[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. Eickelbe rger 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 propert y in the foreclosure action br ought by Century National Bank, plaintiff below and appellee here in, 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 proce ss 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 or dered foreclosure of five mortgages and the sale of the properties pledged as security. {¶ 4} Appellant made a limite d appearance on October 5, 2011 to file a notice of appeal from the foreclosure order. This Court partially affirmed that j udgment as to one mortgage, but reversed as to the other four mortgages and remanded the case for further proceedings. Century Natl. Bank v. Hines , 4 th 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 fo r appointment of a receiver for the properties and appe llant 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 assi gnments of error on their me rits, 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 , 4 th Dist. Washington App. No. No. 11CA23, 2012-Ohio-3338, at ¶13; Ray v. Wal-Mart Stores, Inc. , 4 th 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 acti on during the course of these proceedings. Nevertheless, Ohio case law is clear that the a ppointment 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. , 8 th 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. , 1 st Dist. Hamilton No. No. C–120294, 987 N.E.2d 348, 2013-Ohio-796, at ¶10. T hus, we have jurisdiction to review this matter and we now turn our attention to th e merits of appellant’s assignments of error.
IIATHENS, 13CA35 4 {¶ 8} We first consider, out of or der, appellant's second assign ment 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 th e 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 (4 th Dist.2008); Walsh v. Smith , 2 nd Dist. Montgomery No. 25879, 2014-Ohio-1451, at ¶7. In short, we believe that appe llant 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 thes e circumstances. A cl ose reading of the instruments in this case reveals that the trial court’s actions were appropriate in light of the express language of the instrument s. Indeed, all five of the subject mortgages in this case, under the subheading of “miscellaneous provisions,” and under the subpa rt regarding “amendments,” specify “[t]he [m]ortgage[s], . . . cons titutes the entire understanding and agreement of the parties as to the matters set forth in” the mortgage. (E mphasis added.) Although the word “agreement” is not defined within that instrument, it is ge nerally 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 existe nce of a contract, and none is asserted here, Ohio courts are required to enforce the terms of contracts as they are written. NationwideATHENS, 13CA35 5 Mut. Ins. Co v Pinnacle Baking Co., Inc. , 10 th Dist. Franklin No. 13AP–485, 2014-Ohio-1257, at ¶14; Slater v. Altman Co. , 2 nd 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 appointme nt of a receiver in the event of default on the mortgages. Appellant does not dispute on a ppeal that she agreed to such a provision, but she contends that no evidence was adduced to s how 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 sign ed, “D. Scott Rankin answered fo r [her], waived service of process and [then] conf essed 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 appe llant’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 cour t nevertheless erred by granting the receiver power to sell the mortgaged prope rties. Again, we disagree. {¶ 17} The delegation of powers to a receiver lie s in a trial court' s sound discretion and that delegation will not be disturbed absent an abuse of that discretion. See Crawford v. Hawes , 5 th Dist. Nos. 25178 & 25180, 2013-Ohio-3173, at ¶12; U.S. Bank, N.A. v. Gotham King Fee Owner, L.L.C. , 8 th Dist. Cuyahoga No. 98618, 2013-Ohio-1983, at ¶8; Avondale Community Council v. Galarza , 1 st Dist. Hamilton No. C–110221, 2012-Ohio-186, at ¶17. The abuse of discretion standard requires a s howing of something more than a trial court’s order arguably being against the manifest weight of the evidence. Kolleda v. Kolleda , 11 th 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). U nder 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 act ually argue the tria l court abused its discretion but, rather, contends that the trial c ourt'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 ar gument is that she relies on R.C. Chapter 2329 that concerns a foreclosure sale in gene ral. A receiver’s sa le, 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 r eceiver may bring and defend actions in his own name as receiver, take and keep possession of property, receive rents, collect, compound for, and compromise de mands, make transfers , and generally do such act s respecting the property as the court [so] authorizes.” (E mphasis added) The word “transfe r” 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 (5 th 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. , 8 th Dist. Cuyahoga App. No. 97720, 2012-Ohio-3261, at ¶9; Whipps v. Ryan , 10 th Dist. Franklin Nos. 08AP-838 & 08AP-839, 2009-Ohio-2228, at ¶31. {¶ 21} Whatever constraints appellant may re ly upon from R.C. Chapter 2329 to contest the trial court's actions, we do not find them applicable to receive r actions authorized under R.C. 2735.01. {¶ 22} Accordingly, for these reasons, we hereby overrule appellant's fi rst assignment of

error. 2

2 We note that under the confession of judgment to the cognovit notes, a ppellant defaulted on payment over 21⁄2 years ago. Thus, it is not unreasonable to think that appe llee 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 receiv er to preserve the rights of the lender (appellee). This is particularly true when, as in this case, appellant offers nothing to rebutATHENS, 13CA35 8
II {¶ 23} In her third assignment of e rror, appellant argues that the trial court’ s appointment of a receiver is “void.” Here, she bases her argu ment 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 rende red, shall within five days thereafter prepare the proper journal entry and include inst ructions to the Clerk for service. Said counsel shall submit the entry to counsel for the adverse party, who shall appr ove or reject the same within three days after the receipt th ereof and return to the submitting attorney or the assignment commissioner for the j udge’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 ge nerally procedural in nature and do not involve substantive principles of law. See Parra v. Continental Tire , 8 th Dist. Cuyahoga No. 98753, 2013-Ohio-1041, at ¶29; Parra v. Continental Tire , 9 th 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 , 5 th Dist. Holmes App. Nos. 2010-CA-05 & 2010-CA-07, 2010-Ohio-5570, at ¶8.

3 www.co.athensoh.org/uplo ads/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 r eceiver. 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 , 4 th Dist. No. 11CA8, 2012-Ohio-2806, at ¶14; Columbia Gas Transm., L.L.C. v. Ogle , 4 th Dist. Hocking App. No. 10CA11, 2012-Ohio- 1483, at ¶12. Even if the trial court’s order was journalized without complian ce with Athens L.R. 11, appella nt was provided the opportunityATHENS, 13CA35 10 to both (1) be heard, and (2) oppose the motion. {¶ 27} The record on appeal reveals that the mo tion 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 wa s filed July 29, 2013 – almost a week and a half later. In other words, before the court entered judgment a ppellant was provided the opportunity to be heard and to contest appellee’s motion fo r the appointment of a receiver. Furthermore, we cannot find in this case that any arguable failure to obey th e Athens County local rule s of court amounted to a denial of due process. Thus, we hereby overrule a ppellant’s third assign ment of error. {¶ 28} Having considered all of a ppellant's errors both assign ed 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 reas onable 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 documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.