[Cite as 1229 Summit, L.L.C. v. Cater , 2018-Ohio-2728.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106007

1229 SUMMIT, L.L.C.

PLAINTIFF-APPELLANT 

vs. 

LAWRENCE CATER, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-835162 

BEFORE: Laster Mays, J., Blackmon, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: July 12, 2018

-i- 
ATTORNEY FOR APPELLANT 

Richard D. Eisenberg 

1413 Golden Gate Boulevard, Suite 200 

Mayfield Heights, Ohio 44124 

ATTORNEYS FOR APPELLEES 

FOR LAWRENCE AND VALERIE CATER

Paul A. Bayer 

27600 Chagrin Boulevard, Suite 460 

Cleveland, Ohio 44122 

FOR FAST TRACK TITLE

L. Bryan Carr 

1392 Som Center Road 

Mayfield Heights, Ohio 44124 
ANITA LASTER MAYS, J.: 

{¶1} Plaintiff-appellant, 1229 Summit, L.L.C. (“Summit”) appeals the trial court’s 

decision awarding damages to the defendants-appellees, Lawrence Cater (“Cater”), Valerie Cater, 

and Fast Track Title. Summit also appeals the trial court’s denial of Summit’s demand for 

judgment of ejectment and the granting of Cater’s motion for reconsideration. We affirm the 

trial court’s decision. 

I. Facts 

{¶2} On March 6, 2014, Summit and Cater entered into an agreement requiring Cater to 

purchase a residential property located in Garfield Heights, Ohio from Summit. According to 

Summit, Cater was supposed to deposit all funds in escrow by April 3, 2014. Summit alleges 

that Cater failed to meet that deadline, therefore, Summit extended the deadline to May 14, 2014. 

 However, Summit claims that Cater did not deposit the funds until June 6, 2014. The record 

reflects that Cater provided $33,792.80 into escrow on May 8, 2014. Summit claims that there 

was not enough funds to cover all of the taxes and interest. As a result of these deficient funds, 

Summit entered into an agreement that Cater would deposit an additional $1,000 and Summit 

would be subject to a $5,000 liquidated damages clause if Summit did not sign all necessary 

documents. The record supports that Cater provided the additional $1,000 on June 6, 2014. 

{¶3} Summit claims, however, that Cater did not deposit the $1,000, therefore, Summit 

cancelled the transaction and ordered the title company not to return the funds in escrow. Cater 

alleges that because Summit did not complete the transaction, he was evicted from his previous 

home and forfeited $2,000 that he was to receive from his prior lender in a “cash for keys” 

agreement. Summit did not pay taxes on the property, and as a result a tax lien certificate was 
purchased by Woods Cove III, L.L.C. (“Woods Cove”). Woods Cove then initiated a 

foreclosure action for unpaid taxes. Woods Cove continued to assess penalties, interest, and 

foreclosure costs on the property. However, Summit alleges that Cater moved into the 

property unlawfully, thus prompting Summit to file an action for ejectment on October 31, 2014. 

 After a series of continuances, the trial court held a hearing and rendered its decision on 

November 15, 2016, denying the ejectment claim and ordering specific performance as to the 

transfer of real estate as if the transaction occurred on May 8, 2014. 

{¶4} Summit file an appeal on December 14, 2016, in 1229 Summit, L.L.C. v. Lawrence 

Cater, 8th Dist. Cuyahoga No. 105260. On May 17, 2017, this court sua sponte dismissed the 

appeal for a lack of a final appealable order. This court determined that the trial court did not 

dispose of appellee’s fraud claim or determine that there is no just reason for delay and had left 

an item of damages open for future determination. Cater filed a motion for reconsideration, and 

the trial court granted it. On July 11, 2017, the trial court entered its final judgment. 

{¶5} In its journal entry, the trial court stated, 

Defendants’ motion for reconsideration, filed 06/29/2017, is granted. The 

court’s opinion, dated 6/15/2017, awarded $16,165.02 to the defendants. This 

amount included $14,165.02 in the form of interest, penalty and foreclosure costs 

plus $2,000.00 for defendants’ lost “Cash for Keys.” The opinion also stated 

that “the remaining funds in escrow shall be apportioned to close the deal.” In 

its original opinion, dated 11/14/2016, the court awarded any deficiency in closing 

costs to the defendants. The court omitted this award in its amended opinion 

because the exact amount of the deficiency was left open to future determination. 

However, defendants now submit evidence as to the exact amount of the 

deficiency. The evidence submitted with the defendants’ motion for 

reconsideration reflects that the amount in escrow is $34,402.80 and the amount 

required for closing is $40,871.26, leaving a deficiency of $6,468.46. 

Accordingly, the court now corrects its amended opinion, dated 6/14/2017, and 

awards $6,468.46 to the defendants as the amount required to close the sale in 

addition to the amount in escrow. Notice issued. 

Journal entry No. 99580934 (July 11, 2017). 
{¶6} As a result of this decision, Summit filed this appeal and assigns four errors for our 

review: 

I. The trial court’s judgment and opinion are substantially unsupported by 

any evidence; 

II. The trial court improperly denied plaintiff’s demand for judgment of 

ejectment; 

III. The trial court improperly disregarded the parties’ liquidated damage 

agreement; and 

IV. The trial court committed error by granting a motion for reconsideration 

without jurisdiction or authority to do so. 

II. Manifest Weight 

{¶7} Summit, in its first assignment of error, argues that the trial court’s ruling was 

unsupported by the evidence and that the judgment was against the weight of the evidence. 

“When evaluating whether a judgment is against the manifest weight of the evidence in a civil 

action, the court uses virtually the same standard of review as in the criminal context. In re 

Washington, 143 Ohio App.3d 576, 758 N.E.2d 724 (8th Dist.2001).” In re M.H., 8th Dist. 

Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 17. 

 While we agree with the proposition that in some instances an appellate court is 

duty-bound to exercise the limited prerogative of reversing a judgment as being 

against the manifest weight of the evidence in a proper case, it is also important 

that in doing so a court of appeals be guided by a presumption that the findings of 

the trier-of-fact were indeed correct. The underlying rationale of giving 

deference to the findings of the trial court rests with the knowledge that the trial 

judge is best able to view the witnesses and observe their demeanor, gestures and 

voice inflections, and use these observations in weighing the credibility of the 

proffered testimony. The interplay between the presumption of correctness and the 

ability of an appellate court to reverse a trial court decision based on the manifest 

weight of the evidence was succinctly set forth in the holding of this court in C.E.

Morris Co. v. Foley Construction Co., 54 Ohio St.2d, 376 N.E.2d 578 (1978): 

“Judgments supported by some competent, credible evidence going to all the 

essential elements of the case will not be reversed by a reviewing court as being 
against the manifest weight of the evidence.” See also, Frankenmuth Mut. Ins. 

Co. v. Selz, 6 Ohio St.3d 169, 172, 451 N.E.2d 1203 (1983); In re Sekulich, 65 

Ohio St.2d 13, 16, 417 N.E.2d 1014 (1981). 

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). 

{¶8} After a review of the record, Summit has not demonstrated that the trial court erred. 

Summit argued that the lack of legal support for its position is because this may be a case of first 

impression. We disagree. Cater demonstrated that they deposited the requested funds into 

escrow. After Summit requested additional funds, not included in the original contract for sale, 

Cater provided an additional $1,000. After Cater complied, Summit refused to transfer title and 

sign the final escrow document. We find that the trial court was in the best position to examine 

the evidence and testimony to render a fair and impartial judgment. After reviewing the record, 

we find that the judgment is supported by some competent, credible evidence. 

{¶9} Regarding appellant’s claim that this argument lacks legal support because it may be 

a case of first impression, we find that this argument also lacks merit. We have determined as 

required in App.R. 16 in a prior decision the following: 

[u]pon review of appellant[s’] brief, we find appellants failed to properly argue 

their first assignment of error as required under App.R. 16 which states in 

pertinent part: (A) Brief of the Appellant. The appellant shall include in its brief, 

under the headings and in the order indicated, all of the following: 

* * * 

(7) An argument containing the contentions of the appellant 

with respect to each assignment of 

error presented for review and the 

reasons in support of the contentions, 

with citations to the authorities, 

statutes, and parts of the record on 

which appellant relies. * * *. 

Accordingly, appellant’s second assignment of error is not well taken. See, 

App.R.12; Hawley v. Ritley, 35 Ohio St.3d 157, 519 N.E.2d 390 (1988); Delaney 
v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 65714, 1994 Ohio App. 

LEXIS 2980 (July 7, 1994), unreported. 

Austin v. Cleveland, 8th Dist. Cuyahoga No. 66575, 1995 Ohio App. LEXIS 370 (Feb. 2, 1995). 

{¶10} Summit’s first assignment of error is not well taken and overruled. 

III. Judgment of Ejectment 

{¶11} In Summit’s second assignment of error, appellant argues that the trial court 

improperly denied the demand for judgment of ejectment. 

Ejectment is the proper remedy against one wrongfully in possession of real 

property. Turnbull v. Xenia, 80 Ohio App. 389, 392, 69 N.E.2d 378 (2d 

Dist.1946). Ejectment is available where the plaintiff has a legal title and is 

entitled to the possession of the real property but is unlawfully kept out of the 

possession by the defendant. Id. 

Liberty Self-Stor, Ltd. v. Porter, 2d Dist. Montgomery Nos. 21699 and 21728, 2007-Ohio-1510, 

¶ 20. 

{¶12} After reviewing the record, Summit has not demonstrated that Cater was 

wrongfully in possession of the property. The record reflects that Cater provided the requested 

funds in escrow as required by Summit, in addition to $1,000. Additionally, the title of the 

home was ultimately transferred to Cater. Summit has not submitted evidence that it has legal 

title to the property and is entitled to possession of the real property but was unlawfully kept out 

of the possession by Cater. 

{¶13} Summit’s second assignment of error is overruled. 

IV. Damages 

{¶14} In Summit’s third assignment of error, it contends that the trial court improperly 

disregarded the parties’ liquidated damages agreement. We will not disturb a trial court’s 

decision as to the determination of damages absent an abuse of discretion. Sivit v. Village 
Green of Beachwood, L.P., 2016-Ohio-2940, 65 N.E.3d 163, ¶ 25 (8th Dist.). An abuse of 

discretion implies more than an error of law or judgment. Rather, abuse of discretion suggests 

that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶15} The trial court determined that Summit owed Cater $14,165.02 for interest, 

penalties, and foreclosure costs plus $2,000.00 the defendant forfeited from their lender. The 

trial court also determined that the evidence showed that Cater was deficient of $6,468.46 

because of Summit’s breach, and awarded that amount to Cater as well. 

As a matter of law, an award of damages should place the injured party in as good 

a position as it would have been in the absence of breach. See F. Enterprises, Inc. 

v. Kentucky Fried Chicken Corp.[,] 47 Ohio St.2d 154, 351 N.E.2d 121 (1976); 

Homes by Calkins, Inc. v. Fisher, 92 Ohio App.3d 262, 634 N.E.2d 1039 (12th 

Dist.1993). A party injured by a breach has the right to expect to be put “in as 

good a position as he would have been in had the contract been performed.” 

Restatement of the Law 2d, Contracts (1981), 102-103, Section 344. 

22810 Lakeshore Corp. v. Xam, Inc., 8th Dist. Cuyahoga No. 79091, 2002-Ohio-20. Therefore, 

we find that the trial court awarded damages in favor of Cater putting him in a position as if the 

sale and transfer of the property occurred on May 8, 2014. We find that the trial court did not 

abuse its discretion. 

{¶16} Summit’s third assignment of error is overruled. 

V. Motion for Reconsideration 

{¶17} In Summit’s fourth assignment of error, appellant contend that the trial court 

committed error by granting a motion for reconsideration without jurisdiction or authority to do 

so. It has been held that the Civil Rules do not provide for a motion for reconsideration and 

hold such motion of a final appealable order to be a nullity. Pitts v. Dept. of Transp., 67 Ohio 
St.2d 378, 423 N.E.2d 1105 (1981). However, the judgment of the trial court was determined 

not to have been a final appealable order by judgment of this court. 

{¶18} On May 17, 2017, this court dismissed the initial appeal filed in December, 2016, 

finding that the trial court’s judgment entry was not a final appealable order. See journal entry 

No. 507175 (May 17, 2017). This court ruled that appellee’s fraud claim was not disposed of 

nor was there a determination that there was no just reason for delay and that an item remained 

open for the determination of future damages. 

An order which does not determine all of the damage allegations for a single 

cause of action does not conclude that claim. Norvell v. Cuyahoga Cty. Hosp., 11 

Ohio App. 3d 70, 463 N.E.2d 111 (1983). When the amount of damages is left 

unresolved until a future time, there is no final judgment from which to take an 

appeal. Fireman’s Fund Ins. Co. v. BPS Co., 4 Ohio App.3d 3, 446 N.E.2d 181 

(1982). Id. 

Williams v. Waller, 8th Dist. Cuyahoga No. 69069, 1996 Ohio App. LEXIS 5830, *15 (Dec. 26, 

1996). 

{¶19} Reviewing the record, the trial court, in its journal entry, left the amount of closing 

costs open because the exact amount of closing costs was unavailable to the appellee at that time. 

 Once evidence of the amount became available to the appellee, Cater submitted it to the court. 

 The trial court, on remand, was concluding the unresolved claims. “A trial court must follow 

the mandate of an appellate court when a case is remanded. Graham v. Graham, 98 Ohio 

App.3d 396, 400, 648 N.E.2d 850 (2d Dist.1994).” Orley v. Orley, 8th Dist. Cuyahoga No. 

72789, 1998 Ohio App. LEXIS 190, at *4 (Jan. 22, 1998). Therefore, we determine that the 

granting of the motion for reconsideration issue is moot where the trial court was following the 

mandate of the appellate court in addressing all outstanding claims. 

{¶20} Therefore, Summit’s fourth assignment of error is overruled. 
{¶21} Judgment is affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

_______________________________________ 

ANITA LASTER MAYS, JUDGE 

PATRICIA ANN BLACKMON, P.J., and 

LARRY A. JONES, SR., J., CONCUR