Concrete, Inc. v. Willowick , 2021 Ohio 658 ( 2021 )

[Cite as Concrete, Inc. v. Willowick, 2021-Ohio-658.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
CONCRETE, INC., : OPINION
Plaintiff-Appellant, :
CASE NO. 2020-L-022
- vs - :
CITY OF WILLOWICK, :
Defendant-Appellee. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CV 001246.
Judgment: Affirmed.
John R. Christie and Joseph Fiorello, Lewis Brisbois Bisgaard & Smith, 1375 East Ninth
Street, Suite 2250, Cleveland, OH 44114 (For Plaintiff-Appellant).
Michael C. Lucas and Stephanie E. Landgraf, Wiles and Richards, 37265 Euclid Avenue,
Willoughby, OH 44094 (For Defendant-Appellee).
MATT LYNCH, J.
{¶1} Plaintiff-appellant, Concrete, Inc., appeals the December 19, 2019
Judgment Entry of the Lake County Court of Common Pleas, denying its Motion to Have
Property Returned, Pending Appeal. For the following reasons, we affirm the decision of
the lower court.
{¶2} On August 6, 2018, Concrete filed a Complaint for Declaratory Judgment
against defendant-appellee, the City of Willowick. Concrete alleged that it was the lessee
of property owned by Willowick and sought a declaration “that the lease is in full force and
effect [and] that [Concrete] has complied with the terms of the lease.” Further, Concrete
sought “an injunction preventing The City of Willowick from taking any action to evict or
otherwise impede the ongoing operations at the subject property.”
{¶3} On October 12, 2018, Willowick filed its Answer and Counterclaim. In the
counterclaim, Willowick sought, inter alia, “restitution of the Leasehold Premises” and
“compensatory damages.” Concrete filed its Answer to the Counterclaim on November
8, 2018.
{¶4} On July 31, 2019, the trial court entered judgment in favor of Willowick as
to that portion of the Counterclaim “alleging that [Concrete] is wrongfully in possession of
the premises.”
{¶5} On August 2, 2019, Willowick filed a Precipe for Writ of Restitution.
{¶6} On September 3, 2019, the trial court issued a Writ of Execution,
commanding the Lake County Sheriff “to cause * * * Concrete Inc to be forthwith removed
from the premises, and the City of Willowick to have restitution of them.” The Writ was
executed on September 6.
{¶7} On September 4, 2019, Concrete filed a Notice of Appeal in Case No. 2019-
L-091, and an Amended Notice on September 9.
{¶8} On September 11, 2019, Concrete filed two Motions to Have Property
Returned, Pending Appeal, one in the trial court and the other in this court, both
substantively identical. Invoking R.C. 1923.14, Concrete argued that its “Notice of
Appeal, filed prior to the Sheriff serving the Writ of Restitution and locking Concrete, Inc.
out of its place of business, should have resulted in the delay of proceedings to remove
Concrete, Inc. from the premises.”
2
{¶9} Revised Code 1923.14(A) provides, in relevant part:
If an appeal from the judgment of restitution is filed and if, following
the filing of the appeal, a stay of execution is obtained and any
required bond is filed with the court of common pleas, municipal
court, or county court, the judge of that court immediately shall issue
an order to the sheriff, police officer, constable, or bailiff commanding
the delay of all further proceedings upon the execution.
{¶10} On December 19, 2019, the trial court denied Concrete’s Motion to Have
Property Returned. In so doing, it explained:
It is the opinion of this Court that [Concrete] is not entitled to an
“automatic delay” of the Writ of Restitution based solely on having
filed a Notice of Appeal contemporaneous to the Writ of Restitution.
Clearly, R.C. §1923.14(A) provides that if an appeal is filed and a
stay of execution is obtained and bond is posted where necessary,
a delay of execution is appropriate. In this case, the Writ of
Restitution was executed on September 6, 2019, and [Concrete’s]
Motion to Have Property Returned Pending Appeal was filed five
days thereafter on September 11, 2019. Inasmuch as Defendant
already recovered possession of the premises prior to Plaintiff even
seeking a stay, the issue was rendered moot. See Blank v.
Allenbaugh, 2018-Ohio-2582 and Knop v. Davet, 2017-Ohio-1416.
{¶11} On January 13, 2020, this court denied Concrete’s Motion to Have Property
Returned, stating “[w]e agree with the trial court’s conclusion that Concrete has not
complied with R.C. 1923.14(A) and, therefore, is not entitled to a stay.” Concrete, Inc. v.
Willowick, 11th Dist. Lake No. 2019-L-091, 2020-Ohio-71, ¶ 4. We further dismissed the
appeal as moot. We explained:
When a writ of restitution has been executed and the premises
restored an appeal from the judgment granting restitution is rendered
moot. “The only method by which a defendant appealing a judgment
of forcible entry and detainer may prevent the cause from becoming
moot is stated in R.C. 1923.14.” Hmeidan v. Muheisen, 2017-Ohio-
7670, 97 N.E.3d 881, ¶ 24 (5th Dist.). “If the defendant fails to avail
himself of this remedy, all issues relating to the action are rendered
moot by his eviction from the premises.” Id.; Blank v. Allenbaugh,
11th Dist. Ashtabula No. 2018-A-0022, 2018-Ohio-2582 ¶ 7 (“when
the tenant has vacated the premises and the landlord regains
3
possession of the leased premises, the merits of an action in forcible
entry and detainer are rendered moot because no further type of
relief can be granted in favor of the landowner”).
Id. at ¶ 5.
{¶12} Not only was Concrete’s Motion untimely in that Willowick had already
regained possession of the premises at the time it was filed, but Concrete made no effort
to comply with the statute with respect to posting bond. Instead Concrete relied on the
erroneous proposition that “it would be premature to require a bond or even a stay” until
the trial court has decided all the issues before it, including damages.
{¶13} On February 27, 2020, Concrete filed a Notice of Appeal from the December
19, 2019 trial court Judgment Entry denying its Motion to Have Property Returned.
{¶14} Concrete sought to appeal the denial of its Motion to Have Property
Returned by this court to the Ohio Supreme Court. The Supreme Court declined to accept
jurisdiction on May 12, 2020. Concrete, Inc. v. Willowick, 158 Ohio St.3d 1506, 2020-
Ohio-2819, 144 N.E.3d 444.
{¶15} On appeal, Concrete raises the following assignments of error:
{¶16} “[1.] The Trial Court erred by denying Plaintiff/Appellant’s Motion to Have
Property Returned, Pending Appeal, as the Appellant’s Notice of Appeal and Request for
Stay must either be determined to have been filed prior to being ousted from the premises,
or Appellee’s notice of appeal has not yet been filed.”
{¶17} “[2.] The Trial Court erred by denying Plaintiff/Appellant’s Motion to Have
Property Returned, Pending Appeal, as the trial court never completed service of the July
31, 2019, Judgment Entry; thus, the time upon which Appellant was to file its appeal never
commenced. Nevertheless, Appellant filed a notice of appeal and sought a stay from the
4
trial court which included the return of Appellant’s property and possession of the
premises.”
{¶18} Both of Concrete’s assigned errors arise from the fact that service of the
trial court’s July 31, 2019 Judgment Entry, restoring possession of the subject premises
to Willowick, has never been completed. Pursuant to Civil Rule 58(B): “Within three days
of entering the judgment upon the journal, the clerk shall serve the parties in a manner
prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving
the notice and notation of the service in the appearance docket, the service is complete.”
Here, the clerk has not made notation of service. See November 25, 2019 Judgment
Entry, Appeal No. 2019-L-091 (“there is no notation on the trial court’s docket showing
Civ.R. 58(B) service of the entry upon the parties” and “[b]ecause there is no notation that
service was done, the time for appealing the July 31, 2019 entry has not commenced”).
{¶19} Concrete’s first argument is that, because service of the July 31 Entry was
never completed, it has either complied with the conditions for obtaining a stay set forth
in R.C. 1923.14, or, it is impossible to comply. Concrete relies on Appellate Rule 4(C):
“A notice of appeal filed after the announcement of a decision, order, or sentence but
before entry of the judgment or order that begins the running of the appeal time period is
treated as filed immediately after the entry.” If, pursuant to the Rule, this court should
deem the Notice of Appeal in Case No. 2019-L-091 filed “immediately after” the July 31
Entry, “then Concrete’s motion for stay (i.e. Concrete’s Motion to Have Property Returned,
Pending Appeal) must be considered to have been filed within 7 days of its notice of
appeal.” Appellant’s brief at 11. Concrete’s argument appears to be that, if the
September 4 Notice of Appeal is treated as being filed immediately after the July 31 Entry
5
on account of the clerk’s failure to complete service, the Motion to Have Property
Returned, filed seven days after the September 4 Notice of Appeal, should be similarly
treated, in which case it would have been filed prior to the restoration of the premises.
{¶20} Alternatively, if this court treats the September 4 Notice of Appeal as
premature until service is actually completed, Appeal No. 2019-L-091 should not have
been dismissed as moot. Appellant’s brief at 12.
{¶21} We point out that the failure to note service did not affect either the July 31,
2019 entry or the writ of execution. The Civil Rules provide that “[t]he failure of the clerk
to serve notice does not affect the validity of the judgment or the running of the time for
appeal except as provided in App.R. 4(A).” Civ.R. 58(B).
{¶22} Alternatively, Concrete should have been found to have complied with R.C.
1923.14 because “[i]t is beyond inequitable for the trial court to fail to provide proper
service and notice; thus, never commencing Concrete’s time to appeal the trial court’s
July 31, 2019 entry, and then penalize Concrete for the trial court’s error.” Appellant’s
brief at 15-16.
{¶23} The present appeal is resolved, however, by application of the law of the
case doctrine rather than by consideration of Concrete’s arguments. The “law of the
case” 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.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410(1984). “The doctrine is considered to be a rule of practice rather than a binding rule of
substantive law and will not be applied so as to achieve unjust results.” Id. “However,
the rule is necessary to ensure consistency of results in a case, to avoid endless litigation
6
by settling the issues, and to preserve the structure of superior and inferior courts as
designed by the Ohio Constitution.” Id.{¶24} In the prior appeal, this court affirmed the trial court’s denial of the Motion
to Have Property Returned by denying a substantively similar motion and determined that
the issue of possession of the premises was moot following their restoration to Willowick.
These determinations are now the law of the case and would be subverted by
consideration of the trial court’s denial of the Motion to Have Property Returned. Compare
Floom v. Prudential Prop. & Cas. Ins. Co., 5th Dist. Stark No. 2003CA00122, 2003-Ohio-
5957, ¶ 20 (issue regarding prejudgment interest found moot in a prior appeal would not
be considered in a subsequent appeal: “the law of the case doctrine applies to subsequent
proceedings in the reviewing court, and we must follow our decision in a later appeal on
the same case”).
{¶25} Consideration of Concrete’s arguments regarding the clerk’s failure to
complete service of the July 31 Entry is further barred by principles of res judicata which
preclude consideration of arguments that could have been raised in a prior appeal. Both
Motions to Have Property Returned, the one filed in the trial court and the one filed in this
court, omit any mention of the clerk’s failure to complete service. CitiMortgage, Inc. v.
Lehner, 9th Dist. Medina No. 14CA0124-M, 2016-Ohio-874, ¶ 5 (“[w]here an argument
was or could have been raised in a prior appeal, res judicata bars consideration of that
argument in subsequent appeals”); Dilley v. Dilley, 11th Dist. Geauga No. 2014-G-3227,
2015-Ohio-1872, ¶ 39 (“appellant could have raised this argument prior to this appeal,
and as such, it is barred by the doctrine of res judicata”).
{¶26} The assignments of error are without merit.
7
{¶27} For the foregoing reasons, the December 19, 2019 Judgment Entry of the
Lake County Court of Common Pleas, denying Concrete’s Motion to Have Property
Returned, Pending Appeal is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
8