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Collins v. Geiger

Court of Appeals of Ohio, Ninth District, Summit

January 8, 2020

ROBERT S. GEIGER, M.D., et al. Appellees and JAMES BRESSI Appellant


          THOMAS M. WILSON, Attorney at Law, for Appellant.

          DAVID C. PERDUK, Attorney at Law, for Appellees.

          LAWRENCE J. SCANLON, Attorney at Law, for Appellees.



         {¶1} Appellant, James P. Bressi, appeals from the March 19, 2019 order of the Summit County Court of Common Pleas. For the reasons that follow, this Court affirms.


         {¶2} This matter involves a lengthy and complicated procedural history, much of which is not directly relevant to the issues raised on appeal. We endeavor here to limit our discussion to the portions of the record implicated by our analysis of the assigned errors. The initial complaint, filed in this matter on April 29, 2014, listed as plaintiffs James P. Bressi, D.O. and Annette Consentino-Bressi, D.O. (collectively "the Bressis"). In counts one and two of the complaint, Bressi alleged that Summit Pain Specialists, Inc.-acting in concert with Robert S. Geiger, M.D., Cheryl A. Patterson, and Dean Rombach-breached a corporate buy-sell agreement and an employment agreement. In count three, Bressi asserted a claim against Geiger for breach of a 2010 promissory note. In the fourth count of the complaint the Bressis jointly asserted a claim against Summit Pain Specialists, Inc. and SPS I, LLC, d/b/a Summit Medical Management Services for breach of a promise for repayment of credit lines. The Bressis filed the first amended complaint in October 2016, wherein Mr. Bressi asserted a new claim for misappropriation of corporate assets against an additional defendant, Richard Gould.

         {¶3} The trial court issued an order on January 9, 2017, appointing John C. Collins as receiver "in this action for the specific purpose of being the assignee of [] Bressi's rights and interest in Summit Pain Specialists, Inc. along with certain specified rights to pursue his claims in related litigation, including any claims that have yet to be asserted." The order indicated that the parties requested the appointment pursuant to a settlement agreement that would also "resolve all of the remaining claims in th[e] proceeding * * *." On that basis, Receiver Collins was appointed as "non-operating" receiver with limited powers and authority.

         {¶4} The appointing order authorized Receiver Collins "to be the assignee to hold all rights and interest of [Consentino-Bressi] for indemnification and other relief set forth in [c]ount [f]our of the [first] [a]mended [c]omplaint * * *." Further, Receiver Collins was authorized as assignee to hold

all rights and interest of [Bressi] for his stockholder, equity or other interest and claims in and to Summit Pain Specialists, Inc. and to substitute himself, as [r]eceiver for [Bressi] as and for the claims assigned to the [r]eceiver herein for th[is] case currently pending in the Summit County Court of Common Pleas identified as Case No. CV 2014-04-2198.

         The order further stated that Receiver Collins "shall be substituted as the [p]laintiff in CV 2014- 04-2198" and as plaintiff in the action, Receiver Collins "shall have the capacity and standing to assert and pursue his claims set forth therein and as he shall subsequently assert in any amended pleadings." Receiver Collins promptly filed his notice of acceptance of appointment as receiver, and counsel for Receiver Collins filed a notice of appearance.

         {¶5} On January 10, 2017, Receiver Collins filed a motion for substitution of parties. Referencing the order of appointment and his acceptance of the appointment, Receiver Collins moved to be substituted for the plaintiffs, Bressi and Consentino-Bressi, on all claims stated in the complaint and other claims to be stated. The trial court granted the unopposed motion on February 8, 2017, substituting Receiver Collins as the plaintiff in the action.

         {¶6} In December 2017, Receiver Collins, with leave of court, filed the second amended complaint. The second amended complaint added claims against attorneys Patrick K. Keating and Robert A. Malone. Receiver Collins alleged their role in facilitating or conspiring with others to unlawfully cancel Bressi's shares of stock in Summit Pain Specialist, Inc. and in misappropriating assets of Bressi and/or assets of Summit Pain Specialists, Inc. in which Bressi had a proprietary interest.

         {¶7} In the motion for leave to file the amended pleading, Receiver Collins highlighted the differences between the first amended complaint and the second amended complaint:

1. The Plaintiff is now reflective of the appointment of the receivership eliminating James Bressi and substituting John C. Collins as Receiver.
2. The former Defendant Summit Pain Specialists, Inc., has been dropped from the prayer for damages and is named for factual statements contained in the Complaint.
3. The former Defendants Robert Geiger and Cheryl Patterson have been dropped from a claim for damages because they filed a petition for bankruptcy, but their actions and conduct in conjunction with others need to be considered in the complaint.
4. Allegations against Defendant Dean Rombach remain and are expanded to include information that he obtained regarding the cancelation of James Bressi's shares in Summit Pain Specialists and the sole control of the corporation being vested in Robert Geiger by and through the action and efforts of the new Defendants, Patrick K. Keating and Robert A. Malone.
5. There are additional allegations against John and/or Jane Doe and John Doe Corporations whose identities are yet to be discovered since the file materials have just recently been transmitted to counsel for Receiver John C. Collins.

         (Emphasis added.)

         {¶8} On November 6, 2017, counsel for Bressi entered his notice of appearance as counsel of record on behalf of "Plaintiff, James Bressi." On January 15, 2018, despite the order appointing Receiver Collins as assignee with the capacity and standing to assert and pursue claims in this action and the order substituting Receiver Collins as plaintiff, Bressi sought leave to file an amended complaint. Specifically, Bressi filed a motion pursuant to Civ.R. 15 seeking leave "permitting the filing of an [a]mended [c]omplaint [i]nstanter, in Mr. Bressi's individual capacity." Although Receiver Collins had already been substituted in the Bressis' place as plaintiff in this action, ...

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