[Cite as DCR Mtge. IV Sub I, L.L.C. v. Hines Invests., L.L.C., 2011-Ohio-5091.]

COURT OF APPEALS 

 FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DCR MORTGAGE IV SUB I, LLC 

 Plaintiff-Appellee 

-vsHINES INVESTMENTS, LLC, et al., 

 

 Defendants-Appellants 

: JUDGES: 

: W. Scott Gwin, P.J. 

: Sheila G. Farmer, J. 

: Julie A. Edwards, J. 

: 

: Case No. 11-CA-24 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County 

 Court of Common Pleas Case No. 

 10-CV-1142 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: September 29, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

TAMI HART KIRBY, ESQ. JAMES G. VARGO 

WILLIAM G. DEAS, ESQ. JAMES G. VARGO 

WALTER REYNOLDS, ESQ. 6598 Brock Street, First Floor 

Porter Wright Morris & Arthur LLP Dayton, Ohio 45402 

One South Main Street, Ste. 1600 

Dayton, Ohio 45402 

 
[Cite as DCR Mtge. IV Sub I, L.L.C. v. Hines Invests., L.L.C., 2011-Ohio-5091.]

Edwards, J. 

{¶1} Appellants, Hines Investments, LLC and Pamela Hines, appeal a 

judgment of the Fairfield County Common Pleas Court overruling their motion to remove 

a receiver appointed earlier in this case. Appellee is DCR Mortgage IV Sub I, LLC. 

STATEMENT OF FACTS AND CASE

{¶2} On September 13, 2010, appellee filed the instant foreclosure action. At 

the same time, appellee filed a motion for appointment of a receiver. The court granted 

the motion to appoint a receiver on September 14, 2010. 

{¶3} On October 28, 2010, appellant filed an answer to the complaint. They 

filed a motion to remove the receiver on November 18, 2010, arguing that appellee had 

not acted in good faith with regard to the loans secured by the property they sought to 

foreclose upon, and the expense of the receiver was unnecessary. The court held a 

hearing on the motion and overruled the motion, finding appellants failed to set forth a 

good reason for removal of the receiver. Appellants assign two errors on appeal: 

{¶4} “I. THE TRIAL COURT ERRED BY GRANTING A MOTION FOR 

APPOINTMENT OF A RECEIVER WITHOUT AFFORDING APPELLANTS DUE 

PROCESS AND WITHOUT FIRST FOLLOWING THE LOCAL RULE PERMITTING 

THE FILING OF AN OPPOSING MEMORANDUM WITHIN FOURTEEN DAYS. 

{¶5} “II. ONCE THE PARTIES WERE PROVIDED PROPER NOTICE AND AN 

OPPORTUNITY TO BE HEARD REGARDING THE APPOINTMENT OF A RECEIVER, 

THE TRIAL COURT ERRED BY RETAINING THE RECEIVER AS THERE WAS 

INSUFFICIENT EVIDENCE SUPPORTING THE NECESSITY OF A RECEIVER.” 
Fairfield County App. Case No. 11-CA-24 3 

I 

{¶6} Appellants’ first assignment of error claims error in the September 14, 

2010, order appointing a receiver. Appellants recognized that their appeal is clearly 

untimely as to this order, but argue because service was not perfected and the court did 

not have jurisdiction over them at the time the order was issued, the order is void ab 

initio and may be attacked at any time. 

{¶7} Failure of proper service deprives the court of personal jurisdiction and 

renders any judgment void ab initio. E.g., Pippin v. Hauser (1996), 111 Ohio App.3d 

557; Rite Rug Co. v. Wilson (1995), 106 Ohio App.3d 59. The court may obtain 

personal jurisdiction by service of process, voluntary appearance or waiver. Maryhew v. 

Yova (1984), 11 Ohio St.3d 154, 156. Any objection to the assumption of personal 

jurisdiction is waived by a party’s failure to assert a challenge to such jurisdiction at its 

first appearance in the case. McBride v. Coble Express, Inc. (1993), 92 Ohio App.3d 

505, 510, 636 N.E.22d 356, 359. 

{¶8} Appellants filed an answer to the complaint on October 28, 2010, in which 

they failed to raise the defense of lack of personal jurisdiction. Further, in their motion 

to remove the receiver, filed November 18, 2010, appellants failed to raise lack of 

personal jurisdiction at the time the receiver was appointed, but rather argued that 

appellee had not acted in good faith with regard to the loans secured by the property 

they sought to foreclose upon, and the expense of the receiver was unnecessary. By 

failing to raise lack of personal jurisdiction in their first appearance in the case, 

appellants have waived the right to challenge the September 14, 2010 judgment at this 

point in the proceedings, and their appeal is clearly untimely as to that judgment. 
Fairfield County App. Case No. 11-CA-24 4 

{¶9} The first assignment of error is overruled. 

II 

{¶10} In their second assignment of error, appellants argue the court erred in 

overruling their motion to remove the receiver. 

{¶11} Proceedings related to the appointment and removal of receivers are 

special proceedings under R.C. 2505.02 and orders for appointment and removal affect 

a substantial right made in a special proceeding. Such orders are, therefore, final and 

appealable. See, e.g., Cincinnati, Sandusky & Cleveland Rd. Co. v. Sloan (1876), 31 

Ohio St. 1, paragraph two of the syllabus; Forest City Invest. Co. v. Haas (1924), 110 

Ohio St. 188, 143 N.E. 549; Metro Life Ins. Co. v. Begin, 59 Ohio App. 5, 6, 7, 16 

N.E.2d 1015. However, an order overruling a motion to remove a receiver is not an 

order affecting substantial rights of the parties from which an appeal may be 

prosecuted, since the status quo between the parties remains the same. Neighbors v. 

Thistle Down Co. (1926), 26 Ohio App. 324, 159 N.E. 111; Stiver v. Stiver (1939), 63 

Ohio App. 327, 17 O.O. 96, 26 N.E.2d 595. Therefore, an order denying a motion to 

remove a receiver is not a final, appealable order since the status quo between the 

parties remains the same. Prudential Ins. Co. v. Corporate Circle, Ltd. (1995), 103 Ohio 

App.3d 93, 658 N.E.2d 1066, 1071. 
Fairfield County App. Case No. 11-CA-24 5 

{¶12} The order appealed from is an order overruling a motion to remove a 

receiver and is therefore, not a final, appealable order. 

{¶13} The appeal is dismissed for want of jurisdiction. 

By: Edwards, J. 

Gwin, P.J. and 

Farmer, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

JAE/r0804 
[Cite as DCR Mtge. IV Sub I, L.L.C. v. Hines Invests., L.L.C., 2011-Ohio-5091.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DCR MORTGAGE IV SUB I, LLC : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

HINES INVESTMENTS, LLC, et al., : 

 : 

 Defendants-Appellants : CASE NO. 11-CA-24 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

appeal of the Fairfield County Court of Common Pleas is dismissed. Costs assessed to 

appellants. 

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 JUDGES