State ex rel. O'Brien v. Fairview Mem. Park, Inc. , 2019 Ohio 5305 ( 2019 )


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  • [Cite as State ex rel. O'Brien v. Fairview Mem. Park, Inc., 
    2019-Ohio-5305
    .]
    COURT OF APPEALS
    DELAWARE COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO, EX REL.                                  JUDGES:
    CAROL HAMILTON O’BRIEN                                  Hon., W. Scott Gwin, P.J.
    Hon., William B. Hoffman, J.
    Plaintiff-Appellee                               Hon., John W. Wise, J.
    -vs-
    Case No. 19 CAE 04 0028
    FAIRVIEW MEMORIAL PARK, INC.,
    ET AL.,
    Defendants-Appellees                             O P I N IO N
    -vs-
    BERLIN TOWNSHIP/BERLIN
    TOWNSHIP TRUSTEES
    Intervening Party
    Defendant/Cross-Claimant/Appellant
    CHARACTER OF PROCEEDINGS:                               Appeal from the Delaware County Court
    of Common Pleas, Case No. 17 CVH 05
    0302
    JUDGMENT:                                               Affirmed
    DATE OF JUDGMENT ENTRY:                                 December 20, 2019
    APPEARANCES:
    For Plaintiff-Appellee                                  For Defendants-Appellees Receiver
    MELISSA A. SCHIFFEL                                     AARON C. FIRSTENBERGER
    Prosecuting Attorney                                    KENNETH R. GOLDBERG
    Delaware County, Ohio                                   Strip, Hoppers, Leithart, McGrath &
    Terlecky Co., L.P.A.
    CHRISTOPHER D. BETTS                                    575 South Third Street
    Assistant Prosecuting Attorney                          Columbus, Ohio 43215
    145 North Union Street, 3rd Floor
    Delaware, Ohio 43015
    Delaware County, Case No. 19 CAE 04 0028                                         2
    For Intervening Party Defendants/Cross-   Co-Counsel for Intervening Party
    Claimant/Appellant                        Defendants/Cross Claimant/Appellant
    CHRISTOPHER A. RINEHART                   GRANT A. WOLFE
    Rinehart Legal Services, Ltd.             Wolfe Law Offices
    P.O. Box 16308                            100 E. Campus View Blvd., Suite #250
    Columbus, Ohio 43216                      P.O. Box 1505
    Columbus, Ohio 43216-1505
    Delaware County, Case No. 19 CAE 04 0028                                                 3
    Hoffman, J.
    {¶1}   Intervening party defendant/cross-claimant/appellant Berlin Township/
    Berlin Township Trustees (“Berlin Township”) appeals the March 7, 2019 Judgment Entry
    entered by the Delaware County Court of Common Pleas, which denied its motion for
    default judgment and granted the motion of the receiver-appellee, A.C. Strip (“the
    Receiver”), authority to engage a real estate consultant and sell the remaining corporate
    assets of defendants-appellees Fairview Memorial Park, Inc., et al.
    STATEMENT OF THE CASE AND FACTS
    {¶2}   On May 9, 2017, the Delaware County Prosecutor filed a Verified Complaint
    for Judicial Dissolution against Fairview Memorial Park, Inc. (“the Corporation”), Theodore
    L. Martin, and Arminda K. Martin, seeking a judicial dissolution of the Corporation, on the
    basis the Corporation had been organized or systemically used to further criminal
    purposes or as a subterfuge to engage in criminal activity. The complaint stated Theodore
    Martin was the president and statutory agent of the Corporation, a not-for-profit
    corporation incorporated on August 30, 1960; his wife, Arminda Martin, was employed by
    the Corporation; and the Corporation owned and operated Fairview Memorial Park
    Cemetery (“the Cemetery”) located at 5035 Columbus Pike, Lewis Center, Ohio, as well
    as an undeveloped parcel adjoining the Cemetery.
    {¶3}   The complaint asserted Theodore and Arminda Martin had been convicted
    of federal tax evasion in the United States District Court for the Middle District of
    Pennsylvania and were facing charges of theft and engaging in a pattern of corrupt activity
    in the Delaware County Court of Common Pleas. As a result of their incarceration and
    the pending state prosecution, the Martins did not currently have the ability to maintain,
    operate, or care for the Cemetery. According to the complaint, the answer to whether the
    Delaware County, Case No. 19 CAE 04 0028                                                  4
    Corporation had sufficient funds or assets to operate or care for the Cemetery, pay its
    debts and creditors, or perform its contractual obligations was unknown.
    {¶4}   Contemporaneously with the filing of the complaint, the prosecutor filed a
    Motion to Expedite and Set a Hearing and Immediately Appoint Receiver. The trial court
    conducted a hearing on the motion to expedite and appoint a receiver on May 19, 2017.
    The trial court found a receiver was necessary to ensure the business of the Corporation
    could continue while the case was pending. The trial court appointed the Receiver.
    {¶5}   The prosecutor filed a motion for default judgment against the Corporation
    and the Martins on August 28, 2017, which the trial court granted. Following a hearing
    on September 22, 2017, the trial court entered a final order for judicial dissolution of the
    Corporation. The trial court instructed the Receiver to continue with his administrative
    duties to the extent needed to wind up the affairs of the Corporation and the receivership.
    The trial court also authorized the Receiver, with prior approval from the court, to sell,
    transfer, or convey the Corporation and all of its assets.
    {¶6}   On April 10, 2018, the Receiver filed motions seeking authority to sell
    certain corporate assets and to engage a real estate consultant to assist with the sale of
    the property. The Receiver proposed to sell the whole undeveloped parcel and a part of
    the Cemetery parcel. The motion provided notice to all parties to the action and all
    persons known to have an interest in the property to file any objections to the sale within
    14 days of service of the motion.
    {¶7}   Within the time period allotted for the filing of objections, Berlin Township
    moved to intervene in the action and filed notice of its objection to the proposed sale. The
    trial court granted Berlin Township’s motion to intervene via Judgment Entry filed July 3,
    Delaware County, Case No. 19 CAE 04 0028                                                     5
    2018. Berlin Township filed a cross-claim against the Corporation, asking the trial court
    to quiet title to the Cemetery and the undeveloped parcel in the Corporation’s name and
    declare the Corporation’s real property belonged to Berlin Township. Berlin Township did
    not obtain service on the Corporation until October, 2018. After the Corporation failed to
    answer, Berlin Township moved for default judgment against it on November 26, 2018.
    {¶8}   The trial court conducted a hearing on February 22, 2019, “in order for the
    parties to present evidence to assist the Court in determining whether the property being
    held in the receivership can be sold or whether it must – by operation of law – be
    transferred to Berlin Township.” March 7, 2019 Judgment Entry at 5. Via Judgment Entry
    (1) Denying Intervening Party Berlin Township’s Motion for Default Judgment, and (2)
    Granting Receiver’s Motion for Authority to Engage Real Estate Consultant and Sell
    Remaining Corporate Assets filed March 7, 2019, the trial court denied Berlin Township’s
    motion for default judgment and dismissed its cross-claim. The trial court found the
    Cemetery and the undeveloped parcel were two distinct parcels and there was no reason
    to treat the parcels as one asset. The trial court ordered “[a]ll right, title, and interest in
    the cemetery parcel, as well as any personal and intangible property related to the
    cemetery, is vested in Berlin Township free and clear of any and all liens that may have
    been placed on the property.” March 7, 2019 Judgment Entry at 10. The trial court
    granted authority to the Receiver to sell the undeveloped parcel. 
    Id.
     It is from that
    judgment entry Berlin Township appeals, raising the following assignments of error:
    Delaware County, Case No. 19 CAE 04 0028                                                    6
    I. THE TRIAL COURT’S MARCH 7, 2019 DECISION AND
    JUDGMENT ENTRY IS A FINAL APPEALABLE ORDER AS APPLIED TO
    APPELLANT BERLIN.
    II. DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED IN
    APPELLANT’S FAVOR AS A RESULT OF DEFENDANT FAIRVIEW’S
    FAILURE TO MOVE OR PLEAD.
    III. OHIO REVISED CODE SECTION 517.10 REQUIRES A
    JUDGMENT DECLARING THAT TITLE TO BOTH PARCELS OWNED BY
    FAIRVIEW MEMORIAL PARK, INC. VESTED IN BERLIN ON OR ABOUT
    JANUARY 27, 2016.
    I.
    {¶9}   In its first assignment of error, Berlin Township argues the trial court’s March
    7, 2019 Judgment Entry was a final appealable order as applied to Berlin Township.
    Section 3(B)(2), Article IV of the Ohio Constitution limits the jurisdiction of an appellate
    court to the review of final judgments of lower courts. Germ v. Fuerst, 11th Dist. Lake No.
    2003–L–116, 2003–Ohio–6241, ¶ 3. “In order for a judgment to be final and appealable,
    the requirements of R.C. 2505.02 and Civ.R. 54(B), if applicable, must be satisfied.”
    Bristol Twp. Bd. of Trustees v. Haney, 11th Dist. Trumbull No. 2010–T–0084, 2010–Ohio–
    3965, ¶ 3; Chef Italiano Corp. v. Kent State Univ., 
    44 Ohio St.3d 86
    , 88, 
    541 N.E.2d 64
    (1989).
    {¶10} To determine whether an order is final and appealable, an appellate court's
    review often involves a multi-step process. Wisintainer v. Elcen Power Strut Co., 67 Ohio
    Delaware County, Case No. 19 CAE 04 0028                                                   7
    St.3d 352, 354, 1993–Ohio–120, 
    617 N.E.2d 1136
    . First, a reviewing court must focus its
    attention on whether the appealed order is “final” as established by R.C. 2505.02, i.e.,
    whether the order affects a substantial right and in effect determines the action and
    prevents a judgment, or the order affects a substantial right made in a special proceeding.
    Wisintainer at 354, 
    617 N.E.2d 1136
    . For an order to be final and appealable, it must meet
    the requirements of R.C. 2505.02(B), which provides, in pertinent part:
    (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:
    (1) An order that affects a substantial right in an action that in effect
    determines the action and prevents a judgment;
    (2) An order that affects a substantial right made in a special
    proceeding or upon a summary application in an action after judgment.
    (3) An order that vacates or sets aside a judgment or grants a new
    trial;
    (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.
    Delaware County, Case No. 19 CAE 04 0028                                                   8
    ***
    {¶11} “An order affects a substantial right if, in the absence of an immediate
    appeal, one of the parties would be foreclosed from appropriate relief in the future. Elliott
    v. Rhodes, 4th Dist. Pickaway No. 10CA26, 2011–Ohio–339, ¶ 17, quoting Koroshazi v.
    Koroshazi, 
    110 Ohio App.3d 637
    , 640, 
    674 N.E.2d 1266
    , (9th Dist. 1996), citing Bell v.
    Mt. Sinai Med. Ctr., 
    67 Ohio St.3d 60
    , 63, 
    616 N.E.2d 181
     (1993). To constitute a final
    order, the order must dispose of the whole case or some separate and distinct branch.
    Elliott, supra, citing Noble v. Colwell, 
    44 Ohio St.3d 92
    , 94, 
    540 N.E.2d 1381
     (1989). In
    general, when an order does not contemplate further action and no other related issues
    remain pending, the order normally constitutes a final order. Elliott, supra.
    {¶12} We find the trial court’s March 7, 2019 Judgment Entry effects a substantial
    right as the entry disposes of all the claims asserted by Berlin Township in its cross-claim,
    as well as all of the claims brought against Berlin Township in the Complaint and all of
    the defenses raised by Berlin Township in its Answer. Although the Receiver had further
    duties to undertake in order to complete the dissolution of the Corporation, the Judgment
    Entry does not contemplate further action and no issues remain pending. Berlin Township
    is foreclosed from obtaining title to the undeveloped parcel.
    {¶13} As the March 7, 2019 Judgment Entry meets the criteria of R.C. 2505.02,
    we must now ascertain whether Civ.R. 54(B) was applicable and whether it was properly
    applied. General Acc. Ins. Co. v. Ins. Co. of N. America, 
    44 Ohio St.3d 17
    , 22, 
    540 N.E.2d 266
     (1989).
    {¶14} Civ. R. 54(B) provides:
    Delaware County, Case No. 19 CAE 04 0028                                                 9
    When more than one claim for relief is presented in an action whether
    as a claim, counterclaim, cross-claim, or third-party claim, and whether
    arising out of the same or separate transactions, or when multiple parties
    are involved, the court may enter final judgment as to one or more but fewer
    than all of the claims or parties only upon an express determination that
    there is no just reason for delay. In the absence of a determination that there
    is no just reason for delay, any order or other form of decision, however
    designated, which adjudicates fewer than all the claims or the rights and
    liabilities of fewer than all the parties, shall not terminate the action as to
    any of the claims or parties, and the order or other form of decision is subject
    to revision at any time before the entry of judgment adjudicating all the
    claims and the rights and liabilities of all the parties.
    {¶15} “Civ.R. 54(B), however, is merely a procedural device. It cannot affect the
    finality of an order.” Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 
    44 Ohio St.3d 17
    , 21, 
    540 N.E.2d 266
     (1989); Meisner v. Walker, 10th Dist. No. 15AP-671, 
    2016-Ohio-215
    , 
    2016 WL 362917
    , ¶ 11. The absence of Civ.R. 54(B) language will not render an otherwise final
    order not final. Gen. Acc. Ins. Co. at 21, 
    540 N.E.2d 266
    . Moreover, “even though all the
    claims or parties are not expressly adjudicated by the trial court, if the effect of the
    judgment as to some of the claims is to render moot the remaining claims or parties, then
    compliance with Civ. R. 54(B) is not required to make the judgment final and appealable.”
    
    Id.
    Delaware County, Case No. 19 CAE 04 0028                                                              10
    {¶16} The trial court adjudicated all of the claims of the parties. Based upon the
    foregoing, we find the March 7, 2019 Judgment Entry was a final appealable order, and
    this Court has jurisdiction to address the merits of Berlin Township’s appeal.1
    II, III
    {¶17} In its second assignment of error, Berlin Township contends the trial court
    should have granted its motion for default judgment against the Corporation as the
    Corporation failed to move or plead to Berlin Township’s cross-claim. In its cross-claim,
    Berlin Township asked the trial court to quiet title of the Cemetery and undeveloped parcel
    in the Corporation’s name and declare the real estate belonged to Berlin Township. In its
    third assignment of error, Berlin Township maintains the trial court erred in failing to
    declare title to the Cemetery and the undeveloped parcel vested in Berlin Township on or
    about January 27, 2016, pursuant to R.C. 517.10.
    {¶18} R.C. 517.10 provides:
    The title to, right of possession, and control of all public cemeteries
    located outside any municipal corporation, which have been set apart and
    dedicated as public cemeteries, and any grounds which have been used as
    such by the public, but not expressly dedicated as a cemetery, except such
    as are owned or under the care of a religious or benevolent society, or an
    incorporated company or association, or under the control of the authorities
    1 Although Berlin Township raises this as an assignment of error, it appears actually to be a statement of
    law concerning this Court’s jurisdiction. Having determined we have jurisdiction, a ruling sustaining or
    overruling the “assignment of error” is unnecessary.
    Delaware County, Case No. 19 CAE 04 0028                                                 11
    of any municipal corporation, shall, severally be vested in the board of
    township trustees.
    {¶19} Berlin Township submits title to the Cemetery and the undeveloped parcel
    vested in the township as a matter of law as early as January 27, 2016, when the Martins
    were charged with, plead guilty to, were convicted and sentenced on attempted federal
    income tax evasion, or, at the latest, May 22, 2017, when the trial court appointed the
    Receiver. Berlin Township asserts the Cemetery and the undeveloped parcel were
    abandoned as of January 27, 2016, as the Martins, the principals of the Corporation, were
    no longer able to provide for the Cemetery’s maintenance, operation, or care. The trial
    court acknowledged the abandonment on May 22, 2017, when it appointed the Receiver.
    {¶20} In support of its position, Berlin Township relies on State ex rel. Petro v.
    Cincinnati, 1st Dist. Hamilton No. C-060186, 
    2007-Ohio-1858
    . In State ex rel. Petro v.
    Cincinnati, the President of Wesleyan Cemetery of Cincinnati, a charitable trust whose
    corporate officers were also trustees, was convicted of theft and sentenced to prison for
    expending the assets of the endowment-care fund for his personal expenses. Id. at ¶ 4.
    While under the President's care, the cemetery grounds had been neglected and had
    fallen into “disarray.” Id. Relying upon R.C. 759.08, which is substantially similar to R.C.
    517.10, the First District Court of Appeals concluded, insofar as the cemetery's trustees
    had abandoned their responsibilities of caring for the cemetery, title to the cemetery was
    vested in the municipal corporation in which the cemetery was located. Id. at ¶ 29-30.
    The Court concluded the trial court's findings the cemetery was a public cemetery, which
    was no longer owned by or under the care of a corporation; and title vested to the city
    Delaware County, Case No. 19 CAE 04 0028                                                  12
    when the cemetery had been abandoned, its trustees had resigned, and no corporate
    assets or corporate entity remained were supported by competent, credible evidence. Id.
    at ¶ 30.
    {¶21} We find State ex rel. Petro v. Cincinnati, supra, to be factually
    distinguishable. Unlike the instant action, the officers in State ex rel. Petro v. Cincinnati
    agreed to dissolve the cemetery association, the trial court did not order a judicial
    dissolution. In addition, a trial court did not appoint a receiver to care for the property
    and/or conclude the corporation’s affairs. The fact the principals of the Corporation were
    incarcerated and a receiver had been appointed does not necessarily mandate a finding
    of abandonment by the Corporation.
    {¶22} In its March 7, 2019 Judgment Entry, the trial court noted:
    Ohio law provided that a corporation – through either its directors or
    a receiver – is permitted to continue for purposes of winding up its affairs.
    R.C. 1701.88(D).”[W]hen the articles of a corporation have been canceled
    * * * the corporation shall cease to carry on business and do only such acts
    as are required to wind up its affairs * * * and for such purposes it shall
    continue as a corporation.” R.C. 1701.88(A). Ohio law specifically provides
    that this applies to corporations that are judicially dissolved.          R.C.
    1701.91(D).
    Ohio law clearly provides that a corporation does not cease to exist
    on the date it is ordered judicially dissolved. Id. at 8.
    Delaware County, Case No. 19 CAE 04 0028                                                  13
    {¶23} With respect to the Cemetery parcel, the trial court ultimately ordered, “All
    right, title, and interest in the cemetery parcel, as well as any personal or intangible
    property related to the cemetery, is vested in Berlin Township free and clear of any and
    all liens that may have been placed on the property.” Id. at 10. Once the trial court
    transferred the Cemetery to Berlin Township, an actual, justiciable controversy no longer
    existed as to the developed parcel actually being used as a cemetery; therefore, this
    Court is not required to rule on a question of law which cannot affect matters at issue in
    this case. See Ambrose v. Galena, 5th Dist. Delaware No. 15 CAH 01 0011, 2015-Ohio-
    3157, 
    2015 WL 4656754
    , ¶ 29, citing State v. Bistricky (1990), 
    66 Ohio App.3d 395
    , 
    584 N.E.2d 75
    .
    {¶24} With respect to the undeveloped parcel, we agree with the trial court and
    find this property was separate and distinct from the Cemetery. The evidence established
    the Cemetery was actively operating as a cemetery while the undeveloped parcel was
    not developed in any manner and was not being used for cemetery or any other purposes.
    While it appears the Corporation had intentions of using the undeveloped parcel for
    cemetery purposes as evidenced by the Corporation acquiring tax exempt status as a
    cemetery for the undeveloped parcel. However, there was nothing which precluded the
    undeveloped parcel from later being used for other, non-cemetery purposes.              The
    undeveloped parcel had a separate parcel number. The Cemetery and the undeveloped
    parcel were purchased at two different points in time. Accordingly, we find the trial court’s
    determination the Cemetery and the undeveloped parcel were separate tracts was not
    against the manifest weight of the evidence. Because the undeveloped parcel was not
    Delaware County, Case No. 19 CAE 04 0028                                             14
    presently being used as a cemetery, the undeveloped parcel did not transfer to Berlin
    Township by operation of law.
    {¶25} Berlin Township’s second and third assignments of error are overruled.
    {¶26} The judgment of the Delaware County Court of Common Pleas is affirmed.
    By: Hoffman, J.
    Gwin, P.J. and
    Wise, John, J. concur
    

Document Info

Docket Number: 19 CAE 04 0028

Citation Numbers: 2019 Ohio 5305

Judges: Hoffman

Filed Date: 12/20/2019

Precedential Status: Precedential

Modified Date: 12/23/2019