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Date: 07-03-2022
Case Style:
VICTORIA MORGAN vs. MARK G. JONES
Case Number: C-210408
Judge:
Beth A. Myers
Court:
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
On appeal from The Hamilton County Court of Common Pleas, Domestic Relations
Division
Plaintiff's Attorney: Law Office of M. Erin Wilkins, LLC, and M. Erin Wilkins
Defendant's Attorney:
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Cincinnati, Ohio - Divorce lawyer represented defendant-appellant with appealing the sale of the marital home.
} This is the second appeal that this court has heard concerning the sale
of the parties’ residence. Morgan and Jones were granted a final judgment of divorce
in 2019. Incorporated into the final judgment was the parties’ antenuptial agreement
for the disposition of real and personal property.
OHIO FIRST DISTRICT COURT OF APPEALS
3
{¶4} The parties owned as tenants in common a residence in Mount Adams.
The final judgment of divorce required the parties to place the home for sale within 90
days of the final judgment, but allowed either party to exercise a right of first refusal
to purchase the home pursuant to the terms set forth in the antenuptial agreement. In
his earlier appeal, Jones challenged the ordered sale of the residence, arguing that it
was contrary to the terms of the antenuptial agreement. In a judgment entry, this
court found no conflict between the terms of the parties’ antenuptial agreement and
the judgment for divorce, and found that the trial court did not exceed its jurisdiction
by ordering the sale of the property.
{¶5} In October 2020, after this court affirmed the trial court’s judgment
granting the divorce, Morgan filed a motion to appoint a receiver to sell the residence.
The motion was denied in March 2021. Approximately one month later, on April 22,
2021, after the parties received an offer to purchase the residence, Morgan filed a
motion to order Jones to accept the offer that the parties had received, or, in the
alternative, to appoint a receiver. The motion also requested that the court hold an
expedited hearing on the motion. The trial court held a hearing on the motion on April
28, 2021. On May 3, 2021, it issued an entry appointing a receiver to sell the parties’
residence. The entry provided that “The Receiver shall have all powers necessary to
conduct and carry out the sale of the residence, including but not limited to,
negotiation, acceptance of a reasonable offer, entering into contract, and finalizing the
sale.”
{¶6} On June 1, 2021, Jones filed a motion that requested the trial court do
three things: grant a new trial pursuant to Civ.R. 59 on Morgan’s motion that resulted
in the appointment of a receiver; grant an immediate stay of the appointment of a
OHIO FIRST DISTRICT COURT OF APPEALS
4
receiver; and approve a buyout transaction for Jones to buy out Morgan’s ownership
interest in the residence. The trial court denied Jones’s motion on June 29, 2021. And
it issued the three additional entries shortly thereafter: on July 1, 2021, it granted the
receiver’s application for the authority to sell the real estate; on July 6, 2021, it issued
the entry specifying the conditions for the sale of the real estate by the receiver; and
on July 14, 2021, it issued the entry approving further duties and authority of the
receiver.
{¶7} Jones filed a notice of appeal on July 28, 2021, stating that he was
appealing from the trial court’s May 3, 2021 entry appointing the receiver and the
“subsequent Entries of the trial court related thereto, including Motion For a New
Trial.”
Determination of Jurisdiction
{¶8} Before considering the merits of Jones’s appeal, we must determine
whether we have jurisdiction to hear the appeal. This court only has jurisdiction to
review final and appealable orders. Ohio Constitution, Article IV, Section 3(B)(2);
R.C. 2505.03. R.C. 2505.02(B) defines what constitutes a final and appealable order.
{¶9} In Cornell v. Shain, 1st Dist. Hamilton No. C-190722, 2021-Ohio-2094,
¶ 30, we held that an order granting the appointment of a receiver is a final, appealable
order under R.C. 2505.02(B)(2). R.C. 2505.02(B)(2) provides that a final order is one
that “that affects a substantial right made in a special proceeding or upon a summary
application in an action after judgment.” A “special proceeding” is one “that is
specially created by statute and that prior to 1853 was not denoted as an action at law
or a suit in equity.” R.C. 2505.02(A)(2). And a “substantial right” is “a right that the
United States Constitution, the Ohio Constitution, a statute, the common law, or a rule
OHIO FIRST DISTRICT COURT OF APPEALS
5
of procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1). In Cornell,
we explained that because “receivership proceedings are ‘special’ ” and because “an
order appointing a receiver affects a ‘substantial right,’ ” an order appointing a receiver
is a final and appealable order pursuant to R.C. 2505.02(B)(2). Cornell at ¶ 30. We
accordingly find that the trial court’s entry in this case appointing a receiver is a final,
appealable order. And because the entry appointing the receiver was a final order, the
trial court’s entry denying Jones’s motion for a new trial was appealable as well. Jones
v. Carpenter, 2017-Ohio-440, 84 N.E.3d 259, ¶ 14 (10th Dist.) (“A party may only
appeal a judgment denying a post-trial motion, such [as] a motion for new trial, if an
underlying final, appealable order exists.”).
{¶10} But we reach a different conclusion with respect to the additional
entries. In Cornell, we held that “an interim order merely governing the receivership,
though made in a special proceeding, generally does not affect a substantial right and
is not immediately appealable under R.C. 2505.02(B)(2).” Cornell at ¶ 30. The
additional entries were interim entries that set forth the receiver’s duties and authority
concerning the sale of the property. They contemplated further action by the receiver
and did not order a final sale of the property or terminate the receivership. Because
the additional entries did not affect a substantial right, we find that they are not final
appealable orders pursuant to R.C. 2505.02(B)(2).
1
Cornell at ¶ 30; Gemmell v.
Anthony, 4th Dist. Hocking No. 15CA16, 2015-Ohio-2550, ¶ 9-10 (holding that an
entry that did not order the final disposition of assets or terminate the receivership
was not a final, appealable order, and was merely an interim order governing the
1 Jones does not argue that the additional entries constitute final, appealable orders under any other
provision in R.C. 2505.02(B), and we do not find any of these other provisions applicable.
OHIO FIRST DISTRICT COURT OF APPEALS
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ongoing administration of the receivership). We consequently dismiss the appeal to
the extent that it relates to these additional entries.
{¶11} We next consider whether Jones’s appeal from the trial court’s entry
appointing the receiver was timely filed. The following dates are relevant to our
determination. The trial court entered the order appointing the receiver on May 3,
2021. Jones filed the motion for a new trial on June 1, 2021. The trial court entered
the order denying the motion for a new trial on June 29, 2021, and Jones filed his
notice of appeal on July 28, 2021.
{¶12} App.R. 4(A)(1) provides that a party appealing from an order that is final
upon its entry must file a notice of appeal within 30 days of that entry. But App.R.
4(B)(2)(b) provides that when a party timely files a Civ.R. 59 motion for a new trial,
“then the time for filing a notice of appeal from the judgment or final order in question
begins to run as to all parties when the trial court enters an order resolving” the
motion. So, pursuant to App.R. 4(B)(2)(b), if Jones’s motion for a new trial was timely
filed, the time to file his appeal from the order appointing the receiver did not begin to
run until the trial court entered an order resolving the motion for a new trial.
{¶13} Civ.R. 59(B) provides that a motion for a new trial “must be served
within twenty-eight days of the entry of judgment.” As set forth above, Jones filed the
motion for a new trial on June 1, 2021. The motion indicates that it was served on
opposing counsel that same date. This was 29 days after the trial court issued the entry
appointing the receiver on May 3, 2021. However, Civ.R. 6(A), which discusses the
computation of any time period prescribed or allowed by the Ohio Rules of Civil
Procedure, provides that “the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The last day of the
OHIO FIRST DISTRICT COURT OF APPEALS
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period so computed shall be included, unless it is a Saturday, a Sunday, or a legal
holiday, in which event the period runs until the end of the next day which is not a
Saturday, a Sunday, or a legal holiday.” Jones’s 28-day period to serve his Civ.R. 59
motion for a new trial ended on May 31, 2021. But May 31, 2021, was Memorial Day.
Because that was a legal holiday, the 28-day period ran until the end of the next day,
June 1, 2021. We therefore conclude that Jones timely filed and served his motion for
a new trial.
{¶14} Because the motion for a new trial was timely, App.R. 4(B)(2) applied
to extend the time Jones had to appeal the trial court’s entry appointing a receiver.
The trial court overruled Jones’s motion for a new trial on June 29, 2021, and he filed
his notice of appeal on July 28, 2021, which was within 30 days of the trial court’s
ruling on the motion for a new trial. See App.R. 4(A)(1).
{¶15} Jones has therefore timely appealed the trial court’s entries appointing
the receiver and denying his motion for a new trial. We now turn to the merits of
Jones’s appeal.
Appointment of a Receiver
{¶16} In his first assignment of error, Jones argues that the trial court erred
in entering the order appointing the receiver and “the four subsequent Related
Entries.” The related entries that Jones references are the entry denying Jones’s
motion for a new trial/denying immediate stay of appointment of receiver/denying
approval of buyout transaction, and the additional entries. For the reasons set forth
above, we dismiss the appeal to the extent that it relates to the additional entries.
{¶17} Jones contends that the trial court abused its discretion by not allowing
him to exercise his right to be heard and to file a memorandum in opposition to
OHIO FIRST DISTRICT COURT OF APPEALS
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Morgan’s motion that resulted in the appointment of a receiver. In support, he relies
on Local Rule 14(B) of the Court of Common Pleas of Hamilton County, General
Division, (“Loc.R. 14(B)”) which provides that any memorandum in response to a
motion filed by an opposing party shall be served within 14 days. He argues that this
rule was violated when the trial court held a hearing on April 28, 2021, on Morgan’s
motion filed April 22, 2021, without allowing Jones time to file a memorandum in
opposition. He further argues that he was only given 24 hours’ notice of the hearing.
{¶18} Included in Morgan’s motion was a request for an expedited hearing.
Local Rule 1.16 of the Court of Common Pleas of Hamilton County, Domestic Relations
Division, (“Loc.R. 1.16”) provides that a party may request an expedited hearing in
extraordinary circumstances. Morgan’s motion alleged that the parties had received
an offer on the home, that this was the first offer that they had received since the home
was listed in March 2020, that Jones had rejected the potential buyer’s showing
requests, and that Jones, at the time of the motion, had not responded to the offer.
While the record contains no entry from the trial court approving Morgan’s request
for an expedited hearing, the hearing was held on April 28, 2021, six days after the
motion was filed. And while Jones did not file a memorandum in opposition to
Morgan’s motion, he appeared at the hearing and defended against it. Jones crossexamined Morgan’s witness and argued his position.
{¶19} We find no error in the trial court’s granting of Morgan’s request to hold
an expedited hearing under these circumstances. The parties had received a seemingly
reasonable offer on their home that had a set expiration date, necessitating the need
for the hearing to occur quickly. Even if the trial court failed to strictly comply with
OHIO FIRST DISTRICT COURT OF APPEALS
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either Loc.R. 14(B) or Loc.R. 1.16 when granting the request for an expedited hearing,
Jones suffered no resulting prejudice.
{¶20} “A trial court has the inherent power to control its own docket and the
progress of the proceedings in its court.” Holbrook v. Holbrook, 12th Dist. Warren
No. CA2017-05-055, 2018-Ohio-2360, ¶ 17. Trial courts have great latitude in the
enforcement of their own local rules, which “are of the court’s own making, generally
administrative in nature, designed to facilitate case management and provide
guidelines for orderly case administration, and do not involve substantive principles
of law or implicate constitutional rights.” Id. For this reason, a trial court has the
discretion to deviate from its own local rules based on the circumstances before it.
However, if “the local rule implicates due process, and the trial court’s failure to follow
it deprives a party of a reasonable opportunity to defend against the disposition of the
case in favor of the other party, the trial court is bound to comply with the local rule.”
Id. Where an appellant alleges that a trial court has violated a local rule, she or he has
the burden to show resulting prejudice. Id.
{¶21} Here, Jones has shown no resulting prejudice. His failure to receive
advance notice of the hearing and his lack of opportunity to file a memorandum in
opposition to Morgan’s motion did not deprive him of a reasonable opportunity to
defend against the motion. Jones appeared at the hearing, argued on his own behalf,
and cross-examined Morgan’s witness. He did not seek leave to file a memorandum
in response or to supplement any arguments he made at the hearing. We accordingly
reject Jones’s argument that the trial court abused its discretion by not allowing Jones
to exercise his right to be heard and to file a memorandum in opposition.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶22} Jones also argues in this assignment of error that the trial court erred in
appointing a receiver because such action was barred by the doctrine of res judicata
based on the previous denial of Morgan’s first motion to have a receiver appointed.
This situation does not implicate the principles of res judicata. First, a trial court has
the discretion to change its position or ruling on an issue. Second, the circumstances
of the case differed greatly from the time that Morgan had first requested the
appointment of a receiver. When the second motion was filed, the parties had received
an actual offer on their home that, at the time of the motion, Jones had not responded
to. The trial court was well within its discretion to reconsider its earlier ruling and to
determine that the circumstances warranted the appointment of a receiver.
{¶23} Jones’s first assignment of error is overruled.
Motion for a New Trial
{¶24} In his second assignment of error, Jones argues that the trial court erred
in denying his motion for a new trial.
{¶25} Motions for a new trial are governed by Civ.R. 59. Civ.R. 59(A) sets forth
various grounds that a party may assert to argue that she or he is entitled to a new
trial. It also provides that, in addition to the grounds delineated, a new trial may be
granted for good cause shown at the trial court’s discretion. “The standard of review
of a trial court’s ruling on a Civ.R. 59(A) motion for a new trial depends on the grounds
for the motion.” Berardo v. Felderman-Swearingen, 1st Dist. Hamilton No. C200227, 2020-Ohio-4271, ¶ 7.
{¶26} Here, Jones has asserted a multitude of reasons why he should have
been granted a new trial, but he does not tie these reasons to any specific ground set
OHIO FIRST DISTRICT COURT OF APPEALS
11
forth in Civ.R. 59(A). In considering Jones’s arguments, we tie his reasons to the
grounds set forth in Civ.R. 59(A) where possible.
{¶27} Jones seemingly argues that he should have been granted a new trial on
the grounds set forth in Civ.R. 59(A)(1), (2), (3), and (6). We review the trial court’s
denial of his motion on these grounds for an abuse of discretion. Schultz v. Mayfield
Neurological Inst., 1st Dist. Hamilton No. C-120764, 2013-Ohio-4146, ¶ 10 (holding
that we review a ruling under Civ.R. 59(A)(1) for an abuse of discretion); Gindling v.
Shiff, 1st Dist. Hamilton No. C-100669, 2012-Ohio-764, ¶ 9 (holding that we review a
ruling under Civ.R. 59(A)(2) for an abuse of discretion); McGee v. Helmus, 6th Dist.
Erie No. E-02-026, 2004-Ohio-278, ¶ 17 (an appellate court reviews a trial court’s
ruling under Civ.R. 59(A)(3) for an abuse of discretion); Berardo at ¶ 7 (holding that
we review a ruling under Civ.R. 59(A)(6) for an abuse of discretion). An abuse of
discretion connotes an “unreasonable, arbitrary, or unconscionable decision.”
Cornell, 1st Dist. Hamilton No. C-190722, 2021-Ohio-2094, at ¶ 36,
quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶28} Jones argues that he was entitled to a new trial on the issue of the
appointment of a receiver because he was prevented from having a fair trial. See Civ.R.
59(A)(1). This argument is without merit. Jones appeared at the hearing on Morgan’s
motion, argued his position, and cross-examined Morgan’s witness. He was not
prevented from having a fair hearing on the issue.
{¶29} Jones next argues that should have been granted a new trial because of
Morgan’s misconduct. See Civ.R. 59(A)(2). He argues that Morgan inappropriately
sought relief—the appointment of a receiver—that had already been denied. As
discussed in response to Jones’s first assignment of error, the trial court was entitled
OHIO FIRST DISTRICT COURT OF APPEALS
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to change its ruling on the appointment of a receiver, and Morgan’s second motion
requesting the appointment of a receiver was based on a set of circumstances that had
not previously existed, specifically Jones’s failure to respond to the offer on the parties’
residence. Morgan did not commit misconduct by filing the motion that is before this
court for review, and nothing in the record supports Jones’s assertion that she acted
with the sole purpose of harassing Jones.
{¶30} Jones contends that a new trial is warranted because he was surprised
by Morgan’s motion and the “last-minute scheduling” of the hearing. See Civ.R.
59(A)(3). We rejected this argument in response to Jones’s first assignment of error.
Jones identifies no prejudice resulting from the scheduling of the hearing. He
appeared at the hearing and was not denied the opportunity to defend against
Morgan’s motion.
{¶31} Jones argues that he should be granted a new trial because the trial
court’s appointment of a receiver was not sustained by the weight of the evidence. See
Civ.R. 59(A)(6). This argument is likewise without merit. The trial court presided
over the hearing and was in the best position to judge the credibility of the witness, the
parties, and the arguments. It was entitled to find credible Morgan’s assertion that
Jones had intentionally thwarted the sale of the residence and was uncooperative, and
it was similarly entitled to reject Jones’s argument that he had legitimate reasons for
not accepting the initial offer on the home and for engaging in negotiations.
{¶32} Jones next argues that he was entitled to a new trial on the grounds set
forth in Civ.R. 59(A)(7), that the judgment is contrary to law. We review de novo the
trial court’s denial of his motion on this ground. Berardo, 1st Dist. Hamilton No. C200227, 2020-Ohio-4271, at ¶ 7. The trial court appointed the receiver pursuant to
OHIO FIRST DISTRICT COURT OF APPEALS
13
R.C. 2735.01(A)(4) and (5), which provide that a receiver may be appointed after
judgment “to carry the judgment into effect” and “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.” The court appointed the receiver to effect
its judgment ordering the sale of the property. On the record before us, the trial court’s
appointment of a receiver for the reasons in R.C. 2735.01(A)(4) and (5) was not
contrary to law.
{¶33} In addition to the grounds discussed above, Jones argues that he should
be granted a new trial on Morgan’s motion because it was inequitable to enter the
receiver order based on the reasons offered by Morgan, the appointment of the
receiver was barred by the doctrine of res judicata, Morgan’s motion was moot, and
because there exists substantial evidence in opposition to the motion that would be
presented if a new hearing were granted. For the reasons set forth above in our
response to Jones’s previously asserted challenges to the trial court’s denial of his
motion for a new trial, we find these arguments to be without merit.
{¶34} The trial court did not err in denying Jones’s motion for a new trial. The
second assignment of error is accordingly overruled.
Motion for a Buyout Transaction
{¶35} In his third assignment of error, Jones argues that the trial court erred
in denying his motion for approval of a buyout transaction.
{¶36} As we explained when discussing the procedural history of the case, in
the same motion in which he requested a new trial, Jones also requested that the trial
court approve a buyout transaction for Jones to buy out Morgan’s ownership interest
OHIO FIRST DISTRICT COURT OF APPEALS
14
in the residence. Jones attached to the motion a transaction statement that he had
prepared concerning his buyout offer. This transaction statement assumed a gross
sales price of $775,000, and took into account costs (including the mortgage) that the
parties owed on the residence, as well as payments that Jones contended Morgan owed
for residence expenses. At the time it was prepared, the transaction statement
indicated that Morgan had a negative net equity in the residence, and therefore would
owe Jones $46,154.
{¶37} In denying Jones’s motion for approval of the buyout offer, the trial
court stated that it “is disinclined to order one party to accept a buyout transaction
where the other party is not negotiating in good faith.” Jones argues that the trial
court’s decision deprived him of his contractual rights under section 9.5 of the parties’
antenuptial agreement, which contained each party’s right of first refusal to purchase
the other party’s portion of jointly-acquired property. This section provides that:
In the event the parties hereto later jointly acquire residential property
of any kind by deed to both spouses, and thereafter there is a dissolution
of the marriage or in the event of the prospective sale of such residence,
each party hereto shall have the right-of-first-refusal to purchase such
portion of such residential property owned by the other party at the then
current fair market price. If a dispute arises as to the then current fair
market price, the parties shall agree upon a qualified real estate
appraiser (who may be a mutually agreeable real estate broker) who
shall determine the current fair market price. Either party shall have
the option to buy or sell at the determined fair market price. The buyout shall be an all cash transaction consummated within ninety (90)
OHIO FIRST DISTRICT COURT OF APPEALS
15
calendar days after the purchase transaction has been agreed upon. If
both parties wish to buy, then the buyer shall be the party hereto who is
the highest bidder.
{¶38} The trial court did not ignore this provision in denying Jones’s motion
to approve the buyout transaction. Jones’s transaction statement included various
incidental amounts that impacted the ultimate amount of money that one party would
owe the other, including residence expenses and repair costs that had been incurred.
These additional deductions from the purchase price were not part of the buyout
provision, and the court was free to disregard the “offer” made by Jones. The clear
language of the buyout provision required Jones to buy out Morgan at the current fair
market price, without any adjustments that he later purported to add to the equation.
Following our review of the record, we cannot find that the trial court erred in
declining to approve the buyout transaction and in determining that a buyout offer
that resulted in Morgan owing Jones approximately $46,000, while simultaneously
surrendering her share of the residence, was not made in good faith.
Outcome: The third assignment of error is overruled, and the judgment of the trial
court is accordingly affirmed.
Judgment affirmed in part and appeal dismissed in part
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