COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67831 BFD INVESTORS INC., ET AL. : : ACCELERATED CASE Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION HERSHEY PASTA GROUP, ET AL. : : PER CURIAM Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: MARCH 16, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-253757 JUDGMENT: REVERSE AND REMAND DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants, BFD Investors, Inc. and BFD Investors, Ltd.: THOMAS L. ESPER (#0007090), PERSKY, SHAPIRO, SALIM, ESPER, ARNOFF & NOLFI CO., L.P.A., 1410 Terminal Tower, Cleveland, Ohio 44113-2298 For Plaintiff-Appellant, Jack Marquardt: KENNETH P. FRANKEL (#008788), SMITH & SMITH ATTORNEYS, 110 Moore Road, Avon Lake, Ohio 44012 For Plaintiffs-Appellants, United Food Brokers, Inc., Richard Jantz and Stephen Klein: JOSEPH D. ZAMORE (#0018925), ZAMORE & GISSER, The Superior Building, Suite 1920, 815 Superior Avenue NE, Cleveland, Ohio 44113-2701 For Defendants-Appellees, James Price, George McLaughlin, Ideal Macaroni Co., Weiss Noodle Co., and Weiss Soup: ALAN N. HIRTH (#0021953), CLIMACO, CLIMACO, SEMINATORE, L.P.A., 9th Floor, The Halle Building, 1228 Euclid Avenue, Cleveland, Ohio 44115-1891 For Defendant-Appellee, Hershey Pasta: MARIO CIANO (#0002867), REMINGER & REMINGER, 113 St. Clair Avenue, Suite 700, Cleveland, Ohio 44114 - 2 - PER CURIAM: Plaintiffs-appellants BFD Investors, Inc., BFD Investors, Ltd., Frederick Jantz, Jack Marquardt, Stephen Klein, and United Food Brokers, Inc., ("appellants") appeal from the appointment of a receiver for BFD Investors, Inc., and BFD Investors, Ltd. Appel- lants raise two assignments of error: I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN APPOINTING A RECEIVER IN THIS CASE WITHOUT FIRST HAVING ASCERTAINED THAT A RECEIVER WAS AUTHORIZED PURSUANT TO OHIO REVISED CODE 2735.01. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT APPOINTED A RECEIVER IN THIS CASE TO TAKE CHARGE OF THE ASSETS AND BUSINESS OF A SOLVENT CORPORATION, DISPLACING THE DULY ELECTED OFFICERS AND DIRECTORS, WITHOUT FIRST HAVING DETERMINED, BY CLEAR AND CONVINCING EVIDENCE, THAT SUCH APPOINTMENT WAS NECESSARY AND/OR AUTHORIZED, THAT THE APPLICANT WAS IN DANGER OF SUFFERING IRREPARABLE LOSS OR INJURY, OR THAT THE APPOINTMENT WAS NECESSARY FOR THE PRESERVATION OF THE APPLICANT'S RIGHTS. In June 1993, appellants brought this action against defendants-appellees James Price and George McLaughlin and defendants Hershey Pasta Group, Ideal Macaroni Co., Weiss Noodle Co., and Weiss Soup. Price, McLaughlin, and Ideal Macaroni Co. counterclaimed. In September 1993, Price and McLaughlin filed an application seeking the appointment of a receiver for BFD, Inves- tors, Inc., and BFD Investors, Ltd. On March 24, 1994, after the filing of response and reply briefs, the trial court appointed a receiver. - 3 - We address appellants' assignments of error together. Appel- lants contend the trial court erred when it found the appointment of a receiver appropriate without giving them notice or holding a hearing. We review the appointment of a receiver for abuse of discretion. State ex rel. Celebreeze v. Gibbs (1991), 60 Ohio St.3d 69, 73. R.C. 2735.01 provides: A receiver may be appointed by *** the court of common pleas or a judge thereof in his county *** in the following cases: (A) In an action *** between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of a party whose right to or interest in the property or fund, or the pro- ceeds thereof, is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured; *** (F) In all other cases in which receivers have been appointed by the usages of equity. The appointment of a receiver is an extraordinary remedy; the party seeking the appointment must prove by clear and convincing evidence the necessity of the appointment. Equity Centers Dev. Co. v. S. Coast Centers, Inc. (1992), 83 Ohio App.3d 643, 649. "The order for an interim receiver may be reviewed only for the purpose of determining whether there is evidence tending to prove the facts essential to sustain the order, and a reviewing court may not consider the weight of the evidence." Equity Centers, 83 Ohio App.3d at 649-650. - 4 - Here, the trial court abused its discretion by appointing a receiver when the record contained no evidence. No hearing was held; nor were affidavits, depositions, or other evidentiary material presented. The briefs are not evidence. See Bank One v. O'Brien (Dec. 31, 1991), Franklin App. No. 92 AP-166, unreported. Further, documents attached to the briefs are not evidence because they were not framed by affidavit. Accordingly, appellants' assignments of error are well taken. Judgment reversed and cause remanded. - 5 - This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. LEO M. SPELLACY, PRESIDING JUDGE DONALD C. NUGENT, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .