N. Trust Bank FSB v. Bolognue Holdings, Inc.

2012 Ohio 4913

Opinion

[Cite as N. Trust Bank FSB v. Bolognue Holdings, Inc., 2012-Ohio-4913.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

NORTHERN TRUST BANK, FSB C.A. No. 26290

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE BOLOGNUE HOLDINGS, INC. et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellants CASE No. CV-2011-07-3843

DECISION AND JOURNAL ENTRY

Dated: October 24, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} Northern Trust Bank FSB obtained a cognovit judgment against Bolognue

Holdings Inc., Apple Purchasing Inc., Joseph Bolognue, Michael Bolognue, and Frank

Bolognue. The trial court later appointed a receiver over Bolognue Holdings and Apple

Purchasing. It also enjoined the Bolognues from interfering with the acts of the receiver.

Shortly after the receiver took control of the companies, the bank moved to amend the

receivership order to give the receiver additional powers. It alleged that the Bolognues were

circumventing the order by conducting business under a different name. The trial court granted

its motion. Bolognue Holdings, Apple Purchasing, Joseph Bolognue, and Michael Bolognue

have appealed, assigning as error that the court incorrectly granted the bank’s motion. We

dismiss the appeal as moot because the receivership has been terminated and the Bolognues and

the corporations have not established that there is any further relief this court could grant them. 2

MOOTNESS

{¶2} The Bolognues and the corporations’ assignment of error is that the trial court’s

order modifying the receivership improperly allows the receiver to take control of non-party

entities and to seize such entities without clear and convincing evidence. Before reaching that

issue, we note that, a few months after the Bolognues and the corporations filed their notice of

appeal, the trial court entered an order terminating the receivership. In that order, the court

released the receiver and his agents from any liability arising out of the performance of his

duties. The Bolognues and the corporations have separately appealed the termination order, case

number 26468, but have limited their assignments of error to questions regarding the release of

liability. They have not argued that any of the actions that the receiver took were improper under

Ohio law.

{¶3} The Ohio Supreme Court has held that “[a] ‘case is moot when the issues

presented are no longer live or the parties lack a legally cognizable interest in the outcome.’ . . .

‘It is not the duty of the court to answer moot questions, and when, pending proceedings . . . in

this court, an event occurs, without the fault of either party, which renders it impossible for the

court to grant any relief, it will dismiss the petition . . . .’” State ex rel. Gaylor Inc. v. Goodenow,

125 Ohio St. 3d 407, 2010-Ohio-1844, ¶ 10 (quoting Los Angeles County v. Davis, 440 U.S. 625,

631 (1979); Miner v. Witt, 82 Ohio St. 237, syllabus (1910)). It has also held that a court may

consider evidence that is outside the record to determine if a case is moot. State ex rel. Nelson v.

Russo, 89 Ohio St. 3d 227, 228 (2000); State ex rel. Grove v. Nadel, 84 Ohio St. 3d 252, 253

(1998).

{¶4} The Bolognues and the corporations have argued that this case is not moot

because the receiver’s initial report shows that he investigated, demanded money from, and 3

attempted to exercise control over several non-party entities. The report indicates that the

receiver “sought substantial information about the subsidiaries, affiliates, and dbas of the

Receivership Entities.” It also indicates that the receiver identified nine entities that it suspected

the Bolognues were using to carry on their business and that his investigation of those

organizations was “ongoing.” The receiver’s final report does not indicate that anything ever

came of those investigations or his financial demands. In addition, the Bolognues and the

corporations have not identified any assets that the receiver took control of under the guise of

authority that is the subject of their appeal. Accordingly, since the power of the receiver has

terminated and there is no allegation that he improperly seized or disposed of any assets, we

conclude that this appeal is moot. See Tarantino v. Flynn Props. L.L.C., 8th Dist. No. 91060,

2009-Ohio-1680, ¶ 9-10.

CONCLUSION

{¶5} Because the receivership has been terminated, there is no relief that this Court can

grant that will remedy the trial court’s alleged errors. The appeal is dismissed as moot.

Appeal dismissed.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 4

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, P. J. BELFANCE, J. CONCUR.

APPEARANCES:

DONALD W. DAVID, JR and ADAM D. FULLER, Attorneys at Law, for Appellants.

ROBERT R. KRACHT, KIMBERLY A. BRENNAN, and CHRISTINA E. NIRO, Attorneys at Law, for Appellee.