[Cite as Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified Steel Stud Assn., 2017-Ohio-8129.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




CLARKWESTERN DIETRICH                                     :
BUILDING SYSTEMS, LLC,                                                CASE NO. CA2017-04-040
                                                          :
        Plaintiff-Appellee,                                                    OPINION
                                                          :                     10/9/2017

    - vs -                                                :

                                                          :
CERTIFIED STEEL STUD
ASSOCIATION, et al.,                                      :

        Defendants-Appellants.                            :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2013-10-2809



Frost Brown Todd, LLC, Matthew Blickensderfer and Stephen R. Hernick, 3300 Great
American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202, for plaintiff-appellee

Cohen & Girgsby, P.C., Anthony Cillo, 625 Liberty Avenue, Pittsburgh, Pennsylvania 15222-
3152, for plaintiff-appellee

Faurki Ireland Cox Rhinehart & Dusing P.L.L., D. Jeffrey Ireland, Stephen A. Weigand, Jason
W. Palmer, 201 East Fifth Street, Suite 1420, Cincinnati, Ohio 45202, for defendant-
appellant

John W. Hust, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 45040, for defendant-
appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Certified Steel Stud Association, Inc. ("the Association"),
                                                                                    Butler CA2017-04-040

appeals a decision of the Butler County Court of Common Pleas granting the motion of

plaintiff-appellee, Clarkwestern Dietrich Building Systems LLC, DBA ClarkDietrich, for the

appointment of a receiver to investigate and prosecute a cause of action on behalf of the

Association.1 For the reasons outlined below, we affirm.

        {¶ 2} On October 8, 2013, ClarkDietrich commenced the present case asserting

claims in its complaint for violations of the Ohio Deceptive Trade Practices Act and unfair

competition, defamation, disparagement, and civil conspiracy. ClarkDietrich asserted these

claims against the Association, and three other later-dismissed defendants. On September

15, 2015, the matter proceeded to an 11-week jury trial. Before closing arguments, pursuant

to Civ.R. 41(A)(1), ClarkDietrich offered to dismiss all of its claims with prejudice by

stipulation. The Association refused the offer. Next, ClarkDietrich filed a motion to dismiss

its claims with prejudice, pursuant to Civ.R. 41(A)(2), which the Association opposed and the

trial court denied. On November 16, 2015, the jury returned a unanimous verdict in favor of

ClarkDietrich, and awarded it $49.5 million, $43 million of which was apportioned to the

Association. The trial court subsequently entered a judgment against the Association in the

amount of $43 million.2

        {¶ 3} The Association stipulated it has insufficient tangible assets to satisfy the

judgment. ClarkDietrich filed a motion for assignment of the Association's possible breach of

fiduciary duty claim against its officers, directors, and agents, based on their decisions to

decline ClarkDietrich's offer to dismiss by stipulation, oppose ClarkDietrich's motion to

dismiss, and proceed with the case through the jury determination. The trial court held a



1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the
regular calendar for purposes of issuing this opinion.

2. We note we previously affirmed the decision of the trial court denying the Association's motion for a judgment
notwithstanding the verdict, or in the alternative, motion for a new trial. See Clarkwestern Dietrich Bldg. Sys.,
L.L.C. v. Certified Steel Stud Assn., Inc., 12th Dist. Butler No. CA2016-06-113, 2017-Ohio-2713.
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hearing on the matter, and at the suggestion of the trial court, ClarkDietrich withdrew its

motion for assignment and filed a motion for the appointment of a receiver. On March 29,

2017, over the Association's objection, the trial court appointed a receiver "to investigate and,

if he determines it to be appropriate, bring, prosecute, and manage claims against [the

Association's] officers, directors and agents arising from the decisions to reject

ClarkDietrich's settlement offer and oppose ClarkDietrich's motion to dismiss."3

        {¶ 4} The Association timely appealed the trial court's decision, raising two

assignments of error for appeal. For ease of discussion, the assignments of error will be

addressed together.

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE COURT ERRED IN APPOINTING A RECEIVER OVER UNASSERTED

AND UNFILED CAUSES OF ACTION.

        {¶ 7} Assignment of Error No. 2:

        {¶ 8} THE       COURT        ERRED       IN    APPOINTING         A    RECEIVER         DESPITE

CLARKDIETRICH'S FAILURE TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT

APPOINTMENT IS PROPER.

        {¶ 9} In its two assignments of error, the Association asserts the trial court erred in

appointing a receiver to investigate and prosecute an unasserted cause of action because it

was not statutorily authorized to do so. The Association further contends the trial court erred

in appointing a receiver because ClarkDietrich failed to meet its burden of demonstrating a

receiver is appropriate and necessary by clear and convincing evidence. We disagree with

the Association's claims.




3. We note that during the pendency of these proceedings, an officer for the Association filed a declaratory
judgment action in Delaware, seeking a determination of whether he breached his fiduciary duties to the
Association.
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       {¶ 10} A trial court has the authority to appoint receivers pursuant to R.C. 2735.01.

Fifth Third Bank v. Q.W.V. Properties, L.L.C., 12th Dist. Butler No. CA2010-09-245, 2011-

Ohio-4341, ¶ 17. "R.C. 2735.01 is a procedural statute and is to be liberally construed."

State ex rel. Petro v. Gold, 10th Dist. Franklin Nos. 04AP-863 and 04AP-873, 2006-Ohio-

943, ¶ 66.

       {¶ 11} The decision to appoint a receiver is left to the sound discretion of the trial

court. TD Ltd., L.L.C. v. Dudley, 12th Dist. Butler No. CA2014-01-009, 2014-Ohio-3996, ¶

25. "Because the trial court is in a better position to evaluate all the facts and circumstances,

an appellate court should give due deference to the trial court's factual findings and limit its

review to the narrow question of whether the court abused its sound judicial discretion." In re

Dissolution of Madison County Health Group, 12th Dist. Madison No. CA98-03-012, 1998

Ohio App. LEXIS 5177, *10 (Nov. 2, 1998). This is especially important in a discretionary

decision made by the trial court concerning a complicated matter with which it had intimate

working knowledge. Id. An abuse of discretion is more than an error of law or judgment;

rather, it suggests that the trial court's decision is unreasonable, arbitrary, or unconscionable.

Park Natl. Bank v. Cattani, Inc., 187 Ohio App.3d 186, 2010-Ohio-1291, ¶ 14 (12th Dist.).

       {¶ 12} The primary purpose of a receiver is to carry out orders of the court. Id. at ¶ 10.

R.C. 2735.01(A) provides that a receiver may be appointed by the court of common pleas or

a judge thereof in his or her county, in the following cases:

              (1) In an action by a vendor to vacate a fraudulent purchase of
              property, or by a creditor to subject property or a fund to the
              creditor's 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 of the property or fund, is probable, and
              when it is shown that the property or fund is in danger of being
              lost, removed, or materially injured;

              (2) In an action by a mortgagee, for the foreclosure of the
              mortgagee's mortgage and sale of the mortgaged property, when
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              it appears that the mortgaged property is in danger of being lost,
              removed, materially injured, diminished in value, or squandered,
              or that the condition of the mortgage has not been performed,
              and either of the following applies:

                 (a) The property is probably insufficient to discharge the
                 mortgage debt.

                 (b) The mortgagor has consented in writing to the
                 appointment of a receiver.

              (3) To enforce a contractual assignment of rents and leases;

              (4) After judgment, to carry the judgment into effect;

              (5) 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;

              (6) When a corporation, limited liability company, partnership,
              limited partnership, or other entity has been dissolved, is
              insolvent, is in imminent danger of insolvency, or has forfeited its
              corporate, limited liability company, partnership, limited
              partnership, or other entity rights;

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

       {¶ 13} Pursuant to R.C. 2735.04(B)(1) and (8), the trial court is authorized to empower

the receiver to "[b]ring and defend actions in the receiver's own name" and "[g]enerally do

any other acts that the court authorizes." Therefore, "'R.C. Chapter 2735 does not contain

any restrictions on what the court may authorize when it issues orders regarding receivership

property.'" Fifth Third Bank at ¶ 18, quoting Quill v. Troutman Ent., Inc., 2d Dist. Montgomery

No. 20536, 2005-Ohio-2020, ¶ 34. Further, the Ohio Supreme Court has "interpret[ed] th[e]

statute as enabling the trial court to exercise its judicial discretion to limit or expand a

receiver's powers as it deems appropriate." State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d

69, 74 (1991).

       {¶ 14} The trial court appointed a receiver to investigate and prosecute claims against
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directors, officers, and agents of the Association for breach of fiduciary duty in order to satisfy

ClarkDietrich's judgment. R.C. 2735.01(4) and (5) specifically authorize a trial court to

appoint a receiver to carry the judgment into effect and to dispose of and preserve property

to satisfy the judgment. Additionally, R.C. 2735.04 specifically empowers a trial court to

authorize a receiver to bring actions in the receiver's own name as well as generally to do any

other acts authorized by the court. See, e.g., Bobb v. Marchant, 14 Ohio St.3d 1, 3 (1984)

(holding receivers are authorized to sue officers pursuant to R.C. 2735.04).

       {¶ 15} The Association contends ClarkDietrich failed to demonstrate the existence of

specific property for which the receiver was sought; therefore, the trial court appointed the

receiver for the sole purpose of securing evidence and not bringing forward a claim. Contrary

to the Association's claim otherwise, the trial court did not appoint the receiver to determine if

a claim exists. Rather, the trial court found a potential claim for breach of fiduciary duty

exists based on the evidence presented. In turn, the appointment of the receiver was

necessary to develop and prosecute this claim. The trial court stated in its entry the

Association "possesses 'property' in the form of potentially viable claims and choses in

actions that may be used to satisfy the judgment against it * * *, including but not limited to a

cause of action against Directors, Officers or Agents of [the Association] for breach of

fiduciary duty to [the Association]." See Edwards v. Edwards, 12th Dist. Warren No.

CA2006-04-044, 2007-Ohio-123, ¶ 14 (stating the holder of a claim possesses property).

       {¶ 16} Thus, the Association's contention fails to distinguish between appointing a

receiver to search out any relevant claims, as compared to developing and prosecuting an

already identified claim. Compare Schultze v. Schultze, 5 Ohio App.2d 261, 263 (2d

Dist.1964) (holding trial court abused its discretion in appointing receiver to secure evidence

based on feeling of misrepresented earnings), with State ex rel. Petro v. Gold, 10th Dist.

Franklin Nos. 04AP-863 and 04AP-873, 2006-Ohio-943, ¶ 67-69 (finding trial court did not
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abuse its discretion in appointing receiver to determine the amount of charitable contributions

misappropriated where necessary to effectuate goal of asserting claim). The association's

claim otherwise lacks merit.

       {¶ 17} The Association further contends the trial court's decision to empower the

receiver to prosecute the possible breach of fiduciary duty claim is analogous to a First

District holding that found "[i]n considering a creditor's bill, or any other remedy in aid of

execution upon a judgment, the trial court does not have the authority to allow the judgment

creditor to usurp prosecution of a chose in action belonging to the judgment debtor * * *."

Lakeshore Motor Freight v. Glenway Industries, Inc., 2 Ohio App.3d 8 (1st Dist.1981),

paragraph three of the syllabus. However, Lakeshore is distinguishable from the present

case because it involved prosecution by a judgment creditor of a claim "to become due," as

compared to being "confronted with faithless or fraudulent debtors" which "permits a court,

exercising its equitable powers, to appoint a receiver of the debtor's property who may then

assume the burden of prosecuting the debtor's chose in action." Id. at 9, n.2.

       {¶ 18} Likewise, the Eighth District's opinion in Sullivans, Inc. v. Haehn, 8th Dist.

Cuyahoga No. 100150, 2014-Ohio-399, provides little guidance to the facts before this court.

Contrary to the Association's claim, Sullivans does not stand for the proposition that a

receiver cannot be appointed to investigate and prosecute causes of action. Rather, the

Eighth District found the trial court did not abuse its discretion in denying a judgment

creditor's motion for a receiver "to stand in the shoes" of a judgment debtor in order to

accelerate a note "due and owing" from a third party. Id. at ¶ 15. The opinion in Sullivans

follows the guidance of Lakeshore, and similarly, was not confronted with the possibility of

faithless or fraudulent debtors.    Therefore, the Eighth District found the trial court's

discretionary decision not to appoint a receiver did not constitute an abuse of discretion.

Accordingly, based on the facts and circumstances in this case, the trial court had statutory
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authorization to appoint a receiver and the authority to empower the receiver to investigate

and prosecute the claims. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 74 (1991)

(holding trial court did not abuse its discretion in empowering receiver to perform actions

specifically enumerated in R.C. 2735.04).

       {¶ 19} The Association further argues that the trial court's appointment of a receiver to

investigate and prosecute the breach of fiduciary duty claim "threatens to violate the

receiver's core characteristic of neutrality * * * [b]y conditioning further payment to the

receiver on the receiver's finding of a claim to ultimately pursue[;]" thus, "the receiver is

placed in a position that creates the appearance of impropriety * * *." The Association

correctly asserts that a receiver must be a disinterested party pursuant to R.C. 2735.02.

However, the Association fails to identify how the appointed receiver does not meet such

requirement under the statute. The mere fact that the receiver is compensated based on the

amount of work he completes does not effectuate impropriety. A receiver is "an officer of the

court and at all time subject to its order and direction." Park Natl. Bank v. Cattani, Inc., 187

Ohio App.3d 186, 2010-Ohio-1291, ¶ 10 (12th Dist.). Thus, the receiver's primary purpose is

to carry out the orders of the appointing court. Id. In the event the receiver fails to

competently and efficiently carry out these orders, the appointing court may remove the

receiver. Absent any basis in the record, the Association's argument the receiver will act

outside the court's orders for personal financial gain is merely speculative and not well-taken.

       {¶ 20} Next, the Association contends the trial court further erred in appointing a

receiver because ClarkDietrich failed to demonstrate such appointment was appropriate and

necessary by clear and convincing evidence.           In so doing, the Association asserts

ClarkDietrich failed to present evidence that a viable breach of fiduciary duty claim existed

and that the appointment was necessary to protect its rights. We find no merit to the

Association's claim.
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                                                                          Butler CA2017-04-040

       {¶ 21} The authority to appoint a receiver is "'an extraordinary, drastic and sometimes

harsh power which equity possesses.'" TD Ltd., L.L.C. v. Dudley, 12th Dist. Butler No.

CA2014-01-009, 2014-Ohio-3996, ¶ 25, quoting Hoiles v. Watkins, 117 Ohio St. 165, 174

(1927). "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." 2115-2121

Ontario Bldg., L.L.C. v. Anter, 8th Dist. Cuyahoga No. 98627, 2013-Ohio-2995, ¶ 14.

       {¶ 22} The trial court weighed the evidence presented to find that ClarkDietrich met its

burden by clear and convincing evidence that the appointment of a receiver was appropriate

and necessary to investigate and prosecute the Association's claims against its directors,

officers, and agents, for breach of their fiduciary duties. The trial court journalized its finding

ClarkDietrich met this burden and that the trial court based such finding on the following

evidence: (1) ClarkDietrich's settlements with the other three defendants prior to trial, leaving

the Association as the sole remaining defendant, (2) the Association's refusal of

ClarkDietrich's offer to dismiss all claims against it with prejudice by stipulation, (3) the

Association's opposition to ClarkDietrich's motion to dismiss all its claims against it, (4) the

Association's opposition to dismissal despite a clear insufficiency in tangible assets to satisfy

a possible large judgment, (5) Association officer Chip Gardner's declaratory judgment action

in Delaware seeking a declaration that he did not breach his fiduciary duty to the Association,

and (6) the possibilities of lost evidence, witness unavailability, and barring of claims by the

statute of limitations, without appointing a receiver to pursue such claims, as there was no

evidence the Association had taken any steps to investigate or prosecute them.

       {¶ 23} Based on this evidence, the trial court found that the appointment of a receiver

was necessary to give ClarkDietrich an opportunity to collect upon its judgment.

Furthermore, contrary to the Association's claim, the trial court was not statutorily required to
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                                                                          Butler CA2017-04-040

find ClarkDietrich presented clear and convincing evidence that a breach of fiduciary duty

claim would be successful.       Rather, ClarkDietrich was required to present clear and

convincing evidence to support the trial court's discretionary decision that the appointment of

a receiver was appropriate and necessary.

       {¶ 24} Collectively, the evidence presented before the trial court demonstrates it did

not abuse its discretion in finding ClarkDietrich met its evidentiary burden. As discussed

above, ClarkDietrich presented evidence supporting the trial court's finding that the

Association possessed property in the form of a potentially viable breach of fiduciary duty

claim against its directors, officers, and agents. Despite two opportunities presented by

ClarkDietrich to resolve the case before it was submitted to the jury, the Association made

the decision to oppose dismissal. Moreover, the Association made this decision knowing of

the prior settlements and its own inability to satisfy a possible large judgment, as it later

stipulated that it had insufficient tangible assets to satisfy the $43 million judgment against it.

Additionally, an officer for the Association filed his own declaratory judgment action in

Delaware to have a determination made whether he breached his fiduciary duty to the

Association.

       {¶ 25} Outside of the declaratory judgment action, the record does not contain any

evidence indicating further investigation over the last two years into a possible breach of

fiduciary duty by the Association's directors, officers, and agents, thereby providing further

support for the trial court's finding that without the appointment of a receiver, the breach of

fiduciary duty claims could lapse, evidence could be lost, witnesses could become

unavailable, and memories could fade. Therefore, the trial court did not abuse its discretion

in finding it was appropriate and necessary to appoint a receiver to investigate and prosecute

such claims. Accordingly, the Association's assignments of error are overruled.

       {¶ 26} Judgment affirmed.
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                                        Butler CA2017-04-040


RINGLAND and PIPER, JJ., concur.




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