Warren v. Denes Concrete, Inc.
2011 Ohio 2988
Ohio Ct. App.2011Background
- Warren sued Denes Concrete, Inc. and Thomas Denes, Jr. for breach of contract, breach of warranty, and CSPA violations; Thomas Denes, Sr. was later joined.
- Bench trial held April 2, 2008; May 23, 2008 judgment awarded Warren $32,815 (including $400 for two CSPA violations and $32,415 as treble damages on a $10,805 breach).
- Trial court held Denes jointly and severally liable for $22,010 of the $32,415; Denes Concrete bore sole responsibility for the $10,805 portion.
- This Court reversed most damages on appeal, preserving only $200 from a single CSPA violation; we did not award Warren attorney fees under the CSPA.
- Remand ordered for judgment consistent with our opinion; after remand, Warren moved for reconsideration of attorney fees based on new evidence of appellate work.
- Trial court awarded Warren $10,000 in attorney fees on remand; Denes Concrete appealed; this Court dismissed that appeal for lack of remand-judgment entry and later affirmed the August 4, 2010 judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court exceed its remand mandate by altering the judgment to include attorney fees? | Warren contends the court complied with remand and properly awarded fees. | Denes argues the court acted beyond the remand mandate by reconsidering and awarding fees. | Yes; the court exceeded its authority and the fee award is vacated. |
| Was the fee award on remand permissible after final judgment on appeal? | Warren asserts fees were warranted and properly considered on remand. | Denes asserts reconsideration after final judgment is improper and not permitted by law. | No; reconsideration after final judgment was improper and the fee award is vacated. |
| Did Warren present 'new evidence' under Civ.R. 60(B)(2) to justify reconsideration? | Warren relied on new evidence of appellate work to justify fees. | Denes contends there was no new evidence justifying reconsideration. | No; the evidence was not ‘new’ and the trial court erred in granting reconsideration. |
Key Cases Cited
- Nolan v. Nolan, 11 Ohio St.3d 1 (Ohio 1984) (mandate of higher court controls unless extraordinary circumstances)
- Rehoreg v. Stoneco, Inc., 2005-Ohio-12 (9th Dist. 2005) (law of the case prevents resubmission of issues after final judgment)
- Miller v. Miller, 2010-Ohio-1251 (9th Dist. 2010) (law-of-the-case doctrine bars new challenges on remand)