H&R Properties, L.L.C. v. Fontain

2021 Ohio 516

• Court: Ohio Court of Appeals
• Decided: February 26, 2021
• Docket: C-190574, C-190575, C-190583, C-190584
• Status: Published

Opinion

[Cite as H&R Properties, L.L.C. v. Fontain, 2021-Ohio-516.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

H&R CINCY PROPERTIES, LLC, : APPEAL NOS. C-190574 C-190575 HARJINDER SANDHU, : C-190583 C-190584 NANCY ASHA, : TRIAL NO. A-1705644

HISHAM ASHA, :

and : O P I N I O N.

DINA TOWERS CONDOMINIUM : OWNERS ASSOCIATION AND ITS BOARD OF TRUSTEES, :

Plaintiffs-Appellees, :

vs. :

MARCUS FONTAIN, :

RAMONA FONTAIN, :

CINVESCO, LLC, :

CINVEXCO, LLC, :

and :

DINA TOWERS ASSOCIATION, :

Defendants-Appellants. : OHIO FIRST DISTRICT COURT OF APPEALS

Civil Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded in C-190574; Appeals Dismissed in C-190575, C-190583 and C-190584

Date of Judgment Entry on Appeal: February 26, 2021

Strauss Troy Co., L.P.A., and Brian J. O’Connell, for Plaintiffs-Appellees,

McCaslin, Imbus & McCaslin, L.P.A., Thomas J. Gruber and Michael P. Cussen, for Defendants-Appellants.

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CROUSE, Judge.

{¶1} The appeals before us stem from a dispute among condominium

owners in Dina Towers, a 30-unit condominium building located in Hamilton

County, Ohio. Collectively, plaintiffs H&R Cincy Properties, owned by Harjinder

Sandhu, and Nancy Asha and Hisham Asha own ten condominium units (“condos”)

and are members of the Dina Towers Condominium Owners Association (“DTCOA”).

Defendants Marcus Fontain, Romona (a.k.a. “Norma”) Fontain, Cinvesco, L.L.C.,

and Cinvexco, L.L.C., own the other 20 condos. In a complaint filed in October 2017,

plaintiffs alleged, inter alia, that defendants acted illegally to take control of the

DTCOA, replace its board of trustees, steal the funds in its operating and reserve

bank accounts, and obtain sole ownership of Dina Towers. According to the

complaint, defendant Dina Towers Association (“DTA”) was formed by defendants to

replace the DTCOA.

{¶2} Plaintiffs moved for the appointment of a receiver to take control of

the DTCOA and manage the property during the litigation. On August 10, 2018, the

trial court appointed Prodigy Properties as receiver. Shortly thereafter, on August

27, 2018, the parties entered into a settlement agreement. The parties agreed that

defendant DTA would distribute $2,000 to the receiver as a startup fee and $11,000

to cover the receiver’s monthly fees and the wind-down fee. They agreed that the

receivership would terminate on February 11, 2019. DTA was designated to pay the

court costs.

{¶3} On September 26, 2018, per the terms of the settlement, an “Agreed

Entry of Dismissal of Defendants Marcus Fontain, Norma Fontain, Cinvesco, L.L.C.,

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and Dina Towers Association Vacating Trial Date and Dismissal of Intervening

Declaratory Judgment” was entered by the trial court. The claims against Cinvexco,

L.L.C., remained pending. The agreed entry of dismissal stated, “Court costs to be

paid by the Defendants.”

{¶4} On January 10, 2019, plaintiffs filed a motion to extend the

receivership, alleging that defendant Marcus Fontain had frustrated the purpose and

objectives of the receivership. On February 7, 2019, the receiver also filed a motion

to extend the receivership. The trial court extended the receivership, eventually

terminating it on September 12, 2019, in its final judgment entry. In the entry, the

court assigned the costs of the receiver, including its attorney’s fees, to defendants,

including the defendants dismissed in the September 26, 2018 entry of dismissal.

The costs equaled $48,740.19 for the receiver and $30,438.45 for the receiver’s

attorney. Those amounts constituted the total fees incurred by the receivership for

the entire duration of the case; from the time the receiver was appointed in August

2018 until the receiver filed its application for fees on August 7, 2019.

{¶5} Defendants have appealed in the case numbered C-190574. In one

assignment of error, they argue that the trial court erred in requiring the dismissed

defendants to pay the costs of the receiver incurred after February 11, 2019.

{¶6} For the following reasons, we sustain defendants’ sole assignment of

error and hold that the dismissed defendants cannot be required to pay any

receivership fees incurred after February 11, 2019.

C-190575, C-190583, and C-190584

{¶7} As a preliminary matter, we must discuss the pro se appeals filed by

Nancy Asha, Bruce Elliott, and Isaac Fontain. Plaintiff Nancy Asha filed an appeal in

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the case numbered C-190575. Asha has not filed a brief or otherwise made an

appearance in this court. Accordingly, the appeal numbered C-190575 is dismissed.

See State v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 43 (1st Dist.) (“to receive

consideration on appeal, trial court errors must be raised by assignment of error and

must be argued and supported by legal authority and citation to the record”).

{¶8} Bruce Elliott and Isaac Fontain filed appeals in the cases numbered C-

190583 and C-190584, respectively. As nonparties, they do not have standing to

appeal the trial court’s final judgment entry. See Lopez v. Veitran, 1st Dist. Hamilton

No. C-110511, 2012-Ohio-1216, ¶ 10 (“[a] person not a party to the action has no right

of direct appeal from an adjudication. Merely appearing in a proceeding and

presenting an argument does not make a person a party to an action with a right to

appeal.”). Therefore, the appeals numbered C-190583 and C-190584 are dismissed.

C-190574

{¶9} In their sole assignment of error, defendants contend that the trial

court erred in requiring the dismissed defendants to pay the costs of the receiver

incurred after February 11, 2019. Defendants argue that the court lost jurisdiction

over the dismissed defendants once the entry of dismissal was placed of record.

{¶10} Plaintiffs contend that Marcus Fontain’s persistent harassment of the

receiver and obstruction of its duties caused the bulk of the receivership’s fees, and

therefore, it was proper for the trial court to hold him and the other dismissed

defendants responsible for the fees. A review of the record, specifically the invoices

of the receiver and its attorney, provide ample evidence of Fontain’s disruptive

conduct and the resulting effects on the management of the property. Nevertheless,

before we consider the propriety of the trial court’s decision, we must determine

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whether the trial court had jurisdiction to assign the receivership’s fees to the

dismissed defendants.

{¶11} “[I]n general, when a trial court unconditionally dismisses a case or a

case has been voluntarily dismissed under Civ.R. 41(A)(1), the trial court patently

and unambiguously lacks jurisdiction to proceed.” State ex rel. Hummel v. Sadler,

96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853, ¶ 22.

{¶12} The dismissal entry stated that, pursuant to Civ.R. 41(A)(2) and the

agreement of the parties, the plaintiffs’ claims against Marcus Fontain, Norma

Fontain, Cinvesco, and DTA were voluntarily dismissed with prejudice. The court

assigned court costs to the defendants. The entry stated that plaintiffs’ claims

against Cinvexco remained pending and that the receivership would remain in effect

until February 11, 2019, at which time the receiver would submit his final report and

the parties would submit a final entry to the court.

{¶13} After the entry of dismissal was filed on September 26, 2018, Marcus

Fontain became a dismissed party with no standing to challenge further court

decisions. At a January 17, 2019 hearing on the plaintiffs’ motion to extend the

receivership, the court would not allow Marcus Fontain to argue against the

extension of the receivership. The court told him, “I’ve reviewed the stuff that you

have filed, and I may entertain some of your argument. But right now, you’re not a

party. So you can’t really proceed, even pro se.”

{¶14} Plaintiffs argue that because court costs were assessed to defendants in

the settlement agreement and the agreed entry of dismissal, and R.C. 2735.04(C)

allows receivership fees to be taxed as court costs, it was proper for the trial court to

order the dismissed defendants to pay the receivership fees. See R.C. 2735.04(C)

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(“[a]ny funds that are expended by or on behalf of the receiver, including

receivership fees, fees for professionals assisting the receivership, * * * shall be taxed

as court costs or otherwise treated as an administrative expense of the action.”).

{¶15} The trial court agreed with that reasoning and in its September 12,

2019 final entry it found:

[T]he Agreed Entry of Dismissal and the parties’ Settlement Agreement

provide that either the Defendants collectively or the Dina Towers

Condominium Association shall pay the Court Costs, which this Court

finds to include all the Receiver’s costs and the Receiver’s attorney fees

accrued to date, most of which are the direct result of the acts or filings of

Defendant Marcus Fontaine [sic].

{¶16} The problem with this rationale is that it assumes that a dismissed

party can be required to indefinitely pay future court costs in a case in which it no

longer has an interest. Once a party has been dismissed from a lawsuit, the trial court

lacks personal jurisdiction over that party and that party does not have standing to

contest any of the proceedings generating the court costs. See, e.g., Trill v. Sifuentes,

6th Dist. Sandusky No. S-10-036, 2011-Ohio-1400, ¶ 18 (where plaintiff dismissed

one of the defendants in a personal injury case, the trial court lost jurisdiction over

the dismissed defendant and was without authority to consider a motion filed by the

dismissed defendant). “Personal jurisdiction refers to the principle that the Due

Process Clause of the Fourteenth Amendment to the United States Constitution

requires that a valid judgment imposing a personal obligation or duty in favor of the

plaintiff may be entered only by a court having jurisdiction over the person of the

defendant.” WBCMT 2007-C33 Office 7870, LLC v. Breakwater Equity Partners,

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LLC, 2019-Ohio-3935, 133 N.E.3d 607, ¶ 10 (1st Dist.). Thus, it would be a violation

of the dismissed defendants’ due-process rights to order them to pay court costs

incurred after they were dismissed from the case.

{¶17} Next, plaintiffs argue that the court maintained jurisdiction over the

dismissed defendants because the settlement agreement vested the court with

jurisdiction to resolve any disputes arising out of the settlement agreement.

{¶18} “A trial court has jurisdiction to enforce a settlement agreement after a

case has been dismissed only if the dismissal entry incorporated the terms of the

agreement or expressly stated that the court retained jurisdiction to enforce the

agreement.” Cummins & Brown, LLC, and Phyllis E. Brown v. James Cummins, 1st

Dist. Hamilton No. C-200166, 2021-Ohio-428, ¶ 7, quoting Infinite Sec. Solutions,

L.L.C. v. Karam Properties, II, Ltd., 143 Ohio St.3d 346, 2015-Ohio-1101, 37 N.E.3d

1211, syllabus. “Neither the parties nor a reviewing court should have to review the

trial court record to determine the court’s intentions. Rather, the entry must reflect

the trial court’s action in clear and succinct terms.” Infinite Sec. Solutions at ¶ 29.

“To incorporate the terms of a settlement agreement, the trial court must actually

include the settlement terms in the judgment.” State Farm Mut. Auto. Ins. Co. v.

Three-C Body Shops, Inc., 10th Dist. Franklin Nos. 15AP–256, 15AP–282, 15AP–

350, 15AP–261, 15AP–284, 15AP–385, 15AP–263 and 15AP–348, 2015-Ohio-5087, ¶

13, citing Infinite Sec. Solutions at ¶ 27-28.

{¶19} The trial court did not incorporate the terms of the settlement

agreement into the agreed entry of dismissal or expressly state that it retained

jurisdiction to enforce the settlement agreement. Therefore, we cannot find that the

court maintained jurisdiction to enforce the settlement agreement.

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{¶20} The dismissed defendants seem to agree with the plaintiffs’ contention

that the court had jurisdiction to enforce the settlement agreement. However,

“subject-matter jurisdiction may not be conferred upon a court by agreement of the

parties, nor may lack of subject-matter jurisdiction be waived.” Cummins & Brown

at ¶ 6. Thus, the trial court did not have jurisdiction to order the defendants to pay

the receivership fees by virtue of enforcing the settlement agreement.

{¶21} Plaintiffs further argue that the trial court maintained jurisdiction over

the dismissed defendants through its August 10, 2018 order appointing the receiver.

A trial court maintains jurisdiction over a receivership until the court closes the

receiver’s account and discharges the receiver. Dayton Lodge, L.L.C. v. Hoffman,

2013-Ohio-5755, 6 N.E.3d 638, ¶ 24 (2d Dist.).

{¶22} However, the receivership is ancillary to the main action. In re

Gourmet Servs., Inc., 142 B.R. 216, 218 (Bankr.S.D.Ohio 1992). A court’s

jurisdiction over a receivership does not permit the court to regain jurisdiction over a

party dismissed from the main action.

{¶23} Lastly, plaintiffs contend that the trial court’s inherent jurisdiction

over collateral issues permitted it to impose the receivership fees upon the dismissed

defendants. After dismissal, courts retain jurisdiction over certain collateral issues,

such as the imposition of sanctions or findings of contempt. See Hummel, 96 Ohio

St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853, at ¶ 23. Plaintiffs argue that Marcus

Fontain’s conduct during the pendency of the case amounted to contempt and, based

on the court’s jurisdiction to hold Fontain in contempt, it retained jurisdiction to

impose the receivership fees against him and the other dismissed defendants.

Perhaps Fontain’s conduct warranted a finding of contempt, but the trial court never

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made such a finding. We reject the plaintiffs’ contention that the trial court was

implicitly exercising its contempt powers by imposing the receivership fees upon the

{¶24} We hold that the trial court lacked jurisdiction over the dismissed

defendants once the agreed entry of dismissal was filed on September 26, 2018.

However, because defendants have not contested the imposition of any of the

receivership fees incurred before February 11, 2019, we hold that the trial court erred

in holding the dismissed defendants responsible for any receivership fees incurred

after February 11, 2019.1 The dismissed defendants contend that they have already

paid all receivership fees incurred prior to February 11, 2019, but that is not entirely

clear from the record. Therefore, the cause must be remanded for the trial court to

determine whether the dismissed defendants owe any additional receivership fees

and, if so, what amount.

{¶25} The sole assignment of error is sustained.

Conclusion

{¶26} The appeals numbered C-190575, C-190583 and C-190584 are

dismissed. In the appeal numbered C-190574, the sole assignment of error is

sustained, the judgment of the trial court is reversed, and the cause is remanded to

the trial court to assess all receivership fees in a manner consistent with this opinion.

Judgment accordingly.

BERGERON, P.J., and WINKLER, J., concur.

1 The defendants concede that the trial court had jurisdiction to impose the receivership fees, including those incurred after February 11, 2019, against Cinvexco, which was still a party at the time the court entered its September 12, 2019 final judgment.

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Please note: The court has recorded its own entry on the date of the release of this opinion.