COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68691 : ACCELERATED DOCKET SEAWAY FOOD SERVICES : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION SWINGOS, INC., ET AL. : : : Defendant-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 14, 1995 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-256645 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: MICHAEL J. O'SHEA LAWRENCE TUCKER 1600 Illuminating Building Tucker & Cohen 55 Public Square 407 Leader Building Cleveland, Ohio 44113 Cleveland, Ohio 44114 - 2 - PER CURIAM: This cause came to be heard upon an accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25 of the Eighth District Court of Appeals. App. R. 11.1(D) states, in pertinent part, "It shall be sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. Seaway Food Services appeals the decision of the Common Pleas Court denying its request to appoint a receiver over the person of Jim Swingos in furtherance of Seaway's efforts to collect an unpaid judgment. This matter began in August 1994 when Seaway obtained a $100,000 judgment against both Swingos, Inc. and Jim Swingos personally, for indebtedness on goods and merchandise supplied to Swingos, Inc. which had been personally guaranteed by Jim Swingos. Because neither Swingos, Inc. nor Jim Swingos paid anything on this judgment, Seaway made two earlier efforts to collect the judgment. First, in October 1994, Seaway filed an Order in Aid of Execution and the trial court ordered forty-four area banks to hold any monies in the name of Swingos, Inc. or Jim Swingos, but the action did not recover sufficient funds to satisfy the judgment. Next, in November 1994, Seaway attempted to attach the personal property in Jim Swingos's personal residence. However, the attachment proved unsuccessful because - 3 - Swingos's wife owned all the property, a fact to which the parties later stipulated. Subsequently, Seaway petitioned the court to appoint a receiver over the person of Jim Swingos. The trial court held an evidentiary hearing on the matter and Jim Swingos appeared personally. At the hearing Swingos testified that his personal residence and all of its contents are owned by his wife. He explained that in 1994 he received approximately $20,000 in combined salary from Swingos, Inc., Swingos Silver Quill, Inc., and Swingos Theatrical Grill, Inc. Swingos stated that he has no ownership interest in any of the Swingos establishments, except Swingos, Inc. which operates at the Statler Building in Cleveland. He further testified that although he owns one hundred percent of Swingos, Inc. stock, his landlord has held a security lien over this stock for the last several years due to past indebtedness. After the hearing, the trial court denied the motion to appoint a receiver. Seaway appeals and assigns the following as error for our review: THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO APPOINT A RECEIVER OVER THE PERSON OF JAMES SWINGOS. Seaway contends the trial court abused its discretion in denying the receivership because the facts suggest Swingos set up a series of corporations and bank accounts designed to evade collection efforts by creditors. Swingos urges that Seaway's allegations of creditor avoidance are not based in fact and that the trial court acted - 4 - properly in not appointing a receiver because Seaway made no efforts to garnishee Jim Swingos's wages. This issue before us, then, is whether the trial court's denial of the request to appoint a receiver constituted an abuse of discretion in this case. In State, ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, the Ohio Supreme Court stated the well-settled rule that "The question of whether or not a receiver will be appointed in a given case is addressed to the sound discretion of the court under all circumstances." (Citations omitted.) Id. at 73. Thus, an appeals court will not disturb the court's decision absent a clear abuse of sound judicial discretion. "The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151 at 157. See also Steiner v. Custer (1940), 137 Ohio St. 448; Conner v. Conner (1959), 170 Ohio St. 85; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372. The court's authority to appoint a receiver is codified in R.C. 2735.01 which provides, in pertinent part: A receiver may be appointed by *** the court of common pleas or a judge thereof in his county *** in the following cases: *** (C) After judgment, to carry the judgment into effect; (D) After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied and the - 5 - judgment debtor refuses to apply the property in satisfaction of the judgment ***. We also note that a receiver should not be appointed for the sole purpose of securing evidence. Rather, the party seeking the appointment of a receiver must prove the existence of a fund or property for which the receiver is sought. Schultze v. Schultze (1964), 5 Ohio App.2d 261. In this case, the record reveals that other than the Swingos, Inc. stock, which Swingos stated is under a security lien to Trembal Construction, Swingos owns no other property in his own name and, in 1994, received approximately $20,000 in total salary from employment at the various Swingos establishments. There is no evidence of any property transfers to circumvent the judgment and no evidence of any income to Swingos other than through salary. Furthermore, Seaway offered no concrete proof of property that could be applied to satisfy the judgment nor proof of any additional funds which would become available. Accordingly, the trial court did not abuse its discretion in denying the request for a receiver and the assignment of error is without merit. Judgment affirmed. - 6 - It is ordered that 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 Common Pleas 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. LEO M. SPELLACY, PRESIDING JUDGE PATRICIA BLACKMON, 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 announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .