Dist.) (denotes that denial of vacation of a receivership is not final appealable)
- Poindexter v. Granthum, 2011-Ohio-2915 (Cuyahoga App. 2011) (timely notice of appeal distinguishes timely vs. untimely challenges)
- INF Ent., Inc. v. Donnellon, 133 Ohio App.3d 787 (Ohio App. 1999) (receiver's immunity and personal liability when acting beyond authority)
- Park National Bank v. Cattani, 187 Ohio App.3d 186 (Ohio App. 2010) (receiver’s powers under R.C. 2735.04 and court oversight)
- Stiver v. Stiver, 63 Ohio App.3d 327 (Ohio App. 1992) (receiver duties and court oversight)
- Eastlake Land Dev. Co., not provided here (Ohio App. 2008) (debate over sales of real property by receivers free and clear of liens)