[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
