Strauss v. Strauss

Oct 15, 2009
92615
Versions:2009-Ohio-5493

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-311479

RELEASED: October 15, 2009

JOURNALIZED:

ATTORNEYS FOR APPELLANTS

Jaye M. Schlachet
Eric M. Levy
55 Public Square
Suite 1300
Cleveland, Ohio 44113-1971

ATTORNEYS FOR APPELLEE

Joseph G. Stafford
Gregory J. Moore
Stafford & Stafford Co., LPA
The Stafford Building
2105 Ontario Street
Cleveland, Ohio 44115

ATTORNEY FOR RECEIVER, MARK DOTTORE

Charles J. Pawlukiewicz
Richard A. Rabb
McCarthy, Lebit, Crystal & Liffman Co.
101 West Prospect Avenue
Suite 1800
Cleveland, Ohio 44115

Guardian ad Litem:

John H. Lawson
Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

MARY EILEEN KILBANE, J.:

{¶ 1} Appellee Julie A. Strauss‘s motion to dismiss appeal is granted. Appellee argues that the trial court‘s order outlining the receiver‘s duties and responsibilities dated December 30, 2008, is not a final appealable order. After a review of the record and pertinent law, we agree.

{¶ 2} A receiver was initially appointed on July 18, 2007. Neither party appealed. The trial court sua sponte issued a revised order outlining the receiver‘s duties on December 30, 2008, from which appellant filed the instant appeal. Appellant maintains that the December 30, 2008 order expanded the receiver‘s powers that affects his substantial rights, therefore rendering it a final appealable order.

{¶ 3} Pursuant to the Ohio Constitution, all actions before this court must stem from a final order. This court has consistently held that the appointment of a receiver is a final appealable order pursuant to R.C. 2505.02, as it affects a substantial right. Collins v. Collins, Cuyahoga App. No. 87986, 2007-Ohio-283, at ¶7. However, this court has never held a trial court‘s subsequent journal entry specifically enumerating a receiver‘s duties to be a final appealable order, and appellant fails to cite any authority to suggest otherwise.

{¶ 4} Trial courts have the authority to appoint receivers pursuant to R.C. 2735.01. Receivers have broad powers to manage property pursuant to R.C. 2735.04, which provides, “a receiver may bring and defend actions in his own name as receiver, take and keep possession of property, receive rents, collect, compound for and compromise demands, make transfers, and generally do such acts respecting the property as the court authorizes.”

{¶ 5} Therefore, we conclude that the receiver‘s powers as specifically enumerated in the trial court‘s December 30, 2008 entry were already authorized pursuant to the journal entry issued on July 18, 2007. Simply because the trial court subsequently elected to specifically enumerate those powers that were already inherent in the initial appointment of the receiver, does not render the subsequent order to be final and appealable.

Case dismissed.

It is ordered that appellee recover from appellants costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

COLLEEN CONWAY COONEY, A.J. and LARRY A. JONES, J., CONCUR