[Cite as Gemmell v. Anthony, 2014-Ohio-4183.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
Karry Gemmell, et al., :
:
Plaintiffs-Appellees, : Case No. 14CA6
:
v. :
:
Mark Anthony, et al., :
: DECISION AND JUDGMENT ENTRY
Defendants-Appellants. :
: RELEASED: 9/19/2014
______________________________________________________________________
APPEARANCES:
Scott E. North & Christen M. Blend, Porter, Wright, Morris & Arthur, LLP, Columbus
Ohio for Defendant-Appellant.
Dale D. Cook & Michael L. Close, Isaac Wiles Burkholder & Teetor, LLC, Columbus
Ohio for Plaintiffs-Appellees.
______________________________________________________________________
HOOVER, A.J.
{¶1} Appellant Mark Anthony filed an appeal of the trial court’s judgment entry
and subsequent nunc pro tunc judgment entry granting a preliminary injunction against
him and others. In the first entry, the trial court ordered that Hocking Peaks Adventure
Park, LLC be subject to the same orders as previously entered against Hocking Peaks,
LLC. The trial court determined that Anthony had dissolved Hocking Peaks, formed
Hocking Peaks Adventure Park, and transferred all the assets from Hocking Peaks to
Hocking Peaks Adventure Park in an attempt to evade the trial court’s orders. The trial
court ordered that there be one bank account established for the operations of Hocking
Hocking App. No. 14CA6 2
Peaks Adventure Park and that neither Gemmell nor Anthony be permitted to withdraw
or expense an amount of money out of the bank account without the written consent of
both of them. The second nunc pro tunc order was identical, except that it required the
plaintiffs to post a bond of $65,000.
{¶2} Approximately two months later, the trial court granted the plaintiffs’
motion for the appointment of a receiver for Hocking Peaks Adventure Park based upon
its findings that Anthony continued to engage in self-dealing and that the business
would fail and investments would be misappropriated if the court did not appoint a
receiver to manage the business operations of Hocking Peaks Adventure Park.
Appellants Mark Anthony, M&T Property Investments, Ltd., and Hocking Peaks
Adventure Park filed an appeal of the trial court’s order appointing a receiver, which is
the subject of appellate case number 14CA11.
{¶3} Appellees filed a two-pronged motion to dismiss the appeal of 14CA6, i.e.,
the trial court’s order granting a preliminary injunction. First, Appellees argue that the
preliminary injunction entry is not a final appealable order because it does not meet all
the requirements of R.C. 2505.02(B)(4), governing orders that grant or deny provisional
remedies. Second, Appellees argue that the trial court’s preliminary injunction order
has been effectively made moot by the trial court’s subsequent order appointing a
receiver to operate Hocking Peaks Adventure Park. Thus, the appeal from that order is
also moot.
{¶4} We find Appellees’ motion to dismiss the appeal as moot meritorious and,
for that reason, we do not address the second argument concerning the final appealable
Hocking App. No. 14CA6 3
nature of the order.
{¶5} An appellate court must dismiss an appeal when, without the fault of any
party, circumstances preclude it from granting effective relief. Drycok Coal Co., Inc. v.
Ohio Division of Reclamation,115 Ohio App.3d 563, 685 N.E.2d 863 (4th Dist 1996). In
State ex rel. Eliza Jennings, Inc. v. Noble, 49 Ohio St.3d 71, 74, 551 N.E.2d 128, 131
(1990), the Court quoted and followed long-standing case law for the proposition that
courts have a duty to decide actual controversies and to refrain from rendering advisory
opinions. The Court held:
“Next, we address appellee's motion to dismiss this case as moot. In
determining whether a case is moot, ‘“[t]he duty of this court, as of every
judicial tribunal, is to decide actual controversies by a judgment which can
be carried into effect, and not to give opinions upon moot questions or
abstract propositions, or to declare principals or rules of law which cannot
affect the matter in issue in the case before it. It necessarily follows that
when, pending an appeal from the judgment of a lower court, and without
any fault of the defendant, an event occurs which renders it impossible for
this court, if it should decide the case in favor of the plaintiff, to grant him
any effectual relief whatever, the court will not proceed to a formal
judgment, but will dismiss the appeal. * * * ” ’ Miner v. Witt (1910), 82 Ohio
St. 237, 238-239, 92 N.E. 21, 22, quoting Mills v. Green (1895), 159 U.S.
651, 653 [16 S.Ct. 132, 133, 40 L.Ed. 293].
Noble, 49 Ohio St.3d at 74, 551 N.E.2d at 131. See, also, Tschantz v. Ferguson, 57
Ohio St.3d 131, 133, 566 N.E.2d 655, 657 (1991).
{¶6} Two exceptions exist to the mootness doctrine. In In re Suspension of
Huffer from Circleville High School, 47 Ohio St.3d 12, 546 N.E.2d 1308 (1989),
paragraph one of the syllabus, the Court held that if an issue is capable of repetition yet
evades review or involves a matter of great public or great general interest, the court is
vested with jurisdiction to hear the appeal even though the issue raised in the appeal is
Hocking App. No. 14CA6 4
moot. See, also, Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28, 505 N.E.2d
966 (1987), paragraph one of the syllabus.
{¶7} Here, the trial court’s preliminary injunction entry ordered the parties to
establish a single bank account and to run the revenue and expenditures of Hocking
Peak Adventure Parks through the single bank account with the approval of both
Gemmell and Anthony. However, after issuing that order, the trial court then
determined that the business operations needed greater oversight and appointed a
receiver to take over the management of Hocking Peaks Adventure Parks. Thus, the
business operations, including collection of revenues and payment of expenses, is now
conducted by the court-appointed receiver. Neither Gemmell nor Anthony have the
authority to manage business operations or conduct financial transactions through the
business’s bank account.
{¶8} We agree with Appellees in that we cannot grant an effective remedy
concerning the trial court’s preliminary injunction where the order concerning the parties’
creation and operation of a single bank account has been replaced with a court-
appointed receivership. Even if we should decide the appeal in favor of Appellant
Anthony, the fact that the court-appointed receiver, and not Anthony, is making all the
financial decisions on behalf of the business, precludes any effective relief in his favor.
{¶9} Additionally, we find that neither of the two exceptions to the mootness
doctrine applies in this case. First, the issue of the management of the business and
the proper handling of its financial accounts is not an issue that will repeat, yet evade
review, in the future. And, the issue raised in this appeal is not a matter of public or
Hocking App. No. 14CA6 5
great general interest.
{¶10} Accordingly, based upon the foregoing reasons, we find this appeal to be
MOOT and it is hereby DISMISSED. All other pending motions are hereby DENIED as
MOOT.
{¶11} The clerk shall serve a copy of this order on all counsel of record at their
last known addresses by ordinary mail.
MOTION TO DISMISS GRANTED. MOTION TO FOR LEAVE TO AMEND
NOTICE DENIED. APPEAL DISMISSED. COSTS TO APPELLANT.
IT IS SO ORDERED.
Harsha, J. & McFarland, J.: Concur.
FOR THE COURT
_____________________________
Marie Hoover
Administrative Judge