BRUCE EDWARDS, ET AL. v. ANNARIEL M. LOPEZ, ET AL.
Nos. 97917 and 98510
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 21, 2013
[Cite as Edwards v. Lopez, 2013-Ohio-571.]
BEFORE: Kilbane, J., Boyle, P.J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-705964; JUDGMENT: REVERSED AND REMANDED; RELEASED AND JOURNALIZED: February 21, 2013
Joanne Brown
2136 Noble Road
Cleveland, Ohio 44112
ATTORNEY FOR APPELLEES
Matthew E. Parkins
Singerman, Mills, Desberg & Kauntz
3333 Richmond Road
Suite 370
Beachwood, Ohio 44122
{¶1} In Appeal No. 98510, plaintiffs-appellants, Bruce Edwards (“Bruce“) and Cheryle Edwards (“Cheryle“) (collectively referred to as “the Edwardses“), appeal from the trial court‘s
{¶2} On October 6, 2009, the Edwardses filed suit against Lopez for breach of contract, promissory estoppel, and specific performance. The Edwardses allege that Lopez breached a contract to lease residential property located in Beachwood, Ohio. The Edwardses further allege that Lopez, the co-owner of residential property located at 25110 Cedar Road in Beachwood, leased the premises from July 2009 to February 2011, at $2,500 per month.
{¶3} On April 26, 2010, as this court noted in Edwards I, the Edwardses notified the trial court that Bruce could not attend the final pretrial in the matter, but that Cheryle
{¶4} On July 14, 2010, Lopez filed a motion pursuant to
{¶5} The Edwardses appealed. This court notes that Lopez could have filed a cross-appeal but did not do so. On October 6, 2011, this court reversed the award of attorney fees to Lopez and did not remand the matter for further proceedings. Edwards I. Lopez did not appeal this ruling to the Ohio Supreme Court and it became final.
{¶6} On November 16, 2011, Lopez advised the trial court that the “wage garnishment * * * was terminated due to reversal of the judgment by the Eighth District Court of Appeals * * *.”
{¶7} Inexplicably, however, on December 8, 2011, the trial court issued the following order:
Captioned case being remanded to the court of common pleas by order of the Court of Appeals, this matter is hereby returned to the docket of [the trial judge].
{¶9} Plaintiffs now appeal from the imposition of sanctions under
{¶10} The Edwardses’ first and second assignments of error in Appeal No. 98510, and the first assignment of error in Appeal No. 97917 are related and provide as follows:
The trial court granting Lopez‘s renewed motion for sanctions and attorney‘s fees under Civil Rule 11 after the motion was impliedly overruled is precluded by the law of the case. (Appeal No. 98510)
The trial court lacked jurisdiction to entertain any further proceedings inconsistent with this court‘s mandate. (Appeal No. 98510)
The trial court lacked jurisdiction to entertain any further proceedings inconsistent with this court‘s mandate. (Appeal No. 97917)
{¶11} The doctrine of the law of the case was set forth in Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984) as follows:
[T]he doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. * * * Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court‘s determination of the applicable law.
{¶12} Further, with regard to procedure, we note that it is well settled that when a motion is not ruled upon, it is deemed to be denied by implication. See Newman v. Al Castrucci Ford Sales, Inc., 54 Ohio App.3d 166, 169, 561 N.E.2d 1001 (1st Dist.1988); Solon v. Solon Baptist Temple, Inc., 8 Ohio App.3d 347, 457 N.E.2d 858 (8th Dist.1982). Further, the Supreme Court of Ohio has held that the Rules of Civil Procedure do not allow a party to obtain relief from final judgment in a trial court via a motion for reconsideration.
{¶13} In this matter, Lopez‘s July 14, 2010 motion requested attorney fees and costs pursuant to
{¶14} The Edwardses’ first and second assignments of error in Appeal No. 98510, and the first assignment of error in Appeal No. 97917 are well taken.
{¶15} The Edwardses’ third and fourth assignments of error in Appeal No. 98510 provide as follows:
The record does not support Lopez‘s claim [that] Appellant‘s counsel committed a willful violation of [Civ.] Rule 11. (Appeal No. 98510)
The court‘s $13,466.40 sanction is not supported by the evidence and is in excess of what the rule allows. (Appeal No. 98510)
{¶16} In light of this court‘s disposition of Edwards I and our conclusions as to the assignments of error addressed above, these assignments of error are moot.
{¶17} Edwardses’ second assignment of error in Appeal No. 97917 provides:
The Edwards[es] and Counsel have a right to restitution as a matter of law. (Appeal No. 97917)
{¶18} It is axiomatic that where a judgment is reversed, the successful appellant is entitled to a judgment of restitution for all that he or she has lost because of the judgment. Keybank Natl. Assn. v. Mazer Corp., 188 Ohio App.3d 278, 2010-Ohio-1508, 935 N.E.2d 428 (2d Dist.). Further, a party may obtain his or her costs and attorney fees
{¶19} In this matter, the trial court‘s September 20, 2010 order imposed sanctions under
{¶20} The order denying the Edwardses’ motion for restitution is reversed, and the matter is remanded for a hearing as to the Edwardses’ costs and reasonable fees incurred in connection with the restitution of the sums that were garnished herein.
{¶21} Judgment reversed, and case remanded for a hearing as to attorney fees and costs.
It is ordered that appellants recover from appellee costs herein taxed.
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
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and EILEEN A. GALLAGHER, J., CONCUR