[Cite as W2 Properties, L.L.C. v. Haboush, 2013-Ohio-2556.] 

 

Civil Appeal From: Hamilton County Municipal Court 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: June 21, 2013 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

W2 PROPERTIES LLC, 

 Plaintiff, 

 vs. 

FRED HABOUSH, 

and 

NAJAT EL-KEK, a.k.a. 

NAJAT HABOUSH, 

 Defendants/Third-Party 

 Plaintiffs-Appellants, 

vs. 

SPRING VALLEY BANK, 

and 

GERALD J. ROBINSON, 

Third-Party DefendantsAppellees, 

and 

SCOTT W. BRAUER, et al., 

Third-Party Defendants. 

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APPEAL NO. C-120366 

TRIAL NO. 09CV-02818 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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Bart B. Sharkey, for Defendants/Third-Party Plaintiffs-Appellants, 

Lindhorst & Dreidame, Co., L.P.A., Christopher H. Hurlburt and Gerald J. 

Robinson, for Third-Party Defendants-Appellees. 

Please note: this case has been removed from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS

3

FISCHER, Judge. 

{¶1} Fred and Najat Haboush appeal from the judgment of the Hamilton 

County Municipal Court that dismissed their third-party claims for fraudulent 

inducement against Spring Valley Bank and Gerald J. Robinson. The trial court 

initially had entered default judgment on those claims, and later had denied relief 

from that judgment. We affirmed its denial with respect to all issues but damages, 

holding that a hearing was required to determine the appropriate amount. W2 

Properties LLC v. Haboush, 196 Ohio App.3d 194, 2011-Ohio-4231, 962 N.E.2d 858 

(1st Dist.) (Haboush I). On remand the trial court held a hearing on damages, but at 

its conclusion, it dismissed the claims against Spring Valley Bank and Robinson. For 

the following reasons, we hold that this was contrary to the law of the case, and we, 

therefore, reverse the trial court’s judgment. 

{¶2} Although we thoroughly discussed the background of this case in 

Haboush I, we repeat the pertinent facts here to better explain our reasoning. W2 

Properties LLC (“W2”) brought this action in forcible entry and detainer against the 

Haboushes, alleging that they had breached a lease/option-to-buy agreement 

concerning rental property that the Haboushes had once owned. In their answer, the 

Haboushes disputed W2’s ownership of the property and the validity of the lease 

agreement. The Haboushes also filed a counterclaim against W2 and a third-party 

complaint against Spring Valley Bank, Robinson, and others, alleging that they had 

fraudulently induced them to sell the property to W2 and enter into the lease 

agreement. 

{¶3} The trial court entered default judgment against Spring Valley Bank 

and Robinson after they failed to answer or otherwise appear in the action, and 
OHIO FIRST DISTRICT COURT OF APPEALS

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without holding a hearing, “awarded damages to each plaintiff against each defendant 

in the amount of $15,000, calculated the total award as $30,000, and then ordered the 

sum to be paid jointly and/or severally by the defendants.” Haboush I at ¶ 32. 

{¶4} Spring Valley Bank and Robinson timely sought relief from that 

judgment, but their motion was denied. On appeal to this court, we held that the 

judgment was not void for defective service of process, and that the trial court had 

not erred in denying relief from judgment under Civ.R. 60(B)(1)-(4). Id. at ¶ 19 and 25. 

We concluded, however, that the trial court had abused its discretion in denying relief 

from judgment under Civ.R. 60(B)(5) with respect to its award of damages, in part 

because the trial court had not held a hearing on the issue. Id. at ¶ 33; see, e.g., L.S. 

Indus. v. Coe, 9th Dist. No. 22603, 2005-Ohio-6736 (holding that “where the 

determination of damages [for a default judgment] necessarily requires consideration 

of information outside a written instrument, the trial court abuses its discretion in 

failing to hold an evidentiary hearing to determine the exact amount of damages”). We, 

therefore, remanded the cause to the trial court for a hearing on damages, but affirmed 

its judgment in all other respects. Id. at ¶ 34. 

{¶5} On remand, the trial court held an evidentiary hearing on damages 

where it considered the testimony of Najat Haboush, her and Fred’s son Chad 

Haboush, and appraiser Paul Wesselkamper. At its conclusion, the court announced: 

Based on the credibility of the witnesses that I’ve heard, I 

find that this was an arm’s-length transaction here 

between all the parties. And that I agree with what [one of 

the witnesses] said, that if the seller could have got more 

than $47,000, they would have gotten more than 

$47,000. This was an agreed upon price with both sides 
OHIO FIRST DISTRICT COURT OF APPEALS

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receiving a benefit. The Haboushes got out from under 

the mortgage, and the property was transferred. It’s clear 

from all the paperwork here that this was a sale; the 

Haboushes in the settlement agreement, and the 

Settlement Statement, are referred to as “the seller.” The 

name on it – and it’s clear black and white. I don’t find 

that, therefore, that there were no damages here to the 

Haboushes; that they sold it at the price that they wanted 

to sell it at. So I rule in favor of Mr. Robinson and Spring 

Valley Bank. 

T.p. 122-123. 

{¶6} The trial court’s finding of no liability was borne out in its “amended 

judgment entry,” which dismissed the claims against Spring Valley Bank and Robinson 

with prejudice. The Haboushes now appeal from that judgment, raising two 

assignments of error. 

{¶7} In their first assignment of error, the Haboushes argue that the trial 

court erred in revisiting the issue of liability. It is axiomatic that “[a]bsent 

extraordinary circumstances * * * an inferior court has no discretion to disregard a 

mandate of a superior court in a prior appeal in the same case.” Nolan v. Nolan, 11 

Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus. “The doctrine 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.” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 

329, ¶ 15. “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 
OHIO FIRST DISTRICT COURT OF APPEALS

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court is bound to adhere to the appellate court’s determination of the applicable law. 

Moreover, the trial court is without authority to extend or vary the mandate given.” 

(Internal citations omitted.) Nolan at 3-4. 

{¶8} In Haboush I, we affirmed the trial court’s denial of relief from the 

default judgment against Spring Valley Bank and Robinson as to all issues but 

damages. Thus, when we remanded the cause to the trial court for the purpose of 

determining damages, the issue of Spring Valley Bank’s and Robinson’s liability was 

settled. See GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 

149-150, 351 N.E.2d 113 (1976) (“Regardless of whatever else may be said of a default 

judgment, it is a judgment. It is as good as any other judgment. It is a final 

determination of the rights of the parties.”). Consequently, when the trial court 

premised its finding of no damages on a lack of liability and dismissed the Haboushes’s 

claims, the court acted without authority and contrary to the law of the case. We, 

therefore, sustain the first assignment of error. 

{¶9} In their second assignment of error, the Haboushes alternatively argue 

that the trial court erred in denying their motion for a new trial under Civ.R. 59 for the 

error raised in their first assignment. Given our disposition of that assignment, we 

overrule this assignment. The judgment of the trial court is reversed, and this cause is 

remanded for a determination of damages on the Haboushes’ claims against Spring 

Valley Bank and Robinson. 

Judgment reversed and cause remanded. 

HENDON, P.J., and HILDEBRANDT, J., concur. 

Please note: 

 The court has recorded its own entry this date.