[Cite as Reister v. Gardner, 2022-Ohio-4272.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

JOHN J. REISTER, RECEIVER, ON 

BEHALF OF CERTIFIED STEEL STUD 

ASSOCIATION, INC.,

Appellee,

 - vs -

WILLIAM A. GARDNER, et al.,

 Appellees, 

- vs -

CLARKWESTERN DIETRICH BUILDING 

SYSTEMS LLC,

Appellant.

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:

:

:

:

:

CASE NO. CA2021-10-127

O P I N I O N

11/30/2022

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS

Case No. CV 2018 02 0442

Taft Stettinius & Hollister LLP, and Daniel R. Warncke and Brian A. Morris; Fox Rothschild 

LLP, and Jeffrey M. Pollock and Robert J. Rohrberger, for appellee, William A. Gardner.

Millikin & Fitton Law Firm, and Steven A. Tooman; Helmer, Martins, Tate & Garrett Co., 

LPA, and James B. Helmer, Jr., B. Nathaniel Garrett, and James A. Tate, for appellee, John 

J. Reister, Receiver, on behalf of Certified Steel Stud Association, Inc.
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Dinsmore & Shohl LLP, and Peter J. Georgiton and Justin M. Burns; Chamberlain Hrdlicka 

White Williams & Aughtry, and Scott M. Ratchick and John C. Guin, for appellee, Edward 

R. Slish.

Frost Bown Todd LLC, and Matthew C. Blickensderfer; Dentons Cohen & Grigsby, P.C., 

and Anthony Cillo and Fridrikh V. Shrayber, for appellant, Clarkwestern Dietrich Building 

Systems LLC.

BYRNE, J.

{¶1} Clarkwestern Dietrich Building Systems LLC ("ClarkDietrich") appeals from 

the decision of the Butler County Court of Common Pleas, which dismissed ClarkDietrich 

as an interested party in a declaratory judgment action. For the reasons discussed below, 

we reverse the common pleas court's decision and reinstate ClarkDietrich as an interested 

party.

I. Factual and Procedural History

{¶2} In 2013, in the Butler County Court of Common Pleas, ClarkDietrich sued the 

Certified Steel Stud Association, Inc. ("CSSA") and the CSSA's member companies in a 

lawsuit we will refer to as "the Defamation Action." The Defamation Action primarily alleged 

that CSSA made defamatory statements about the quality of ClarkDietrich's products in a 

trade publication.

{¶3} In 2015, a lengthy jury trial commenced. During the trial, ClarkDietrich settled

with each of CSSA's member companies, but did not settle with CSSA. 

{¶4} Prior to closing arguments, ClarkDietrich presented CSSA with a walk-away, 

no-cost settlement offer. That is, ClarkDietrich offered to dismiss its claims against CSSA, 

with prejudice, and with no monetary or non-monetary terms. Despite CSSA having no 

counterclaims against ClarkDietrich, CSSA's board of directors (composed of high-ranking 

steel industry executives from CSSA's member companies), voted to reject that offer.
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{¶5} ClarkDietrich then moved the trial court to dismiss its claims against CSSA 

pursuant to Civ.R. 41(A)(2). CSSA opposed that motion. The trial court denied 

ClarkDietrich's request to dismiss the case. The parties then presented closing arguments.

{¶6} In what the Ohio Supreme Court would later describe as a "be careful what 

you wish for" turn of events,

1

the jury returned a unanimous verdict for ClarkDietrich and 

awarded $49.5 million, of which $43 million was apportioned to CSSA. Accordingly, the 

trial court issued a judgment against CSSA in the amount of $43 million. We affirmed that 

judgment on appeal. Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified Steel Stud Assn., 

Inc., 12th Dist. Butler No. CA2016-06-113, 2017-Ohio-2713. 

{¶7} Following the appeal, ClarkDietrich moved the trial court to appoint a receiver 

to pursue potential claims against CSSA's board of directors on CSSA's behalf. The trial 

court agreed to do so and issued an order ("the Receivership Order"). In the Receivership 

Order, the trial court found that CSSA had stipulated that it had insufficient assets to satisfy 

the $43 million judgment. The court further found that,

CSSA possesses "property" in the form of potentially viable 

claims and choses in action that may be used to satisfy the 

judgment against it in whole or in part, including but not limited 

to a cause of action against Directors, Officers or Agents of 

CSSA for breach of fiduciary duty to CSSA. It appears to the 

Court that CSSA has failed to take the necessary steps to 

investigate and prosecute those claims.

Receivership Order at ¶ H. The court, quoting R.C. 2735.01(A)(4) and (5), found that it was 

authorized to appoint a receiver "[a]fter judgment, to carry the judgment into effect" and 

"[a]fter judgment, to dispose of the property according to the judgment, or to preserve it 

during the pendency of an appeal * * *." Finally, the court found that,

ClarkDietrich has shown by clear and convincing evidence that 

the appointment of a receiver is necessary to investigate and 

prosecute CSSA's claims against its directors, officers and/or 

1. Reister v. Gardner, 164 Ohio St.3d 546, 2020-Ohio-5484, ¶ 3.
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agents for breach of their fiduciary duties. The appointment of 

a receiver is necessary to give ClarkDietrich an opportunity to 

collect its judgment. If a receiver is not appointed, claims that 

could fund the judgment may well lapse.

Receivership Order at ¶ L.

{¶8} We affirmed the Receivership Order. Clarkwestern Dietrich Bldg. Sys., L.L.C. 

v. Certified Steel Stud Assn., 12th Dist. Butler No. CA2017-04-040, 2017-Ohio-8129. We 

held that the trial court did not abuse its discretion in finding that ClarkDietrich demonstrated 

that the appointment of a receiver was necessary to give it the opportunity to collect its 

judgment. Id. at ¶ 23-24.

{¶9} The appointed receiver, John J. Reister ("Receiver"), filed the lawsuit now 

before us ("the Receivership Action") against four CSSA directors, including defendantsappellees William A. Gardner, III and Edward R. Slish, in the Butler County Court of 

Common Pleas.2 The Receiver included ClarkDietrich in the Receivership Action as an 

interested party.

{¶10} The complaint in the Receivership Action included two causes of action. The 

first cause of action alleged that the CSSA directors breached their fiduciary duty to CSSA 

by rejecting ClarkDietrich's settlement offer. The complaint alleged that the directors were 

not acting in CSSA's best interests when they voted to reject the offer but were instead 

acting in the best interests of their respective corporate employers. The second cause of 

action was for declaratory judgment and asked the court to declare that the directors' 

decision to reject the settlement offer was not a valid exercise of business judgment and 

that the directors were not entitled to the protection of the common law business judgment 

rule. 

{¶11} Gardner and Slish subsequently moved to dismiss the Receivership Action or 

2. The record reflects that the two other director defendants settled with the Receiver.
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for judgment on the pleadings. The trial court granted judgment on the pleadings on the 

basis that the CSSA directors' actions were protected from liability by the litigation privilege 

doctrine. We affirmed. Reister v. Gardner, 12th Dist. Butler Nos. CA2019-01-010, CA2019-

01-011, and CA2019-01-020, 2019-Ohio-4720. The Ohio Supreme Court reversed our 

decision, held the litigation privilege doctrine inapplicable, and remanded for further 

proceedings. Reister, 2020-Ohio-5484 at ¶ 14, 21.

{¶12} On remand, Gardner moved to dismiss ClarkDietrich from the Receivership 

Action, arguing that ClarkDietrich was not an "interested party" under R.C. 2721.12.3 

Gardner argued that while ClarkDietrich had a practical interest in the outcome of the case, 

it had no legal interest in the case that would permit it to be a party to the Receivership 

Action under R.C. 2721.12(A).

{¶13} After the matter was fully briefed, the trial court issued an order dismissing 

ClarkDietrich. The court agreed with Gardner that ClarkDietrich did not have a legal interest 

in the Receivership Action, that ClarkDietrich was simply "tagging along," and that 

ClarkDietrich only had a pecuniary interest. The court found that ClarkDietrich could not 

"demonstrate any justiciable controversy beyond recovery of damages * * *."

{¶14} ClarkDietrich subsequently moved the court to reconsider its decision, or, 

alternatively, to amend its order with Civ.R. 54(B) language. ClarkDietrich argued that it 

was precisely because it was entitled to damages in the Defamation Action that it had a 

legal interest in the Receivership Action. ClarkDietrich also pointed out several factual 

issues that it believed the court was mistaken about and which had led the trial court to an 

incorrect decision.

3. Gardner's motion was styled a "renewed" motion. Gardner had moved to dismiss ClarkDietrich on the 

same grounds prior to the trial court's decision regarding the litigation privilege. In the litigation privilege 

decision, the trial court did not address the issue of ClarkDietrich's legal interest in the case as it found that 

the litigation privilege decision was outcome-determinative. Essentially, it deemed the issue moot. 
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{¶15} In its entry denying the motion for reconsideration, the trial court rejected 

ClarkDietrich's additional arguments, finding that nothing the court would decide in the 

Receivership Action would impact ClarkDietrich's right of recovery in the Defamation Action 

and therefore ClarkDietrich had no "justiciable claims" in the Receivership Action. 

Additionally, the court noted that in its Receivership Order the court had ordered the 

Receiver, not ClarkDietrich, to investigate and file claims against CSSA directors. The court 

did, however, grant ClarkDietrich's request to certify the dismissal order with Civ.R. 54(B) 

language.

{¶16} ClarkDietrich appealed, asserting two assignments of error.

II. Law and Analysis

A. Interested Party Analysis

{¶17} ClarkDietrich's Assignment of Error No. 1 states:

{¶18} THE TRIAL COURT ERRED BY GRANTING THE MOTION TO DISMISS 

CLARKDIETRICH AS AN INTERESTED PARTY.

{¶19} ClarkDietrich contends that the trial court erred in dismissing ClarkDietrich 

from the Receivership Action because ClarkDietrich had a legal interest in the Receivership 

Action and therefore, under the Declaratory Judgment Act, R.C. 2721.12, ClarkDietrich was 

required to be joined in the Receivership Action. The Receiver agrees.4 Gardner and Slish 

argue that ClarkDietrich only possesses a "practical interest" in the outcome of the 

Receivership Action, that ClarkDietrich does not possess a "legal interest," and therefore is 

not entitled to participate as an interested party. We will briefly summarize the relevant 

statute, determine the applicable standard of review, and then analyze the nature of 

ClarkDietrich's interest.

4. Gardner, Slish, and the Receiver have all participated in this appeal and filed briefs. Gardner and Slish 

filed briefs opposing ClarkDietrich's appeal. The Receiver filed a brief in support of ClarkDietrich's appeal.
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1. The Statute

{¶20} The statute at issue in this case, R.C. 2721.12, is part of Ohio's Declaratory 

Judgment Act. The statute provides that "when declaratory relief is sought under this 

chapter in an action or proceeding, all persons who have or claim any interest that would 

be affected by the declaration shall be made parties to the action or proceeding." R.C. 

2721.12(A). The absence of an interested and necessary party constitutes a jurisdictional 

defect precluding a court from properly rendering a declaratory judgment. Cincinnati v. 

Whitman, 44 Ohio St.2d 58, 59 (1975), citing Zanesville v. Zanesville Canal & Mfg. Co., 159 

Ohio St. 203 (1953).

{¶21} The language of R.C. 2721.12(A) is quite broad, requiring even those who 

merely "claim" to have "any" interest that would be affected to be made parties. Id. 

Gardner's counsel admitted at oral argument that ClarkDietrich would be an interested party 

in the Receivership Action if the case were decided on the statutory language alone. 

Normally, of course, it is our responsibility to decide matters of textual interpretation based 

on the actual text—the language—of the statute. State v. Singer, 50 Ohio St.2d 103, 108 

(1977). However, the Ohio Supreme Court interpreted the language in R.C. 2721.12(A) in 

a more limited fashion in Rumpke Sanitary Landfill, Inc. v. State, 128 Ohio St.3d 41, 2010-

Ohio-6037. Under the supreme court's interpretation of the statute—which we as a lower 

court are bound to apply here—only those who are "legally affected" by a potential 

declaratory judgment are proper parties under R.C. 2721.12(A). Id. at ¶ 14. The supreme 

court further found that a party is "legally affected" by a cause of action if the party "has a 

legal interest in rights that are the subject matter of the cause of action." Id. A "legal interest" 

is an interest "'recognized by law,'" or an interest that is "'legally protectable,' i.e. protected 

by law." Id., quoting Black's Law Dictionary 886 (9th Ed.2009), and In re Schmidt, 25 Ohio 

St.3d 331, 336 (1986). Thus, the supreme court held that "whether a nonparty is a 
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necessary party to a declaratory-judgment action depends upon whether that nonparty has 

a legally protectable interest in rights that are the subject matter of the action." (Emphasis 

added.) Id. at ¶ 15. 

2. Standard of Review

{¶22} As a threshold matter, the parties dispute the applicable standard of review 

that this court should apply. Gardner and Slish argue that we should review the trial court's 

decision to dismiss ClarkDietrich as an interested party for an abuse of discretion, but 

ClarkDietrich and the Receiver argue that we should review the trial court's decision de 

novo.

{¶23} Gardner cites a decision from this court, Liberty Twp. v. Woodland View, Inc., 

12th Dist. Butler No. CA2001-02-038, 2001 WL 938757 (Aug 20, 2001). In that case we 

applied an abuse of discretion standard of review when reviewing a trial court's decision to 

deny a Civ.R. 24 motion to intervene in a declaratory judgment action. Id. at *1. But that 

case did not involve any argument that the intervening party was an interested party under 

R.C. 2721.12(A); we only applied the law regarding appellate review of Civ.R. 24 motions 

to intervene. Liberty Twp. is therefore inapplicable to the case before us, which does not 

involve a Civ.R. 24 motion to intervene and instead turns on whether ClarkDietrich was 

properly designated as an interested party under R.C. 2721.12(A).

{¶24} Slish cites two cases for the proposition that an abuse of discretion standard 

of review applies. First, he cites GRE Ins. Group v. Intl. EPDM Rubber Roofing Sys., Inc., 

6th Dist. Lucas No. L-95-306, 1996 WL 354812 (June 28, 1996), for the following 

proposition of law stated in that case: 

Once the statutory requirements are met, see R.C. 2721.12, the 

decision by a trial court as to whether to proceed in a declaratory 

judgment action is a matter of judicial discretion. Bilyeu v. 

Motorists Mutual Ins. Co. (1973), 36 Ohio St.2d 35, 37.
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Id. at *8. Though GRE Ins. was decided by the Sixth District Court of Appeals and is not 

controlling in this district, the language cited by Slish is persuasive authority that we may 

consider. Second, Slish cites to the First District Court of Appeals' decision—rather than 

the Ohio Supreme Court decision mentioned above—in Rumpke Sanit. Landfill, Inc. v. 

State, 184 Ohio App.3d 135, 2009-Ohio-4888, ¶11 (1st Dist.). The First District in that case 

applied an abuse of discretion standard to the question of whether a party was an interested 

party that should have been permitted to participate in the lawsuit. Id. at ¶ 11. However, in 

the First District's Rumpke decision—also not controlling in this district—the court's analysis 

solely concerned a motion to intervene under Civ.R. 24; as in Liberty Township, the court 

did not discuss the applicable standard of review with respect to R.C. 2721.12. 

{¶25} Notably, all three of these cases—Liberty Twp., GRE Ins., and the First 

District's Rumpke decision—were decided before the Ohio Supreme Court's decision in 

Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, the primary case relied on by 

ClarkDietrich in support of its argument that we should apply a de novo standard of review. 

In Arnott, the Ohio Supreme Court held that "an appellate court reviewing a declaratoryjudgment matter should apply an abuse-of-discretion standard in regard to the trial court's 

holding concerning the appropriateness of the case for declaratory judgment, i.e., the 

matter's justiciability, and should apply a de novo standard of review in regard to the trial 

court's determination of legal issues in the case." Id. at ¶ 1.

{¶26} This appeal does not involve any question of justiciability. Instead, it involves 

the question of whether ClarkDietrich was an interested party under R.C. 2721.12(A) as 

interpreted by the Ohio Supreme Court in Rumpke. This is a "legal issue[] in the case" 

beyond the threshold question of justiciability, and thus according to Arnott we must apply 

de novo review. Arnott at ¶ 1. There are no facts in dispute; there are no facts to weigh. 

ClarkDietrich is already involved in the case and so there is no consideration of prejudice. 
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The issue of whether ClarkDietrich has a "legal interest" as opposed to a "practical interest" 

in the declaratory judgment action turns on the interpretation of legal authority and concepts. 

Accordingly, we will follow the broadly worded admonition of the Ohio Supreme Court in 

Arnott and review the trial court's decision de novo.

3. Analysis of ClarkDietrich's Interest

{¶27} As explained above, the Ohio Supreme Court has interpreted R.C. 2721.12(A) 

as providing that a party with a legal interest must be joined in a declaratory judgment action 

when that party has a legal interest in rights that are the subject matter of the action. 

Rumpke, 2010-Ohio-6037 at ¶ 14. A "legal interest" is an interest "'recognized by law,'" or 

an interest that is "'legally protectable,' i.e. protected by law." Id., quoting Black's Law 

Dictionary 886 (9th Ed.2009) and Schmidt, 25 Ohio St.3d at 336. This standard is not clear 

on its face, so we turn to the Ohio Supreme Court's relevant precedents applying that 

standard for guidance.

{¶28} The Ohio Supreme Court in Rumpke, applying R.C. 2721.12(A), found that 

Colerain Township was not a necessary party in a declaratory judgment action in which 

Rumpke sought a declaration that a statute was enacted in violation of the Ohio 

Constitution's one-subject rule. Id. at ¶ 1-3. The supreme court concluded that while the 

relevant statute impacted Colerain's zoning power with respect to Rumpke's landfill and 

could impact Colerain's ongoing litigation with Rumpke, Colerain was not a necessary party 

because it did not have a "legally protectable interest in the authority of the General 

Assembly to enact a bill," and the declaratory judgment action concerned only whether the 

one-subject rule was violated. Id. at ¶ 10, 20-21.

{¶29} In Driscoll v. Austintown Assocs., 42 Ohio St.2d 263 (1975), the supreme 

court examined whether landowners adjacent to a parcel of property owned by a developer 

were necessary parties to a declaratory judgment action brought by the developer that 
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challenged the constitutionality of township zoning as it applied to the parcel. Id. at 271-73. 

The court, applying R.C. 2721.12(A), held that while the landowners had a practical interest 

in the outcome of the action (whether the developer would be permitted to construct 

apartment buildings on the land), the landowners had no legal interest in a determination of 

the constitutionality of the zoning resolution that affected that parcel. Id. at 273.

{¶30} In Whitman, 44 Ohio St.2d 58, the supreme court examined whether the 

director of the Ohio Environmental Protection Agency ("EPA") was a necessary party to a 

declaratory judgment action challenging the constitutionality of R.C. 6111.13, a statute 

requiring the fluoridation of water supplied to a public water system. Id. at 59-60. The court 

held that the director was a necessary party pursuant to R.C. 2721.12(A) because another 

statute, R.C. 6111.12, imposed "clear duties" on the director to investigate and enforce 

compliance with R.C. 6111.13 and a holding that R.C. 6111.13 was unconstitutional would 

remove the director's duties. Id. The supreme court further explained that "Properly, when 

declaratory relief is sought which involves the validity or construction of a statute and affects 

the powers and duties of public officers, such officers should be made parties to the action 

or proceeding in which the relief is sought." Id. at 61. The court also noted that "in the 

absence of the Director as a party, the judgment would not terminate the uncertainty or 

controversy, for the judgment would not prejudice the right of the Director to issue 

compliance orders or to perform his other duties. The anomalous result would be that the 

Director would retain the right and duty to order compliance with R.C. 6111.13, and that the 

object of that order would have the right and duty to disobey it." Id. at 60.

{¶31} In Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 

the supreme court examined whether several affected communities needed to join the 

director of the Ohio Department of Natural Resources as a party to a declaratory judgment 

action concerning whether a city violated the communities' riparian rights by diverting water 
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from a river. Id. at ¶ 98-100. The court held that the director was a necessary party because 

he or she is charged with the exclusive statutory duty to issue and enforce water diversion 

permits. Id. at ¶ 100. 

{¶32} Finally, in Natl. Solid Wastes Mgt. Assn. v. Stark-Tuscarawas-Wayne Joint 

Solid Waste Mgt. Dist., 124 Ohio St.3d 197, 2009-Ohio-6765, the supreme court held that 

the director of the Ohio EPA was not a necessary party to a declaratory judgment action 

challenging local rules adopted by a solid-waste-management district because the director 

had no statutory authority to enforce those rules. Id. at ¶ 1-3. 

{¶33} These cases demonstrate that it is not sufficient for a party that purports to be 

an interested party under R.C. 2721.12(A) to simply be affected by a potential declaratory 

judgment. A party must be able to point to some distinct legal right that will or could be 

affected by the declaration. In Driscoll, the landowners had no property rights in the 

challenged parcels and thus could not demonstrate that distinct legal interest. In Whitman 

and Portage Cty., the legally interested parties could point to a statutory right that could be 

affected by the declaration—that is, a state agency director's statutory duty to enforce the 

agency's rules or permits. In Natl. Solid Wastes Mgt. Assn., the director of the Ohio EPA 

could point to no such statutory right, so the director was not legally interested.

{¶34} Here, Slish cites various cases for the proposition that a judgment creditor like 

ClarkDietrich has no "legal interest" in its judgment debtor's claims against others."5 Slish 

cites Harsh v. GEICO Gen. Ins. Co., S.D.Ohio No. 2:17-cv-00814, 2018 WL 4521934 (Sept. 

21, 2018), and ReliaStar Life Ins. Co. v. MKP Invests. LLC, S.D.Ohio Nos. 2:09-cv-700, 

2:09-cv-707, and 2:09-cv-718, 2013 WL 12099305 (July 11, 2013).

5. Slish admits there is a "single, statutory exception for insurance-coverage claims[,]" citing Indiana Ins. Co. 

v. Murphy, 165 Ohio App.3d 812, 2006-Ohio-1264 (3d Dist.) and Cincinnati Ins. Co. v. Consolidated Equip. 

Co., 2d Dist. Montgomery No. 19390, 2003-Ohio-47. In those cases, a tort claimant with pending claims 

against an insured was found to have a "legal interest" in a declaratory judgment action between the insured 

and its insurer. 
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{¶35} In Harsh, a judgment debtor (Harsh) sued his insurer (Geico) for various 

claims. Harsh at *2. The judgment creditor (Weaver) sought to intervene. Id. In overruling 

objections to a federal magistrate judge’s recommendation that intervention be denied, the 

United States District Court for the Southern District of Ohio held,

The magistrate judge correctly determined that as a Judgment 

Creditor, Weaver is not entitled to intervene either permissively 

or as of right. First, Weaver lacks a direct and substantial legal 

interest in this case as he is interested solely in collecting his 

interest in Harsh's potential recovery and otherwise has "no 

direct claim against [GEICO]." (ECF No. 12 at 9, n.2.); Reliastar 

Life Ins. Co. v. MKP Invs., 565 F. App'x 369, 372 (6th Cir. 2014) 

("... an applicant is not due intervention as a matter of right 

where the applicant seeks only to protect the assets of a party 

to the litigation in order to ensure that its own contingent claims 

to those assets remain valuable in the future.") (citing United 

States v. Tennessee, 260 F.3d 587, 595 (6th Cir. 2001) 

(rejecting as insufficient the proposed intervenor's "economic 

interest in assuring adequate funding for implementation of the 

settlement agreements and its contractual rights in 

agreements") ).

Id. at *6.

{¶36} ReliaStar also involved a judgment creditor seeking intervention in a lawsuit 

filed by the judgment debtor against a third party. Quoting United States v. Alisal Water 

Corp., 370 F.3d 915, 920 (9th Cir.2004), the federal district court observed that,

the impaired ability to collect judgments that may arise from 

future claims does not give rise to a right of intervention. The 

underlying reasoning in Hawaii-Pacific supports the conclusion 

that an allegedly impaired ability to collect judgments arising 

from past claims does not, on its own, support a right to 

intervention. To hold otherwise would create an open invitation 

for virtually any creditor of a defendant to intervene in a lawsuit 

where damages might be awarded. See Public Serv. Comp, of 

New Hampshire v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) 

(holding that "[i]t is settled beyond peradventure ... that an 

undifferentiated, generalized interest in the outcome of an 

ongoing action is too porous a foundation on which to premise 

intervention as of right").

Id. *6.
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{¶37} The ReliaStar court, at footnote 2, quoted from Wright & Miller, Federal Prac. 

& Proc., Section 1908.2 as supporting the proposition that a mere economic interest in the 

outcome of a lawsuit is insufficient to serve as basis to intervene:

It has been recognized that interests in property are the most 

elementary type of right that Rule 24(a) is designed to protect. 

Thus, many of the cases in which a sufficient interest has been 

found under amended Rule 24(a)(2) have been cases in which 

there is a readily identifiable interest in land, or some other form 

of property, such as intellectual property or personal property. A 

sufficient interest also has been found when the intervener 

claims an identifiable interest in funds that are the subject of 

litigation. For example, insurers have been allowed to intervene 

as of right in lawsuits between their insured and third parties 

who either are filing claims against the insured or who are being 

sued by the insured. It surely is sufficient also if the judgment 

will have a binding effect on the would-be intervener.

{¶38} Harsh and ReliaStar—which, again, are not controlling in our district—make 

a persuasive case that a mere judgment creditor may not be a necessary party in a 

declaratory judgment action. But, once again, these cases do not concern necessary 

parties under R.C. 2721.12(A), but instead involve Fed.R.Civ.P 24(a) and (b). The case 

before us is therefore distinguishable from Harsh and ReliaStar.

{¶39} Even if Harsh and ReliaStar applied in the R.C. 2721.12(A) context, we find 

that ClarkDietrich, in the circumstances of this case, is more than just a common judgment 

creditor. ClarkDietrich sought the Receiver's appointment for the specific purpose of 

investigating and bringing a claim against CSSA’s board of directors for breach of fiduciary 

duty to obtain a judgment from which ClarkDietrich’s Defamation Action judgment could be 

satisfied. The court appointed the Receiver for the sole purpose advanced by ClarkDietrich. 

The Receivership is a statutorily authorized, judicially-created judgment collection vehicle. 

In the Receivership Order, the trial court found that the Receivership was appropriate and 

necessary to "carry [ClarkDietrich's] judgment [against CSSA] into effect" and to "dispose 

of property according to [ClarkDietrich’s] judgment, or to preserve it during the pendency of 
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an appeal"—two of the purposes which R.C. 2735.01(A)(4) and (5) provide may be the 

bases for a trial court's appointment of a receiver. The court found that appointment of the 

Receiver was warranted to avoid "irreparable loss or injury" to ClarkDietrich. ClarkDietrich 

has a legally protectable interest in the Defamation Action judgment that the Receivership 

was created to carry out. The declaratory judgment sought by the Receiver could affect or 

impair the ability of the Receivership to fulfill its statutory and court-ordered function with 

respect to ClarkDietrich. By virtue of the statutes that authorized the Receivership and the 

court order authorizing the Receivership, ClarkDietrich also has a legal interest in the 

subject matter of the Receivership Action.

{¶40} In this case, the Receiver seeks a declaratory judgment that the directors' 

rejection of ClarkDietrich's settlement offer was not a valid exercise of the business 

judgment rule. This issue is tied to the viability of the claims asserted in the Receivership 

Action. If the business judgment rule applies, it could shield the directors from liability and 

bar the Receiver's recovery on behalf of CSSA. A decision adverse to the Receiver on 

whether the business judgment rule applies will have a clear and obvious legal effect on 

ClarkDietrich's rights to recover on its judgment through the Receivership. Accordingly, we 

conclude that ClarkDietrich has a legally protectable interest "that would be affected by the 

declaration." R.C. 2721.12(A); Rumpke, 2010-Ohio-6037, at ¶ 15. 

{¶41} In the many cases cited by the parties in their briefing, none involve the 

procedural posture presented in this case. ClarkDietrich is not like the property owners in 

Driscoll that were only practically interested, rather than legally interested, in litigation 

involving an adjoining property. ClarkDietrich is not like the government officials in Portage 

Cty. and Whitman who were legally interested in a declaratory judgment that would impact 

their legal authority to enforce statutes. Nor is ClarkDietrich a common judgment creditor 

with a mere practical interest in ensuring that funds are available to satisfy the judgment. 
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This case is different: here, ClarkDietrich requested the creation of the Receivership for the 

sole purpose of seeking funds to satisfy its judgment; the court, authorized by statute to do 

so, created the Receivership for that purpose; and the Receivership Order makes clear that 

the Receivership exists to benefit ClarkDietrich. ClarkDietrich's "interest" in the Receiver's 

declaratory judgment action is neither "undifferentiated nor generalized" as mentioned in 

ReliaStar. Pursuant to the Receivership Order, ClarkDietrich has the necessary "readily 

identifiable interest" in the Receiver's claims against CSSA’s directors and any resulting 

judgment. ReliaStar at fn. 2, citing Federal Prac. & Proc. at Section 1908.2. ClarkDietrich 

is "legally affected" and therefore has a legal interest that required the Receiver to add it as 

an interested party when the Receiver initiated the Receivership Action. R.C. 2721.12(A); 

Rumpke, 2010-Ohio-6037 at ¶ 14.

{¶42} Based on the foregoing, we find that the trial court erred by dismissing 

ClarkDietrich on the basis that it lacked a legal interest in the declaratory judgment action. 

Accordingly, we sustain ClarkDietrich's first assignment of error.

B. Motion to Reconsider

{¶43} Assignment of Error No. 2 states:

{¶44} THE TRIAL COURT ERRED BY DENYING CLARKDIETRICH'S MOTION TO 

RECONSIDER.

{¶45} ClarkDietrich did not separately argue its second assignment of error, but 

instead argued it in conjunction with the first assignment of error. Regardless, the resolution 

of the first assignment of renders Assignment of Error No. 2 moot, and we need not address 

it. App.R. 12(A)(1)(c). 

III. Conclusion

{¶46} ClarkDietrich has a legal interest in the Receivership Action that requires its 

inclusion as an interested party in that action pursuant to R.C. 2721.12(A). 
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{¶47} Judgment reversed, cause remanded for further proceedings, and 

ClarkDietrich is reinstated as an interested party.

M. POWELL, P.J., and S. POWELL, J., concur.