COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71518 ELIZABETH A. HONESS, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellees : : and -vs- : : OPINION NABIL N. GHALI, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT AUGUST 7, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 315703 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCE: For Plaintiffs-Appellees: For Defendants-Appellants: EDWARD J. HEBEN, JR., ESQ. W. CRAIG BASHEIN, ESQ. JEFFREY M. MCGAFFICK, ESQ. ANTHONY P. SOUGHAN, ESQ. Heben and Associates Bashein & Bashein 3740 Euclid Avenue 1200 Illuminating Bldg. Cleveland, Ohio 44115 55 Public Square And Cleveland, Ohio 44113 W. E. GERSTENSLAGER, ESQ. The Huntington Bldg. 925 Euclid Avenue, Ste. 1995 Cleveland, Ohio 44115 PATRICIA ANN BLACKMON, P.J.: Dr. Nabil Ghali and Academy Medical Center ( AMC ), defendants-appellants, appeal a decision by the trial court granting a motion for prejudgment attachment filed by Elizabeth - 2 - Honess, plaintiff-appellee, in her individual and class-action suit for medical malpractice. Ghali assigns the following five errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS BY GRANTING APPELLEE S MOTION FOR PREJUDGMENT ATTACHMENT WHERE APPELLEE S AFFIDAVIT IN SUPPORT FAILED TO RECITE SPECIFIC FACTS UPON WHICH AFFIANT BASED HIS OPINIONS. II. THE TRIAL COURT ERRED BY GRANTING APPELLEE S EX-PARTE MOTION FOR PREJUDGMENT ATTACHMENT WHERE APPELLEE FAILED TO DEMONSTRATE AND MEET THE PROBABLE CAUSE STANDARD OF R.C. 2715.011. III. THE TRIAL COURT ERRED BY NOT PERMITTING APPELLANTS COUNSEL TO CROSS-EXAMINE APPELLEES COUNSEL ON THE ALLEGATIONS CONTAINED IN HIS AFFIDAVIT IN SUPPORT OF MOTION FOR PREJUDGMENT ATTACHMENT. IV. THE TRIAL COURT ERRED BY ATTACHING ASSETS OF A NON-PARTY CORPORATION. V. THE TRIAL COURT ERRED IN FAILING TO DISSOLVE THE EX-PARTE PREJUDGMENT ORDER OF ATTACHMENT WHERE APPELLEE FAILED TO PRODUCE ANY EVIDENCE AT HEARING TO SUPPORT THE OPINIONS CONTAINED IN THE AFFIDAVIT. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On September 24, 1996, Elizabeth Honess filed a malpractice complaint against Dr. Nabil Ghali and the Academy Medical Center ( AMC ) asserting individual and class-action claims for medical malpractice. According to the complaint, Ghali s medical license was revoked effective February 24, 1993. However, Ghali continued to provide gynecological medical care, examinations, and abortions while employed at AMC. During these examinations and procedures, - 3 - Ghali engaged in the inappropriate and improper touching, caressing, or taking indecent liberties upon the persons, the breast or genitals of Plaintiffs. The complaint further alleged AMC knew that Ghali s license was revoked but falsely, fraudulently, maliciously, and intentionally represented that Ghali was licensed. The complaint also alleged Ghali was negligent in providing medical services to the plaintiffs and his negligence caused them great humiliation, shame, embarrassment, pain, and suffering resulting in permanent injury and disability. The complaint sought one hundred million dollars in compensatory damages, punitive damages, interest, costs, and attorney fees. On September 25, 1996, Honess filed a Motion for Order of Attachment and Appointment of Receiver Prior to Hearing. Honess alleged that Ghali and AMC were about to assign, remove, conceal, and convert their real property to money in order to defraud plaintiffs. Honess alleged the plaintiffs would suffer irreparable injury unless the attachment order was granted immediately and before a hearing. Attached to the motion was an affidavit from plaintiffs trial counsel Edward Heben, Jr. Heben averred that Ghali had recently been charged with six counts of gross sexual imposition, one count of kidnaping, four counts of felonious assault and six counts of felonious sexual penetration as a result of the incidents described in Honess complaint. Heben averred that Ghali owned an office building at 11710 Shaker Blvd. in Cleveland with an approximate - 4 - value of $350,000. According to Heben, the property was in the possession of Academy Management, Inc., a corporation of which Ghali was President, sole shareholder, and statutory agent. Along with a copy of the complaint, Honess also attached the First Mortgage Deed signed by Ghali as President of Academy Management, Inc. in favor of Shaker Medical Building, Inc., and a legal description of the property. Heben averred there was a present danger that Ghali would remove, convert, conceal, assign, remove, or otherwise dispose of his property unless the attachment order was granted. On October 1, 1996, Honess filed a motion to attach Ghali s bank accounts at various banks. Attached to the motion was an affidavit by Heben as well as a copy of the complaint, copies of escrow deposit receipts, bank checks and cashier s checks made payable to Ghali, a consent action authorizing Ghali to act on behalf of Academy Management, Inc., a copy of the mortgage and the legal description of the Shaker Blvd. office building. In an order dated October 2, 1996, the trial court denied the September 25, 1996 motion for order of attachment and appointment of receiver prior to hearing for failure to allege with sufficient particularity grounds under R.C. 2715.045(B)(1). On October 3, 1996, the trial court granted Honess motion for order of attachment and appointment of receiver prior to hearing filed October 1, 1996 and appointed Attorney William Gerstenslager as receiver. On October 7, 1996, the trial court issued an Order of Attachment and Appointment of Receiver. - 5 - Ghali and AMC filed their answer to Honess complaint on October 10, 1996, and raised various defenses. On October 18, 1996, Ghali and AMC filed a request for a hearing under R.C. 2715 et seq. in order to dispute the plaintiff s claim on their property. In an October 22, 1996 brief in support of their motion to discharge prejudgment attachment, Ghali and AMC argued Ghali had a history of defending against claims brought against them and Ghali needed his assets to defend himself against the civil case and the criminal case. They also argued there was no basis upon which to certify the class and that many of the claims were time- barred as not being filed within the one-year statute of limitations for intentional tort and malpractice claims. On October 22, 1996, the trial court held a hearing on the motion to discharge prejudgment attachment. Thereafter, on October 23, 1996, the trial court denied the motion. This appeal followed. In their first and fifth assignments of error, Ghali and AMC argue Honess failed to recite specific facts to support the 1 allegations contained in the affidavit in support of her motion for prejudgment attachment. R.C. 2715.045 provides that a motion for attachment shall be accompanied by an affidavit of the plaintiff, his agent, or attorney which sets forth the nature and amount of the plaintiff s claim; the facts that support at least one of the grounds for an attachment listed in R.C. 2715.01; a description of the property sought and its approximate value if 1 The affidavit attached to the motion for prejudgment attachment was unsigned. However, Ghali and AMC failed to object to the lack of signature. - 6 - known; the location of the property; the use to which the defendant has put the property and that the property is not exempt from attachment or execution; if the property sought is in the possession of a third person, the name of the person possessing the property. In this case, the affidavit submitted by the plaintiffs provided information about the nature of their claim [Heben affidavit Par. 2 & 3; Affidavit Exhibit A (Complaint)], a legal description of the property and its approximate value [Heben Affidavit Par 8; Aff. Exh. D]; the location of the property [Heben Affidavit Par. 8; Aff. Exh. D]; the use to which Ghali and AMC have put the property and that it was not exempt from attachment or execution. [Heben Aff. Par. 9]; and the name of the person possessing the property [Heben Aff. Par. 10]. The question before us is whether the affidavit contained facts to support at least one of the grounds for an attachment listed in R.C. 2715.01. R.C. 2715.01 lists the following grounds for attachment: (1) that the defendant or one of several defendants is a foreign corporation; (2) that the defendant is not a resident of this state; (3) that the defendant has absconded with the intent to defraud his creditors; (4) that the defendant has left the county of his residence to avoid the service of a summons; (5) that the defendant so conceals himself that a summons cannot be served upon him; - 7 - (6) that the defendant is about to remove his property, in whole or part, out of the jurisdiction of the court, with the intent to defraud his creditors; (7) that the defendant is about to convert his property, in whole or part, into money, for the purpose of placing it beyond the reach of his creditors; (8) that the defendant has property or rights in action, which he conceals; (9) that the defendant has assigned, removed, disposed of, or is about to dispose of, his property, in whole or part, with the intent to defraud his creditors; (10) that the defendant has fraudulently or criminally contracted the debt, or incurred the obligations for which suit is about to be or has been brought; or (11) that the claim is for work or labor. In this case, the plaintiffs affidavit contained averments of the type listed in R.C. 2715.01(6) through (10). Ghali and AMC argue the affidavit failed to set forth specific facts upon which the affiant s belief was based. An affidavit in support of an ex parte motion for attachment must recite specific facts upon which the affiant bases his belief that the plaintiff would suffer irreparable injury if the motion for attachment was denied. Johnson & Hardin Company v. DME Limited (1995), 106 Ohio App.3d 377, 388. A finding of irreparable injury may be made where the court finds there is present danger the defendant will immediately dispose of or conceal the property or place it beyond the court s - 8 - jurisdiction or where the court finds the property s value will be substantially impaired if the attachment order is delayed. Id. In Johnson & Hardin, the court held the following averment to be sufficient evidence upon which to base a finding of irreparable injury: To the best of my knowledge and belief, if this Order of Attachment is delayed until Defendant has been given notice and opportunity for hearing, then irreparable injury will result to J & H. Specifically, [Raffoler], will remove the assets beyond the jurisdiction of this Court, which constitutes irreparable injury as set forth in Revised Code 2715.011[sic] and 2715.045(B). In this case, the plaintiffs affidavit contained averments that Ghali would dispose of, conceal or remove the assets beyond the court s jurisdiction. The affidavit also contained information about the serious criminal and civil charges pending against Ghali. Under the circumstances and in light of the decision in Johnson & Hardin, we conclude the affidavit was sufficient to establish irreparable harm. Ghali and AMC s first assignment of error is overruled. In their second assignment of error, Ghali and AMC argue the Plaintiffs failed to demonstrate probable cause to support the motion. Probable cause means a likelihood that a plaintiff who files for prejudgment attachment will obtain judgment against the defendant. R.C. 2715.011(A). In their brief before this court, Ghali and AMC argue many of the charges against Ghali were subsequently dismissed. However, we must evaluate the trial court s decision based on the evidence as - 9 - it existed at the time the decision was made. At the time the trial court issued the attachment order, Ghali was facing several serious criminal charges arising out of the same behavior that formed the basis of Honess claim. The trial court reasoned the grand jury s finding of probable cause was sufficient to satisfy R.C. 2715.011(A) s probable cause requirement. We conclude the trial court properly took these charges into account when deciding whether Honess was likely to obtain a judgment on her complaint. Ghali s second assignment of error is overruled. In their third assignment of error, Ghali and AMC argue the trial court should have allowed them to cross-examine plaintiffs counsel, Edward Heben, on the allegations made in his affidavit. R.C. 2715.043 provides that a 2715.04 hearing shall be limited to a consideration of whether there is probable cause to support the motion and whether any of the defendant s property is exempt from attachment. The trial court may, in its discretion, limit the scope of cross-examination. See State v. Green (1993), 66 Ohio St.3d 141, 147. The trial court s failure to allow Ghali and AMC to cross-examine Heben did not constitute an abuse of the discretion. Ghali and AMC s third assignment of error is overruled. In their fourth assignment of error, Ghali and AMC argue the trial court erroneously attached the assets of Academy Management, Inc., a non-party corporation. We disagree. The evidence at the hearing established that Ghali was the president and sole shareholder of AMI. In Federal Deposit Ins. Corp. v. Wurstner - 10 - (1976), 50 Ohio App.2d 57 at syllabus, this court held that a judgment debtor has no standing to assert non-ownership as a defense to R.C. 2715.01 attachment proceedings. The evidence presented indicated that Ghali had an interest in Academy Management, Inc. that was subject to attachment. Ghali and AMC s fourth assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that Appellees recover of Appellants their 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. Exceptions. NAHRA, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING Judge N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .