[Cite as DeBartolo v. Dussault Moving, Inc., 2011-Ohio-6282.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96667




                   MICHAEL DEBARTOLO, ET AL.
                                                          PLAINTIFFS-APPELLANTS

                                                    vs.

                DUSSAULT MOVING, INC., ET AL.
                                                          DEFENDANTS-APPELLEES




                                 JUDGMENT:
                           REVERSED AND REMANDED



                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                   Case Nos. CV-698119 and CV-684169

     BEFORE:      S. Gallagher, J., Kilbane, A.J., and Blackmon, J.

    RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEY FOR APPELLANTS

Brett M. Mancino
Janik L.L.P.
9200 South Hills Boulevard
Suite 300
Cleveland, OH 44147-3521


ATTORNEYS FOR APPELLEES

For Dussault Moving, Inc.

Michael J. Flament
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113

For Mid-America Management Corporation

Evan T. Byron
Robert I. Chernett
Matthew J. McCracken
Chernett Wasserman, LLC
The Tower at Erieview
1301 East Ninth Street, Suite 3300
Cleveland, OH 44114




SEAN C. GALLAGHER, J.:
      {¶ 1} This cause came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of

counsel.

      {¶ 2} Plaintiffs-appellants   Michael    DeBartolo    and    Steve    Kerr

(“appellants”) appeal the decision of the Cuyahoga County Court of Common

Pleas to appoint a receiver to sell the personal property at issue in this case.

For the reasons stated herein, we reverse the judgment of the trial court and

remand the matter for further proceedings.

      {¶ 3} In January 2009, Mid-America Management Corporation filed a

forcible entry and detainer action against appellants with regard to a leased

apartment in Lakewood. After the filing of a counterclaim, the action was

transferred to the Cuyahoga County Court of Common Pleas (Case No.

CV-684169, “the Mid-America case”). During the proceedings in that case,

the court issued a writ of restitution, providing for restitution of the premises

on May 7, 2009. The court’s judgment entry ordered appellants to remove

their personal property from the premises “no later than May 14, 2009, by

appointment only[.]”

      {¶ 4} On July 9, 2009, appellants filed a complaint against Dussault

Moving, Inc. (“Dussault”) (Cuyahoga County Court of Common Pleas Case

No. CV-698119, “the Dussault case”). In their complaint, appellants allege

that they attempted to remove their personal property from the premises on
May 14, 2009, but their attempt was rebuffed by Mid-America. They further

allege that they subsequently contracted with Corlett Movers to handle the

moving and storage of their personal property, but Mid-America again

refused their attempt to remove their property.       They discovered that at

some point prior to May 15, 2009, Mid-America contracted with Dussault to

move and store their personal property, without the consent of appellants.

Dussault admitted to moving appellants’ personal property and storing it at

its warehouse for $1,080 per month.      Appellants brought claims against

Dussault for replevin and conversion and sought possession of their personal

property and monetary damages.       They also filed a motion for order of

possession.    Dussault filed a counterclaim in which it asserted a

“warehouseman’s lien” and also sought storage fees.

      {¶ 5} In August 2009, the Dussault case was consolidated with the

Mid-America case, which still had pending claims. However, in April 2010

the trial court bifurcated the claims as between appellants and Dussault, and

the matter proceeded to trial on the claims raised in the Mid-America case.

      {¶ 6} With regard to the Dussault case, appellants filed a motion for

summary judgment and a supplemental motion for summary judgment for

replevin and conversion. Dussault filed a motion for summary judgment and

a motion to appoint receiver and to sell property, citing Civ.R. 66. Without

ruling on the dispositive motions, on March 15, 2011, the trial court ordered
the appointment of a receiver regarding the property at issue. Appellants

timely filed a notice of appeal.

      {¶ 7} Appellants raise three assignments of error for our review.       As

all of the assigned errors challenge the trial court’s appointment of a receiver,

we shall address them together.

      {¶ 8} Initially, we recognize that an order appointing a receiver is a

final, appealable order. “It is well settled that an order appointing a receiver

is a final, appealable order that affects a substantial right in a special

proceeding.    Cunningham v. Ohio Police & Fire Pension Fund, 175 Ohio

App.3d 566, 2008-Ohio-218, 888 N.E.2d 453, ¶ 6; see, also, R.C.

2505.02(B)(2).”     Hummer         v.   Hummer,   Cuyahoga   App.   No.   96132,

2011-Ohio-3767.

      {¶ 9} However, to the extent appellants claim the trial court implicitly

granted a judgment in Dussault’s favor, we find no such ruling has been made

by the trial court. Rather, the record reflects that the trial court has not

ruled upon the dispositive motions.         Therefore, issues pertaining to the

merits of the parties’ claims are premature and are not properly before us at

this time.    Our review is limited to the trial court’s order appointing the

receiver.

      {¶ 10} A trial court has sound discretion to appoint a receiver, and an

appointment will not be disturbed absent an abuse of that discretion. State
ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 73, 573 N.E.2d 62. “‘A

court in exercising its discretion to appoint or refuse to appoint a receiver

must take into account all the circumstances and facts of the case, the

presence of conditions and grounds justifying the relief, the ends of justice,

the rights of all the parties interested in the controversy and subject matter,

and the adequacy and effectiveness of other remedies.’             65 American

Jurisprudence 2d (1972) 873, 874, Receivers, Sections 19, 20.” Id. at fn. 3.

      {¶ 11} Although a trial court is vested with sound judicial discretion to

appoint a receiver, it does not have unbridled discretion. The authority of

Ohio courts to appoint a receiver arises under R.C. 2735.01. The statute

authorizes the appointment of a receiver in the following cases:

      “(A) In an action by a vendor to vacate a fraudulent
      purchase of property, or by a creditor to subject property
      or a fund to his claim, or between partners or others
      jointly owning or interested in any property or fund, on
      the application of the plaintiff, or of a party whose right to
      or interest in the property or fund, or the proceeds
      thereof, is probable, and when it is shown that the
      property or fund is in danger of being lost, removed, or
      materially injured;

      “(B) In an action by a mortgagee, for the foreclosure of his
      mortgage and sale of the mortgaged property, when it
      appears that the mortgaged property is in danger of being
      lost, removed, or materially injured, or that the condition
      of the mortgage has not been performed, and the property
      is probably insufficient to discharge the mortgage debt;

      “(C) After judgment, to carry the judgment into effect;
      “(D) After judgment, to dispose of the property according
      to the judgment, or to preserve it during the pendency of
      an appeal, or when an execution has been returned
      unsatisfied and the judgment debtor refuses to apply the
      property in satisfaction of the judgment;

      “(E) When a corporation has been dissolved, or is
      insolvent, or in imminent danger of insolvency, or has
      forfeited its corporate rights;

      “(F) In all other cases in which receivers have been
      appointed by the usages of equity.”

      {¶ 12} “Because the appointment of a receiver is such an extraordinary

remedy, the party requesting the receivership must show by clear and

convincing evidence that the appointment is necessary for the preservation of

the complainant’s rights.” Equity Ctrs. Dev. Co. v. S. Coast Ctrs. Inc. (1992),

83 Ohio App.3d 643, 649-650, 615 N.E.2d 662, citing Malloy v. Malloy Color

Lab, Inc. (1989), 63 Ohio App.3d 434, 437, 579 N.E.2d 248. While a trial

court is not statutorily obligated to conduct a hearing prior to appointing a

receiver, a trial court abuses its discretion when it appoints a receiver

without sufficient evidentiary support for the appointment.      Poindexter v.

Grantham, Cuyahoga App. No. 95413, 2011-Ohio-2915, ¶ 14-16.

      {¶ 13} In this case, Dussault moved for the appointment of a receiver

under Civ.R. 66. Civ.R. 66 merely states: “[a]n action wherein a receiver has

been appointed shall not be dismissed except by order of the court.

Receiverships shall be administered in the manner provided by law and as
provided by rules of court.”               As indicated above, the appointment of a

receiver is governed by R.C. 2735.01.1

       {¶ 14} Our review reflects that judgment had not been rendered on the

claims and there is no indication that the property is in danger of being lost,

removed, or materially injured. Further, there was no showing that any of

the other grounds for an appointment of a receiver were present. The trial

court did not hold a hearing on the motion and did not set forth any rationale

in its opinion.

       {¶ 15} Because none of the possible situations in law or equity for

appointment of a receiver listed in R.C. 2735.01 were established, the trial

court abused its discretion in appointing a receiver.2 We reverse the decision

of the trial court and remand the matter for further proceedings.3

       1
           Although appellants claim a receiver may only be appointed with the consent of the parties,
they have misconstrued the language of R.C. 2735.02. A receiver acts as an arm of the court and
has been defined as “‘[a]n indifferent person between the parties to a cause, appointed by the court *
* *.’” State ex rel. Celebrezze, 60 Ohio St.3d 69, at fn. 4, quoting Black’s Law Dictionary (6th Ed.
1990) 1268. Consistent therewith, R.C. 2735.02 prohibits the appointment of a “party, attorney, or
person interested in an action” as receiver, “except by consent of the parties.” We also find nothing
in the record to indicate that ex parte communications occurred between Dussault’s counsel and the
court.
       2
           We also note that the trial court did not require the receiver to post a bond. “The amount
of the bond is not set by statute, and instead, is committed to the sound discretion of the trial court.
Although the court has broad discretion in determining the amount of the bond, an adequate bond
should be consistent with the value of the properties and assets that the receiver may possess during
the expected period of the receivership.” (Citation omitted.) Hummer, at ¶ 21.
       3
         Nothing herein precludes Dussault from renewing its motion at a later time, provided
grounds for an appointment of a receiver can be established.
     Judgment reversed; case remanded.

     It is ordered that appellants recover from appellees costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

common pleas 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.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
