Ns 2012-1948 ORIGINAL

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LEONARD F. CARR,

Plaintiff-Appellant,

V.

A CA CIA COUNTRY CLUB CO., et al.

Defendants-Appellees,

-and-

MICHAEL E. MURMAN,

Receiver.

Discretionary Appeal From theCourt of Appeals, Eighth Appellate District

Cuyahoga County, OhioCase No. 97989

DEFENDANT-APPELLEE ACACIA COUNTRY CLUBCOMPANY'S MEMORANDUM IN OPPOSITION TO JURISDICTION

F CL 'E"DDEV 19 2-C12

CLERK OF COURTSUPREME COURT OF OHIO

U^C "19 2012

Timothy J. Fitzgerald (0042734)(COUNSEL OF RECORD)Colleen A. Mountcastle (0069588)GALLAGHER SHARPSixth Floor - Bulkley Building1501 Euclid AvenueCleveland, Ohio 44115(216) 241-5 310 (Telephone)(216) 241-1608 (Facsimile)tfitzgerald@gallaghersharp.comcmountcastle@gallaghersharp.comAttorneys for Defendant-AppelleeAcacia Country Club Company

CLERK OF COURTSUPREME C®URT OF OHI®

Leonard F. Carr (0029884)LEONARD F. CARR CO., L.P.A.1392 SOM Center RoadMayfield Heights, OH 44124Tel: (440) 473-2277Fax: (440) 473-0188E-mail: lc@carrlawfirm.net

Plaintiff-Appellant, Pro Se

L. Bryan Carr (0066649)L. BRYAN CARR CO., L.P.A.1392 SOM Center RoadMayfield Heights, OH 44124Tel: (440) 473-2277Fax: (440) 473-0188E-mail: bc@carrlawfirm.net

- and -

Kenneth A. Bossin (0013935)LAW OFFICE OF KENNETH A. BOSSIN1392 SOM Center RoadMayfield Heights, OH 44124Tel: (440) 446-1881Fax: (440) 443-1969E-mail: kab@kenbossinlaw.com

M. Colette Gibbons (0003095)ICE MILLER LLPFifth Third Center600 Superior Avenue East, Suite 1701Cleveland, OH 44114Tel; (216) 394-5074Fax: (216) 394-5088E-mail: Colette.Gibbons@icemiller.com

Counsel for Receiver, Michael E. Murman

Scott H. Kahn (0006779)Mark F. Kruse (0029989)MCINTYRE, KAHN & KRUSE CO., L.P.A.The Galleria & Towers at Erieview1301 East Ninth Street, Suite 2200Cleveland, OH 44114-1824Tel: (216) 579-4114Fax: (216) 579-0605E-mail: skahn@mkkglaw.com

mkruse@mkkglaw.com

Counsel for Defendant Appellee, Joseph T.Aveni and Acacia Development Co., Ltd.

Counsel for Plaintiff-AppellantLeonard F. Carr

TABLE OF CONTENTS

Page

1. EXPLANATION OF WHY THE ISSUES RAISED IN THIS CASE ARE NOT OFPUBLIC OR GREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4A. History of this Action and Background Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Vote on Disputed Resolutions Which Carr Opposed and Sought to Block Dueto His Personal Financial Interest in Controlling the Sale of Acacia's Assets.......... 5

C. The Proceedings Below .................................................. 6

III. ARGUMENT OPPOSING APPELLANT'S PROPOSITION OF LAW . . . . . . . . . . . . . . . 10

Counter Proposition of Law No. 1: A trial court does not abuse its discretion by ordering theparty at whose instance a receiver was appointed to pay the reasonable costs and expensesincurred by the receiver and his counsel when the appointment of the receiver is foundultimately to have been improper or invalid and that party has frustrated and delayed thepresentation of evidence of the alleged grounds for a receivership pursuant to R.C. 2735.01when given the opportunity to do so at a hearing despite having made numerous assurancesin filings with the court to having supporting evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. The Eighth District's Decision Does Not Contradict Precedent from The SupremeCourt of Ohio or Create a Conflict of Law With Any Other Appellate District in OhioRegarding the Compensation of a Receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. The Appellate Court Correctly Determined that Carr Waived his Argument Regardingthe Alleged Lack of Receiver's Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

C. There is No Conflict with Nat'l City Bank v. Semco, Inc., Nozik v. Mentor Lagoons,Inc., Litierty Folder Co. v. Ancierson, or Postle v. wo^fram vuitar Co. Regaraing aReceiver's Ability to Be Paid for Efforts Defending the Receivership . . . . . . . . . . . . . . 14

IV. CONCLUSION .. ......................................................... 15

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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I. EXPLANATION OF WHY THE ISSUES RAISED IN THIS CASE ARE NOT OFPUBLIC OR GREAT GENERAL INTEREST

This suit was commenced with a singular goal in mind - having a receiver quickly appointed

over Defendant-Appellee, Acacia Country Club Company ("Acacia") so that a dissident member

could usurp authority and wrest control away from the duly elected board of directors. When

Plaintiff-Appellant, Leonard F. Carr ("Carr")' filed his complaint in January 2009, he did so as an

individual shareholder claiming an injury unto himself only. He did not initiate this case as a

derivative lawsuit to benefit Acacia as a whole or for the good of its other members. To further his

ruse, he claimed that Acacia was insolvent or in imminent danger of insolvency. Carr had no

evidence of such insolvency, much less the clear and convincing evidence he would need to establish

the need for the appointment of a receiver over Acacia. Throughout the course of proceedings in this

case (and in the years prior), Acacia stood as a social club that was neither insolvent nor in imminent

danger of insolvency.

Carr's selfish motive for turning to the courts to seek a receivership was prevent Acacia's board

of directors from exercising their sound business judgment in the operation of the club. He sought

,personal gain only by forcing a quick sale of Acacia to property aeveiopers with whom he haa a

consulting relationship. Self-interest and simple disagreements with the governance of the country

club was not a sufficient basis for the appointment of a receiver. But that did not trouble or deter

Carr. By seeking such extraordinary relief without the requisite evidentiary support, Carr - an

IAlthough the Carrs and the Carr Law Firm have entered appearances here, on August 28, 2009,the trial court disqualified Leonard F. Carr, Bryan Carr, and the Carr Law Firm as counsel in this case.The disqualification in the case at bar was premised on the fact that the Carrs previously representedAcacia in a substantially related matter and had been disqualified from acting as counsel in the relatedCarr v. Acacia litigation in Cuyahoga County Court of Common Pleas Case Number CV-07-635329.See, Carr v. Acacia Country Club Co., 8' Dist. No. 91292, 2009-Ohio-628.

attorney - ran the risk of incurring the costs and fees of any receivership because such appointment

was without merit. And yet Acacia has now spent close to four years incurring the expense and

distraction brought on by having to fight in court and ultimately prevail against Carr in his quest to

wreak havoc and financial ruin on the club and its members.

In the end, the trial court correctly determined that Carr, and not Acacia, should bear the

responsibility for the fees of the court-appointed receiver and the receiver's attorneysz because it is

inherently unfair and unjust to require Acacia to not just have to bear the expense of fighting against

the appointment of a receiver but to also then compensate the wrongfully-appointed receiver when

OO that appointment was made without due process, OO the court lacked jurisdiction to appoint the

receiver, ® Acacia vigorously opposed the appointment, ® Carr strenuously sought to uphold the

appointment made without a hearing, and O the receiver's services were unnecessary and provided

no benefit to Acacia or its members.

On appeal, the Eighth Appellate District correctly upheld the decision of the lower court, stating:

This was not a case where Carr passively acquiesced to the receiver's appointment.Rather, he sought the appointment directly, and he aggressively defended theappointment. Even when the court vacated the original appointment, Carr

.immediately sought for another receiver to be appointed. T he one constant in i

,nisaction was Carr's insistence on the need for a receiver. *** When afforded theopportunity to demonstrate that Acacia was indeed in need of a receiver, Carr failedto adequately demonstrate the need. It was only when the allowance for thereceiver's compensation became the issue that Carr complained of procedural

failures by the trial court.

Carr v. Acacia, 8thDist. No. 97989, 2012-Ohio-4723, ¶¶18-20 (emphasis added) ("App. Op."). The

appellate courtheld correctly, "[w] e find that where the party seeking a receiver causes or acquiesces

2Michael E. Murman and his counsel, Edward G. Kagels, M. Colette Gibbons and Schottenstein,Zox and Dunn Co. L.P.A., n/k/a Ice Miller LLP are referred to collectively as "the Receiver" unless thecontext requires that they be i_dentified individually.

2

in the receiver's appointment and the appointment results in expenses being incurred, that party may

be held accountable for the receiver's compensation even where irregularities in the appointment are

later found or the receiver's appointment is later vacated." App. Op., ¶21.

The Eighth District's urging the legislature to clarify R.C. 2735.01 does not establish support for

this Court's review of this case. App. Op., ¶37. As this Court recently stated, "The Ohio

Constitution vests the General Assembly, not the courts, with the legislative powers of government.

Our role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply

the law enacted by the General Assembly, not to rewrite it." Houdek v. ThyssenKrupp Materials,

Slip Opinion No. 2012-Ohio-5685, ¶29.

The opinion in this decision does not create a chilling effect on those who legitimately seek the

appointment of a receiver. It is the unique facts of this case which warrant the decision to find Carr

solely liable for the compensation of the Receiver. However, that will not always be the case, not

even in the Eighth Appellate District. For example, in Dyczkiewycz v. Tremont Ridge Phase ILtd.

Partnership, 8"' Dist. No. 97909, 2012-Ohio-5173 (a case decided one month after Carr), the Eighth

Appellate District stated that the fact that a party requests a receiver does not amount to special

circumstances so as to render that party solely liable for the receiver's fees. See id., ¶42.

Dyczkiewycz reversed the trial court's decision which ordered the plaintiff solely responsible for the

payment of the receiver's compensation. As is evident from the Dyczkiewycz decision, Carr neither

creates confusion nor serves as unbridled precedent establishing that one who seeks a receiver will

always incur sole liability for the receiver's compensation. The proposed public policy concerns

raised by Carr simply do not exist.

The Ohio Constitution, Article IV, Section 2(B)(2)(e), dictates that this Court's discretionary

3

jurisdiction is reserved for "cases of public or great general interest," not cases where the outcome

is primarily of interest to the parties in a particular piece of litigation. Williamson v. Rubich, 171

Ohio St. 253, 254, 168 N.E.2d 876 (1960). This appeal falls squarely into the latter category.

Appellant's proposition of law - if it can even be called that - should be rej ected because it does not

set forth a general proclamation of Ohio law, but instead seeks to correct a perceived error relative

to this case only.

II. STATEMENT OF THE CASE AND FACTS

A. History of this Action and Background Information

In 2003, Acacia began experiencing a decline in membership. To attract new members, Acacia

chose to invest in the construction of a new clubhouse. To finance the new clubhouse, Acacia sold

a portion of its property. This case stems from Acacia's sale of that undeveloped, unused parcel of

its property to intervenor, Acacia Development Company, LLC ("ADC") in August 2005. As a

result of the sale, Carr went on a litigation spree. He filed a series of lawsuits against Acacia, its

board of directors, and others. One such case was a shareholder derivative action filed by Carr

against Acacia and selected individual board members ("prior Board"). Leonard F. Carr vs. Acacia

Country Club Co., et al., Cuyahoga County Court of Common Pleas, Case No. CV-07-635329 ("the

`07 Case")3. All of Carr's claims in the `07 Case were premised on his allegations that the prior

Board failed to obtain proper shareholder authority before: (1) conveying 17.9 acres of Acacia's

property to ADC when the shareholders had only approved the transfer of approximately 16 acres;

3 The case sub judice and the `07 case were the subject of another appellate opinion in Carr v.Acacia Country Club Co., 8`hDist. Nos. 96731 and 96732, 2012-Ohio-1940, which upheld the trialcourt's orders granting sununary judgment in favor of Acacia on claims made by ADC arising out of the2005 sale of Acacia's property to ADC.

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(2) granting a scenic easement to ADC; and (3) approving a sale that netted Acacia less than

$4,000,000.00. These same allegations were also made in this case.

B. The Vote on Disputed Resolutions Which Carr Opposed and Sought to Block Due toHis Personal Financial Interest in Controlling the Sale of Acacia's Assets.

During a litigation lull in the `07 case, a new Board was elected. The new Board surveyed the

membership regarding Acacia's future. This non-binding survey's results demonstrated an interest

in exploring the dissolution of the club and sale of its property.

The Board hired professional real estate consultants, Grubb & Ellis, who expressed concerns that

Carr's `07 Case would adversely impact the marketing of Acacia's real estate. At the same time, the

real estate market went into a significant decline. To address these concerns and the changing

marketplace, the Board proposed two resolutions for shareholder consideration. The first was

designed to expeditiously terminate Carr's `07 Case, while the second was a response to the

changing market conditions and understanding that it might be a period of time before the real estate

market recovered.

The first resolution called for the shareholders to ratify the prior Board's August 2005 sale of the

unused portion of Acacia's property to ADC. 'I'he second resolution sought permission to procure

a line of credit to provide monetary relief to the shareholders during the period that Acacia was being

marketed until a sale was consummated or while other possibilities for the Club's future were being

explored on the advice of real estate experts.

Carr understood that the ratification resolution would undercut any validity to his `07 Case. He

understood that if such a resolution was to pass by a significant portion of the existing shareholders,

it would demonstrate the he did not represent the interests of similarly-situated shareholders and the

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derivative suit would fail as he could not meet the requirements of Civ. R. 23.1.

Further, Carr had his own personal, financial interest in a quick sale of Acacia's assets which

would be thwarted by the Board taking the advice of the real estate experts to hold off on selling the

property in the down-market. Carr had been engaged as a consultant for a development entity that

expressed an interest in purchasing Acacia and Carr had been promised a consulting fee of

$100,000.00 if the sale to this entity took place. It was Carr's own desire to see the assets of the

Acacia sold that precipitated the ensuing round of new litigation. To prevent the resolutions from

passing and to effectuate a quick sale of Acacia, Carr filed this action to prevent a vote on the two

resolutions and have a receiver appointed over Acacia.

C. The Proceedings Below

On January 21, 2009, Carr filed a new complaint against Acacia and the individual members of

its Board of Directors4 requesting in Count One of his complaint that the trial court "appoint a

receiver" over Acacia. Carr sought the receivership under R.C. 2735.01 which permits the

prejudgment appointment of a receiver. See, App. Op., ¶3. Carr "was not acting on behalf of Acacia

members, but solely was addressing issues that impacted him personally." App. Op., ¶17.

On January 26, 2009, Carr filed a pleading entitled "ex parte motion for temporary restraining

order" requesting the trial court to enjoin Acacia from voting on, considering or approving various

issues at a shareholder's meeting scheduled for January 28, 2009. An "Attorney Conference" was

immediately set by the trial court for that afternoon. At 4:00 p.m., Acacia's counsel was informed

by the then-assigned judge, Judge Nancy Margaret Russo, that the trial court intended to decide

4The individual Board of Directors are not parties to this appeal. Carr's claims against themwere voluntarily dismissed.

6

Carr's motion for temporary restraining orderrelative to an upcoming shareholder meeting scheduled

for January 28, 2009. After discussing the motion for temporary restraining order with Carr and

counsel for Acacia, the trial court retired to chambers to prepare the order relating to the temporary

restraining order. Shortly thereafter, the trial judge returned with an order stating, in pertinent part:

"Motion to appoint receiver is granted; Attorney Michael Murman is appointed receiver." App. Op.,

¶4. The trial court also issued an order stating the powers of the Receiver. Id. Among the

Receiver's powers was the authority to sell Acacia without shareholder approval.

Acacia filed an emergency motion to stay and vacate the January 27, 2009 order appointing

receiver. App. Op., ¶5. Several bases for Acacia's request to vacate the receivership existed,

including, that no motion to appoint a receiver had been made when the trial court issued its January

27, 2009, that appointment of a receiver was not warranted because Acacia was solvent and the

appointment of a receiver would cause Acacia irreparable harm, and that Acacia was not afforded

notice that the court would be deciding this issue and was not given the opportunity to be heard on

Carr's request for appointment of a receiver. See, id. Further, Acacia had not yet been served with

Carr's complaint, thus, the action had not "commenced" and the trial court lacked jurisdiction to

appoint the receiver. See, id.

Carr attempts to mislead this Court by stating that he was willing to sit back and wait for the

appointment of a receiver and that he did not encourage a hasty appointment of receiver over Acacia.

This representation is belied by the complaint for appointment of a receiver filed by Carr which is

peppered with language suggesting an immediate need for receivership, alleging the "exigent

distressed financial condition of Acacia" and that "Acacia is insolvent or in imminent danger of

insolvency." Further, Carr's complaint requests an order "to direct the receiver to take any and all

7

immediate action to mitigate shareholder cost and expenses ***and to carry out the liquidation and

dissolution of the corporation at the earliest reasonable time ***." As the Court of Appeals noted,

"[t]he one constant in this action was Carr's insistence on the need for a receiver." App. Op., ¶18.

Carr also filed a brief in opposition to Acacia's motion to vacate the receiver. In that brief, Carr

vigorously sought to uphold the receivership and maintained that the appointment of a receiver

without a hearing was appropriate. Specifically, in seeking to uphold the appointment of the receiver

Carr stated emphatically and without equivocation:

"Plaintiffs' Complaint for Appointment of a Receiver sets forth numerous facts which supporthis claims and which demonstrate that a Receiver is necessary and essential to safeguard andprotect Acacia's assets from further degradation ***. Significantly, and to reassure this Courtthat her appointment of the Receiver was well founded, Plaintiff contends the allegationscontained in his Complaint are accurate and irrefutable."

• "The Appointment of a Receiver Without a Hearing Was Appropriate and Well Within [TheTrial] Court's Discretion."

"Defendants fail to realize that [the trial] court has wide discretion to appoint a Receiver and an

evidentiary hearing is not required."

(Emphasis in original.) The arguments that were made by Carr below undermine his position more

recently on appeal that he was "surprised" by the appointment of a receiver without a hearing.

Acacia appealed the trial court's order appointing a receiver, and each subsequent order related

thereto. On March 19, 2009, the case was transferred to the commercial docket and assigned to

Judge John O'Donnell.5 On March 24, 2009, the trial court, on its own motion, vacated the January

SThe facts and circumstances of the transfer of the case to the court's commercial docket werethe subject of another appeal to this Court wherein Carr unsuccessfully sought the issuance of writs ofmandamus and prohibition, hoping to return the case to the docket of Judge Russo. See, State ex rel.

Carr v. McDonnell, 124 Ohio St.3d 62, 2009-Ohio-6165, 918 N.E.2d 1004.

8

27, 2009 entry appointing the receiver.6 App. Op., ¶7.

But Carr wouldn't relent. On March 27, 2009, Carr filed a motion for appointment of a receiver,

which incorporated his previously filed brief in opposition to Acacia's motion to vacate the

appointment of receiver by reference. App. Op., ¶7. By incorporating his prior brief, Carr again

strenuously argued that the court did not err in appointing a receiver without an evidentiary hearing.

Carr's motion for receiver filed on March 27, 2009 does not request such a hearing. The evidence

before the trial court when it vacated the appointment of the Receiver established that nearly a year

after Carr commenced this action, and in spite of the on-going litigation and the temporary

appointment of the receiver, Acacia remained a solvent, viable entity.

The Receiver then filed motions for the award of attorney's fees for the Receiver and his counsel.

Acacia filed a brief in opposition to the motions, but Carr did not, even though Acacia argued in its

brief in opposition that if such fees were warranted, Carr was solely responsible for the requested

fees. App. Op., ¶9. The Receiver filed a second motion for the award of attorney's fees for his

counsel. Again, Acacia filed an opposition brief, but as with the first, Carr filed no objection. Carr

then voluntarily dismissed all of his claims. App. Op., ¶9.

A hearing on Carr's motion to appoint a receiver was set. Despite the fact that his motion to

appoint a receiver had been pending for 180 days, Carr sought and received a continuance of the date

of the evidentiary hearing over Acacia's objection. The trial court denied a subsequent request from

Carr finding that the need for such a hearing would be determined by the court's decision on the

6Due to Acacia's pending appeals from the order appointing the Receiver and the related orders,the trial court determined that it might have acted prematurely and inconsistent with the appellate court'sjurisdiction in vacating the January 27, 2009 appointment of a receiver on March 24, 2009. As such,over Carr's objection, on June 8, 2009, upon limited remand, the trial court vacated the order appointingthe Receiver and the orders regarding the powers of the Receiver. App. Op., ¶8.

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pending dispositive motions. On March 23, 2010, Carr voluntarily dismissed his claims. Summary

judgment was granted in Acacia's favor on ADC's claim. App. Op., ¶10.

The only issue that remained pending was the Receiver's compensation. The trial court issued

an order that held Carr solely responsible for the Receiver's compensation. An appeal from that

ruling was dismissed for a lack of a final appealable order because the original order did not specify

an amount. Thereafter, the trial court found Carr responsible for the expense of the receivership in

the following amounts: a total of $8,147.05 to the Receiver; $10,125.00 to Edward G. Kagels, Esq.;

and $12,951.45 to Ice Miller LLP. The total allowance was $31,223.50. App. Op., ¶11.

Carr asserted on appeal that the trial court erred in finding him responsible for the compensation

of the Receiver and his counsel, that the Receiver was not entitled to compensation due to his failure

to take or file an oath, and that the amounts awarded to the Receiver and his counsel were excessive.

Each assignment of error was found to be without merit, and the trial court's decision was affirmed

by the Eight District Court of Appeals. App. Op., ¶¶12, 22, 23, 27, 28, 36. The appellate court also

denied Carr's motion to certify conflicts.

III. ARGUMENT OPPOSING APPELLANT'S PROPOSITION OF LAW

Counter Proposition of Law No. 1: A trial court does not abuse its discretion byordering the party at whose instance a receiver was appointed to pay the reasonablecosts and expenses incurred by the receiver and his counsel when the appointment ofthe receiver is found ultimately to have been improper or invalid and that party hasfrustrated and delayed the presentation of evidence of the alleged grounds, for areceivership pursuant to R.C. 2735.01 when given the opportunity to do so at a hearingdespite having made numerous assurances in filings with the court to havingsupporting evidence.

A. The Eighth District's Decision Does Not Contradict Precedent from The SupremeCourt of Ohio or Create a Conflict of Law With Any Other Appellate District inOhio Regarding the Compensation of a Receiver.

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In Richey v. Brett, 112 Ohio St. 582, 148 N.E. 92 (1925), this Court held in the syllabus that

Parties who invoke the jurisdiction and process of a court for the appointment of a

receiver by sufficient allegations and showing of necessity therefor, resulting in such

appointment, do not become personally liable for the compensation of the receiver andthe expenses of administration of an insolvent concern, in the absence of special

circumstances calling for the application of equitable principles creating such liability.

Such debts and expenses are ordinarily payable out of the corpus of the property.

(Emphasis added)

Richey also states that: "Cases are found among the authorities holding that, where the corpus

is not available, and there has been an irregular or unauthorized appointment of a receiver, or where

a party has received benefits from the receivership in excess of the amount required to be paid, or

where an action has unjustly been maintained without right, in all such instances the plaintiffs in the

action may be held personally responsible for deficiencies." Id. at 587 (emphasis added).

The holding ofRichey does not require that the corpus of the property over which a receiver has

been appointed must be depleted in all cases, it simply states that this is ordinarily the case. But, if

the party who invokes the appointment of the receiver cannot establish the necessity for such an

extraordinary appointment or if special circumstances call for the application of equitable principles,

it may become the responsibility of the party who invokes the appointment of the receivership to pay

for the receiver's compensation. See, Richey. Such special circumstances exist here.

Carr sought a receivership over Acacia, a solvent entity, for personal gain and in a wrongful

attempt to usurp the authority of the Board. He could not show a necessity for the receivership. As

the appellate court stated, "When afforded the opportunity to demonstrate that Acacia was indeed

in need of a receiver, Carr failed to adequately demonstrate the need. App. Op., ¶¶18-20. Further,

there were irregularities in the appointment of the receiver which resulted in expenses being incurred

by the Receiver. These reasons show why the Eighth District upheld the trial court's proper

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application of equitable principles, as permitted in Richey, to determine that Carr is solely

responsible for the Receiver's fees.

The appellate court's order does not conflict with Security Dollar Bank v. Yamaha, 11th Dist.

No. 98-T-0059, 1999 Ohio App. Lexis 2945 (Jun. 25,1999). First, Yahmaha is distinguishable

because in that case the court found that there were no special circumstances because the request for

receivership was proper. Second, Yamaha relies on the dicta ofRichey, not this Court's syllabus,

which, as noted above, does not require depletion of the corpus before holding the party that sought

the receivership accountable for the expenses relating thereto.

Joscow v. Cabaret, Inc., 10th Dist. No. 82AP-567, 1982 Ohio App. Lexis 15445 (1982), which

merely states that "receivership fees generally are paid from receivership property," is also

distinguishable for the reason that the receiver was appointed by agreement of all parties who jointly

sought dissolution of the corporation at issue.

State of Ohio, Dept. of Taxation v. Tokmenko, 112 Ohio App. 42, 165 N.E.2d 804 (8th Dist.

1960) is inapposite. In Tokmenko, the Eighth District reviewed whether the trial court erred in taxing

a receiver's costs to the State of Ohio. In that case, the receiver had been properly appointed after

a notice and hearing. See, id. at 42. Further, the trial court determined that no funds were available

from the debtor's estate for payment of the receiver's compensation. However, evidence established

that the debtor did have such assets available, and Tomenko ruled that the lower court erred in taxing

all of the expenses of receivership on the party who had sought the appointment. Unlike here, there

were no special circumstances in Tomenko suggesting that the receiver was wrongfully appointed

or that the court lacked jurisdiction to appoint the receiver.

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B. The Appellate Court Correctly Determined that Carr Waived his ArgumentRegarding the Alleged Lack of Receiver's Oath.

As the Eighth District noted in its opinion:

[T]he mere fact that a receiver renders services without first having taken an oath orexecuted a bond does not necessarily preclude a court from awarding adequatecompensation to the receiver. The record herein reflects that Carr failed to raise atimely objection to the qualification of the receiver. In fact, Carr acquiesced in thereceiver's appointment and recognized the authority of the receiver by not asking forhis discharge. Thus, any irregularities in the qualification of the receiver wereeffectively waived by Carr. Accordingly, we find the trial court acted within itsdiscretion in awarding compensation to the receiver and his counsel for servicesrendered.

App. Op., ¶27.

The procedural differences between Metro. Sav. Bank v. Papadelis, 9th Dist. No. 23 80-M, 1995

Ohio App. LEXIS 4038 (Sept. 13, 1995), and this case establish why no conflict exists. In

Papadelis, the party opposing the receiver did not waive its objection to the appointment of the

receiver. Instead, the obj ecting party filed an immediate appeal from the appointment of the receiver.

Carr's failure to obj ect to the appointment and actions taken by the Receiver during the trial court

proceedings also establish why there is no conflict between this case and Zeigler v. Trio Realty

Group, 5t" Dist. No. 2011 CA00008, 2001-Ohio-5515. In Geigler, the receiver, who aia not fiie ihe

requisite oath prior to taking on his duties as receiver, offered property for sale and signed a purchase

agreement with a buyer. When the receiver sought the trial court's approval of the sale, the property

owner sought to terminate the receiver and declare the sale null and void, but the trial court denied

the property owner's motion. The decision was reversed on appeal, and the appellate court declared

the sale null and void, but did not terminate the receivership.

The clear difference between this case and the foregoing cases is that the parties opposed the

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appointment of the receiver and the actions of the receiver - - not merely the compensation for the

actions taken by the receiver. Here, as the Eighth District aptly stated:

This was not a case where Carr passively acquiesced to the receiver's appointment.Rather, he sought the appointment directly, and he aggressively defended theappointment. Even when the court vacated the original appointment, Carrimmediately sought for another receiver to be appointed. The one constant in thisaction was Carr's insistence on the need for a receiver. *** When afforded theopportunity to demonstrate that Acacia was indeed in need of a receiver, Carr failedto adequately demonstrate the need. It was only when the allowance for thereceiver's compensation became the issue that Carr complained of procedural

failures by the trial court.

App. Op., ¶118-20 (emphasis added.)

C. There is No Conflict with Nat't City Bank v. Semco, Inc., Nozik v. Mentor Lagoons,

Inc., Liberty Folder Co. v. Anderson, or Postle v. Wolfram Guitar Co. Regarding aReceiver's Ability to Be Paid for Efforts Defending the Receivership.

Contrary to Carr's assertion, the appellate court's opinion here does not contradict Nat'l City

Bankv. Semco, Inc., 183 Ohio App.3d 229, 2009-Ohio-3319, 916 N.E.2d 857 (3rd Dist.). The Court

in fact relied upon the standard of review for receiver's compensation set forth in Semco. See, App.

Op., ¶¶14, 29. By citing to Semco, the Eighth District implicitly also relied upon Nozik v. Mentor

Lagoons, Inc., l lth Dist. No. 97-L-004, 1998 Ohio App. LEXIS 3013 (July 2, 1998). Semco cites

Nozik for the position that determining the amount and measure of compensation for a receiver is

left to the sound discretion of the trial court. See, Semco, Inc., ¶8.

Carr's arguments that the appellate court's decision conflicts with Liberty Folder Co. v.

Anderson, 55 Ohio Law Abs. 268 (1949) is undermined by the fact that the Eighth District relied

upon Liberty Folder in its analysis and determined that the facts here met the criteria needed to

award compensation to the Receiver and his counsel. App. Op., ¶34. Similarly, although the

appellate court did not cite to Postle v. Wolfram Guitar Co., 13 Ohio Dec. 228, 229 (C.P. 1902), it

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set forth the legal position of Postle, which is that receivers are entitled to compensation as is

reasonable in view of the interest involved, the amount of skill necessary to conduct the business,

and the time and labor given to the business. App. Op., ¶29. While Carr may not agree with the

appellate court's application of these legal principles, such disagreement fails to establish a conflict

of law with the cases cited in Carr's jurisdictional memorandum.

In sum, Carr's proposition of law is particular to the case at hand and will not serve as guidance

to the courts in the State of Ohio or to litigants in other matters. For these reasons, this Court should

decline review of this proposition of law.

IV. CONCLUSION

The Eighth Appellate District's decision does not alter the proper development of the law

relating to receivers and their compensation. Nothing needs to be clarified, modified, or changed

in regard to existing Ohio law. While Carr may complain about the application of settled law to the

particular facts of this case, addressing such concerns is not grounds for this Court to exercise

discretionary jurisdiction over an appeal. See, Baughman v. State Farm Mutual Automobile

Insurance Company, 88 Ohio St. 3d 480, 492, 2000-Ohio-397, 727 N.E.2d 1265 (Cook, J.,

concurring).

Wherefore, Defendant-Appellee Acacia Country Club Company respectfully requests and moves

this Court to decline jurisdiction over this appeal.

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Respectfully submitted,

Timothy geral 42734)Colleen A. Mountcastle (0069588)GALLAGHERSHARPSixth Floor - Bulkley Building1501 Euclid AvenueCleveland, Ohio 44115(216) 241-5310 (Telephone)(216) 241-1608 (Telefax)tfitzgerald@gallaghersharp.comcmountcastle@gallaghersharp.com

Attorneys for Defendant-AppelleeAcacia Country Club Company

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CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Opposition to Jurisdiction was served upon the

following via regular U.S. mail on this 18th day of December 2012:

Leonard F. CarrLeonard F. Carr Co., L.P.A.1392 SOM Center RoadMayfield Heights, OH 44124

Plaintiff-Appellant, Pro Se

L. Bryan CarrL. Bryan Carr Co., L.P.A.1392 SOM Center RoadMayfield Heights, OH 44124

- and -

Kenneth A. BossinLaw Office of Kenneth A. Bossin1392 SOM Center RoadMayfield Heights, OH 44124

Counsel for Plaintiff-AppellantLeonard F. Carr

M. Colette GibbonsICE MILLER LLPFifth Third Center600 Superior Avenue East, Suite 1701Cleveland, OH 44114

Counsel for Receiver, Michael E. Murman

Scott H. KahnMark F. KruseMcIntyre, Kahn & Kruse Co., L.P.A.The Galleria & Towers at Erieview1301 East Ninth Street, Suite 2200Cleveland, OH 44114-1824

Counsel for Defendant Appellee, Joseph T.Aveni and Acacia Development Co., Ltd.

.--

T Irnot'nyti^siizgeraixr^v +27^4)

Colleen A. Mountcastle (0069588)Attorneys for Defendant Appellee

Acacia Country Club Company

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