Gemmell v. AnthonyGemmell v. Anthony
Scott E. North & Christen M. Blend, Porter, Wright, Morris & Arthur, LLP, Columbus Ohio for Defendant-Appellant.
Dale D. Cook & Michael L. Close, Isaac Wiles Burkholder & Teetor, LLC, Columbus Ohio for Plaintiffs-Appellees.
McFARLAND, A.J.
{¶1} Appellants Mark Anthony and M&T Property Investments, Ltd. filed an appeal from the trial court‘s judgment entry granting the receiver, Reg Martin of Martin Management Services, Inc., authority to borrow funds for the purpose of renovating and reopening operations of the zip line park, including money for working capital, and to provide administrative priority to any party who lends money or provides assets on a credit basis to the receiver. The entry also authorizes the receiver to pay monthly rent on the park‘s premises in the sum of $500 and prohibits any of the parties in the case from interfering with the receiver‘s efforts to re-open and operate the park and from
{¶2} Appellees filed a motion to dismiss the appeal on the ground that the judgment entry appealed from is not a final appealable order. Appellees argue that, although a previous order appointing the receiver is a final appealable order and the appeal of it is currently before this court in Gemmell v. Anthony, 4th Dist. App. No. 14CA11, the entry appealed from here is an interim order that governs the receiver‘s ongoing administration of the assets and does not affect a substantial right. Therefore, they argue that it is not a final order under
{¶3} We find that the trial court‘s entry is not a final appealable order under either
Legal Analysis
{¶4} Ohio law provides that appellate courts have jurisdiction to review only final orders or judgments. See, generally,
{¶5} For purposes of this appeal, the relevant portions of
(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
* * *
(2) An order that affects a substantial right in an action made in a special proceeding or upon a summary application in an action after judgment;
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(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.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶6} We analyze the judgment entry under both
A. Analysis under R.C. 2505.02(B)(2) – Special Proceeding
{¶7} A judgment entry qualifies as a final, appealable order under
{¶8} A “substantial right” is defined as “a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.”
{¶10} Here the judgment entry does not order the final disposition of assets or terminate the receivership. Rather, it directs the receiver‘s ongoing efforts by allowing him to borrow additional funds of up to $100,000 for the purpose of renovating and reopening operations at the zip line park and gives an administrative priority claim to creditors willing to provide credit to the receiver. It authorizes the receiver to use cash flow to pay for the normal business operations and repayment of the loan, with the remaining funds held for distribution pursuant to future orders of the court. It authorizes the receiver to pay rent on the premises in the sum of $500 per month and operate the park for up to five years or until the court terminates the receivership. Last, it prevents the parties from interfering with the receiver‘s efforts or entering the zip line park without the receiver‘s written permission. Thus, the entry is like those addressed in the cases from other districts – an interim order governing the ongoing administration of the receivership. The entry does not affect a substantial right as it does not make a final distribution of assets or terminate the receivership and it anticipates further action by the receiver. The receiver was previously appointed to take over the operations of the zip line park and the judgment entry authorizes the receiver to take steps in furtherance of
B. Analysis under R.C. 2505.02(B)(4) – A Provisional Remedy
{¶11} Appellants focus exclusively on the provisional remedy provision in
[N]o “order” is ever a “provisional remedy” under the statute. The General Assembly expressly defined a “provisional remedy” as a type of proceeding.
R.C. 2505.02(A)(3) . An “order” is thus properly understood as the mandate from the trial court that grants or denies the particular relief at issue in that proceeding—not as the provisional remedy itself. SeeR.C. 2505.02(B)(4) . (Emphasis in original).
State v. Muncie, 91 Ohio St.3d 440, 447-448, 2001-Ohio-93, 746 N.E.2d 1092.
[F]or purposes of
R.C. 2505.02(A)(3) ‘s definition, “[a]n ancillary proceeding is one that is attendant upon or aids another proceeding.” Bishop, 134 Ohio App.3d at 324, 730 N.E.2d at 1081. The Bishop court derived its definition of an ancillary proceeding from Sorg v. Montgomery Ward & Co., Inc. (Dec. 17, 1998), Erie App. No. E–98–057, unreported, 1998 WL 904945. Bishop at 324, 730 N.E.2d at 1081. As the Sorg court noted, Black‘s Law Dictionary defined “ancillary” as “‘[a]iding; attendant upon; describing a proceeding attendant upon or which aids another proceeding considered as principal. Auxiliary or subordinate.‘” Sorg, 1998 WL 904945 at *3, citing Black‘s Law Dictionary (5 Ed.1979) 78. See, also, Black‘s Law Dictionary (7 Ed.1999) 85 (defining “ancillary” as “[s]upplementary; subordinate“).The Bishop and Sorg courts’ understanding of the term “ancillary” corresponds to the word‘s common and ordinary meaning, as well as to this court‘s prior understanding of the term. See
R.C. 1.42 ; see, also, Forest City Invest. Co. v. Haas (1924), 110 Ohio St. 188, 192, 143 N.E. 549, 550. In Forest City, we noted that the appointment of a receiver occurs in a proceeding “ancillary to the main action.” (Emphasis added.) Id. The proceeding for the appointment of a receiver aids the principal proceeding—the underlying litigation—for the receiver conserves the interests of litigants with respect to property that is in the custody of the court during the course of the principal litigation. Id. at 192–193, 143 N.E. at 550; see, also, Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 68, 59 O.O. 74, 78, 133 N.E.2d 606, 612 (noting that “an attachment is a provisional remedy; an ancillary proceeding which must be appended to a principal action and whose very validity must necessarily depend upon the validity of the commencement of the principal action“).
{¶13} Applying this understanding of the statutory term “ancillary” we find that the application for an appointment of a receivership under
{¶14} Nevertheless, assuming that the interim order is an order that grants or denies a provisional remedy under
{¶16} Finally, under
{¶17} As we determined in our analysis under
{¶18} Accordingly, based upon the foregoing reasons, we find the judgment entry appealed is not a final appealable order and the appellees’ motion is GRANTED and the appeal is hereby DISMISSED.
{¶19} The clerk shall serve a copy of this order on all counsel of record at their last known addresses by ordinary mail.
{¶20} MOTION TO DISMISS GRANTED. APPEAL DISMISSED. COSTS TO APPELLANT. IT IS SO ORDERED.
Harsha, J. & Abele, J.: Concur.
FOR THE COURT
_____________________________
Matthew W. McFarland
Administrative Judge