DeBartolo v. Dussault Moving, Inc. ( 2011 )


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  • [Cite as DeBartolo v. Dussault Moving, Inc., 2011-Ohio-6282.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96667
    MICHAEL DEBARTOLO, ET AL.
    PLAINTIFFS-APPELLANTS
    vs.
    DUSSAULT MOVING, INC., ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case Nos. CV-698119 and CV-684169
    BEFORE:      S. Gallagher, J., Kilbane, A.J., and Blackmon, J.
    RELEASED AND JOURNALIZED: December 8, 2011
    ATTORNEY FOR APPELLANTS
    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.:
    {¶ 1} This cause came to be heard upon the accelerated calendar
    pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of
    counsel.
    {¶ 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
    May 14, 2009, but their attempt was rebuffed by Mid-America. They further
    allege that they subsequently contracted with Corlett Movers to handle the
    moving and storage of their personal property, but Mid-America again
    refused their attempt to remove their property.       They discovered that at
    some point prior to May 15, 2009, Mid-America contracted with Dussault to
    move and store their personal property, without the consent of appellants.
    Dussault admitted to moving appellants’ personal property and storing it at
    its warehouse for $1,080 per month.      Appellants brought claims against
    Dussault for replevin and conversion and sought possession of their personal
    property and monetary damages.       They also filed a motion for order of
    possession.    Dussault filed a counterclaim in which it asserted a
    “warehouseman’s lien” and also sought storage fees.
    {¶ 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 Civ.R. 66. Without
    ruling on the dispositive motions, on March 15, 2011, the trial court ordered
    the appointment of a receiver regarding the property at issue. Appellants
    timely filed a notice of appeal.
    {¶ 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, R.C.
    2505.02(B)(2).”     Hummer         v.   Hummer,   Cuyahoga   App.   No.   96132,
    2011-Ohio-3767.
    {¶ 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 R.C. 2735.01. The statute
    authorizes the appointment of a receiver in the following cases:
    “(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 Civ.R. 66. Civ.R. 66 merely states: “[a]n action wherein a receiver has
    been appointed shall not be dismissed except by order of the court.
    Receiverships shall be administered in the manner provided by law and as
    provided by rules of court.”               As indicated above, the appointment of a
    receiver is governed by R.C. 2735.01.1
    {¶ 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 R.C. 2735.01 were established, the trial
    court abused its discretion in appointing a receiver.2 We reverse the decision
    of the trial court and remand the matter for further proceedings.3
    1
    Although appellants claim a receiver may only be appointed with the consent of the parties,
    they have misconstrued the language of R.C. 2735.02. A receiver acts as an arm of the court and
    has been defined as “‘[a]n indifferent person between the parties to a cause, appointed by the court *
    * *.’” State ex rel. Celebrezze, 
    60 Ohio St. 3d 69
    , at fn. 4, quoting Black’s Law Dictionary (6th Ed.
    1990) 1268. Consistent therewith, R.C. 2735.02 prohibits the appointment of a “party, attorney, or
    person interested in an action” as receiver, “except by consent of the parties.” We also find nothing
    in the record to indicate that ex parte communications occurred between Dussault’s counsel and the
    court.
    2
    We also note that the trial court did not require the receiver to post a bond. “The amount
    of the bond is not set by statute, and instead, is committed to the sound discretion of the trial court.
    Although the court has broad discretion in determining the amount of the bond, an adequate bond
    should be consistent with the value of the properties and assets that the receiver may possess during
    the expected period of the receivership.” (Citation omitted.) Hummer, at ¶ 21.
    3
    Nothing herein precludes Dussault from renewing its motion at a later time, provided
    grounds for an appointment of a receiver can be established.
    Judgment reversed; case remanded.
    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
    Rule 27 of the Rules of Appellate Procedure.
    SEAN C. GALLAGHER, JUDGE
    MARY EILEEN KILBANE, A.J., and
    PATRICIA ANN BLACKMON, J., CONCUR
    

Document Info

Docket Number: 96667

Judges: S. Gallagher

Filed Date: 12/8/2011

Precedential Status: Precedential

Modified Date: 10/30/2014