[Cite as Volk v. Volk, 2013-Ohio-1503.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: ROLAND VOLK, et al., : Sheila G. Farmer, P.J. : John W. Wise, J. Plaintiffs-Appellees : Patricia A. Delaney, J. : -vs- : Case No. 12-CA-0117 : : HELEN VOLK, et al., : OPINION : Defendants-Appellants :
CHARACTER OF PROCEEDING: Civil Appeal from Richland County Court of Common Pleas Case No. 2012-CV-304
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: April 3, 2013
APPEARANCES:
For Plaintiff-Appellee Roland Volk For Defendant-Appellant
JOSEPH T. OLECKI J. JEFFREY HECK Weldon, Huston & Keyser The Heck Law Offices, LTD 76 N. Mulberry Street One Marion Avenue, Suite 104 Mansfield, Ohio 44902 Mansfield, Ohio 44903
For Receiver For Helen Volk
CHRISTOPHER R. PARKER LOUIS H. GILBERT Goranson, Parker & Bella Co. Calhoun, Kademenos & Childress 405 Madison Ave., Suite 2200 6 W. Third Street, Suite 200 Toledo, Ohio 43604 Mansfield, Ohio 44902 RICHLAND COUNTY CASE NO. 12-CA-0117 2
Delaney, J.
{¶1} Appellant, Dieter Volk, appeals from the October 19, 2012, and November
2, 2012, Judgment Entries of the Richland County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} The Mike Volk Company, Inc. (“MVC”) was established by Michael Volk
and his son, appellant Dieter Volk. Appellee Roland Volk was a director of MVC.
{¶3} After Michael Volk died in October of 2011, appellee Roland Volk, both
individually and as Executor of the Estate of Michael Volk, filed a verified complaint on
March 12, 2012 against Helen Volk, who is Michael Volk’s widow, appellant Dieter Volk
and MVC seeking judicial dissolution of MVC, the appointment of a receiver, injunctive
relief and a declaratory judgment. Pursuant to a Temporary Restraining Order filed on
March 12, 2012, the trial court prevented Helen Volk, appellant Dieter Volk, MVC and/or
their agents or representatives from closing or threatening to close the company or from
taking company assets, pending the outcome of the proceedings.
{¶4} On April 17, 2012, a hearing was held before a Magistrate on the request
for appointment of a receiver. The Magistrate, in a Decision filed on May 7, 2012,
recommended that Steven Skutch be appointed receiver for MVC and that Skutch
evaluate two offers to purchase MVC. The Magistrate, in his Decision, noted that a
group of current and former employees of MVC had created Ontario Mechanical, LLC
and made an offer to purchase MVC and that appellant Dieter Volk also had made an
offer. The trial court adopted the Magistrate’s Decision as an interim order pursuant to
Civ.R. 53(4)(e)(ii). No objections were filed to appointment of the receiver. RICHLAND COUNTY CASE NO. 12-CA-0117 3
{¶5} On or about June 5, 2012, the Receiver issued a Report and
Recommendation, recommending to the trial court that the offer of Ontario Mechanical
for certain assets of MVC be accepted and that the remaining assets of MVC be
auctioned following closing on the asset sale. The Receiver noted that both offers were
for less than all of the assets of MVC. The Receiver also indicated there was a
$22,200.00 difference between the Dieter offer and the Ontario offer, but that the
difference was offset by two factors: “(1) a higher percentage of the accounts receivable
should be collected if there is an orderly transition of assets from MVC to Ontario with
little to no interruption of work; and (2) the $100,000 reduction in past due rent as
offered by the Volk Family Limited Partnership, LLC. Together these factors will
maximize the recovery of assets and minimize debt payments of The Mike Volk Co.,
Inc.”
{¶6} As memorialized by an Agreed Judgment Entry filed on June 12, 2012, the
parties agreed that all proceeds from liquidation or sale of equipment or inventory of
MVC would be applied first to payment of Mechanics Bank. Mechanics Bank had a first
lien upon all equipment, inventory and accounts receivable of MVC.
{¶7} After appellant Dieter Volk filed objections to the Receiver’s Report, a
hearing before a Magistrate was held on June 13, 2012. Pursuant to a Magistrate’s
Decision filed on June 19, 2012, the Magistrate recommended that the Receiver’s
Report be adopted and the assets and inventory requested by Ontario Mechanical be
sold to Ontario Mechanical and the remaining assets of MVC be auctioned. Appellant
Dieter Volk filed objections to the Magistrate’s Decision. Via a Judgment Entry filed on RICHLAND COUNTY CASE NO. 12-CA-0117 4
October 19, 2012, the trial court overruled the objections to the Magistrate’s Report and
Recommendation.
{¶8} On October 31, 2012, the Receiver filed a Motion for Authority to Execute
Asset Purchase Agreement and to Authorize and Confirm Sale of Assets in the
Receivership. The Receiver, in such motion, asked the trial court for permission to
proceed with the sale of the assets to Ontario Mechanical and for authority to pay
Mechanics Bank. The trial court granted such motion as memorialized in an Order filed
on November 2, 2012. The trial court authorized the Receiver to execute the Asset
Purchase Agreement with Ontario Mechanical, to pay Mechanic’s Bank with the
proceeds from the sale, and to auction the remaining assets.
{¶9} Thereafter, on November 13, 2012, appellant filed a Notice of Appeal from
the trial court’s October 19, 2012 and November 2, 2012 Judgment Entries and a
Motion for Stay Pending Appeal.
{¶10} Pursuant to a Judgment Entry filed on December 12, 2012, the trial court
overruled the Motion to Stay as moot stating, in relevant part, as follows:
{¶11} “On November 2, 2012 the court approved the receiver entering into an
asset purchase agreement with the former employee group and confirmed the sale of
the receivership assets to them. Receiver’s counsel represents that the sale of those
assets closed on November 13, 2012 at 11:00 a.m. – the same date defendant Dieter
Volk filed his motion to stay at 2:51 p.m. –about four hours late.
{¶12} “As a consequence of that closing : 1) secured creditor Mechanics Bank
was paid in full on its $105,000 demand note, 2) the Ontario Mechanical Group
borrowed funds from Directions Credit Union, which is the new secured creditor of the RICHLAND COUNTY CASE NO. 12-CA-0117 5
new company assets and 3) the Ontario Mechanical Group has continued to operate
the business. Mr. Volk’s motion to stay is thus untimely. The closing cannot be undone.
It would destroy the value of this ongoing business to do otherwise…” (Footnote
omitted).
{¶13} Appellant now raises the following assignment of error on appeal:
{¶14} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
COMPLETELY FAILED TO CONSIDER THE SUBSTANTIAL EFFECT OF ONTARIO
MECHANICAL’S OFFER INCLUDING THE CRANES OF MIKE VOLK COMPANY
THAT DRAMATICALLY CHANGED THE RELATIVE VALUES OF THE OFFERS AND
THE VERY VIABILITY OF ONTARIO MECHANICAL’S OFFER.”
I
{¶15} Appellant, in his sole assignment of error, argues that the trial court
abused its discretion when it adopted the Magistrate’s Decision recommending that the
offer of Ontario Mechanical be accepted over the offer of appellant.
{¶16} We find, however, that appellant’s appeal is moot. “’Actions or opinions
are described as ‘moot’ when they are or have become fictitious, colorable,
hypothetical, academic or dead. The distinguishing characteristic of such issues is that
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[Cite as Volk v. Volk, 2013-Ohio-1503.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: ROLAND VOLK, et al., : Sheila G. Farmer, P.J. : John W. Wise, J. Plaintiffs-Appellees : Patricia A. Delaney, J. : -vs- : Case No. 12-CA-0117 : : HELEN VOLK, et al., : OPINION : Defendants-Appellants :
CHARACTER OF PROCEEDING: Civil Appeal from Richland County Court of Common Pleas Case No. 2012-CV-304
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: April 3, 2013
APPEARANCES:
For Plaintiff-Appellee Roland Volk For Defendant-Appellant
JOSEPH T. OLECKI J. JEFFREY HECK Weldon, Huston & Keyser The Heck Law Offices, LTD 76 N. Mulberry Street One Marion Avenue, Suite 104 Mansfield, Ohio 44902 Mansfield, Ohio 44903
For Receiver For Helen Volk
CHRISTOPHER R. PARKER LOUIS H. GILBERT Goranson, Parker & Bella Co. Calhoun, Kademenos & Childress 405 Madison Ave., Suite 2200 6 W. Third Street, Suite 200 Toledo, Ohio 43604 Mansfield, Ohio 44902 RICHLAND COUNTY CASE NO. 12-CA-0117 2
Delaney, J.
{¶1} Appellant, Dieter Volk, appeals from the October 19, 2012, and November
2, 2012, Judgment Entries of the Richland County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} The Mike Volk Company, Inc. (“MVC”) was established by Michael Volk
and his son, appellant Dieter Volk. Appellee Roland Volk was a director of MVC.
{¶3} After Michael Volk died in October of 2011, appellee Roland Volk, both
individually and as Executor of the Estate of Michael Volk, filed a verified complaint on
March 12, 2012 against Helen Volk, who is Michael Volk’s widow, appellant Dieter Volk
and MVC seeking judicial dissolution of MVC, the appointment of a receiver, injunctive
relief and a declaratory judgment. Pursuant to a Temporary Restraining Order filed on
March 12, 2012, the trial court prevented Helen Volk, appellant Dieter Volk, MVC and/or
their agents or representatives from closing or threatening to close the company or from
taking company assets, pending the outcome of the proceedings.
{¶4} On April 17, 2012, a hearing was held before a Magistrate on the request
for appointment of a receiver. The Magistrate, in a Decision filed on May 7, 2012,
recommended that Steven Skutch be appointed receiver for MVC and that Skutch
evaluate two offers to purchase MVC. The Magistrate, in his Decision, noted that a
group of current and former employees of MVC had created Ontario Mechanical, LLC
and made an offer to purchase MVC and that appellant Dieter Volk also had made an
offer. The trial court adopted the Magistrate’s Decision as an interim order pursuant to
Civ.R. 53(4)(e)(ii). No objections were filed to appointment of the receiver. RICHLAND COUNTY CASE NO. 12-CA-0117 3
{¶5} On or about June 5, 2012, the Receiver issued a Report and
Recommendation, recommending to the trial court that the offer of Ontario Mechanical
for certain assets of MVC be accepted and that the remaining assets of MVC be
auctioned following closing on the asset sale. The Receiver noted that both offers were
for less than all of the assets of MVC. The Receiver also indicated there was a
$22,200.00 difference between the Dieter offer and the Ontario offer, but that the
difference was offset by two factors: “(1) a higher percentage of the accounts receivable
should be collected if there is an orderly transition of assets from MVC to Ontario with
little to no interruption of work; and (2) the $100,000 reduction in past due rent as
offered by the Volk Family Limited Partnership, LLC. Together these factors will
maximize the recovery of assets and minimize debt payments of The Mike Volk Co.,
Inc.”
{¶6} As memorialized by an Agreed Judgment Entry filed on June 12, 2012, the
parties agreed that all proceeds from liquidation or sale of equipment or inventory of
MVC would be applied first to payment of Mechanics Bank. Mechanics Bank had a first
lien upon all equipment, inventory and accounts receivable of MVC.
{¶7} After appellant Dieter Volk filed objections to the Receiver’s Report, a
hearing before a Magistrate was held on June 13, 2012. Pursuant to a Magistrate’s
Decision filed on June 19, 2012, the Magistrate recommended that the Receiver’s
Report be adopted and the assets and inventory requested by Ontario Mechanical be
sold to Ontario Mechanical and the remaining assets of MVC be auctioned. Appellant
Dieter Volk filed objections to the Magistrate’s Decision. Via a Judgment Entry filed on RICHLAND COUNTY CASE NO. 12-CA-0117 4
October 19, 2012, the trial court overruled the objections to the Magistrate’s Report and
Recommendation.
{¶8} On October 31, 2012, the Receiver filed a Motion for Authority to Execute
Asset Purchase Agreement and to Authorize and Confirm Sale of Assets in the
Receivership. The Receiver, in such motion, asked the trial court for permission to
proceed with the sale of the assets to Ontario Mechanical and for authority to pay
Mechanics Bank. The trial court granted such motion as memorialized in an Order filed
on November 2, 2012. The trial court authorized the Receiver to execute the Asset
Purchase Agreement with Ontario Mechanical, to pay Mechanic’s Bank with the
proceeds from the sale, and to auction the remaining assets.
{¶9} Thereafter, on November 13, 2012, appellant filed a Notice of Appeal from
the trial court’s October 19, 2012 and November 2, 2012 Judgment Entries and a
Motion for Stay Pending Appeal.
{¶10} Pursuant to a Judgment Entry filed on December 12, 2012, the trial court
overruled the Motion to Stay as moot stating, in relevant part, as follows:
{¶11} “On November 2, 2012 the court approved the receiver entering into an
asset purchase agreement with the former employee group and confirmed the sale of
the receivership assets to them. Receiver’s counsel represents that the sale of those
assets closed on November 13, 2012 at 11:00 a.m. – the same date defendant Dieter
Volk filed his motion to stay at 2:51 p.m. –about four hours late.
{¶12} “As a consequence of that closing : 1) secured creditor Mechanics Bank
was paid in full on its $105,000 demand note, 2) the Ontario Mechanical Group
borrowed funds from Directions Credit Union, which is the new secured creditor of the RICHLAND COUNTY CASE NO. 12-CA-0117 5
new company assets and 3) the Ontario Mechanical Group has continued to operate
the business. Mr. Volk’s motion to stay is thus untimely. The closing cannot be undone.
It would destroy the value of this ongoing business to do otherwise…” (Footnote
omitted).
{¶13} Appellant now raises the following assignment of error on appeal:
{¶14} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
COMPLETELY FAILED TO CONSIDER THE SUBSTANTIAL EFFECT OF ONTARIO
MECHANICAL’S OFFER INCLUDING THE CRANES OF MIKE VOLK COMPANY
THAT DRAMATICALLY CHANGED THE RELATIVE VALUES OF THE OFFERS AND
THE VERY VIABILITY OF ONTARIO MECHANICAL’S OFFER.”
I
{¶15} Appellant, in his sole assignment of error, argues that the trial court
abused its discretion when it adopted the Magistrate’s Decision recommending that the
offer of Ontario Mechanical be accepted over the offer of appellant.
{¶16} We find, however, that appellant’s appeal is moot. “’Actions or opinions
are described as ‘moot’ when they are or have become fictitious, colorable,
hypothetical, academic or dead. The distinguishing characteristic of such issues is that
they involve no actual, genuine, live controversy, the decision of which can definitely
affect existing legal relations.’” Rice v. Flynn, 9th Dist. No. 22416, 2005–Ohio–4667, ¶
23, quoting Culver v. Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82 (7th Dist. 1948).
Accordingly, mootness depends upon the absence of a live or actual controversy and
the inability of a court to afford relief to a party on the issue before it. Akron Dev. Fund I, RICHLAND COUNTY CASE NO. 12-CA-0117 6
Ltd. v. Advanced Coatings Internatl. Inc., 9th Dist. No. 25375, 2011–Ohio–3277, ¶ 25–
29.
{¶17} In the case sub judice, the Magistrate, after a hearing, recommended that
the offer of Ontario Mechanical be accepted as the best offer and recommended that
MVC be sold to Ontario Mechanical. Appellant then filed objections to such decision.
After the trial court overruled appellant’s objections to the Magistrate’s Decision, the
Receiver, on October 31, 2012, filed a Motion for Authority to Execute Asset Purchase
Agreement and to Authorize and Confirm Sale of Assets in the Receivership. The trial
court granted such motion on November 2, 2012 and authorized the Receiver to
execute the Asset Purchase Agreement, to pay Mechanic’s Bank with the proceeds
from the sale, and to auction the remaining assets.
{¶18} Thereafter, on November 13, 2012, appellant filed a Notice of Appeal from
the trial court’s October 19, 2012 and November 2, 2012 Judgment Entries and a
Motion for Stay Pending Appeal. However, the sale of the assets to Ontario Mechanical
had already taken place just hours prior to the filing of the appeal and of the Motion for
Stay. We concur with appellees1 that the closing on the asset sale rendered the current
appeal moot. See Akron Dev. Fund I, Ltd. v. Advanced Coatings Internatl. Inc., Id.
1 We note that the Receiver, on December 28, 2012, filed a Motion to Dismiss Appeal as moot. No response to such motion was ever filed. The Motion to Dismiss is hereby GRANTED for the reasons stated herein. RICHLAND COUNTY CASE NO. 12-CA-0117 7
{¶19} Appellant’s appeal, is therefore, dismissed.
By: Delaney, J.
Farmer, P.J. and
Wise, J. concur
______________________________
JUDGES
PAD/d0308 RICHLAND COUNTY CASE NO. 12-CA-0117 8
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROLAND VOLK, et al., : : Plaintiffs-Appellees : : : -vs- : JUDGMENT ENTRY : HELEN VOLK, et al., : : Defendants-Appellants : CASE NO. 12-CA-0117
For the reasons stated in our accompanying Memorandum-Opinion on file, the
appeal of the Richland County Court of Common Pleas is dismissed. Costs assessed
to Appellant.
_________________________________