Panzica Constr. v. Bridgeview Crossing, L.L.C.

[Cite as Panzica Constr. v. Bridgeview Crossing, L.L.C., 2012-Ohio-4932.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97580
PANZICA CONSTRUCTION CO., ET AL.
PLAINTIFFS-APPELLEES
vs.
BRIDGEVIEW CROSSING, LLC, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CV-700759 and CV-709391
BEFORE: Rocco, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: October 25, 2012
ATTORNEY FOR APPELLANT
Gerald W. Phillips
Phillips & Co., L.P.A.
P.O. Box 269
Avon Lake, OH 44012
ATTORNEYS FOR APPELLEES
For Panzica Construction Co.
Melissa A. Jones
Frantz Ward LLP
2500 Key Center
127 Public Square
Cleveland, OH 44114
Mark E. Owens
J.P. Amourgis & Associates
3200 W. Market Street
Suite 106
Akron, Ohio 44333
For 5420 East 96 LLC
Robert T. Glickman
Charles A. Nemer
McCarthy, Lebit, Crystal & Liffman Co.
101 W. Prospect Avenue
Suite 1800
Cleveland, OH 44115
For Aldi, Inc., Ohio
David J. Richards, Jr.
Dworken & Bernstein Co.
60 South Park Place
Painesville, OH 44077
For David M. Browning, Receiver
Scott A. Norcross
John E. Redeker
Ziegler Metzger, LLP
925 Euclid Avenue
Suite 2020
Cleveland, OH 44155
For Doan Pyramid LLC
Samuel Calabrese
5069 Corbin Dr.
Bedford Heights, OH 44128
For Garfield Hope Loan Acquisition
Wm. Joseph Baker
Kathleen A. Nitschke
Edward A. Proctor
Giffen & Kaminski, LLC
1300 East Ninth Street
Suite 1600
Cleveland, OH 44144
David C. Tryon
Porter Wright Morris & Arthur
925 Euclid Avenue
Suite 1700
Cleveland, OH 44115
For Liberty Bank NA
Jeffrey A. Brauer
Hahn Loeser & Parks LLP
200 Public Square
Suite 2800
Cleveland, Ohio 44114
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Bridgeview Crossing, LLC (“Bridgeview”) appeals from
the trial court’s decision to grant an order of receivership in the underlying foreclosure
actions.
{¶2} Although this appeal involves a series of complex real estate transactions, the
appeal’s resolution is quite simple. Because Bridgeview failed to timely challenge the
motion made by plaintiff-appellee Garfield Hope Loan Acquisition, LLC (“Garfield
Hope”) for the appointment of a receiver, Bridgeview has waived the right to challenge
the receivership on appeal. This court, accordingly, overrules Bridgeview’s assignments
of error. The trial court’s final judgment granting the order of receivership is affirmed.
{¶3} This appeal results from two consolidated actions in foreclosure: Case No.
CV-700759, Panzica Constr. Co. v. Bridgeview Crossing LLC, (“Panzica Lawsuit”) and
Case No. CV-709391, Bank of Am. NA v. 96th St. Dev. LLC, (“Bank of America
Lawsuit”). The Panzica Lawsuit involves a large commercial retail shopping center
development known as Bridgeview Crossing Project located in Garfield Heights, Ohio.
The Bank of American Lawsuit involves an adjoining property to the Bridgeview Project.
{¶4} On May 18, 2011, Garfield Hope filed in the consolidated cases a motion for
appointment of receiver (“receivership motion”). Bridgeview eventually filed a brief in
opposition, but without seeking leave to do so, on
July 14, 2011. Subsequently, on September 12, 2011, Bridgeview filed a motion to file
instanter a brief in opposition to the receivership motion. The trial court, however, never
ruled on Bridgeview’s motion. See Abel v. Safety First Indus., 8th Dist. No. 80550,
2002-Ohio-6482, ¶ 16 (when a trial court fails to rule on a motion, the court of appeals
presumes that the trial court denied the motion).
{¶5} On September 29, 2011, Garfield Hope filed a proposed receivership order.
The proposed order was unopposed.
{¶6} On October 10, 2011, Garfield Hope filed a revised receivership order.
Again, no one objected to the proposed order.
{¶7} On October 20, 2011, the trial court issued an order granting the motion for
the appointment of receiver. This appeal follows.
{¶8} Bridgeview presents nine assignments of error:
I. The Trial Court erred when it granted the order of
receivership without applying the proper standard and test for a
receivership, the clear and convincing evidence standard and test.
II. The Trial Court erred when it granted the order of
receivership without any evidentiary hearing on the need for a
receivership.
III. The Trial Court erred when it granted the order of
receivership when the applicant has failed in its burden of persuasion
and burden of proof for a receivership.
IV. The Trial Court erred when it granted the order of
receivership based solely upon the satisfaction of one or more of the
statutory conditions contained in R.C. Section 2735.01.
V. The Trial Court erred when it granted the order of
receivership without proof that the receivership is necessary for the
preservation of Complainant’s rights.
VI. The Trial Court erred when it granted the order of
receivership without the proof and establishment of irreparable harm
and injury.
VII. The Trial Court’s actions and conduct in granting the
receivership order violates the constitutional due process rights of the
Appellants.
VIII. The Trial Court erred when it granted the Appellee
Garfield Hope’s Motion for the Appointment of Receiver over Property
over the paramount rights of the mortgagees of the Property.
IX. The Trial Court erred when it granted the Appellee
Garfield Hope’s Motion for the Appointment of Receiver prior to the
adjudication of the priority of the various conflicting legal interests.
{¶9} This court will not address the arguments Bridgeview raises in its assignments
of error, because the record reflects Bridgeview has waived the right to challenge the
appointment of a receiver. Bridgeview’s assignments of error are overruled.
{¶10} In this case, when Garfield Hope filed its receivership motion, pursuant to
Loc.R. 11(C) of the Court of Common Pleas of Cuyahoga County, responsive memoranda
were due no later than May 28, 2011. That rule provides in relevant part: “Each party
opposing [a] motion, except for motions for summary judgment, shall serve and file
within seven (7) days thereafter, a brief written statement of reasons in opposition to the
motion * * *.” Bridgeview did not file a brief in opposition, however, until July 14,
2011, almost two months later. Moreover, Bridgeview did not seek leave from the trial
court to file the tardy brief.
{¶11} Two additional months passed before Bridgeview ever sought permission
from the trial court to file a late brief in opposition to the receivership motion; this
occurred nearly four months after Garfield Hope filed its motion. Because the trial court
never granted Bridgeview leave to file an opposition brief, the trial court had no
obligation to consider it. Civ.R. 6(B); Miller v. Lint, 62 Ohio St.2d 209, 404 N.E.2d 752(1980); Ear v. Phnom Penh Restaurant Inc., 8th Dist. No. 88560, 2007-Ohio-3069 (trial
court does not abuse its discretion in refusing to recognize a pleading when no excusable
neglect is demonstrated); compare Pinchak v. Prudhomme, 8th Dist. No. 94053,
2010-Ohio-3879, ¶ 10. To the extent that Bridgeview raised an objection in the court
below to the receivership motion, that objection was neither timely nor permitted by the
court. The trial court acted within its discretion to disregard it under such circumstances.
Miller. Bridgeview also failed to object to either Garfield Hope’s proposed receivership
order or to Garfield Hope’s revised receivership order.
{¶12} Because Bridgeview failed to raise timely objections to the trial court with
regard to the receivership request, it has waived its right to raise those objections to this
court on appeal. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997)
(“[F]ailure to timely advise a trial court of possible error, by objection or otherwise,
results in a waiver of the issue for purposes of appeal.”). This court “need not address
arguments that were not raised in the trial court.” Hummer v. Hummer, 8th Dist. No.
96132, 2011-Ohio-3767, ¶ 7.
{¶13} This court views with disfavor the fact that Bridgeview has no response in its
appellate reply brief to Garfield Hope’s waiver argument. The doctrine of appellate
waiver leads this court to overrule all of Bridgeview’s assignments of error. Goldfuss.
{¶14} The trial court’s order is affirmed.
It is ordered that appellees recover from appellant 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 this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR