[Cite as Sullivans, Inc. v. Haehn, 2014-Ohio-399.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100150
SULLIVANS, INC.
PLAINTIFF-APPELLANT
vs.
GREGORY A. HAEHN, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-11-761463
BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 6, 2014
ATTORNEYS FOR APPELLANT
Jeffrey P. Posner
Jeffrey P. Posner, L.L.C.
3393 Norwood Road
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEES
Thomas C. Pavlik
Novak, Pavlik
Skylight Office Tower
1660 West 2nd Street, Suite 950
Cleveland, Ohio 44114
Scott J. Orille
Susan White
Kahn & Kruse Co., L.P.A.
Galleria & Towers at Erieview
1301 East Ninth Street, Suite 2200
Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated appeal is to allow the
appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping
Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).
{¶2} In 2011, plaintiff-appellant, Sullivans, Inc., obtained in the Commonwealth of
Massachusetts a default judgment against Chicago Cycles, Inc., Gregory Haehn, and
Russell Haehn in the amount of $84,534.24. After filing the judgment in Ohio, appellant
filed the within action in an attempt to collect on the judgment, naming as defendants
Gregory Haehn (“Haehn”) and non-debtors Yukon International, Inc. and Rory Haehn.
The lawsuit sought to recover through a creditor’s bill action pursuant to R.C. 2333.01
amounts allegedly due to Haehn from Yukon pursuant to the terms of a written
promissory note.
{¶3} To recover its judgment against Haehn, appellant requested (1) an order
requiring any payments made under the promissory note to be tendered to appellant
instead of Haehn, and (2) that it be allowed to accelerate the amounts due and owing
under the promissory note and bring a civil lawsuit to collect these amounts allegedly due
and owing under the promissory note.
{¶4} The parties did not dispute that appellant had a valid claim to a creditor’s bill.
However, Yukon, Haehn, and Rory Haehn disagreed with appellant’s request to stand
in the shoes of Haehn in initiating any collection efforts under the promissory note.
{¶5} During the course of the proceedings, the trial court denied appellant’s first
request to appoint a receiver to take possession of the promissory note, accelerate its
terms, and file suit to collect.
{¶6} After multiple and opposing motions for summary judgment were filed, the
trial court entered a final judgment granting appellant’s motion for summary judgment,
finding that appellant was entitled to a creditor’s bill insofar as any payments actually
made under the promissory note were required to be made to appellant instead of Haehn.
However, the trial court denied appellant’s motion for summary judgment and granted
summary judgment in favor of Yukon on the issue of appellant’s right to “stand in the
shoes” of Heahn for the purposes accelerating the terms of the note and collecting on the
note.
{¶7} Following the trial court’s judgment, appellant filed a second motion for the
appointment of a receiver. Again, the motion requested that a receiver be appointed to
accelerate the promissory note and sue to recover the amounts allegedly due and owing
under the note. After a full evidentiary hearing on appellant’s motion, the trial court
again denied appellant’s request for the appointment of a receiver. Appellant appeals
from this order, raising two assignments of error for review.
{¶8} Appellant contends in its first assignment of error that the trial court erred
“to their prejudice by finding his post-judgment motion to appoint a receiver as involved
a drastic, harsh, and extraordinary remedy and applying a requirement that the appellant
prove its case by clear and convincing evidence.” Appellant argues that because the
appointment of a receiver in this case was for a “simple, singular, and post-judgment”
purpose, the requisite degree of proof is preponderance of the evidence.
{¶9} Appellant further contends in its second assignment of error that because the
trial court did not apply the requisite degree of proof, its denial of appointment of receiver
was an abuse of discretion. These two assignments of error will be addressed together.
{¶10} This court has repeatedly held that the appointment of a receiver is
governed by the clear and convincing standard. See, e.g. 2115-2121 Ontario Bldg.,
L.L.C. v. Anter, 8th Dist. Cuyahoga No. 98627, 2013-Ohio-2995. “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.” Id. at ¶ 14, citing Equity
Ctrs. Dev. Co. v. S. Coast Ctrs., Inc., 83 Ohio App.3d 643, 615 N.E.2d 662 (8th
Dist.1992).
{¶11} Our review of the case law demonstrates that this standard has been
consistently applied to all matters where a receiver has been requested, and no distinction
has been made by this court regarding the duties or purposes under which a receiver is to
be appointed. Accordingly, we reject appellant’s argument that the degree of proof was
preponderance of the evidence.
{¶12} Appellant summarily states that even if the court did apply the correct
standard, it still abused its discretion “under the circumstances of this case” because the
judgment debtor, Haehn, is failing to collect on the note. 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, 60 Ohio St.3d 69, 73, 573
N.E.2d 62 (1991).
{¶13} Appellant’s purpose for requesting the appointment of the receiver is for the
receiver to initiate a lawsuit against third-party Yukon for payments allegedly owed under
the promissory note to the judgment-debtor, Haehn.
{¶14} In Lakeshore Motor Freight v. Glenway Industries, Inc., 2 Ohio App.3d 8,
440 N.E.2d 567 (1st Dist.1981), paragraph three of the syllabus, the court held,
[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, but must instead limit any order to the debtor’s equitable
interest, i.e., the potential proceeds, in any such action.” (Emphasis
added.)
See also Wheaton v. Lee Rd. Dev. Ltd. Liab. Co., 11th Dist. Lake No. 2000-L-075 (Aug.
10, 2001) (proceeds from judgment debtor’s chose in action is subject to attachment or
encumbrance by way of a creditor’s bill; however, the right to prosecute the
chose-in-action is not subject to attachment or encumbrance).
{¶15} Accordingly, the trial court did not abuse its discretion when it denied
judgment-creditor appellant’s motion to appoint a receiver to “stand in the shoes” of
judgment-debtor Haehn, for the sole purpose of initiating an action against third-party
Yukon for payments owed under the promissory note to Haehn. Appellant’s assignments
of error are overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR