NANCY RALLS, ET AL. v. 2222 INTERNATIONAL, L.L.C., ET AL.
No. 108314
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 17, 2019
2019-Ohio-4261
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: October 17, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-908947
Appearances:
Harold Pollock Co., L.P.A., Harold Pollock, for appellants.
Sherman Boseman Legal Group, L.L.C., Bradley A. Sherman, F. Allen Boseman, Jr., and Ashley M. Fuchs, for appellees.
PATRICIA ANN BLACKMON, J.:
{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to
- The trial court abused its discretion in denying Appellants’ motion to appoint receiver where Appellants established a prima facie case of corporate deadlock and Appellants’ Complaint alleged fraud and misappropriation of funds in the operation of the subject company.
- The trial court abused its discretion in denying Appellants’ motion to appoint receiver where Appellants established that substantial risk existed of loss of the company’s real property and business if left under the control of Appellees.
{¶ 2} Having reviewed the record and pertinent law, we dismiss this appeal for lack of a final order. The apposite facts follow.
{¶ 3} In March 2017, Plaintiffs entered into an agreement with Simany Suon to form 2222 International, L.L.C. (2222). Plaintiffs and Suon each own 50 percent of 2222. In turn, 2222 owns real property located at 2222 St. Clair Ave., Cleveland, and operates a nightclub called The Dstrkt at this location. Sreyleak Ny and Michael Harris acted as agents or representatives of 2222 in operating The Dstrkt.
{¶ 4} On December 28, 2018, Plaintiffs filed a complaint against 2222, Suon, Ny, and Harris (collectively Defendants) alleging the following causes of action: declaratory judgment; breach of contract; promissory estoppel; dissolution of L.L.C.; action for accounting; theft; conversion; constructive trust; equitable lien; fraud and misrepresentation; and breach of fiduciary duties. The gist of Plaintiffs’ allegations are that the parties can no longer agree regarding the management of
{¶ 5} On the same day that Plaintiffs filed their complaint, they filed a motion to appoint a receiver pursuant to
{¶ 6} On March 7, 2019, the court held a hearing on the motion to appoint a receiver, along with eleven other motions that Plaintiffs filed and five motions that Defendants filed. On March 11, 2019, the court summarily denied Plaintiffs’ request to appoint a receiver, and it is from this order that Plaintiffs appeal. Defendants filed a motion to dismiss the appeal, and both parties filed motions for sanctions. Because it is dispositive of the case, we first address Defendants’ motion to dismiss this appeal for lack of a final appealable order.
Final Appealable Order
{¶ 7} An order must be final before an appellate court can review it. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶ 26. Pursuant to
{¶ 8} Pursuant to
An order is a final order that may be reviewed, affirmed, modified, or reversed * * * when it is * * *
(2) An order that affects a substantial right made in a special proceeding * * * [or]
(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.
{¶ 9} This court has held that, under
{¶ 10} Although it is clear that an order granting a motion to appoint or remove a receiver is final and appealable, this case concerns the denial of a motion
Denial of Motion to Appoint a Receiver
{¶ 11} Defendants cite Miles Landing Homeowners Assn. v. Bikkani, 8th Dist. Cuyahoga Nos. 86356 and 86942, 2006-Ohio-3328, to support their motion to dismiss for lack of a final appealable order. In Bikkani, a condominium association was entitled to the appointment of a receiver pursuant to
{¶ 12} However, the condominium unit owner who failed to pay the fees had no such statutory right to a receiver. This court held that the owner of the unit subject to foreclosure has no right to appoint a receiver; therefore, denying him one does not aggrieve [him] in any way. Id. The case at hand is distinguishable from Bikkani and does not implicate
{¶ 13} Plaintiffs, on the other hand, argue that they have a statutory right to the appointment of a receiver, and the issue of the appointment of a receiver is the only issue before this Court. Plaintiffs cite Dyczkiewycz v. Tremont Ridge Phase I, Ltd. Partnership, 8th Dist. Cuyahoga No. 91773, 2009-Ohio-495, in which
{¶ 14} In the case at hand, Plaintiffs argue they are entitled to a receiver under
Substantial Right — R.C. 2505.02(B)(2)
{¶ 15}
{¶ 16}
{¶ 17} Likewise,
{¶ 18}
[u]pon the filing of a complaint for judicial dissolution, the court * * * shall have power to * * * appoint a receiver with such authority and duties as the court from time to time may direct, to take such other proceedings as may be necessary to protect the property or the rights of the complainants or of the persons interested, and to carry on the business of the corporation until a full hearing can be had.
{¶ 19} The appointment of a receiver under this statute is also discretionary. Having the power or authority to act does not require the exercise of such
{¶ 20} Upon review, we find that the court’s denial of Plaintiffs’ motion to appoint a receiver does not affect a substantial right in this case, because Plaintiffs cannot show that if they do not immediately appeal, they will be foreclosed from relief on their complaint. This case is based on allegations of breach of contract, fraud, and other associated causes of action concerning a business partnership, and these claims remain pending. In Garden v. Langermeier, 8th Dist. Cuyahoga No. 104674, 2017-Ohio-972, this court dismissed an appeal of the probate court’s granting an application for distribution of estate assets for lack of a final order. In Garden, although the court granted the application for distribution, the court did not resolve the complaint for breach of fiduciary duties and the expectation of filing the final accounting. Id. at ¶ 4.
{¶ 21} This court found that the parties acknowledge that the Gardens’ causes of action against Langermeier remain pending. That fact alone is enough to show that the Gardens can obtain relief without an immediate appeal from the order of distribution. Id. at ¶ 13. This court reached this conclusion despite the Gardens’ argument that, while the case is pending, the assets could be transferred, concealed, or spent by Appellee, which could significantly impair [Gardens’] ability to obtain a
{¶ 22} Upon review, we find that the order denying the motion to appoint a receiver in this case is neither final nor appealable as a substantial right made in a special proceeding under
Provisional Remedy — R.C. 2505.02(B)(4)(a) and (b)
{¶ 23} We turn to
{¶ 24} In Nejman, this court held that an order denying a motion to dismiss for lack of personal jurisdiction does not determine the action, does not prevent
{¶ 25} Accordingly, we lack jurisdiction to review Plaintiffs’ assigned errors, as well as both parties’ cross-motions for sanctions; consequently, this case is dismissed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry out this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR