[Cite as 2115-2121 Ontario Bldg., L.L.C. v. Anter,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98627

2115-2121 ONTARIO BUILDING, L.L.C. PLAINTIFF-APPELLEE

vs.

DOLORES ANTER, ET AL.

DEFENDANTS-APPELLEES

[APPEAL BY THERESA JULIA KRATUS]

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-752119

BEFORE: Boyle, P.J., Rocco, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: July 11, 2013 ATTORNEYS FOR APPELLANT

Philip Wesley Lambert Timothy J. Fitzgerald James F. Koehler Koehler Neal, L.L.C. 1301 East Ninth Street Suite 3330, Erieview Tower Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEES

For 2115-2121 Ontario Building, L.L.C.

Richard P. Goddard Alexander B. Reich Calfee, Halter & Griswold, L.L.P. The Calfee Building 1405 East Sixth Street Cleveland, Ohio 44114

For Dolores Anter, et al.

David C. Eisler P.O. Box 1721 Medina, Ohio 44258 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Theresa Kratus, appeals the trial court’s decision

granting the motion to appoint a receiver filed by plaintiff-appellee, 2115-2121 Ontario

Building, L.L.C. (“Ontario”) and the trial court’s order detailing the receiver’s power and

duties over defendant, the Macron Investment Company (“Macron”). Finding some

merit to this appeal, we affirm in part and reverse in part.

Procedural History and Facts

{¶2} In March 2011, Ontario filed the underlying lawsuit against Macron and

several named shareholders of Macron. In its complaint, Ontario alleges that Macron

has a single class of common stock (“Company Shares”) with a total of 64 Company

Shares outstanding. Ontario further alleges that it has 32 Company Shares, making it a

50 percent shareholder of Macron. The other 32 Company Shares are owned by

defendants, Joseph Anter, Mark Anter, Theresa Kratus (a.k.a. Theresa Maloof), William

Maloof (as custodian for Simon Maloof), and/or SAM, Inc. (“shareholder defendants”),

making them collectively 50 percent shareholders of Macron.

{¶3} Ontario alleges that counsel for Macron has memorialized Ontario’s purchase

of 32 Company Shares, prepared Company Shares certificates reflecting Ontario’s

ownership of 32 Company Shares, and presented Company Shares to Macron for

execution but that “Macron has wrongfully failed and refused to execute and deliver” the

Company Shares certificates to certify and evidence the 32 Company Shares owned by

Ontario. As a result, Ontario sought a declaratory judgment that it is a 50 percent shareholder of Macron and an injunctive order requiring Macron to execute and deliver to

Ontario the 32 Company Shares. Ontario further alleged a third count in its complaint,

seeking an accounting.

{¶4} Kratus answered and asserted a single counterclaim, seeking a declaration

that Macron has only 63 Company Shares outstanding — not 64 as alleged by Ontario —

and that Ontario has at most 31 Company Shares.

{¶5} On March 29, 2012, after the parties filed cross-motions for summary

judgment, the trial court ultimately granted Ontario’s motion and denied Kratus’s

cross-motion. In finding in favor of Ontario on all three of its claims, the trial court

issued an order that (1) declared that Ontario had purchased 32 valid shares and therefore

had 50 percent of the 64 total outstanding shares of Macron, (2) ordered Macron “to

forthwith issue to Ontario the share certificates evidencing Ontario’s ownership of 32

shares,” and (3) ordered Macron to forthwith provide an accounting to Ontario of all of

Macron’s rents, other income, and expenses relating to the property at 2115-2121 Ontario,

Cleveland (“Stanley Block building”).

{¶6} Kratus and Macron separately appealed that decision to this court.

{¶7} While that appeal was pending, Ontario filed a motion to show cause as to

why Macron and its attorney should not be held in contempt for their refusal to carry the

trial court’s judgment into effect. On June 8, 2012, Ontario filed a motion for the

appointment of a receiver for Macron “to effectuate the court’s judgment.”

{¶8} In its motion, Ontario also pointed out that the Stanley Block building — Macron’s sole asset — was in total disrepair and that two years ago, on April 20, 2010,

Cleveland’s director of building and housing had declared the building to be a public

nuisance and ordered that all violations be abated by either making the building code

compliant or demolishing the building. The city ultimately criminally prosecuted

Macron in Cleveland Municipal Court, Housing Division, for the building code

violations, resulting in fines totaling $105,000 being imposed against Macron in May

2011. According to Ontario, those fines remain outstanding.

{¶9} Ontario further argued in its motion that Macron is now facing additional

cumulative fines of $15,000 per day, which started on June 7, 2012, as a result of Macron

failing to comply with the housing court’s orders issued in a civil action filed by the city.

In that action, the city obtained a permanent injunction that required Macron to abate the

nuisance created by the Stanley Block building. Ontario asserted in its motion that the

only effective means to obtain compliance with the housing court’s orders requiring

abatement of the nuisance was through a court-appointed receiver to contract for the

immediate demolition of the building.

{¶10} The trial court held an evidentiary hearing on the motion for appointment of

a receiver on June 14, 2012. Notably, although Kratus objected to the trial court

appointing a receiver for the purpose outlined in Ontario’s motion — namely, to order the

demolition of the Stanley Block building — she conceded that the trial court had

jurisdiction to appoint a receiver to enforce the trial court’s judgment, i.e., transfer the

Company Shares and facilitate an accounting. On at least four separate points during the hearing, Kratus indicated that she had no objection and, in fact, consented to the

appointment of a receiver to carry the trial court’s judgment into effect. Kratus,

however, vehemently objected to granting a receiver any powers beyond the enforcement

of the trial court’s underlying judgment on the basis that the trial court lacked jurisdiction

to do so. Kratus argued that the powers that Ontario sought to confer to a receiver

exceeded the scope of the underlying judgment and should have been raised in an

ancillary proceeding to a separate and distinct action dissolving the corporation.

According to Kratus, Ontario essentially sought to subvert the statutory requirements for

dissolving a corporation through the appointment of a receiver.

{¶11} On June 18, 2012, the trial court granted Ontario’s motion for an

appointment of a receiver. On June 26, 2012, the trial court entered an order detailing

the receiver’s powers and duties. Notably, in Section 4.3 of that order, the trial court

stated the following concerning compensation of the receiver:

The court recognizes that the primary, if not only, asset of the receivership estate is real property, and that if it is not in the best interest of the estate that the property be sold forthwith then there will be no fund from which to compensate the receiver and any professionals she may employ. In that event, the plaintiff, as the party that moved for the appointment of a receiver, shall be required to advance sums necessary to compensate the receiver, which will then be taxed as costs in the action. Additionally, the court recognizes that its decision on summary judgment that forms part of the basis for the appointment of a receiver is currently being appealed. Finally, the court recognizes that the order appointing the receiver might be appealed. If any such appeal results in the order appointing the receiver being invalidated, then the plaintiff will be required to pay the receiver and other receivership expenses, and those payments will not be taxed as costs. If these conditions are unacceptable to the plaintiff then the plaintiff must move forthwith to vacate the order appointing the receiver. {¶12} Kratus filed this appeal concerning the trial court’s appointment of a

receiver and its order detailing the receiver’s power and duties. She raises the following

single assignment of error:

The trial court erred in granting appellee’s motion for the appointment of a receiver.

Jurisdiction

{¶13} In her first argument, Kratus argues that the trial court lacked jurisdiction to

appoint a receiver because the case was on appeal in our court.

{¶14} Initially, we note the governing standard of review. “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.,

,

(8th Dist. 1992). The decision to

appoint a receiver is within the sound discretion of the trial court and will not be

disturbed absent a clear abuse of discretion. State ex rel. Celebrezze v. Gibbs,

,

(1991). Appellate review of an order appointing a receiver

is confined to “the purpose of determining whether there is clear and convincing evidence

tending to prove the facts essential to sustain the order.” Malloy v. Malloy Color Lab,

Inc.,

,

(10th Dist. 1989). In reviewing a trial

court’s appointment, we may not consider the weight of the evidence; the appointment of

a receiver “may be reversed only when there is failure of proof which would be essential

to support the order.”

{¶15} Notwithstanding the above, a trial court abuses its discretion if it issues an

order inconsistent with its own jurisdiction. See, generally, Lingo v. State, 8th Dist. No.

97537,

(finding the trial court abused its discretion in certifying class

action because it lacked jurisdiction to hear the case).

{¶16} Turning to Kratus’s first argument, she challenges the trial court’s authority

to appoint a receiver for the purpose of taking control of property completely unrelated to

the underlying final judgment and after the judgment has been appealed. Kratus’s

argument, however, ignores that in the absence of the appellant obtaining a stay of the

trial court’s judgment in accordance with Civ.R. 62(B) and App.R. 7, the trial court

retains jurisdiction to enforce its judgment. See State ex rel. Klein v. Chorpening,

,

(1983); Hagood v. Gail,

,

(11th Dist. 1995). Indeed, under such circumstances, “the trial court retains

all jurisdiction not inconsistent with the reviewing court’s jurisdiction to reverse, modify,

or affirm the judgment.” Howard v. Catholic Social Servs. of Cuyahoga Cty., Inc.,

,

(1994). Thus, when an appeal is pending before a

court of appeals, the trial court is divested of jurisdiction except to take action in aid of

the appeal. McAuley v. Smith,

,

(1998).

{¶17} Notably, R.C. 2735.01 (the receiver statute) specifically authorizes the trial

court to appoint a receiver in a post-judgment setting for the purpose “to carry the

judgment into effect.” R.C. 2735.01(C). This authority is consistent with the trial

court’s limited jurisdiction over a case following the filing of an appeal. {¶18} In this case, Kratus never sought a stay of the trial court’s judgment.

Further, at the hearing on the motion to appoint a receiver, Kratus acquiesced in the

appointment of a receiver for the limited purpose of carrying the judgment into effect.

Thus, to the extent that the trial court appointed a receiver to enforce its judgment, i.e.,

transfer the stocks and provide an accounting, we find no error or lack of jurisdiction.

The costs incurred by the receiver in connection with these duties, therefore, should be

properly taxed as costs for Macron to pay.

{¶19} However, we recognize that the trial court’s order detailing the powers and

duties of the receiver far exceeded the enforcement of its underlying judgment. Aside

from the power to enforce its judgment, the trial court’s order granted the receiver

additional powers and authority, detailed in approximately eight pages. Among the

various powers listed, the trial court authorized the receiver “to take immediate

possession, control, management and charge of the Stanley Block property,” with the

purpose “to preserve and maximize the value of the Stanley Block property as a whole.”

Notably, the preservation of Macron’s assets was never a part of the underlying action.

The complaint alleged only three counts, seeking the following specific relief: (1) a

declaration that Ontario was a 50 percent shareholder, (2) injunctive relief ordering the

transfer of the shares, and (3) an accounting.

{¶20} Ontario counters that this issue has not been preserved for our review

because Kratus did not assign it as error. We disagree. Kratus appealed both the order

appointing the receiver dated June 18, 2012, and the order detailing the receiver’s powers and duties dated June 26, 2012. Although Kratus identifies only a single assignment of

error, her first argument in support of the assignment of error goes directly to the trial

court’s jurisdiction to appoint a receiver for the purpose of taking control of the Stanley

Block building — an issue that was never part of the underlying litigation or final

judgment.

{¶21} We note that Ontario also moved for the appointment of a receiver under

other provisions of the statute that do not limit a receiver to carrying the trial court’s

judgment into effect. Relevant to this appeal, R.C. 2735.01 provides as follows:

A receiver may be appointed by the supreme court or a judge thereof, the court of appeals or a judge thereof in his district, the court of common pleas or a judge thereof in his county, or the probate court, in causes pending in such courts respectively, 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, if probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured;

***

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

***

(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.

{¶22} Although the trial court’s appointment of the receiver with all the powers and duties conferred in its June 26, 2012 order may have been appropriate for the granting

of a receiver under R.C. 2735.01(A), (E), or (F), these provisions contemplate the

appointment of a receiver during a pending cause and not post-judgment. Conversely,

R.C. 2735.01(C) specifically contemplates the appointment of a receiver post-judgment

for purpose of enforcing the judgment. In this case, although an intervening act

occurred between the final judgment and Ontario’s motion for the appointment of a

receiver, namely, Macron was facing significant contempt fines in housing court, we find

no authority that extends the trial court’s authority to appoint a receiver post-judgment

other than to effectuate the enforcement of the judgment.1

{¶23} And while we are cognizant the appointment of a receiver is a provisional

remedy, and cannot be the sole basis for the filing of a lawsuit, Ontario could have moved

for the appointment of a receiver by filing a separate action to dissolve the corporation

under R.C. Chapter 1701. Indeed, the thrust of Ontario’s motion for the appointment of

a receiver was to demolish the Stanley Block building — the sole asset of Macron.

Further, according to Ontario, Macron was not engaged in any business and was

insolvent. Notably, however, none of these issues were part of the underlying action at

issue in this case.

{¶24} Thus, to the extent that the trial court granted the receiver authority to

perform duties outside the scope of enforcing its judgment, we find that the trial court

R.C. 2735.01(D) is the only other provision that allows for the appointment of a receiver 1

“after judgment” but is not applicable in this case. Notably, Ontario did not seek the appointment of a receiver under this provision. lacked jurisdiction to do so and therefore abused its discretion. We likewise find that

the fees and costs incurred by the receiver for exercising duties outside of the specific

enforcement of the trial court’s judgment should be paid by Ontario as set forth in Section

4.3 of the trial court’s order.

{¶25} Finally, contrary to Ontario’s claim, we do not find that Kratus’s challenge

of the appointment of the receiver and the scope of her powers is moot. Notably, the

party responsible for paying the costs incurred by the receiver specifically hinges on

whether we find that the trial court acted within its jurisdiction to appoint the receiver and

grant her such powers and authority. The trial court preserved this issue in its specific

order detailing the receiver’s powers and duties, namely, Section 4.3. And while

Ontario claims that the receiver never took any action with respect to the Stanley Block

building, we note that the record reflects that the receiver’s fees and expenses total over

$150,000.

{¶26} The sole assignment of error is sustained in part and overruled in part.

Given our resolution of Kratus’s first argument, we find her remaining arguments raised

in her brief to be moot.

{¶27} In summary, we affirm the trial court’s appointment of the receiver for the

limited purpose of carrying its judgment into effect and find that the costs and fees

incurred in connection with those duties are properly charged to Macron. We further

find, however, that the trial court abused its discretion in granting the receiver powers and

duties outside the scope of enforcing its judgment. The costs and fees incurred for duties performed unrelated to the enforcement of the judgment should be paid by Ontario.

{¶28} Judgment affirmed in part, reversed in part, and remanded to the lower court

for further proceedings consistent with this opinion.

It is ordered that appellees and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to 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.

MARY J. BOYLE, PRESIDING JUDGE

KENNETH A. ROCCO, J., and EILEEN T. GALLAGHER, J., CONCUR