[Cite as Century Natl. Bank v. Hines, 2014-Ohio-3901.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 ATHENS COUNTY 

CENTURY NATIONAL BANK, 

 : 

Plaintiff-Appellee, Case No. 13CA35 

 : 

vs. 

 : 

PAMELA A. HINES AKA PAM HINES DECISION AND JUDGMENT ENTRY 

AKA PAMELA HINES, ET AL., : 

 

Defendants-Appellants. : 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANT Jeffrey D. Swick, P.O. Box 2578, 

PAMELA A. HINES: Westerville, Ohio 43086 

COUNSEL FOR APPELLEE: Scott D. Eickelberger and Ryan H. Linn, Kincaid, Taylor & 

Geyer, 50 North Fourth Street, P.O. Box 1030, Zanesville, 

Ohio 43702 

CIVIL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 9-5-14 

PER CURIAM. 

{¶ 1} This is an appeal from an Athens County Common Pleas Court order that 

appointed a receiver of property in the foreclosure action brought by Century National Bank, 

plaintiff below and appellee herein, against Pamela A. Hines, defendant below and appellant 

herein. Appellant assigns the following errors for review: 

FIRST ASSIGNMENT OF ERROR: 

“THE GRANT OF AUTHORITY TO THE RECEIVER TO SELL 

DEFENDANT/APPELLANT’S REAL PROPERTY AT A 

PRIVATE SALE IS VOID AS A MATTER OF LAW.” 
SECOND ASSIGNMENT OF ERROR: 

“THE ENTRY OF THE TRIAL COURT APPOINTING A 

RECEIVER WAS GRANTED AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE.” 

THIRD ASSIGNMENT OF ERROR: 

“THE ORDER APPOINTING RECEIVER IS VOID BECAUSE 

COUNSEL FOR THE PLAINTIFF/APPELLEE AND TRIAL 

COURT FAILED TO COMPLY WITH ATHENS COUNTY 

COURT OF COMMON PLEASE LOCAL RULE 11.” 

{¶ 2} Appellee commenced the instant action on August 5, 2011 by filing a complaint 

that alleged that appellant was in default on five “cognovit promissory notes.” Appellee 

demanded judgment for the amounts due under those notes, as well as foreclosure of the five 

mortgages. 

{¶ 3} On August 25, 2011, pursuant to the notes' cognovit provision, D. Scott Rankin 

answered for appellant, waived service of process and confessed judgment in appellee's favor. 

The trial court entered judgment for appellee on September 7, 2011, found appellant in default of 

the notes, awarded damages for amounts due and ordered foreclosure of five mortgages and the 

sale of the properties pledged as security. 

{¶ 4} Appellant made a limited appearance on October 5, 2011 to file a notice of appeal 

from the foreclosure order. This Court partially affirmed that judgment as to one mortgage, but 

reversed as to the other four mortgages and remanded the case for further proceedings. Century 

Natl. Bank v. Hines, 4th Dist. Athens App. No. 11CA28, 2012-Ohio-4041, at ¶10 (Hines I). The 

Ohio Supreme Court rejected any further appeal. Century Natl. Bank v. Hines, 982 N.E.2d 728, 

2013-Ohio-347 (Hines IA). 
ATHENS, 13CA35 3

{¶ 5} On July 3, 2013, appellee file a motion for appointment of a receiver for the 

properties and appellant filed her memorandum in opposition. On July 29, 2013, the trial court 

granted the motion and appointed Peter M. Lahni, Jr., as receiver. This appeal followed. 

 I 

{¶ 6} Before we address the assignments of error on their merits, we first pause to 

consider a potential jurisdictional problem. Ohio’s Constitution grants appellate jurisdiction 

only where there exists a final, appealable, order. Davison v. Reni, 115 Ohio App.3d 688, 692, 

686 N.E.2d 278 (4th Dist.1996); Prod. Credit Assn. v. Hedges, 87 Ohio Ap.3d 207, 210, 87 Ohio 

App.3d 207, 621 N.E.2d 1360 (4th Dist.1993); Kouns v. Pemberton, 84 Ohio App.3d 499, 501, 

617 N.E.2d 701 (4th Dist. 1992). If there is no final appealable order, we have no jurisdiction to 

review the matter and the case must be dismissed. Washington Cty. Bd. of Dev. Disabilities v. 

United Re AG, 4th Dist. Washington App. No. No. 11CA23, 2012-Ohio-3338, at ¶13; Ray v. 

Wal-Mart Stores, Inc., 4th Dist. Washington App. No. 10CA27, 2011-Ohio-5142, at ¶16. 

{¶ 7} The order being appealed in the case sub judice (appointing a receiver for the 

properties) clearly contemplates further action during the course of these proceedings. 

Nevertheless, Ohio case law is clear that the appointment of a receiver constitutes a final order 

pursuant to R.C. 2505.02(B)(4) because it grants a provisional remedy. See e.g. U.S. Bank, N.A. 

v. Gotham King Fee Owner, L.L.C., 8th Dist. Cuyahoga No. No. 98618, 2013-Ohio-1983, at ¶7, 

fn. 1; JPMCC 2004-CIBC10 7th St. Office, L.L.C. v. URS Tower, L.L.C., 1st Dist. Hamilton No. 

No. C–120294, 987 N.E.2d 348, 2013-Ohio-796, at ¶10. Thus, we have jurisdiction to review 

this matter and we now turn our attention to the merits of appellant’s assignments of error. 

 II 
ATHENS, 13CA35 4

{¶ 8} We first consider, out of order, appellant's second assignment of error that asserts 

the trial court erred by appointing a receiver. She argues that such an appointment is 

{¶ 9} “against the manifest weight of the evidence.” We disagree. 

{¶ 10} First, the appointment of a receiver is a matter left to the trial court's sound 

discretion and its decision will not be reversed on appeal absent an abuse of that discretion. 

Lockard v. Lockard, 175 Ohio App.3d 245, 2008- Ohio-1577, 886 N.E.2d 276, at ¶7 (4th

Dist.2008); Walsh v. Smith, 2nd Dist. Montgomery No. 25879, 2014-Ohio-1451, at ¶7. In short, 

we believe that appellant sets forth an improper standard of review for the assignment of error. 

{¶ 11} Second, we need not reach the question of whether the trial court abused its 

discretion by appointing a receiver under these circumstances. A close reading of the 

instruments in this case reveals that the trial court’s actions were appropriate in light of the 

express language of the instruments. Indeed, all five of the subject mortgages in this case, under 

the subheading of “miscellaneous provisions,” and under the subpart regarding “amendments,” 

specify “[t]he [m]ortgage[s], . . . constitutes the entire understanding and agreement of the parties 

as to the matters set forth in” the mortgage. (Emphasis added.) Although the word “agreement” 

is not defined within that instrument, it is generally taken to be synonymous with the word 

“contract” See e.g. Neely v. United States, 613 F.2d 802, 806-807, (Ct.Cl.1980); Rachal v. Reitz, 

403 S.W.3d 840, 845 (Tex.2013). Moreover, a pivotal point of our prior holding in Hines I is 

that a mortgage is a contract. See 2012-Ohio-4041, at ¶8. In other words, all the mortgages at 

issue herein must be treated under regular contract law. 

{¶ 12} Absent some legal defense to the existence of a contract, and none is asserted 

here, Ohio courts are required to enforce the terms of contracts as they are written. Nationwide 
ATHENS, 13CA35 5

Mut. Ins. Co v Pinnacle Baking Co., Inc., 10th Dist. Franklin No. 13AP–485, 2014-Ohio-1257, at 

¶14; Slater v. Altman Co., 2nd Dist. Champaign No. 2013–CA–4, 2013-Ohio-4405, at ¶14. To 

that end, we note that all of the mortgages in this case contain the following language under 

provisions that spell out the rights of the lender in the event of a default on the note and/or the 

mortgage: 

“Appoint Receiver. Lender shall have the right to have a receiver appointed to 

possession of ar any part of the Property, with the power to protect and preserve 

the Property, to operate the Property preceding foreclosure and sale . . .”1

{¶ 13} In short, appellant agreed to the appointment of a receiver in the event of default 

on the mortgages. Appellant does not dispute on appeal that she agreed to such a provision, but 

she contends that no evidence was adduced to show her in default of the notes. We disagree 

with this point. 

{¶ 14} As this Court noted in Hines I, pursuant to the cognovit provisions in the 

promissory notes appellant signed, “D. Scott Rankin answered for [her], waived service of 

process and [then] confessed judgment in favor of appellee.” 2012-Ohio-4041 at ¶4. Thus, by 

virtue of the confession of judgment provision of the cognovit notes, appellant admitted that she 

was in default of payment of the five promissory notes. In light of the fact that the mortgages 

also provided that in the event of default appellee had the right to seek a receiver for the 

mortgaged properties, the trial court committed no error in applying the terms of the mortgages 

as written. 

 1 Similar provision is also made under the “Assignment of Rents” that accompanied each mortgage. 

{¶ 15} Accordingly, we hereby overrule appellant’s second assignment of error. 
ATHENS, 13CA35 6

 III 

{¶ 16} We now turn to appellant’s first assignment of error wherein she asserts that, even 

if appointment of a receiver is proper, the trial court nevertheless erred by granting the receiver 

power to sell the mortgaged properties. Again, we disagree. 

{¶ 17} The delegation of powers to a receiver lies in a trial court's sound discretion and 

that delegation will not be disturbed absent an abuse of that discretion. See Crawford v. Hawes, 

5th Dist. Nos. 25178 & 25180, 2013-Ohio-3173, at ¶12; U.S. Bank, N.A. v. Gotham King Fee 

Owner, L.L.C., 8th Dist. Cuyahoga No. 98618, 2013-Ohio-1983, at ¶8; Avondale Community 

Council v. Galarza, 1st Dist. Hamilton No. C–110221, 2012-Ohio-186, at ¶17. The abuse of 

discretion standard requires a showing of something more than a trial court’s order arguably 

being against the manifest weight of the evidence. Kolleda v. Kolleda, 11th Dist. Lake No. 

2013–L–069, 2014-Ohi0-2013, at ¶18. Indeed, an abuse of discretion is more than an error of 

law or even of judgment; rather, it implies that the trial court's attitude is unreasonable, arbitrary 

or unconscionable. See State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994); State v. 

Moreland, 50 Ohio St.3d 58, 61, 552 N.E.2d 894 (1990). Under this standard, a reviewing court 

must not substitute its judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. 

Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 

137–138, 566 N.E.2d 1181 (1991). Appellant does not actually argue the trial court abused its 

discretion but, rather, contends that the trial court's grant of power to the receiver to sell the 

mortgaged property is “void as a matter of law.” We find no merit to this argument. 

{¶ 18} We believe that the flaw in appellant’s argument is that she relies on R.C. Chapter 

2329 that concerns a foreclosure sale in general. A receiver’s sale, conducted under R.C. 
ATHENS, 13CA35 7

2735.04, is an alternative remedy. See Huntington Natl. Bank v. Motel 4 BAPS, Inc., 191 Ohio 

App.3d 90, 2010-Ohio- 5792, 944 N.E.2d 1210, at ¶8. 

{¶ 19} R.C. 2735.04 states, in pertinent part, “a receiver may bring and defend actions in 

his own name as receiver, take and keep possession of property, receive rents, collect, compound 

for, and compromise demands, make transfers, and generally do such acts respecting the property 

as the court [so] authorizes.” (Emphasis added) The word “transfer” is generally taken to mean, 

among other things, “[t]he sale and every other method, direct or indirect, of disposing of or 

parting with property . . .” Black’s Law Dictionary 1342 (5th Ed.1979). 

{¶ 20} Various Ohio courts have held that R.C. 2735.04 places virtually no limitation on 

the power that can be extended in a foreclosure case to restrict the receiver and the manner in 

which the receiver may sell a property. See e.g. Park Natl. Bank v. Cattani, 187 Ohio App.3d 

186, 931 N.E.2d 623, 2010-Ohio-1291 at ¶13; Huntington Bank, LLC. v. Prospect Park, LLC., 

8th Dist. Cuyahoga App. No. 97720, 2012-Ohio-3261, at ¶9; Whipps v. Ryan, 10th Dist. Franklin 

Nos. 08AP-838 & 08AP-839, 2009-Ohio-2228, at ¶31. 

{¶ 21} Whatever constraints appellant may rely upon from R.C. Chapter 2329 to contest 

the trial court's actions, we do not find them applicable to receiver actions authorized under R.C. 

2735.01. 

{¶ 22} Accordingly, for these reasons, we hereby overrule appellant's first assignment of 

error.

2

 2 We note that under the confession of judgment to the cognovit notes, appellant defaulted on payment over 21⁄2 

years ago. Thus, it is not unreasonable to think that appellee would be concerned about the safety and integrity of its 

security. It is equally reasonable, given contractual provisions in the mortgages, that the trial court would approve a receiver 

to preserve the rights of the lender (appellee). This is particularly true when, as in this case, appellant offers nothing to rebut 
ATHENS, 13CA35 8

 II 

{¶ 23} In her third assignment of error, appellant argues that the trial court’s appointment 

of a receiver is “void.” Here, she bases her argument on the trial court’s failure to comply with 

Athens County “Local Rule 11.” We find no merit to this argument. 

 

confession that she is in default of the notes that her mortgages secure. 

{¶ 24} Athens County L. R. 11 provides: 
ATHENS, 13CA35 9

“Unless the court otherwise directs, counsel for the party in whose favor an order, 

decree, or judgment is rendered, shall within five days thereafter prepare the proper 

journal entry and include instructions to the Clerk for service. Said counsel shall 

submit the entry to counsel for the adverse party, who shall approve or reject the 

same within three days after the receipt thereof and return to the submitting attorney 

or the assignment commissioner for the judge’s signature. Upon failure of the 

adverse party to act upon the entry in the specified time, its preparer shall submit it 

to the court for approval with a notation as to when it was presented to the adverse 

party. If counsel are unable to agree upon the entry, their respective entries shall 

be submitted to the judge who will direct what entry shall be made.”3

{¶ 25} Even if we assume that the appellee and the trial court did not strictly comply with 

this rule, we note that trial courts have wide latitude when it comes to following local rules of 

court because such rules are generally procedural in nature and do not involve substantive 

principles of law. See Parra v. Continental Tire, 8th Dist. Cuyahoga No. 98753, 2013-Ohio-1041, 

at ¶29; Parra v. Continental Tire, 9th Dist. Summit App. No. 26315, 2012-Ohio- 4138, at ¶7. 

However, if a trial court’s failure to follow its local rules implicates any due process concerns, 

then a problem may exist. Wallner v. Thorne, 189 Ohio App.3d 161, 937 N.E.2d 1047, 

2010-Ohio-2146, at ¶21; BAC Home Loans Servicing, LP v. Mowery, 5th Dist. Holmes App. Nos. 

2010-CA-05 & 2010-CA-07, 2010-Ohio-5570, at ¶8. 

 3 www.co.athensoh.org/uploads/LocalRules.doc (accessed May 19, 2014). 

{¶ 26} Appellant argues that she was “prejudiced by her counsel’s inability to review and 

object to a proposed entry” that appointed the receiver. Both our state and federal Constitutional 

due process rights provide for notice and the opportunity to be heard. See Fifth Third Mtge., Co. 

v. Rankin, 4th Dist. No. 11CA8, 2012-Ohio-2806, at ¶14; Columbia Gas Transm., L.L.C. v. Ogle, 

4th Dist. Hocking App. No. 10CA11, 2012-Ohio- 1483, at ¶12. Even if the trial court’s order 

was journalized without compliance with Athens L.R. 11, appellant was provided the opportunity 
ATHENS, 13CA35 10

to both (1) be heard, and (2) oppose the motion. 

{¶ 27} The record on appeal reveals that the motion to appoint a receiver was filed July 

3, 2013. Appellant filed her memorandum in opposition on July 17, 2013. The trial court’s 

order that appointed a receiver was filed July 29, 2013 – almost a week and a half later. In other 

words, before the court entered judgment appellant was provided the opportunity to be heard 

and to contest appellee’s motion for the appointment of a receiver. Furthermore, we cannot find 

in this case that any arguable failure to obey the Athens County local rules of court amounted to a 

denial of due process. Thus, we hereby overrule appellant’s third assignment of error. 

{¶ 28} Having considered all of appellant's errors both assigned and argued, we hereby 

affirm the trial court's judgment. 

JUDGMENT AFFIRMED. 
[Cite as Century Natl. Bank v. Hines, 2014-Ohio-3901.]

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee recover of appellant costs herein 

taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Athens County 

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Abele, P.J., McFarland, J. & Hoover, J.: Concur in Judgment & Opinion 

For the Court 

BY: 

 Peter B. Abele 

 Presiding Judge 

BY: 

 Matthew W. McFarland, Judge 

BY: 

 Marie Hoover, Judge 

 NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.