Warren v. Denes Concrete, Inc.

2011 Ohio 2988

• Court: Ohio Court of Appeals
• Decided: June 20, 2011
• Docket: 10CA009877
• Status: Published

Opinion

[Cite as Warren v. Denes Concrete, Inc., 2011-Ohio-2988.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

JAMES WARREN C.A. No. 10CA009877

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DENES CONCRETE, INC., et al. COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellants CASE No. 07CV149695

DECISION AND JOURNAL ENTRY

Dated: June 20, 2011

WHITMORE, Judge.

{¶1} Defendant-Appellants, Denes Concrete, Inc. and Thomas Denes, Jr. (“Denes

Concrete”), appeal from the judgment of the Lorain County Court of Common Pleas. This Court

vacates in part and affirms in part.

I

{¶2} This Court recounted the underlying facts of this case in the first appeal in this

matter. See Warren v. Denes Concrete, Inc., 9th Dist. Nos. 08CA009414 & 08CA009422, 2009-

Ohio-2784. The procedural history relevant to this suit is as follows:

“On February 15, 2007, [Plaintiff-Appellee, James] Warren[,] filed suit against Denes Concrete, Inc. and Thomas Denes, Sr. for breach of contract, breach of warranty, and multiple violations of the Consumer Sales Practices Act (“CSPA”). By the agreement of the parties, the trial court later joined Thomas J. Denes, Jr. to the suit as a defendant. The matter proceeded to a bench trial on April 2, 2008. On May 23, 2008, the trial court issued its decision, granting judgment in favor of Warren for $32,815. The court specified that $400 of that award stemmed from two separate CSPA violations and the remaining $32,415 represented treble damages on Warren’s $10,805 breach of contract award. The court further held that while the Denes were jointly and severally liable for $22,010 of Warren’s 2

$32,415 award, Denes Concrete, Inc. bore sole responsibility for the $10,805 portion of the award. The trial court denied Warren’s request for injunctive relief and attorney fees.” Warren at ¶5.

On appeal from the trial court’s judgment, this Court reversed the entirety of Warren’s damage

award, save $200 that stemmed from a single CSPA violation. Id. at ¶7-29. We specifically held

that the trial court did not err when it refused to grant Warren his attorney fees under the CSPA.

Id. at ¶35-37.

{¶3} After this Court’s remand, Warren filed a motion “to reconsider an award of

attorney fees in light of new evidence in the record.” The “new evidence” upon which Warren

relied was the time his attorney expended “successfully defend[ing] th[e] appeal” in this Court.

Denes Concrete opposed the motion, and the trial court set the matter for a hearing. On

September 29, 2009, the court issued an order awarding attorney fees in favor of Warren in the

amount of $10,000, reasoning that it was appropriate to “exercise its discretionary powers” and

award fees in light of the fact that Warren’s damage award had been “gutted” on appeal. Denes

Concrete appealed from the trial court’s order, but this Court dismissed the appeal because the

trial court had failed to enter judgment upon remand, consistent with this Court’s mandate in

Warren, supra. See Warren v. Denes Concrete, Inc., et al. (Mar. 8, 2010), 9th Dist. No.

09CA009699. The trial court later entered judgment on August 4, 2010.

{¶4} Denes Concrete1 now appeals from the trial court’s judgment and raises three

assignments of error for our review. For ease of analysis, we consolidate the assignments of

error.

II 3

Assignment of Error Number One

“THE TRIAL COURT ERRED WHEN IT AMENDED THE SPECIAL MANDATE OF THE APPEALS COURT, AS THAT THE (sic) APPEALS COURT’S DECISION CONSTITUTED ‘THE JOURNAL ENTRY OF JUDGMENT.’”

Assignment of Error Number Two

“THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION TO RECONSIDER AND AWARDED ATTORNEYS’ FEES TO APPELLEE JAMES WARREN, AS MOTIONS FOR RECONSIDERATION ARE NOT PERMITTED AFTER THE ISSUANCE OF A FINAL JUDGMENT.”

Assignment of Error Number Three

“TO THE EXTENT THAT THE TRIAL COURT GRANTED THE MOTION TO RECONSIDER BASED ON OHIO R. CIV. P. 60(B)(2), THE TRIAL COURT ERRED WHEN IT DETERMINED THAT APPELLEE JAMES WARREN PRESENTED ‘NEW EVIDENCE.’”

{¶5} In its assignments of error, Denes Concrete argues that the trial court erred by

granting Warren’s motion to reconsider and awarding him attorney fees upon remand. We agree.

{¶6} “Absent extraordinary circumstances, such as an intervening decision by the

Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in

a prior appeal in the same case.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, paragraph one of the

syllabus.

“[T]he 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. *** [T]he rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution. In pursuit of these goals, the doctrine functions to compel trial courts to follow the mandates of reviewing courts. *** [T]he trial court is without authority to extend or vary the mandate given.” (Internal citations omitted.) Id. at 3-4.

1 Only Denes Concrete, Inc. and Thomas Denes, Jr. remain as Defendant-Appellants as Thomas Denes, Sr. died shortly after the court entered its August 4, 2010 judgment. 4

“[W]hen the trial court renders a decision on a particular issue, and that decision is both final and

appealable, then following such appeal or waiver of appeal, the aggrieved party is precluded

from resubmitting this same issue to the trial court in an effort to obtain a different result.”

Rehoreg v. Stoneco, Inc., 9th Dist. No. 04CA008481, 2005-Ohio-12, at ¶10.

{¶7} If a supplier knowingly commits an act that violates the CSPA, a trial court has

the discretion to award reasonable attorney fees to a party who prevails in a suit against the

supplier. R.C. 1345.09(F)(2). Warren specifically requested attorney fees under R.C.

1345.09(F)(2) in his complaint and at trial. The trial court considered Warren’s request and

denied it, reasoning that “attorney fees in addition to the mandatory CSPA damages are not

warranted here.” On appeal, Warren argued that the court erred as a matter of law by refusing to

award fees after finding that Denes Concrete knowingly violated the CSPA. Warren at ¶35-37.

This Court rejected Warren’s argument on the basis that R.C. 1345.09(F)(2) does not require

courts to award attorney fees for CSPA violations. Id. at ¶37. We did not decide if the court

abused its discretion by not awarding fees because Warren failed to make that argument. Id.

Nevertheless, our conclusion was that the court did not err by refusing to award Warren attorney

fees under R.C. 1345.09(F)(2). Id. at ¶35-37. We affirmed that portion of the trial court’s

judgment, id. at ¶40, and Warren did not appeal from our decision. See O’Brien v. Product

Design Ctr., Inc. (Dec. 13, 2001), 10th Dist. Nos. 01AP-454 & 01AP-495, at *4 (“If plaintiff

believed resolution of the attorney fees issue was erroneous, he should have appealed this court’s

*** opinion. Having failed to do so, plaintiff is compelled to embrace the results of that opinion,

be they favorable or not to plaintiff’s claim for attorney fees.”).

{¶8} This Court remanded this matter in Warren strictly for the entry of judgment in

accordance with our opinion. Warren at ¶40. After our remand, however, Warren moved the 5

court to reconsider an award of attorney fees under the same statutory subsection he previously

had sought fees, and the court granted his request. Yet, Warren’s motion was nothing more than

an attempt to “resubmit[] th[e] same issue to the trial court in an effort to obtain a different

result.” Rehoreg at ¶10. In entertaining the motion, the court acted outside the scope of this

Court’s remand and disregarded our mandate. This Court affirmed the trial court’s judgment

with regard to the issue of attorney fees, so that portion of the judgment was not subject to

change. See Miller v. Miller, 9th Dist. No. 09CA0025, 2010-Ohio-1251, at ¶12-14 (holding that

law of the case doctrine barred any interest rate challenge in second appeal, as the rate went

unchallenged in the first appeal and was part of the judgment affirmed therein). See, also,

O’Brien, at *4 (concluding that trial court properly denied request for attorney fees upon remand

where appellate court previously had determined plaintiff was not entitled to fees); Brown v.

Brown (May 11, 1995), 10th Dist. No. 94APF09-1306, at *4 (holding that “the law of the case

governs here, and appellant cannot bootstrap the issue of attorney fees onto our remand for a

determination of spousal support”); Baggott v. Buckeye Union Ins. Co. (Aug. 29, 1978), 2d Dist.

No. 5838, at *4-5 (providing that trial court was not authorized to consider attorney fee award

upon remand where remand was for specific determination, unrelated to attorney fees). It is

wholly apparent from the record that the trial court awarded Warren fees, not in light of any

“new evidence,” but to offset the loss of Warren’s damage award. The substantial reduction of

Warren’s damage award on appeal, however, did not revive the separate issue of fees. The trial

court exceeded its authority when it awarded Warren attorney fees upon remand. See Nolan, 11

Ohio St.3d at 4 (holding that “the trial court is without authority to extend or vary the mandate

given”). As such, Denes Concrete’s assignments of error are sustained on that basis, and the 6

court’s September 29, 2009 order, awarding attorney fees, is vacated. See Wesco Mach. Co. v.

Brannon Design Build and Const. Co. (July 15, 1987), 9th Dist. No. 12964, at *3.

{¶9} The trial court separately entered judgment consistent with this Court’s remand on

August 4, 2010. Our decision in this matter does not impact the court’s August 4, 2010

judgment or require any partial vacation of it, as the trial court did not include Warren’s attorney

fee award in that judgment entry. Accordingly, while we vacate the court’s September 29, 2009

order, the trial court’s August 4, 2010 judgment is affirmed.

III

{¶10} Denes Concrete’s assignments of error are sustained. The trial court’s September

29, 2009 order, awarding Warren $10,000 in attorney fees, is vacated pursuant to that

determination. The judgment of the Lorain County Court of Common Pleas is vacated in part

and affirmed in part, consistent with the foregoing opinion.

Judgment affirmed in part, and vacated in part.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is 7

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

BETH WHITMORE FOR THE COURT

DICKINSON, J. CONCURS

BELFANCE, P. J. CONCURS IN JUDGMENT ONLY

APPEARANCES:

JEFFREY H. WEIR, II, and JOSHUA E. LAMB, Attorneys at Law, for Appellants.

JACK MALICKI, Attorney at Law, for Appellee.

ANTHONY J. AMATO, Attorney at Law, for Appellee.