 [Cite as Dayton Lodge, L.L.C. v. Hoffman, 2013-Ohio-5755.]




                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

 FIFTH THIRD BANK

         Plaintiff-Appellant

 v.

 DAYTON LODGE, LLC, dba
 DAYTON EXECUTIVE HOTEL, et al.

         Defendant-Appellant

         and

 WILLIAM D. HOFFMAN

         Receiver-Appellee

 Appellate Case No.      25531

 Trial Court Case No. 2007-CV-02432

 (Civil Appeal from
 (Common Pleas Court)
                                               ...........

                                              OPINION

                             Rendered on the 27th day of December, 2013.

                                               ...........

JARED A. WAGNER, Atty. Reg. No. 76674, JONATHAN F. HUNG, Atty. Reg. No 82434, 800
Performance Place, 109 North Main Street, Dayton, Ohio 45402
       Attorneys for Plaintiff-Appellant-Fifth Third Bank and for
       Defendant-Appellant-Dayton Lodge, LLC

MATTHEW C. SORG, Atty. Reg No. 62971, 40 North Main Street, Suite 2700, Dayton, Ohio 45423
                                                                                             2


   Attorney for Receiver-Appellee
MARK SHERIFF, Atty. Reg. No. 19273, 300 Spruce Street, Floor One, Columbus, Ohio 43215
    Attorney for Defendant-Appellee-Auto Owners Insurance

THOMAS TALBOT, Atty. Reg. No. 2615, P.O. Box 384, Wright Bros. Station, Dayton, Ohio
45409
      Attorney for Defendant-Appellee-HHP Corporation

DONALD JORDAN, Atty. Reg. No. 23095, 41 South High Street, Columbus, Ohio 43215
    Attorney for Defendant-Appellee-Huntington National Bank

JOSEPH STRINES, Atty. Reg. No. 69878, 1065 Woodman Drive, Dayton, Ohio 45432
     Attorney for Defendant-Appellee-Miami Valley Resources

CHARLES GEIDNER, Atty. Reg. No. 23889, 15 West Fourth Street, Suite 250, Dayton, Ohio
45402
      Attorney for Defendant-Appellee-Ohio Department of Taxation

                                                    .............

WELBAUM, J.

       {¶ 1}    Plaintiff-Appellant, Fifth Third Bank, and Defendant-Appellant, Dayton Lodge,

LLC, appeal from a trial court order discharging a receiver and approving the receiver’s final

account. Appellants contend that the trial court exceeded its jurisdiction when it entered the

order because: (1) the order was entered after the trial court had already entered a final appealable

order closing the receivership; (2) the order ruled on the receiver’s liability, which was not an

issue raised in the pleadings or argued by the parties; and (3) the order unconstitutionally released

the receiver from liability against nonparties who did not have notice or reason to believe that

their claims would be foreclosed.

       {¶ 2}    In addition, Appellants challenge the order on grounds that the trial court

improperly held Fifth Third liable for the receivership estate deficit. Appellants also argue that

the trial court’s findings were against the preponderance of the evidence.

       {¶ 3}    We conclude that the trial court did not exceed its jurisdiction when it entered the
                                                                                              3


order discharging the receiver and approving the final account. The prior final appealable order

allegedly closing the receivership did not discharge the receiver or approve the final account.

Therefore, the receivership was not officially closed, and the trial court retained jurisdiction to

complete the actions necessary to close the matter. The trial court also did not exceed its

jurisdiction when it ruled on the receiver’s liability, because a ruling on liability was necessary to

discharge the receiver. Additionally, Appellants do not have standing to assert the claims of

unknown nonparties who did not receive notice of the receiver’s discharge.

       {¶ 4}    While the trial court had jurisdiction to enter the order approving the final

account and discharging the receiver, we conclude that the trial court erred and abused its

discretion in failing to articulate specific circumstances that justify holding Fifth Third liable for

the receivership estate deficit. Additionally, the trial court abused its discretion in failing to hold

a required hearing prior to approving the final account and discharging the Receiver.

       {¶ 5}    Accordingly, the judgment of the trial court will be affirmed in part, reversed in

part, and remanded.



                               I. Facts and Course of Proceedings

       {¶ 6}    On March 22, 2007, Fifth Third Bank initiated a foreclosure action on real

property located at 2401 Needmore Road, Harrison Township, Montgomery County, Ohio (the

Property). The Property is a hotel owned by Dayton Lodge, LLC. At Fifth Third’s request, the

trial court appointed a receiver to take possession, custody, and control of the Property and its

business. By a consent order dated April 11, 2007, Appellee, William D. Hoffman (Receiver),

was appointed as receiver.

       {¶ 7}    The consent order set forth various terms and conditions for the receivership.
                                                                                           4


Pursuant to the consent order, expenses for the management of the Property and the Receiver’s

compensation were to be paid from revenue generated by the hotel business. The consent order

also stated that the receivership was not to take effect unless Dayton Lodge failed to meet certain

forbearance conditions. As long as the forbearance conditions were met, Dayton Lodge could

manage the Property and make periodic payments to Fifth Third.              In that situation, the

Receiver’s role was limited to monitoring the business finances and management.

       {¶ 8}    Between April 11, 2007, and February 8, 2008, Dayton Lodge operated the

Property in compliance with the forbearance conditions. However, Dayton Lodge eventually

breached the conditions and caused the receivership to take effect on February 8, 2008.

Thereafter, the Receiver took exclusive possession and control over the Property.

       {¶ 9}    As the Receiver carried out his duties, he discovered that the Property was in

poor condition, needed substantial repairs, and that there was insufficient revenue to operate the

business and maintain the Property. Between February 2008, and June 2008, the Receiver filed

interim reports summarizing the business revenue, disbursements, and net income. In his report

filed on May 28, 2008, the receiver indicated that he had closed the business on April 29, 2008.

       {¶ 10} Meanwhile, on April 2, 2008, the trial court entered a final judgment entry and

decree of foreclosure in favor of Fifth Third. In lieu of holding a sheriff’s sale, the court

authorized Bambeck Auctioneers, Inc. to hold a public auction of the Property. The public

auction was held on August 7, 2008, and the Property was sold to Salam Said Shaja (Purchaser),

who bid $1,150,000. Dayton Lodge objected to the sale on grounds that the Property should not

have been sold for less than $1,675,000.     In response, Fifth Third filed a motion for an order

confirming the sale.

       {¶ 11} On July 19, 2009, the parties settled their issues concerning the sale and executed
                                                                                           5


a settlement agreement. The settlement agreement stated that Fifth Third would not execute a

deficiency judgment against Dayton Lodge, as long as Dayton Lodge made certain forbearance

payments to Fifth Third.     In addition, the settlement agreement stated that Dayton Lodge

released the Receiver from any and all claims relating “to the Receiver, [or] any act or omission

to act by Receiver during the Receivership.” See Exhibit A attached to Receiver’s Final Account

and Report and Motion to Discharge the Receiver (Mar. 4, 2011), Docket No. 143, p. 10, ¶ E(1).

       {¶ 12} After the Receiver was notified of the settlement, he filed a motion to close the

receivership on August 18, 2009. Dayton Lodge filed a memorandum opposing the closure on

grounds that there was a criminal action pending in Vandalia Municipal Court concerning the

Property. The criminal action was filed in April 2009, against Dayton Lodge’s controller for

failing to maintain the Property’s fire suppression system in good working order. Dayton Lodge

contended that the receivership should remain in effect, because the violation arose during the

receivership and was due to the acts and/or omissions of the Receiver. The trial court did not

rule on the Receiver’s August 18, 2009 motion to close the receivership.

       {¶ 13} On May 4, 2010, the Receiver filed a second motion to close the receivership.

In that motion, the Receiver indicated that as of May 1, 2009, he had determined that it was not in

the best interest of the receivership estate to continue operating the Property. He came to this

conclusion because there was no cash flow to cover business operations, and excessive capital

expenditures were needed to bring the Property into a condition that was safe for guests and

employees. The Receiver also indicated that despite numerous requests, Fifth Third had not

advanced sufficient funds to fully repair the Property.       Fifth Third filed a memorandum

supporting the closure of the receivership and Dayton Lodge once again opposed it on grounds of

the criminal proceeding. The trial court did not rule on the Receiver’s May 4, 2010 motion to
                                                                                                                                    6


close the receivership.

         {¶ 14} Nine months later, the trial court confirmed the sale of the Property to the

Purchaser. Thereafter, on March 4, 2011, the Receiver filed a final account and motion to

discharge receiver. The final account reported that the receivership’s operating account had a

balance of $7.53 and a deficit of $39,409.90. The receivership owed $31,991.93 for outstanding

accounts payable, $425 for attorney fees, and $7,000 for accrued fees and expenses, which

included unpaid receiver fees in the amount of $6,725.1 The Receiver requested that the court

order Fifth Third to pay the entire deficit. Neither Fifth Third nor Dayton Lodge filed objections

to the final account. The trial court did not rule on the final account and motion to discharge

receiver.

         {¶ 15} On October 18, 2012, the Receiver filed another motion to discharge receiver.

The motion requested the trial court to adopt the Receiver’s final account and proposed order

discharging the receiver filed on March 4, 2011. The Receiver’s proposed order ratified the

Receiver’s acts during his administration and released the Receiver from liability as to “any

person or entity, including taxing authorities.” See Receiver’s Final Account and Report and

Motion to Discharge Receiver (Mar. 4, 2011), Montgomery County Common Pleas Court Case

No. 2007-CV-2432, Docket No. 143, p. 4-6. The proposed order also instructed Fifth Third to

pay the $39,409.90 receivership estate deficit. Id. at 5.

         {¶ 16} On November 19, 2012, Fifth Third and Dayton Lodge filed an agreed motion

moving the court to withdraw the confirmation of sale; vacate the decree of foreclosure; dismiss

            1
                The Receiver’s final account does not specifically state that the $6,725 unpaid receiver fee is included with the $7,000 accrued
 fees and expenses figure. However, we presume that the receiver fee is included within the $7,000, because the receiver did not request to
 be paid the receiver fee in addition to the $39,409.90 deficit.
                                                                                          7


the foreclosure action; and order the funds on deposit from the sale to be paid to the auctioneers

and the Purchaser. In addition, the agreed motion tangentially requested the court to close the

receivership. The agreed motion indicated that the Purchaser and auctioneers approved the relief

being requested.

       {¶ 17} The same day, the trial court entered an order granting all of the requests in the

agreed motion, including closing the receivership. The order did not approve the Receiver’s

final account, discharge the Receiver, address the receivership estate deficit, or release the

Receiver from liability. Included with the order was a court notice stating that it may be a final

appealable order.

       {¶ 18} On November 20, 2012, the trial court filed an order in response to the October

18, 2012 motion to discharge receiver. The order approved the Receiver’s final account, ordered

Fifth Third to pay the receivership estate deficit, discharged the Receiver, and released the

Receiver from liability. The trial court entered the order without holding a hearing.

       {¶ 19} Fifth Third and Dayton Lodge both appeal from the trial court’s order of

November 20, 2012.



                II. The Trial Court Did Not Exceed its Jurisdiction When It

                      Issued the Discharge Order of November 20, 2012.

       {¶ 20} Appellants’ First Assignment of Error is as follows:

              The Trial Court Was Without Jurisdiction to Issue the November 20, 2012

      Order Purportedly Discharging the Receivership and Relieving Hoffman of

      Liability for the Damage He Caused the Property.

       {¶ 21} Under this assignment of error, Appellants claim that the order filed on
                                                                                             8


November 19, 2012, was the trial court’s ruling on the motion to discharge receiver, and that said

ruling was a final appealable order closing the receivership. Appellants contend that the trial

court improperly modified the final appealable order sua sponte and exceeded its jurisdiction

when it subsequently entered the discharge order of November 20, 2012.

        {¶ 22} Alternatively, Appellants contend that if the November 19 order is not deemed to

be a ruling on the motion to discharge receiver, that the Receiver’s motion should be presumed

overruled, because the trial court did not otherwise rule on it.      This argument has no merit,

because the record clearly indicates that the trial court ruled on the motion to discharge receiver

via the November 20 order.

        {¶ 23} We also note that the language of the November 19 order does not indicate that it

was a ruling on the motion to discharge receiver. The order specifically states that it was made

in response to Appellants’ agreed motion to withdraw confirmation of sale and vacate/dismiss

foreclosure. Additionally, the November 19 order does not address any of the matters presented

in the motion to discharge receiver. The November 19 order merely states that the receivership

is closed.

        {¶ 24} The court that appoints a receiver “ ‘retain[s] and continue[s] its jurisdiction until

the estate is finally closed by the settlement of the receiver's final account and his discharge.’ ”

(Citations omitted.) Shawnee Lumber Co. v. Phillips, 21 Ohio N.P. (N.S.) 1, 5, 29 Ohio Dec.

58, 1917 WL 1502 (C.P.1917), quoting State v. Germania Bank, 103 Minn. 129, 143, 114 N.W.

651 (1908).     Therefore, in order to terminate a receivership, the court must also enter an order

discharging the receiver. Hoover-Bond Co. v. Sun-Glow Industries, 57 Ohio App. 246, 251, 13

N.E.2d 368 (3d Dist.1936). Additionally, approval of the Receiver’s final account is required by

local rule. Mont. Co. C.P.R. 2.29(I)(A)(4)(d). Such approval ordinarily precedes the receiver’s
                                                                                             9


discharge. S.E.C. v. Kirkland, M.D.Florida No. 6:06-cv-183-Orl-28KRS, 2012 WL 3871922,

1-2 (Aug. 6, 2012), quoting 65 American Jurisprudence 2d, Receivers, Section 146 (2012).

       {¶ 25} A trial court order purportedly closing a receivership is not a final appealable

order if it does not properly discharge the receiver or leaves unresolved matters that the receiver

must address. Regents Mgt. Co. v. Connor, 10th Dist. Franklin No. 78AP-172, 1978 WL

217266, *2 (Dec. 21, 1978).

       {¶ 26} In this case, the November 19 order did not discharge the Receiver or approve the

final account. Therefore, the receivership was not officially closed, and the November 19 order

was not a final appealable order with respect to the receivership. As a result, the trial court

retained jurisdiction to officially close the receivership by entering the November 20 order

discharging the receiver and approving the final account.

       {¶ 27} For the foregoing reasons, the Appellants’ First Assignment of Error is overruled.



                 III. The Trial Court Did Not Exceed Its Jurisdiction When

                               It Ruled on the Receiver’s Liability.

       {¶ 28} For purposes of convenience, we will address Appellants’ assignments of error

out of order. Appellants’ Third Assignment of Error is as follows:

               The Trial Court Erred by Ruling Upon Hoffman’s Liability to Others

       Because Such Issue Was Not Raised in Pleadings Nor Argued or Litigated Fully

       By the Parties.

       {¶ 29} Under this assignment of error, Appellants maintain that the trial court exceeded

its jurisdiction when it ruled on the Receiver’s liability to others, because the Receiver’s liability

was not an issue raised in the pleadings or argued by the parties.
                                                                                                10


        {¶ 30} One of the effects of discharging a receiver is releasing him or her from further

liability in the receivership proceeding. Madorsky v. Suburban Homes Co., 45 Ohio App. 83,

85-86, 186 N.E. 371 (8th Dist.1933), quoting 53 Corpus Juris, Section 110, at 90. As previously

stated, the trial court retains its jurisdiction until the receivership estate is officially closed by the

settlement of the receiver’s final account and the discharge of the receiver. (Citations omitted.)

Shawnee Lumber Co., 21 Ohio N.P. (N.S.) at 5, 29 Ohio Dec. 58, 1917 WL 1502, quoting

Germania Bank, 103 Minn. at 143, 114 N.W. 651.

        {¶ 31} In order to close the receivership in this case, the trial court had to discharge the

Receiver, which necessitates releasing him from liability.             Because a trial court retains

jurisdiction until a receiver is discharged, it logically follows that the trial court had jurisdiction

to rule on the Receiver’s liability. Therefore, it is immaterial that the issue of liability was not

raised in the pleadings.

        {¶ 32} Appellants’ Third Assignment of Error is overruled.



                   IV. The Trial Court Did Not Exceed Its Jurisdiction When

                             It Released the Receiver From Liability.

        {¶ 33} Appellants’ Fourth Assignment of Error is as follows:

                 The Trial Court Erred When it Released Hoffman From Liability.

        {¶ 34} Under this assignment of error, Appellants claim that the trial court’s November

20, 2012 order erroneously released the receiver from liability as to the claims of “any person or

entity.” According to Appellants, this unconstitutionally forecloses the claims of nonparties who

had no notice or reason to believe that their claims would be foreclosed. Therefore, Appellants

argue that the trial court exceeded its jurisdiction upon determining the rights of nonparties
                                                                                         11


without due notice.

       {¶ 35} “Generally, an appellant does not have standing to argue issues affecting another

person.” Benjamin v. Ernst & Young, L.L.P., 167 Ohio App.3d 350, 2006-Ohio-2739, 855

N.E.2d 128, ¶ 4 (10th Dist.). Furthermore, “[a]n appealing party is not permitted to vicariously

assert that a nonparty's constitutional due process rights were violated.” (Citation omitted.)

Mulqueeny v. Mentor Chiropractic Ctr., Inc., 11th Dist. Lake No. 2001-L-034, 2002 WL

549969, *2 (Apr. 12, 2002). “However, an appellant may ‘complain of an error committed

against a nonappealing party when the error is prejudicial to the rights of the appellant.’ ”

Benjamin at ¶ 4, quoting In re Smith, 77 Ohio App.3d 1, 13, 601 N.E.2d 45 (6th Dist.1991).

       {¶ 36} Here, the Appellants are attempting to assert a nonparty’s constitutional right to

notice of the Receiver’s discharge. This is inappropriate because lack of notice to nonparties

does not prejudice the Appellants. If a nonparty with a viable claim against the Receiver

happened to exist, the claim would be between the nonparty claimant and the Receiver, not the

Appellants.

       {¶ 37} Furthermore, the prevailing view in various states is that an order discharging a

receiver from liability is not effective against subsequent claims of nonparties who were not

given notice of the discharge proceeding. E.g., Miller v. Everest, 212 N.W.2d 522, 525 (Iowa

1973) (holding that the discharge of the receiver and termination of the receivership were void as

to the nonparty claimant for want of notice); Copeland v. Salomon, 56 N.Y.2d 222, 233-234, 451

N.Y.S. 2d 682, 436 N.E.2d 1284 (1982); Vitug v. Griffin, 214 Cal.App.3d 488, 495-497, 262

Cal.Rptr. 588 (1989); Norman v. Trison Dev. Corp., 1992 Okla. 67, 832 P.2d 6, 10-11, (1992)

(the discharge order releasing the receiver from liability would be invalid as to the nonparty

claimant if the circumstances surrounding his claim demonstrate that the lack of notice had an
                                                                                          12


adverse effect on his interest).

        {¶ 38} Under this principle, Appellants’ concern about nonparty claims being

unconstitutionally foreclosed as a result of not receiving notice of the Receiver’s discharge is

unfounded.

        {¶ 39} For the foregoing reasons, the Appellants’ Fourth Assignment of Error is

overruled.



                     V. The Trial Court Erred in Ordering Fifth Third to

                                 Pay the Receivership Estate Deficit.

        {¶ 40} Appellants’ Second Assignment of Error is as follows:

                The Trial Court Erred When it Ordered Fifth Third to Pay the

        Receivership Estate’s Deficit Because Such Order is Contrary to the Consent

        Order’s Terms and Ohio Law.

        {¶ 41} Under this assignment of error, Appellants claim that Fifth Third cannot be held

personally liable for the $39,409.90 receivership estate deficit. Appellants argue that Ohio law

and the consent order require the expenses and fees of the receivership to be paid from the

receivership estate’s revenue.

        {¶ 42} In Atlantic Trust Co. v. Chapman, 208 U.S. 360, 28 S.Ct. 406, 52 L.Ed. 528

(1908), the United States Supreme Court outlined the general principle that expenses and fees of

a receivership estate are to be paid from the property or fund that is subject to the receivership.

Id. at 376. When the receivership estate has insufficient funds, a receiver is not allowed to

automatically hold the party who requested the receiver’s appointment personally liable for the

expenses and fees. Id. at 370-371, 375-376. However, “cases may arise in which, because of
                                                                                            13


their special circumstances, it is equitable to require the parties, at whose instance a receiver of

property was appointed, to meet the expenses of the receivership, when the fund in court is

ascertained to be insufficient for that purpose.” (Emphasis sic.) Id. at 375.

          {¶ 43} Some examples of special circumstances that render a party liable for a

receivership estate deficit include: (1) when there has been an irregular or unauthorized

appointment of a receiver; (2) when the plaintiff has given a bond or other contract to pay the

expenses and fees of the receivership as a condition of the receiver’s appointment; (3) where a

party has received benefits from the receivership in excess of the amount required to be paid; and

(4) where an action has unjustly been maintained without right. Id. at 373-375, citing Ephraim

v. Pacific Bank, 129 Cal. 589, 592, 62 P. 177 (1900); Farmers’ Nat. Bank of Owatonna v.

Backus, 74 Minn. 264, 77 N.W.142 (1898); Cutter v. Pollock, 7 N.D. 631, 634, 76 N.W. 235

(1898).

          {¶ 44} The Supreme Court of Ohio applied Atlantic Trust Co. to Richey v. Brett, 112

Ohio St. 582, 148 N.E. 92 (1925), a case where the trial court appointed a receiver to an insolvent

theater company in foreclosure. The receivership estate in Richey had many debts that the sale

of company property failed to satisfy. Id. at 586-587. As a result, the receiver requested the

court to tax the receivership deficit as costs against the plaintiffs in the foreclosure action. Id.

In determining whether taxing the costs to the plaintiffs was appropriate, the supreme court stated

that:

                 It is not doubted that under special circumstances parties who invoke the

          processes of the court to have a receiver appointed, and to conduct the business of

          an insolvent concern, may become personally liable for expenses of the receiver,

          even including losses resulting from unsuccessful operation. In nearly all cases
                                                                                              14


        in which this principle has been declared, facts and circumstances were shown to

        the effect that the assets of the insolvent concern were exhausted, and that the

        connection of the plaintiffs in the action was such as to make it inequitable not to

        hold them responsible for a deficiency. Id. at 586-587.

        {¶ 45} The supreme court determined that there were no special circumstances or

equitable considerations that justified holding the plaintiffs responsible for the receivership estate

deficit. Id. at 588. The court intimated that the receiver’s negligence and failure to follow the

correct procedures contributed to the deficit controversy. Id. at 587. As a result, the court

found it inequitable to hold the plaintiffs liable for the deficiency. Id. at 588, 590.

        {¶ 46} The same principles were applied in Dyczkiewycz v. Tremont Ridge Phase I Ltd.

Partnership, 2012-Ohio-5173, 981 N.E.2d 941 (8th Dist.). In Dyczkiewycz, the plaintiffs were

attempting to collect a judgment against an insolvent contracting company.                Id. at ¶ 2-4.

Plaintiffs requested that a receiver be appointed to find and manage the contracting company’s

assets. Id. at ¶ 5. A receiver was appointed, and he reported that the company had no assets.

Id. at ¶ 6-8. The receiver then sought leave to resign and requested the trial court to order the

plaintiffs to pay his fees and expenses. Id. at ¶ 11. The trial court made the order as requested

by the receiver, and the plaintiffs appealed. Id. at ¶ 18-19.

        {¶ 47} On appeal, the Eighth District Court of Appeals held that “the trial court did not

articulate or find that any ‘special circumstances’ existed that would justify holding the

[plaintiffs] solely responsible for the receiver’s fees.” Id. at ¶ 42.      The court ultimately held

that the trial court abused its discretion in ordering the plaintiffs to pay all of the receiver’s fees,

and remanded the case for the trial court to order the fees to be split equally between the parties.

Id. at ¶ 44.
                                                                                           15


       {¶ 48} As in Dyczkiewycz, the trial court in this case did not articulate what special

circumstances, if any, it relied on, to justify holding Fifth Third liable for the $39,409.90

receivership estate deficit. Based on the record, one could conclude that special circumstances

existed since Fifth Third effectively released the only assets from which the receivership estate

deficit could be paid when it voluntarily gave up its judgment against the Property; dismissed its

foreclosure claim; and allowed return of the earnest money, minus auction fees, all without the

approval or acquiescence of the Receiver. However, the trial court did not state any findings in

its final entry. The court simply ordered Fifth Third to pay the receivership estate deficit without

any reasoning.    Accordingly, the trial court erred when it ordered Fifth Third to pay the

receivership estate deficit without making the required findings.

       {¶ 49} The Appellants’ Second Assignment of Error is sustained.



                          VI. The Trial Court Erred in Entering the

                                         Discharge Order.

       {¶ 50} Appellants’ Fifth Assignment of Error is as follows:

               The Trial Court Erred When It Entered the Discharge Order Because Its

       Findings and Conclusions are Contrary to the Preponderance of the Evidence.

       {¶ 51} Under this assignment of error, Appellants claim that the November 20, 2012

order approving the final account and discharging the receiver should be reversed, because the

findings in the order are contrary to the preponderance of the evidence. Specifically, Appellants

claim that there is no evidence supporting the trial court’s decision to hold Fifth Third liable for

the receivership deficit. Appellants also argue that there is no evidence supporting the trial

court’s decision to release the Receiver from liability.
                                                                                            16


          {¶ 52} The decision whether to terminate a receivership and discharge a receiver is

within the sound discretion of the trial court, and the court’s decision will not be reversed absent

an abuse of discretion. Milo v. Curtis, 100 Ohio App.3d 1, 7, 651 N.E.2d 1340 (9th Dist.1994).

Therefore, in order to reverse the trial court’s November 20 discharge order, we must determine

whether the court’s findings were an abuse of discretion, not whether they are contrary to the

preponderance of the evidence. “ ‘Abuse of discretion’ has been defined as an attitude that is

unreasonable, arbitrary or unconscionable.”        (Citation omitted.)   AAAA Enterprises, Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990).

          {¶ 53} We have already determined that the trial court was required to articulate specific

circumstances that justify holding Fifth Third liable for the receivership estate deficit, and that

the court failed to do so. Accordingly, the trial court abused its discretion when it held Fifth

Third liable without making the required findings.

          {¶ 54} Regardless of the trial court’s findings, it was also an abuse of discretion for the

court to approve the Receiver’s final account and discharge the Receiver without holding a

hearing. The local rules governing receiverships state that “[u]nless otherwise provided, the

procedure prescribed by the Ohio Revised Code for settling accounts in decedents’ estates shall

govern.”     Mont. Co. C.P.R. 2.29(I)(A)(10).      Since there is no provision in the local rules

governing the procedure for approving a receiver’s final account, the trial court was required to

follow the procedures set forth in R.C. 2109.32(A), which applies to the accounts of executors

and administrators of decedents’ estates.

          {¶ 55} R.C. 2109.32 states that:

                 Every fiduciary’s account * * * shall be set for hearing * * *. * * *
                                                                                            17


               At the hearing * * * the court shall inquire into, consider, and determine

       all matters relative to the account and the manner in which the fiduciary has

       executed the fiduciary's trust, including the investment of trust funds, and may

       order the account approved and settled or make any other order that the court

       considers proper. If, at the hearing upon an account, the court finds that the

       fiduciary has fully and lawfully administered the estate or trust and has distributed

       the assets of the estate or trust in accordance with the law or the instrument

       governing distribution, as shown in the account, the court shall order the account

       approved and settled and may order the fiduciary discharged.

       {¶ 56} In this case, the trial court did not hold a hearing on the Receiver’s final account.

A hearing on the final account would have assisted the court in pinpointing special

circumstances, if any, that justify holding Fifth Third liable for the receivership estate deficit. It

was unreasonable and an abuse of discretion for the trial court to issue the November 20 order

approving the final account and discharging the receiver without first holding a hearing as

required by R.C. 2109.32.

       {¶ 57} The Appellants’ Fifth Assignment of Error is Sustained.



                                          VII. Conclusion

       {¶ 58} Having sustained Appellants’ Second and Fifth Assignments of Error, and having

overruled Appellants’ other Assignments of Error, the trial court’s November 20, 2012 order

approving the Receiver’s final account, discharging the Receiver, and ordering Fifth Third to pay

the receivership deficit is affirmed in part, reversed in part, and remanded so that the trial court

can: (1) hold a hearing on the Receiver’s final account, (2) address in its final order what special
                                                                                                                                 18


circumstances, if any, justify holding Fifth Third solely liable for the receivership estate deficit,

and (3) determine the amounts, if any, which Fifth Third shall be ordered to pay. Because Fifth

Third did not file any objections to the final account,2 it may have waived any objection to the

amounts computed by the Receiver in the final account. This is an issue for the trial court to

resolve.                                                                                                                          ......

.......


FROELICH, J., concurs.


HALL, J., concurring:

          {¶ 59} I agree with the analysis and result reached by the majority. Because of my direct

involvement in the development and use of the Montgomery County E-filing system, I write

separately to express my belief that the timing of the entries in this case was likely caused by the

inaccurate submission of a proposed judgment entry. The entry the court approved, filed

November 19, 2012, had been submitted purportedly as an “agreed entry” by parties other than

the receiver. The proposed entry included the statement that “the receivership is closed.” I note

that the motion preceding the November 19, 2012 entry was submitted as an “AGREED

MOTION, etc. * * *.” It was agreed to only by the plaintiff (Fifth Third Bank) and the principal

defendant (Dayton Lodge), not the receiver, and it was submitted electronically in the court’s

e-filing system. Accompanying the motion was the proposed entry that the court approved

without modification. The electronic docket for the entry states: “ORDER: AGREED



           2
               Pursuant to Mont. Co. C.P.R. I(A)(7)(b), objections to the final account are due within 14 days after a receiver’s account is
 filed.
                                                                                           19


ENTRY,etc. * * *.”

       {¶ 60} The “agreed” terminology for the motion itself, and for the motion’s docket entry

in the court’s e-filing system, and the proposed entry’s title was selected by the filer. That

terminology signals, and allows for, prompt and deferential approval of non-contested filings.

When the trial court electronically approved the “AGREED” order for filing, it was probably

unaware that there was still pending an unresolved motion to approve the receiver’s final

account. In my view, the “agreed” language used by the plaintiff for this motion and order was

at best a misnomer and at worst a misrepresentation. But because this entry did not deal with

outstanding issues of compensation or discharge of the receiver it was not a final order in that

respect. Therefore, I agree that the trial court had authority to resolve those incomplete and

essential tasks by issuing an order settling the account and discharging the receiver by entry filed

November 20, 2012.



                                                  .............



Copies mailed to:

Jared A. Wagner
Jonathan F. Hung
Matthew C. Sorg
Mark Sheriff
Thomas Talbot
Donald Jordan
Joseph Strines
Charles Geidner
Hon. Gregory F. Singer
