MICHAEL DEBARTOLO, ET AL. v. DUSSAULT MOVING, INC., ET AL.
No. 96667
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 8, 2011
2011-Ohio-6282
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CV-698119 and CV-684169
Brett M. Mancino
Janik L.L.P.
9200 South Hills Boulevard
Suite 300
Cleveland, OH 44147-3521
ATTORNEYS FOR APPELLEES
For Dussault Moving, Inc.
Michael J. Flament
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
For Mid-America Management Corporation
Evan T. Byron
Robert I. Chernett
Matthew J. McCracken
Chernett Wasserman, LLC
The Tower at Erieview
1301 East Ninth Street, Suite 3300
Cleveland, OH 44114
SEAN C. GALLAGHER, J.:
{¶ 2} Plaintiffs-appellants Michael DeBartolo and Steve Kerr (“appellants“) appeal the decision of the Cuyahoga County Court of Common Pleas to appoint a receiver to sell the personal property at issue in this case. For the reasons stated herein, we reverse the judgment of the trial court and remand the matter for further proceedings.
{¶ 3} In January 2009, Mid-America Management Corporation filed a forcible entry and detainer action against appellants with regard to a leased apartment in Lakewood. After the filing of a counterclaim, the action was transferred to the Cuyahoga County Court of Common Pleas (Case No. CV-684169, “the Mid-America case“). During the proceedings in that case, the court issued a writ of restitution, providing for restitution of the premises on May 7, 2009. The court‘s judgment entry ordered appellants to remove their personal property from the premises “no later than May 14, 2009, by appointment only[.]”
{¶ 4} On July 9, 2009, appellants filed a complaint against Dussault Moving, Inc. (“Dussault“) (Cuyahoga County Court of Common Pleas Case No. CV-698119, “the Dussault case“). In their complaint, appellants allege that they attempted to remove their personal property from the premises on
{¶ 5} In August 2009, the Dussault case was consolidated with the Mid-America case, which still had pending claims. However, in April 2010 the trial court bifurcated the claims as between appellants and Dussault, and the matter proceeded to trial on the claims raised in the Mid-America case.
{¶ 6} With regard to the Dussault case, appellants filed a motion for summary judgment and a supplemental motion for summary judgment for replevin and conversion. Dussault filed a motion for summary judgment and a motion to appoint receiver and to sell property, citing
{¶ 7} Appellants raise three assignments of error for our review. As all of the assigned errors challenge the trial court‘s appointment of a receiver, we shall address them together.
{¶ 8} Initially, we recognize that an order appointing a receiver is a final, appealable order. “It is well settled that an order appointing a receiver is a final, appealable order that affects a substantial right in a special proceeding. Cunningham v. Ohio Police & Fire Pension Fund, 175 Ohio App.3d 566, 2008-Ohio-218, 888 N.E.2d 453, ¶ 6; see, also,
{¶ 9} However, to the extent appellants claim the trial court implicitly granted a judgment in Dussault‘s favor, we find no such ruling has been made by the trial court. Rather, the record reflects that the trial court has not ruled upon the dispositive motions. Therefore, issues pertaining to the merits of the parties’ claims are premature and are not properly before us at this time. Our review is limited to the trial court‘s order appointing the receiver.
{¶ 10} A trial court has sound discretion to appoint a receiver, and an appointment will not be disturbed absent an abuse of that discretion. State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 73, 573 N.E.2d 62. “‘A court in exercising its discretion to appoint or refuse to appoint a receiver must take into account all the circumstances and facts of the case, the presence of conditions and grounds justifying the relief, the ends of justice, the rights of all the parties interested in the controversy and subject matter, and the adequacy and effectiveness of other remedies.’ 65 American Jurisprudence 2d (1972) 873, 874, Receivers, Sections 19, 20.” Id. at fn. 3.
{¶ 11} Although a trial court is vested with sound judicial discretion to appoint a receiver, it does not have unbridled discretion. The authority of Ohio courts to appoint a receiver arises under
“(A) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject property or a fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of a party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured;
“(B) In an action by a mortgagee, for the foreclosure of his mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and the property is probably insufficient to discharge the mortgage debt;
“(C) After judgment, to carry the judgment into effect;
“(D) After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied and the judgment debtor refuses to apply the property in satisfaction of the judgment; “(E) When a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights;
“(F) In all other cases in which receivers have been appointed by the usages of equity.”
{¶ 12} “Because the appointment of a receiver is such an extraordinary remedy, the party requesting the receivership must show by clear and convincing evidence that the appointment is necessary for the preservation of the complainant‘s rights.” Equity Ctrs. Dev. Co. v. S. Coast Ctrs. Inc. (1992), 83 Ohio App.3d 643, 649-650, 615 N.E.2d 662, citing Malloy v. Malloy Color Lab, Inc. (1989), 63 Ohio App.3d 434, 437, 579 N.E.2d 248. While a trial court is not statutorily obligated to conduct a hearing prior to appointing a receiver, a trial court abuses its discretion when it appoints a receiver without sufficient evidentiary support for the appointment. Poindexter v. Grantham, Cuyahoga App. No. 95413, 2011-Ohio-2915, ¶ 14-16.
{¶ 13} In this case, Dussault moved for the appointment of a receiver under
{¶ 14} Our review reflects that judgment had not been rendered on the claims and there is no indication that the property is in danger of being lost, removed, or materially injured. Further, there was no showing that any of the other grounds for an appointment of a receiver were present. The trial court did not hold a hearing on the motion and did not set forth any rationale in its opinion.
{¶ 15} Because none of the possible situations in law or equity for appointment of a receiver listed in
It is ordered that appellants recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and PATRICIA ANN BLACKMON, J., CONCUR