Opinion
No. 107004
04-06-2018
TROY LEIGHT AND JOHN P. NAIL RELATORS v. HONORABLE JUDGE JOHN P. O'DONNELL RESPONDENT
ATTORNEYS FOR RELATORS Michael R. Stavnicky Jaime Syx Singerman, Mills, Desberg & Kauntz, Co., L.P.A. 3333 Richmond Road, Suite 370 Beachwood, Ohio 44122 ATTORNEY FOR RESPONDENT Michael C. O'Malley Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Prohibition
Order No. 516355
ATTORNEYS FOR RELATORS
Michael R. Stavnicky
Jaime Syx
Singerman, Mills, Desberg & Kauntz, Co., L.P.A.
3333 Richmond Road, Suite 370
Beachwood, Ohio 44122
ATTORNEY FOR RESPONDENT
Michael C. O'Malley
Cuyahoga County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.:
{¶1} On April 2, 2018, the relators, Troy Leight and John P. Nail commenced this prohibition action against the respondent, Judge John P. O'Donnell, to prohibit the judge from allowing the receiver of Osteosymbionics, LLC, to market and sell any or all of its assets. For the following reasons, this court, sua sponte, denies the application for a writ of prohibition.
{¶2} In the underlying case, Leight v. Osteosymbionics, LLC, Cuyahoga C.P. No. CV-14-835958, the respondent judge, in September 2016, appointed a receiver to manage the company. On March 22, 2018, the receiver filed his notice of withdrawal because the company has less than $2,000 in cash, which is insufficient to pay the bills, including the rent and the receiver's fees. However, the receiver stated that if the court amended the grant of his powers to include liquidation powers, he believed that he could obtain fair market value for the company. He further stated that he was in contact with a potential buyer for the company's assets. On March 28, 2018, one of the defendants moved the court to amend the receivership order to permit the receiver to market and sell the assets of the company. On the same day, plaintiff-relators filed a brief in opposition to the defendant's motion to amend the receivership order.
{¶3} On March 29, 2018, the respondent judge amended the order to allow the receiver to "market the assets of Osteosymbionics for sale. The Receiver shall present a motion for the approval of the sale of at least some of the assets of Osteosymbionics to the Court no later that April 6, 2018, unless the Receiver requests more time." The order further provided that "no sale will be final until after a hearing and specific approval by the court."
{¶4} The relators then commenced this prohibition action on Monday, April 2, 2018.
{¶5} The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of the syllabus. "The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940). Absent a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via an appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, this court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).
{¶6} In the present case, the respondent judge is acting within his authority. R.C. 2735.04(B) provides the receiver may "(5) [s]ell and make transfers of real or personal property; (6) [e]xecute deeds, leases, or other documents of conveyance of real or personal property; * * * (8) [g]enerally do any other acts that the court authorizes." This court has recognized that a duly appointed receiver has the authority to sell and transfer real or personal property under his control. A court supervising a receiver has broad discretion to limit or expand the receiver's power as it deems appropriate. Indeed, under R.C. Chapter 2735, there are no statutory restrictions on what the court may authorize regarding receivership property. State ex rel. Olmsted Falls v. Bowman, 8th Dist. Cuyahoga No. 104154, 2016-Ohio-5851, ¶ 7. Thus, the respondent judge was acting well within his jurisdiction to authorize the receiver to sell any or all of the company's assets. Prohibition will not lie.
{¶7} Accordingly, this court, sua sponte, denies the application for a writ of prohibition. Relators to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶8} Writ denied. /s/_________
MARY EILEEN KILBANE, PRESIDING JUDGE EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR