Champaign Natl. Bank v. Preferred Capital, Inc.Champaign Natl. Bank v. Preferred Capital, Inc.
For-Appellant
J. BRUCE HUNSICKER
CAROLYNN E. COLEMAN
Vorys, Sater, Seymour & Pease LLP
First National Tower, Suite 1100
106 S. Main Street
Akron, OH 44308
Ronald L. Lambright
Tamara A. O‘Brien
T. Anthony Mazzola
Roderick Linton Belfance
One Cascade Plaza, Suite 1500
Akron, Ohio 44308
Counsel for Receiver & Preferred Capital, Inc.
Colin G. Skinner, Esq.
Oldham Kramer
195 South Main Street; Suite 300
Akron, OH 44308
Counsel for Plaintiff-appellee
Ziegler, Metzger & Miller
2020 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115-1441
Counsel for The State Bank & Trust Co.
Kathryn A. Belfance
Roderick Linton Belfance
One Cascade Plaza, Suite 1500
Akron, Ohio 44308
Receiver
Jonathan M. Ames
108 Main Avenue S.W.
Warren, OH 44481
Rosemary Sweeney, Esq.
Jeff Toole, Esq.
Buckley King
1400 Fifth Third Center
600 Superior Avenue, East
Cleveland, OH 44114
Counsel for Huntington National Bank
Sterling National Bank
% Robert Knox
Vice President - Leasing
500 Seventh Avenue, 11th Floor
New York, NY 10018-45023
Stephen Bales, Esq.
Ziegler, Metzger & Miller LLP
2020 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115-1441
Counsel for Western Reserve Bank
Citizen‘s Banking Company
C/o Vicky Doski
303 Howard Drive
Sandusky, OH 44870
Kirk W. Roessler
Ziegler, Metzger & Miller LLP
2020 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115-1441
Counsel for The State Bank & Trust Co
William Strachan, Esq
Strachan, Miller, Olender & Roessler, Co.,
1940 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115-4107
Deborah D. Butler
Posting Closing Manager
First City Servicing Corporation
6400 Imperial Drive
P.O. Box 8216
Waco, TX 76714
Richard C. Graham, Esq.
Gamble Hartshorn Johnson, LLC
One East Livingston Avenue
Columbus, OH 43215-5700
Alan R. Lepene, Esq.
Jeremy M. Campana
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114
J. Timothy Bender
Rotatori, Bender, Gragel, Stoper & Alexander Co., L.P.A.
800 Leader Building
526 Superior Avenue East
Cleveland, OH 44114-1498
Gwin, P.J.
{¶1} Appellant FirstMerit Bank, a creditor of appellee Preferred Capital, Inc. appeals a judgment of the Court of Common Pleas of Summit County, Ohio, which directed appellee‘s Receiver, appellee Kathryn A. Belfance, to pay outstanding expenses and wind up the receivership in the best interest of the secured creditors.
{¶2} The judgment entry states in pertinent part: “*** In winding down the receivership, the Receiver shall trаnsfer to each secured creditor all litigation, civil proceedings, collection proceeds, pending appellate proceedings, assets, leases, files, and documents pertaining to or owned by each secured creditor. Each secured creditor shall be entitled to retain any outstanding funds that they (sic) recover and shall be responsible for the cost of any defense in any litigation, civil proceedings, collection proceedings, or pеnding appellate proceedings transferred pursuant to this Order.
{¶3} “If the Receiver informs the Court the receivership is insоlvent prior to completion of the winding down process, the Court shall determine how any deficiencies shall be aрportioned if the secured creditors cannot reach agreement on said issue.” Judgment Entry of March 28, 2008, at Page Two.
{¶4} The record indicates the court appointed appellee Belfance as Receiver for Preferrеd Capital on April 14, 2005. She received the authority to prosecute and defend litigation, hire necessary professionals, and liquidate, manage, protect, and administer the assets of Preferred Capital, Inc. The order also providеd the Receiver would be paid from rents, issues, profits, income, revenues, accounts and lease payments cоllected or received by the receiver and approved by the court. No appeal
{¶5} Thereafter, the matter proceeded and eventually encompassed over 700 cases in litigation, ongoing settlements and settlement attempts, and involved, among many othеrs, Attorneys General of several states. From time to time, the Receiver submitted reports to the court and also requеsts for her compensation, and to pay the various persons assisting the Receiver in this action.
{¶6} On November 3, 2006, appellant FirstMerit appealed from the trial court‘s order overruling FirstMerit‘s motion to compel the Receiver to distributе funds to FirstMerit and allowing the Receiver to pay legal fees from the proceeds she held. On January 16, 2007, the Court of Apрeals dismissed the appeal, finding it was not a final appealable order. Champaign National Bank v. Preferred Capital, Inc., Summit App. No. 23470.
{¶7} Subsequent to the filing of the present appeal, appellee Belfance filed a motion to dismiss this appeal as well. She argues, inter alia, that this present appeal deals with essentially the same issue as the 2006 appeal. This court denied the motion to dismiss for the time, but deferred the issue until final determination of the appeal.
{¶8} Ohio law provides that appellate courts have jurisdiction to review only final orders or judgments. See, generally,
{¶10} “(B) An order is a final order that may be reviewed, аffirmed, modified, or reversed, with or without retrial, when it is one of the following:
{¶11} ” (1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
{¶12} ” (2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
{¶13} ” (3) An order that vacates or sets aside a judgment or grants a new trial;
{¶14} ” (4) An order that grants or denies a provisional remedy and to which both of the following apply:
{¶15} ” (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
{¶16} “(b) The appealing party wоuld not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceеdings, issues, claims, and parties in the action.***”
{¶17} In Hall v. Hall, Geauga App. No. 2001-G-2393, 2002-Ohio-4363, the 11th District Court of Appeals reviewed a case where a claimant moved for payment of wages from a receiver who was managing a business until it could be liquidated. The court of appeals found the denial of the motion was not a final appealable order. The court noted the receivershiр was not closed or terminated, and the court‘s order did not resolve all of the remaining issues or contain a finding of no just reason for delay. The court concluded the trial court had not yet terminated the receivership, which would
{¶18} We find the judgment from which FirstMerit appeals is not a final appealable order. On the face of the judgment, the court anticipates further action by the Receiver, in winding up the receivership and distributing the remаining assets of Preferred Capital, Inc., including litigation, some of which presumably has future value. The judgment appealed frоm does not actually award any assets to any party. In the entry, the court indicates if the receivership becomеs insolvent this will require further action by the parties and the court.
{¶19} For the foregoing reasons, the appeal is dismissed for lаck of jurisdiction.
By Gwin, P.J.,
Edwards, J., and
Delaney, J., concur
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HON. W. SCOTT GWIN
_________________________________
HON. JULIE A. EDWARDS
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HON. PATRICIA A. DELANEY
WSG:clw 1109
For the reasons stated in our accompanying Memorandum-Opinion, the within appeal is dismissed for lack of jurisdiction. Costs to FirstMerit.
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HON. W. SCOTT GWIN
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HON. JULIE A. EDWARDS
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HON. PATRICIA A. DELANEY