[Cite as Musial Offices, Ltd. v. Cuyahoga Cty., 2022-Ohio-1944.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

MUSIAL OFFICES, LTD., :

Plaintiff-Appellee, :

No. 110974

v. :

COUNTY OF CUYAHOGA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; 

 AND REMANDED

RELEASED AND JOURNALIZED: June 9, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-11-746704

Appearances:

Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, Nicole 

T. Fiorelli and Richard N. Selby; The Robenalt Law Firm, 

Inc., and Thomas D. Robenalt, for appellee. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and David G. Lambert, Nora E. Poore and 

Kenneth M. Rock, Assistant Prosecuting Attorneys;

Roetzel & Andress, LPA, and Stephen W. Funk, for 

appellant. 

EILEEN A. GALLAGHER, J.:

Defendant-appellant County of Cuyahoga (“Cuyahoga County”) 

appeals from the November 1, 2021 judgment of the trial court and contends that 
the trial court failed to include statutory language, wrongfully granted postjudgment interest and failed to include terms addressing the disbursement of the 

funds to the class members and the attorney fees. We find that Cuyahoga County’s 

first assignment of error contests the law of the case. We sustain Cuyahoga County’s 

second assignment of error, overrule Cuyahoga County’s third and fourth 

assignments of error and remand this case to the trial court to enter judgment in 

favor of plaintiff-appellee Musial Offices, Ltd. consistent with this opinion. 

I. Factual and Procedural Background

This is the fifth time this case has come before this court for review. 

This court’s most recent opinion sets out the facts of this case to the date of that 

decision. Musial Offices, Ltd. v. Cty. of Cuyahoga, 2020-Ohio-5426, 163 N.E.3d 84, 

¶ 4-20 (8th Dist.). Appellee sought to recover alleged overpayments of property 

taxes on its behalf as well as a class of taxpayers who allegedly overpaid. Following 

a bench trial with an advisory jury, the trial court granted appellee judgment on its 

unjust enrichment claim in the amount of $3,927,385.91, while denying appellee 

judgment on its illegal taxation claim. The trial court also awarded pre- and postjudgment interest, awarded a $25,000 incentive fee to the named plaintiff, awarded 

attorney fees in the amount of 50 percent of the judgment and retained jurisdiction 

over the disbursements to the class. 

On July 9, 2020, this court reversed the trial court’s judgment 

awarding $3,927,385.91 on plaintiff’s claim for unjust enrichment and remanded 

the case to the trial court with the following language:
The trial court’s judgment is affirmed in part and reversed in part. We 

remand the case to the trial court to enter the amount of previously 

determined damages on the plaintiffs’ unlawful taxation claim along 

with previously determined amount of prejudgment interest.

Cuyahoga County then filed a motion for reconsideration specifically 

challenging both the judgment on the illegal taxation claim and the award of prejudgment interest affirmed by the panel in the first opinion. 

On November 25, 2020, the panel granted the motion for 

reconsideration, vacated the original opinion and issued a new journal entry and 

opinion with the following language:

The trial court’s judgment is affirmed in part and reversed in part. We 

remand the case to the trial court to enter judgment in favor of plaintiffs 

in the amount of $3,927,385.91 on the plaintiffs’ illegal taxation claim. 

The trial court is further instructed to vacate the award of prejudgment 

interest since such an award is not authorized on an illegal taxation 

claim.

Musial, 2020-Ohio-5426, 163 N.E.3d 84, at ¶ 88. Cuyahoga County sought review 

of this decision before the Supreme Court of Ohio which declined jurisdiction. 

05/11/2021 Case Announcements, 2021-Ohio-1606. The Supreme Court of Ohio 

also denied a motion for reconsideration on July 20, 2021. 07/20/2021 Case 

Announcements, 2021-Ohio-2401. 

On remand, Cuyahoga County moved the trial court to enter 

judgment which included a provision stating that “Plaintiffs may only collect their 

judgment from the tax dollars paid by them that remain ‘unexpended and in the 

possession’ of the County Treasurer[.]” Cuyahoga County also moved that “no post-
judgment interest should be awarded * * * because R.C. Chapter 2723 does not 

authorize post-judgment interest[.]” 

The trial court entered a judgment entry which summarized this 

background and concluded with the following paragraphs:

The appellate proceedings having now concluded, in accordance with 

the instructions on remand, the following judgment entry is made:

Judgment is hereby entered on the cause of action for illegal taxation

in favor of the plaintiff class and against defendant the County of 

Cuyahoga in the amount of $3,927,385.91 with interest at the statutory 

rate beginning on the date of judgment plus court costs. Any language 

to the contrary in the judgment entry of the trial court journalized on 

March 23, 2018, is hereby vacated. 

Cuyahoga County appeals and assigns the following errors for our 

review:

Assignment of Error No. 1: The trial court erred by issuing a final 

judgment entry upon remand that failed to include certain language 

requested by Cuyahoga County to state that the judgment is subject to 

the statutory limitation on judgments set forth in Ohio Revised Code 

Section 2723.05, and to find that none of the taxes remained 

unexpended and in possession of the county at the time of the 

judgment. 

Assignment of Error No. 2: The trial court erred by awarding 

postjudgment interest on the illegal taxation claim. 

Assignment of Error No. 3: The trial court erred by entering a final 

judgment upon remand that failed to include language to supervise the 

disbursement of funds to class members and to return any unclaimed 

funds to Cuyahoga County.

Assignment of Error No. 4: The trial court erred by entering a final 

judgment upon remand that failed to specify the amount of attorneys’ 

fees to be paid to class counsel out of the judgment. 
II. Law and Analysis

This court previously determined the damages and judgment for 

appellee’s illegal taxation claim and we will not revisit that judgment in this appeal. 

The trial court’s entry on remand did not abrogate terms consistent with terms in 

the previous entry. However, the previous entries did not decide the availability of 

post-judgment interest with respect to appellee’s illegal taxation claim and appellee 

provides no statutory support for post-judgment interest.

Assignment of Error No. 1: The trial court erred by issuing a final 

judgment entry upon remand that failed to include certain language 

requested by Cuyahoga County to state that the judgment is subject to 

the statutory limitation on judgments set forth in Ohio Revised Code 

Section 2723.05, and to find that none of the taxes remained 

unexpended and in possession of the county at the time of the 

judgment. 

Cuyahoga County’s first assignment of error is foreclosed by the law 

of the case. 

“The law-of-the-case doctrine provides that legal questions resolved 

by a reviewing court in a prior appeal remain the law of that case for any subsequent 

proceedings at both the trial and appellate levels.” Giancola v. Azem, 153 Ohio St.3d 

594, 2018-Ohio-1694, 109 N.E.3d 1194, ¶ 1. “The doctrine is necessary to ensure 

consistency of results in a case, to avoid endless litigation by settling the issues[.]” 

Id. at ¶ 14. As a result, the law-of-the-case doctrine precludes arguments “which 

could have been pursued in a first appeal.” Pipe Fitters Union Local No. 392 v. 

Kokosing Constr. Co., 81 Ohio St.3d 214, 218, 690 N.E.2d 515 (1998). 
This court determined that the plaintiffs were entitled to a judgment 

in their favor “in the amount of $3,927,385.91 on the plaintiffs’ illegal taxation 

claim.” Musial, 2020-Ohio-5426, 163 N.E.3d 84, at ¶ 88. The previous panel vested 

the plaintiff’s right to recovery in R.C. 5715.22: “Therefore, Musial and the members 

of the plaintiffs’ class were entitled to credits, pursuant to R.C. 5715.22, of the 

amounts they overpaid for the 2009, 2010, and 2011 tax years even though they 

dutifully made those payments without protest.” Id. at ¶ 64. That panel reached 

this conclusion in response to Cuyahoga County’s argument that the procedural 

requirements of R.C. 2723.03 prevented recovery on appellee’s claim for illegal 

taxation. Cuyahoga County’s argument that R.C. 2723.05 prevents recovery by 

appellee could have been raised before the previous panel.

Further, this aspect of the previous ruling was the basis for the second 

proposition of law in Cuyahoga County’s memorandum in support of jurisdiction 

before the Supreme Court of Ohio. 

Additionally, as noted by appellee, Cuyahoga County made this exact 

argument before the trial court before the prior appeal in Cuyahoga County’s motion 

for judgment on the pleadings filed March 5, 2015. Ergo, this argument could have 

easily been raised before the previous panel in response to appellee’s cross-appeal. 

Having failed to do so, it is now the law of the case. 

A prior panel ruled on this issue and the Supreme Court of Ohio has 

declined jurisdiction over the issue. We will not now revisit it. 
Assignment of Error No. 3: The trial court erred by entering a final 

judgment upon remand that failed to include language to supervise the 

disbursement of funds to class members and to return any unclaimed 

funds to Cuyahoga County.

Assignment of Error No. 4: The trial court erred by entering a final 

judgment upon remand that failed to specify the amount of attorneys’ 

fees to be paid to class counsel out of the judgment. 

The third and fourth assignments of error will be addressed together.

This court, in its previous opinion, reversed the trial court in part and affirmed it in 

part. The trial court had a limited remand which constrained its jurisdiction. “The 

remand order gives the trial court jurisdiction to carry out the directive of the court 

of appeals. The trial court is without authority to extend or vary the mandate given 

by the appellate court.” State v. Harper, 10th Dist. Franklin No. 06AP-733, 2007-

Ohio-2590, ¶ 13. See also State v. Grayson, 8th Dist. Cuyahoga No. 106578, 2019-

Ohio-864, ¶ 29 (trial court exceeded jurisdiction where it resentenced defendant on 

remand for counts where this court had affirmed the sentence.). 

In this case, the prior panel affirmed the language providing for the 

supervision of the class funds and the award of attorney fees. Musial, 2020-Ohio5426, 163 N.E.3d 84, at ¶ 19, 80. In that opinion, the mandate did not include any 

change to the attorney fees award or to the court supervision of the disbursement of 

funds. Id. at ¶ 88. Accordingly, the trial court had no jurisdiction to change either 

provision of the previous judgment. 

The trial court’s entry of November 1, 2021, adopted the language 

expressly approved of by this court’s prior panel. Further, that entry expressly 
limited its vacation of the prior judgment to the extent it was “contrary[.]” This 

statement implies that the language in the prior entry was not vacated to the extent 

it was consistent with the November 1, 2021 entry. In context, this entry functions 

as an amendment to the previous entry. 

We overrule appellant’s third and fourth assignments of error. 

Assignment of Error No. 2: The trial court erred by awarding 

postjudgment interest on the illegal taxation claim. 

Considering the second assignment of error, Cuyahoga County argues 

that there is no statutory authorization for post-judgment interest. Appellee 

contends that this claim is foreclosed by the law of the case. 

The trial court’s judgment entry of April 16, 2019, leading to the 

previous appeal expressly awarded interest “at the statutory rate from February 28, 

2018 * * * until paid[.]” Accordingly, this entry granted judgment for both pre- and 

post-judgment interest. However, that judgment for interest was for the appellee’s 

claim for unjust enrichment, and the prior panel reversed that judgment returning 

the case to the trial court to enter judgment in the amount of damages on the illegal 

taxation claim of $3,927,385.91 and vacated the award of prejudgment interest. 

This remand mandate made no express statement with respect to the award of postjudgment interest.

Nothing in the previous judgment of the panel explicitly established

or denied an entitlement to post-judgment interest. “‘[T]he doctrine of law of the 

case comes into play only with respect to issues previously determined[.]’” 
(Emphasis added.) Giancola, 153 Ohio St.3d 594, 2018-Ohio-1694, 109 N.E.3d 

1194, at ¶ 16, quoting Quern v. Jordan, 440 U.S. 332, 347, 99 S.Ct. 1139, 59 L.Ed.2d 

358 (1979), fn. 18. The prior panel returned the case to the trial court to enter 

judgment. Not until that judgment was entered in favor of the appellee was the issue 

of post-judgment interest ripe for review.

1

 The law-of-the-case doctrine does not 

apply to this issue. 

Cuyahoga County argues that the award of post-judgment interest 

contradicts longstanding precedent that the absence of a statutory provision 

“precludes the taxpayer from recovering such interest[.]” Gen. Elec. Co. v. De 

Courcy, 60 Ohio St.2d 68, 68, 397 N.E.2d 397 (1979), syllabus. In that case, the 

taxpayer was assessed taxes on an erroneous, higher basis. The error resulted in 

higher taxes charged to the taxpayer. The taxpayer demanded interest on the excess 

payments. The Supreme Court of Ohio held that there was no provision in R.C. 

5715.22 that authorized the recovery of interest. Appellee’s sole argument on appeal 

is that the post-judgment interest award is law of the case. Appellee does not cite to 

any statutory provision that would support an award of post-judgment interest. 

1 This may be contrasted with Cuyahoga County’s first assignment of error in that 

the illegal taxation claim there was the subject of appellee’s cross-appeal in the previous 

case. If Cuyahoga County had an alternative theory for why the trial court was correct to 

grant it judgment on the illegal taxation claim, then Cuyahoga County should have raised 

it in that appeal. Further, the parties in that case expressly raised and litigated the

relevant factual question, i.e., whether the money was still within the possession of 

Cuyahoga County. Musial, 2020-Ohio-5426, 163 N.E.3d 84, at ¶ 42.
Having rejected appellee’s argument that this issue is law of the case, 

we find De Courcy controlling and sustain Cuyahoga County’s second assignment of 

error. 

Accordingly, we affirm in part, reverse in part and remand this case 

to the trial court to enter final judgment in favor of the appellee class consistent with 

this opinion. 

It is ordered that appellant and appellee share the 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 

Cuyahoga County 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.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and

MARY J. BOYLE, J., CONCUR