[Cite as Volk v. Volk, 2013-Ohio-1503.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
ROLAND VOLK, et al.,                          :   Sheila G. Farmer, P.J.
                                              :   John W. Wise, J.
                      Plaintiffs-Appellees    :   Patricia A. Delaney, J.
                                              :
-vs-                                          :   Case No. 12-CA-0117
                                              :
                                              :
HELEN VOLK, et al.,                           :   OPINION
                                              :
                  Defendants-Appellants       :




CHARACTER OF PROCEEDING:                           Civil Appeal from Richland County
                                                   Court of Common Pleas Case No.
                                                   2012-CV-304

JUDGMENT:                                          Dismissed

DATE OF JUDGMENT ENTRY:                            April 3, 2013

APPEARANCES:

For Plaintiff-Appellee Roland Volk                 For Defendant-Appellant

JOSEPH T. OLECKI                                   J. JEFFREY HECK
Weldon, Huston & Keyser                            The Heck Law Offices, LTD
76 N. Mulberry Street                              One Marion Avenue, Suite 104
Mansfield, Ohio 44902                              Mansfield, Ohio 44903

For Receiver                                       For Helen Volk

CHRISTOPHER R. PARKER                              LOUIS H. GILBERT
Goranson, Parker & Bella Co.                       Calhoun, Kademenos & Childress
405 Madison Ave., Suite 2200                       6 W. Third Street, Suite 200
Toledo, Ohio 43604                                 Mansfield, Ohio 44902
RICHLAND COUNTY CASE NO. 12-CA-0117                                                    2



Delaney, J.

       {¶1}   Appellant, Dieter Volk, appeals from the October 19, 2012, and November

2, 2012, Judgment Entries of the Richland County Court of Common Pleas.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The Mike Volk Company, Inc. (“MVC”) was established by Michael Volk

and his son, appellant Dieter Volk. Appellee Roland Volk was a director of MVC.

       {¶3}   After Michael Volk died in October of 2011, appellee Roland Volk, both

individually and as Executor of the Estate of Michael Volk, filed a verified complaint on

March 12, 2012 against Helen Volk, who is Michael Volk’s widow, appellant Dieter Volk

and MVC seeking judicial dissolution of MVC, the appointment of a receiver, injunctive

relief and a declaratory judgment. Pursuant to a Temporary Restraining Order filed on

March 12, 2012, the trial court prevented Helen Volk, appellant Dieter Volk, MVC and/or

their agents or representatives from closing or threatening to close the company or from

taking company assets, pending the outcome of the proceedings.

       {¶4}   On April 17, 2012, a hearing was held before a Magistrate on the request

for appointment of a receiver.     The Magistrate, in a Decision filed on May 7, 2012,

recommended that Steven Skutch be appointed receiver for MVC and that Skutch

evaluate two offers to purchase MVC. The Magistrate, in his Decision, noted that       a

group of current and former employees of MVC had created Ontario Mechanical, LLC

and made an offer to purchase MVC and that appellant Dieter Volk also had made an

offer. The trial court adopted the Magistrate’s Decision as an interim order pursuant to

Civ.R. 53(4)(e)(ii). No objections were filed to appointment of the receiver.
RICHLAND COUNTY CASE NO. 12-CA-0117                                                    3


        {¶5}   On or about June 5, 2012, the Receiver issued a Report and

Recommendation, recommending to the trial court that the offer of Ontario Mechanical

for certain assets of MVC be accepted and that the remaining assets of MVC be

auctioned following closing on the asset sale. The Receiver noted that both offers were

for less than all of the assets of MVC. The Receiver also indicated there was a

$22,200.00 difference between the Dieter offer and the Ontario offer, but that the

difference was offset by two factors: “(1) a higher percentage of the accounts receivable

should be collected if there is an orderly transition of assets from MVC to Ontario with

little to no interruption of work; and (2) the $100,000 reduction in past due rent as

offered by the Volk Family Limited Partnership, LLC. Together these factors will

maximize the recovery of assets and minimize debt payments of The Mike Volk Co.,

Inc.”

        {¶6}   As memorialized by an Agreed Judgment Entry filed on June 12, 2012, the

parties agreed that all proceeds from liquidation or sale of equipment or inventory of

MVC would be applied first to payment of Mechanics Bank. Mechanics Bank had a first

lien upon all equipment, inventory and accounts receivable of MVC.

        {¶7}   After appellant Dieter Volk filed objections to the Receiver’s Report, a

hearing before a Magistrate was held on June 13, 2012. Pursuant to a Magistrate’s

Decision filed on June 19, 2012, the Magistrate recommended that the Receiver’s

Report be adopted and the assets and inventory requested by Ontario Mechanical be

sold to Ontario Mechanical and the remaining assets of MVC be auctioned. Appellant

Dieter Volk filed objections to the Magistrate’s Decision. Via a Judgment Entry filed on
RICHLAND COUNTY CASE NO. 12-CA-0117                                                    4


October 19, 2012, the trial court overruled the objections to the Magistrate’s Report and

Recommendation.

       {¶8}   On October 31, 2012, the Receiver filed a Motion for Authority to Execute

Asset Purchase Agreement and to Authorize and Confirm Sale of Assets in the

Receivership. The Receiver, in such motion, asked the trial court for permission to

proceed with the sale of the assets to Ontario Mechanical and for authority to pay

Mechanics Bank. The trial court granted such motion as memorialized in an Order filed

on November 2, 2012. The trial court authorized the Receiver to execute the Asset

Purchase Agreement with Ontario Mechanical, to pay Mechanic’s Bank with the

proceeds from the sale, and to auction the remaining assets.

       {¶9}   Thereafter, on November 13, 2012, appellant filed a Notice of Appeal from

the trial court’s October 19, 2012 and November 2, 2012 Judgment Entries and a

Motion for Stay Pending Appeal.

       {¶10} Pursuant to a Judgment Entry filed on December 12, 2012, the trial court

overruled the Motion to Stay as moot stating, in relevant part, as follows:

       {¶11} “On November 2, 2012 the court approved the receiver entering into an

asset purchase agreement with the former employee group and confirmed the sale of

the receivership assets to them. Receiver’s counsel represents that the sale of those

assets closed on November 13, 2012 at 11:00 a.m. – the same date defendant Dieter

Volk filed his motion to stay at 2:51 p.m. –about four hours late.

       {¶12} “As a consequence of that closing : 1) secured creditor Mechanics Bank

was paid in full on its $105,000 demand note, 2) the Ontario Mechanical Group

borrowed funds from Directions Credit Union, which is the new secured creditor of the
RICHLAND COUNTY CASE NO. 12-CA-0117                                                          5


new company assets and 3) the Ontario Mechanical Group has continued to operate

the business. Mr. Volk’s motion to stay is thus untimely. The closing cannot be undone.

It would destroy the value of this ongoing business to do otherwise…” (Footnote

omitted).

       {¶13} Appellant now raises the following assignment of error on appeal:

       {¶14} “THE      TRIAL     COURT      ABUSED       ITS    DISCRETION        WHEN      IT

COMPLETELY FAILED TO CONSIDER THE SUBSTANTIAL EFFECT OF ONTARIO

MECHANICAL’S OFFER INCLUDING THE CRANES OF MIKE VOLK COMPANY

THAT DRAMATICALLY CHANGED THE RELATIVE VALUES OF THE OFFERS AND

THE VERY VIABILITY OF ONTARIO MECHANICAL’S OFFER.”

                                                  I

       {¶15} Appellant, in his sole assignment of error, argues that the trial court

abused its discretion when it adopted the Magistrate’s Decision recommending that the

offer of Ontario Mechanical be accepted over the offer of appellant.

       {¶16} We find, however, that appellant’s appeal is moot. “’Actions or opinions

are described as ‘moot’ when they are or have become fictitious, colorable,

hypothetical, academic or dead. The distinguishing characteristic of such issues is that

they involve no actual, genuine, live controversy, the decision of which can definitely

affect existing legal relations.’” Rice v. Flynn, 9th Dist. No. 22416, 2005–Ohio–4667, ¶

23, quoting Culver v. Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82 (7th Dist. 1948).

Accordingly, mootness depends upon the absence of a live or actual controversy and

the inability of a court to afford relief to a party on the issue before it. Akron Dev. Fund I,
    RICHLAND COUNTY CASE NO. 12-CA-0117                                                      6

Ltd. v. Advanced Coatings Internatl. Inc., 9th Dist. No. 25375, 2011–Ohio–3277, ¶ 25–

29.

        {¶17} In the case sub judice, the Magistrate, after a hearing, recommended that

the offer of Ontario Mechanical be accepted as the best offer and recommended that

MVC be sold to Ontario Mechanical. Appellant then filed objections to such decision.

After the trial court overruled appellant’s objections to the Magistrate’s Decision, the

Receiver, on October 31, 2012, filed a Motion for Authority to Execute Asset Purchase

Agreement and to Authorize and Confirm Sale of Assets in the Receivership. The trial

court granted such motion on November 2, 2012 and authorized the Receiver to

execute the Asset Purchase Agreement, to pay Mechanic’s Bank with the proceeds

from the sale, and to auction the remaining assets.

        {¶18} Thereafter, on November 13, 2012, appellant filed a Notice of Appeal from

the trial court’s October 19, 2012 and November 2, 2012 Judgment Entries and a

Motion for Stay Pending Appeal. However, the sale of the assets to Ontario Mechanical

had already taken place just hours prior to the filing of the appeal and of the Motion for

Stay. We concur with appellees1 that the closing on the asset sale rendered the current

appeal moot. See Akron Dev. Fund I, Ltd. v. Advanced Coatings Internatl. Inc., Id.




1
  We note that the Receiver, on December 28, 2012, filed a Motion to Dismiss Appeal as moot. No
response to such motion was ever filed. The Motion to Dismiss is hereby GRANTED for the reasons
stated herein.
RICHLAND COUNTY CASE NO. 12-CA-0117                                           7




      {¶19} Appellant’s appeal, is therefore, dismissed.

By: Delaney, J.

Farmer, P.J. and

Wise, J. concur



                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                           JUDGES




PAD/d0308
RICHLAND COUNTY CASE NO. 12-CA-0117                                                 8




             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


ROLAND VOLK, et al.,                        :
                                            :
                     Plaintiffs-Appellees   :
                                            :
                                            :
-vs-                                        :       JUDGMENT ENTRY
                                            :
HELEN VOLK, et al.,                         :
                                            :
                  Defendants-Appellants     :       CASE NO. 12-CA-0117




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Richland County Court of Common Pleas is dismissed. Costs assessed

to Appellant.




                                                _________________________________


                                                _________________________________


                                                _________________________________

                                                             JUDGES
