1N THE SUPREME COURT OF OHIO

JILL CANNATA, et al.,

Appellants

v.

SNIDER INTERESTS LLC, et al.,

Appellees.

SUPREME COURT CASE NO. 2013-0806

Appeal from Eighth District Court of Appeals Case No. 13 CA 99468

Trial Court - Cuyahoga County, Ohio Court of Common PleasCase Nos. 12 CV 785850 and 12 CV 786574, Consolidated Cases

MEMORANDUM OF APPELLEES SNIDER INTERESTS, LLC, ROBIN SNIDER,DAVID SNIDER AND DAVID BROWNING, IN HIS CAPACITY AS COURT-

APPOINTED RECEIVER, OPPOSING JURISDICTION

Attorney for Snider-Appellees

ROBERT T. GLICKMAN (0059579)rtg@mccarthylebit.comKIMBERLY A. BRENNAN (0061625)kab@mccarthylebit.com

(216)696-1210 (facsirnile)

Attorney for A.ppel lee-Receiver

McCarthy, Lebit, Crystal& Liffman Co., LPA101 West Prospect Avenue1800 Midland BuildingCleveland, Ohio 44115(216) 696-1422

KENNETH R. CALLAHAN (0032704),buckleyking. comc allahanp

Buckley King LPA1400 Fifth Third Center600 Superior Avenue, EastCleveland, Ohio 44114(216) 363-1400(216) 579-1020 (facsinfile)

.. , . ... . . .. . . . . . _ . ill i :,,(

Statement of Why This Case Does Not Involve Substantial ConstitutionalIssues And Is Not a Case of Great Public Interest

This appeal does not involve substantial constitutional issues and is not a case of

great public interest. Cannata Vista Way LLC, Jill Cannata, the Jill Cannata Trust,

Gerald Phillips, Cannata Phillips LPA LLC, and Phillips and Co., LPA. (collectively,

"Appellants") are appealing from an order dismissing them from an appeal they filed

with the Eighth District Court of Appeals (the "Eighth District"), bearing Court of

Appeals Case No. 13 CA 99468 (tlie "District Appeal").' The District Appeal is still

pending. Notwithstanding Appellants' dismissal, other appellants have not been

dismissed and are continuing to prosecute the District Appeal. The order dismissing

Appellants did not adjudicate the merits of the District Appeal or otherwise conclude the

District Appeal, and was not final.

Second, even assuming (for purposes of argument) that Appellants' dismissal did

create a final appealable judgnlent, the grounds upon which the Court of Appeals

dismissed them - Appellants' lack of standing - applies in their appeal to this ourt as

well. Appellants were ordered dismissed from an appeal that was (and still is) pending in

the Court of Appeals. That appeal relates to a Sale Order in which the trial court

authorized David M. Browning, the receiver in the underlying trial court action (the

"Receiver"), to sell the BCS Property that is part of the receivership estate. Appellants

claim to have numerous interests in the BCS Property. But when they objected to the

Receiver's motion for approval to sell the BCS Property, Appellants failed to raise any of

' The District Appeal is an appeal of a Cuyahoga Common Pleas Court's December 27,2012, order (the "Sale ®rder") permitting the Receiver to sell certain property (the "BCSProperty") owned by an entity, Bridgeview Center South, for which he was appointed as

receiver.

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those interests before the trial court. In the trial court, Appellants never claimed an

interest in the BCS Property and never sought to intervene in the ttnderlying trial court

action. They therefore are not parties and are not "aggrieved." Appellants lack standing

to appeal before this court.

Finally, among the other legal issues presented below, the Eighth District's merits

panel is considering whether the District Appeal is moot. Accordingly, this court should

not review this matter until the Eiglith District has had an opportunity to consider and

decide that question.

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A12pellees' Statement of Positions Regardin2 Appellants' Six Propositions of Law

Appellants presented six propositions of law to this court for consideration. All of

those propositions refer generally to "due process." For several reasons, Appellants'

propositions of law are premature and are not proper for review at this time: (1) the

Eighth District's order dismissing them as appellants is not a final judgment decidiilg the

merits of the appeal or otherwise disposing of the appeal; (2) Appellants do not have

standing because they are not parties to the underlying litigation and they failed to assert

any interest in the BCS Property before the trial court; and (3) the District Appeal is

moot. For these reasons, this court should refrain from accepting jurisdiction.

Position 1: Appellants' Dismissal Is Not a Final Appealable Judgment

This court does not have jurisdiction to accept this appeal because the Eiglzth

District's dismissal of Appellants was not a final appealable judgment. For this court to

have jurisdiction, it is necessary that the order appealed from be final. "An appellate

court can review only final orders, and without a final order, an appellate court lacks

jurisdiction." Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, Slip

Op. No. 2013-Ohio-2410, ¶l.0 (citing Hubbell v. Xenia, 2007-Ohio-4839, ¶9).

The Rules of Practice of the Supreme Court of Ohio provide further guidance

regarding how and when a court of appeal's judgment is reviewable:

To perfect an appeal from a court of appeals to the Supreme Court, otherthan in a certified conflict case, ... the appellant shall file a notice ofappeal in the Supreme court within forty-five days from the entry of thejudgment being appealed. The date the court of appeals filed its judginententry for journalization with its clerk, in accordance with App. R. 22, shallbe considered the date of entry of the judgment being appealed.

S.Ct. Prac. R. 2.2(A)(1)(a) ( emphasis added). Appellate Rule 22, in turn, states that

"[aJlljudginents shall be in final forni of a judgment signed by a judge or judges of the

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court which shall be prepared by the court and filed with the clerk for jourraalization."

App. R. 22 (emphasis added). Here, the "Journal Entry" that Appellants request this

court to review is not a "judgment." Appellants are appealing an order dismissing sonae

appellants from the District Appeal because they lack standing. The Eighth District's

Journal Entry provides that the "Motion by Receiver to strike and dismiss that portion of

the notices of appeal filed on behalf of persons who lack standing to appeal is granted as

to [Appellants]." But other appellants were not dismissed and those other appellants are

continuing to prosecute the District Appeal. In other words, the District Appeal is still

pending. Merits briefs on the (as yet undecided) substantive issues have been filed. The

Eighth District has yet to conduct oral argument. It also has not yet decided the

substantive issues in the District Appeal. By appealing an order that does not determine

the merits of the District Appeal or preclude further relief in the District Appeal,

Appellants have "jumped the gun."

Other law identifying when a "final order" exists further illustrates that the Eighth

District's Journal Entry should not be reviewed at this time. For example, R.C. 2505.02

defines when orders of a trial court or a court of appeals sitting in a matter of original

jurisdiction are "final." According to R.C. 2505.02, an order is considered CnaI when it

"affects a substantial right in an action that in effect determines the action and prevents a

judgment." R.C. 2505.02(B)(l), See also State ex r•el. Boddie v. Franklin Cty. 911

Adnir., 2013-Ohio-401 (applying R.C. 2505.02(B)(l)). Alternatively, an order is final if

it:

... grants or denies a provisional remedy and to which both of thefollowing apply:

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(a) The order in effect determines the action with respect to theprovisional remedy and prevents a judgment in the action in favor ofthe appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or effectiveremedy by an appeal following final judgment as to all proceedings,issues, claims, and parties in the action.

R.C. 2505.02(B)(4). The common denominators between these provisions of R.C.

2505.02 are that the order must determine the action and must prevent further remedy or

relief. R.C. 2505.02(B)(1) (order "affects a substantial right in an action that in effect

determines the action and prevents a judgment."). Likewise, under R.C. 2505.02(B)(4)

"the reviewing court must still determine whether that order effectively determines the

action with respect to the provisional remedy and prevents a judgment in favor of the

appealing party with respect to the provisional remedy." See State v. Muncie (2001), 91

Ohio St.3d 440, 450. Here, these "common denominators" are absent. The Eighth

District's Journal Entry did not decide the merits of the District Appeal, which remains

pending, and the Journal Entry does not prevent a judgment or a remedy, both of which

are still available to the remaining appellants.

Beyond the principles of R.C. 2505.02, historical case law also illustrates wlly the

Eighth District's Journal Entry is not final. In order to be a final order under common

law, the order had to:

(1) Definitely state the instnictions to the trial court;

(2) Clearly recite the reason therefor;

(3) Include all required actions; and

(4) Remand or othenvise conclude the pending appeal.

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See Lesh v. Lesh (1941), 138 Ohio St. 492. The Eighth District's Journal Entry

dismissing the Appellants does not satisfy any of these four criteria for a "final

appealable order," let alone all of them. First, the "Journal Entry" dismissing Appellants

does not state any instructions for the trial court. Second, because there are no

instnictions, there is no recitation of the reasons for those instructions. Third, the

"Journal Entry" does not include any required actions. Finally, the "Journal Entry" does

not remand or otherwise conclude the pending appeal. The District Appeal is continuing.

The Eighth District has yet to enter a final judgment deciding or disposing of it. Thus,

under Lesh no "final order" exists for this court to review. Unti.l and unless the Eighth

District issues a judgment on the merits and that judgment is rendered in final form, this

court should refrain from accepting jurisdiction.

Position 2: Appellants Lack Standing to Appeal From the Sale Order

Appellants do not have standing to appeal the Eighth District's "Journ.al Entry"

dismissing them as appellants because they were not parties to the underlying

consolidated cases in the trial court and their rights will not be affected by the Eighth

District's order dismissing thern. "Appeal lies only on behalf of a party aggrieved by the

final order appealed from." Midwest Fireworks Mfg. Co, v. Deer•field Twp. Bd. of Zoning

Appeals (2001), 91 Ohio St.3d 174, 177 (quoting Ohio Contract Carriers Assn., Inc, v.

Pub. Util. Cornrn. (1942), 140 Ohio St. 160). A party is only aggrieved if its risk is

"immediate and pecuniary, and not a remote consequence of the judgment." Id. (quoting

Ohio Contract at 161). The burden to prove standing falls on the party seeking an appeal

- here, Appellants. See Deutsche Bank Trust Co. v. Barksdale Williams (Eighth Dist.

2007), 171 Ohio App.3d 230, T12 (citing Jenkins v. Gallipolis (1998), 128 Ohio App.3d

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376, 381). To carry that burden, the party seeking the appeal "must be `able to

demonstrate a present interest in the subject matter of the litigation which has been

prejudiced' by the judgment appealed from." Midwest, 91 Ohio St.3d at 177 (quoting

Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 26). The appealing

party must be able to show that it is both aggrieved and that it has a substantial right that

will be affected by the order in question. See Ohio Contract, 140 Ohio St. at 162

(holding that the appealing party had no standing because its interest was limited and not

a current interest).

Appellants have not met, and cannot meet, their burden of establishing that they

have standing to appeal. Appellants were not named parties in the underlying

consolidated cases in the trial court. Further, Appellants never sought to intervene in

those cases and were not joined as parties under the Civil Rules. They thus are not

"parties aggrieved." These facts alone are sufficient to deny them standing before the

Eighth District or before this court.

Even though Appellants attempt to argue that they have standing by virtue of the

Receiver serving them with copies of the Sale Motion, that argument fails, too. Simply

being served with t11e Sale Motion does not transmute Appellants into holders of liens or

interests against the BCS Property wllere they held none before. If Appellants have any

liens or interests of record in the BCS Property, they should have asserted those liens or

interests before the trial court. They did not. In their objections to the proposed sale in

the trial court, Appellants never claimed or demonstrated to the trial court that they have

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any lien on or interest of record in the BCS Property.2 Absent proof of an interest in the

BCS Property that its proposed sale would have affected, Appellants are not aggrieved

and lack standing to appeal.

Position 3: This Court Should Not A.ccept Jurisdictioji Because the Sale Orderon Appeal in the Eigllth District Is Moot.

It is the duty of any court to:

... decide actual controversies by a judgment which can be carried intoeffect, and not give opinions upon moot questions of abstract propositions,or to declare principles or rules of law which cannot affect the matter atissue in the case before it. It necessarily follows that when ... an eventoccurs which renders it impossible for this court, if it should decide thecase in favor of the plaintiff, to grant him any effectual relief whatever, thecourt will not proceed to a fonnal judgment, but will dismiss the [case].

State ex rel. Coleynan v. Keough, 2009-Ohio-4723 (citing State ex rel. Eliza Jennings,

Inc. v. Noble (1990), 49 Ohio St.3d 71, 74). A case or controversy is lacking and an

action is moot "when the issues presented are no longer `live' or the parties lack a legally

cognizable interest in the outcome.'° Los Angeles County v. Davis (1979), 440 U.S. 625,

631 (quoting Powell v. MeCoranack (1969), 395 U.S. 486, 496).

'I'he Eighth District's "Journal Entry" disnaissing Appellants -- the order they are

appealing to this court - arises from their (still pending) appeal of the Sale Order in the

Eighth District. The Sale Order authorized the Receiver to sell the BCS Property as

provided in a certain Asset Purchase Agreement (the "APA") -- including the deadline

the APA imposed for consummating the proposed sale. According to the Sale Order,

"the [APA] is hereby approved and the [BCS] Property shall be sold upon the terms and

2 In the objections, Cannata Phillips LPA LLC refers to a lease at 9555 Vista Way Suite200, Garfield Heights, Ohio, that it claims was wrongfully terminated. See, e.g.,Pagination Record of 12 CV 785850 at 104-105. The 9555 Vista Way property is not thesubject of the Sale Motion. The Sale Motion relates only to the BCS Property.

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conditions outlined [in the APA]." Sale Order at 2. See also Sale Order at 3 ("The

Motion to Sell is hereby GRANTED and the Receiver shall sell the Property as outlined

in the [APA]"). One of the APA's "terms and conditions" was a deadline for completing

the sale. Specifically, the APA provided that "if the Closing [as defined in the APA]

does not occur on or before March 29, 2013, this Agreement shall be null and void and

neither party shall have any further rights or obligations hereunder." APA at § 8.1.

The Closing was not consummated on or before March 29, 2013. See Affidavit

of David M. Browning, Exhibit A to the Receiver's Motion to Dismiss or Remand (filed

in the District Appeal on May 1, 2013). Therefore, pursuant to its terms, the APA is null

and void. The Sale Order authorized the Receiver to sell the BCS Property in accordance

with the APA, but that APA no longer is effective. Consequently, the Receiver no longer

has the authority to sell the BCS Property under the APA. If the Receiver wishes to sell

the BCS Property, he would be required to file a new motion with the trial court and seek

a new order approving the sale. The APA is "dead."

The authority to sell that the Sale Order granted to the Receiver has lapsed,

because the APA is null and void. Accordingly, this court should refrain from accepting

jurisdiction because there is no live issue for this court to determine.

Conclusion

This court should refrain from accepting jurisdiction for three reasons. First,

Appellants' appeal of the "Joumal Entry" dismissing them as appellants for lack of

standing is premature. The order dismissing Appellants does not decide or dispose of the

appeal before the Eighth District. The Eighth District has yet to finally determ.ine the

District Appeal.

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Second, Appellants have no standing. Appellants were not parties to the trial

court litigation, never sought to intervene in that litigation, and failed to claim any

interest in the BCS Property in their objections to the trial court.

Third, the Eighth District is considering whether the District Appeal is moot.

This court should permit the Eighth District to decide that issue.

Accordingly, this court should refrain from accepting jurisdiction.

submitted,

Rob rt T. Glic an (0059579)rtg rncc`2r6 it.cornKi liberly A. Brennan (00f 1625)kab@mccarthylebit.comMcCARTHY, LEBIT, CRYSTAL& LIFFMAN CO., L.P.A.101 West Prospect Avenue18 00 Midland B ui IdingCleveland, Ohio 44115(216) 696-1422(216) 696-1210 (facsimile)

Attorneys for Appellees, Snider Interests,LLC, Robin Snider; and David Snider

and

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/s/Kenneth R. Callahan (per consent^Kenneth R. Callahan (0032704)call ahan,a7buckleyking. comBUCKLEY KING, LPA1400 Fifth Third Center600 Superior Avenue, EastCleveland, Ohio 44114(216) 363-1400(216) 579-1020 (Facsimile)

Attorneys for the Receiver,David M. Browning

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CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of June, 2013, true and correct copies of the

foregoing were deposited in the U.S. mail, first class postage prepaid, addressed to:

Kenneth R. Callahan. Gerald W. Phillips, Esq.1400 Fifth Third Center Phillips & Co., LPA600 Superior Ave. E. P.O. Box 269Cleveland, Ohio 44114 Avon Lake, Ohio 44012

BERLY A. NNAN (0061625)rneyt for Ap ellees Snider Interests,, Rob` Snid , and David Snider

1483267 3

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