[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

- Appell ee , : No. 110974 v. : COUNTY OF CUYAHOGA , :

Defendant

- Appell ant

. :

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 a ppellee

. 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 a ppellant

. EILEEN A. GALLAGHER , J.:

Defendant

- appellant County of Cuyahoga ( “ Cuyahoga County ” ) appeals from the November 1, 2021 judgment of the trial court and contends thatthe trial court fail ed to include statutory language, wrongfully grant ed post

judgment interest and failed to include terms addressing the disbursement of the funds to the class members and the attorney fees. W e find that Cuyahoga County ’s first a ssignment of e rror contests the law of the case. We sustain Cuyahoga County ’s second a ssignment of e rror , overrule Cuyahoga County ’s third and fourth

a ssignments of e rror and remand this case to the tr ial court to enter judgment in favor of p laintiff

- appellee Musial Offices, Ltd. consistent with this opinion.
I. Factual and Procedural Background

This is the fifth time this case has come before this c ou r t for review

. This c ourt’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, t he trial court granted a ppellee judgment on its unjust enrichment claim in the amount of $3,927,385.91 , while denying a ppellee judgment on its illegal taxation claim. The t rial court also awarded pre - and post

judgment 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, 20 20, t his c ourt reversed the trial court’s judgment awarding $3,927,385.91 on p laintiff’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 c ourt 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 pre judgment interest affirmed by the panel in the first opinion.

On November 25, 2020, t he panel granted the motion for reconsideration, vacated the original opini on 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
Annou ncements , 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 possessi on’ 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[.]”
T he trial court entered a judgment entry which summarized this bac kground 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 c ertain 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 coun ty 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 c ourt previously determined the damages and judgment for

a ppellee’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 t he availability of post

- judgment interest with respect to a ppellee’s illegal taxation claim and a ppellee 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 a ssignment of e rror is foreclosed by the law of the case. “The law

- of

- the

- ca se 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, t he 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)

.T his c ourt determined that the p laintiffs were entitled to a judgment

in their favor “in the amount of $3,927,385.91 on the plaintiffs’ il legal taxation claim.” Musial , 2020
- Ohio

- 5426, 163 N.E.3d 84, at ¶ 88 . T he 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. 57 15.22, 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 th is conclusion in response to Cuyahoga County’s argument that the procedural requirements of R.C. 2723.03 prevented recovery on a ppellee’s claim for illegal
taxation. Cuyahoga County’s argument that R.C. 2723.05 prevents recovery by

a ppellee 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 a ppellee, Cuyahoga County made this exact argument before the trial court before the prior appeal in Cuyahoga County ’s m otion for j udgment on the p leadings filed March 5, 2015. Ergo , this argument could have easily been raised before the previous panel in response to a ppellee’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 S upreme C ourt of Ohio has declined jurisdiction over the issue. W e will not now revisit it

.Assignment of Error No. 3: The t rial 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 en tering 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 a ssignments of e rror will be addressed together

. This c ourt , in its previous opinion , reversed the trial court in part and affirmed it in part. T he 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 c ourt had affirmed the sentence.).

I n this case, the prior panel affirmed the language providing for the supervision of the class funds and the award of attorney fees. Musial , 2020
- Ohio

5426, 163 N.E.3d 84, at ¶ 19 , 80. I n that opinion , the mandate did not include any change to the attorney fee s award or to the court supervision of the disbursement of funds. Id . at ¶ 88. Accordingly, the trial court had no jurisdiction to cha nge either provision of the previous judgment.

T he trial court’s entry of November 1, 2021 , adopted the language expressly approved of by this c ourt’s prior panel . Further , that entry expresslylimited 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. I n context , this entry functions

as an amendment to the previous entry.

We overrule a ppellant’s third and fourth a ssignments of e rror. Assignment of Error No. 2: The trial court erred by awarding postjudgment interest on the illegal taxation claim. Considering the second a ssignment of e rror, Cuyahoga County argues that th ere is no statutory authorization for post

- judgment interest

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

T he 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 a ppellee’s claim for unjust en richment, 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 post

judgment 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 a ppellee 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 th at case, the taxpayer was assessed taxes on an erroneous , higher basis. The error resulted in higher taxes charged to the taxpayer. The taxpayer demanded intere st on the excess payments. Th e 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 a ssignment of e rror in that the illegal taxation claim there was the subject of a ppellee’s cross

- appeal in the previous case . If Cuyahoga County had an alternative theory for why the trial court was cor rect to grant it judgment on th e illegal taxation claim, then Cuyahoga County should have raised it in that appeal. Further, t he parties in that case expressly raised and litigated the relevant factual question , i.e., whether the money was still within th e possession of Cuyahoga County. Musial , 2020
- Ohio

- 5426 , 163 N.E.3d 84, at ¶ 42.Having rejected a ppellee’s argument that this issue is law of the case ,

w e 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 a ppellee class consistent with this opinion. It is ordered that appell ant and appell ee share th e 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 th is entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER , JUDGE
KATHLEEN A

NN KEOUGH , P. J., and MARY J. BOYLE , J., CONCUR